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July 17, 1959

UNITED STATES of America, as owner of THE Barge BC-634, Libelant,
THE Motor Tanker J. A. COBB, Diesel Tanker J. A. Cobb, Inc., Claimant, and The Central Railroad Company of New Jersey, Respondent-Impleaded

The opinion of the court was delivered by: WEINFELD

The libelant seeks to recover damages for the loss of its Barge BC-634 which was in collision with Tanker J. A. Cobb, owned by the claimant. The collision occurred while the vessels were proceeding in opposite directions in Newark Bay underneath the Newark Bay Drawbridge, owned and operated by the Central Railroad Company of New Jersey. The railroad was impleaded by the claimant pursuant to Admiralty Rule 56, 28 U.S.C.A.

The bridge is of a vertical lift type with an east and west draw separated by a center abutment 200 feet in length. The west draw has a horizontal clearance of 216 feet, the east draw a clearance of 134 feet. The spans are opened by a bridge tender upon signal.

On the evening of July 28, 1954 at about 8:15 p.m., the Rogers, towing the BC-634 on her port side and two scows in tandem on her starboard side, left Staten Island bound for Newark Terminal, New Jersey.

 During the course of the voyage, while northbound in Newark Bay, the Rogers signalled the bridge tender to raise the drawbridge to permit her passage. After some delay occasioned by a train passing over the bridge, the bridge tender, following an exchange of whistles, raised the west span for the Rogers to proceed. She was then about 100 yards south of the bridge. The Rogers then headed straight through the west draw at 2 1/2 knots against an ebb tide. The Cobb, then southbound, when north of the bridge, sounded a one-whistle signal for port-to-port passage to which the Rogers assented. The Cobb had just reduced her engines to half speed. With the tide underfoot she was proceeding at approximately 8 1/2 knots. *fn1" When the Cobb reached a point about 300 feet from the Rogers, she suddenly veered to port and headed straight for the Rogers. The Rogers sounded a danger signal, her engines were stopped, and she was put full speed astern. The Cobb continued on without reducing speed and struck the Barge BC-634, on the Rogers' port side, a powerful blow head on. The lines of the barge to the Rogers snapped and parted; the Cobb pushed the barge back through the draw, that is, southerly, and to the westerly abutment. Despite efforts to keep the BC-634 afloat, she sank.

 The usual conflicting and irreconcilable versions given by members of the respective crews as to speed, distances, signals and point of collision, as well as other significant factors relating to the occurrence, are present in the instant case. All witnesses, with the exception of the bridge tender and two deck hands, testified in open Court. *fn2" After a study of the trial minutes, my own summary notes of witnesses' testimony, and an evaluation of their demeanor. I am persuaded that the version of the libelant's witnesses as to how the accident occurred is substantially correct; that as set forth in the subjoined enumerated findings of fact, the collision was due to the negligent conduct of the Cobb in proceeding and continuing, under the existing circumstances, at an excessive rate of speed as it approached the bridge and to its failure to have a proper lookout stationed sufficiently forward at its bow. The credibility of witnesses called by the Cobb was cast in doubt by certain contradictory and irreconcilable aspects of their testimony with respect to substantial matters. The finding of fault of the Cobb rests not alone upon the testimony of libelant's witnesses but it is strengthened and pointed up by the version of the Master of the Cobb with respect to the passing signal.

 The Master of the Cobb testified that when he sounded the one-blast signal to the Rogers, the vessels were not in shape to pass port-to-port but that an alteration was required by one or the other. According to his testimony given at the Coast Guard hearing shortly after the collision, the Master of the Cobb saw a white light and a green light on a vessel, which turned out to be the Rogers, when 180 feet away and while proceeding at half speed (6 1/2 knots) with the tide underfoot. Upon the trial his testimony differed. He then testified that the white light and the green light were first observed when 400 feet away and at another point, when 300 feet away. In any event, whatever the distance, the Master acknowledged that it was indicated the vessels were on a collision course. In stead of giving a danger signal, he signalled for a port-to-port passage. He concedes that the situation did not call for a port-to-port passage and explains that he 'had in mind that that boat would -- could be straightened up and pass safely on the port-to-port.'

 Here we have one of the conflicts in the testimony -- the distance which separated the two vessels when each sighted the other and also when the passing signal was given. According to those on the Rogers, the Cobb was first observed when she was about 500 yards north of the bridge; she was showing a red light and a white bow light which, from the Rogers' point of view indicated a port-to-port passage. Accordingly, when the Cobb sounded a one-whistle signal inviting a port-to-port passage, the Rogers assented. The Rogers continued straight ahead until she observed the Cobb, then about 300 feet away, suddenly heading straight for her. The Rogers then sounded the danger signal, stopped her engines and put her engines full speed astern. The crash soon followed.

 Upon the Captain's own version, his hazarding the port-to-port passage, when from his situation the vessels were on a collision course, his proceeding without reducing speed, veering suddenly and without warning or signal to the left into the BC-634, constituted negligence; particularly since he knew, when he sounded the one-blast signal, that the vessels were not then in shape to effect a port-to-port passage and that an alteration was required. *fn3"

 Indeed, the Second Mate of the Cobb underscores the lack of prudent seamanship. He testified that at the time of the exchange of the one-whistle signals the Cobb was 700 feet from the Rogers. At other points in his testimony he fixed the distance variously at 300, 400 or 500 feet. He testified that when first observed, the Rogers was on the port side diagonally across the draw. The Mate continued:

 'Q. When you saw the green light she was going in a westerly direction then, wasn't she? A. She was going in a westerly direction.

 'Q. According to your testimony? A. That is right, she was going in a westerly direction.

 'Q. In order to effect a port-to-port passage she would have had to make a rather radical change in her course, would she not? A. She would have to make a change in her course, yes. She would have to straighten out. I assume she would have to straighten out before she could proceed up here north in that channel.' (Emphasissupplied).

 Thus, the testimony of the Cobb's Master and Second Mate demonstrates that the Master indulged in assumption as to the Rogers' course. To have indulged in such assumptions and to have continued at the same rate of speed was, under the prevailing circumstances, lack of prudent seamanship. Whatever doubt existed as to the Rogers' course should have been resolved in favor of safety and not left to chance.

 The testimony of those aboard the Rogers' tow even more strongly indicates the Cobb's fault, as specified in the detailed Findings. When the bridge tender signalled for the Rogers to enter the west draw, she was approximately 100 yards south of the bridge. The Rogers proceeded into the draw on a course parallel to the center abutment, with the starboard tow of the flotilla within 5 to 10 feet of the abutment. The tow was 93 feet in width. The believable evidence establishes that there was not less than 75 feet clearance between the port side of the tow and the west abutment; that there was more than ample room for the Cobb, which was 30 feet in width, to have proceeded and effected a port-to-port passage -- in the words of Captain DeMore of the Rogers, enough room so that one 'could put two more of the Cobb through there'.

 Other evidence, likewise acceptable, was of a similar purport. The testimony on this issue was strongly corroborated by the bridge tender who appears to have been the sole witness without allegiance to any of the vessels involved.

 The Cobb was also negligent for failure to station a lookout up forward. The pilothouse of the Cobb was located 150 feet aft of the bow and the only lookout was stationed there. Considering that the Cobb was approaching a bridge, and further that other vessels might be coming around the center abutment of the bridge, a lookout might well have given earlier warning of the Rogers' presence and thus averted the collision. The Cobb's Master testified that he never stationed a lookout forward on the bow except in thick fog; this, even though, according to his testimony, the abutment obstructed his view to the south and so might conceal northbound vessels. However, it is contended that weather conditions were such that the lookout in the pilothouse could function as effectively as one forward. Repeatedly the Courts have held that it is no answer that others located elsewhere were in as good a position as a lookout stationed forward to hear and see. *fn4" Failure to keep a proper lookout is deemed a statutory fault. *fn5" And the Cobb has failed, under the Pennsylvania Rule, *fn6" to prove that such failure did not or could not have contributed to the collision.

 The question remains whether the fact that the Rogers used the west draw, the only one which the bridge tender opened, instead of the east draw, also casts her in liability requiring a division of damages.

 The claimant urges that the Rogers must be held at fault for violation of the Narrow Channel Rule, which provides:

 'In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel.' ...

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