The opinion of the court was delivered by: INCH
The Steamship Midland Victory, owned by the United States, under charter to the Black Diamond Steamship Corporation and the U.S. Transport FS-231, collided with each other in the open sea, with substantial damage to each boat, and with loss of life and injury to members of the crew of the Transport FS-231.
I shall hereafter refer to the Midland Victory as the Victory and to the FS-231 as the Transport.
The Transport blames the collision solely on the Victory. The Victory claims the collision was caused by the negligence of the Transport.
The United States also petitions for limitation and exoneration of the Transport. By consent in open court the suits were duly consolidated for the purpose of trial. By the co-operation of counsel, many material facts were not in dispute, as follows: the night of the collision was reasonably clear, with no storm and no wind to amount to anything, visibility was good, for almost half an hour the two ships knew the presence of each other, neither of the ships at any time reduced its speed, the same being full speed ahead until the actual collision, the bow of the Victory struck the starboard side of the Transport close to her stern, that prior to the collision the Victory blew a one-blast signal to the Transport, that the Transport answered by two blasts, thereupon the Victory blew another one-blast signal, and the Transport again crossed this signal with two blasts. In the meantime each vessel was rapidly approaching the other. Shortly thereafter the collision occurred.
There is a dispute about lights on the Transport, but no dispute as to lights on the Victory. There is no dispute that some lights were seen on each vessel, but what they were so far as the Transport is concerned, is not agreed upon.
There is some dispute as to the courses of the respective ships, although it is plain that they were approaching each other in the open sea. There is no dispute but that the Victory was making eighteen and one-half knots, perhaps a little more, and that the Transport was making nine and one-half knots, or perhaps a little more, so that the approach of each ship was rapid, as counsel for the Government estimated, the combined speeds were about twenty-eight hundred feet a minute, 'which means the ships were closing in as they were approaching each other at something between seven-eights of a mile, and one mile, every two minutes'.
The main and most important issue relates to liability for the collision between two vessels. The other is the suit for limitation of liability on the part of the Transport.
We will first take up the main issue.
The Black Diamond Steamship Corporation was operating, at the time in question, the steamship Midland Victory owned by the United States of America, and under a charter from the War Shipping Administration to it. The other vessel in the collision was the U.S. Transport FS-231, which was operated by the United States acting through the Army Transportation Corporation. The collision occurred in the Atlantic Ocean approximately at 11:30 P.M. on the night of August 24, 1946, about twelve miles from shore, at a point somewhat to the eastward of Fire Island Light buoy. The bow of the steamship Midland Victory (which I have referred to as the Victory) crashed at full speed into the stern of the Transport FS-231 which I have referred to as the Transport). The result was most serious, several men on the Transport were killed, and others are alleged to have been injured. Both boats were substantially injured. The Victory was coming to New York from Rotterdam, the Transport was leaving New York for Newfoundland. The Black Diamond filed a libel in this Court against the United States under the Public Vessels Act, 46 U.S.C.A. § 781, for damages sustained by the Victory. The United States filed a cross-libel against the Black Diamond for damages sustained by the Transport. As usual, each claims that the other ship was solely to blame. Considerable testimony has been taken, a great deal of which is contained in depositions. Much stress is laid in the testimony upon courses, rules, and many other things, all of which has required of this Court time to carefully read the depositions to be sure that nothing has been overlooked.
It seems to me, however, that the negligent navigation of these vessels is not so much dependent here on courses and similar matters, important as they may be in other cases, as it is on what those in control of each vessel saw, or carelessly omitted to see, or carelessly did, in the fifteen minutes or so prior to the collision, when the vessels were about three miles apart and then rapidly meeting, each proceeding at full speed, the Victory at eighteen and one-half knots, which was never reduced, and the Transport at approximately nine and one-half knots, which likewise was not reduced, so that the total speed was in the neighborhood of approximately twenty-eight knots, making this closing space between them quite rapid.
The Victory is a large steamship about 455 feet long and 62 feet wide, 7600 gross tons, carrying cargo, the Transport is a much smaller vessel, about 175 feet long and of much slower speed. To make matters worse, while the Master and crew of the Victory were experienced seamen, the Master and crew of the Transport, from the testimony I have read and heard, were neither competent nor experienced. This cannot absolve, however, those in charge of the Victory, for it was all the more important that they, as experienced seamen, exercise the reasonable care plainly necessary to prevent this collision in spite of the carelessness and inexperience of those in charge of the Transport.
Counsel for the Victory claim that the Transport was entirely to blame for the collision because she was improperly manned, failed to display proper side lights, was not on a proper course, that she went to port instead of starboard as the vessel approached, and carelessly attempted to cross the bow of the Victory, in spite of the signals from the Victory. That the Victory was blameless because she went to starboard shortly before the collision, that she kept full speed in order to avoid such collision, that if the situation did become a crossing one, hers was only a minor fault, and her navigation was proper.
Counsel for the Transport goes to the other extreme and claims that it was blameless, that her side lights and other lights were all burning brightly, and could have been seen by proper observation, that the officers on the Victory were not attentive, that the Victory was grossly at fault by going to the right when the Transport was going to her left, and that the Victory was guilty of these and other contributive faults, such as an incompetent lookout, failure to heed the warning of the constant bearing of the white light, running at full speed in disregard of her duty as an overtaking vessel, which, according to the testimony of the Captain of the Victory he stubbornly insisted was the situation, and in failure to give signals of her change of course, etc.
It is not unusual to find in cases of such collisions that what those in charge of the vessels saw, did, or omitted to do, in the ten or fifteen minutes just prior to the collision furnishes the best foundation for determining liability rather than discussion and expert testimony as to courses, general navigation and such other matters that would offer material aid in other cases where the evidence is different from that plainly established here. The various Rules governing navigation should, of course, be consulted (Title 33 U.S.C.A. § 103 et seq.), but the very purpose of these Rules is aimed at safety and avoidance of collision. As Chief Judge Learned Hand has well stated: 'If in doubt as to whether the other ship was converging or parallel, she was bound to assume the first; ambiguities must be resolved in favor of safety. * * * A constant bearing is a sure sign of danger, made so by the rules at their very outset; a danger signal which should put every mariner on guard. To be sure, ...