The opinion of the court was delivered by: MOORE
The Arundel Corporation, as owner of the scow A-65, filed a libel against the S.S. City of Calcutta (referred to as Calcutta), claiming damages to the A-65 which sank after colliding with the Calcutta which was anchored in the main channel of Lower New York Bay. Ellerman Lines, Ltd. answered the libel as claimant of the ship.
The accident occurred in the early morning of May 15, 1953 in the Lower Bay, south-southeast of buoy 19-A, commonly called Craven Shoal Buoy. The Arundel tug, Brooklyn, a large (142 feet long), powerful (1,200 horsepower) vessel capable of making twelve knots without a tow, and three knots with the heavy tow she had at the time of the accident, was proceeding out of the harbor heading for a dumping ground at sea. It had a two of three scows in tandem, all of which were loaded, and the last of which was the A-65. The scows were closed together, and a hawser 300 feet long ran from the tug to a bridle on the first scow. The total distance from the tug's stern to the A-65's stern was 735 feet.
On the evening of May 14, the Calcutta, also outbound, was forced by heavy fog to anchor about a mile and a half south of the Narrows. Anchorage 28, the northeast corner of which is marked by Craven Shoal Buoy, was too shallow for her 25-foot draft. A sudden and dense fog forced the ship to drop her anchor in the navigable waters of the harbor.
I. Anchoring of the Calcutta
The Anchorage Regulations for the Port of New York (Exh. 1), (issued pursuant to 33 U.S.C.A. §§ 180, 258, 318, 471) provide (33 CFR § 202.155(l)(1)):
'Except in cases of great emergency, no vessel shall be anchored in the navigable waters of the Port of New York outside of the anchorage areas established in this section, * * *.'
Four factors influenced the Calcutta to anchor in the channel: (1) the denseness of the fog; (2) her draft compared with the depth of the anchorage waters; (3) anchor bells sounding from Craven Shoal Anchorage to the west and Gravesend Anchorage to the east; and (4) the anchoring of the vessel proceeding out of the harbor directly ahead of the Calcutta.
Under these circumstances the dropping of the anchor was a proper emergency precaution. For libelant, therefore, to succeed in this action it must be shown that the Calcutta was at fault in failing to get under way and move from its location prior to the collision.
II. Remaining in the Channel
Section 202.155(1)(6) of the Anchorage Regulations for the Port of New York provides that:
'Any vessel anchoring under circumstances of great emergency outside of the anchorage areas * * * shall move away immediately after the emergency ceases, * * *.'
Respondent admits, as he must, that 'There is no dispute that both case law and the regulations require a vessel anchored in a fairway to move as soon as the vessel can safely do so', but argues that the fog had not lifted so as to give the Calcutta time to get under way prior to the collision.
According to the testimony of the Brooklyn's navigator given at the Coast Guard investigation, visibility was 'not much over a mile' and the weather was rainy and 'misty'. Throughout the early morning hours of May 15 the fog had been alternatively lifting and then setting in again. The fact that there had been some traffic, most notably tugs with short tows, prior to the collision does not mean that the Calcutta was obligated to get under way immediately. The decision to venture into a dark, murky night with the possibility of reencountering a thick fog would vary with the type of vessel, and the factors which might seem trivial to the master of a tug might be crucial in the deliberations of the master of a large, deep draft freighter. That other vessels of presumably shallower draft than the Calcutta had not yet abandoned Anchorage 28 is some indication that the reluctance of the master of the Calcutta to get under way was not ill-advised. While the issue is close, a certain latitude of judgment must be given to the master under all the existing circumstances.
Upon all the facts it cannot be said that the Calcutta was at fault for not moving from its temporary anchorage prior to the collision. However, it is not necessary to come to a definite conclusion that the Calcutta was or was not at fault in failing to get under way because the facts ...