The opinion of the court was delivered by: BONSAL
FINDINGS OF FACT AND CONCLUSIONS OF LAW (July 5, 1967)
In this admiralty action tried before the Court on May 24, 1967, plaintiffs Triangle Cement Corp. (Triangle) and Hughes Bulk, Inc. (Hughes), seek to recover for damages to the barge N. L. WALLACE (the WALLACE) sustained as the result of a collision between the WALLACE and the towboat CINCINNATI (the CINCINNATI) while the WALLACE was being towed by the towboat TURECAMO BOYS (the TURECAMO) on the East River, Manhattan, New York, on April 12, 1963. The following constitutes the Court's findings of fact and conclusions of law. Rule 52(a), F.R.Civ.P.
The WALLACE was 211.1 feet long, 42.9 feet wide, weighed 1,505 gross tons and had a depth of 15.5 feet, and on April 12, 1963 was owned by Hughes and was under bareboat charter to Triangle. The TURECAMO was owned by defendant Vincent C. Turecamo, Inc., and was operated by defendant Turecamo Coastal & Harbor Towing Corp.; the CINCINNATI was owned by defendant D.T.B. Corp., and was operated by defendant Pennsylvania Railroad Co.
On April 12, 1963 Turecamo Coastal & Harbor Towing Corp. received instructions from Triangle to tow the WALLACE from a pier at Huron Street, Greenpoint, Brooklyn to Ravena, New York, and at approximately 11 P.M. the TURECAMO took the WALLACE in tow, attaching a line from the starboard stern corner of the WALLACE to the stern of the TURECAMO. The TURECAMO towed the WALLACE out of the Brooklyn pier with the stern of the WALLACE pointing towards the Manhattan shore to a point on the East River between 800 and 1,000 feet from the Manhattan shore. The TURECAMO took in its line and navigated around the south or starboard side of the WALLACE to the bow of the barge for the purpose of putting on towing hawsers. The CINCINNATI was proceeding south down the East River at about 8-10 miles per hour and, while the WALLACE was without lines, the CINCINNATI collided at a 90 degree angle with the north or port side of the WALLACE about 20 feet from her stern.
The TURECAMO was under the command of Louis Hermansen, second mate. The mate James Kiernan, two engineers, and the deckhands Thinsson and Strond, were on board. The WALLACE was unmanned when the TURECAMO took her in tow and she had no lights of her own. At Huron Street, before the WALLACE was pulled out of the pier, Hermansen gave Thinsson two 360 degree battery-powered lights and directed him to place them on the WALLACE. Thinsson placed one light on the starboard stern corner of the deckhouse and the other on the port stern corner. The lights were put on some lumber and a life ring was placed on top of the lumber around each light so that the lights were 2 to 3 inches above the top of the deckhouse and the globes of the lights were above the name board on the WALLACE. The lights were 12-14 inches high, the illuminated portion was about 4 inches, and up to the time of the collision, the lights were burning. Hermansen approved Thinsson's positioning of the lights and Thinsson returned to the TURECAMO and Strond went on board the WALLACE where he remained until the collision. On April 12, 1963 between 11 and 11:30 P.M. visibility was good, the weather was clear and the moon was out.
When the crew of the TURECAMO came to take the WALLACE in tow, the WALLACE had no forward mast or T-pole and Thinsson said in his deposition, dated January 6, 1964, that he could not find a place to put a light in the bow of the WALLACE and saw no reason to put one on the forward hatch cover, which he could have done. The after T-pole of the WALLACE was lying on her deck and Hermansen and Thinsson tried to raise it but neither could do so because of a tangle of wires. The WALLACE was last inspected by the United States Coast Guard on March 26, 1962 for amendment of a certificate of inspection to permit unmanned operation and no certificate of inspection was in effect on April 12, 1963.
The TURECAMO was carrying three white staff lights with the top light about 32 feet above her water line, and red and green running lights. Hermansen testified, in his deposition dated December 27, 1963, that as he was pulling the WALLACE out of the pier, he observed two tows on the East River, one going upstream and one going down, and that before taking the line off the stern of the WALLACE he looked for traffic on the river and saw none. Hermansen said that at this time he was on the upper deck aft of the TURECAMO and, since his view forward was obscured by the stack and pilothouse, he could not see 360 degrees unless he walked from side to side.
The CINCINNATI was being navigated by Captain Robarge, a tugboat master, and was proceeding south on the East River at 3/4 speed-about 8 miles per hour-until she passed 40th Street. Walsh, a deckhand, who did not testify, was assigned as a lookout and was with Robarge in the pilothouse prior to and at the time of the collision. When the CINCINNATI passed 40th Street, Robarge increased her speed to full ahead and he said in his deposition of December 13, 1963 that he did not recall seeing any traffic on the river at that point. Robarge said that farther down the river-when the CINCINNATI was moving at between 8 and 10 miles per hour-he noticed three staff lights approximately 300 feet from the CINCINNATI and about 20 degrees off her port bow, indicating to him that there was a tug and tow ahead. The three staff lights were probably those of the TURECAMO which was navigating at or near the bow of the WALLACE. There was no evidence of any other tug being in the vicinity. Robarge did not reduce speed. He said he was looking for a tow when he suddenly observed the WALLACE loom up lying across stream about 150 feet in front of the CINCINNATI. Robarge then reversed his engines but took no helm action. He estimated that the CINCINNATI was moving at about 3 knots when she struck the WALLACE.
Robarge testified that he did not see the TURECAMO until after the collision when she appeared from around the bow of the WALLACE, and that he didn't see any lights on the WALLACE until after the collision when he saw two lights on the stern outer corners of the deckhouse. The lights had been knocked down and were lying flat on the deckhouse, still lit. Robarge said the lights were not visible except from the stern of the WALLACE and that he did not see them until he circled around the barge. The pilothouse where Robarge was standing was 22 to 23 feet above the CINCINNATI's water line and as Robarge circled the WALLACE, he could look down on the barge.
After the collision, Robarge had a conversation with someone on the TURECAMO in which Robarge said he hadn't seen any lights on the WALLACE and the person from the TURECAMO replied that the lights had been knocked down. Robarge asked why the lights had not been higher, and received the reply that there was nothing higher to put them on.
The CINCINNATI was negligent in connection with the collision and her negligence was a contributing cause of the collision. When Robarge saw three staff lights, indicating the presence of a tug and tow, the CINCINNATI should have taken some helm or engine action as a precautionary measure. See Marine Fuel Transfer Corp. v. The Ruth, 231 F.2d 319 (2d Cir. 1956); The Norne, 59 F.2d 145 (5th Cir. 1932). In addition, the crew of the CINCINNATI was negligent in not seeing the WALLACE until it was 150 feet ahead. See The Buenos Aires, 5 F.2d 425 (2d Cir. 1924); United States v. Holland, 151 F. Supp. 772 (D.C.Md.1957). The CINCINNATI relies on cases holding there is no duty to observe or avoid an unlighted or improperly lighted vessel. E.g., Bradshaw v. The Virginia, 176 F.2d 526 (4th Cir.), cert. denied 338 U.S. 892, 70 S. Ct. 244, 94 L. Ed. 548 (1949); Reading Co. v. Pope & Talbot, Inc., 192 F. Supp. 663 (E.D.Pa.), aff'd per curiam, 295 F.2d 40 (3d Cir. 1961). In Bradshaw v. The Virginia, supra, lights indicating the presence of the vessel Greenwell, which was held solely at fault, had not been seen, whereas here, Robarge did see three staff lights 300 feet before helm or engine action was taken. In Reading Co. v. Pope & Talbot, Inc., supra, a ship collided on a dark night with an unlighted and unmarked wreck ...