The opinion of the court was delivered by: NICKERSON
Weeks Dredging & Contracting, Inc. ("Weeks"), a New Jersey corporation, brought this action against B. Turecamo Towing Corp. and Turecamo Coastal and Harbor Towing Corp. (collectively "Turecamo"), Delaware corporations. The complaint alleges that on May 23, 1975, Turecamo's tug, the Turecamo Girls, negligently caused the Scow Weeks No. 254 (the "Scow"), owned by Weeks, to run aground and sustain damage between the North Brother and South Brother Islands in the East River in New York harbor.
Turecamo brought a third party complaint against the United States, asserting that it was negligent in failing to maintain a buoy on station, to show the position of a rocky obstruction on the United States Coast and Geodetic survey chart for the area, and to maintain the channel properly.
The United States brought a fourth party complaint against River Towing Co. ("River Towing") and American Dredging Company. All claims against American Dredging Company were discontinued prior to trial. The fourth party complaint against River Towing alleges that its tug Gwynedd was proceeding westbound through the channel between the Brother Islands at about the same time as the Turecamo Girls was proceeding eastbound, and that whatever damage the Turecamo Girls sustained was caused by the Gwynedd's negligence in failing to allow sufficient room for safe navigation.
By the pre-trial order Weeks' complaint was deemed amended to demand judgment against the United States and River Towing.
This court has jurisdiction under 28 U.S.C. § 1333. The following constitutes the court's findings of fact and conclusions of law.
The tug Turecamo Girls left Port Reading, New Jersey, on the morning of May 23, 1975, bound for Bowery Bay, with the tug made fast on the Scow's port side and "toed in" at about a 15o angle. The stern of the tug extended beyond the stern of the Scow.
The Scow, unmanned and without self propelled power, had the following dimensions: 234 feet in length, 53 feet in breadth, and 22.5 feet in depth. It had a gross tonnage of 2,410 and was loaded with wet sand. At the time of the incident it was drawing 17 feet on an even keel. The Turecamo Girls was a 200 ton, twin screw tug of 2,000 horsepower, was 95.6 feet long, 27.2 feet wide, and 12.1 feet deep, and was drawing 9 feet forward and 12 feet aft.
At approximately 11:45 A.M., with Carl L. Vreeland in the pilot house, the tug was proceeding with the Scow in a generally easterly direction in the East River, having just passed through Hell's Gate. The weather was clear. The unit was bucking an ebb current of approximately 4.5 to 4.9 knots with engines full on and was making no more than three knots over land. The tug's radar was not in use. Vreeland testified that he was monitoring channel 13 on the VHF radio.
Meanwhile the Gwynedd had left Rikers Island Mooring at 11:30 A.M. towing four light scows astern in single file. The scows were each some one hundred feet long and forty feet wide. As the Gwynedd departed the stake boat where the scows were picked up, Edward Kuhle, acting as captain, made a security call on channel 13. He continued to monitor the channel but received no response.
The Gwynedd, which had a 700 horsepower engine, proceeded in a westerly direction to approach the easterly end of the channel between the Brother Islands. When the Gwynedd reached approximately the intersection of the 48' latitude and the center line of the dredged Greater New York Channel, Kuhle sighted the Turecamo Girls and the Scow "coming out from behind" North Brother Island, about to enter the Brother Islands channel at its northern extreme, and crossing over to the south.
Judge Brieant dealt in Bouchard Transportation Co., Inc. v. United States, 75 Civ. 5275 (S.D.N.Y., decided May 12, 1978), with the grounding of a tug in the same general area on May 24, 1975, the day following the occurrence involved in this case. He described the markings in the channel as follows. "The Brother Channel is marked on the starboard or southerly side of the beginning of the narrow area between the two islands by Black Can buoy No. 9. About 450 feet easterly of Can 9 and within the shoal area on the southerly side of the Brother Channel is a 20 foot fixed navigation aid (tower) with a bell and flashing green 21/2 second light. At the easterly end of the Brother Channel is Can RB, a red and black can buoy which notes the presence of South Brother Island as an obstruction, and marks the beginning of the natural channel between the two Brother Islands for westbound traffic, and also marks the most westerly side of the dredged channel to Greater New York Terminal. The northerly side of the Brother Channel is marked by a red nun buoy No. 8 and red nun buoy No. 6 at the respective ends of the North Brother Island side of the Channel, and there is a fixed mark on North Brother Island near nun buoy 8, all as shown on Chart 226." An updated chart, 12339 (plaintiff's Exhibit 4) made no changes of significance in this case.
When he sighted the Turecamo Girls, Kuhle made a second security call stating that the Gwynedd and its tow were shaping up for the Brother Channel. The Turecamo Girls did not respond. At that time the Gwynedd could not do otherwise than go through the channel. Kuhle slowed to let the Turecamo Girls cross to the south, and the Gwynedd's flotilla ran at about one knot faster than the tide, passing so close to the red nun buoy number 6 that two of the scows grazed it.
The Turecamo Girls kept coming at full speed. Vreeland, who was not navigating by instruments but was "eyeballing", steered the Turecamo Girls to the south of the channel when he saw the Gwynedd entering the channel. A small pleasure boat of some thirty five feet preceded the Gwynedd through the channel.
Vreeland was apprehensive about the passage, believing that both his unit and the Gwynedd's flotilla were in a dangerous position. He feared that some of the Gwynedd's barges might swing over to the south and collide with the Turecamo Girls or the Scow. ...