
    THE POLING BROS. NO. 14. CHESTER A. POLING, Inc., v. UNITED STATES. THE A. O. G. 34.
    District Court, S. D. New York.
    June 20, 1947.
    Alexander & Ash, of New York City (Edward Ash and Lawrence S. Collins, both of. New York City, of counsel),'for owner of the Poling Bros. No. 14.
    John F. X. McGohey, U. S. Atty., of New York City (Max Taylor and Gordon L. Becker, both of New York City, of counsel), for respondent and cross-libel-ant.
   COXE, District Judge.

These cross suits grow out of a collision between the motor tanker “Poling Bros. No. 14” and the U. S. Navy tanker “Oconee,” also known as “The A.O.G. 34,” in the westerly channel of the East Ri-ver between the Manhattan shore and Welfare (Blackwells) Island a short distance off the foot of 79th Street, Manhattan, at about 2:00 P.M. on January 19, 1945, In the collision the “Poling Bros. No. 14” sustained considerable damage on her starboard side about amidships, and the “Oconee” was slightly damaged on her port bow.

The weather at the time of the collision was clear, the visibility was good, and there was a flood tide running-with a strength of about two and one-half knots. According to the chart, the westerly channel of the East River in the area of the collision is approximately 600 feet wide, and the distance from shore to shore about 700 feet.

The “Poling Bros. No. 14” is a Diesel engine, single screw tanker, 122 feet long, about 28 feet beam, and 295 gross tonnage. She was proceeding from West- New Brighton, Staten Island, fully loaded, up the East River bound for Great Neck, Long Island.

The “Oconee” is a Diesel engine, single screw auxiliary oil and gas tanker,- 220 feet long, 32 feet beam, and has a rated capacity of 450,000 gallons. She was commissioned on January 12, 1945, and, after making calibration runs in Long Island Sound on the morning of January 19, 1945, was proceeding down the East River to her base at Staten Island.

The witnesses for the “Poling Bros. No. 14” were Johnson, the master; Moore, the engineer; and Hamilton, the master of the Cornell tug “Lion."

Johnson testified as follows:

He was at the wheel during the run up the river, and the vessel was making seven or eight knots over the ground. Ahead of the “Poling Bros. No. 14” was the Cornell tug “Lion,” bound upstream, with a loaded coal barge in tow alongside on her port side, and some distance beyond the “Lion” was an unidentified tug, also bound upstream, with two car floats in tow alongside, one on each side.

The “Poling Bros. No. 14” passed the “Lion” on her starboard side “just above the Queensboro Bridge, around 65th Street.” The “Lion” was then about in midstream, and after passing the “Lion” the “Poling Bros. No. 14” “pulled out to the middle again.” The tug and car floats were at the time “about three-quarters of a mile” ahead and “practically in the middle” of the channel.

After passing the “Lion,” Johnson slowed down because he was “overtaking the tug with the car floats.” It was then that he saw the “Oconee” in the vicinity of Horn’s Hook, “about three-quarters of a mile” away, and coming down the river “close to, maybe 100 feet off” the Manhattan shore. The “Oconee,” after passing the tug and car floats, made “a sharp turn to the left” and “started to come across” the river, heading towards the Welfare Island shore. Johnson thereupon blew one whistle, and, when he received no answer, reversed his engines full speed astern and blew a backing signal of three blasts. The effect of this was to throw his stern to starboard towards Welfare Island, and his bow to port towards the Manhattan shore.

In the meantime the “Oconee” had “straightened out down and came down the middle.” Johnson then repeated his three-whistle signal. The “Oconee” struck the “Poling Bros. No. 14” about midships on her starboard side a heavy blow, after which the “Oconee” backed off and went around the bow of the “Poling Bros. No. 14.” At the time of the collision the “Poling Bros. No. 14” had sternway and was headed “diagonally across the river toward the Manhattan shore,” with her bow “about the middle of the stream.”

Hamilton testified as follows:

The “Lion” was proceeding up the East River bound for 96th Street, Manhattan. The “Poling Bros. No 14” passed the “Lion” “in the vicinity of 65th Street, or a little beyond.” The “Lion” was then “slightly right of the middle” of the channel, and the tug and car floats were “approximately a half a mile beyond me.” The “Oconee” was at the time “about off Horn’s Hook,” proceeding down on the westerly side of the channel. After passing the “Lion”, the “Poling Bros. No. 14” “took a sheer to port” and “carried over a little beyond the middle toward the New York shore” — “she came around me and went sort of suddenly straight over”. Hamilton said there were no passing signals, but the “Poling Bros. No. 14” twice blew three backing signals.

With respect to the navigation of the “Oconee,” Hamilton testified that “her course was straight, perfectly straight,” until just before the collision, when she “took a radical sheer to port.” He heard no signals from the “Oconee” other than an alarm after the vessels came together. At the time of collision the “Poling Bros. No. 14” was “practically broadside in the river,” with her stern west of the middle of the channel “about 100 feet or so, about 150 feet.” Later in his testimony he said that the “Poling Bros. No. 14” was “never more than Í00 feet beyond the middle toward the New York shore.”

The witnesses for the “Oconee” were Collins, the commanding officer; Hansen the indoctrination officer; Thomas, the watch officer; Lamproplos, the quartermaster; and Haas, the executive and navigation officer. The first three of these witnesses testified at the trial. Lamproplos testified by deposition, and Haas’ testimony before a Navy Board was read on the consent of counsel for both sides.

Collins testimony was as follows:

He was on watch in the wheelhouse, and the vessel was proceeding down the East River from Hell Gate, holding close to the west bank, “about 150 to 200 feet off the shore.” The speed was “approximately five knots over the ground.” As the vessel passed Horn’s Hook a group of vessels was seen proceeding upstream on the east side of the channel; they were headed by a tug with a car float on each side, and there was an oil barge behind the tug and car floats, and a little distance further back another tug. The “Poling Bros. No. 14” was the second in line, and she seemed to be bending somewhat to the westward as though to pass the tow ahead. The “Oconee” thereupon blew a passing signal of one whistle. At the time of this one whistle the “Poling Bros. No. 14” was “about in mid-channel,” heading diagonally across the river toward the Manhattan shore, “probably 75 feet behind the car float,” and “not more than 600 feet” away from the “Oconee.”

The “Poling Bros. No. 14” failed to answer the “Oconee’s” one whistle, and “continued to veer to the left” until it became apparent that she was going across the "Oconee’s” bow. Collins thereupon “took action immediately by swinging hard left, stopping my engines, and then immediately reversing, and sounding three blasts, and then the danger signal several times.”

Collins said that the distance separating the “Oconee” and the “Poling Bros. No. 14” at the time he ordered the wheel left was “not to exceed 200 feet,” and that the “Poling Bros. No. 14” was then “laying there across the channel” with “no apparent way in any direction.” He also said that the interval between the “Oconee’s” one whistle and the time when the engines were placed in reverse was “about 30 or 40 seconds more or less”; that when the danger signal was blown the “Poling Bros. No. 14” was “nearly squarely across my bow”; and that the “Oconee” passed the tug and car floats ICO to 200 feet off to port south of Horn’s. Hook. He admitted that the “Oconee” could have been stopped, under the existing conditions, in “about 600 feet.”

The place of collision was “right off 79th Street” and “not over 150 feet” from the Manhattan shore. The stern of the “Oconee” struck the “Poling Bros. No. 14” approximately amidships on 'her starboard side.

The other witnesses for the “Oconee” strongly supported Collins” version of the collision. They testified that the “Oconee” came down the west side of the westerly channel of the river; that when the vessels were about 600 feet apart the “Poling Bros. No. 14” started "to pull out from behind the tug and car floats; that the “Poling Bros. No. 14” thén veered toward the Manhattan shore and beyond mid-channel; and that shortly before the collision the engines of the “Oconee” were reversed and the rudder placed hard left Hansen, Thomas and Lamproplos corroborated Collins’ testimony that the “Oconee’s” one whistle was blown when the “Poling Bros. No. 14” started to turn, and that the other signals as testified to by Collins were given. Thomas said, also, that the “Poling Bros. No. 14” was “about 30 yards” behind the tug and car floats when he first noticed her turn.

I make the following findings with respect to the “Poling Bros. No. 14”:

The vessel was proceeding up the westerly channel of the East River at a speed of 7 or 8 knots over the ground. The Cornell tug “Lion,” bound upstream, with a barge in tow alongside on her port side, was passed just above the Queensboro Bridge around 65th Street, and the “Poling Bros. No. 14” thereupon swung back towards midstream.

Ahead of the “Poling Bros. No. 14” was an unidentified tug with two car floats in tow alongside, one on each side. Johnson testified that the tug and car floats were three-quarters of a mile away affer he passed the “Lion”; Hamilton, that they were one-half of a mile away. Collins, on the other hand, said that at the time of the “Oconee’s” one whistle the “Poling Bros. No. 14” was about 75 feet behind the tug and car floats. Thomas estimated this distance at about 30 yards. On this testimony, I think the “Oconee’s” witnesses were more nearly right than those of the “Poling Bros. No. 14”, for the “Oconee’s” witnesses testified that the “Poling Bros. No. 14” started to pull out from behind the tug and car floats, and this hardly could have been so if any great distance separated the vessels. I therefore find that after the “Poling Bros. No. 14” passed the “Lion”, the tug and car floats were not over 300 feet ahead of the “Poling Bros. No. 14.”

After passing the “Lion”, Johnson started to pull to his port in order to pass the tug and car floats ahead. It was then that he saw the “Oconee” in the vicinity of Horn’s Hook, coming down the river close to the Manhattan shore. He accordingly reversed his engines full speed astern and blew a backing signal. He at no time blew a one-whistle signal to the “Oconee”. The effect of the reversal of the engines, together with the flood tide, threw the stern of the “Poling Bros. No. 14” to starboard and the bow to port, and the vessel carried over to the westerly side of the channel, and directly in the path of the oncoming “Oconeé.”

At the time of the collision the “Poling Bros. No. 14” was practically broadside in the river, with her stern not over 150 feet from the Manhattan shore. The bow of the “Oconee” struck the “Poling Bros” about amidships on her starboard side.

I make the following findings with respect to the “Oconee”:

The vessel was proceeding down the westerly channel of the East River from Hell Gate, holding close to the west bank, about 150 to 200 feet off the Manhattan shore, and making approximately five knots over the ground. As the vessel passed Horn’s Hook a tug with two car floats in tow alongside was seen proceeding upstream on the east side of the channel. The “Poling Bros. No. 14,” also proceeding upstream, was behind the tug and car floats.

When the “Oconee” was about 600 feet away from the “Poling Bros. No. 14,” the “Poling Bros. No. 14” appeared to be bending to the westward as though to pass the tow ahead, and the “Oconee” blew a passing signal of one blast. At the time of this one-whistle signal the “Poling Bros. No. 14” was about in mid-channel, heading diagonally across the river towards the Manhattan shore, and not over 300 feet behind the tug and car floats.

The “Poling Bros. No. 14” did not answer the “Oconee’s” one-whistle signal, but continued to veer to the left until it became apparent that she was going to cross the “Oconee’s” bow. Collins thereupon placed his rudder hard left, stopped his engines, and then immediately reversed and sounded three blasts, followed by danger signals.

At the time the wheel of the “Oconee” was placed hard left the distance separating the vessels was not more than 200 feet. The interval between the “Oconee’s” one-whistle signal and the time when the engines were placed in reverse was not over forty seconds. The course of the “Oconee” down the river was perfectly straight until just prior to the collision, when the vessel veered slightly to port under a hard left rudder.

The place of collision was directly off the foot of 79th Street, Manhattan, and not over 175 feet from the Manhattan shore.

First. The liability of the “Poling Bros. No. 14” is clear. The vessels were in a position to pass port to port and there was nothing to interfere with their doing so. City of New York v. American Export Lines, 2 Cir., 131 F.2d 902. Yet the “Poling Bros. No. 14,” in an attempt to pass the tug and car floats ahead, turned towards the Manhattan shore, and later found herself broadside in the channel directly in the path of the oncoming “Oconee.” This was a plain fault on the part of the “Poling Bros. No. 14.”

Second. It is insisted on behalf of the “Poling Bros. No. 14” that the “Oconee” was also at fault (1) for not reversing her engines sooner than she did, and (2) for not turning to starboard towards the Manhattan shore when the danger of collision became apparent. With respect to the first contention, the evidence is clear that when the “Oconee” blew her one-whistle signal to the “Poling Bros. No. 14” there was nothing to indicate that the “Poling Bros. No. 14” would veer across the channel towards the Manhattan shore, and it was only when the turn continued that action was required by the “Oconee.” This action was taken promptly by the “Oconee,” when the vessels were not more than 2C0 feet apart. It is, I think, a sufficient answer to the second contention that the hard left-rudder of the “Oconee,” just before the collision, was in extremis, and probably correct under the circumstances.

There may be a decree in both suits in favor of the United States holding the “Poling Bros. No. 14” solely at fault, together with costs, and referring the case to a Commissioner to assess the damages.  