Before McLAUGHLIN and GANEY, Circuit Judges, and COHEN, District Judge.
The S. S. Marie Loenhardt collided with the Delair Bridge at about 12:45 p.m. on January 9, 1959. The Pennsylvania Railroad Company, owner and operator of the bridge, filed a libel in rem against the vessel for damages to the bridge.*fn1 The vessel owner filed a cross-libel against the Railroad for damages to the vessel resulting from the collision. The district court, after making findings of fact and conclusions of law, dismissed the Railroad's libel but allowed the owner of the vessel to recover against the Railroad for whatever damages the vessel sustained. 202 F.Supp. 368 (D.C.E.D.Pa., 1962). From the interlocutory decree, the Railroad has appealed under 28 U.S.C. § 1292(a) (3).
The Delair Bridge*fn2 is a low-slung, truss-type steel bridge that carries two sets of railroad tracks across the Delaware River between Philadelphia, Pennsylvania, and Delair, New Jersey. At the place of crossing, the river is 2,100 feet wide. Two-thirds across the bridge from the Pennsylvania side is a section or drawspan 300 feet long, equal to the width of the river channel. This section has a vertical clearance of 48 to 55 feet from the water, depending on the tide, and pivots 90 degrees counterclockwise upon a pier located at its center. The pier is in the middle of the channel. When the section is completely opened, two lanes are made available for the use of vessels and crafts proceeding up or down the river channel. Although the machinery which rotates the drawspan is located on the central pier, the drawbridge tender stationed at the section can open the draw only after the operator in the Jersey Block Signal Control Tower has electrically released the lock. The Jersey Tower, a three-story building, is located inland about 750 feet east of the New Jersey end of the bridge. A radiophone is located in the Jersey Tower, but not on any part of the bridge. Communication between the Jersey Tower and the control room of the drawspan is via a telehnone line.
Six hundred feet from the Pennsylvania shore, and starting at a line drawn across the river approximately 2,000 feet below the northeastern tip of Petty Island, the river channel narrows to a width of 300 feet. From this line, the channel runs diagonally in a straight line, northeastwardly across the river for about 5,000 feet to within 300 to 400 feet of the New Jersey shore. This stretch of the channel is called the Fisher Point Range. At the end of the range the channel bends slightly to the left and extends for another 1,800 feet in a straight line. At the end of this stretch, known as Fisher Channel, it bends again slightly to the left and continues on in a straight line for about 800 feet where it is crossed at right angles by the drawspan of the Delair Bridge. The stretch of the channel leading to and under the bridge is called the Draw Channel. Anchorage areas exist on both sides of the Fisher Point Range and on the Pennsylvania side of the Fisher Channel.*fn3 Except possibly for a small area where the Fisher Point Range joins the Fisher Channel, the river on the New Jersey side of the channel described above is too shallow to accommodate large vessels with drafts over twenty-three feet. The anchoring of a vessel is not permitted on either side of the Draw Channel even though the river on the Pennsylvania side is deep enough to float larger vessels.
The S. S. Marie Leonhardt, an oceangoing vessel of 15,000 tons (deadweight), carrying iron ore, was enroute up the Delaware River from Pier 122 South, Philadelphia, to Morrisville, Pa., accompanied by the tug Joan McAllister. She was 522 feet long, had a beam of over 63 feet. She was on an even keel with a draft of 23 1/2 feet and was propelled by a single right-hand screw. In order to reverse the screw, her diesel engines had to be stopped and then started again in the other direction. She was equipped with a portable radio-phone set having a range of at least seven miles. She was unable to pass under the closed drawbridge of the Delair Bridge. During the vessel's passage up the river before she came into contact with the bridge, the tide was at flood with a two-knot current, there was a steady wind from the northwest at 22 knots per hour, with gusts up to 27 knots, and the air was clear and visibility was excellent. There were no vessels or crafts coming downstream on the other side of the bridge desiring to pass through the draw.
At the outset the Railroad disputes the findings of the trial judge. Of course, such findings will not be disturbed on appeal unless they are clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 20 (1954); Brett v. J. M. Carras, Inc., 203 F.2d 451 (C.A. 3, 1953); The Bellatrix, 114 F.2d 1004 (C.A. 3, 1941). In the alternative, it insists that the facts, as found, establish negligence on the part of the vessel and no negligence on its part.
Citing Patterson Oil Terminals, Inc., v. The Port Covington, 109 F.Supp. 953, 954 (E.D.Pa.1952), affirmed 205 F.2d 694 (C.A. 3, 1953) and Wilmington Ry. Bridge Co. v. Franco-Ottoman Shipping Co., 259 F. 166 (C.A. 4, 1919), among other cases, the Railroad contends that the district court should have given it the benefit of the presumption that the vessel was negligent because she collided with a fixed portion of the bridge. We are hard pressed to understand why the Railroad is making this contention at this point in the proceeding. Perhaps it is implying that the presumption is a makeweight in the evidence which would require the mythical scales on which conflicting testimony is weighed to be tipped in its favor. If this is so, then the Railroad misconceives the function of the presumption. The vessel owners complied with the procedural requirement of the presumption. As a matter of fact, both sides fully presented testimony regarding their version as to what happened prior to the collision. Consequently, the presumption disappeared as a rule of law. See 9 Wigmore on Evidence (3rd Ed.) §§ 2490, 2491.
The Railroad next claims that the vessel brought itself within the rule of The Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 22 L. Ed. 148 (1873), by approaching the Delair Bridge both without complying with the Bridge Regulations of the United States Army Corps of Engineers regarding that bridge, and on the wrong side of the channel in violation of the narrow channel rule, and has failed to show that these violations could not have been a cause of the collision. We disagree.
The Railroad says that the vessel violated the regulations*fn4 by choosing to initiate communications with the bridge by radiophone instead of by whistle or horn signal. The district court found that the vessel, in conformity with the regulations, sounded three blasts of her whistle at 12:40 to indicate that she desired to pass through the draw. The bridge did not answer this signal by any whistle or horn blast.*fn5 The drawbridge tender testified that he got a signal from the Jersey Tower operator at 12:36 that the draw section was free to open. If this were so, then he should have answered the vessel's three blast whistle signal at 12:40 with a two blast signal. He claims that he did not do so because he did not hear the vessel's three blast signal. If the wind prevented the bridge tender from hearing a whistle signal given a half mile away, it would have prevented him from hearing one given at any time between 12:26 and 12:40 when the vessel was further downstream, and so it would have been futile for the vessel to have given a whistle signal sooner. Hence the Railroad cannot be heard to complain that the vessel did not give a whistle signal at any time before 12:40.
Concerning the narrow channel rule,*fn6 the district court held it was inapplicable because it "is designed to prevent collisions between vessels on inland waterways, rather than collisions involving a ship and a bridge."*fn7 The rule was invoked by the owner of a bridge in Circle Line Sightseeing Yachts, Inc. v. City of New York, 283 F.2d 811, 814 (C.A.2, 1960). Although the Court of Appeals ruled that adherence to the narrow channel rule was not "safe and practicable" because of the peculiar and quite temporary circumstances existing there, it went on to hold, nonetheless, that the vessel was at fault because of her failure to show that her violation of Article 29 of the Inland Rules, 33 U.S.C.A. § 221,*fn8 did not cause and could not have been the cause of the accident. Although another vessel proceeding in the opposite direction was involved there, and while that case is good authority for holding that the owner of the bridge may bring the rule of The Pennsylvania, supra, into play where a vessel violates the Inland Rules, nevertheless, it must be shown that that violation could not have caused the accident, as adverted to above. Here, the Marie Leonhardt's proceeding in the middle or to the port (Pennsylvania) side of the channel was a mere condition and could not have been a contributing or substantial cause of the collision. It could not have been any more so than was the vessel's departure from Pier 122 South, Philadelphia, shortly after 11:30, instead of at a later time. Moreover, it was practicable for the vessel to favor that side of the channel, at that time in the absence of downstream traffic. The river on the Pennsylvania side of the channel in that vicinity was deep enough to accommodate vessels with drafts of 23 1/2 feet, and a moderately strong wind was on the port side of the vessel, and she was proceeding at the slowest possible speed under the circumstances. For these reasons the pilot wanted to be as near to the anchorage area as possible so that he could get out of the channel in the least amount of time in the event the vessel was required to drop anchor.
The Railroad next argues that the vessel was at fault in proceeding at too great a speed and too close to the bridge in the absence of a horn or whistle signal from the bridge. This argument has been adequately answered by the district court. Its findings as to the happenings between 12:26 and 12:48 on January 9, 1959, may be summarized as follows:
12:26: The vessel was in the vicinity of Port Richmond approximately 11,200 feet from the bridge. In accordance with the prevailing custom, the pilot of the vessel first informed the bridge by radiophone of the vessel's presence and of his intention of sailing her through the draw. Immediately thereafter, the Jersey Tower operator notified the drawbridge tender of the vessel's intention.
12:34: The vessel was about a mile and a fifth away from the bridge (about half way up the Fisher Point Range), and the pilot again communicated by radiophone with the tower operator who advised him that an approaching train would require a two or three minute delay in opening the draw. The pilot made no reply to this response. From that time the vessel moved at the slowest possible speed, estimated at 4 to 6 knots per hour over ...