The opinion of the court was delivered by: BYERS
These causes were tried together since they involve but two versions of one collision between two vessels in a 12-column convoy, the Motor Vessel John A. Brown and the Steam Tanker Gulfcoast, on August 25, 1943, at 10:23 P.M. (convoy time) in about latitude 54 degrees 33' N, and longitude about 18 degrees 37' West, in the North Atlantic during the last quarter of a voyage that began in New York on August 14, and ended in the Clyde on August 28, 1943.
The Brown is 508 feet by 70 feet, of 10,455 gross and 6,059 net tonnage. She is a single screw, operated by Fiat engines, and was fully laden with war materiel.
The Gulfcoast is 426.4 feet by 64.2 feet, also a single screw, having steam engines; she has a gross tonnage of 7,140 and net 4,373. She was carrying oil to the capacity of her tanks.
These vessels were both in column 7, counting from the left. The commodore ship was number 71, the leader of this column; the Gulfcoast was number 72; the Socony Vacuum was number 73, and the Brown was number 74. In the evening or afternoon of August 25th, the Socony Vacuum left the convoy, thus vacating her station, and the Brown moved up to take her place. Apparently that change was accomplished without incident, for these two vessels seem to have been fairly established in station 72 and 73, respectively, at 9:00 P.M. according to the testimony of their respective witnesses. At about that hour drizzling rain set in, which reduced visibility to about a quarter of a mile, and the Brown seems to have lost sight of the Gulfcoast thereafter. The collision seems to have been in the making from about 10:00 P.M. until it occurred about twenty minutes later.
The conflicting versions are:
For the Brown, that the Gulfcoast being to port and ahead, namely between the sixth and seventh columns, headed toward the latter, and having first dropped back to port of the Brown, angled sharply to her own starboard, and tried to cross ahead of the Brown; and failing that, struck the latter on her port side well forward, and was then caused to strike again from a position alongside, on the Brown's port quarter.
For the Gulfcoast, it is asserted that the Brown came up from astern, on the starboard side, and when she had progressed so that she was about 4 points on the starboard bow of the Gulfcoast, she made an abrupt change of course to her own port, in an apparent effort to cross ahead, and so brought herself athwart the bow of the Gulfcoast, which caused the collision; then under a rapid starboard turn, brought her port quarter into collision with the Gulfcoast, well aft on the starboard side.
There is no assistance to be derived from a showing of the nature of the damage suffered by either craft, which might indicate which vessel struck the harder blow; nor has the direction in which plates or other objects were bent or broken been brought to light.
Since all the testimony is by deposition, save that concerning the reading of the record of the course recorder of the Brown, decision will turn upon the margin of persuasion emerging from the narratives so embodied.
It is common ground that a moderate sea prevailed, which caused spray to fly, and that from about 9:00 o'clock on it was raining to such an extent that both masters believed that better lookout could be maintained in the shelter of the bridge than on the forecastle head, since the vision of men so stationed would not be obscured by rain being driven into their faces.
Also that the wind was out of the northwest of a force of about 3, and that there was no fog. That all of the ships in the convoy were blacked-out, and carried no lights except stern lights which shoed blue and were angled down to the surface of the sea. It is not meant that all vessels displayed such lights at all times, if the testimony is understood; but they were witched on as the occasion might seem to require.
It is particularly difficult to say whether the stern light from the commodore's ship, number 71, was burning at all times important to this case, since no one from her was called.
It is not disputed that the course of the convoy was 82 true (between east and east by north) and both these ships assert that they adhered thereto. The Gulfcoast in order to make 82 good had to follow a course of 84 to compensate a 2 degree westerly compass error.
The spacing between columns was not less than 2,100 feet (four ship's lengths of the Brown), and between stations fore and aft, not less than 1,500 feet (three ship's lengths of the Brown).
The Brown makes these distances somewhat greater, but the difference can hardly influence the choice which must be made between the two stories.
Obviously station keeping in convoy cannot be mathematically exact even in daylight, and during the night when each ship is supposed to follow its leader, the difficulties of the task are enhanced by all prevailing physical conditions, plus the inability at times to make out the stern light just ahead of a given vessel, even if it is constantly displayed. When that light is not always showing, which this testimony seems to indicate, it is no cause for wonder that alignment and spacing are something less than precise.
As the result of study of the depositions and exhibits, and reflection upon the arguments of counsel, I am of the opinion that what probably occurred was that the Brown, having lost sight of the Gulfcoast and believing that she could see and follow the commodore ship in station 71, proceeded under automatic steering at the convoy speed of 9 1/2 knots, as nearly in line as could be expected under the conditions which have been explained; sometime after 9:00 o'clock a ship was observed by the third officer who was in charge on the 8:00 to 12:00 P.M. watch, which bore about 2 to 2 1/2 points on his port bow. It was in fact the Gulfcoast but he didn't realize that. She appeared to be in about station 62 (second in sixth column), but that was in itself a surprise, since there was only the leading ship (61) in that column. At that time the distance separating these vessels appeared to be around 2,000 feet.
The deck officer (downer) flashed a signal with his torch in Morse Code 'What no?' (meaning convoy number). He received no answer, but a long flash. Thus he did not acquire the desired information. This incident, it should be said, is uncontradicted, and the time was about 10:00 to 10:05 according to both versions.
The Brown at this time apparently was about in her station, i.e., she was abreast of her beam ship in column 8.
The Gulfcoast (as it turned out to be) was seen to be dropping back, and then converging toward the Brown's course, and the latter reduced her own revolutions from 80 to 70 in two steps; the Gulfcoast continued to angle to her starboard, and the Brown, sensing danger, turned on her navigation lights; her gyro pilot was put into hand position, and her rudder put hard right, and Downer called the master to the bridge.
When the latter arrived from the chart room, which is immediately behind the wheel-house, in about 2 minutes, the ship's maneuvers and revolutions were explained, and her show of lights, he ordered a one-whistle blast to indicate starboard turn, and this was at once blown, but the Gulfcoast continued in her course, blew no whistle, showed no lights, and made no effective change of helm until just before the striking when a port helm is said to have put her over from 82 to about 50. Then she struck the Brown well forward near the port bow. The helm was then ordered to starboard to swing her stern away, but to no avail so far as averting a second impact was concerned, for that took place after an interval of some 30 seconds or less, so that both vessels again collided at about their respective quarters.
Fortunately there was no major casualty or loss of life, and both vessels eventually resumed their stations, suffering only undisclosed structural damage.
If the Gulfcoast did anything to avert the first collision by whistle signal, show of lights, or timely change of helm, I have been unable to discover it. She relies entirely upon the assertion that the Brown executed an unannounced and precipitate turn to her own port at a time and under conditions which allowed of no remedial measures or navigation on her own part, and she argues that the Brown must be held either entirely or partly at fault.
In order to demonstrate that the foregoing summary of what the depositions reveal is not without support in the testimony, the following subjects will bear comment:
(a) That the Brown was under automatic steering until the rudder was put hard starboard as above stated, is deposed by both Downer, the third officer, and Ashington, an A.B., who was on the starboard wing of the bridge as an extra lookout. He was a wheelman, but did not serve in that capacity from 10:00 to 12:00 as he would have, except that the ship was under automatic steering.
This point is argued to the contrary by the proctors for the Gulfcoast, but without substantiation in the record.
(b) As to whether the Brown maintained alignment in column 7 after she moved up to station 73 which had been vacated prior to 8:00 P.M. and probably much earlier, by the Socony Vacuum:
The Gulfcoast, by inference at least, charges that the Brown was out of column 7 in that she came up from astern to a position on the former's starboard hand, and moved far enough ahead to show her blue stern light. Eliasson, the Gulfcoast's master, who was on the bridge from 10:00 o'clock on, says the Brown was about a ship's length, 400-450 feet, distant, and she was edging away, i.e., to her own starboard, about this time. Watler, also third officer, is to the same effect, i.e., the Brown was out of station, coming up on the starboard quarter just 'beaft' (sic) the bridge.
To accept the foregoing requires that the position of the Gulfcoast herself between 9:00 and 10:00 P.M. be deemed to have been established; this, however, presents great difficulty, for it depends upon her being in fact about astern of 71, the commodore ship. But these witnesses agree that the blue stern light of 71 was not shown until about 10:00 P.M., and so the assertion that the Gulfcoast was fairly lined up astern of a blacked out ship at least 1,000 feet ahead during a drizzling rain, is less than convincing in face of the testimony of Downer, that during the 9:00 to 10:00 P.M. period he was tailing behind the blue stern light of the commodore ship, and thus could not account for the whereabouts of the Gulfcoast.
If testimony from the commodore ship on this subject could be consulted, it would be helpful, but there is none.
It seems undisputed that, as to the Gulfcoast herself, no stern light was showing until about 10:00 o'clock, for so her witnesses say, as does Downer. Why this should have been true is difficult to understand, considering the weather conditions and the difficulty of maintaining station without some guide to a following ship. The subject is further illuminated by Graves (he was of the Armed Guard of the Gulfcoast with a rating as signalman third class, and so functioned, literally), who states that he was called to the starboard wing of the bridge at about 10:00 or 10:05 P.M., and read a blinker signal from the commodore: 'Please show blue stern light'. Since Watler says he turned on the blue stern light at about this time, it must be deemed established that until then the Gulfcoast was not showing such a light, which corroborates Downer of the Brown, on that subject. If he is right as to that, he may perhaps be relied upon when he asserts that he followed the commodore's stern light during the interval between 9:00 and 10:00 P.M.
This means that no wide departure from column 7 on the part of the Brown is deemed to have been shown. As to the Gulfcoast, since she says the commodore did not show a stern light, I think her witnesses are mistaken on that subject, and that they simply were unable to see that light for much of the time between 9:00 and 10:00, either because of the rainfall or such rolling as a moderate sea would cause; this resulted in her straying into the waters between the seventh and sixth columns between 9:00 and 10:00 P.M.
(c) As to a change in speed of the Gulfcoast:
No reason is seen to doubt that this indeed took place. Her third officer says that between 9:30 and 10:00 o'clock the convoy speed was reduced from 9 1/2 knots to about 7 1/2 knots by action of the commodore ship (71) but without signal. The revolutions were cut down in two steps from 61 to 47 or 46, the latter about 10:00 o'clock. Presumably it is meant that observation of slower speed by the commodore ship alone accomplished this result. I do not stop to inquire as to the plausibility of this suggestion, but accept it as to the fact of slowing down.
That change of the Gulfcoast was observed from the Brown as has been stated, but what brought it about is not so clear. If it were necessary to decision, which it is not, I should incline to the view that between 9:00 and and 10:00 o'clock the Gulfcoast found herself overtaking ship 71, and dropped back discreetly, and then headed toward the seventh column and preferred not to answer the flash light inquiry by the Brown during the course of that maneuver; that she relied upon her ability to resume her station ahead of the Brown and astern of the commodore ship, without inviting attention to herself, and failed to accomplish the purpose because she chose to ignore first the Brown's inquiry, and later her showing of lights and her whistle signal.
(d) Was the Brown's turn just prior to the collision to port or starboard?
Common sense teaches that it must have been to starboard since the presence of the then unidentified Gulfcoast, coming dangerously closer to port, was known to both MacCallum, the master, when he came to the bridge, and to Downer who had observed that ship for at least 20 minutes prior to the striking. Everything ...