The opinion of the court was delivered by: GALSTON
This action was removed from the State Supreme Court, County of Kings, on the petition of the defendant. The action was tried without a jury. Originally the Commercial Cable Co., Inc. was also a party defendant, but by stipulation of December 8, 1952 the action was discontinued against that defendant.
The complaint sets forth that on August 9, 1952, at about 9:45 A.M., the plaintiff Frank Mattina was engaged in fishing on a fishing boat owned by the coplaintiff, his wife, off Rockaway Point, and that he sustained personal injuries when the defendant, through the operation of its vessel, the John W. Mackay, struck the fishing boat.
A second cause of action is alleged on behalf of Pearl Mattina as the owner of the boat for damage caused to her fishing boat as a result of having been struck by the John W. Mackay.
The answer denies liability, and alleges that it was the negligence of the plaintiffs that brought about the collision.
The John W. Mackay was a cable repair ship. She had sailed from Halifax, N.S. on her way to Rockaway Inlet, and had left Quarantine Anchorage in New York Harbor that morning. The navigation was in charge of Captain Julius H. Seeth, a Sandy Hook pilot.
On the morning in question, Frank Mattina, with his brother Tom Mattina, and a friend since deceased, went fishing in a fishing boat twenty-six feet in length, owned by Pearl Mattina. They arrived at a body of water known as Tin Can Fishing Grounds and anchored there. Apparently they were there for an hour and a half before the accident occurred.
It seems undisputed that that area was used by a great number of fishing vessels as a fishing ground.
It is the contention of the plaintiffs that the defendant had full knowledge of the presence of these numerous fishing craft anchored between Buoy 2 A in Ambrose Channel and Rockaway Inlet, but nevertheless deliberately proceeded along a dangerous course into the path of these anchored fishing craft. Also the plaintiffs contend that the Mackay did not afford the plaintiffs adequate and sufficient warning of her presence in the fishing area. The defendant, on the other hand, contends that the plaintiffs were at fault for a number of reasons: first, for anchoring in the Channel; secondly for failing to keep a lookout, and finally that the defendant is not liable for the negligence, if any, of the New York State pilot.
The evidence establishes the anchored position of the Mattina boat. It was in the Channel, near the Rockaway Bell Buoy marking the Channel. The authorities warrant the conclusion that this area in the Rockaway Inlet was indeed a channel. The Oliver, D.C., 22 F. 838.
Seeth, the pilot, testified:
'Q. Now, Captain Seeth, what kind of traffic plies the waters from the Ambrose Channel into Rockaway Inlet, as you observe it? A. Well, almost daily there is a sludgeboat that goes into Rockaway and takes the sludge from the basin at the end of the sewer, through the settling basin, and takes it out to sea and dumps it. That is almost daily.
'Once a year we have a cable boat from either the United States Cable or British Cable or French Cable, there is a cable boat called the Edward Jerry Mackay that also goes in there, and they work on the cables inside of Rockaway.
'Q. What other kind of sizeable traffic do you see going in there? A. Well, there are tankers, gasoline tankers and fuel ...