The opinion of the court was delivered by: BYERS
The owner of the Belgian steamship Jean Jadot seeks limitation of and exemption from liability arising from the sinking of the fishing schooner Eleanor Nickerson out of Boston, which occurred on February 5, 1932, near La Have Bank off the coast of Nova Scotia.
The Jadot struck the Nickerson forward of the starboard quarter, and cut through entirely, so that the stern of the schooner was sheered off in a diagonal running from the point of contact, aft to a point about 8 feet forward of the stern on the port side. The schooner sank almost at once, with the loss of 21 men of a crew of 27.
The precise time of this occurrence is difficult of determination; it was shortly after break of day, but whether the moment of astronomical sunrise had been reached or not, is the subject of controversy. Snow had fallen intermittently during the hour which preceded the event, and, according to the schooner's time, the watch which went on duty at 7:06 o'clock was in the act of relieving the prior watch.
According to the steamer's clock, which showed time calculated upon the position at the previous noon, the collision took place at about 6:45 a.m. To this should be added a conceded error of seven minutes, which would correct the steamer's time to 6:52 a.m.
The importance of the time lies in the question of whether the schooner's side lights should have been burning when she was sighted from the bridge of the Jadot, about one point off the port bow, at a distance (estimated by the first officer who then made her out) of about 3/8 of a mile, or roughly 2,000 feet, which was about 4 1/2 ship's lengths.
The wind was of gale force (No. 8 on the Beaufort Scale) out of the east north east, and the waves were about 20 feet high, the crests being spaced about 40 feet apart.
There is no issue made concerning the right to limit.
The questions requiring examination are the charges of fault on the part of the respective vessels. It will be convenient to consider first those attributed to the steamer:
The Jean Jadot is a single screw coal burning freight steamer, built in Germany in 1929; her deadweight is 9,300 tons, length 443 feet, beam 51 feet, with a maximum draft of 25 feet, 9 inches. This voyage began at Antwerp on January 27, 1932, and a full complement of 60 men was carried, including officers. New York was the port of destination; the cargo was light, i.e., 2,900 tons (22 1/2 feet draft) and the grand circle course was followed from Bishop to Nantucket. From noon of February 4th, the steamer was on course 239 true, and 263 on the standard compass that was being used; this is based on an error as computed or assumed, of 4 degrees for deviation and 20 degrees for variation.
The course is described in petitioner's brief as equivalent to a magnetic heading of about west by south.
The first officer went on duty at 4:00 a.m. of this day, and with him on watch were the fourth officer on the bridge, a man at the wheel, a lookout, and one man on deck. The lookout was posted on the bow, but, due to spray, was moved to the bridge on the weather side. The time of this change was about 5:30; it is stated that this was necessary because the deck was freezing, the temperature being 2 degrees below zero, also because the ship was rolling hard, which meant that footing on the bow was precarious. After 6 o'clock the rolling was accompanied by pitching; that caused the engines to race, but full engine speed was maintained none the less. During the ensuing 45 minutes all sea and weather conditions increased in intensity.
Horizon conditions at 6:40 a.m. were testified to as follows, by the first officer: "The visibility was about two miles, sir. Dawn was breaking in the eastern sky, daylight -- no, no. It was clear in the east on the horizon, and dark in the western horizon."
When the lookout was posted on the bridge, he stood on the port, and the first officer on the starboard side. The wheel house intervened, and communication from one side of the bridge to the other was through that house, which had doors either side.
About five or ten minutes before the collision, the lookout was sent below to get some coffee, and he was not on duty while the disaster was in the making.
The significance of his absence is apparent, in recalling that the schooner was sighted one point off the port bow, by the first officer, on the starboard side of the bridge.
The atmospheric conditions prevailing during the interval of from 6:40 to 6:45 (according to the ship's clock) have not been too clearly revealed so far as the Jadot is concerned.
The first officer says that a heavy snow squall set in, after the collision.
The fourth officer said that before the collision he saw some snow. Upon being pressed by the ship's proctor, he said: "We had, I think, just ten minutes before the collision, we had a little bit of snow yet." That is the time he fixed apparently for the stopping of the snow.
The rough log, containing entries for this period of the day made by the fourth officer at the dictation of the first officer, has the following: "Heavy sea, sky overcast, horizon obscured at intervals, snow squalls, vessel rolling and pitching and straining heavily. Shipping seas on after deck. 6:45 collided," etc.
In the absence of positive statement concerning the frequency, area and duration of the snow squalls, it is difficult to establish more than is contained in the foregoing recital respecting weather conditions as observed aboard the Jadot, during the ten minutes or so that preceded the collision.
When the Nickerson was sighted by the first officer in the position stated, crossing ahead of the steamer from port to starboard, she was in the trough of the sea, and all that was visible was the top half, or less, of the foresail. It should be stated in parenthesis that this was the only sail being carried by the schooner at that time.
The observer gave the order to port the ship, intending to pass under the stern of the Nickerson. He hurried into the wheel-house to give the helmsman a hand at the wheel (which operated the hydraulic gear) and was so engaged for perhaps half a minute, and then returned to his former station.
No signal was blown on the siren, or otherwise given to notify the Nickerson of the presence of the Jadot.
Again the first officer saw the schooner, this time on the crest of a wave, and her hull stood forth in sight, against the western horizon.
The observer does not give the position of the schooner at that instant, but testifies that he looked for lights and saw none, i.e., a starboard side light. That he saw no one on the deck.
At that moment he says that visibility was about two miles; that is, he could have seen a light at that distance.
The steamer commenced to swing in answer to her helm, but the officer said he could not tell how much; he says the schooner had headway, for her foresail was full.
The the Jadot hit the Nickerson "somewheres aft."
The only other witness to the collision called by the petitioner was the fourth officer, and his testimony adds little to the narrative. He was in the wheel-house, receiving a report from a cadet concerning temperature in a refrigerating space, when he heard the order given to put the wheel hard over. He emerged to the bridge, starboard side, and saw the schooner a length ahead, thus: "Well, I see just the forecastle head of the Jean Jadot between the two masts of the schooner."
He said later that the forecastle head of his own ship was not shutting off the schooner, and that he could see her completely; that he looked for lights on her and saw none; that, if there had been a man on her deck, he could have seen him, but that he saw none.
A few seconds later the collision occurred as has been stated.
The faults of the steamer, as gleaned from the foregoing, may be considered in the order of their clarity, thus:
A. No signal was given, when the schooner was sighted, of the course that the steamer contemplated, i.e., to port. This subject is scarcely discussed by the petitioner, being somewhat casually dismissed with the comment that no signal would have been heard on the schooner because of the weather conditions, and also because no one was on watch on the Nickerson. The latter subject will be discussed presently, pending which it may be permitted to observe that nothing was deposed for the Jadot to the effect that the failure to apprise the crew of the schooner that, although bearing down upon them, the steamer was contemplating a port turn, was the result of deliberation based upon observation that there was no watch maintained on the fishing craft.
The violation of article 28 of the International Rules is clear and unmistakable. The provision is as follows:
"§ 113. Sound signals of steam vessel indicating course. Art. 28. The words 'short blast' used in this article shall mean a blast of about one second's duration.
"When vessels are in sight of one another, a steam vessel under way, in taking any course authorized or required by these rules, shall indicate that course by the ...