Appeal from the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge.
Before WOOLLEY and DAVIS, Circuit Judges, and JOHNSON, District Judge.
This case arose out of a collision in Newark Bay between scows in tow of the Steam Tug "Kinetic" and the lighter "Kencors" in tow of the Steam Tug "Philip J. Kenny," causing damage to the lighter and loss of her cargo owned by the Ford Motors Company.
The corporate owner of each tug filed a petition in the District Court to limit its liability to the value of its tug at the time of the collision and each owner, charging the tug of the other with the sole fault, claimed exoneration from all liability. The cases were consolidated and tried together. At the trial, after concessions that liability of the towing companies should be limited to their respective tugs, the only questions were those of fault and liability of the vessels. The court, finding them mutually at fault, entered interlocutory decrees in both cases. Only the owner of the Kinetic appealed. The owner of the Kenny, though here as appellee, argued the case de novo, claiming broadly the exoneration from liability which it had asserted in its petition.
The story of the collision as told by the major facts admitted and the minor facts found by us, where in a few instances they were disputed, is briefly as follows:
The Kinetic, a low-powered tug, was bound up the Newark Bay channel with two scows laden with sand in a tandem tow on short hawsers. The Kenny, a high-powered tug, was bound down with two unladen lighters and one lighter (Kencors) laden with automobile materials, also in a tandem tow on short hawsers.
It was night. Visibility was good. There was an easterly wind of about fifteen miles an hour. The tide was setting in. The channel at the point of collision was about 450 feet wide. These were the nautical conditions.
The Kinetic, upward bound, was in midchannel; the Kenny, downward bound, was on the left side -- her own port side -- of the channel. Each tug sighted the other when something less than a half mile apart, the Kenny for an instant showing her red light, and thereafter each steadily showing her green light to the other. For a time, and without doing anything, each tug kept in view the running lights of the other tug. When, according to the testimony, they had approached to within 300 to 600 feet of each other (though the distance may have been somewhat greater), the Kinetic sounded two short blasts of her whistle indicating her intention to pass starboard to starboard. The Kenny heard the signal, but made no response. Nor did she give a signal of her own. Having heard the signal, we shall assume that she silently assented to it. At all events, the Kenny's silence did not disturb the Kinetic or affect her subsequent movements. In signaling for a starboard to starboard passing and in silently assenting to the signal, the two tugs departed from the main purpose of the Narrow Channel Rule (Art. 25 of the Inland Rules [33 USCA § 210]), which provides that:
"In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or midchannel which lies on the starboard side of such vessel."
This rule has frequently been construed, not as a hard and fast command for a port to port passing in every situation, but as distinctly requiring such a passing unless it be not "safe and practicable."
Was the situation in this instance such as to bring the vessels within the exception to the rule?
We think the situation at the time they sighted each other was such as safely and practicably to permit a port to port passing. But as the vessels approached each other, the distance between them shortened, and the situation changed every second until finally when the Kinetic gave the starboard to starboard passing signal it is very doubtful that a port to port passing was safe and practicable. The positions of the tugs as they were then may have justified a starboard to starboard passing. But in that event, the two vessels, having failed to keep to their proper sides of the channel and to signal for a port to port passing when such courses and such a passing were safe and practicable and having proceeded on improper courses so closely toward each other as to make a port to port passing unsafe or impracticable and hence to compel a starboard to starboard passing, and in this way having departed from the spirit of the rule, assumed the extra burden which the departure placed upon them, namely: To navigate their tows in a way to assure a safe passing.
What should they have done? On the signal the Kenny should have put her wheel to starboard and eased off to her port. The Kinetic should have put her wheel to starboard and moved to a position farther to her port. If the two tugs had performed these simple and customary maneuvers they would have widened the space ...