Immediately after the collision, the Engineer of the Seneca put the port engine of the Seneca into operation. This was done to power the pumps which he thought might be needed for fire fighting. He recorded this time as '11:00 P.M.' but he relied on his own wrist watch, which was apt to be inaccurate, in making the engine log entry.
17. It takes longer to break a sheer of a loaded barge being towed on a long hawser than it does to break a sheer of such a barge being towed on a shorter hawser.
18. It was not dangerous or inadvisable to have a hawser of approximately 600 feet under the circumstances existing prior to and at the time of the collision.
19. The Seneca Sun failed to sound any 'danger signal' immediately prior to the collision because of a reasonable probability that such a signal would result in injury to the personnel aboard the 'Seneca Sun' and that such signal would have, in all probability, no effect on avoiding a collision.
Discussion of the Law
It is well settled that a ship which has failed to observe a rule of navigation 'shall be deemed to be in fault, unless it is shown to the satisfaction of the court that the circumstances of the case make a departure from the regulation necessary.' See The Pennsylvania, 1873, 19 Wall 125, 135, 86 U.S. 125, 135, 22 L. Ed. 148. In this case, the tug failed to observe these two rules of navigation and the observance of these rules would have, in all probability, made the collision impossible:
A. The tug did not keep to that side of the channel under the Bay Bridge which lay on its starboard side.
The collision occurred within 50 feet of the eastern line-up buoy (Red 2W) for this channel and this buoy was about one-half mile south of the southeast corner of the channel, which corner was marked by Buoy Red 4W (see Finding 6). If the tug had set its south south west course from the southwestern corner of the channel, the barge would never have come within 100 feet of this Red 2W Buoy. See Commonwealth & Transportation Line, Ltd. v. Seaboard Transportation Co., D.C.D.Mass.1919, 258 F. 707, 709; The Alfred W. Booth, D.C.S.D.N.Y.1903, 127 F. 453, 455; Det Forenede Dampskibs-Selskab A/S v. The Excalibur, D.C.E.D.N.Y.1952, 112 F.Supp. 205, 207-208.
B. The length of the hawser used at the time of the collision was greater than that permitted by the rules governing the length of a hawser under such circumstances.
As stated in Finding 5, the effective hawser length was approximately 1100 feet and Finding 18 reads 'It was not dangerous or inadvisable to have a hawser of approximately 600 feet under the circumstances existing prior to and at the time of the collision.' The only reasons given by Captain Robertson for using a hawser of more than 75 fathoms (450 feet) were (a) that he would make better time which would please his employer,
(b) the barge would follow better and (c) there was some risk to a short hawser line from swells created by passing large ships in the bay. This last reason does not make advisable the use of a long hawser through the narrow channel under the Bay Bridge at this time, when there was no large ship in sight and his visibility down the bay extended for many miles. More persuasive testimony was given by Captain Pedersen and the independent expert, Captain Hearn, that the use of a 600-foot hawser would have enabled the barge to follow just as well and that a hawser of that length or of a shorter length would have been definitely preferable under the circumstances.
The presence of the barge on the wrong side of the channel could have been caused by a sheer resulting from the change of course to south, south west from the approximately south west course, which would have been the approximate course down the center of, and parallel to, the channel under the Bay Bridge, or from the use of a hawser and bridle having a length of about 1100 feet.
The inadvisably long hawser certainly contributed to the extent of this sheer or movement of the barge to the east side of the channel.
There is no convincing evidence that the Seneca Sun was responsible for any fault which caused or contributed to the collision. The rule is clear that there shall be no division of damages if the reasonable probabilities disclose that any fault for which the Seneca Sun may have been responsible did not cause or contribute to the accident. See Seaboard Tug & Barge, Inc., v. Rederi AB/DISA, 1 Cir., 1954, 213 F.2d 772, 775;
Koch-Ellis Marine Contractors, Inc., v. Chemical Barge Lines, Inc., 5 Cir., 1955, 224 F.2d 115, 116.
Libellant claims that the respondent-cross libellant was 'guilty of faulty navigation.' The contention that the Seneca Sun should have turned to the starboard prior to the time its master gave the hard right rudder order is not supported by the evidence. See Findings 12 and 13. The tanker was steering a course to bring it within 30 feet of the flashing red buoys and it had no duty to anticipate that the barge would be that far over on its side of the channel.
There is no reason to suppose that reversing engines by the tanker (which would have taken 3 or 4 minutes, see Finding 1-A) would have avoided, or diminished the severity of, the collision to the extent that the hard right and then hard left rudder did.
As stated in Bouchard Transportation Co. v. The Providence, 2 Cir., 1955, 223 F.2d 404, 405, '* * * we think there was no basis for a finding of fault for failure to reverse sooner. Indeed, it is seldom that a fault of this kind can justly be attributed to an otherwise unoffending ship when the other vessel is clearly at fault.'
The failure of the Seneca Sun to sound a danger signal was justified under the circumstances and there is no reason to believe that such a signal would have contributed to avoiding, or diminishing the severity of, the collision (see Finding 19
). See Mathieson Chemical Corp. v. The Sadie (Union Victory-Tug Sadie and Tow), D.C.Md.1950, 95 F.Supp. 221, 1951 A.M.C. 270, 278.
The trial judge believes that the presence of the Captain and the helmsman of the tanker on the wings and in the pilot house constituted a proper lookout, but even if they did not, the Captain had the tug under observation at all times after the tanker passed the tug (Finding 13) so that the failure to maintain such a lookout did not contribute to the collision. It is well settled that even the absence of a lookout is not material, where the presence of one would not have availed to prevent the collision. See Rice v. United States, 2 Cir., 1948, 168 F.2d 219, 220 and 221 and cases there cited.
Furthermore, the record contains no convincing evidence that libellant maintained an adequate lookout
in view of the requirement that the tug keep a lookout aft, particularly since there was no lookout on the barge. See The Harold, D.C.S.D.N.Y.1898, 84 F. 698; The Samuel Dillaway, 1 Cir., 1899, 98 F. 138; John Connelly, 1930 A.M.C. 390 (U.S.D.C., E.D.N.Y.1930); The Colonel John F. Gaynor, supra, at footnote 2.
For the foregoing reasons, this is a case where the responsibility should rest on the libellant due to the clear nature of its fault. See Theothilatos v. Martin Marine Transportation Company, 4 Cir., 1942, 127 F.2d 1016; Compania De Maderas, etc., v. The Queenston Heights, 5 Cir., 1955, 220 F.2d 120, 123.
Conclusions of Law
1. The court has jurisdiction of the parties to this proceeding and the subject matter.
2. The striking of the Seneca Sun by the Barge Interstate No. 12 at about 11:05 P.M. on May 18, 1952, near the eastern edge of the upbound side of the narrow channel approach to the Chesapeake Bay Bridge was the result of the faulty navigation of the Tugboat 'Elizabeth S. Hooper' and the Barge Interstate No. 12 in the following respects:
(a) The Hooper and its tow violated the Narrow Channel Rule, 33 U.S.C.A. § 210, Article 25.
(b) The Hooper failed to maintain a proper lookout.
(c) The Interstate No. 12 failed to maintain a proper lookout.
(d) The Hooper was towing the Interstate No. 12 on a hawser which was too long under the circumstances, in violation of the applicable Hawser Rule (33 U.S.C.A. § 152; Rules Sections 304.1, 304.2, 304.3(b) and (f)).
(e) The downbound Hooper negligently permitted its tow to collide with the upbound Seneca Sun.
3. The Seneca Sun may have been technically at fault in not sounding a danger signal but its fault in this regard was minor, excusable under the circumstances, and, in any event, was not shown to have contributed to the collision. In the face of the gross negligence of the Hooper and its tow, which was wholly sufficient in itself to account for the collision, any doubt should be resolved in favor of the Seneca Sun.
4. A decree, in form to be approved by the Court, will be entered in favor of cross-libellant, Sun Oil Company, owner of the M/V Seneca Sun against cross-respondents, Tug Elizabeth S. Hooper and Barge Interstate No. 12, their tackle, equipment, etc., and their owners, Lewis F. Boyer and Thornton D. Hooper. The Libel of Lewis F. Boyer and Thornton D. Hooper against the M/V Seneca Sun, her tackle, equipment, etc., and Sun Oil Company, is dismissed. Costs are awarded to respondents and cross-libellants.
The requests for Findings of Fact and Conclusions of Law of the libellant are denied insofar as they are inconsistent with the foregoing.