The opinion of the court was delivered by: LEIBELL
These proceedings in Admirality arose out of a collision in a fog off the coast of Newfoundland, not far from Halifax, between the S.S. Reigh Count and the S.S. Chagres at about 4:20 on the afternoon of June 5, 1943. The Chagres was damaged and the Reigh Count was sunk with her cargo. Both vessels were members of a convoy which was supposed to be proceeding in a single line to a point where, weather permitting, the convoy was to form up on a voyage to the United Kingdom.
On August 31, 1943, the North Atlantic Transport Company, Inc., as owner of the Chagres, and the United States Lines as bareboat charterer of the Chagres, filed a petition for exoneration from or limitation of liability
for the sinking of the Reigh Count. An ad interim stipulation for value in the sum of $ 671,311.97 with interest at 6% from June 5, 1943, representing the total aggregate value of the petitioners' interest in the Chagres and her pending freight, was filed with the petition. The petition alleged that before the commencement of the voyage on which the collision occurred the owners and the charterers had exercised due diligence to make the Chagres seaworthy and that she was seaworthy and fit for the voyage at the time of the collision. It was further alleged that the collision and the damages resulted therefrom were not caused or contributed to by any fault or negligence on the part of the Chagres but were due solely to the fault and neglect of the Reigh Count in that:
'1. She was not in charge of competent persons.
'2. The persons in charge of her were not attentive to their duties.
'3. She was not maintaining a proper, alert, and efficient lookout in the existing conditions of weather.
'4. She negligently failed to comply with the official instructions issued by the Naval Control Officer, as referred to above, by failing to maintain her assigned position properly in the aforesaid single line formation.
'5. She negligently failed to maintain the course which she should have maintained in carrying out the instructions of the Naval Control Officer.
'6. She negligently failed to blow proper fog signals.
'7. The persons in charge of her negligently failed to heed or hear the fog signals of the Chagres or of the other vessels which were proceeding ahead of the Chagres.
'8. The persons in charge of her failed to heed the fact indicated by the fog signals of the Chagres and other vessels ahead of her that the Reigh Count was not on a proper course and was approaching and crossing the path of the convoy vessels already steering on the 075 degrees true course; and thereupon negligently failed to stop and reduce her speed to avoid crossing the path of those vessels and to relocate herself properly in the single line ahead formation.
'9. She did not sight the Chagres or the navigating lights of the Chagres as soon as she should have, and negligently failed to maneuver promptly when she did sight them, or negligently failed to take immediate steps or action to avoid the collision.
'10. She negligently failed to avoid crossing the prescribed convoy course which the Chagres was following and which the persons in charge of the Reigh Count knew or should have know.
'11. She was not in proper and seaworthy condition or was not equipped with proper and sufficient pumps and suctions and failed to take proper steps to remain afloat after the collision occurred.'
It was also alleged that, if the collision and damage were not due solely to the fault and negligence of the Reigh Count, they 'were due to and incurred by reason of unavoidable exigencies, hazards and perils of wartime navigation of convoys under governmental regulations and orders without any fault of the steamship Chagres and the persons in charge of her, or anyone for whom your petitioners are responsible, * * * .'
The United States, as owner of the Reigh Count, filed a petition, on December 3, 1943, for exoneration from and limitation of liability for damages arising out of the collision between the Chagres and the Reigh Count. It was alleged that the Petitioner -- ' * * * had in every respect exercised due diligence to make said vessel tight, strong and staunch, and in all respects seaworthy, and properly manned, equipped and supplied. Upon the commencement of the voyage on which the disaster occurred and until the happening of the collision hereinafter described, the said Reigh Count was, in fact, tight, strong and staunch and in all respects seaworthy and properly manned, equipped and supplied.'
It denied any fault on the part of the Reigh Count and charged that the collision was caused solely by the fault and negligence of the Chagres in that:
'1. She was not being navigated by competent persons;
'2. The officer or officers in charge of her deck were inefficient and inattentive to their duties;
'3. She failed to keep a proper and diligent lookout;
'4. Her helmsman was incompetent and inattentive to his duties;
'5. She failed to maintain her convoy course;
'6. She failed to maintain her convoy position;
'7. She failed to maintain her convoy speed;
'8. She failed to adhere to the instructions issued for the guidance and safe navigation of the convoy;
'9. She failed to sound proper fog signals;
'10. She failed to take proper and reasonable steps to avoid collision:
'11. She did nothing to avoid the collision;
'12. She was unseaworthy in respects material to the collision.'
The Reigh Count petition also alleged that:
'The steamship Reigh Count was sunk as a result of the aforesaid collision and she and her cargo and equipment became a total loss, except that a portable lifeboat radio transmitter was saved and was ultimately delivered to a representative of your petitioner at Courock, Scotland. The value of said radio transmitter in new condition did not exceed the sum of $ 315.00 and its value in seaworn condition was much less, but cannot at present be accurately determined. The value of the Reigh Count upon the termination of her voyage did not exceed the sum of $ 315.00. The major part of the cargo on board the Reigh Count belonged to the petitioner and was carried for war purposes, and as to this cargo there was no pending freight. The balance of the cargo was likewise carried for war purposes and was consigned to various agencies and instrumentalities of the Government of the United Kingdom of Great Britain and Northern Ireland. The pro forma freight for this cargo amounted to $ 13,894.81 but was neither paid by nor charged to the shipper or consignee thereof, but was charged to petitioner's Lend Lease Administration, so that to this cargo also there was no pending freight.'
On December 31, 1943, the North Atlantic Transport Company, Inc., as owner, and the United States Lines Company, Inc., as charterer of the Chagres, filed a claim in the government's limitation proceeding for the sum of $ 100,000 for damage to the Chagres caused by the collision with the Reigh Count. On the same day they also filed an answer to the petition of the United States for exoneration from and limitation of liability denying the seaworthiness of the Reigh Count, denying any fault or negligence on the part of the Chagres, denying the government's right to limit liability, and alleging as a separate defense the fault and negligence of the Reigh Count substantially as alleged in the Chagres' petition for limitation of liability.
Thereafter, on June 1, 1944, the United States, as owner of the Reigh Count and part of her cargo, and as insurer and bailee of the remainder of her cargo and mail, filed its claim in the Chagres proceeding in the total sum of $ 4,711,372.12. On the same day the government also filed its answer to the petition of the Chagres for exoneration from and limitation of liability in which it denied the allegations of the exercise of due diligence to make the Chagres seaworthy, denied any fault or negligence on the part of the Reigh Count, and alleged that the fault of the Chagres (as set forth in the United States petition for limitation of liability) was the cause of the collision.
At the end of the consolidated trial of the limitation proceedings the Court reserved to the United States the right to move to amend, in certain respects, its petition and answer in the respective proceedings until the time for the filing of briefs, at which time the government moved to amend its petition by adding the following allegations to Article Six of its petition:
'13. She (the Chagres) failed to sound one short blast on her whistle as required by Article 28 of the Rules when she turned to starboard.
'14. She failed without reasonable cause to stand by the Reigh Count after the collision and to render assistance to the Reigh Count, her master, officers and crew, from the dangers caused by the collision; she likewise failed to give to the master of the Reigh Count her name and port of registry, and port to which she belonged, and the name of the ports and places from which and to which she was bound, as required by statute.'
The motion to amend is granted.
The Reigh Count was a single screw shelter deck ship with freeboard. She was 400 feet in length, 52.1 feet in beam and 27 feet in depth, and of 4,657 tons gross. She was built in 1907 at Newcastle, England, and prior to out entry into World War II was under the Italian flag. At the time of the collision she flew the flag of the Republic of Panama. She was classed 100 -- Al by Lloyd's and Al, A.M.S. by the American Bureau of Shipping. On May 25, 1943, she sailed from New York with a full complement of officers and crew bound for Boston, Mass. via the Cape Cod Canal. She arrived at Boston on May 28, 1943, and on June 1, 1943, departed in convoy bound for Halifax, Nova Scotia, where she arrived on June 3, 1943.
The Chagres was a single screw two deck steamship, 410.5 feet in length, 54.3 feet in beam and 27.2 feet in depth, and of 5,592 gross tons. She was built in California in 1919, and, like the Reigh Count, flew the flag of the Republic of Panama. On May 27, 1943, she departed from New York bound for Halifax, Nova Scotia, via Boston, Mass. On June 3, 1943, she arrived in Halifax harbor.
The Chagres and the Reigh Count were part of a 51 ship convoy scheduled to depart from Halifax found for ports in the United Kingdom on June 5th. The masters of both vessels attended a convoy conference on June 4th at the office of the Naval Control Officer at Halifax and received specific written instructions for departing from Halifax Harbor and for forming up the convoy. These Sailing Orders and Convoy Routeing Instructions provided that the vessels of the convoy pass through the gate or entrance to Halifax Harbor at specified times, at intervals of three minutes; that the vessels follow a single line formation in taking their departure to the point at which the convoy was to form up. The Instructions specified the speed at various points as well as the standard or convoy speed; the route to be followed as designated in points of latitude and longitude or by reference to certain navigational aids; the procedure in clear weather and in conditions of low visibility at the point where the convoy was for form up; and the usual provisions relating to rendezvous points and stragglers.
The following is quoted from the instructions:
'Convoy Routeing Instructions
'Section 'A', SPEED 7.5 KNOTS
Ships are to proceed in single line ahead to disembark Pilots of Neverfail Buoy.
'Ships are to continue in Single Line Ahead adhering strictly to the following departure instructions.
'Pass close west of Buoys in following positions:
Buoy 'A' 44.30.45 N. 63.30.15 W. Red Con Fl. Red
Buoy 1 44.28.50 N. 63.29.20 W. " " " "
Buoy 2 44.27.00 N. 63.28.33 W. " " " "
'Thence alter course to pass close east of Sambro Lt. Vessel.
Thence within 4 cables east of a line joining the following positions (not marked by buoys):
'Note: Vessels Must on No Account Attempt to Form up Until This Position ...