The opinion of the court was delivered by: RYAN
Two suits in the admiralty are brought as a result of a collision which occurred in the open waters of the Florida Straits about 11 miles eastward of Fort Lauderdale, Florida, on December 26, 1941 at about 5.45 a.m. G.M.T. less 3 (4.45 a.m. E.S.T.), between the Nancy Moran, a seagoing tug, and the PC-451, a United States Navy Patrol craft.
In one suit Moran Towing & Transportation Co. Inc., bareboat charterer, and General Motors Sales Corporation, owner of the Nancy Moran, seek to recover damages for her total loss from the United States under the Public Vessels Act 46 U.S.C.A. § 781-790.
The second suit is a cross-libel filed by the United States for damages alleged to have been sustained by the PC-451 in the amount of $ 4,000. In their answer to the cross-libel the operators and owners of the Nancy Moran claim the benefit of the statutes for limitation of liability, 46 U.S.C.A. § 183 et seq.
At the close of the trial, the Government moved to amend its cross-libel and to increase the claim for damages to the PC-451 from 'approximately $ 4,000.' to $ 7,106.17. This was opposed and it was urged that since limitation of liability had been pleaded no amendment to the ad damnum clause should be allowed at this late date.
The pleading of limitation of liability in an answer does not in and of itself preclude a subsequent motion to increase the amount of the ad damnum clause. Limitation of liability may be sought either by a defense set up in the answer under Section 183 or by petition under Section 185, 46 U.S.C.A. The six-month limitation on the filing of a petition for limitation of liability provided for in the latter section does not apply to the defense of limitation of liability in an answer. The Chickie, 3 Cir., 141 F.2d 80.
Judge Bright in Cantey v. McLain Line, Inc., et al., D.C., 40 F.Supp. 887, wrote at page 889:
'Statutory provisions for limitation of liability should be construed liberally in order to effect their beneficent purposes. Larsen v. Northland Transportation Co., 292 U.S. 20, 24, 54 S. Ct. 584, 78 L. Ed. 1096. The trend of present day procedure is likewise on the liberal side, and I am content to adopt the language of Rule 15(a) of the Federal Rules of Civil Procedure (although under Rule 81(a) it has no application here), that leave to amend 'shall be freely given'. 28 U.S.C.A.following section 723c.'
These views are now followed and the amendment to the cross-libel permitted.
Now, I am called upon to decide which vessel, if either, was at fault. From the testimony presented I make the following findings --
The Nancy Moran was 21 days in service when she sank following the collision. She was of steel construction, 105 feet long, 25 feet beam and 11 feet deep; she was 212 gross and 69 net tons; she was propelled by a 1200 horsepower diesel motor which was controlled from the pilot house. The hull of the Nancy Moran was painted black and the housing, green. She could manoeuvre easily-making 14 knots over the ground with her rudder put hard to the right, the Nancy Moran could make a complete circle without advancing more than 200 feet. She could back very quickly from full ahead and with the control put to full astern she could be completely stopped in less than two and a half times her length -- within about 250 feet. Her pilot house was built well to the bow. The forward part of the pilot house was set back no more that 15 feet from her stem.
The USS PC-451 was a patrol craft of steel construction, manned by the United States Navy. She was 165 feet long at the water line, 170 feet over all, 21 feet maximum breadth, displacement 360 tons. The pilot house had bridge wings on port and starboard sides. She was equipped with a gyro compass with the steering repeater by the helm and a repeater on each bridge wing. Her main power plant consisted of two 2,000 horsepower, 16 cylinder diesel engines driving with twin screws. The diameter of her turning circle on a hard right was 250 yards and on a hard left, 275 yards. To accomplish a change of 45 degrees left, the advance would be about 75 yards and the transfer approximately 60 yards. From full ahead, at 15 knots, to full astern the advance of the PC-451 was between 180 and 200 yards; and on a crash back test the ship was dead, when traveling at 15 knots, in about 33 seconds.
The Crew of the Nancy Moran --
The Nancy Moran was under-manned. She had but two licensed officers -- a master and a mate -- in her deck complement, instead of three as required by statute, 46 U.S.C.A. 223. She had only two seamen in her deck complement, and here too she was under-manned, being short one seaman and an extra day-man. Her seamen and licensed deck officers were, because of the shortage of personnel, standing two '6'-hour watches in each 24 hours instead of the required three watches of '4' hours on and '4' off, 46 U.S.C.A. § 673. The Nancy Moran had no lookout and no seaman exclusively charged with the duties of a lookout. At the time of the collision there were on deck only the mate, Johansen, sho acted as deck officer and seaman Holland, the quartermaster, both of whom had come on at 12 m. She was also short a man in the engine room and altogether carried a crew of ten only instead of the usual fourteen.
The Crew of the PC-451 --
The PC-451 was fully manned at the time of the collision. Her captain was in the pilot house acting as navigator or officer of the deck; there were two bow lookouts and a lookout on both the starboard and port bridge wings. In addition to the captain there were in the pilot house the helmsman, a telephone talker and a sound gear operator. The PC-451 had a crew of three officers and fifty-three men, which was an ample number to man her adequately.
The Course of the Nancy Moran --
The Nancy Moran sailed from New Orleans at about 12.45 p.m. on December 23, 1941, bound for New York. Before leaving New Orleans, her master received instructions and orders from the United States Navy to run without lights; no particular route had been designated for her to follow. She was running light on the night of December 25-26, 1941, proceeding northward through the Florida Straits. At 11.33 p.m. she was abeam of Molasses Reef Lighthouse, on a course of 40 degrees True, 41 degrees on compass, 1 degree easterly deviation; at 12.40 a.m. she was abeam Carysfort Reef Lighthouse, distant 9.5 miles; at 1.36 a.m. she was abeam Pacific Reef Lighthouse, distnat 7.5 miles. The last fix of the Nancy Moran, prior to the collision, was at 2.31 a.m. when Fowey Rocks Lighthouse was abeam, distant 8.5 miles. The course of the Nancy Moran from that point on until the collision was 6 degrees P.S.C., 7 degrees T.
The Course of the PC-451 --
The PC-451 had been ordered out of Key West on December 24, 1941 to patrol the Florida Straits against submarines and to meet and escort to the southward a troop convoy. This was her mission at the time of the collision; she was accompanied by the USS Biddle -- a 1200 ton destroyer. During the afternoon of December 25, 1941 she patrolled north in the Florida Straits in the hope of meeting the convoy before the end of daylight. She had not been successful and at nightfall she turned south and proceeded in a general southerly direction down the Florida Straits, about 11 miles off the Florida Coast. She was traveling substantially in the axis of the Gulf Stream current where northbound traffic might be encountered and where customarily only northbound traffic proceeded. Throughout the night she had maintained a course of 180 degrees T., 181 degrees P.S.C. at a uniform speed of 15 knots, both of which were maintained until the collision encounter. Her last fix, prior to the collision, was at 4.36 a.m. when she passed the Hillsboro Inlet Lighthouse abeam to starboard, distant 11 miles. The PC-451 was running without lights also.
At 3 a.m. the Nancy Moran advanced her clocks to Eastern Standard Time. The PC-451 was traveling on Greenwich time plus four, i.e. when it was 4 a.m. on the PC-451 it was 3 a.m. on the Nancy Moran. The collision occurred at 4.45 a.m. by time of Nancy Moran, 5.45 a.m. by time of PC-451.
The Sea and Visibility --
The sea was smooth and there was a light wind easterly, force 2. The atmosphere was clear but overcast, and it was a very dark night; there was no moon. There was very poor visibility for unlighted objects and darkened ships. There was no horizon anywhere.
The Relative Positions of the Ships when the First Encountered --
The testimony presents a sharp issue on the important and basic factual question of the relative positions of the vessels on their actual courses when the took alarm.
Nancy Moran has pleaded and contends that there was a head-on meeting. PC-451 has pleaded and contends that it was a starboard-to-starboard situation.
On this, the testimony of Johansen, the mate, is the only affirmative proof offered by the crew of the Nancy Moran. Andersen, the master, was at the time of the first sighting in his stateroom immediately abaft the pilot house. Efforts to locate Holland, the quartermaster and helmsman, it is conceded, have been diligently but unsuccessfully made; we have no testimony from him.
Johansen held an unlimited master's license since 1921. He was an officer of long experience. He was navigating the Nancy Moran with Holland at the wheel. Johansen stood close up to the open window on the port forward side of the pilot house keeping a lookout The Nancy Moran had no navigating lights and the pilot house was completely dark, save for the shaded compass light. She was running at a speed of 11.5 miles through the water with her engine control throttle at position '14', which for running purposes was considered full speed. With the acceleration of the current of the Gulf Stream, the speed over the ground was about 15 knots.
Johansen testified that he saw a dark object ahead, a little on the port bow -- about 4 degrees on it. It looked like a cloud or smoke on the water; he could not make any ship shape of it. He gave the quartermaster an order, observed and checked its execution and then turned back to observe again the dark object. At that time, he testified he saw 'a loom like of a ship heading right for me * * * she was heading right for my pilot ...