The opinion of the court was delivered by: MCGOHEY
On November 28, 1050, the barge OT-31 owned by libellant Oil Transfer Corporation, a Delaware corporation, was damaged when it struck the east and west walls at the north end of the government lock in the Hudson River near Troy, N.Y. A freshet condition existed, with a two to four foot rise in the river, and a three to four mile increase in the speed of the current, the result of a severe storm a few days before.
The libel charges that the negligent navigation of the respondent vessels, all tugs, caused the OT-31 to strike the walls. The tug K. Whittelsey, of which libellant is claimant, was impleaded.
About 1:45 P.M. the laden OT-31, made up with the tug K. Whittelsey, pusher-fashion, departed Waterford Terminal for the southbound trip to Carteret, N.J. In the Hudson River some two and one-half miles south of Eaterford is the Troy Lock. Because of the existing freshet condition, the government engineers in charge of the lock required all vessels locking through to have the assistance of two tugs, in order to prevent damage to the lock. To comply with this requirement the tug Otco was engaged to join the tow in the vicinity of the lock. Weather conditions were poor, with sleet, snow and reduced visibility.
On the trip downstream an uneventful meeting was had with a northbound tow, consisting of the tugs Penn No. 5, Dauntless No. 12, and the Oil barge Morania 140, somewhere to the north of 112th Street bridge, and south of buoy No. 7. After passing the 112th Street bridge and in the vicinity of buoy No. 5, The K. Whittelsey and tow were passed by the tug Otco, which proceeded down to the lock. The K. Whittelsey blew the regulation lock signal signifying an intention to lock, when in the vicinity of buoy No. 5, about a mile from the lock.
The tug Otco, having gone to within 300 feet of the lock, also blew the signal and rejoined The K. Whittelsey and OT-31 in the vicinity of buoy No. 2. The Otco tied up with its starboard bow to The OT-31's starboard bow, The Otco heading upstream so as to hold the tow against the current.
The three-unit tow had drifted about halfway to buoy No. 1, and close in to the east bank, when, without any passing signals, The Penn No. 5 and The Dauntless No. 12 passed to starboard of the unit, on their return from the Waterford Terminal. These tugs tied up to the east lock wall close to the lock gate to await lockage.
By this time the snow had stopped, visibility had cleared, and the lock which heretofore had been obscured had become visible to those aboard The K. Whittelsey, standing by in the area north of buoy No. 1, about 1500-1600 feet north of the lock gate.
The lock used two signal devices, a green-red light signal and a semaphore arm. At the time the lock first became visible to The K. Whittelsey and tow the semaphore was down and the red light showing, signifying that the lock was in use.
Within a short time the superstructure, and then the entire outlines, of two tugs and a barge, being raised in the lock and heading north, became visible to the waiting K. Whittelsey unit. At about the same time the tugs Penn No. 5 and Dauntless No. 12 which had been tied up to the east lock wall proceeded to a point near the north end of the west lock wall to allow room for the northbound unit to pass out of the lock.
The gates of the lock opened and the unit, consisting of the tug Cree towing and the tug Chemung pushing the barge Hygrade 12, came out. As the stern of The Chemung cleared the lock wall, the K. Whittelsey still in a position north of buoy No. 1, in preparation for beginning its run on the lock, and believing itself to have precedence, exchanged starboard meeting signals with the northbound unit, signaled The Otco to cast off, and, this accomplished, began its run on the lock.
About this time the navigator of The K. Whittelsey noticed The Penn No. 5 and Dauntless No. 12 enter the lock. Although he considered himself entitled to enter the lock first by virtue of his prior locking signal, his position in the standby area and the fact that he was encumbered with a tow, he did not consider the situation alarming since he would have room to get a line out and stop his tow part way in the lock; the tugs could then be rearranged and all the vessels locked down together.
As The K. Whittelsey and its tow proceeded to the meeting with the northbound unit, the tug Cree cast off from The Hygrade 12, held to the west side of the river to allow the barge and The Chemung to pass, and then rounded to to starboard passing under the stern of The Chemung and directly into the path of The OT-31 and K. Whittelsey. Having completed its turn The Cree proceeded into the lock, the gates of which were thereupon closed. The OT-31 and K. Whittelsey which by that time had headway and a three to four mile current under foot took action to stop, so as to prevent collision with the lock gates. As a result The OT-31 struck the east wall, caromed off and struck the west wall a glancing blow and was brought to a stop only 30 feet from the lock gates after getting a line to the west wall. It is for the damage resulting from these collisions with the lock walls that libellant sues claiming negligence and statutory violation against the tugs Penn No. 5, Dauntless No. 12 and Cree.
The testimony as introduced by the parties seems in agreement on the sequence of events as outlined above. On the questions of distance and speed there are minor discrepancies which however do not change the issues here involved. One main area of dispute is whether the lock signal was red or green when The Cree returned to the lock. Taft, The Cree's navigator, maintained that he never saw the lock signal on green; that he had been cleared to reenter the lock on a red signal, and did so. On the other hand, witnesses for The Penn No. 5 and Dauntless No. 12 as well as for libellant testified that the light went green when the stern of The Chemung cleared the lock walls, and remained green at least until after The K. Whittelsey and her tow had begun their run to the lock, and until after The Penn No. 5 and The Dauntless No. 12 had gone into the lock. The latter version is by far the more persuasive and is accepted.
In so far as The Penn No. 5 and Dauntless No. 12 are concerned there seems to be no close causal connection between anything done by them and the damage done to The OT-31. The Penn No. 5 and The Dauntless No. 12 probably did not sound the statutory one blast for a starboard passage, presumably because The K. Whittelesey tow was lying in toward the east bank. While The Penn No. 5 and Dauntless No. 12 may have been at fault in not allowing the encumbered tow to enter the lock first, there was no causal relation between that and the damage to OT-31 because, as her Captain admitted, The K. Whittelsey tow could easily have locked through with the two tugs.
The Cree defends and explains its action on the ground that the lock tender who under the regulations has final authority to give precedence in entering the lock,
had given The Cree permission to lock back through with The Penn No. 5 and Dauntless No. 12; that although The Cree saw The K. Whittelsey tow upriver, she did not know whether it was under way; that The K. Whittelsey tow was deliberately trying to 'run the ...