The opinion of the court was delivered by: WEINFELD
A collision between two barges, the oil barge Russell-Poling No. 27 in tow of the tug Coral Sea, and the oil barge Seaboard No. 99 in tow of the tug Christine Moran, gives rise to these consolidated libels. The collision occurred on October 16, 1949 at 9:40 P.M. in the New London Harbor at the southerly end of the Thames River Channel where the river empties into Long Island Sound. The tug Christine Moran, with The Seaboard No. 99 in tow, was outbound from New London heading in a southerly direction down the Thames River into the Sound. The tug Coral Sea with her tow, the barge Russell-Poling No. 27, was entering the harbor on a rounding course passing close to Sarah Ledge Buoy on her port side, en route to an anchorage to the west of the channel.
The collision resulted in four different libels which were consolidated and tried together as follows:
(1) By the owner and charterer of The Russell-Poling No. 27 against The Christine Moran, her owner, charterer, etc., the barge Seaboard No. 99 and her owner. The claimant of The Christine Moran and the Seaboard Shipping Corporation, the owner of The Seaboard No. 99, filed petitions impleading the tug Coral Sea, her charterer, etc.;
(2) By the Seaboard Shipping Corporation as owner of the barge Seaboard No. 99 against The Christine Moran and her owner, wherein the claimant and operator of the tug Christine Moran impleaded the tug Coral Sea, her charterer, Russell Brothers Towing Co., the barge Russell-Poling No. 27 and the owner and charterer of the barge;
(3) By the Cities Service Oil Company as cargo owner of the oil aboard the barge Russell-Poling No. 27 against the tug Christine Moran, her owner and operator for cargo damage. The claimant of the tug Christine Moran filed a petition impleading the tug Coral Sea, her tow, the barge Russell-Poling No. 27, their respective owners, charterers, etc.;
(4) By the Seaboard Shipping Corporation, owner of the cargo on the barge Seaboard No. 99, against the barge Russell-Poling No. 27, her owner and charterer, wherein the latter appeared and filed a petition impleading the tug Christine Moran, her owner and operator.
The collision of the two barges occurred after the two tugs had safely passed each other starboard to starboard at a distance of about 300 feet.
The principal issue centers about the fault, if any, of the tug Christine Moran. The tug Coral Sea concedes that she was at fault and that her tow, The No. 27, sheered in the direction of, and collided with, The No. 99 in tow by The Christine Moran. All litigants are now in agreement that there was no fault on the part of either of the colliding barges. Thus the issue that remains is whether The Coral Sea was solely responsible for the accident or whether this is a 'both-to-blame' case. The Coral Sea, of course, contends that The Christine Moran was also at fault; and, contrariwise, the tug Christine Moran contends that the collision was due solely to tug Coral Sea's failure to maintain control of its tow, The No. 27, so that she sheered into the path of The No. 99.
The case presents the usual situation of divergence of witnesses' estimates of distance, relative positions, areas and point of collision.
But one essential fact emerges clearly upon an appraisal of the credible evidence: that the collision was head-on bow-to-bow. In the language of one of the witnesses, 'Right smack center, * * * nose to nose. * * * Couldn't go any better if you measured it off with a ruler. * * * Heading right on for one another, just like you would with your automobile and you see another car coming straight at you.' (Transcript of Record, pp. 26-31.)
That the No. 27 sheered to her starboard in the direction of The No. 99 is conceded. I am persuaded that The No. 99 also took a starboard sheer in the direction of The No. 27, resulting in the head-on bow-to-bow smash of the barges which could not have occurred in this manner except for the fault of both tugs. The situation as I see it is no different from that of two cars proceeding in opposite directions which collide. If only one car veered off its side of the road and crossed to the other side, it is difficult to encompass a center head-on collision, radiator-to-radiator; rather, the offending car would strike the other at an angle.
Here the master of The Christine Moran did attempt to make a claim that The No. 27 struck the bow of The No. 99 at a slight angle -- less than 45 degrees. But the overwhelming weight of the credible evidence and the physical condition of the damaged barges negate his version. The testimony fully warrants the conclusion that it was a head-on collision which could only have occurred if The No. 99 as well as The No. 27 has sheered to starboard. The sheer of each reflected a failure of duty of each tug to keep its tow under control and straight behind.
The Christine Moran was further at fault in proceeding at full speed and without taking precautionary measures following the failure of her master to observe, at and prior to the collision, the bow light of The Coral Sea's tow, The No. 27, which was lit and visible. The neglect here is emphasized by the master's admission that when The Coral Sea opened up her running lights he was uncertain as to whether she had two or three staff lights; that he failed to use glasses which were available to him, remaining in doubt as to whether the tug had the tow astern or alongside. As the tugs passed one another the master of The Christine Moran picked up the stern light of The Coral Sea's tow, the barge No. 27, but did not see her bow light and he was still in the dark as to the tow's location. In an effort to place her he played his searchlight, and it was then that he actually first say The No. 27. Immediately he gave the danger signal, but it was much too late. The No. 27 was then sheering in the direction of his tow, the barge No. 99, which was likewise sheering towards the former; and although each tug was put to hard port the collision of the barges was inevitable.
No explanation has been offered for the master's failure to observe The No. 27's bow light which would have given him information as to whether she had been sheering from port to starboard. It is significant that the claim advanced upon the trial, that The No. 27 carried no bow light, has been abandoned. It is now conceded that she had all required regulation lights, as did The Coral Sea. The failure of the master, who was in the wheel room but not at the wheel, to make this observation must be ascribed to lack of vigilance.
Under such circumstance the absence of a properly posted lookout created a presumption of contributory fault which could only be overcome by proof that the neglect could not have contributed to the collision.
The assumption must be that had a lookout been stationed on the bow he would have performed his duty in a prudent manner. A vigilant lookout observing the lights on the tow of The Coral Sea would have been informed of her movements and position and so taken all necessary precautions to prevent the collision.
The Christine Moran contends that she cannot be charged with fault because she had no lookout on the bow; that, in fact, the master acted in this capacity from his position in the pilot house. If he did, the very fact that he failed to observe the bow light carries with it either an inference that he was not in a position to see everything that a lookout stationed on the bow would have seen, or that he was not a careful and efficient lookout. The Courts have held that good navigation requires that moving vessels shall maintain a careful and efficient lookout. '(H)e must be properly stationed on the forward part of the vessel and must be held to a high degree of vigilance in that position. Neither the ...