been indicated, relatively only a few feet, and continued on downstream at about that distance from the eastern edge of the channel because on the testimony of the libellant's own witness, the collision occurred only 200 feet east of the eastern edge of the channel. Since, during this time, the running lights of both vessels were visible, one to the other, and proceeding head-0n and with plenty of water outside the eastern edge of the channel for a port-to-port passing, the focal point for determination is whether or not a port-to-port passing was feasible by virtue of their positions in the channel and it is held here that it was.
Accordingly, it is unnecessary to pass on the testimony of Captain Insley, of the tug Rebecca, given before the Coast Guard in an investigation of the collision, who died before trial of the case, for while it has been found that the tug Rebecca and barge were outside nun buoy 2C, the position of the vessels and the depth of the water for more than 1,000 yards below nun buoy 2C are really determinate of the situation, it has been found that the Captain of the Concordia Sun blew one whistle first.
CONCLUSIONS OF LAW
1. The court has jurisdiction of the parties and of the subject matter.
2. The collision was wholly caused by the flagrant and inexcusable faults of the Rebecca.
3. The Libel in No. 373 of 1956 is dismissed and final decree may be entered against the libellants and in favor of the respondent, with costs to the respondent.
4. In No. 403 of 1956 a decree may be entered in favor of libellant against the respondents with costs to the libellant, with provision for referral of the action to a special commissioner for ascertainment of the damages sustained to Concordia Sun unless the parties shall agree thereof within thirty days.
A rehearing was allowed herein and the same points were advanced at the hearing as were pressed upon the court originally.
Counsel for libellant makes the point that the court was in error in its opinion in stating that libellant's witness, Lynch -- the only witness for the libellant who gave testimony as to distances, and to seeing the collision -- testified the collision took place 1000 feet from the New Jersey 'shore line'. It is obvious that 'shore line' is an error and should be 'channel line', and it is herewith corrected to read 'channel line'. In addition, the word 'steam' in the middle of page 8 of the opinion is corrected to read 'stem'.
In connection therewith, it was extremely difficult for the court to accept as being true some of the statements made by the witness, Lynch. For example, it would be unreasonable to believe his testimony that the tug blew two whistle blasts indicating a starboard passing, and again two whistles, with no answering signals, and then only after four to five blasts indicating danger, that the Concordia Sun blew a one-blast signal for a port-to-port passing. It is inconceivable that an experienced pilot, such as the one then aboard the Concordia Sun would, for the first time, blow one whistle indicating he wished a port-to-port passing, after the alleged successive group of blasts by the tug. This, likewise, in the face of Lynch's testimony that he could plainly see the red and green running lights of the Concordia Sun after the second two-blast signal from his tug. Further, he stated that the distance was 500 feet from the eastern channel line to shoal water on the New Jersey shore and, even upon prompting, repeated to his counsel that it was 500 feet. Later, after a recess, he changed his testimony as to the distance from the eastern channel line to the point of collision to 1000 feet. It is difficult to reconcile this statement with the one immediately before that it was only 500 feet from the eastern channel line to shoal water, since he testified the collission took place in shoal water.
The court prefers to believe the testimony of the witness, Lynch, given at the outset of his examination when he testified that the collision occurred 200 feet from the eastern channel line, which he said repeatedly, twice to his counsel and once to the court, with counsel at his elbow and with the maps of the channel, on which he made descriptive markings, in front of him.
The findings of fact and conclusions of law in the original opinion of this court, dated May 9, 1962, except for the minor errors herein corrected, are reaffirmed.