The opinion of the court was delivered by: CROAKE
Early in the morning of March 5, 1965 the SS CHEMICAL TRANSPORTER, proceeding south in Newark Bay, collided with the scow ZELLER No. 54, proceeding north in tow behind the tug ANN McALLISTER. The collision gave rise to four actions which were tried on the issue of liability before this judge sitting without a jury. The parties to the first three actions agreed in the pre-trial orders and again in open court to have damages assessed at their expense by a special commissioner. The amount of damages was stipulated in the fourth action. Having weighed the testimony, the court finds that the damages resulting from the collision should be borne equally by the CHEMICAL TRANSPORTER and the ANN McALLISTER.
The sky was clear over Newark Bay at 0425 in the morning of March 5; a light wind was blowing from the northeast. The tide was still ebbing a little or at low slack. The SS CHEMICAL TRANSPORTER, a 524 x 68 foot tanker, was proceeding south in the nearly straight channel, roughly 525 feet wide, that runs through Newark Bay. Moving northward on the other side of the Central Railroad of New Jersey Bridge was the 75 x 23 foot tug ANN McALLISTER with two 120 x 38 foot scows, the ZELLER No. 54 and the MANYA STARR No. 55, in tow on a 100 foot hawser. Both scows were loaded with iron scrap. All the vessels were displaying the proper lights.
The Central Railroad of New Jersey Bridge is a four-track bridge with two draws some 100 feet or more apart. The west draw has a horizontal clearance of 216 feet and the east has a clearance of 134 feet. When the draws are down, the vertical clearance is 35 feet above mean high water. The roadbed is supported by transverse concrete abutments. The center pinning of the bridge consists of two towers roughly 150 feet high and the bridge control house located above the tracks, and is supported by three concrete abutments.
The channel through Newark Bay does not run exactly north to south, but more north-northeast to south-southwest. The Central Railroad bridge crosses the channel in an east-west direction. The bridge and the channel thus intersect to form an angle of about 65 degrees. Because of this angle, it is not possible to look through the west draw of the bridge and see much of the channel on the other side; it is possible to look through the east draw. From 300 to 400 feet and further south of the bridge one can look up the channel through the east draw at least to beacon "9," located about 1200 yards above the bridge on the west side of the channel.
At roughly 0415 the pilot of the CHEMICAL TRANSPORTER had his office call the bridge captain to find out when the ship could pass through. The pilot learned that a train was to cross the bridge at 0426; he may have been told, or would have known, that he had to be through the bridge by 0424 in order for it to be closed in time.
When the CHEMICAL TRANSPORTER reached beacon "9" at 0419, the bridge was closed, so it stopped its engines. While stopped, the pilot, the captain, and the mate, all on the bridge, spotted lights through the east draw. Captain Louis B. Evans, the pilot, and Captain John H. Moller, the master, testified that they thought there may have been white staff lights, indicating a tow, see 33 U.S.C. § 173(a), but they were not positive. Tr. 34, 89. They thought the vessel or vessels were headed for the east draw. At 0419 the ANN McALLISTER, which was proceeding at 2 to 2.5 miles per hour or about 200 feet per minute, must have been about 400 yards south of the bridge. Its position and heading could easily have given the illusion that it was headed for the east draw.
In light of subsequent events, it appears that the testimony of Captain Joseph Needham of the ANN McALLISTER as to his course was correct. He was proceeding in the middle of the channel headed toward the center abutment of the bridge and expecting the wind and tide to take him through the west draw. Tr. 110, 116-117. Ships and tugs prefer to use the west draw because it is wider and use it when headed north unless a southbound vessel is about to pass through it. Using the west draw northbound is not in itself a violation of the narrow channel rule, 33 U.S.C. § 210, nor negligence as a matter of law. United States v. The J. A. Cobb, 283 F.2d 754 (2d Cir.1960). Although the tug and tow could have passed through the east draw without its being opened, the pilot and master should have recognized the possibility that the ANN McALLISTER was headed for the west draw. Their discussing its direction indicates that they did recognize it.
The draw began to open at 0420. The bridge captain, Captain Van Jura, and the pilot of the CHEMICAL TRANSPORTER, Captain Evans, testified that its opening was preceded by an exchange of signals between the ship and bridge. Tr. 33-34, 132. Captain Moller of the CHEMICAL TRANSPORTER testified that the exchange did not take place, tr. 87, and Captain Needham on the ANN McALLISTER did not hear it. Tr. 107. Comparing the demeanor and testimony of Captains Evans and Van Jura against the testimony of Captain Moller, this court finds that the three-blast whistle exchange did not take place.
At 0421 the CHEMICAL TRANSPORTER began moving half ahead (about eight or nine knots) in the starboard side of the channel and the lights of the ANN McALLISTER were obscured by the bridge. According to the testimony of Captains Evans and Moller, she sounded a single blast of her whistle to indicate to the vessel whose lights she had seen that she intended a port-to-port passing. See 33 U.S.C. § 203, Rule I; transcript 36-37, 96. Captain Moller entered the signal in the deck log. Captain Needham did not hear the signal; the bridge captain does not recall it. Tr. 107, 135. We do not consider Captain Moller's failure to mention the signal in Coast Guard and company reports of probative significance since he failed to give other information that was sought. We are inclined to accept the testimony of the captain and pilot of the CHEMICAL TRANSPORTER who, unlike the bridge captain, would be expected to notice and recall the signal. Since the CHEMICAL TRANSPORTER could not see the ANN McALLISTER, sounding the signal shows that it was not certain that the tug was headed for the east draw.
The CHEMICAL TRANSPORTER'S signal at 0421 was not answered and it was repeated a minute later, again with no response. The evidence on whether this second blast was sounded is the same as the evidence regarding the first blast. Tr. 37, 96. The CHEMICAL TRANSPORTER reduced her speed from half to slow ahead (or about three or four knots not including headway) in order to have steerage going through the bridge. Tr. 37.
Captain Needham testified that he had neither seen the CHEMICAL TRANSPORTER nor heard its signals until he was about to enter the west draw. Tr. 107, 120. Then he saw the CHEMICAL TRANSPORTER coming around the abutment on a collision course. He took what was apparently the only evasive action available to him. He sounded two whistles, indicating a starboard to starboard passing, 33 U.S.C. § 203, Rule I, and cut across the bow of the CHEMICAL TRANSPORTER. Tr. 71, 103. The ANN McALLISTER passed between the west abutment of the west draw and the CHEMICAL TRANSPORTER. Tr. 72. Captain Needham's evasive action and the safe passage of the tug itself through the draw indicate that the CHEMICAL TRANSPORTER entered the east (its port) side of the west draw.
There is contradictory testimony as to when the CHEMICAL TRANSPORTER resighted the ANN McALLISTER. Captain Moller testified in his deposition that the tug was seen at 0422 before the second passing signal was given. Tr. 96. Captain Evans, however, testified that the sighting took place just before he sounded the alarm signal and reversed the CHEMICAL TRANSPORTER'S engines. Tr. 38. Since Captain Needham's testimony indicates no lag between his sighting the CHEMICAL TRANSPORTER and that ship's sounding of the danger ...