degree range. In the case before me the issue of liability appears to be dependent upon the respective opportunities of the vessel and the bridge to avoid the collision which occurred. If, as the respondents contend, the bridge tender gave the signal warning to stand off because of the possibility of power failure, and if the vessel had heeded that warning, then when the bridge tender had succeeded in fully opening the draw he might be expected to give the prescribed 'come-on' signal of three blasts, which would have permitted the vessel to pass through unharmed. On the other hand, the bridge commenced to open immediately following the vessel's signal, and continued to open, despite the two-blast signal or signals which the respondents claim were given. When the vessel was but a ship's length from the draw the span was observed to slow or stop, and although her engines were then driven full astern, it was too late for the vessel to avoid the contact with the bridge girder. See Clement v. Metropolitan Westside Elevated Railway Co., 7 Cir., 1903, 123 F. 271, 273; The Kard, D.C.1930, 38 F.2d 844. In Connors Marine Co. v. New York & Long Branch R. Co., D.C.N.J.1949, 87 F.Supp. 132, no answer was given by the bridge tender to either of two signals from the vessel, whereupon her engines were slowed and then stopped, but due to wind and tide, she drifted out of shape for passage through the draw. The drawspan was ultimately opened, but in attempting to pass through the draw, the barge which was being towed by the vessel collided with the bridge abutment and was damaged. The Court there concluded that both bridge and tug were at fault, entitling the tug owner to contribution from the bridge owner. The failure of the bridge tender to give an answering signal invoked the Court's application of The Pennsylvania rule, supra, 86 U.S. 125, 22 L. Ed. 148.
In our case, the bridge draw was actually being operated by the respondent Peschken. While he did not personally see the approach of the Lembulus as she proceeded downstream, it was reported to him by the respondent Hines, who, together with the respondent Bents, heard the vessel's three-blast signal of her intention to pass through the draw. This signal was also heard by Peschken when the vessel was over a nautical mile distant from the bridge. Peschken apparently started to open the draw promptly after receiving notification of the vessel's approach. However, when the draw section stopped in its ascent, or slowed to a point at which it appeared to have stopped, the bow of the vessel was then approximately her length away from the bridge abutment, and shaped for passing through the draw, at which time it first became apparent to her Captain that the topmasts would not clear. Whether, therefore, the bridge drawspan had actually stopped, or whether it had but slowed to an almost imperceptible speed, it was then too late for the vessel to avoid the collision, despite stopping her engines and then reversing their revolutions.
Respondents argue that the vessel contributed in the causation of her own damage by reason of the speed at which she approached the draw, in view of the conditions of weather, wind and tide prevailing at the time, and of the lightness of her lading. I have herein discussed at length the progress of the vessel from the Kopper's Wharf to the point of the collision. This consumed some ten minutes of time. The bridge tender testified to his awareness that the vessel was expected to come downstream by reason of the passage upstream earlier of the tugs to assist her. The bridge crew testified that they saw and heard the vessel approaching before she passed the Skyway bridge. If they were unable to accomplish the opening of the draw within that period of time, they were under the obligation of giving warning to the vessel in accordance with the governing regulations. Mr. Iannaccone testified that operation on the 'third power point' required four minutes to fully open the draw, and that ten minutes would be ample time for lifting the span to its maximum height using either the normal or the emergency controls for the purpose. It is uncontradicted that the vessel passed under the City bridge at 1546 hours and that her foretopmasts struck the Lincoln Highway drawbridge span at 1557 hours. It is also uncontradicted that the distance between these two bridges is 1.1 nautical miles. Based on the vessel's bridge log, the master testified that after passing under the City bridge at 1546 hours the vessel's speed was dead slow ahead, and that at 1547 1/2 hours she was given full ahead, harbor speed, or 9 knots. The witness further testified that it would take about ten minutes to build up to the 9 knots speed from a half ahead under the conditions existing at the time. At 1553 1/2 hours, six minutes after her engines had been placed on harbor full ahead, their speed was reduced to slow ahead and dead slow ahead by immediately succeeding signals. The evidence is barren of any justification for assumption that the vessel had any reason to assume that the speed at which she was approaching the draw could involve any risk of the developments which occurred. I find that by commencing the raising of the drawspan immediately following his 'warning' signal, the physical raising of the bridge countered the effect of such warning, and served as an invitation to the vessel to proceed. See Clement and The Kard, supra. I can, therefore, find no basis for concluding that the vessel contributed in bringing about the collision, and am unable to relieve the drawbridge operator of responsibility for the occurrence.
There remains the question of the liability of the respondents Hines and Bents to the libelant. While it is true that these two respondents were, with Peschken, employees, and therefore agents or servants of the bridge owner, I can find in the evidence no basis for concluding that any act or omission on the part of, or chargeable to Hines or Bents contributed in the causation of the collision. Each of the three respondents had certain functions to perform in the opening of the span, and the responsibility for the giving of signals to approaching vessels and for operating the lift mechanism of the drawspan appears to have rested exclusively upon Peschken. Therefore, there is but one claim in this case, namely, that of the vessel against Peschken. No liability has been proven against Hines or Bents.
The negligence which I find solely responsible for the collision was that of Charles Peschken alone. A decree may be entered in favor of the libelant and against the respondent Charles Peschken only, for such damages as libelant may prove, in accordance with the applicable Admiralty practice of this Court, and for its costs herein. Judgment may be entered for the respondents Canolius v. Hines and Fred W. Bents against the libelant for their costs.
This opinion shall constitute my findings of fact and conclusions of law. Let judgments be entered accordingly.
© 1992-2004 VersusLaw Inc.