7. Shortly after The Norwich Victory got under way, First Mate Loftesnes sent the lookout Highlands below to wash his hands, which were greasy. Loftesnes took over the duties of the lookout in his absence. Highlands went to get a cup of coffee in the galley and while there received word that he was wanted on deck right away. He immediately went topside and took over the lookout station from Loftesnes. Loftesnes had first seen the searchlight of the Picket Boat flashing downstream at a time he estimated as ten minutes before the collision but had not called the bridge, nor did he tell Highlands about it. Highlands states that as soon as he took over he saw the light flashing back and forth and then saw the Scows. He immediately notified the bridge by phone, reporting a 'barge' dead ahead. He could see no lights on the 'barge'. Within seconds, the collision occurred.
8. The Norwich Victory collided heavily with Scow No. 122, impaling it. Scow No. 116 was damaged when No. 122 was driven into her. Scow No. 120 suffered no injury.
Negligence of Norwich Victory and Three Scows
I do not feel that there can be much disagreement over the negligence of the three Scows. They were left unattended, adrift, and inadequately lit in the middle of a busy channel at night. Cf. 33 U.S.C.A. § 178(d), 221 and 409; The Lehigh, D.C., 12 F.Supp. 75. There is some controversy as to whether the Scows were lit when the collision occurred, but I do not feel that it can be seriously contend that there was more than one 'dim' light on one Scow, and that this was not the 'good white light' provided for in 33 U.S.C.A. § 178(d). However, it is forcefully urged that this negligence was not the cause of the accident and that the Government's libel should, therefore, be dismissed. It is pointed out that even though the lights on the Scows may have been inadequate the searchlight of the Picket Boat illuminated the scene for at least ten minutes prior to the collision. This ignores the fact that the meaning of the Picket Boat's searchlight was misunderstood by The Norwich Victory, while three proper lights on the three Scows probably would not have been. It is further argued that whatever negligence there may have been in having the Scows adrift in the middle of a busy channel, The Norwich Victory could easily have avoided the accident, and that its failure to do so was due to an inadequate lookout, or the absence thereof, and reckless seaman seamanship. In support of the latter contention the Dredging Company refers to Speed Regulation Number 2 of the 'Harbor Rules and Regulations, Port of Philadelphia, Revised and adopted June 4, 1935,' issued by the 'Board of Commissioners of Navigation for the River Delaware and its Navigable Tributaries.' That Regulation provides: 'Vessels shall not be worked or navigated in the Delaware River in front of the Navy Yard, between Gas and Bell Buoy No. 44 off mouth of Schuylkill River and Red Nun Buoy No. 46, off Eagle Point, at a greater rate of speed than twelve (12) nautical miles an hour.' The Government contends that this Regulation is not meant to apply to use of the Delaware River as a highway, but only to local shipping, that it does not have the force of a statute, and that, in any event, The Norwich Victory was not proceeding at a greater speed than 12 knots an hour. I feel that the Government's last assertion is correct, and that it is unnecessary to construe or determine the force of the quoted Regulation. It is true that the Engineer stated that a speed of 80 r.p.m. was called for, and that under ideal conditions, this would mean a rate of about 13 1/2 knots per hour. However, actual speed above water is another thing, and the Captain, the Pilot, and the lookout Highlands were in agreement that the ship was actually not travelling at more than 12 knots when the accident occurred.
However, the Dredging Company's contention that The Norwich Victory was proceeding in a negligent fashion is, I feel, correct in two respects; the lookout was either absent or inadequate and the admitted sight of the Picket Boat's lights should have given the Captain or the Pilot pause. The testimony as to the lookout is conflicting, Loftesnes said that the accident occurred five minutes after Highlands relieved him. Highlands maintained that he saw the Scows and reported to the bridge right after he took over. The discrepancy indicates that either Highlands or Loftesnes had five minutes before the collision to report what he saw and did not, either because no one was there, or because whoever was there was not paying much attention. In addition, Loftesnes had noticed the lights five minutes before Highlands relieved him but failed to inform him of their presence. It is difficult to avoid the inference that the lookout, whoever he was, was either absent or inadequate, and that, should the latter be the case, 'an inefficient lookout is no better than no lookout.' See The Socony No. 20, 2 Cir., 162 F.2d 199, 200. It should be pointed out, in addition, that the Pilot stated that had the lookout reported the lights sooner, he might have slowed the ship to examine the situation.
In addition, the Captain and Pilot were negligent, I feel, in proceeding at a good rate even though they had noticed and commented upon the searchlight flashing back and forth. See the Koyei Maru, 9 Cir., 96 F.2d 652, 655; The Bright, D.C., 38 F.Supp. 574, 580. The lights from the Navy Yard admittedly interfered with visibility and this alone would suggest caution. See The Paris, 2 Cir., 37 F.2d 734, 740. It is, of course, impossible to tell with certainty at just what spot slackened speed or a change in course would no longer have prevented a collision, but I feel that the negligence of the men on the bridge and of the lookout was legally causative; i.e., that The Norwich Victory should have slackened speed or changed course at a time when it was still possible to avoid the accident. The Government argues that The Norwich Victory could not have stopped in less than 2,400 feet and that an examination of Admiral Knight's Modern Seamanship, 10th Ed., page 503, indicates that a vessel 420 feet long will advance 400 yards or 1200 feet, before her stern leaves the course upon which she was proceeding. From this it concludes that The Norwich Victory (length 456 feet) could not possibly have avoided the Scows from the time they became visible (150 feet away). This, of course, begs two questions; whether the Scows would have become visible sooner had the lookout been more attentive, and whether, upon the basis of the lights alone, The Norwich Victory should have stopped, slackened its speed, or changed its course. Accepting the Government's figures and its contention that the ship was not going at over 12 knots, her speed roughly was over 1200 feet a minute. This meant that she could stop in about two minutes and, if she changed course, that her stern would leave the course in a little over a minute. The Third Mate saw the lights flashing for about ten minutes before the collision but failed to report this fact to the bridge or to Highlands, who relieved him. Under these facts, I feel that The Norwich Victory was negligent and that her negligence contributed to the collision.
Negligence of Tugs
The Government also asserts that the tugs James N. Knipe, Arthur N. Herron, and Schermerhorn were negligent, The Knipe and The Herron for improper mooring and The Schermerhorn and The Herron for failing to stand by the Scows and attach lights to them after discovering that they were grounded. However, at oral argument, the liability of The Schermerhorn, which had nothing to do with the mooring of the tugs, for failing to stand by when it found them aground was not pressed, nor do I think it should be. I feel that if any duty existed upon The Schermerhorn at all it was to advise the owners of the Scows of the situation, which it did.
The Herron and The Knipe, of course, are in a different category. They moored the Scows in the morning, and three or four hours later the Scows were discovered adrift and aground. The law is clear that a tug is bound to properly moor and make fast the scows or barges it delivers, a fortiori when the scows are unmanned. Cf. The Anna O'Boyle, 2 Cir., 122 F.2d 286; The May McGuirl, 2 Cir., 256 F. 20. Moreover, under the circumstances of the case, where only a short time elapsed between the mooring and the drifting, and there were no unusual weather conditions, I feel that the drifting presumptively establishes neglect on the part of the tugs. See Pennsylvania R. Co. v. James McWilliams Towing Line, 2 Cir., 277 F. 798, 799; McWilliams Bros. v. Davis, 2 Cir., 285 F. 312, 315; The Louisiana, 70 U.S. 164, 174, 13 L. Ed. 85. Moreover, the Dredging Company has not produced any evidence by the important witnesses who might overcome this presumption. See The Cananova, D.C., 297 F. 658, 662; The New York, 175 U.S. 187, 204, 20 S. Ct. 67, 44 L. Ed. 126.
Division of Damages
I have found that The Norwich Victory, the three Scows and the two tugs were all negligent and that the negligence of each vessel was a cause of the damages suffered in the collision. Since there are cross libels in this case, it is a proper situation to apply the division of damages rule used in American admiralty cases. Cf. The North Star, 106 U.S. 17, 1 S. Ct. 41, 27 L. Ed. 91. However, the Government argues that under the authority of The Eugene F. Moran, 212 U.S. 466, 29 S. Ct. 339, 53 L. Ed. 600, the equal division rule is to be applied on these facts to each negligent vessel; i.e., that each of the six negligent vessels should bear its equal share of in rem liability. I feel that the rule of law the Government urges is correct, that is, that equal division here does not mean equal division between the owners, but between the vessels whose negligence caused the collision, and that the fact that the Dredging Company as owner of five of the vessels might have to bear 5/6ths of the damages is irrelevant. Cf. The Kookaburra, 2 Cir., 69 F.2d 536; The Dunmore, D.C., 61 F.Supp. 258. However, what gives me pause is the express observation in the Moran decision that even though two scows were guilty of failing to show a light, both need not be liable for damages from a collision with one of them. The Court said, 212 U.S.at page 476, 29 S. Ct.at page 341, 53 L. Ed. 600, 'The only fault on the par of 18 D * * * is the absence of a light; and it said that, 'therefore' it was party to a common fault. We doubt whether the conclusion follows from the premises. When a duty is imposed for the purpose of preventing a certain consequence, a breach of it that does not lead to that consequence does not make a defendant liable for the tort of a third person merely because the observance of the duty might have prevented that tort. * * * The question arises, therefore, whether the duty to give warning by a light was imposed upon 18 D for any other purpose than to prevent collision with itself. If not, then, as the boats are dealt with as individuals, and not as parts of a single whole, we do not see how the absence of a light on 18 D can be said to have contributed to the loss.' However, I feel that the duty imposed upon each of these Scows was, under the circumstances of the instant case, to protect all three from collision with any one of them. Cf. The Lyndhurst, D.C., 92 F. 681, 682; The Eugene F. Moran, 2 Cir., 170 F. 928. Accordingly, therefore, since American Dredging Company is the owner of five of these vessels, it will have to bear 5/6ths of the joint damages.
Conclusions of Law
1. The Norwich Victory was guilty of a statutory violation in not having a proper lookout, and was negligent in her seamanship, as well. This negligence was a contributive cause of the collision.
2. The three Scows were guilty of statutory violations in being adrift in the middle of a busy channel, unattended, and inadequately lit. This negligence was a contributive cause of the collision.
3. The tug James N. Knipe negligently moored Scow No. 116 and this negligence was a contributive cause of the collision.
4. The tug Arthur N. Herron negligently moored Scows No. 120 and 122 and this negligence was a contributive cause of the collision.
5. The American Dredging Company as owner of the three Scows and two tugs, will bear 5/6ths of the joint damages. Counsel may submit to the Court a decree in conformity with this opinion.
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