The opinion of the court was delivered by: WEINFELD
This libel was filed against Meseck Towing Lines, Inc. and three of its tugs to recover damages for the repair of a telephone submarine cable running from the Battery to Ellis Island allegedly resulting from the respondents' negligence. The damage was caused by the anchoring of the S.S. Coastal Liberator.
The Liberator, owned by the libellant, was being transported as a 'dead ship' from Brewers Dry Dock in Staten Island to a loading berth in the East River, Brooklyn. She was being maneuvered by the three respondent tugs. One tug was on either bow and one on the port quarter.
The Liberator was in command of her master, Captain Caldwell. The pilot of the tugs was also aboard the vessel from which he issued orders to his tug crew members. After leaving the dry dock the flotilla proceeded into the Kills of New York harbor, up the main channel off the Statute of Liberty and then as it neared Governors Island on the starboard side, a strong west or northwest wind of Force 5 or 6 suddenly came up. The tug on the starboard side was unable to cant the vessel's head into the wind and she drifted southeast towards Governors Island.
Although it was known to the master and the tug pilot that the convoy was over a cable area, the Liberator's anchor was dropped, allegedly to avoid collision with the rock wall of Governors Island. When the anchor was lifted it appeared that the fluke had fouled the cable. In an effort to disengage the cable the master of the Liberator maneuvered his ship, backing and filling, dropping and picking up the anchor, going hard right and hard left. After two hours of such activity he finally succeeded. Inspection later revealed damage over a wide area of the submerged cable, the repair of which cost libellant (which also owned the cable) $ 4,000, recovery of which is here sought.
The libellant claims the respondent and its tugs were negligent in failing to supply a sufficient number of tugs, or tugs of sufficient horsepower safely to perform the towage operation under the prevailing wind and tide conditions which were either known or should have been known, or in any event could reasonably have been anticipated, and that such failure was the proximate cause leading to the fouling of the cables. It also contends that liability for the anchoring incident rests upon the respondent.
Upon all the evidence, I am of the view that the libellant has failed to sustain its burden of proof.
The number of tugs to tow the vessel upon leaving the Staten Island dry dock was determined by officials of the libellant. Captain Caldwell testified that when he left dry dock the three tugs were 'more than sufficient' under the then prevailing wind conditions to maneuver and shift the vessel with safety. A northwest wind blew up suddenly as the ship and tugs approached the East River off Battery Park in the vicinity of Governors Island. Captain Caldwell, in his deposition, described the events as follows:
'Q. And apparently it was just a sudden, extra gust of wind, or a particularly strong wind, at that particular time that you say simply took over the ship after you had gotten into the cable area, or else you would have anchored the ship before you got into the cable area? A. Yes.
'Q. Isn't that true? A. That's about it.
'Q. And both you and Mr. Duffy (the tug pilot) knew that you were in a cable area, and he said he hated like the devil to have the anchor there, and you said, 'Well, there's nothing else we can do,' and you are the one that gave the order to let go of the anchor? A. I remember that very, very clearly. I know Duffy was most reluctant to let that anchor go, and I said 'It is the only thing to do, let her go.' It was my responsibility.
'Q. It was your responsibility, and in other words, you were the one that had to make that final choice, as to whether -- A. Yes.
'Q. -- to risk damaging the cable as against saving your ship? A. Yes.
'Q. So it was your responsibility to let the anchor go? A. That's right. It was just ...