Opinion
Nos. 281, 282.
July 22, 1929.
Appeals from the District Court of the United States for the Southern District of New York.
Libel by the Lehigh Valley Railroad Company of New Jersey, as owner of the Lighter Lehigh Valley No. 142, against the steam tug D.F. McAllister, with the McAllister Towing Transportation Company, as claimant and the steam tug Seneca impleaded. Libel by Augustus Mackenzie, Jr., as owner of the barge N.Y.B. No. 1, against the steam tug Seneca, with the steam tug D.F. McAllister impleaded. From the decrees, the Lehigh Valley Railroad Company and the steam tug Seneca appeal. Decrees modified.
The first libel was filed by Lehigh Valley Railroad Company of New Jersey, as owner of the lighter Lehigh Valley No. 142, against the steam tug D.F. McAllister and its claimant, McAllister Towing Transportation Company, Inc., for damages to said lighter resulting from a collision between it, while in tow of the tug Seneca, and car float New York Dock No. 9, in tow of said tug McAllister. The Seneca, which also belonged to the libelant, was impleaded. The second libel was filed by Augustus Mackenzie, Jr., as owner of the barge N.Y.B. No. 1, against the tug Seneca for damage to said barge in a collision between it and said car float No. 9, which resulted from the first collision. The claimant of the Seneca impleaded the tug D.F. McAllister. The Seneca was found solely at fault for both collisions. In the first suit the libel was dismissed, with costs; in the second, a decree was entered in favor of the libelant against the Seneca, and the petition of the claimant of the Seneca against the D.F. McAllister was dismissed, with costs. Lehigh Valley Railroad Company of New Jersey has appealed from both decrees.
These collisions occurred in Atlantic Basin on the afternoon of April 20, 1926. The Seneca picked up the lighter No. 142 on the east side of Pier 37, on two short hawsers, pulled her out of the slip between Piers 37 and 36, and proceeded toward the gap between Piers 38 and 33, intending to pass out of Atlantic Basin into the river and thence to Jersey City. In attempting to pass out through the gap the lighter came into collision with car float No. 9, which, in tow of the McAllister, was attempting to enter the gap and make the float bridge located between Piers 38 and 37. The two tugs had previously exchanged a one-blast signal, signifying a port to port passage. The port forward corner of the car float struck amidships on the starboard side of the lighter (which was being towed stern first) with such force as to snap both her towing hawsers and push her back some distance, so that, when she was again picked up by the Seneca, which had proceeded out into the river, turned around, and come back for her, she was nearly abreast of Pier 37. This collision threw the tow of the McAllister out of shape, and resulted, without independent fault, in the second collision, which damaged the barge N.Y.B. No. 1, lying moored to the west side of Pier 37. There was a 50-mile gale from the northwest blowing directly into the gap, and the tide was strong flood. Such additional facts as are considered material will be stated in the opinion.
Foley Martin, of New York City (J.A. Martin and Edward E. Elder, both of New York City, of counsel), for appellant.
Macklin, Brown, Lenahan Speer, of New York City (Gerald J. McKernan, of New York City, of counsel), for appellee Augustus Mackenzie, Jr.
William F. Purdy, of New York City, for other appellees.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
The foregoing facts are established without substantial dispute, but there is a sharp conflict in the testimony as to just where the first collision occurred and what caused it. The Seneca's story is that she was close to the outer corner of Pier 33, with her tow straight behind her, when she blew her one-blast signal to the McAllister, which was then 200 to 250 feet out in the river and headed down stream, the forward end of the car float, made fast on her starboard side, being about opposite the end of Pier 38; that thereafter the forward end of the car float swung to port through so large an are as to cause it to angle toward Pier 33, and to strike the lighter amidships when it was directly off the end of Pier 33 and within 30 feet of it. The McAllister, on the other hand, says that when the signals were exchanged she was angling in toward the gap, the forward end of her car float being close to the outer corner of Pier 38 and the Seneca being then not far off the end of Pier 37; that the collision occurred near the inner corner of Pier 38 and was due to a sheer of the lighter to port (her starboard, as she was being towed stern first), caused by the Seneca's attempt to "snake" the lighter past the McAllister's tow and "beat him to the gap."
The District Judge found, and we agree with him, that the probabilities favor the story of the McAllister, and that the collision must have occurred closer to Pier 38 than to Pier 33. With the tide flood, it was necessary for the McAllister to hold the forward end of her tow close to the end of Pier 38, around which she had to pivot, in order to make the float bridge. Had it gotten so far out of control as to point toward Pier 33, and had the collision occurred at the place asserted by the Seneca, neither the car float nor the lighter would have gotten into the positions they did after the collision.
The fault of the Seneca is clear. It was risky navigation to attempt to pass out of the gap while the McAllister and her tow were entering. The car float was 275 feet in length and would practically close the gap, leaving, as the master of the McAllister admits, only about 60 feet clearance between the rear end of the car float and Pier 33. The Seneca was heading into the wind and would easily have held back until the car float had cleared the gap. She should have done so. The Galatea, 92 U.S. 439, 23 L. Ed. 727. Having adopted the dangerous alternative of proceeding, she at least is responsible for her failure to execute the maneuver successfully.
We think the McAllister also at fault for consenting to the maneuver proposed by the Seneca's one blast signal. As was recognized by this court in Lehigh C. N. Co. v. Compagnie Générale, 12 F.2d 337, an assent to an ill-judged signal may or may not be a fault, depending upon the circumstances. The McAllister's master says that when the signals were exchanged he thought the Seneca would hold her position and pass under his stern after he had cleared the gap. He admitted, however, that there was no need for the Seneca to signal, if she was going to hold back. He also says he thought there was room for her to pass, although he himself would not have undertaken to do so, had he been navigating her. If he was in doubt as to the Seneca's intention, the rule required him to blow an alarm. If, on the other hand, he thought the Seneca meant to pass in the gap, he should have appreciated the danger. He could know, even better than the Seneca's master, how rapidly the wind was blowing the McAllister in, and how close the rear of his float would come to Pier 33. He was not stationary, as was the assenting vessel in The William H. Payne, 20 F. 650 (D.C.S.D.N.Y.), and the George L. Garlick, 20 F. 647 (D.C.S.D.N.Y.), where the assent was not held a fault. Here the McAllister was steadily moving in, each moment making a passage in the gap more hazardous. A danger signal might well have induced the Seneca to hold back, as she so readily could have done. Under these circumstances both vessels engaged in the dangerous maneuver and should share the risk. See The American, 194 F. 899 (D.C.E.D. Pa.); The Pembrokeshire, 269 F. 851, 852 (D.C. Md.); The Albemarle, Fed. Cas. No. 135.
The decrees are modified, so as to hold the Seneca and the McAllister equally responsible for both collisions.