Opinion
April 3, 1929.
Alexander Ash, of New York City (Edward Ash, of New York City, of counsel), for libelant.
Macklin, Brown, Lenahan Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for the Meseck.
Bigham, Englar Jones, of New York City (Chas. W. Hagen, of New York City, of counsel), for the New York Cent. R. Co.
In Admiralty. Libel in admiralty by the Comet Lighterage Company, as owner of the barge, Comet No. 5, against the steamtug Meseck, etc., in which the New York Central was impleaded.
Decree for libelant against the Meseck. Libel against the N YC. 27, dismissed.
Decree affirmed 42 F.2d 656.
About 7:30 in the morning of February 18, 1926, the barge Comet No. 5, belonging to libelant, was lying quietly off the end of the other barges and tugs at the end of the pier at the foot of Seventh street, Hoboken. Figuring the average width of these barges, etc., as 30 feet, "the tier of boats extended from the end of the pier out into the river say between 250 and 350 feet." At the extreme river end was the Comet No. 5.
She was on the starboard (out river) side of a tug which had her in tow and had stopped at this place. Both the Comet and the tug were still. It was "a clear day," although out in the river there had been and was occasional fog. While so situated the Comet No. 5 was run into by the forward corner of a 250-foot cattle float which was being towed up the river on the starboard side of the tug Meseck. The tide was ebb and was thus running against the Meseck and her tow.
The controversy ends here so far as the Comet No. 5 is concerned.
Libelant has sued the tug Meseck and the tug N.Y.C. 27 for the damages sustained. The sole question is whether both or one of these tugs must pay these damages?
The tug N.Y.C. 27 is brought into this suit because of a collision which occurred somewhat below the Comet No. 5, between this cattle float towed by the Meseck and this tug N.Y.C. 27, which at the time was coming down the river, with the tide, towing on her portside, a car float No. 66, about 360 feet long, loaded with from 16 to 18 freight cars. As is usual, both the cattle float and the car float extended considerably beyond their respective tugs.
The claim of the Meseck, in substance, seems to be that the N YC. 27 came straight down without changing her course, and thus crowded the Meseck and her cattle float so that they could not get out of the way of the N.Y.C. 27 and that the force of the collision drove the cattle float over into the Comet No. 5.
The claim of the tug N.Y.C. 27 is that there was room for the Meseck and her car float to pass, although the margin of safety was very small, but that the Meseck angled out somewhat and thus ran her cattle float into the tug N.Y.C. 27 and then, because of the headway that still remained, caused the cattle float to go into the Comet No. 5.
At first glance the question may seem close as to whether both of the tugs were not careless, for here was a collision in daylight between a tug and tow going up the river and a tug and tow coming down, each having seen the other from 800 to 1,000 feet away.
However, a careful consideration of all the testimony indicates, by a fair preponderance of evidence, that this collision was solely caused by the carelessness of the tug Meseck.
The tide was near the end of the ebb. This meant that the Meseck with the tide against her could have stopped much more readily than the tug N.Y.C. 27, with her heavy car float coming down with the tide. That the two tugs did not see each other before they did was no doubt due to the fog, but each did see the other about 1,000 feet away, that would be about three car float lengths away.
The captain of the Meseck is dead. The captain of the N.Y.C. 27 was a witness.
Meseck, who was a deck hand on the tug Meseck, testified that he was in the pilot house at the time. They had a lookout on the cattle float. That they had left Thirty-Sixth street, Jersey City, and were going up the wrong side of the river, apparently very close to the pier ends, or at least to the boats at the end of these pier ends. Meseck says that he was about 600 feet away from the pier ends when he first saw the tug N.Y.C. 27, and blew a two-blast signal. That he then starboarded and went in until "we were about 100 feet away, not very far." This signal was blown about Fifth street. At that time the Comet was also seen lying, with the other boats, off Sixth street.
Jacobs, the lookout on the cattle float, says he first saw the tug N.Y.C. 27 "when we were about 4th or 5th Street," that the "27 was then about 9th or 10th Street," that "he saw the Comet lying at either 6th or 7th Street, there were two tugs there and about 3 or 4 barges," that had the Meseck kept her course "we would have passed the Comet about 200 feet."
The testimony of this deck hand and lookout is to the effect that the Meseck was going at full speed ahead "about three or four miles an hour" at the time the tug N.Y.C. 27 was first seen. That, as has been stated, the Meseck then blew two whistles and the N.Y.C. 27 answered with two, that thereupon the Meseck stopped and starboarded her wheel to go towards Jersey." That the Meseck then blew an alarm and the tug N.Y.C. 27 blew an alarm and the lookout then states "after the Meseck blew the alarm I saw the 27 alter her course." Nevertheless the testimony shows that, in spite of the ebb tide, the Meseck and her cattle float, after striking the tug N.Y.C. 27, continued up and over at an angle, 100 feet and into the Comet. The cattle float was about 200 to 250 feet long, and 35 or 36 feet wide. Taking the same width for the Meseck, this lookout also claims that if the N.Y.C. 27 had kept straight she also "would have passed about 200 feet outside the Comet." This would seem to have been ample for the Meseck and her tow to pass in accordance with her chosen course, unless the N YC. 27 had disobeyed the agreement between them.
The testimony of libelant's witnesses, however, in their endeavor to place the Meseck and her tow so far out in the stream, have no adequate explanation, it seems to me, for the Meseck blowing a two-blast whistle indicating a starboard passing. If the Meseck had been as far out as they claim, the tug N YC. 27 would have been coming down either head-on or inside on the portside of the Meseck. I am not saying that they could not agree to pass otherwise, but this is mentioned as an inference showing the real position of the tugs.
The explanation given by the witnesses for the tug N.Y.C. 27 is much more probable and reasonable. Ford, the captain of the tug N YC. 27, says he "was about 450 feet away from the pier ends" when he was off 8th Street, at which time the signals were exchanged. That as he approached 7th Street, he was somewhat further out. "I had put my wheel to starboard and had shoved the float out."
That at first when the signals were exchanged they were about head and head. That he answered the Meseck's two-blast signal "to accommodate him." That the Meseck should have stopped if he thought he wasn't going to clear the barges ahead.
Mathews, a captain of another N.Y.C. tug, who saw the entire accident, said that the N.Y.C. 27 was about "the width of two floats outside the barges that hung on the end of 7th Street." That subsequent to the exchange of passing signals he could tell from the wake he observed from the tug N.Y.C. 27 that she had starboarded her wheels to sheer out. That at that time the Meseck was inside a line running from the Comet down the river. That "it looked to me as if the Meseck had ported his wheel to clear the Comet." That the Meseck would have to do this in order to clear the Comet.
Todd, still another captain of one of the tugs off the end of the pier, in the employ of the P.R.R., said: That his attention was first attracted by the alarm from the tug N.Y.C. 27. That at the time the Meseck was under his stern. That the Meseck was heading straight up the river "right for me." That the Meseck changed her course to starboard. That the N.Y.C. 27 was headed somewhat out and backing at the time of the collision. That "the collision occurred about abreast of the stern of my barge," that "if the Meseck had kept straight ahead she might have cleared the Comet about 40 feet."
It seems to me, therefore, that the presence of the fog had nothing to do with the matter except possibly to make necessary a somewhat quicker decision. That, as is usual, in order to avoid as far as possible the effect of the ebb tide, the Meseck and her tow was coming up the wrong side seeking the shelter of that side. The Black Diamond (C.C.A.) 273 F. 811; The Aker (D.C.) 182 F. 719; The Prometheus (D.C.) 14 F.2d 686.
That when the Meseck saw the tug N.Y.C. 27 coming down she did not intend to give her position up. Possibly it was then too late to do otherwise. However, if she had continued ahead she would have come dangerously close to the string of barges and tugs ahead and extending off the end of the pier at Seventh street. The Meseck accordingly blew a two-blast whistle. This, while undoubtedly calling for close steering by the Meseck, appeared to the captain of the tug N.Y.C. 27 to be a proper signal. He accepted it and started to do the best he could to give the Meseck even more room. He was coming down with the tide with a heavy car float, both his engines had been stopped, and yet he necessarily had headway.
This maneuver would have avoided any trouble if the Meseck had stopped and given time for its execution. Instead of doing this, the Meseck continued to come on, although but for a short while, and her captain, either seeing that a collision with the Comet lying ahead would occur, or desiring a greater margin of safety, started to swing to starboard in order to accomplish this, and contrary to his agreement. He could not, however, check his headway. In the short space of time that occurred before the collision and owing to the maneuver of the tug N.Y.C. 27, the cattle float almost did avoid hitting the tug N.Y.C. 27, striking her a glancing blow, but this threw the cattle float towards the Comet, into which she thereupon ran.
I do not credit the testimony of libelant's witnesses whereby they seek to have it appear that the tug N.Y.C. 27 either kept straight ahead without change or altered her course nearer to the Jersey side. The accident could not have happened in the way it concededly did, if this had happened. Nor is the blowing of a signal an excuse for not being careful in conducting oneself after giving it.
I do not find that the N.Y.C. 27 did wrong in accepting the Meseck's signal. Lehigh Co. v. Compagnie (C.C.A.) 12 F.2d 337.
The captain of the Meseck should have stopped at once and given the tug N.Y.C. 27 time to go further to port, if that were necessary. It is not clear why the tug N.Y.C. 27 would be expected to change her course out into the river in order to make room for the Meseck if she could have kept straight ahead with safety. It was plainly not safe for the Meseck to go ahead, yet the Meseck did not stop but even proceeded to come out until too late in spite of all that the captain of the tug N.Y.C. 27 could do with his heavy car float, coming with the tide. The collision then became inevitable. I therefore exonerate the tug N.Y.C. 27, and find the tug Meseck solely responsible.
Decree for libelant against the Meseck. Libel dismissed against the tug N.Y.C. 27.