The opinion of the court was delivered by: DAWSON
This case which was tried by the Court presents an issue as to liability for damage to a motorboat and for personal injuries as a result of a collision between a tug and a motor boat in the East River.
The proceeding was instituted by a petition of the Val Marine Corporation, owner of the tug Val No. 1, praying for exoneration and/or limitation of liability for losses and damages arising out of the collision. The Court has jurisdiction by virtue of 28 U.S.C. § 1333.
The collision was one between the tug Val No. 1 and a motorboat bearing the number 10K701. The collision occurred at about 12:30 A.M. on the early morning of September 2, 1953 in the East River, north of Welfare Island, and approximately 100 to 175 yards from the shore of Astoria. Claims have been filed for damage to the motorboat and for personal injuries sustained by its owner and three of his guests; no claim for damage was filed by the tug.
As to the following facts, no substantial dispute exists:
The motorboat was a 28' cabin cruiser with a 9' beam. It was powered by a 115 h.p. Chrysler Crown Engine with 16 knots top speed.
The other boat in the collision was the tug Val No. 1 owned by the Val Marine Corporation. It was a 70' tug, weighing approximately 68 tons, and was powered by a 300 h.p. Diesel Engine developing a top speed of between 7 and 8 knots per hour.
On the evening and in the early morning hours at which time the collision occurred, the night was clear and visibility good. There was no dispute on the part of any of the witnesses that from their respective boats they could see the lights both on the Astoria shore, to the East, and on the Manhattan shore, to the West. There is also no dispute that both vessels were showing full navigation lights.
The motorboat was returning from a fishing trip in the vicinity o Atlantic Highlands. The owner of the boat, Leonard Costas, was at the helm of this boat. The boat had put in for refueling at Sheepshead Bay and was then navigated through the upper Bay and through the East River en route to its berth at College Point in Queens. The motorboat passed up the East River through the channel which is east of Welfare Island.
The tug, after leaving a barge at a dock at East 70th Street in Manhattan, headed for Port Morris in the Bronx. It was being navigated by John Haugen, the first mate. The tug proceeded north up the channel west of Welfare Island.
The exact point of collision was a matter of some dispute but the evidence seems clear that both vessels had proceeded well beyond the northern tip of Welfare Island. Mr. Costas, who was navigating the motorboat, said that when he passed the northern tip of Welfare Island, he looked around the entire horizon and saw no ship either to starboard or port. Mr. Haugen, who was navigating the tug, stated that when he passed the northern tip of Welfare Island, he also looked around and saw no ship approaching on his starboard side. Both of the ships kept on their respective courses until the collision occurred. No whistles were blown or other signals given by either ship.
We therefore have a situation where two ships proceeding on the East River on a clear, bright, evening got to a point where neither saw the other until they were a very short distance apart. Almost immediately thereafter, they collided. How could this have happened?
Mr. Costas, who was the owner of the motorboat and who was navigating it, said that when he passed the tip of Welfare Island, he scanned the entire horizon, 'port, starboard, bow and stern'. He stated that he checked the traffic to the west of the Island as well as the traffic behind him and that he had a clear view. He testified that he saw no other ship and that he maintained his course until one of his passengers shouted to him that he saw a green light. At that point, which was off the shore of Astoria, some 500 yards beyond the tip of Welfare Island, Mr. Costas looked over his shoulder, saw the green light, and knew it was a boat. This boat, he said, was about 60' to 80' away from him at that moment, headed in his direction, and the interval between the time when he saw this light and the moment of impact was a question of seconds. He said that he was navigating at an average speed of 5 to 6 knots, although he stated that his average cruising speed was between 8 and 11 knots.
It was undisputed that the top speed of the tug was about 8 knots. The skipper of the tug stated that when he arrived abreast of the light at Welfare Island, he looked toward the east channel to see if any traffic was coming out, but saw none; he continued on his course until he heard a shout from one of the engineers then off duty. He stated that he then looked to starboard, saw the motorboat on a 45 degrees angle off the stern, and heading toward the tug. He states that at this moment, the motorboat was about 5' to ...