lights of the Caspian, to say nothing of the mast-head light on it, and the tow lights on the Mamei. In addition Captain White never saw the white lantern on the port bow of the Mamei although he headed directly for it and the impact of the two vessels was only a very short space away from where the lantern was hanging.
Counsel for the Tug Montrose have argued that if there is liability here on its part, there is also contributory fault on the part of the Caspian, and this view is also advanced by counsel for the barge Mamei, the former on the ground of improper lighting on the part of the Mamei and its tugs Caspian and Hudson, which, however, I do not agree with as hereinabove indicated, and the latter on the ground that it was the duty of the Tug Caspian upon not having heard the port to port signal answered, to repeat it, and in the event of doubt to stop and reverse until the course of the other vessel is ascertained. The Gerry, D.C., 161 F. 413; The Atlantic City, D.C., 136 F. 996. However, I do not feel that this admittedly true rule of law is here applicable. Captain Middleton was here entirely responsible for the entire flotilla since the Mamei was a dumb-barge. The No. 34, D.C., 13 F.2d 927, 928. He gave a one signal blast indicating a port to port passing when he saw the Montrose about one-half mile away. While it is true that no answer was given to his signal, since the testimony shows that the only light showing to him was the red running light on the Montrose, and hence it was fair for him to assume then, in the absence of a return signal, that the Montrose was going to make a port to port passing. This status continued until the Montrose crossed the bow of the Mamei approximately 200 feet away, when the red and green lights of the Montrose were showing for the first time, which indicated that the Montrose was going down straight ahead toward the Mamei. Immediately thereafter the red light was cut out and the green was showing, which indicated that the Montrose had changed its course, showing its starboard side from the port bow of the Mamei. The testimony of Captain Middleton was that the Montrose was approximately two points on the port bow, or that the angle of the collision was about 45 degrees. In addition the time which elapsed between the showing of the red and green lights and the cutting out of the red light was but a very few seconds and as indicated by Captain Middleton by the snapping of his fingers. Accordingly, it would seem that there is no reason here for any apportioning of damages by reason of contributory fault, since in the short time at his disposal from the time the red and green lights of the Montrose were showing down to the actual impact, Captain Middleton did all that was requisite of anyone in giving the orders for a danger signal blast as well as an order to reverse the engines. As has been indicated previously, in the showing of the red light, even in the absence of a return signal, to that which he had given for a port to port passing, Captain Middleton had every right to assume a port to port passing. The Kinetic, 3 Cir., 40 F.2d 258. Furthermore, it seems to me that the fault on the part of the Montrose as here set forth is so obvious and inexcusable that to make out a case for apportioning of the damages, the evidence to establish the fault of the Caspian should be clear and convincing and certainly this is not the case in this instance as no liability can be attached to the Caspian. The City of New York, 147 U.S. 72, 75, 13 S. Ct. 211, 37 L. Ed. 84; The Priscilla, 1 Cir., 55 F.2d 32.
Accordingly, a decree shall be entered on the Ritner K. Walling libel, No. 45 of 1943, granting the Mamei owner full recovery for its damages from the Montrose, owned by the Eastern Transportation Company, and a decree shall be entered in the Eastern Transportation Company libel, owner of the Montrose, against the Mamei and Caspian in favor of the Mamei and Caspian, and in view of the liability of the collision being imposed on the Montrose there is no necessity for limitation of liability proceedings as to the Martug Towing Company, owner of the Tug Caspian.
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