I have no hesitancy in finding that the Tug Cheltenham committed a gross navigational fault in attempting to effect a crossing of the channel under the circumstances then existing without receiving from the upcoming vessel an assent to its proposal to do so. The tug was also at fault for failing to take measures to maneuver to keep out of the way of the privileged vessel after receiving a danger signal in answer to its two-blast proposal to cross.
The only area of doubt concerns the privileges and duties of those in charge of the Blommersdyk under the circumstances in which they found themselves by reason of the attempt of the Cheltenham to cross its bow. Captain Hertogs, master of the Blommersdyk, testified that under the rules of navigation, it was not only the privilege of the Blommersdyk to maintain course and speed under the circumstances but that it was under a positive duty to do so. This contention has some support in the rule announced in The Delaware, 1896, 161 U.S. 459, 16 S. Ct. 516, 40 L. Ed. 771, and most recently followed in Compania de Navegacion Cebaco, S.A. v. The Steel Flyer, 4 Cir., 1952, 200 F.2d 643. On the other hand, the libellant argues that there is no right of way into a collision, that there was duty on the part of the Blommersdyk to stop if the signal of the tug was unacceptable, and that if that minimal duty had been performed, the collision could not have happened. In asserting that position, the libellant relies on the holding in postal S.S. Corporation v. Southern Pacific Co., 2 Cir., 1940, 112 F.2d 297.
This was a crossing situation and the Blommersdyk was the privileged vessel and under a duty to maintain her course and speed, Articles 19-23, Inland Rules, 33 U.S.C.A. § 204 et seq. But the privileged vessel had no absolute right to keep her course and speed regardless of the danger involved in that action. Rule VII of the Pilot Rules promulgated by Supervising Inspectors, now at 33 C.F.R. § 80.7, recognized the privilege to maintain course and speed, but provided for a departure from the statutory rule in the second paragraph of Pilot Rule VII in the following language:
'If from any cause the conditions covered by this situation are such as to prevent immediate compliance with each other's signals, the misunderstanding or objection shall be at once made apparent by blowing the danger signal, and both steam vessel shall be stopped and backed, if necessary, until signals for passing with safety are made and understood.'
The Rules of the Supervising Inspectors were held by the Supreme Court 'not essentially inconsistent with the statute and are valid, both the statutory provisions and the Inspectors' Rules being designed to promote safety in situations fraught with danger.' Postal S. S. Corporation v. Southern Pacific Co., 1939, 308 U.S. 378, 60 S. Ct. 332, 337, 84 L. Ed. 335.
Under the provisions of Pilot Rule VII, therefore, the right of the Blommersdyk to maintain her privilege ended when there was danger of collision, and she, as well as the tug, was under a duty to stop and back if necessary until signals for passing with safety were made and understood. At what point was there danger of collision? It appears clear to me that that point was reached not later than when the Blommersdyk sounded its first danger signal, at which time more than 2000 feet separated the two vessels. From the courses and speeds of the vessels it is clear that at that time there was danger of collision, and the privilege of the Blommersdyk to maintain course and speed ended. Had she than performed her duty to stop and back, if necessary, this collision could not have taken place. Her failure to stop and back at that point was a violation of Rule VII and constituted negligence which contributed to the happening of the collision and the damages must therefore be divided. Postal S. S. Corporation v. Southern Pacific Co., 2 Cir., 1940, 112 F.2d 297.
Conclusions of Law
1. The Court has jurisdiction of the parties and the subject matter of this suit.
2. The narrow channel rule applies to the Delaware River in the area just north of the Delaware River bridge.
3. From the time that the first signal was given by the Tug Cheltenham a crossing situation existed.
4. The collision was caused by the following faults on the part of the Tug Cheltenham:
(a) Attempting to cross the Blommersdyk's bow when the speeds of the vessels and the distance separating them made such a maneuver highly dangerous.
(b) Persisting in continuing its speed and course after having received a belated danger signal from the Blommersdyk.
5. The Steamship Blommersdyk contributed to the collision by committing the following faults:
(a) Delaying a signal response to the proposal of the Tug Cheltenham to cross its bow at a time when the vessels were some 3500 feet apart.
(b) Altering course slightly to starboard after its first danger signal.
(c) Continuing its course and speed for approximately 2 1/2 minutes after giving a danger signal in response to the declaration of the Tug Cheltenham to cross her bow.
(d) In failing to stop and back, if necessary, when danger of collision was imminent and until signals for passing with safety were made and understood.
6. The damages of $ 10,275.70 will be divided between libellant and respondent.
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