The opinion of the court was delivered by: HARTSHORNE
In this admiralty case involving a collision between the Tanker Tycol and the Barge Carryall, there is a single crucial issue. It will, therefore, aid, if the Court's opinion thereon is briefly stated, previous to the full findings of fact and conclusions of law. This sole issue is whether the Tug Syosset should be held in part responsible for the collision, or whether the fault therefor should be imposed entirely upon the Tanker Tycol, whose counsel, in his brief, 'finally' accepts the conclusion that she was at fault in part.
The Tycol was proceeding from Port Newark to Bayonne in the Newark Bay Channel in ballast. The sludge Barge Carryall, also in ballast, was being towed by the Syosset, from the Kill Van Kull up the Newark Bay Channel to her dock in Port Newark, but stern first and lashed to the Syosset's port side.
The Tycol was admittedly on the wrong side of the channel, in violation of Article XXV of the Inland Rules of Navigation, 33 U.S.C. § 210, 33 U.S.C.A. § 210, when the collision occurred. Not only so, but all the witnesses from the Syosset and Carryall agree that the Tycol has previously been steering a zigzag course. As to the truth of this, there is other corroborative evidence, let alone the impression of credibility left upon the Court by the Captain of the Syosset. This zigzag course, and perhaps, in addition, the Tycol's failure to respond to the first blast from the Syosset's whistle, made the Captain of the Syosset conclude that 'Something was wrong aboard there', on the Tycol.
Despite this conclusion on the Part of the Captain of the Syosset that something was wrong, either mechanical or human, with the handling of the Tycol, the Captain of the Syosset, instead of blowing the danger signal and stopping his engines, immediately 'hooked her up' to full speed ahead the minute the next 'zig' of the Tycol showed her red light, indicating a passing port-to-port. port-to-port. Then when shortly thereafter, the Tycol took another 'zag' across the Syosset's bows, showing her green light, and blew two whistles, it was too late for the Syosset to avoid the collision, do what she then could.
In short, the Syosset realized in advance that it was faced with real danger from the Tycol, and despite that danger, the Syosset, instead of giving the danger signal and taking precautions, did nothing of the kind, but proceeded dead ahead, into the collision. Thus, both are at fault: the Tycol for creating the danger, as she admits, the Syosset for not avoiding the danger after due warning. To this situation aptly applies the language of the Courts in the following cases:
'Nothing is better settled than that, if a steamer be approaching another vessel * * * whose position or movements are uncertain, she is bound to stop until her course be ascertained with certainty. * * * The lesson that steam vessels must stop their engines in the presence of danger, or even of anticipated danger, is a hard one to learn, but the failure to do so has been the cause of the condemnation of so many vessels that it would seem that these repeated admonitions must ultimately have some effect. * * *' The New York, 1899, 175 U.S. 187, 201, 207, 20 S. Ct. 67, 72, 44 L. Ed. 126. Accord: Postal S.S. Corp. v. El Esleo, 1940, 308 U.S. 378, 60 S. Ct. 332, 84 L. Ed. 335.
We turn to the Findings of Fact and Conclusions of Law.
1. On June 23rd, 1950, at about 3:00 A.M., the M/T Tycol, 243 feet long, 37 feet beam, 14 feet deep, was in collision in Newark Bay Channel with the Barge Carryall, 250 feet long, 44 feet beam, 22 feet deep, which was being towed stern first on the port side of the Tug Syosset, 112 feet long, 24 1/2 feet beam, 12 feet deep.
2. The Tycol was owned and operated by Tide Water Associated Oil Company, and the Tug Syosset and Barge Carryall were owned and operated by Woodford J. Townsend.
3. At the time of the collision the weather was clear, the tide flooding and there was a light breeze from the southwest.
4. Both the Tycol and the Carryall sustained substantial damage.
5. The collision occurred to the northward of Nun Buoy 16, east of the center of the channel and close to the easterly boundary of the channel.
6. The Tycol was bound from Port Newark to Bayonne and would have been required to navigate ...