The Troy Socony , 21 F.2d 323 ( 1926 )

CAMPBELL, District Judge.

The two above-entitled actions were tried together, and, as the facts are the same in both actions, one opinion will suffice.

On the night of December 11, 1924, two of libelant’s dumpers, Nos. S-39 and S-34, about 110 to 115 feet long, 33 feet beam, with 14 feet sides, loaded with rock and mud, were taken in tow by the steam tug Emma Kate Ross at Elizabethport, N. J., bound for the dumping grounds. The tow was made up in the usual manner as a tandem tow, dumper No. S-39 being tbe hawser boat and No. S-34 being made fast immediately astern of No. S-39, there being but 2 or 3 feet between tbe two dumpers. Tbe length of tbe hawser from tbe fantail of tbe Ross to No. S-39 is disputed, but I find it was about 300 feet.

Tbe master in charge of tbe Ross was an experienced man, who bad been towing dumpers for years. Tbe Ross and tbe dumpers displayed tbe proper fights required by tbe regulations. Tbe tide was ebb and tbe tow. was making 3 to 3% miles. When passing Shooters Island the Ross saw a Philadelphia & Reading coal tow ahead and to tbe east of Bergen Light, consisting of 20 to 25 coal boats, in charge of a tug, with a helper tug. •

Tbe Ross was on tbe Staten Island side of tbe channel overtaking tbe coal tow. Tbe tug in charge of tbe tow blew one whistle, which tbe Ross answered with- one, and changed her course a little to starboard. Tbe coal tow then started to round to, and tbe Ross was as close to Staten Island as she could safely go. Tbe position of the Ross was disputed by tbe witnesses on behalf of tbe Troy Socony, but I accept tbe testimony of tbe master and deckhand of tbe Ross as true.

Tbe Troy Socony, a motor vessel 245 feet long and 40 feet beam, light, was on that night bound from Poughkeepsie to Bay Way, just below Elizabetbport. She bad come down on her starboard side of tbe Kills, tbe New Jersey side, and saw tbe coal tow. She slowed down to see what tbe coal tow would do. When she saw that tbe coal tow intended to round to at Taint'or’s Dock, she started to leave tbe New Jersey shore. Tbe coal tow was taking up more than one-half of tbe Kills.

On sharply conflicting testimony I find as follows:

When tbe Ross was up to tbe tier of tbe coal tow nearest to her, she saw tbe Troy Socony. This was two or three minutes after tbe Ross bad given tbe signal to tbe coal tow. Tbe Troy, Socony was then showing her headlight and green light.

• When tbe Ross was up to tbe second or third tier of tbe coal tow, tbe Troy Socony gave a one-whistle signal which tbe Ross answered with a one-whistle signal. Tbe Ross was then close to tbe Staten Island side, with her tow straight behind, and could not put her helm hard-aport as reported, but ported her helm a little, and could not do more. She then saw both the red and green lights of tbe Troy Socony.

Tbe Troy Socony passed close to tbe Ross, and when she bad partly passed tbe Ross she went to port and came into contact with tbe bow of tbe No. S-39, a little to port of tbe center, causing her to turn to port and to sink about 100 feet off Staten Island, and tbe No. S-34 to break away, and both boats to suffer tbe damages of which complaint is made.

Tbe Troy Socony attempts to account for her coming into contact with tbe No. S-39 by charging tbe Ross with going to port as the Troy Socony passed her, causing her cable to strike tbe Troy So cony’s port stern, rendering her unmanageable, and that the bawser of tbe Ross went under tbe Troy So-cony. But this I reject, both because it seems to be impossible to have happened, judged from tbe other circumstances, is denied by tbe master of tbe Ross, and was not referred to in the report of tbe master of tbe Troy Socony to tbe local inspectors.

Tbe master of tbe Ross and her deckhand seek to account for what happened by claiming that tbe Troy Socony struck -the towing bawser of tbe Ross and slid down on tbe No. S-39. While tbe Troy Socony may have struck tbe bawser of tbe Ross, of which tbe master made no mention in bis report to tbe local inspectors, it does not seem to me, in view of tbe testimony of Capt. Stouten, of tbe W. G. Towns, tbe starboard tail end boat of tbe coal tow, that tbe Troy Socony slid down tbe cable of tbe Ross, but that she went over and down by tbe Towns so close that she threw herself -over sharply to port, and in so doing came into contact with tbe bow of tbe No. S-39.

Tbe master of tbe Troy Socony knew that tbe Ross bad boats in tow, and was not surprised when be found that they were mud dumpers. I am convinced that there was sufficient clear water between the tow of tbe Ross and tbe coal tow for tbe Troy Socony to have passed safely; but, when her master allowed her to get as close as she came to tbe Towns, be caused tbe Troy Socony to sheer sharply to port and to come into contact with tbe No. S-39.

Tbe boats came into contact at about 9:35‘ to 9:40 o’clock pi m., and tbe Troy So-cony was due at Bay Way between 10 and 10:30 o’clock, and was making some speed. Both the Ross and thé Troy Socony maintained lookouts, tbe deckhands so acting on each vessel.

Tbe Troy Socony was solely to blame.

A decree may be entered in tbe first above-entitled action in favor of tbe libelant, P. Sanford Ross, Inc., against tbe Troy So-cony, with costs and tho usual order of reference, and in the second above-entitled action in favor of the respondent, P. Sanford Ross, Inc., claimant of the Emma Kate Ross, against the libelant Standard Transportation Company, dismissing the libel, with costs.