The opinion of the court was delivered by: ABRUZZO
This action was instituted by the libellant to recover damages sustained when the claimant-respondent's tug DOROTHY McALLISTER collided with the westerly fenders of the Atlantic Beach Bridge over Far Rockaway Bay or Inlet on the northerly side of the island of Long Beach, New York.
On March 22, 1960, the tug DOROTHY McALLISTER was towing the barge MONTAUK which was loaded with high octane gasoline, on a hawser, proceeding eastward in Reynolds Channel of the Far Rockaway Bay or Inlet and was approaching the Atlantic Beach Bridge. The tide was flooding, running eastward. It was snowing or had snowed, and a blustery wind was blowing from the west and northwest. On approaching East Rockaway Inlet the hawser was shortened so that there was only 15 or 20 feet between the stern of the tug and the bow of the barge.
Jackson, the bridge operator, testified that he saw the tug and barge about an hour before they got to the bridge. When they were a distance west of the Coast Guard Station, which is about 900 feet from the bridge on the south side of the channel (Geodetic Chart, Exhibit 1), the tug blew a three-whistle signal. Jackson did not know the distance of the station from the bridge. Upon hearing the signal, Jackson went through his usual procedure of putting on the red lights for the bridge, sounding of a gong to stop vehicular traffic on the bridge, and lowering of four gates which barred this traffic from moving. He then pressed the bridge release lock button but did not get his release lights because the locks did not release. The lights were the only indication as to whether the locks had released. He again pressed the button and the locks released half way but he still did not get his lights for the lock release. He testified that he pushed the lock button four times (Tr. 22-23).
Jackson testified that it takes about four seconds for the locks to release so that he waited that period each time he pushed the lock button (Tr. 32). It takes about 25 to 30 seconds for the gates to come down (Tr. 32). He blew a danger signal when he saw the bridge would not open -- two short blasts and two short blasts again, and then waved a red flag. His signal was answered by a two-blast signal from the tug. He called down to the assistant manager on duty at that time and asked him what he should do -- he had a few cars waiting to go across and he thought, 'Well, maybe it would be quite awhile before they would get near the bridge.' (Tr. 24). He then raised the gates to permit vehicular traffic to go through. He later went through the same procedure of pushing the lock button and the mechanism functioned properly -- the lights came on informing him that the locks were releasing and that the bridge would open. During this time he observed the tug pull to the left and try to turn around but she kept drifting towards the bridge, striking two of the fenders, the northwest fender and then the southwest one, damaging them.
Neither Jackson nor Morse, libellant's Supervisor of Bridge Maintenance, could account for the failure of the bridge's release lock button to operate. Inspection of the bridge revealed no defects and Morse attributed the failure to the possibility that a piece of ice or slush might have gotten on one of the levers of the lock limit switches located under the open decking on the bridge. Morse testified that the last previous time that the mechanism had failed to function properly was two or three years prior to the DOROTHY McALLISTER occurrence and that thereafter the lock system had been completely re-designed.
Captain Holmes testified that he was at the wheel of the tug and Captain Purdy, since retired, was also in the pilot house. Captain Purdy did not testify. When the tug and its tow were at least 1000 yards from the bridge Holmes blew his first signal, a three-whistle signal, but received no signal from the bridge and did not see its gates go down. When he was about 600 yards from the bridge he blew a second three-whistle signal and right after that he saw the gates go down. At that time he was going at dead slow -- as slow as possible -- but the tide was flood underfoot at a rate of at least 3 knots an hour. When he was about 500 feet from the bridge he heard four weak signals from the bridge and then saw someone on the bridge waving a red flag. At 3 knots an hour and 500 feet from the bridge he would reach it in less than 2 minutes. The bridge could be raised with the vehicular traffic gates down in much less than a minute's time. He tried to 'round up' the hawser and turned the tug hard left to come into the tide to try to clear the southwest corner of the abutment, but he did not have enough time and the bow end of the barge hit the northwest corner of the abutment and her stern the southwest fender. He testified that he tried to round up on the hawser because 'we were very close to the bridge and the barge was loaded with a high octane fuel.' He was afraid of a collision -- hitting concrete on steel where a spark would set it all off. He could see that she was going to hit and he maneuvered the tug and barge in order 'not to hit harder than she did.' Holmes testified that the channel was 800 or 900 feet wide and he was about 50 or 75 feet from the Atlantic Beach side of the channel.
Libellant cites 33 C.F.R. 203.180 which applies only to 'Nassau County highway bridges across Reynolds Channel at Long Beach and Atlantic Beach, N.Y.' as prescribed by U.S. Engineers, the pertinent provisions of which are as follows:
'(a) The owner of or agency controlling these bridges shall provide the appliances and the personnel necessary for the safe, prompt, and efficient operation of the draws.
'(b) Except as provided in paragraph (c) of this section, the draws shall be opened promptly when the prescribed signal for the opening of the draw is received from an approaching vessel which cannot pass under the closed draw.
'(d) Signals-(1) Call signals for opening of draw -- (i) Sound Signals. By vessels owned, controlled, or employed by the United States, four distinct blasts of a whistle, horn, or megaphone, or four loud and distinct strokes of a bell, and by all other vessels, three distinct blasts of a whistle, horn, or megaphone, or three loud and distinct strokes of a bell, sounded within reasonable hearing distance of the bridge.
'(2) Acknowledging signals by the bridge operator -- (i) Sound signals. Draw to be opened immediately: Same as call signal. Draw cannot be opened immediately or, if open, must be closed immediately: Two long distinct blasts of a whistle, horn, or megaphone, or two loud and distinct strokes of a bell, to be repeated at regular intervals until acknowledged by the vessel.'
The claimant-respondent relies upon Title 33 U.S.C.A. §§ 494, 499 and 512 which provide:
' § 494. Obstruction of navigation; alterations and removals; lights and signals; draws; tolls
'* * * If the bridge shall be constructed with a draw, then the draw shall be opened promptly by the persons owning or operating such bridge upon reasonable signal for the passage of boats and other water craft. * * *
' § 499. Regulations for drawbridges; penalties for violation; enforcement
'It shall be the duty of all persons owning, operating, and tending the drawbridges built prior to August 18, 1894, or which may thereafter be built across the navigable rivers and other waters of the United States, to open, or cause to be opened, the draws of such bridges under such rules and regulations as in the opinion of the Secretary of the Army the public interests require to govern the opening of drawbridges for the passage of vessels and other water crafts, and such rules and regulations, when so made and published, shall have the force of law. Every such person who shall willfully fail or refuse to open, or cause to be opened, the draw of any such bridge for the passage of a boat or boats, or who shall unreasonably delay the opening of said draw after reasonable signal shall have been given, as provided in such regulations, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine or not more than $ 2,000 nor less than $ 1,000, or by imprisonment (in the case of a natural person) for not exceeding one year, or by both such fine and imprisonment, in the discretion of the court; * * *.
' § 512. Obstruction of navigation
'No bridge shall at any time unreasonably obstruct the free navigation of any navigable waters of the United States. June 21, 1940, c. 409, § 2, 54 Stat. 498.'
The libellant raises the following points:
I. Entrusted with high octane gasoline, Holmes's attitude was ...