The opinion of the court was delivered by: RIFKIND
On the night of September 9, 1944, in the Caribbean Sea, about 150 miles northeast of Cristobal, Panama Canal Zone, a collision took place between the British Steamer Australia Star owned by Frederick Leyland Co., Ltd., and the Hindoo, a Panamanian flag vessel owned by the United States, as a result of which the Hindoo was sunk and the Australia Star and her cargo damaged. The Australia Star had been travelling alone; the Hindoo was being escorted by the U.S.S. PC-616, a United States naval craft. These seven libels, consolidated for trial, require determination of the rights and liabilities of the several vessels and the rights of the owners of cargo on board the two merchant ships.
The night was dark and cloudy; visibility was good; the sea was smooth and the wind slight. The ships had been travelling blacked out through waters where the presence of enemy underseas craft was suspected. The Australia Star was proceeding at full speed of 15 knots, in a southwesterly direction, enroute from the United Kingdom to Cristobal. The Hindoo was travelling at full speed of 10 knots on a course from Guantnanmo, Cuba, to Cartagena, Colombia. The PC-616, capable of a maximum speed of 20 knots, was preceding the Hindoo on a zig-zag course at 12 knots. The Australia Star and the PC-616 were equipped with a radar; the Hindoo was not,
The collision occurred at 9:32 p.m. Australia Star time.
The PC-616 made her first observation of the Australia Star 37 minutes before collision. The Australia Star first became aware of what later turned out to be the Hindoo about 28 minutes before the collision. The Hindoo saw but misunderstood the Australia Star's green light about 10 minutes before collision but did not become conscious of the presence of that vessel until a minute before collision. The Hindoo and PC-616 were travelling in company and were, of course, at all times aware of each other's presence. Armed with all this foreknowledge it is reasonable to suppose that a collision would not have occurred had there been exhibited a normal degree of diligence and skill. For lack of it one ship was lost and another damaged and three lives were forfeited.
It was impossible to reconcile the claimed course of the Australia Star -- 237 degrees true -- , the claimed course of the Hindoo-108 degrees true -- , and the four radar observations of the Hindoo made by the Australia Star (as detailed hereinafter). If each vessel kept the claimed course and speed and if the radar reports were accurate the collision could not have occurred. At this point, however, it is needless to resolve that problem. Unquestionably the two vessels were on converging courses, with the Hindoo off the Australia Star's starboard bow. First, I shall consider the navigation of the Hindoo, since under normal circumstances she would be the privileged vessel under the starboard hand rule.
Testimony from the crews of both the Australia Star and the PC-616 support the finding that the navigation lights of the Australia Star were thrown on twelve minutes prior to the collision. Because of insufficient lookout, probably caused by preoccupation with extinguishing a fire which had broken out in the quarters of the Hindoo's gun-crew, the Australia Star's lights were at first not seen by the Hindoo. Ten minutes before collision a green light was finally descried but those precious moments were consumed by a search in the signal code for its meaning and the mistaken report that it was an aircraft warning signal from the PC-616. When the light was at last recognized as the starboard navigation light of an unknown vessel, it was too late. The Hindoo switched on its lights, gave a blast on its whistle, and went hard astarboard, but the collision could not be avoided. The Australia Star's bow holed the port side of the Hindoo, forward of the bridge.
The failure of the Hindoo to see the Australia Star's lights was culpable negligence, for which there is no excuse. Citation of cases is unnecessary. Whether or not the starboard hand rule, making the Hindoo the privileged vessel, is applicable to the case at bar, a competent lookout would have given the Hindoo, privileged or not, enough warning so that a successful collision-avoiding maneuver could have been executed. Insufficient lookout and failure to recognize the meaning of the green light contributed to the collision.
The insistence by proctors for the government that the Hindoo was not at fault, since it was a crossing situation governed by the starboard hand rule, under which the Hindoo, the privileged vessel, had a right to maintain her course and speed, brings up a question of some novelty. The Australia Star, relying mainly on The Jarrix, 1919, 1 Lloyds List L.R. 93 and Lind v. United States, 2 Cir., 1946, 156 F.2d 231, argues that the starboard hand rule applies only to situations where both vessels are or should be visually aware of each other's presence; that, at night when one vessel shows her lights and the other does not, it is for the darkened vessel to keep clear of the lighted one. The Hindoo counters with the contention that the presence or absence of lights is not controlling. All that is necessary is that the burdened vessel be aware of the presence of the privileged ship, and that the Australia Star's radar apprised or should have apprised that ship of the Hindoo's presence. Since the Australia Star knew its own position and course, and the Hindoo's, the starboard hand rule comes into play. The Australia Star's contention is that radar must be ignored for the purposes of the starboard hand rule.
In Lind v. United States, a brightly lit fishing trawler was run down by a blacked-out merchant vessel, member of a convoy. The blacked-out merchant vessel, the privileged ship if the starboard hand rule were to apply, was held solely responsible. In The Jarrix a blacked-out naval escort vessel, busy whipping in its convoy, ran down a lighted merchant ship. Even though the escort was privileged if the starboard hand rule applied, she was held solely responsible. In neither of these cases was the lighted ship aware of the other's presence; neither was equipped with radar.
In very elementary terms, radar operates as follows: From revolving antennae, radio waves are directionally emitted by the ship. If the waves strike an object within the range of the equipment, a little light, or pip, is seen on the radar screen. The bearing of the object is known from the relative axial position of the antennae; its distance is measured by the time it took for the wave to travel out to the object and be reflected back to the receiver. The apparatus is calibrated to show the distance and bearing at a glance. Since the heading of a ship can be plotted from its bearing and distance at two or more points in time, the radar operator can with great accuracy plot the heading of a ship after taking a number of radar readings. The antennae may be rotated through 360 degrees, either by hand or by motor. In the hand operated apparatus the pip appears only at the moment when the antennae are directed toward the reflecting object. In the motor driven variety the rotation is so rapid as to appear to give a continuous signal of all reflecting objects in all compass directions. On board the Australia Star, a hand operated apparatus was in use. A complete sweep around the circle took 3 minutes.
The Hindoo had no knowledge of the Australia Star's radar. It did not navigate in reliance upon its privilege under the starboard rule. And while it is true that prudent navigation is none the less prudent if practiced unwittingly, Lind v. United States, 2 Cir., 1946, 156 F.2d 231, clearly this was a case of 'special circumstances'. The Hindoo's navigation was, in the highest degree, imprudent. For all it knew, its presence was a menacing secret to ships in its vicinity. Nevertheless, it gave less than required attention to its own lookout duties and exhibited less than ordinary skill in understanding what it saw. Its faults clearly contributed to the collision.
I turn now to the navigation of the Australia Star. The master of that ship received his first warning of the presence of other craft at 9:05, when the radar operator reported two objects 25 degrees on his starboard bow, distant 16,000 and 14,000 yards. At 9:10 the radar operator again reported two objects 20 degrees on the starboard bow distant 14,000 and 9,000 yards. Shortly thereafter the PC-616 passed ahead of the Australia Star, from starboard to port, and by means of a red flashing Morse lamp challenged the Australia Star. The latter answered the challenge by signalling its name and identification. Therupon the PC-616 commenced delivery, by red blinker light, of a message of which the Australia Star's watch officer read only the word 'keep'. He could not grasp the rest of it despite prolonged effort.
At 9:20, the radar operator, unsolicited, delivered another report to the master -- an object 4 degrees on the starboard bow distant 4,000 yards. There upon the Australia Star switched on her navigation lights and two white range lights. The master neither requested nor received any more radar reports. Had he asked for it he would have received at 9:24 a report showing the presence of an object 2 degrees on his starboard bow, distant 2,000 yards.
Two explanations are offered for the failure of the Australia Star to take more successful measures to avoid collision. The first is supplied by the master. Having put on his lights, he interpreted the failure of the Hindoo to display hers to mean 'You carry on your course and speed. I don't want you to do anything. I am keeping clear of you.' The second is suggested by her proctors. Since the bearing of the Hindoo on the Australia Star was changing, there was no risk of collision in accordance with the principle that two vessels ...