Appeals and cross-appeals from an interlocutory decree of the United States District Court for the Southern District of New York, Dudley B. Bonsal, Judge, awarding divided damages to the owners of the M/S Antonio Ferraz and the barge Eastern No. 2 and dismissing the counter-claim of appellant Navegacao Mercantil S.A. against plaintiff-cross-appellee Mystic Steamship Corporation.
Hays and Oakes, Circuit Judges, and Christensen, District Judge.*fn*
These are appeals and cross appeals by the owners of the tug Betty Moran and the M/S Antonio Ferraz ("Ferraz") from an interlocutory decree (settling all issues save for the question of damages) of the district court holding both responsible for a collision between the Ferraz and the barge Eastern No. 2, owned by Mystic Steamship Corp. The collision occurred in the early morning of June 11, 1968, off Cape Henry, Virginia, at the entrance to Chesapeake Bay. The place of collision was outside the area where the Navigation Rules for Inland Waters, 33 U.S.C. §§ 151-232, apply. The bow of the Ferraz and the starboard quarter of the barge were in collision, causing damage to both vessels. Because the court below found the collision caused by the negligence of both the tug and the Ferraz, the decree was that the damage be borne equally by the offending parties. The Schooner Catharine v. Dickinson, 58 U.S. (17 How.) 170, 177, 15 L. Ed. 233 (1855). See Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597, 603, 83 S. Ct. 926, 10 L. Ed. 2d 1 (1963).*fn1
The tug Betty Moran, which was under bareboat charter to and operated by the Moran Towing Corp., was a tug of 289 gross tons, 136 feet long and 35 feet beam, driven by a 43,000 h.p. diesel engine with twin screw and wheel house control. The barge under tow, which was sailing unmanned, was a converted Liberty Ship with no propulsion machinery or crew space, having a length of 444 feet and a beam of 57 feet; she was carrying a cargo of 13,000 tons of coal and had a draft of 27 feet 7 inches forward and 31 feet 4 inches aft. The tow consisted of a chain some 60 feet long running from the bow of the barge through a bull-nose shackled onto a steel wire hawser about 2 1/4 inches in diameter, which in turn was wound onto a drum on the steering engine at the stern of the tug. It is of some significance that, at the time of the collision, the hawser was out 1,500 feet so that the total length of the tow line was 1,560 feet and of the flotilla about 2,140 feet. The tow in question was one from Lamberts Point, Norfolk, Virginia, to New York City, and the collision occurred when the tug was under the navigation of her mate, Captain James Brogan, with a deckhand and an engineer on watch.
The Ferraz was a vessel of 12,667.90 gross tons, some 553 feet long, bound from Rio de Janeiro to Baltimore loaded with about 16,000 tons of iron ore. The Ferraz was headed toward Cape Henry, Virginia, where she was to take on a pilot for Baltimore, and she was at the time of the collision in the charge of her master, with the first, second and third mates and a helmsman on the bridge, two lookouts on the prow, and a boatswain's mate and seaman stationed at the bow. The collision occured at or about 4:06 a.m. when the barge came into contact with the bow of the Ferraz, at an angle of about 60 degrees. It rather ridiculously took place early on a clear morning when there was visibility of at least eight miles. Versions of how the collision occurred, needless to say, differ.
On the tug's story, the tug and barge proceeded out of Norfolk down the Bay around Sewell's Point and down Thimble Shoal Channel at a speed of about eight knots. When the tug and barge came to the end of the channel, just outside of which the Inland Rules no longer applied, the hawser was let out to 1,500 feet and the tug set a course of 105 degrees true. Just before the tug came abeam of buoy R "2" Horn, it changed course to starboard to 135 degrees true. At that point Captain Brogan said he noticed the green starboard running light and white range lights open to the right of a ship, later identified as the Ferraz, about 5 to 10 degrees off the starboard bow of the tug in the vicinity of buoy R "2CB," a distance he estimated to be seven miles. When Captain Brogan first noticed the Ferraz, he thought the vessels were on diversion courses and that if both held to the line, they would pass starboard to starboard at least a half-mile apart. He testified that, when the Ferraz was about three-quarters of a mile away, he observed both red and green sidelights and that her range lights were in line, indicating that the Ferraz had altered her course to starboard. He flashed his light twice to indicate a starboard-to-starboard passing and to inform the Ferraz that he had a tow. Obtaining no reply, he said he repeated the signal 15 seconds later, but again received no reply, and gave two blasts from his horn. He repeated this again, but still received no reply.*fn2 He concluded that the Ferraz would miss the tug, but was concerned about the barge and therefore slowed down to let the towing hawser fall to the bottom. He then turned his search light on the barge for about six to seven seconds. Interestingly, those on the tug did not realize that the barge was struck by the Ferraz until the following day, when the hawser was shortened to enter New York Harbor, at which time it was observed that the starboard quarter of the barge had been damaged.
According to the Ferraz -- and her contemporaneous chart is in evidence -- at about 2:58 a.m., while on a course headed directly northwest toward the Chesapeake Bay sea buoy, she altered her course to the west 273 degrees and at 3:12 a.m. passed directly south of the sea buoy. Maintaining this course at 3:41 a.m., according to her own chart and the testimony of her witnesses, she passed 1,300 to 1,400 yards north of buoy R "2CB," as opposed to the passing south which Captain Brogan thought he had seen when the Betty Moran first sighted the Ferraz. In any event, the Ferraz continued on her course of 273 degrees until 3:45 a.m., at which time she altered her course about 30 degrees to starboard in a northwesterly direction directly toward the pilotage area of Cape Henry. In this area a pilot boat carrying the Ferraz' pilot was cruising in the vicinity of buoy "R2," several miles north-northeast of Cape Henry Light. When the Ferraz made her course alteration to starboard, her engines were put on standby and her engine speed varied between complete shutdown and slow forward. At about 3:50 a.m. her engine speed was reduced to half ahead and then to slow ahead, and at 3:58 a.m. her engines were stopped. Significantly, the tug was not observed by the Ferraz until 4:03 a.m., approximately three minutes before the collision. Those on the Ferraz claimed the tug crossed the bow of the Ferraz from port to starboard at about 4:04 a.m. The Ferraz crew claimed that the tug made a 90 degree turn northward some 300 meters off the bow of the Ferraz.*fn3
There is every reason for supporting the district judge fully in his finding that the Ferraz was at fault in three respects -- failing to maintain a proper lookout, failing to reverse her engines sooner, and altering her course to starboard to cross that of the tug and barge. It is quite plain the Ferraz did fail to see the tug "flotilla" -- despite an eight-mile range of vision -- until three minutes before the collision. The Ferraz gave no signals and apparently heard or saw none from the tug. The inattention may have resulted from a change of watch at 3:45 a.m. which, however, is not clearly disclosed in the chartroom records in evidence. In any event, as the district court said, doubtless the crew was preoccupied in locating the pilot boat. As stated by Mr. Justice Brown in The New York, 175 U.S. 187, 204, 44 L. Ed. 126, 20 S. Ct. 67 (1899), "Her officers failed conspicuously to see what they ought to have seen or to hear what they ought to have heard. This, unexplained, is conclusive evidence of a defective lookout." See also Rice v. United States, 168 F.2d 219, 220 (2d Cir. 1948); Gulf Oil Corp. v. The Socony No. 16, 162 F.2d 869, 870 (2d Cir. 1947).
Had the Ferraz reversed her engines sooner, rather than approximately two minutes prior to the collision -- when they were put in reverse at half speed -- or one minute prior when they were put in reverse at full speed, the collision could easily have been avoided. Doubtless this failure to maneuver was in turn precipitated by the defective lookout.
Quite clearly the Ferraz did alter her course to starboard to cross that of the tug and barge. According to her own gyro course recorder readings, having proceeded for several minutes on a 303 true degree course, at 0356 she began a starboard turn. This took her at