The opinion of the court was delivered by: LEVET
This is a suit brought by the Pennsylvania Railroad Company as libellant (hereinafter called 'Pennsylvania' or 'libellant') against a steamer, the S.S. Beatrice (hereinafter called 'the Beatrice'), and its owner, A. H. Bull Steamship Co., Inc. (hereinafter called 'Bull'), and against the Tug Lester J. Gillen (hereinafter called 'the Gillen'), and its owner, Henry Gillen's Sons Lighterage, Inc. (hereinafter called 'Gillen's Sons'), to recover damages sustained by libellant's Barge No. 416 (hereinafter called 'Barge No. 416' or '416') and her cargo when the Gillen allegedly collided with, squeezed and sank the said barge. The libel seeks recoveries both in personam and in rem against Bull and Gillen interests. It alleges that the negligent navigation of the Gillen and the Beatrice caused the sinking of libellant's barge.
Gillen's Sons petitioned to implead the Dalzell Towing Co., Inc. (hereinafter called 'Dalzell'), which had not been originally joined, alleging fault on the part of Dalzell and the Tug Dalzellaird (hereinafter called 'the Dalzellaird'), the Beatrice and libellant's Barge No. 416.
This constitutes an amended opinion, amended findings of fact and conclusions of law and supersedes the original opinion, findings of fact and conclusions of law heretofore made and filed herein.
Since the filing of the original opinion, etc., the impleaded-respondent, Dalzell, moved to amend the pleadings to assert a cross-claim by it against Bull by reason of a Pilotage Indemnity Agreement. This motion was granted. Request was also made for a further review of certain findings of fact and conclusions of law previously made by the court. The court thereupon requested all parties to file proposed findings of fact and conclusions of law, all of which were submitted on or about January 2, 1958.
Among other allegations contained in Dalzell's answer to the petition of Gillen's Sons, and in its cross-claim asserted against Bull, Dalzell in effect stated:
1. That Dalzell furnished the Dalzellaird and the Gillen to assist the Beatrice in shifting from one berth to another.
2. That those in charge of the Gillen were incompetent and inattentive and failed to obey the orders of the docking pilot aboard the Beatrice.
3. That by reason of a pilotage agreement, Dalzell is entitled to indemnity from Bull as to any damages paid by Dalzell to the libellant.
Bull, by its answer to the cross-claim of Dalzell, admitted a contract of towage but denied liability to Dalzell.
After hearing the testimony of the parties, examining the exhibits, the pleadings as amended, briefs and proposed findings of fact and conclusions of law submitted by counsel, this court makes the following amended findings of fact and conclusions of law:
1. Pennsylvania, the libellant, on December 15, 1953, and at the time of the institution of this suit, was the owner of a covered barge known as P.R.R. 416.
2. On December 15, 1953, and at the time of the institution of this suit, the Beatrice was within the Southern District of New York and within the jurisdiction of this court, and the said Beatrice was then, and now is, owned by the respondent, Bull.
3. On December 15, 1953, and at the time of the institution of this suit, the Gillen was within the Southern District of New York and within the jurisdiction of this court, and the said Gillen was then, and now is, owned by the respondent, Gillen's Sons.
4. On December 15, 1953, and at the time of the institution of this suit, the Dalzellaird was within the Southern District of New York and within the jurisdiction of this court, and the said Dalzellaird was then, and now is, owned by the impleaded-respondent, Dalzell.
5. On December 15, 1953, at the time of the collision hereinafter referred to between the Gillen and Barge 416, the Beatrice was in the possession of Bull, the Gillen, although supplied by Dalzell, was in the possession of Gillen's Sons, and the Dalzellaird was in the possession of Dalzell.
6. On December 15, 1953, at about 12:05 P.M., the 416 arrived at and was moored by its bargee, one Omundsen, in a slip located between 22nd and 23rd Streets, Brooklyn, New York, at a berth designated by a harbormaster employed by the respondent Bull, or an affiliated corporation.
7. Carfloat No. 591, owned by the Pennsylvania Railroad Company, was moored adjacent to the northerly side of the said slip and near the entrance of the slip. Outboard of it and projecting broadside into the slip the Pennsylvania Railroad Company Barge No. 438 was moored. Barge 416, also moored outside of Carfloat 591 and broadside thereto, was nearest the entrance of the slip. Further in on the same north side of the slip was a New York Central barge, Cleveland. Moored to the Cleveland with its port side outboard was Barge No. 460.
8. On the morning of December 15, 1953, Barge 416 was in a seaworthy condition, with no more than about two inches of water in the stern only, constituting a normal amount of water collected from time to time. Barge 416 had been in the yard of the Jersey City Drydock Company for an annual overhaul from November 22 through December 8, 1953.
9. On the morning of December 15, 1953, said Barge 416, with a cargo of 1,800 sacks of grain weighing approximately 90 tons, evenly stored, had proceeded from Greenville, New Jersey, to the Bull Line pier, Brooklyn, New York, in tow of the Tug Wilmington.
10. On December 15, 1953, commencing at about 12:08 P.M., the Beatrice was being shifted from berth No. 4, 20th Street, Brooklyn, New York, to berth No. 1 in a slip located between 22nd and 23rd Streets, Brooklyn, New York. The tugs Dalzellaird and Gillen were dispatched to assist in the maneuver.
11. The Beatrice is 459 feet long and 63.2 feet wide. The Dalzellaird is 93 feet long with a 25-foot beam; the Gillen is 84.8 feet long and has a beam of 24 feet. The Carfloat No. 591, which is 250 feet long and 34 feet wide, and Barge 416, which is 100 feet long and has a beam of 31 feet, with a depth of 7 feet 10 inches and a 400 ton capacity, occupied 65 feet of the width of the slip. This slip is approximately 225 feet in width. The widest portion of the flotilla if all vessels (i.e., the Beatrice, Dalzellaird and Gillen) were massed abeam would measure approximately 112.2 feet.
12. The Beatrice was being directed by Captain Ludwig Mattisen, docking pilot and licensed tugmaster of Dalzell, who was on board the Beatrice under a contract entered into between Bull and Dalzell, which provided in part as follows:
'When the captain of any tug furnished to or engaged in the service of assisting a vessel which is making use of her own propelling power, goes on board such vessel, or any other licensed pilot goes on board such vessel, it is understood and agreed that such tugboat captain or licensed pilot becomes the servant of the owner of the vessel assisted in respect to the giving of orders to any of the tugs furnished to or engaged in the assisting service and in respect to the handling of such vessel, and neither those furnishing the tugs and/or pilot nor the tugs, their owners, agents, charterers, operators or managers shall be liable for any damage resulting therefrom.'
During the execution of the maneuver, Captain E. B. Hudgins, master of the Beatrice was on the bridge of his vessel in a position to observe the operation.
He testified that he was there 'To see that my vessel was taken care of.
13. On the morning of December 15, 1953, the weather was clear, visibility good, but with a considerable wind. There are practically no tidal conditions in the slip. At 10:00 o'clock that morning small craft storm warnings had been announced. The reports prophesied winds 'gusty southwest to west winds 25/35 m.p.h.' According to the Beauford Scale, these winds were 'strong' and were to become of 'gale' force (39-46, 47-54 m.p.h.) in the afternoon.
Captain Mattisen testified that that day there was in fact a fresh west-southwest wind blowing at about 15 to 20 miles per hour. He contended that the wind did not adversely affect his docking maneuver. On the other hand, Captain Valentine A. Smith, former master of the Gillen, testified in substance that with the wind factor involved, according to his way of thinking, it was going to be a touchy maneuver to begin with. In my opinion, the wind had a tendency to bear down upon the starboard quarter of the Beatrice and set the vessel down to port, a factor which should have been considered by Mattisen in directing the maneuver. Neither Mattisen nor the master of the Beatrice had checked the weather reports before commencing the shifting of the Beatrice.
14. When the Beatrice, bow foremost, had rounded the turn into the slip into which she was being transferred, the Dalzellaird took a position on the starboard bow of the Beatrice, and the Gillen was made fast to the port bow of the steamer, connected by a line. Mattisen had a left rudder on the Beatrice as the flotilla came into the slip.
15. At the time the master of the Gillen received the order from Mattisen to let go or cast off from the Beatrice, the Gillen was abreast of the two barges outboard of the Carfloat No. 591, that is, Barges 438 and 416, and not more than 15 to 20 feet therefrom. Initially, the Gillen started to go ahead, to pass around the bow of the Beatrice, then reversing its engines it went astern, in the course of which it became wedged between the Beatrice and the 416.
16. Thus, while Barge 416 was properly moored in the slip aforementioned, sometime between 12:20 P.M. and 12:35 P.M. the port side of the Gillen so came into contact with the outboard side (the port side) of the 416.
17. At the time of the contact of the Gillen with Barge 416, moored as aforesaid, the Gillen was part of a flotilla consisting of the Gillen and the Dalzellaird, which were in the process of docking the Beatrice (in part under its own power) in the said slip at an inner berth (No. 1 berth) on the same side of the slip on which the 416 was moored. Immediately before the impact the Dalzellaird had cast off from the Beatrice.
18. The damage to Barge 416 was principally at the port bow, but the impact resulted in a large spring at other points due to the fact that some six or more planks at the port bow corner started off and the corner rake timber was damaged. Other damage was also suffered.
19. Dalzell through its employee, the pilot or tug captain on board the Beatrice, was negligent in the operation and maneuvering of the flotilla in the following respects:
(a) He failed to take into consideration the effect of the wind on the Beatrice.
(b) Prior to the maneuver, he had not consulted the available weather reports.
(c) He did not allow enough space for the flotilla to turn into the slip so as to pass the 416 at a safe and proper distance.
(d) He made no inquiry as to the rudder and engine speed adjustments of the Gillen.
(e) Several 'astern orders' in the Beatrice's bell book at about the time of the collision indicated astern movements, which had a tendency to swing the stern of the flotilla into the 416.
(f) He failed to appreciate the imminent danger of the position of the Gillen between the Beatrice and the 416 before the ...