The opinion of the court was delivered by: MOTLEY
Findings of Fact and Conclusions of Law
On the afternoon of March 12, 1969, the tanker Four Lakes and the tug Ocean Queen, which was towing an oil barge, collided in the East River. As a result of the collision, the master of the Ocean Queen drowned and four of the tug's crew members sustained injuries. The tanker Four Lakes was damaged and the Ocean Queen sank.
Plaintiffs Tug Ocean Queen, Inc., the tug's owner, and Red Star Towing and Transportation Company, the tug's charterer, seek exoneration or limitation from liability. They also seek damages from defendants Tanker Four Lakes, Inc., the tanker's owner, and Texas City Refining, Inc., the tanker's operator. Defendants, in turn, seek damages from plaintiffs.
The Ocean Queen was a diesel powered harbor tug, with 1600 horsepower, 94.1 feet in length, 25.1 feet in breadth and 10.4 feet in depth. The barge was 260 feet long and 42 feet wide and the tanker Four Lakes is 552.5 feet in overall length and 75.3 feet in beam. It is powered by turbo-electric engines of 6,000 horsepower.
The Four Lakes, partially loaded with approximately 14,000 tons of heating oil and gasoline, was enroute from New Haven, Connecticut to Albany, New York at the time of the accident. The tug and barge were travelling downstream from 149th Street in the Bronx. (Tr., May 10, 1973, p. 349). The collision occurred in Hell Gate, a turbulent area south of Wards Island.
The events immediately preceding the accident can be briefly described. The Four Lakes was manned by a pilot, a master, a deck watch officer, a helmsman, an able bodied seaman, a chief officer, a watch engineer and a first assistant engineer. (See Def. Exh. A-H). While the pilot had had extensive experience in Hell Gate, (Tr., May 9, 1973, p. 63), he had not previously piloted the Four Lakes. (Tr., May 9, 1973, p. 91). Nor had he any experience with westbound loaded tankers. (Tr., May 9, 1973, p. 140).
The tug had a master, mate, deckhand, engineer and cook on board at the time of the accident. (Tr., May 9, 1973, p. 47). The barge was apparently unmanned.
At about 1500 hours (3:00 P.M.), after rounding North Brothers Island, the Four Lakes sighted the tug and barge about one mile ahead approaching Hell Gate. The tug and barge were proceeding down river, in the same general direction as the Four Lakes. (Tr., May 9, 1973, pp. 64-66). The weather was fair and visibility was clear. The wind was from the northwest at about 15 knots. (Tr., May 9, 1973, p. 64). The vessels were travelling against the current.
On sighting the Ocean Queen, the Four Lakes, which had been proceeding full speed ahead, reduced speed to dead slow to avoid overtaking the tug and barge in Hell Gate. Capt. Wells testified that he wanted the Ocean Queen to pass through Hell Gate before the tanker encountered her. Capt. Wells apparently recognized that because of the turbulence of the waters in Hell Gate, any attempt to pass the tug in Hell Gate would be more difficult than a pass farther down the East River. (E. g., Tr., May 9, 1973, p. 145).
The tanker proceeded at slow speed from off North Brothers Island to abreast of the sludge plant on Wards Island whereupon the Four Lakes sounded one long blast to alert ships approaching from the opposite direction around the bend. 33 C.F.R. § 80.5(a). The tug and barge were not then in sight since they had gone around Negro Point. (Tr., May 9, 1973, p. 68). No reply was heard. According to defendants, the tanker then increased engine speed to half ahead for better maneuverability. When it reached a position under the Triborough Bridge at approximately 1517 hours, the tug and barge were again in sight on the north side of the channel, about three ship lengths distant. The Four Lakes sounded a second single "bend" blast signal and heard no reply. (Tr., May 9, 1973, pp. 69-70). Shortly thereafter, when about a ship length behind the tug and barge, (Tr., May 9, 1973, p. 75), the pilot of the Four Lakes sounded a two short blast signal indicating a desire to pass on the port side of the tug and barge, in accordance with 33 U.S.C. § 203, 33 C.F.R. § 80.6(a). The testimony is conflicting on whether the Ocean Queen assented to the pass by sounding two short blasts. 33 U.S.C. § 203, 33 C.F.R. § 80.6(a). Capt. Wells, pilot of the Four Lakes, testified on the trial that he did not hear any answering blasts, (Tr., May 9, 1973, p. 72), as did the Four Lakes' deck watch officer (Defs. Exh. B, p. 15) and chief officer (Defs. Exh. E, p. 4) in their testimony before the Coast Guard. However, in testimony before the Coast Guard, a seaman on board the bow of the Four Lakes stated that he did hear the Ocean Queen answer with two short blasts. (Defs. Exh. D, p. 4), and a deckhand on the Ocean Queen testified that, while he was not certain that his vessel answered the tanker's two blasts, he heard two blasts, presumably from the Four Lakes, followed shortly thereafter by two blasts which "sounded a little different." (Pls. Exh. 7, p. 122).
It is undisputed that the Ocean Queen did not sound the four blasts which would have indicated that its captain did not think it safe for the tanker to attempt to pass at that point. 33 U.S.C. § 203, 33 C.F.R. § 80.6(a).
Pilot Wells of the Four Lakes then ordered the tanker's engine full ahead and ordered a hard left rudder in order to turn to port close to Hallet's Point and pass on the port side of the tug and barge. (Tr., May 9, 1973, pp. 73-74). However, as the Four Lakes was proceeding to overtake the tug and barge, which were approximately a ship length ahead, Wells observed a slight change in the course of the tug and barge towards the Four Lakes. He immediately sounded a second two short blast whistle signal but heard no reply. The tug and barge, turning sharply left, then came swiftly across the Four Lakes' bow and into collision, the Four Lakes' stern in contact with the tug's port side at an angle of approximately 45 degrees. (Tr., May 9, 1973, pp. 76-84, 198). At the time of collision, the waters were at flood tide and the predicted velocity of the current in Hell Gate off Mill Rock was 2.18 knots. (Defs. Exh. U).
Fault on the Part of the Tanker
Plaintiffs claim that the collision was caused by 1) the tanker's overtaking the tug and barge without having first received the assent of the overtaken vehicle, (33 U.S.C. § 203; 33 C.F.R. § 80.6(a)); 2) the tanker's negligent navigation in failing to make the turns required to round Hallets Point; 3) the tanker's negligent navigation in attempting to overtake the tug and barge in Hell Gate; 4) the failure of the tanker to keep out of the way of the overtaken vessel, (33 U.S.C. § 209); and 5) the failure of the tanker to slacken its speed or stop or reverse. (33 U.S.C. § 208).
The court finds that the tanker Four Lakes was at fault and that its fault contributed to the accident. "In the event of collision, the burden rests upon the overtaking vessel to excuse herself from fault." J. Griffin, The American Law of Collision, 171 (1949). Defendants failed to meet that burden.
The court will now consider each of plaintiffs' contentions in turn.
The statute provides in part that if the vessel astern ". . . shall desire to pass on the left or port side of the vessel ahead, she shall give two short blasts of the steam whistle as a signal of such desire, and if the vessel ahead answers with two blasts, shall direct her course to port . . . ." See also 33 C.F.R. § 80.6(a).
The court finds that the tug did assent to the pass. The testimony on this point was conflicting.