The opinion of the court was delivered by: GALSTON
These are cross-libels, and on stipulation were tried together on the same proofs.
At about 2:30 p.m. on October 22, 1932, the steamer Scanpenn sailed from pier 53 south, Philadelphia, bound for New York, and proceeded down the Delaware river. The weather conditions were good, clear, with a gentle breeze, the tide ebb. Starting down the river, the Scanpenn was about three or four hundred feet off the Pennsylvania shore.
The tug B. S. Thomas, approaching from the opposite direction, was observed about three-quarters of a mile away. At that time she was a little on the Scanpenn's starboard bow, and also was about three or four hundred feet from the Pennsylvania piers.
The vessels were half a mile apart, and on curving courses, when the Scanpenn sounded a one-whistle blast and changed her course a little to starboard. There was no response to this signal, but, on the contrary, the tug with her scow in tow was observed to alter its course toward the Pennsylvania shore.Thereupon a second one-whistle blast was given, and the Scanpenn eased to starboard. To the second one-blast signal the tug responded with a one-blast signal and veered toward the Jersey shore.
A dredge was stationed in the river, about 150 feet off pier 98 south, ahead of the Scanpenn. To the south of the dredge were dredging stakes, and the steamer in passing came within 10 or 15 feet of those stakes. Though orders were given to the steamer to go full speed astern, that order was not effected, for when collision was seen to be inevitable, a full speed ahead order was given, at which time the tug was heading across stream towards the Jersey shore, while the scow in her tow came head-on towards the Scanpenn. The tug cleared the steamer, but in her swing brought the port forward corner of the scow into collision with the port side of the Scanpenn, about 15 or 20 feet off the stakes and just south of pier 98 and about 300 feet off the pier.
There are some facts which stand out undisputed, the most important of which is the position of the tug Thomas on the Pennsylvania side of the river when first sighted by the Scanpenn. She sought to justify her position by the direction of the wind, and by virtue of a custom in navigating up the Delaware river. It may be said that there is no proof of such custom. Indeed, the captain of the Thomas testified:
"Q. Well, is that a custom prevailing, as you say, between tows that meet there in the river? A. No, it isn't no custom. No, it is just according to whom you meet, whether you want to use your own judgment, and one man will give in and another man will not. One man will give way to you and another man won't. That is all that is; it is not custom at all."
The second undisputed fact is that there was no answering signal given by the Thomas to the first blast whistle of the Scanpenn.
Thirdly, the Thomas, though she sought a starboard to starboard passing, gave no signal to effect such objective.
The main point in disagreement is the course pursued by the Scanpenn. Those on board the Scanpenn agree in positioning her at all times nearer the Pennsylvania shore and on her own starboard side of the channel; on the other hand, the Warner Company insists that the Scanpenn was on the New Jersey side of the river. This presents the real issue in the case, for if the Scanpenn on sighting the Thomas was on the Pennsylvania side, then there was presented a head to head situation. If, on the other hand, the Scanpenn was in the position as stated by the captain of the Thomas, then it is possible that a starboard to starboard passing, even without an exchange of signals, could have been effected.
The Thomas makes much of the plotting on the chart (libelant's Exhibit 4) by the master of the Scanpenn, of the courses recorded on the Scanpenn's automatic recorder. From this chart it is argued that it was impossible for the Scanpenn to have been in the positions stated by the master, as she proceeded down the Delaware river and at the time that she sighted the Thomas and her tow. But whether the Scanpenn was 553 feet or 800 feet off the Pennsylvania shore, and the Warner Company contends she must have been at the least the former distance off and more likely the latter, the Scanpenn was, nevertheless, on her own side of the river before she changed her course to starboard, for the river at that point is $1,800 feet in width.
Kelly, the captain of the Thomas, is hardly in disagreement, for from his marking of the chart, Exhibit B, the Scanpenn's positions S1, S2, and S3 were nearer the Pennsylvania side of the river. I must conclude, therefore, that the Scanpenn, from the time that she first moved to starboard to the time of the collision, favored the Pennsylvania shore and traveled on her own side of the channel. I can find nothing in the record which warrants the conclusion that the navigation of the Scanpenn was faulty. She complied with proper navigation by porting her helm after giving a first one-blast signal and directing her course to starboard towards Pennsylvania. So much seems really to have been admitted by Kelly:
"Q. At the time he blew the second whistle, or before he blew the second whistle, or immediately after he blew the second whistle, did he make any change in course? A. Yes; when he blew the first whistle he started to come around a little bit gradually, and when he gave me the second whistle he come right ...