Wall. 125, at page 136, 86 U.S. 125, at page 136, 22 L. Ed. 148, to the facts in the instant suits, respondents claim that the Ruth was at fault and that there is a presumption that this fault was at least a contributory cause of the collision.
It is true that when the Ruth and her tow came upon the scene they were near mid-channel. An attempt to get nearer the eastern edge of the channel was made by the Ruth but she changed her mind and veered back to her left when she observed the Doncaster on the eastern side of the channel. The Ruth thought it prudent to stay near the center of the channel for three reasons: First, she did not desire to force the Doncaster to steer over into the western side of the channel in violation of the Passing Rule,
for they were so far on the starboard of each other as not to be considered as meeting head and head. Second, she desired to give the large vessels, which were already on that side, as wide a berth as possible to pass each other in the eastern portion of the channel. And third, she did not want to be in the position of having two large vessels passing in different directions on opposite sides of her which would have subjected her to the wash of two vessels and make management of her cumbersome tow more difficult.
The narrow channel rule is not an absolute one. By its very terms the rule is to be followed only 'when it is safe and practicable' to do so. In our opinion it was safer and more practicable for the Ruth to stay near mid-channel, and under the circumstances she did not violate the narrow channel rule. The fact that she initiated the request for a starboard passing did not weaken her cause for staying where she was.
Of course it may be argued on the Doncaster's part that it would have been unwise to pass the Ruth in that fashion in view of the presence of the Mormacpenn in the eastern part of the channel. True, it is, distance and speed of vessels are difficult to estimate with accuracy on a dark night. However there was sufficient room for the two large vessels to pass each other in the eastern portion of the channel and the Ruth was in a better position than the Doncaster to know this. The Doncaster should have relied on the Ruth's judgment or have stopped in her course.
The Ruth, by proposing a starboard passing, was not compelling the Doncaster to take a course of action contrary to the inland rules, but was doing what Article 18 of those rules required. The situation was not one of the tug's making, but that of the Doncaster's in putting herself on the east side of the channel in a position that required the vessels to pass starboard to starboard. Apparently the pilot of the Doncaster believed that he was required to pass port to port under Article 18 of the inland rules. It was this belief together with his eagerness to get over to the western side of the channel where the Doncaster belonged that led to the collision.
It would seem that the real complaint of the respondents is that there was only a technical instead of a gross violation of the narrow channel rule. For if the Ruth and her tow had been further over in the western portion of the channel, the accident, in all probability, would not have occurred.
Conclusions of Law
1. This court has jurisdiction of the parties and the subject matter of these suits.
2. The stretch of the Delaware River Channel between Pier 98 South and Horseshoe Bend is a narrow channel. See The Trim, D.C., 30 F.Supp. 283.
3. When the Ruth gave the first signal, the vessels were not approaching each other head and head; their positions were such that a starboard to starboard passing was required. See Construction Aggregate's Co. v. Long Island R. Co., 2 Cir., 1939, 105 F.2d 1009, 1011.
4. The collision between the Doncaster and the Agram was caused by the negligence of the Concaster.
5. The Doncaster was negligent, in the following respects:
a. In changing course to starboard and endeavoring to cross the bow of the tug and tow and attempting to convert a starboard to starboard situation into a port to port passing without having come to a passing agreement with the Ruth;
b. In failing to slow down or come to a stop when an agreement for passing in safety was not obtained from the Ruth;
c. In continuing on her course with unreduced speed after danger became apparent; and
d. In failing to reverse her engines much sooner than she did.
6. Under the circumstances it was not safe and practicable for the Ruth to maneuver to the eastern side of the channel; she did not violate the narrow channel rule.
7. The Ruth was justified and exercised reasonable discretion in not attempting a port to port passage with the Doncaster.
8. Robert B. Wathen, as owner of the tug Ruth, is entitled to a decree of exoneration from liability for the damage sustained by the Agram.
9. Tug New York Company is entitled to a decree against the steamship Robin Doncaster and Seas Shipping Company, Inc., for collision damage sustained by the Agram.
Accordingly, the parties may submit appropriate decrees.