The opinion of the court was delivered by: BYERS
On October 21, 1945, at 10:38 1/2 or 10:39 a.m., E.W.T., the steel trawler Medford out of Boston was cut down and sunk by the steamship Thomas H. Barry, and the lives of seven of her crew were lost. A heavy fog prevailed at the place of collision, which was about 125 miles easterly of Nantucket Light, 40 degrees 41 feet north latitude, and 67 degrees 18 feet west longitude, in the vicinity known as the George's Bank.
The above causes are the result of that episode; in the first the owner of the vessel sues, in its own behalf and as bailee of the cargo, etc., the United States of America as owner, operator and in control of the Thomas H. Barry. The second is by the Government against the libelant in the first, to recover for damages sustained to the bow of the Barry; the third is by the Master of the Medford, and by a seaman, to recover damages for personal injuries suffered by them in the collision. These causes were consolidated for trial and decree.
The showing for the Barry is such a sorry one that no issue is made as to the liability of the Government, and the controversy is narrowed down to an effort to demonstrate that half damages should be assessed against the libelants in the first and third causes, and against the respondent in the second, by reason of faults attributed to the Medford according to the Government's assertions of the situation as revealed in the evidence.
1. The steamship Barry is a United States army transport, and was engaged as a public vessel carrying 3,000 troops for replacement in Europe, bound from New York to Le Havre, of 11520 gross-6449 net tonnage; her dimensions are 508' by 77.9' by 39' in depth. She had a straight stem.
She had twin screws actuated by turbo electric engines of 8,000 horsepower each, and was capable of a top speed of 21 knots.
2. On the morning of October 21, 1945, the Barry was traveling at full speed, namely, 18 knots, at 130 engine revolutions per minute; top speed would have required 144 revolutions. (Mathematically computed, the speed was 18.9.)
3. She was on a course of 87 degrees true, which she had held for not less than two hours prior to 10:39 a.m.
4. The speed of the Barry was not altered at any time after she entered the bank of fog in which a collision with the trawler Medford occurred, until she was about 200 to 300 feet from the latter, when the signal was given from the bridge to stop the engines, and in less than half a minute that order was followed by one to reverse.
5. The forward motion of the Barry was not arrested by the last-mentioned signal until she had struck the Medford on its starboard side at the pilot-house, at an angle of about 90 degrees, amidships, and penetrated into the Medford about two-thirds of its width.
6. The bow of the Barry remained in the Medford for about two or three minutes, during which interval the latter remained afloat; then the Barry, under the impulse of the reverse engine movement which was not countermanded, backed out and away from the Medford, which at once sank and became a total loss, carrying down a cargo of some 70,000 pounds of fish, and all the personal effects of her officers and crew.
7. Seven of the crew of the Medford lost their lives through drowning, as the result of the matters related in the foregoing finding.
8. The Barry observed the bank of fog in which the collision occurred, at 10:15 a.m., at which time the Master was so notified, and in response he came to the bridge.
9. The said fog bank lay about dead ahead of the Barry.
10. The course of the Barry was not altered, nor was her speed diminished up to the time of the collision.
11. The Barry was equipped with radar which 'is the best anti-collision device yet perfected' (Electronic Navigational Aid published by the United States Coast Guard -- U.S. Government Printing Office 1945).
12. The radar equipment (Navy Model SQ) on the flying bridge was in unimpaired operable condition and was capable of picking up the Medford at a distance of 38 miles, and if a sufficient number of bearings had been taken, her track (and heading) could have been ascertained.
13. The radar equipment could have been put into operation in 1 1/2 minutes.
14. If the radar had begun to function at 10:25 a.m., the succeeding interval of about 13 1/2 minutes would have been more than ample in which to apprise the Barry of the position and heading of the Medford, and to have enabled the Barry to avoid any physical contact with the Medford.
15. The Barry carried two U.S. Navy radar men, i.e., Lewis, Radarman 3/C who had been attached to the Barry since June 29, 1945, and Young, Radarman 3/C, the length of whose service on this ship does not appear.
16. Neither of these men was summoned to man the radar equipment at any time on this morning prior to the collision, nor was any effort made of any kind by any one to operate the said equipment.
17. The Barry entered the fog bank at about 10:37 1/2 a.m. at the speed above stated.
18. In the vicinity of the collision, the fog was thick and visibility did not exceed 200 feet.
19. The Barry sounded her whistle twice before the collision; the first blast was delayed and smothered by the presence of water in the whistle and was less in volume than a clear blast, and was sounded about when the Barry entered the fog; the second blast was at an interval of about one minute and was in normal volume and preceded the collision by a matter of seconds.
20. The Barry was being steered by automatic equipment known as the 'iron mike' during the morning in question and at the moment of impact, although a quartermaster stood at his post and could have taken over in a few seconds, had hand steering been initiated at any time after the presence of the fog bank became known.
21. The Barry had no lookout on duty at her bow between 10:15 a.m. and the collision, but did have a lookout posted on her flying bridge (which was about 110 feet aft from her bow) during this interval, who failed to report the fog bank to the bridge.
22. The following deck officers were on duty and functioned variously from 10:15 a.m.:
Erickson, Captain, came to the bridge at 10:15 a.m. and remained there during all critical times.
Berman, 3d mate, 8-12 watch, in charge of navigation, on the bridge.
Tiemann, Junior 3d mate, called Junior 3d Officer in the Army Transport Service, same watch as Berman, on the bridge. His duties were to take care of the log, see that there was a proper lookout and check the course with the compass.
Brown, First Officer, 4-8 watch, navigating officer, was in the chart room and went to the wheelhouse at the time of collision, having heard two blasts, as ...