The opinion of the court was delivered by: ABRUZZO
Marine Fuel Transfer Corporation is the owner of the M/V Merry Queen, a self-propelled oil tanker which collided with the barge Gossan in the East River in the vicinity of Hunts Point while in tow of the tug Ruth at about 4 a.m. on December 15, 1949. Robert B. Wathen is the owner of the tug Ruth. James F. Hughes, Inc., is the owner of the barge Gossan. Both seek to recover the damages sustained as a result of the collision, the Merry Queen from the tug Ruth, and the Gossan from the Merry Queen and the tug Ruth. Both causes of action were consolidated.
The Merry Queen Claims that the tug Ruth was entirely responsible for the collision.
The barge Gossan claims that the damage to its barge was caused by the negligence of the Merry Queen and the tug Ruth. It seeks a decree against both or either of them.
The establishment of the facts will point the way to a proper decree. These facts must be analyzed because the testimony is contradictory and the witnesses called by the respective parties have testified diametrically opposite to each other.
The Merry Queen loaded with a cargo of fuel oil was bound easterly in the East River for Mt. Vernon, New York. The Ruth was towing the barges M. A. Donnelly and Gossan, tandem style, from Providence, Rhode Island, to New York.
Captain Jacobsen was the captain of the Merry Queen. At the time of the collision he was steering his vessel. There was a deck hand in the pilothouse on the port side. Jacobsen was proceeding in the middle of the channel with a flood tide underfoot. With a blue pencil he marked out his course and the point of the collision. Chart 226, Ruth Exhibit No. 2. It would appear and it is not in dispute that the channel was about 2,000 feet wide at that point. Jacobsen placed the letter 'X' at the point where he claims the collision took place -- that is mid-channel insofar as that exhibit is concerned. There was a tow quite some distance ahead of him, going in the same direction as the Merry Queen. (It turned out later that this was a tow with two tugs, the New Rochelle and Hartford.) As he was proceeding in the middle of the channel he suddenly was confronted with a black hulk, 300 or 400 feet from him but he could not tell the bow from the stern and collided with it, his starboard bow coming in contact with the port bow of this black hulk which later turned out to be the Gossan. As he was approaching he could not tell whether the hulk was moving until he was almost in contact with her. Tr. 78, 85. She was showing two white lights, one on top of the other, and he could not tell or distinguish these lights from the lights on the tow ahead because the lights were in line with the lights of this tow and they all appeared to be on a barge in the same tow. These two white lights disappeared for a period of time and at the moment of collision he saw them again and they were on the Gossan. At the same time he also saw a dim red light on her. When he first saw these lights they appeared to be one above the other but at the time of collision they were side by side. Tr. 79. In other words, the two white lights he saw after sighting the Hartford-New Rochelle tow were the same two white lights he later saw on the Gossan at the moment of collision.
Krauss, the mate on the tug Ruth, testified that the Ruth was towing the Donnelly and Gossan astern with a 600-foot cable from the tug Ruth to the Donnelly and with a line roughly 600 feet from the Donnelly to the bow of the Gossan. While east of Execution Point he summoned Captain Simmons of the tug to the pilothouse because they were reaching the point where it was necessary to shorten their tow lines. At Whitestone the hawser between the Ruth and Donnelly was shortened and they proceeded to the anchorage just east of Hunts Point. After the Donnelly had been anchored in the anchorage zone they began to shorten up the tow line on the Gossan, intending to put it alongside the starboard quarter of the barge Donnelly and make it fast. The Ruth at the time they began the shortening up process showed tow lights, three lights in a vertical line. The Gossan had two lights astern. Krauss testified unequivocally that the collision took place while the Gossan was either all in the anchorage zone or a very small part of it out of the anchorage zone.
Simmons, the captain of the Ruth, corroborated Krauss, his mate. He testified that the collision took place at the time the Gossan was completely in the anchorage zone. He also testified that search lights were being focused on both the Donnelly and the Gossan while in the process of shortening the line from the Gossan.
McDonald testified that he was the captain of the Hartford and was assisting the tug New Rochelle which had in tow three barges going to Mt. Vernon. His tow was going in the same direction as the Merry Queen and was ahead of it. He passed the Gossan which was lying in mid-channel but he could not tell whether she was anchored or moving. He had to maneuver his tug to avoid striking the barge and just cleared her by six or seven feet. Tr. 103-104. After he passed the Gossan he heard the noise of the collision and went back to the assistance of the Merry Queen. He was not paying any attention to the lights on the Gossan because he was busy and paid no attention to lights. Tr. 104.
On the evidence the Court finds that the collision involved took place in mid-channel. It believes the testimony of the witness Jacobsen as to the point of the collision and this testimony is amply corroborated by the only disinterested witness in the case, to wit, Captain McDonald.
The testimony given by Krauss and Simmons left the Court in doubt as to their veracity and, therefore, it does not believe that search lights were being focused on both the Gossan and the Donnelly at the time the collision took place.
The captain of the Ruth was careless in two respects: (1) He attempted to shorten the tow line on the Gossan while she was in mid-channel and left too much of a tow line between the Ruth and the Gossan at that point; and (2) he was careless and negligent in not making the maneuver of shortening the hawser entirely in the anchorage zone. There was ample space in that zone to make this maneuver. Krauss so testified. Tr. 44-45.
The Merry Queen cites several statutory violations: (1) In obstructing the channel in violation of 33 U.S.C.A. § 409; (2) in neglecting to carry proper lights or signals in violation of 33 U.S.C.A. § 121 and Sections 80.16(b), (d) and (g) of the Pilot Rules, 33 C.F.R. 80.16(b), (d) and (g); (3) failure to comply with Sections 84.2 and 84.4 of the Pilot Rules (3 C.F.R. 84.2 and 84.4) in the matter of the length of her tow's hawsers, and in failing to shorten the length of her hawsers where the shortening should have taken place; and (4)(a) in that the Ruth negligently permitted the Gossan to be completely out of control in the fairway while engaged in bringing the head barge to anchor, (b) was a menace to other traffic, (c) that the tug failed to prevent the barge from interfering with the navigation of other vessels ...