168 F.2d 219 | 2d Cir. | 1948
This litigation resulted from a collision between the libellant’s scow in tow of the Army tug ST 56 owned by the United States, and a flat barge in tow of the tug Martin Kehoe. The collision occurred a short distance off the end of Pier 16, Staten Island, about 1 A.M., January 10, 1945. The trial judge held both tugs at fault and divided between them the libellant’s damages. Upon this appeal each tug owner claims that the other should be held solely responsible.
The district judge wrote an opinion
If we accept the trial court’s findings of fact the faults of the Army tug are too clear for debate. Both the makeup of her tow and her navigation were inexcusable. She had the scow alongside without lights on it, and so arranged as to obscure her own red light and her navigator’s vision to port. She allowed her tow to drift down in the ebb tide until she drove the Kehoe’s barge almost upon the vessels at the end of Pier 16. Instead of regarding the court’s findings as clearly erroneous, we think them clearly correct. Therefore the liability of the United States, as owner of the Army tug needs no further discussion.
The only fault found against the Kehoe was that she had no lookout. We have held that this is like a statutory fault and imposes upon the guilty vessel the burden of showing beyond a reasonable doubt that the fault could not have contributed to the collision. The Madison, 2 Cir., 250 F. 850, 852; Martin Marine Transp. Co. v. Jakobson & Peterson, 2 Cir., 135 F.2d 325, 328; Gulf Oil Corp. v. The Socony No. 16, 2 Cir., 162 F.2d 869, 870. In the present case we think that burden was discharged. The Kehoe’s captain saw the white light of the Army tug as soon as the Kehoe cleared the barges on the end of Pier 16. Since the pilot house is only 12 feet back from the stem of the tug, a lookout posted on the Kehoe’s deck could
Counsel for the United States also urges that the Kehoe did not blow a proper slip whistle, since her captain admitted on cross-examination that he had stopped the whistle before he cleared the barges lying at the end of Pier 16. See The Supply No. 4, 2 Cir., 109 F.2d 101, 103. The trial judge found that a slip whistle was blown and made no finding that it was an inadequate whistle. Even if a fault had been found in this respect we do not see how it could have contributed to the collision. The Army tug had warning enough of the presence of the Kehoe; the collision occurred because she permitted the tide to sweep her scow down upon the forward corner of the Kehoe’s tow although the Kehoe had backed away as far as she safely could without danger of colliding with the boats on the end of Pier 16. Under these circumstances the major-minor fault rule should be applied in favor of the Kehoe’s slip whistle. The Victory & The Plymothian, 168 U.S. 410, 423, 18 S. Ct. 149, 42 L.Ed. 519; Harbor Oil Transport Co. v. The Plattsburgh Socony, 2 Cir., 151 F.2d 708, 710.
The decree is modified to hold the United States solely liable for the libellant’s damages.
The owner of the tug Martin Kehoe is the only appellant; but the United States as respondent-appellee has filed cross assignments of error.
The Grace R, D.C., E.D.N.Y., 66 F. Supp. 376.