The opinion of the court was delivered by: CASHIN
These consolidated actions arise out of a collision between the motor vessel Urubamba, owned by respondent Cion Corp. Peruna Desvaspores, and the tug Coot, owned by the deceased John J. Wright. The collision occurred in the Delaware River on December 9, 1956. As a result of the collision the tug sank, her captain and owner, John J. Wright, was lost and presumably drowned, and her only other crew member, the mate Howard A. Hughes suffered personal injuries.
Four actions are involved. Wright's widow, as executrix, sues the owner of the Urubamba in personam on behalf of the estate, for the property damage to the tug and conscious pain and suffering of Wright prior to his death, and on her own behalf for damages resulting from the death. The mate of the vessel, in a separate action, seeks recovery for personal injuries both from the estate of Wright and from the owner of the m/v Urubamba. The cross-libel of the owner of the m/v Urubamba against the estate asserts a contingent claim, in the event both vessels are found at fault for recovery over against the estate, in accordance with the divided damages rule, for any amount it might pay in satisfaction of any judgment which might be entered against it in these actions.
The m/v Urubamba is a dry cargo and bulk ore carrier of 3,893 tons, measuring 338 feet in length and 50 feet 3 inches in the beam with a depth of 29 feet. The tug Coot was a wooden-hulled canal type vessel measuring 50 feet 6 inches in length and 12 feet 2 inches in the beam with a depth of 5 feet 8 inches.
At the time of the collision the m/v Urubamba was being navigated by James P. MacIntire, a qualified, compulsory pilot, and the Coot was being navigated by its captain, who was also a licensed pilot.
The tug Coot on December 7, 1956, at approximately 8 P.M., sailed from the foot of Wall Street, New York City. At the time of sailing, and at the time of the collision, the tug Coot had in operation proper navigation and range lights.
The m/v Urubamba departed from Baltimore, Maryland, at 6:40 P.M. on December 8, 1956 in ballast. At the time of the collision, approximately 2:30 A.M. on December 9, 1956, the tug Coot was navigating inbound on the Liston Range on the Delaware River. The Urubamba also had in operation proper navigation and range lights.
At the time of the collision the m/v Urubamba had already navigated through the Chesapeake and Delaware canals and was outbound on the Liston Range on the Delaware River.
At all relevant times prior to the collision the Urubamba had on watch on the bridge of the vessel, apart from the pilot, a watch officer, a helmsman and a lookout. During the same period the libelant Hughes was intermittently in the pilot house of the tug Coot.
The speed of the Urubamba prior to the collision was approximately ten knots over the ground, and that of the Coot was approximately seven knots.
At all relevant times the weather and tide conditions were such that they could not reasonably be expected to interfere with the proper navigation of the vessels. Both vessels sighted one another when they were four to five miles apart, and the vessels were in clear view of one another up until the time of the collision.
To this point, the positions of the parties and the testimony of the witnesses are not in substantial variance. From this point on, however, the theories of the parties and the testimony of the witnesses vary greatly. Libelants, Wright and Hughes contend, and the witness Hughes testified, that the Urubamba was, in violation of the Inland Rules of Navigation (33 U.S.C. 203), proceeding on the port rather than on the starboard side of the channel. However, it is clear that there was sufficient room, on whichever side the Urubamba was navigating, for either vessel to move far enough to either its port or its starboard to avoid the collision. Thus, even if the Urubamba was navigating on the wrong side of the channel, this violation of the Rules could not have been a proximate cause of the collision.
The Urubamba's version of the collision is that there was ample room for a starboard-to-starboard crossing, but that when the vessels were approximately 200 feet apart the Coot suddenly veered to starboard at a time when no action upon the part of the Urubamba could possibly avert the collision. All of the Urubamba's witnesses testified that immediately upon the veering the Urubamba sounded an alarm signal and reversed its engines, but without avail.
The libelants' contention is that a head-to-head meeting was indicated and, that since the Urubamba was on the port side of the channel, it was incumbent upon her to move to starboard so as to bring the conventional port-to-port passing. The testimony is undisputed that prior to the sounding of the alarm signal by the Urubamba no signals whatsoever had been given by either vessel.
On the testimony adduced before me, and on the exhibits, I am constrained to accept, in the main, the version of the Urubamba. Not only did the testimony of its live witness, the pilot MacIntire, appear more credible, but the innate probabilities of the situation tend to the conclusion I have reached. Captain Wright, while undoubtedly a qualified pilot, was nevertheless a relatively aged man for the stringent work in which he was engaged, and had been working almost continuously for a long period of time. It is only natural, therefore, that his reflexes at the time of the collision would be somewhat dulled. On the other hand, the physical condition of the pilot MacIntire, at least as equally skilled a navigator, would seem to have been excellent. In addition, an experienced mate was also on watch on the Urubamba at the same time. The testimony by deposition of the mate corroborates the testimony of MacIntire, and any possible dereliction of MacIntire would almost undoubtedly have been corrected by the mate. Libelant Hughes testified, consistent with the version that a head-to-head passing was indicated, that the Urubamba struck the Coot merely a glancing blow with a portion of the hull of the Urubamba relatively far back ...