The opinion of the court was delivered by: LEVET
OPINION, FINDINGS OF FACT and CONCLUSIONS OF LAW
Plaintiffs Moran Scow Corporation ("Moran") and Tug M. Moran, Inc. ("Tug Moran") institute this action against the above-named defendant-claimant S.S. Boston ("Boston") and Mystic Steamship Corporation ("Mystic"), owner of the Boston, for alleged damages arising from a collision between the Boston and the Dump Scow Moran 106 occurring on December 27, 1967 near the Verrazano-Narrows Bridge.
To this complaint the Boston and Mystic interposed an answer and a counterclaim against said plaintiffs and the other impleaded parties-defendants hereinbefore set forth in the title.
The general background of the collision involved in this case is as follows:
In the late afternoon of December 27, 1967, the tug Diana L. Moran ("Diana") departed from the loading shed at 37 Street, East River, New York City with scow Moran 106 and scow Moran 112 in tow alongside. Each scow was loaded with debris to be dumped at sea off the coast of New Jersey.
Tug Diana had been instructed to proceed to a position off Pier 25, Staten Island, where she was to be relieved by tug Teresa Moran ("Teresa"), which would take the two tugs in tow and continue the voyage to sea.
The tug Diana with the two scows in tow arrived off Pier 25, Staten Island and met the tug Teresa; at that point the Moran 106 was lined up ahead of the Moran 112, with the tug Diana's port side made fast to the after starboard side of the Moran 112.
The tug Teresa moved forward along the starboard side of the Moran 106 so that her stern was up against the bow of that scow; the tug Teresa fastened a bridle to the bow of the Moran 106 and the main towing hawser of the tug Teresa was then secured to the bridle.
When the tug Teresa commenced to let out her hawser, her master, by radio, released the tug Diana. Soon thereafter, the Boston sounded a two-blast whistle signal; nevertheless, the Boston, after the tug Diana and the tug Teresa responded with a danger signal, turned to the left and the bow of the Boston struck the after port side of the Moran 106 at about a right angle, resulting in damage to both scows and to the Boston.
Plaintiffs and the other Moran corporations (appearing as Defendants to Counterclaim) contend:
". . . that the collision was due solely to the fault and negligence of the BOSTON and those in charge of her in that she failed to keep to her own starboard side of the channel, failed to maintain an alert and proper visual lookout, failed to maintain a proper and alert radar watch, negligently and improperly turned to port, she was proceeding at an immoderate rate of speed and she failed to slow or stop or take any appropriate avoiding maneuvers when confronted with risk of collision." (Pretrial Order, at 3-4.)
After denying plaintiffs' aforesaid claims, the defendants, the Boston and Mystic, contend that:
1. The tug Teresa showed no towing lights;
2. The tug Diana, although substantially dead in the water, showed lights indicating that she had a tow alongside and had failed to turn on the required navigation lights upon casting off from the tow;
3. Neither tow was displaying proper navigation lights and neither could be seen by Boston's men. (Pretrial Order, at 4; see also allegations of fault by scows 106 and 112, tugs Diana and Teresa, answer and counterclaim, at 4-6.)
An admiralty case, it was tried to the court without a jury.
After hearing the testimony of the parties, examining the exhibits, the pleadings and the proposed Findings of Fact and Conclusions of Law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
1. Plaintiff Moran Scow Corporation is a corporation organized and existing under the laws of the state of Maine and at all pertinent times was the owner of Dump Scow Moran 112. (Pretrial Order ("PTO"); 256.)
2. Plaintiff Tug M. Moran, Inc. is a corporation organized and existing under the laws of the state of New York and at all pertinent times was the owner of Dump Scow Moran 106. (PTO; 259.)
3. Moran Towing Corporation is a corporation organized and existing under the laws of the state of New York and at all pertinent times was the manager and operator of Dump Scows Moran 106 and Moran 112. (PTO; 260.)
4. Helen B. Moran, Inc. is a corporation organized and existing under the laws of the state of Maine and at all pertinent times was the owner of the tug Diana. (PTO; 260.)
5. Warwick Curtis Bay Co. is a corporation organized and existing under the laws of the state of Delaware and at all pertinent times was the owner of the tug Teresa. (PTO; 260.)
6. Moran Towing & Transportation Co., Inc. is a corporation organized and existing under the laws of the state of New York and at all pertinent times was the operator of the tugs Diana and Teresa (PTO; 259-260.)
7. Defendant Mystic Steamship Corporation is a corporation organized and existing under the laws of the state of Delaware and at all pertinent times was the owner and operator of the S.S. Boston. (PTO; 259.)
8. Dump Scow Moran 106 is a non-propelled barge of 940 gross tons, 168 feet in overall length and 43 feet in breadth. (PTO; 261.)
9. Dump Scow Moran 112 is a non-propelled barge of 964 gross tons, 168 feet in overall length and 43 feet in breadth. (PTO; 261.)
10. Tug Teresa is a diesel tug of 299 gross tons, 102 feet in overall length and 28 feet in breadth. (PTO; 261.)
11. Tub Diana is a diesel tug of 239 gross tons, 100 feet in overall length and 27 feet in breadth. (PTO; 261.)
12. The S.S. Boston is a single screw cargo vessel of 6,753 gross tons, 443 feet in overall length and 57 feet in breadth, of American registry. (PTO; 260-261.)
13. Late in the afternoon on December 27, 1967, the tug Diana departed the loading shed at 37th Street, East River, with scows 106 and 112 in tow alongside. Each scow was fully loaded with debris to be dumped at sea off the coast of New Jersey. (Pl. Ex. 9; Pl. Ex. 20, at 325; 60, 123.)
14. The tug Diana had been instructed by Moran's dispatching office to proceed to a position off Pier 25, Staten Island, where she was to be relieved by the tug Teresa, which would take the two dump scows in tow and continue the voyage to sea. (62-63, 7.)
15. About 8:00 P.M. the Diana flotilla arrived at the designated rendezvous point off Pier 25, Staten Island, where she was met by tug Teresa which had come out of Kill Van Kull and down through the Stapleton Anchorage area. (7, 33-34, 198-199.)
16. At this time the weather was clear with good visibility and the night was dark with no moon; the wind was negligible; the surface of the water was calm; and the current was ebbing at approximately two knots. (PTO; 260; Deft. Ex. J, at 112; Deft. Ex. C, at 16; Pl. Ex. 42; 7, 19, 63, 388-389.)
17. On the same night of December 27, 1967, the Boston was inbound from Norfolk, Virginia, carrying a full load of 10,288 tons of coal. At 7:54 P.M. she passed Buoy 14 making full speed of about 10 1/2 knots and altered course to starboard to 344 degrees true heading up the last leg of Ambrose Channel toward the Verrazano Bridge. (394, 399-401; Pl. Ex. 42; Deft. Exs. R and S.)
18. Very shortly after passing Buoy 14, those on the Boston observed ahead, near the Verrazano Bridge, a cluster of lights, including the two vertical white towing lights of the tug Diana, which at that time was recognized to be a tug with a tow either alongside or ahead. The tug Teresa was also seen and later recognized to be a tugboat. (395-396, 445, 463, 508-509; Pl. Ex 40; Deft. Ex. J, p. 96.)
19. The Boston thereafter proceeded on various courses tending to keep to her own starboard or easterly side of the channel as she continued on at full speed. (439, 441.)
20. At 8:00 P.M. when the tug Teresa joined the tug Diana and the two dump scows, the Diana's port side was made fast to the after starboard side of the scow 112, and scow 106 was directly ahead of the 112, her stern being up against the bow of the 112 and made fast with lines at each corner. (Pl. Exs. 2 and 16; 8, 10, 61, 199, 201.)
21. At 8:00 P.M. when the tug Teresa joined the tug Diana flotilla, the Diana and the two scows were headed toward the westerly of Staten Island end of the Verrazano Bridge about a mile away and were practically dead in the water, making about three or four knots over the ground, including the two-knot current. (62-63, 69-70, 33, 54, 208.)
Members of the crew on the Boston concede and I find that the Diana and her two scows appeared to be just about dead in the water, at least until three minutes prior to the collision. (Deft. Ex. J, at 97; Deft. Ex. C, at 16; 495.)
22. When the tug Teresa joined the tug Diana and the two scows at 8:00 P.M., she proceeded to take a position forward of tug Diana alongside the starboard quarter of scow 106 and her deck hands passed over to the scowmen an intermediate hawser to be let out when they reached the ocean. Two powerful floodlights were turned on aboard the tug Teresa illuminating the tug's stern area so that the men could carry out this job. (10-12, 23, 39; Pl. Ex. 2; 201-202, 137; Pl. Ex. 29, at 484.)
23. After the intermediate hawser had been placed aboard the scows ready for use, the tug Teresa moved forward along the starboard side of the scow 106 so that her stern was up against the bow of that scow. In the process of moving forward, she turned on three vertical white lights on her main mast, indicating a tow astern. At that time, she was also displaying her required red and green side lights, together with the floodlights. (12-13, 65, 137-138, 203-205; Pl. Ex. 29; Pl. Ex. 17; Pl. Ex. 31, at 538; Pl. Ex. 34.)
24. I find that the tug Teresa turned on her three white vertical towing lights indicating a tow astern prior to the time of the collision. The evidence supports this finding.
Besides all the Moran witnesses testifying to this fact, an independent witness, Captain Sullivan, the pilot of the outbound vessel, Valiente, substantiates this finding. Captain Sullivan testified unequivocally as follows:
"My recollection was that the forward towing boat had three white lights in a vertical line, plus the navigational lights. The green light is what I saw. She had deck lights on. The aft boat to the best of my recollection had all her running lights on. And her deck lights on." (Pl. Ex. 31, at 538.)
Captain Sullivan drew a sketch of the tugs as he had observed them and indicated that the Teresa showed three vertical staff lights. (Pl. Ex. 34.)
Defendant attempts to negate the reliability of Captain Sullivan's observations by suggesting that Captain Sullivan could not have seen what he claims. Captain Vercelli of the Teresa testified that the Teresa's lights were turned on approximately while under the bridge. (38.) Defendant contends that Captain Sullivan, who passed the flotilla about 400 yards north of the bridge, could not possibly have seen the lights since he passed the Teresa 400 yards before the lights were turned on. Defendant implies that Captain Sullivan must have become confused with the two vertical lights of the Diana, which admittedly were on, and thus mistook the three lights for the two lights of the Diana.
Although defendant's theory appears plausible, the court must accept the testimony and facts as they are set forth. The slight discrepancy as to when and where the lights of the tug Teresa were turned on by Captain Vercelli and where specifically Captain Sullivan observed them is not enough to discount the positive evidence of Captain Sullivan that he in fact saw three white vertical lights.
Furthermore, Roland Sinclair, a seaman and bow lookout for the Boston, admitted observing a short time before the collision a tug with three white lights about a mile ahead and reported this information back to the bridge of the Boston. (Deft. Ex. L, at 279-280, 285.)
Hence, I conclude that the Teresa had on its three white vertical towing lights prior to the time of the collision.
25. While the tug Teresa was placing her intermediate hawser aboard the scows, the tug Diana maintained a heading toward the westerly part of the Verrazano Bridge, well over on the Staten Island side of The Narrows. The Master of the Diana, Captain Sheridan, standing at the wheel in the pilot house of the tug, observed the lights of another vessel ahead about three to four miles away. This proved to be the unbound steamship Boston. At first, Captain Sheridan could see both the red and the green side lights of the Boston; but later, as the Diana and the scows moved closer to the Staten Island shore, only the red side light was visible, along with her white masthead light and range light. The position of these lights indicated to Captain Sheridan that the Boston would eventually pass well clear to port. (63-67, 109.)
26. When the tug Teresa shifted forward on the scow Moran 106, her deck hands passed over to the scowmen a bridle, which was made fast at the bow of the 106, and the main towing hawser of the Teresa was then secured to the bridle. The Teresa thereafter began to let out her hawser to a length of about 350 feet. The tugs and scows were then just about under the westerly part of the Verrazano Bridge on the same heading as before and still drifting with the current, making about three or four knots over the ground. The lights then showing on scow 106 were her red and green side lights atop her cabin aft and a single white light on the yardarm also atop her cabin. The scow 112 was still showing her red and green side lights and the two white horizontal lights hanging from her yardarm, as before. Tugs Diana and Teresa also showed the same lights as before. (13-14, 20, 30, 39, 66-71, 205-209; Pl. Ex. 1; Pl. Ex. 17.)
27. When the tug Teresa commenced to let out her hawser, her Master, Captain Vercelli, radioed the tug Diana, releasing her. Thereupon, the Diana cast off her lines and commenced to back slowly away from scow Moran 112. At the time she was released, the Diana was well over on the westerly side of The Narrows, about underneath the Verrazano Bridge. (66, 87; Pl. Ex. 6.)
28. However, I find that the Diana failed to turn off her two vertical white towing lights upon casting off from the scow 112 and therefore continued to indicate a tow alongside or ahead.
Captain Sheridan admits that after casting off from the scow Moran 112 he failed to turn off the Diana's towing lights, leaving them on until after the collision. He testified that just after the Diana had backed away and let the lines go he looked and saw the Boston about 2000 feet away and heard it issuing a two-blast whistle and then saw it commencing a left turn toward the scow. He immediately went to sound the danger signal and turn on the searchlight to illuminate the tow in the hope that the Boston would see the scows and alter her course. After the accident occurred, Captain Sheridan testified that the Diana was so busy in assisting the scows that he still did not turn off the Diana's towing lights. (67-69, 71-72, 105-106, 112.)
29. By leaving her towing lights on when she cast off the tug, I find that the tug Diana breached Article 1 and Article 2 of the Inland Rules, 33 U.S.C. §§ 171 and 172 respectively, which provide:
" Time for lights; prescribed lights exclusive (Art. 1)
"The rules concerning lights shall be complied with in all weathers from sunset to sunrise, and during such time no other lights which may be mistaken for the prescribed lights shall be exhibited." (Emphasis supplied.)
" Lights of steam vessel under way (Art. 2)
"A steam vessel when under way shall carry --
"(a) On or in front of the foremast, or, if a vessel without a foremast, then in the fore part of the vessel, a bright white light so constructed as to show an unbroken light over an arc of the horizon of twenty points of the compass, so fixed as to throw the light ten points on each side of the vessel, namely, from right ahead to two points abaft the beam on either side, and of such a character as to be visible at a distance of at least five miles.
"(b) On the starboard side a green light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the starboard side, and of such a character as to be visible at a distance of at least two miles.
"(c) On the port side a red light so constructed as to show an unbroken light over an arc of the horizon of ten points of the compass, so fixed as to throw the light from right ahead to two points abaft the beam on the port side, and of such a character as to be visible at a distance of at least two miles.
"(d) The said green and red side lights shall be fitted with inboard screens projecting at least three feet forward from the light, so as to prevent these lights from being seen across the bow.
"(e) A seagoing steam vessel when under way may carry an additional white light similar in construction to the light mentioned in subdivision (a) of this section.
"These two lights shall be so placed in line with the keel that one shall be at least fifteen feet higher than the other, and in such a position with reference to each other that the lower light shall be forward of the upper one. The vertical distance between these lights shall be less than the horizontal distance.
"(f) All steam vessels (except seagoing vessels and ferryboats) shall carry, in addition to green and red lights required by subdivisions (b) and (c) of this section, and screens as required by subdivision (d) of this section, a central range of two white lights, the afterlight being carried at an elevation at least fifteen feet above the light at the head of the vessel. The headlight shall be so constructed as to show an unbroken light through twenty points of the compass, namely, from right ahead to two points abaft the beam on either side of the vessel, and the afterlight so as to show all around the horizon."
In violation of those rules, the Diana continued to display the towing lights specified by Article 3, 33 U.S.C. § 173(a), which requires a vessel towing others alongside to carry two white lights in vertical line.
30. At 8:15 P.M. an order was given to the engine room aboard the Boston to reduce speed to half ahead, which would eventually slow the ship to 6 1/2 knots. At that time the Diana, the Teresa and the two scows were on the port bow of the Boston, practically motionless in the water. (15-17, 67, 78-79, 367-368, 379-382, 495; Deft. Ex. S; Pl. Exs. 3, 4.)
31. At approximately 8:17 P.M., just after the tug Diana cast off from alongside scow 112, a two-blast whistle signal was heard from the Boston, which was then approximately one-half mile away broad on the port bow of both the Teresa and the Diana and showing her red side light and range lights well open to the left, as before. At this time, the Teresa had stopped letting out hawser, the length then being approximately 350 feet, and the Diana was approximately 200 feet astern of scow 112. (13-24, 30-33, 67-74, 155, 209-211, 223; Pl. Ex. 29, at 467.)
32. Upon hearing this two-blast whistle signal, both the Diana and the Teresa immediately responded with a danger signal of repeated short blasts on the whistle, and both tugs also promptly turned on their searchlights and played the beams up and down along the row of scows. (13-24, 30-33, 67-74, 209-211, 215-219; Pl. Ex. 29, at 467.)
Although the Boston denies hearing the alleged danger signals from the tugs or any whistle signals at all, this court finds that it is reasonable to believe from the testimony of the witnesses that the danger signals were in fact sounded by the Diana and the Teresa. (16, 30, 32, 72, 215-216.)
33. Nevertheless, the Boston turned sharply and rapidly to her left, heading toward the tugs and scows. The tug Teresa attempted to pull the scows out of the path of the oncoming Boston but, because they were then almost dead in the water, this effort was unsuccessful, and at approximately 8:20 P.M. the bow of the Boston struck the after port side of the scow 106 at almost right angles, resulting in severe damage to both scows and to the Boston as well. (13-24, 141-144, 155; Pl. Exs. 3, 4, 6, 12, 13-15, 18, 19 and 22; Pl. Ex. 20, at 313-314; Pl. Ex. 29, at 469, 480; Pl. Ex. 37; Deft. Ex. C, at 20; Deft. Ex. D; Deft. Ex. K, at 430; Deft. Ex. K-2.)
Defendant disputes the angle at which the Boston struck the scow 106, evidently attempting to minimize the extent of the Boston's left turn. The testimony and other evidence clearly support the finding that the Boston hit the scow 106 almost perpendicularly, at about a 90 degree angle. Two witnesses aboard the Boston, James Bermingham, the radio officer, and Dennis Jewett, a first class cadet at the United States Merchant Marine Academy, drew diagrams which indicated that the collision occurred at approximately a 90 degree angle. (See Deft. Ex. K, at 430; Deft. Ex. K-2; Deft. Ex. C, at 20; Deft. Ex. D.) The photographs of the scow 106 after the collision confirm that the angle of the impact between the scow and the Boston was about 90 decrees. (Pl. Exs. 13-15.)
34. It was at about 8:17 P.M. or three minutes before collision, when the Boston was about a half-mile from the tugs and scows, that her engines were ordered slow ahead and, simultaneously, she sounded two short blasts on her whistle. Without awaiting any response from the tugs, her rudder was put at 20 degrees to port, followed within thirty seconds by an order for full left rudder. Within a minute, or before 8:18 P.M., the Diana's searchlight was seen to be directed on the two scows. Thereafter, the Boston sounded a danger signal of several short blasts on her whistle and at 8:19 P.M. her engines were ordered full astern. At 8:20 P.M. the bow of the Boston struck the port quarter of scow Moran 106. At the moment of collision, Boston's rudder was in the full left position and she had been turning to port continuously from 8:17 P.M. to 8:20 P.M. (403-404, 408, 415, 419, 471-472, 476-479.)
The Boston's three minute left turn is clearly established by the evidence. Captain Albertson of the Boston testified that the two-blast whistle signal, left turn and slow ahead orders were all practically simultaneous. (477-478.) He testified that the ship was turning left just up to the moment of impact. (479.) He also attempted to minimize the extent of the left turn by saying that the initial 20 degree left rudder order did not commence to take effect for 20 or 30 seconds. (528.) However, this does not conform with his coast guard testimony (479-480, 534) or with the testimony of his mate, Lindsey, who told the coast guard that the Boston began turning left within ten seconds of the first rudder order. (Deft. Ex. J, at 114.)
35. The collision occurred about 1,500 feet south of the Verrazano Bridge on the extreme westerly edge of the channel near the Staten Island shore. (26, 73; Pl. Ex. 5; Pl. Ex. 6.)
When the Master of the vessel Valiente, Captain Sullivan, passed the tugs and barges just north of the Verrazano Bridge, the Moran's vessels were headed toward Craven Shoals Buoy 19A and it is reasonable to believe, with no evidence to the contrary, that they continued in this direction as confirmed by Captain Vercelli of the tug Teresa. (Pl. Ex. 5.) Captain Vercelli, in fact, marked the place of collision right on this course line. Moreover, this position is in close agreement with the position recorded on Captain Albertson's Report of Vessel Casualty (Pl. Ex. 42) which was filed with the coast guard on December 28, 1967, the day following the accident. The position is indicated as being.6 mile bearing 162 degrees from the Verrazano Bridge. If that bearing is taken from the westerly abutment of the bridge, and that is the portion of the bridge toward which the Boston was headed just prior to or at the time of the collision, according to Captain Albertson (417-420), the point would fall almost exactly on the course line drawn by Captain Vercelli.
36. Within seconds after collision, the tug Diana was back alongside scow 112 and took both scowmen off the barges. The tug Teresa cut her hawser and went back to the scows. Part of their cargo was dumped and thereafter both scows were returned to New York for repairs. (Pl. Ex. 20, at 367; 147, 155, 28-29, 72.)
37. The speed of the Boston at impact was approximately eight knots through the water. (219.)
Captain Albertson of the Boston attempts to place the speed of the Boston at the time of the collision at about three knots. However, this conclusion was based on the assumption that the Boston's engine had been going astern for a full two minutes prior to the collision; whereas we know from Captain Albertson's testimony at the coast guard hearing and from the record in the bridge bell book that the Boston's engine was not put astern until 8:19 P.M., one minute before the time of impact. (473-475, 494-495; Deft. Ex. H, at 20-21.)
Moreover, Captain Albertson conceded that the Boston was fully laden with bulk coal and proceeding at full speed of 10 1/2 knots up until at least 8:15 P.M., five minutes before the collision, at which time the engine was ordered half ahead. Obviously, the Boston had built up ...