The opinion of the court was delivered by: BONSAL
Plaintiff, National Iranian Tanker Company (Nederland), N.V., instituted this admiralty action seeking to recover for damages to the tank vessel REZA SHAH THE GREAT (the tanker) allegedly sustained by reason of a collision at Hell Gate in the East River, New York, between the tanker and the carfloat NEW HAVEN 65 (the NH 65), which carfloat, with carfloat NEW HAVEN 68 (the NH 68), was in tow of the tug DALZELL 2 (the tug). The tug and tow, the NH 65 on the tug's port side and the NH 68 on her starboard side, are hereinafter referred to as the flotilla. This opinion is written following a fourday trial and constitutes the Court's findings of fact and conclusions of law (Rule 52(a), Federal Rules of Civil Procedure).
The collision occurred at approximately 3:35 p.m. on October 27, 1964 when the stern port corner of the NH 65 came into contact with the port side of the tanker approximately 80 feet from the tanker's bow. At the time of the collision, the tanker's bridge (approximately 220 feet from her bow) was passing under the Triborough Bridge. The weather was clear; there was little or no wind; and the tide was first of the ebb, running from east to west at less than one knot. Following the collision, the tanker went aground at Steep Rock, on the Astoria shore, approximately halfway between the Triborough Bridge and the Hell Gate Bridge.
Plaintiff contends that the collision and the grounding of the tanker were caused solely by the fault of the tug in failing to keep the flotilla under control and on its own side of the channel in accordance with the Narrow Channel Rule (33 U.S.C. § 210) and in failing to give the required whistle signals. On the other hand, the defendants contend that the collision was caused solely by the fault of the tanker in navigating on the flotilla's side of the channel in violation of the Narrow Channel Rule. Therefore, the principal issues are: where the collision occurred, whether on the tanker's or the flotilla's side of the channel; and whether prior to the collision the tanker and the flotilla were navigating on their respective sides of the channel. The Court finds that the collision occurred on the tanker's side of the channel and that the collision and grounding of the tanker were caused solely by the fault of the tug.
The tanker, owned by plaintiff, a Netherlands corporation, and approximately 665 feet long, with a beam of approximately 83 feet and drawing 34 feet 6 inches fore and aft, was proceeding from Stapleton, Staten Island to 138th Street, Bronx. She was under the command of Captain Veldhuizen, who was on the bridge with the Pilot, Captain Mason; Third Officer Janssens; the quartermaster at the wheel; and a lookout who was on the starboard wing of the bridge. The Chief Officer, Van Holten, who was off duty, was on the port wing of the bridge, and a crewman was stationed approximately 40 feet from the tanker's bow as a lookout and was in charge of the anchors.
The tanker proceeded up the East River, navigating along the west side of Welfare (Blackwells) Island. She approached Hell Gate at half speed
and blew a bend signal (33 U.S.C. § 203, Rule V) when she was off Horns Hook north of Welfare Island. As she approached Hallets Point, right rudder was ordered, her engines were ordered to full speed, and the tanker turned to starboard around Hallets Point, navigating to her starboard of the middle of the channel.
When she came abeam of Hallets Point Light (at 1530 according to her deck bellbook and engine bellbook), left rudder and half speed were ordered. Just after these orders were given and when the tanker had just rounded Hallets Point, the Captain, the Pilot and others on her bridge observed the flotilla for the first time at a point just below Hell Gate Bridge between that Bridge and the Triborough Bridge. They did not hear a bend signal or any other whistle signal from the flotilla, and the testimony of disinterested witnesses establishes that no whistle signals were blown by the flotilla.
When the flotilla was first observed by the tanker, the tanker was in the middle or slightly to her starboard of the middle of the channel
and the flotilla was navigating on its starboard side of the channel at least 2500 feet from the tanker. The tanker blew a port-to-port passing signal (33 U.S.C. § 203, Rule I), which was not answered by the flotilla, right rudder was ordered, and she proceeded on a course which would bring her towards the middle of the channel under the Triborough Bridge. The tanker continued at half speed ahead and was moving through the water at approximately 4 to 5 knots per hour. As the tanker was so proceeding, those on her bridge observed the flotilla begin to turn on its own axis in crab fashion with the port stern of the NH 65 swinging to her port out into the channel and the starboard bow of the NH 68 swinging to her starboard. To those on the tanker's bridge, the flotilla appeared to be moving into the middle of the channel as it drifted down with the tide. As the flotilla approached the Triborough Bridge, the movement towards mid-channel continued and became more rapid and, for the first time, it appeared to the Captain and the Pilot that there was a danger of collision. The tanker thereupon blew a danger signal of between 5 and 7 short, rapid whistle blasts (33 U.S.C. § 203, Rule III) and at the same time (1533 according to the tanker's deck bellbook and engine bellbook) right rudder and full speed ahead were ordered. At this time, the tanker and the flotilla were less than 1500 feet apart. According to the testimony of the Captain, the collision would not have been avoided if the tanker's engines had been ordered full speed astern since she would have proceeded 3,000 to 4,000 feet before coming to a stop.
The effect of the orders for right rudder and full speed ahead was to swing the tanker's bow to starboard and her stern to port, putting her on a course headed for Steep Rock on the Astoria shore. When the Pilot observed that the stem of the tanker would clear the flotilla, he ordered hard left rudder. This stopped her swing to starboard and she began to steady up when the collision occurred, at which time the bow of the tanker was on her starboard side of the channel, her bridge was slightly to the starboard of mid-channel, and her stern was mid-channel or slightly to the port of mid-channel.
As a result of the collision, the weight of the flotilla was against the port side of the tanker, so that the tanker did not swing to port in response to the hard left rudder order and she continued towards Steep Rock.
At 1536 or 1537, according to the tanker's deck bellbook, the tanker's engines were ordered full speed astern,
followed by double full speed astern, and the tanker's port anchor was dropped, two shackles, followed by her starboard anchor, one shackle. The tanker went aground at Steep Rock, and a couple of minutes later she backed off. The tug PATRICIA MORAN, navigating without a tow down the East River some 700 feet behind the flotilla, came to the tanker's assistance, tying up to the tanker's starboard side.
Following the grounding, the tanker proceeded to 138th Street, Bronx, where Lt. Russell A. Cahill of the Coast Guard, who was assigned to investigate the cause of the collision, came aboard the tanker. Lt. Cahill testified that he interviewed Captain Veldhuizen, the Pilot, Captain Mason, and Chief Officer Van Holten, and that, based on the information given to him, he filled out a report on Coast Guard Form 2692 which, upon completion, was signed by Captain Veldhuizen, who testified that he did not read the report before signing it. Item 18 of the report gives the location of the collision as 250 feet off Negro Point Light, which, according to the charts in evidence, would place the tanker on her port side of the channel and the flotilla on its starboard side of the channel. Both Captain Veldhuizen and Captain Mason denied giving this information to Lt. Cahill. Captain Veldhuizen testified that the tanker carried the British Admiralty chart and that, at the time, he did not know where Negro Point was. Captain Mason drew a sketch at the time of the interview with Lt. Cahill to show the positions of the tanker and the flotilla prior to and at the time of the collision, indicating that the collision occurred on the tanker's side of the channel. The only other person present at the interview when the report was prepared was the Chief Officer, Van Holten, whose deposition was read at the trial but who did not testify. There is no evidence to indicate that he had greater knowledge concerning Negro Point than Captain Veldhuizen and, for the reason stated by Captain Veldhuizen, it is unlikely that Van Holten knew where Negro Point was. The testimony of both Captain Ericksen of the tug PATRICIA MORAN, and DeBold, a sailing enthusiast who observed the collision from the Astoria shore approximately 750 feet above the Hell Gate Bridge, corroborates the evidence that the collision took place on the tanker's side of the channel and negates the statement in the Coast Guard report that it occurred 250 feet off Negro Point. Accordingly, on all of the evidence, the Court concludes that the collision occurred on the tanker's side of the channel.
The tug, 102 feet long with a beam of 26 feet, was operated and controlled by the defendants as trustees of the New York, New Haven & Hartford Railroad Company. The flotilla consisted of the tug and carfloats NH 65 and NH 68, each 360 feet long with a beam of 40 feet, made up together in the shape of a V. The NH 65 was light, carrying no railroad cars, and the NH 68 was partially loaded, carrying 10 to 15 railroad cars. The tug was between the carfloats with the NH 65 on the tug's port side and the NH 68 on her starboard side. The bow of the tug was approximately 240 feet astern of the bows of the carfloats and the sterns of the carfloats extended a few feet beyond the stern of the tug. Each carfloat was secured to the tug by two lines, one from the bow of the tug and the other from the stern of the tug, and the bows of the carfloats were secured together by cross lines. The flotilla was 360 feet long, approximately 80 feet wide at the ...