The opinion of the court was delivered by: ABRUZZO
The United States of America, as owner of the United States Army Engineers' dredge "Atlantic", filed a libel against the Gypsum Packet Company, Ltd., and its steamship "Gypsum Prince", for damages incurred as a result of a collision between the two vessels. The Gypsum Packet Company has filed a cross-libel herein.
The collision occurred on December 19, 1940, in the lower Delaware River. The government was dredging a 1,000-foot wide, 40-foot deep channel which was being dug from the Ocean to Philadelphia, Pennsylvania. The dredge "Atlantic" was being used in the performance of that work.
There was due notice of the dredging operations and the presence of the buoys which marked the dredging area by means of "Notice to Mariners", issued by the Coast Guard. In the November 27, 1940, issue (libellant's Exhibit 8), information was published to the effect that operations would be in progress about December 1, 1940, and that the buoys would be re-established. The "Notice" for December 18, 1940 (libellant's Exhibit 8), announced the establishment of the dredging buoys in the area.
The "Atlantic" arrived from Norfolk in the Delaware River on December 14, 1940. The dredging area on December 19, 1940 (the date of collision), was on the socalled Brandywine Range, between Stations 475 and 480, a distance of some 5,000 feet, and Buoys J and H (Libellant's Exhibit 5). At the time of the collision, the "Atlantic" was dredging on the east edge of the east half of the new 1000 feet channel. Prior to the vessels' coming in contact with one another, there was never any dredging on the west half.
At 10:15 P.M., when the collision occurred, it was dark and clear. The tide was running westerly with a force of about 1 1/2 miles, the wind being southeast, force 3.
The dredge had turned around and started in a southerly direction toward buoy H. at about 9:50 P.M. and had been on this course about twenty-five minutes before the collision. She was aobut 100 feet off a line extending between buoys J and H. As these buoys were 100 feet beyond the edge of the dredged channel, the "Atlantic" was on the eastern edge of the 1,000-foot dredging area.
The "Atlantic" is a seagoing self-propelled steam dredge, 288 feet in length and 47 feet six inches in width. She resembles an ordinary merchant vessel, in that she has two masts and a smokestack, and her hull has the general shape of an ordinary vessel. She is equipped with suction pipes or drags, which are lowered to the bottom and through which mud and sand are pumped into the hold or interior of the vessel. During dredging operations, she proceeds under her own power and drags the suction pipes along the bottom.
The "Gypsum Prince" is a British merchant vessel 347.8 foot in length and 52.8 feet in width. She is a steam vessel and is equipped with a single screw. She was outward bound from Philadelphia for Nova Scotia.
The "Gypsum Prince" was overtaking the "Atlantic" and was proceeding on a parallel course.
It is undisputed that the collision occurred in the dredging area and that the area was properly marked. It is conceded that the "Gypsum Prince" knowingly entered this dredging area with the "Atlantic" in clear view and ahead of the "Gypsum Prince".
The libellant contends that all the evidence leads to the conclusion that the "Gypsum Prince" is entirely responsible for the collision.
The "Atlantic" was proceeding at a very slow rate of speed of 3 miles per hour (Berlucci Dep. pp. 7, 8); her starboard engine was at full speed ahead and her port engine half speed; this was to counteract the set of the current.
The quartermaster of the "Atlantic", glancing back, saw the "Gypsum Prince" off the dredge's starboard quarter about 800 to 1000 feet distant. He called to Captain Hammerseth who was on the port wing of the dredge's bridge. The captain crossed over to the starboard side of the bridge and looked aft at the "Gypsum Prince". He ordered the quartermaster to "keep her steady as she goes". At that moment, he calculated that the "Gypsum Prince" was going to cross behind the stern of the dredge, passing by the stern.
A collision became imminent. The captain pressed the buzzer or signal for hoisting the dredge's drags off bottom. The dragtenders immediately operated the apparatus which caused the hoisting engines to raise up the suction pipes from bottom. Thinking that the "Gypsum Prince" would strike the dredge "Atlantic" at the suction line and that the metal shoe at the end of the pipe would puncture a hole in the dredge, the dragtender dropped his pipeline back below the surface of the water in order to avoid a possibly more serious collision. At the same time, the captain sounded a general alarm and operated the apparatus to close the vessel's bulkhead doors in the event that she should be breached by the collision. He also rang a full ahead on the port engine which had previously been operated at half speed. Since there was a probability of the "Gypsum Prince" colliding with the stern of the dredge, the captain attempted to throw his stern away from the oncoming "Gypsum Prince", by a hard starboard rudder order. This order was executed as well as an order of "Stop" and "Astern". Thereafter, a stop order was given on both engines.
As a result of the two vessels' colliding, the hoisting apparatus on the starboard side of the dredge was rendered useless. The proof indicates that the starboard side of the "Atlantic" was struck by the Gypsum Prince".
The government, which is the libellant and cross-respondent, claims that the "Gypsum Prince" was guilty of the following:
1. Negligence in having entered the marked buoyed lighted dredging area.
2.Violation of Inland Rule of Navigation No. 24 as to overtaking vessels.
3. Violation of the Starboard Hand or Narrow Channel Rule, Inland Rule No. 25.
4. Violation of Inland Article 18, Rule VIII, relative to passing a vessel ...