The opinion of the court was delivered by: LEVET
This libel of the Lehigh Valley Railroad Company, as owner of the barge known as the Lehigh Valley No. 357, seeks recovery against the tug Blackjack 21, and the tug Peter Moran, and against John J. Reichert, Reichert Towing Line, Inc., and Tug William J. Moran, Inc., and Moran Towing & Transportation Company, as respondents, for damage sustained to the said barge Lehigh Valley No. 357 on September 19, 1960, in Gowanus Creek, Brooklyn, New York.
The proposed findings of fact, conclusions of law and briefs of the parties having been received, the court, after considering the pleadings, evidence, exhibits, briefs and stipulations of the parties now makes and files herein its Findings of Fact and Conclusions of Law, separately stated.
1. Lehigh Valley Railroad Company, the libellant, is a corporation organized and existing under the laws of the State of Pennsylvania, with an office and place of business in the Borough of Manhattan, New York City, within this district; and at all times herein mentioned was the owner of the barge known and called Lehigh Valley No. 357 (hereinafter 'No. 357').
2. The tugs Blackjack 21 and Peter Moran are now and at times hereinafter mentioned were within this district.
3. Respondents John J. Reichert and Reichert Towing Line, Inc. at the times herein mentioned owned, operated and controlled the tug Blackjack 21. The Blackjack 21 was in charge of Joseph Barski, who holds no mariner's license or other certificate issued by any governmental authority.
4. Respondent Moran Towing & Transportation Company at the times herein mentioned owned, operated, manned, navigated and controlled the tug Peter Moran.
5. On the morning of September 19, 1960 at about 6:30, the No. 357 was in tow of the tug Blackjack 21 in Gowanus Creek, Brooklyn, New York, and was in collision with the tug Peter Moran, as a result of which collision No. 357 sustained damage.
6. No employee of libellant was on board the said barge No. 357 at the time or at the scene of said accident and collision; the No. 357 was unmanned.
7. The weather at 6:00 A.M., D.S.T. on September 19, 1960, was overcast, the sky was completely covered with clouds, there was a little fog, visibility was five miles, sunrise was at 6:39, the wind was light easterly.
8. The aforesaid collision and damage were not caused or contributed to by libellant or any agent, servant or employee of the libellant or of the aforesaid barge No. 357.
9. The said barge No. 357 was being towed astern of the said tug Blackjack 21 with stern foremost, connected to the tug by hawsers approximately 10 or 12 feet in length. The No. 357 was loaded with sand and gravel and was bound for Gowanus Creek, having left the Central Railroad pier at 5:45 A.M. and having come across New York Bay into Buttermilk Channel, into Gowanus Creek.
10. The tug Blackjack 21 was rated at 450 horsepower with a top speed of about 5 knots with a tow. Prior to its passing the Erie Basin it was going about 5 knots an hour; after that, it slowed down to about 3 knots an hour when going into Gowanus Channel. When the captain of Blackjack 21 first saw the Moran tug, he was 3,000 or so feet away and it was after the speed of the Blackjack 21 had been reduced as aforesaid by the sounding of one strong bell.
11. The captain of Blackjack 21 saw the tug Peter Moran at the Bethlehem Shipyard at 29th Street, Brooklyn (about 3,000 feet away) when the Peter Moran was docking a ship and was then backing out into the Channal crossways on the Gowanus Canal about 700 feet abreast of the tug Blackjack 21. The Blackjack 21 gave one strong bell and proceeded along the Gowanus Channel, not changing its projected course.
12. When off Columbia Street, Barski, captain of the Blackjack 21, observed the Peter Moran backing away from the side of a vessel going into drydock, backing slowly towards the Bushey Pier without the use of engines and apparently in the projected path of the Blackjack 21 at about 50 feet away. The Blackjack 21 blew two whistle signals to pass the Moran tug on the starboard side, intending that the Moran tug should go ahead, with engines started. The Moran tug, however, neither replied to the signal nor started its engines.
13. There were two deckhands on the Blackjack 21, one on the stern watching the hawser and one on the bow. The radio on the Blackjack 21 was not working that morning. The captain of the Blackjack 21 did not shout or yell.
14. The Blackjack 21 blew the alarm whistle at about 20 feet away and went on, the Moran tug colliding with the Blackjack 21 amidships with its starboard stern and then collided with the port corner of the No. 357, resulting in damage to the No. 357. The Blackjack 21 claims that it was not in a position to stop suddenly without probable damage to the heavy barge No. 357 being towed because of the position of the Moran tug.
15. While the Blackjack 21 approached the point of collision, one James Brennan, deckhand, employed by Reichert, was stationed on the bow of the tug, although not as a lookout. He saw the tug backing stern first off one of the Brooklyn piers in the vicinity of 29th Street towards the Bushey drydock across the Canal a few hundred feet away from the Blackjack 21. The other deckhand, one Maurice McIntyre, now deceased, was on the stern of the tug Blackjack 21 watching the hawsers. The Channel is approximately 300 feet at this point. The Moran tug is about a hundred feet long. Brennan said he saw no lookout on the Peter Moran. After the collision, no one came out on deck of the Moran tug.
16. The tug Peter Moran had placed a vessel in drydock (#2) at Bethlehem Steel Shipyard at Gowanus Creek, 27th Street, Brooklyn. The tug was steered by Gunnar Larsson, mate. The deckhand was Kenneth Johnson. After receiving an order to cast off from the ship being placed in drydock, the Peter Moran let go the line and backed slowly away from the ship and into the southerly part of the Channel with its stern pointed towards the Ira Bushey dock diagonally in the stream. Larsson put the wheel right and came ahead on the tug to clear the pier stern first. Then the Peter Moran stopped its engines and drifted in a southerly direction into the Channel. The Peter Moran was just away from Pier 3 about a hundred feet and at the time of the collision was lying dead in the water.
17. The tug Peter Moran was rated at 1,200 horsepower and had pilot house control. Its bow was at least 100 feet off the dock; it was not in motion at the time of the collision. It would have taken 10 seconds after starting the engines to secure headway. After two blasts came the danger signal, and a couple ...