The opinion of the court was delivered by: MOORE
MOORE, Circuit Judge, Sitting by Designation.
In this admiralty action plaintiff, Marine Towing, Inc., owner of the Tug EVELYN, seeks recovery for damages suffered by the EVELYN when it struck the wreck of the Tug OCEAN QUEEN, owned and operated by defendant Red Star Towing and Transportation Co. (Red Star). Pursuant to Rule 14(c), F.R.Civ.P., Red Star filed a third party complaint against the United States, alleging negligence on the part of the United States Coast Guard in failing to mark the wreck properly. Jurisdiction over the United States under the Public Vessels Act, 46 U.S.C.§ 781 et seq. is not contested. By agreement of the parties trial was limited solely to the issue of liability.
I. Background of the Case
The Hell Gate area of New York Harbor lies between Astoria, Queens, and the Upper East Side of Manhattan, where the waters of Long Island Sound meet the East and Harlem Rivers. In this area, where tidal currents are treacherous and marine activity not inconsiderable, on March 12, 1969, a collision occurred between the oil barge THE FOUR LAKES, and the Tug OCEAN QUEEN. As a result of this incident the OCEAN QUEEN sank in the middle of the channel at approximately 3:25 P.M.
At 3:00 P.M. on the same afternoon the Tug EVELYN had arrived at a Gulf Oil Company facility in Westchester Creek, Bronx, New York, with a loaded petroleum barge, the AMY B in tow. During the time the barge was discharging its cargo, the captain of the EVELYN, Lester Thompson, learned that the OCEAN QUEEN had sunk. Captain Thompson testified that he had heard the location of the wreck described as "at the foot of East 90th Street", and that he had no reason to believe that the wreck was in the middle of the channel at the Hell Gate. (Transcript 16, 17, 32).*
At 8:30 P.M. that same evening, the EVELYN left the Gulf Oil facility in Westchester Creek and headed for Port Reading, New Jersey, with the now empty barge AMY B in front of the EVELYN in a "push-tow" configuration. Although these statements are challenged by defendants, Captain Thompson, his brother Richard Thompson, deckhand on the EVELYN, and the barge captain, Richard Booth, each testified that Captain Thompson had ordered both the deckhand and the barge captain to serve as lookouts on the bow of the AMY B so that the EVELYN would not hit the wreck of the OCEAN QUEEN. Captain Thompson and his brother testified that as the EVELYN proceeded through the Hell Gate, they observed a Coast Guard buoy tender tied up to a pier at Mill Rock (out of the regularly traveled channel) and a Coast Guard patrol boat tied up about 300 yards from the buoy tender at a Fire Boat Station located at the foot of East 90th Street. (Tr. 20, 117; plaintiff's exhibit 2). Captain Thompson concluded that the wreck of the OCEAN QUEEN was in the vicinity of these vessels near the Manhattan shore and signalled for the deckhand to return from the barge to the tug. Less than a minute after so signalling, and while the barge captain was allegedly still serving as lookout, the EVELYN struck the wreck of the OCEAN QUEEN. No damage to the EVELYN was detected at that time. It was later learned that the EVELYN had been damaged, and this suit, seeking to recover $20,000 from Red Star, was subsequently commenced.
II. The Liability of Red Star
Plaintiff asserts that defendant Red Star was under a statutory duty to mark the site of the wreck of the OCEAN QUEEN and that, since the site was not so marked, Red Star is liable for the damage suffered by the EVELYN.
Section 409 of Title 33 of the United States Code (the Wreck Statute) provides:
* * * And whenever a vessel, raft or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; * * *
Red Star does not contend that the statute was not applicable to the wreck of the OCEAN QUEEN. Rather, Red Star argues (1) that the Coast Guard had assumed responsibility for marking the wreck, thus relieving Red Star of its obligations under the statute, and (2) that the wreck was in fact marked as required by the statute.
At approximately 5:30 P.M., the Tug PORT JEFFERSON, another Red Star tug which had come on the scene after learning of the collision, received a radio message from the Red Star dispatcher requesting that the tug attempt to mark the site of the wreck with a lantern. The captain of the JEFFERSON testified that he prepared two lanterns to hang on the mast of the OCEAN QUEEN. (Tr. 193). Because of the tidal currents in the area, the captain did not believe that his tug could safely hang these lanterns without risking hitting the OCEAN QUEEN and perhaps knocking it over or otherwise dislodging it from its position on the bottom of the channel. A small Coast Guard boat then came alongside to assist the PORT JEFFERSON, took the lanterns, and hung one of them on the mast of the OCEAN QUEEN. After dark, the PORT JEFFERSON made a wide circle around the lantern and determined that it was visible from all directions. (Tr. 193-96). The PORT JEFFERSON remained in the area until about 8:00 P.M. It then left with the knowledge that a Coast Guard buoy tender was due to arrive at any moment to place a large wreck buoy over the OCEAN QUEEN. (Tr. 197).
Red Star cites the following excerpt from Berwind-White Coal Mining Co. v. Pitney, 187 F.2d 665 (2d Cir. 1951), to support its argument that at the time the EVELYN struck the wreck it had no liability under the Wreck Statute:
It has long been the law that an owner may comply with the statutory requirement for marking [a wreck] by getting the [Coast Guard] to do it; when the Coast Guard does mark the wreck, whether properly or not, the ...