The opinion of the court was delivered by: COOPER
IRVING BEN COOPER, District Judge.
This suit arises out of a collision that occurred on Thanksgiving evening, November 23, 1972, between the scow COEN 40, which was in tow of the tug HUNTINGTON, and a sunken stakeboat.
In September 1973 the original plaintiff, Richard Seeley, chief engineer aboard the HUNTINGTON, instituted an action, pursuant to 46 U.S.C. § 688, against that vessel's owners and operators, Red Star Towing and Transportation Co. ("Red Star")
to recover damages for personal injuries sustained in the collision. In November 1973 Red Star impleaded third party defendant Penn Industries, Inc. ("Penn")
which owned and operated the stakeboat, seeking to recover full indemnity or contribution for any amount it might have to pay Seeley. In addition, Red Star's third party complaint asserted a direct claim against Penn for damages to the hull of the HUNTINGTON resulting from the collision.
The action brought by Seeley was settled and discontinued prior to this trial. Red Star and Penn stipulated that the amount of the settlement paid Seeley ($10,000) was reasonable. (Tr. 6)
The instant claim was tried to the Court on January 30, 1975 only to determine liability between Red Star and Penn with respect to Seeley's personal injuries and damage to the HUNTINGTON. For the reasons that follow, we find Penn liable for the collision and the negligence of the HUNTINGTON's captain a contributing factor. Accordingly, we hold that Red Star is entitled to contribution for the amount paid Seeley and to damages sustained by the HUNTINGTON.
Penn owned and operated a stakeboat located in General Anchorage 11 off Rikers Island, East River, New York in 1971. (Tr. 6-7, 67)
The stakeboat was a steel hull approximately 120 feet in length with a beam of 26 feet. The only superstructure the hull contained was a house on the deck approximately six feet in height. (Tr. 15, 58) Red Star also maintained a stake (the "Red Star buoy")
about 375 to 400 yards west of the stakeboat. (Tr. 14, 15; Exh. A) The stakeboat and the Red Star buoy were used by tugs for "hanging up" tows for a distribution point or to stand by and wait for tide. (Tr. 15)
On December 17, 1971 Penn discovered that its stakeboat had sunk at its mooring.
Penn's marine superintendent notified the United States Coast Guard and Army Corps of Engineers. The Coast Guard issued a Radio Notice to Mariners warning of the sunken stakeboat. (Tr. 68-69; Exh. 10)
Arrangements were made to have the sunken stakeboat marked with a white triangular day marker, placed on a steel stanchion welded to the side of the boat. The marker had an orange border, was marked with the words "Danger -- Submerged Wreck" and had a quick-flashing light. (Exh. 10 at p. 6)
In late April 1972 Penn discovered that the marker was missing and replaced it with a more rigid, larger size, diamond shaped marker, painted with the same warnings as the first sign. A quick-flashing white light was fastened to the top of the sign. The sign was welded to a ten foot pipe which in turn was welded to the side of the sunken stakeboat. (Tr. 73, 83-85; Exh. 9) The top of the sign contained a battery-operated light which was activated by a light-sensitive photoelectric cell. When darkness set in, the bulb in the light was activated and at dawn it was shut off. (Tr. 78, 79-80; Exh. 8)
The HUNTINGTON arrived at 8:10 in the evening of November 23, 1972 to pick up the scow COEN 40 and take it to Eastchester, New York. (Tr. 16)
Before it could pick up the COEN 40, however, the HUNTINGTON had to "wait for tide" for one hour and forty-five minutes. (Tr. 16-17) At approximately 9:45 p. m. the HUNTINGTON resumed operations by maneuvering to the stern of the COEN 40 to secure it in "push boat" fashion for the shift to ...