Opinion
No. 130.
January 4, 1946.
Appeal from final decrees of the District Court for the Eastern District of New York.
Suit for damages sustained in a collision by Hygrade No. 12, Inc., as owner of the barge Hygrade No. 12 against the tug Talisman, claimed by the Long Island Railroad Company, which impleaded the tug Central, suit by the Long Island Railroad Company as owner of the carfloat No. 17 against the tug Central whose claimant the Red Star Towing Transportation Company impleaded the tug Talisman and suit by the Pennsylvania Railroad Company against the tug Central whose claimant the Red Star Towing Transportation Company impleaded the tug Talisman. From adverse decrees the Long Island Railroad Company appeals. The suits were tried together and were consolidated for hearing on appeal.
Decree modified in accordance with opinion.
A collision in the East River between two tugs and their tows resulted in three suits in the District Court for the Eastern District of New York which were tried together below and were consolidated for hearing on this appeal.
The collision occurred in clear weather between two and three o'clock on the morning of December 16, 1942, off the Fulton Ferry near the Brooklyn Bridge under the following circumstances. The tug Talisman, owned by The Long Island Railroad Company, was towing two loaded carfloats owned by the same company down the East River on a trip from Long Island City to Greenville, N.J. She had one carfloat, the L.I.R.R. No. 17, which was 275 feet long, on her port side and the other, the L.I.R.R. No. 26, which was 300 feet long, on her starboard side. She was bucking a flood tide, and was making about two knots over the ground on a course about 200 feet off the pier ends along the Brooklyn shore when she approached, and passed under, the Brooklyn Bridge. She was showing the required navigation and towing lights. Her master and mate were in the pilot house, the former at the wheel and the latter acting as lookout.
When the Talisman was in the vicinity of the Brooklyn Bridge, her master saw the tug Panther bound up the East River with a hawser tow. The Panther was then about one thousand feet ahead of the Talisman and was also about 200 feet off the Brooklyn shore approaching the Talisman head and head. The Talisman blew one blast to the Panther which answered with one.
When the above mentioned signals were exchanged by the Talisman and the Panther, the tug Central was also bound up the East River with the oil barge Hygrade No. 12 in tow on her port side. She had a lookout on her bow but none on the Hygrade which carried only her own crew. The Hygrade was 212 feet long and her bow extended some 125 feet ahead of the bow of the Central. The Central, which was overtaking and passing the Panther, was then abreast of the Panther about one hundred feet off her port side and that much farther away from the Brooklyn shore. Just after the above mentioned exchange of signals, the Central blew one blast to the Talisman, which the Talisman answered with one, and then went ahead of the Panther and to starboard to go closer to the Brooklyn shore in an attempt to pass the Talisman port to port as agreed. The Talisman put her rudder right but did not change her course much, if at all, before the collision. When the tugs were some six hundred feet apart each blew an alarm and backed but despite that the port corner of the carfloat No. 17 and the bow of the Hygrade No. 12 on the port side came together. The carfloat broke adrift, a Pennsylvania Railroad freight car on it rolled overboard, and the carfloat No. 26 was also hit by the Hygrade No. 12 when those vessels came together after the first collision.
The Central was making about six knots over the ground when she signalled the Talisman and at that time these two tugs were showing each other only their green lights but soon afterwards they were in a red to red position though then too close to clear. The findings filed some time after the hearing state that the Central was showing both her green and her red to the Talisman when she signalled that tug but this is in partial conflict with the evidence and also with the oral opinion of the judge delivered at the close of the hearing when the evidence was fresh in his mind and was, we think, a mistake.
One of the suits which were tried together was brought by the Hygrade No. 12, Inc., as owner of the barge Hygrade No. 12 against the Talisman whose claimant impleaded the Central. Another was brought by the Long Island Railroad Company as owner of the carfloat No. 17 against the Central whose claimant impleaded the Talisman, and the third was brought by the Pennsylvania Railroad Company, as owner of the freight car which went overboard, against the Central whose claimant impleaded the Talisman. The trial judge found that the Talisman had ample time and opportunity to carry out the agreed port to port passing and failed without excuse to navigate to make that possible. He held her solely at fault. Her claimant has appealed from decrees entered accordingly and the owner of the oil barge has filed assignments of error.
Foley Martin, of New York City, (Christopher E. Heckman, of New York City, of counsel), for libellant-appellee Tanker Hygrade No. 12, Inc.
Burlingham, Veeder, Clark Hupper, of New York City (Chauncey I. Clark and Frederic Conger, both of New York City, of counsel), for appellant Long Island R. Co. and the Talisman.
Macklin, Brown, Lenahan Speer, of New York City (Leo F. Hanan, of New York City, of counsel), for appellee Red Star Towing Transp. Co.
Before SWAN, CHASE, and FRANK, Circuit Judges.
The one blast signal which the Central blew to the Talisman when these vessels were approaching each other green to green was in violation of Article 18, Rule I of the Inland Rules, 33 U.S.C.A. § 203. These vessels were not then meeting head and head, being from one hundred feet to perhaps more than twice that to the starboard of each other, and the statute called for a two blast signal followed by a starboard to starboard passing. Construction Aggregates Co. v. Long Island R. Co., 2 Cir., 105 F.2d 1009. That required no change of course by either. The East River is not a "narrow channel" since the repeal of the East River Statute in 1937 and navigation there is controlled by the Inland Rules. City of New York v. American Export Lines, 2 Cir., 131 F.2d 902.
This statutory fault on the part of the Central was enough to make her liable for the unsuccessful attempt to make a port to port passing unless she proved that her fault could not have been one of the causes of the collision. The Pennsylvania, 19 Wall. 125, 136, 22 L.Ed. 148; Marshall Field Co. v. United States, 2 Cir., 48 F.2d 763. We think it self evident that she did not do so unless as a matter of law the assent of the Talisman to the wrongfully proposed port to port passing relieved the Central from the risk involved provided the Talisman could still have, as the court found, passed safely port to port had she been properly navigated. So to hold, however, would be contrary to the applicable law.
The master of the Talisman was put in somewhat of a dilemma by the improper signal of the Central. He was forbidden by the Pilot Rules to answer a one blast signal with two blasts. See Rule II "Pilot Rules for Atlantic and Pacific Coast Inland Waters," edition May 1, 1912. Those rules were binding upon him. Postal Steamship Corp. v. El Isleo, 308 U.S. 378, 60 S.Ct. 332, 84 L.Ed. 335. He had, of course, the right to refuse to attempt the proposed passing and could have so indicated by blowing an alarm at once. But since the vessels were far enough apart when the proposal was made to give it a reasonable chance of success he was not at fault merely in assenting to it. The Lexington, 2 Cir., 79 F.2d 252; Lehigh C. Nav. Co. v. Compagnie Generale Transatlantic, 2 Cir., 12 F.2d 337. He testified that he did not think a port to port passing possible but assented, nevertheless, because it might have been and he did not know what the Central was capable of doing to carry out her proposal. His agreement, however, did not alter the Central's responsibility for her violation of the statute and put upon him only the duty to use his best efforts to help the Central pass as proposed by her. The Admiral, D.C., 39 F. 574. Yet having assented, the Talisman did not, so the court found, perform her agreement to do what she could to help the Central but continued on her course until the alarms were sounded just before the collision. This finding was not clearly erroneous despite the evidence of the Talisman's attempt to change her course by putting her rudder right and so we accept it as sufficient to show the fault of the Talisman. It follows that both the Talisman and the Central were at fault in the respects mentioned and, as both were contributing causes of the collision, that the damages should be divided regardless of any question as to the Central's failure to post and maintain a proper lookout on the oil barge which was argued but need not now be discussed.
Decree modified in accordance with this opinion.