The opinion of the court was delivered by: BONDY
These five suits arise out of four collisions that took place during the existence of dense fog in the wartime swept channel approach to New York Harbor.
In the first proceeding, the Socony Vacuum Transportation Company, Ltd., as owner of the S.S. Voco, seeks exoneration from or limitation of liability. Claims for damage have been filed in this proceeding by the Compania Sud-Americana de Vapores, as charterer and bailee in possession of the S.S. Choapa; the Commodity Credit Corporation and others as owners of cargo on board The Choapa at the time she sank; Leslie Bentley, as master and bailee of the S.S. Empire Garrick; and the United States of America, as owner of the S.S. John P. Poe. The right of the owner of The Voco to limit liability is not disputed. The question remaining is its right to be exonerated.
The second proceeding is a petition by the Compania Sud-Americana de Vapores, charterer of The Choapa, for exoneration from or limitation of liability. Claims for damage have been filed on behalf of The Voco, Empire Garrick and John P. Poe. The issue before the court is whether the petitioner should be exonerated. Its right to limit liability is not disputed.
These two limitation proceedings are the result of collisions on the afternoon of September 21, 1944 between The Voco and Choapa, Empire Garrick and Choapa, and Empire Garrick and John P. Poe.
The third suit is by the charterer of The Choapa against the master of The Empire Garrick to recover for damage alleged to have been sustained as a result of the aforementioned collision between the two vessels.
The fourth and fifth suits arise out of a collision between The Choapa and another vessel on the evening of September 20th. At the time of collision the identity of that vessel was not known. Subsequently, however, information was received by the Compania Sud-Americana de Vapores tending to identify the unknown vessel as The British Harmony, owned by the British Tanker Company, Ltd. Thereupon the charterer of The Choapa filed a libel against the owner of The British Harmony, the fourth suit herein, for damage sustained by The Choapa in the collision on the evening of September 20th. The owner of The Harmony filed an answer admitting that The Harmony collided with another vessel that evening, but denying that the vessel was The Choapa. The fifth suit, a cross-libel by The Harmony against The Choapa, has been stayed by the injunction in The Choapa's limitation proceeding. It has been agreed, however, that the owner of The Harmony may file a claim in the limitation proceeding of The Choapa, nunc pro tunc, for the damage sustained by her if it be determined that she was in fact the vessel which collided with The Choapa on the evening of September 20th.
All the parties have consented to consolidate the several proceedings for the purpose of this trial. Nevertheless, whenever depositions introduced in evidence were taken without opportunity of cross examination by any party to these proceedings, the court has not considered the testimony binding on such party.
The witnesses for The Choapa, a vessel with an overall length of 307 feet, breadth of 41.7 feet and depth of 18.9 feet, told the following story concerning the first of her three collisions: On the evening of September 20th, in a dense fog, The Choapa was proceeding fully laden into New York as part of a convoy consisting of a port column of seven ships and a starboard column of six. The Choapa was maintaining her position as the fifth ship in the port column. The master of The Choapa knew that there was a swept channel, marked by mid-channel buoys, in the approach to New York Harbor, but had not received any instructions as to the exact position of the buoys or the compass direction between them. For some time before the collision The Choapa proceeded at the convoy speed of 8 knots and followed the courses signalled from time to time by The Commodore, maintaining her position in the port column by the bearing of the signals of the vessels ahead, astern and to the starboard. Her master could not recall her precise compass heading at the time the vessel with which she subsequently collided was sighted. His recollection was that The Choapa's heading lay between 310 and 320 degrees true. Visibility was less than 1000 feet, and The Choapa was showing her navigating lights, sounding regulation fog signals and maintaining a proper lookout forward. Suddenly a fog blast was heard off The Choapa's starboard bow which seemed to come from a vessel other than one of the convoy units. The Choapa's engines were immediately stopped. As soon as the white masthead light of a vessel came into view close off the starboard bow, approximately 900 feet away, The Choapa's engines were put full speed astern and her rudder hard astarboard in an effort to avoid collision by a port to port passing. When the loom of the other ship was seen she appeared to be moving across the path of The Choapa at an angle of about 45 degrees and was too close to be avoided by The Choapa's starboard rudder, whereupon The Choapa put her rudder hard aport in order to minimize the contact. By her prompt engine movements The Choapa's 8 knot headway had been largely reduced when the collision occurred at 7:53 P.M. The stem of the other vessel, identified at the time as a tanker, struck the starboard side of The Choapa abreast of No. 2 hold, scraped aft along the side to a point about abreast of the forward end of No. 4 hold, and struck and demolished The Choapa's starboard lifeboat, which was hung outboard as a wartime precaution. The tanker then disappeared along the starboard side off the stern of The Choapa into the fog. Following the collision, an investigation by the Chief Officer and First Engineer disclosed that the damage to The Choapa was not serious, and the Convoy Commodore was so advised by wireless. The Commodore thereupon instructed the master of The Choapa by radio to anchor well clear to starboard and to proceed at his discretion when visibility permitted. Thereafter, at 8:47 P.M., The Choapa dropped her anchor in compliance with the Commodore's instructions.
The witnesses for The British Harmony, a tank steamer with a gross tonnage of 8,452 1/2, net tonnage of 4,896 1/2, overall length of 482 feet and width of 61 feet, gave the following version of her collision: On September 20, 1944, The Harmony, fully laden and acting under Naval orders, took her departure from Gedney Buoy in New York Harbor at 3:30 P.M. Preceded by a convoy patrol vessel and followed by two merchant ships, she proceeded in single-column formation outbound through the swept channel, the middle of which was marked by buoys lettered I to A, located approximately three to four miles from each other. On account of the dense fog The Harmony proceeded at speeds varying between three and five knots and sounded regulation fog signals. Her Master, Chief Officer and Helmsman were on the bridge, and a lookout was stationed on the forecastle head. The Naval instruction received by The Harmony required her to pass all of the mid-channel buoys on her port hand, and these instructions were complied with except that Buoys I and D were passed close to starboard. At 6:57 P.M., when in the vicinity of Buoy E, the navigation lights of The Harmony were turned on and her course was altered to 133 degrees true, which was the channel course between Buoys E and C. At this time The Harmony was maintaining a speed of 3 to 4 knots. When Buoy D was sighted at 7:30 very close by on her starboard hand, she altered her course 8 degrees to starboard in order to pick up Buoy C on her port side. At approximately 7:39 the whistle of a vessel sounding the signal 'K-7' in Morse Code was heard ahead and interpreted by the Master of The Harmony to mean that the vessel sounding it was leading a convoy and proceeding at a speed of 7 knots. Shortly thereafter The Harmony sighted a vessel about 1000 feet on its starboard bow, heading on practically an opposite course, and the two ships passed each other starboard to starboard. Thereupon The Harmony immediately put her wheel hard astarboard and advanced her engines to full ahead. This speed was maintained for about a minute and a half for the purpose of facilitating quick rudder action and then reduced. Thereafter The Harmony, swinging around to a course of approximately 180 degrees true, crossed ahead of two other incoming vessels consecutively, in each instance advancing her engines to full ahead for about a minute or a minute and a half, and then reducing her speed to slow ahead. After these maneuvers she returned to her outbound channel course of 133 degrees true. At about 7:44 1/2 P.M., upon hearing a fog whistle bearing approximately two points off her port bow, her engines were stopped. They remained stopped until 7:50, at which time a slow ahead order was given for the purpose of maintaining steerageway. That order, however, was countermanded by a full astern order about twenty seconds later when a white light with a green light underneath were observed bearing about four points on The Harmony's port bow. The vessel sighted to port continued across The Harmony's bow from port to starboard, bringing her starboard side lightly into contact with The Harmony's stem at 7:52, the angle of collision being between 80 and 90 degrees. At the time of impact The Harmony was 'practically stopped' and starting to go astern. After the initial light impact the colliding vessel proceeded ahead, scraping her starboard side against The Harmony's stem for some distance before disappearing off The Harmony's starboard bow. While the two vessels were in contact, estimated to be twenty seconds, the Master and Chief Officer of The Harmony observed that the colliding vessel appeared gray with a white funnel, but subsequent efforts to communicate with the vessel and learn her identity were unsuccessful. Thereafter The Harmony dispatched an 'S.O.S.' message, giving notice of the collision, and, because the other ship did not appear to be damaged, resumed her outbound course of 133 degrees true, leaving Buoy C about four cables to port.
The Choapa has the burden of proving that the vessel with which she collided on the evening of September 20, 1944 was The Harmony. Neither The Choapa's witnesses nor those for The Harmony were able to identify the vessel with which they collided on that evening. The Master of Choapa was unable to offer proof of identification of the other vessel other than by describing her as a 'tanker'. Similarly, The Harmony's witnesses were unable to identify the ship with which their vessel collided, except that the Master and Chief Officer both testified that they concluded she was a British ship because her hull appeared to be painted gray and her funnel white, in accordance with the regulations of the British Ministry of War Transport for vessels trading in the North Atlantic at the time; whereas The Choapa's funnel and hull were painted dark gray. Nevertheless, the similarity of each side's testimony as to the time, place and manner of collision convinces the court that the vessel with which The Choapa collided on the evening of the 20th was The British Harmony.
The Harmony's log-books show that the collision took place between 7:51 and 7:52 P.M. and The Choapa's rough engine room log reports 'a strong shaking' at 7:53. Although the deck log of The Choapa records the collision as occurring at 7:40, her Master testified that the notation in the rough engine room log was more accurate because entries in the deck log were not made until some time after the events described therein.
Furthermore, the evidence indicates that both vessels were somewhere between Buoys E and C in the swept channel approach to New York Harbor at the time of their collision. Witnesses for The Harmony testified that she had passed Buoy D but had not yet sighted Buoy C when she encountered an inbound convoy and starboarded across its path. It does not appear that any of The Choapa's witnesses saw or heard any of the mid-channel buoys while proceeding inbound, and her Master admitted that he did not know whether he was in the swept channel at the time. Nevertheless, in view of the Master's testimony that he was on a course somewhere between 310 and 320 degrees true, and the fact that the up channel course between Buoys C and E was 313 degrees true, it is reasonable to infer that The Choapa's Commodore was leading his convoy through the swept channel between Buoys C and E when the collision took place.
Finally, the testimony of The Choapa's witnesses to the effect that the stem of the vessel with which she collided came into light contact with her starboard side abreast of No. 2 hold, scraped aft along her starboard side and damaged an out-rigged lifeboat strongly resembles The Harmony's description of the collision.
In view of the conclusion of the court that The Choapa has sustained her burden of proof on the issue of identity, it remains to determine where the fault lies for the collision.
On behalf of The Choapa it is contended that The Harmony was at fault for: (1) navigating on the wrong side of the swept channel in the waters of the inbound convoy; (2) altering her course to starboard and hauling across the path of the inbound convoy; and (3) failing to take immediate avoiding action upon sighting The Choapa. The Harmony, on the other hand, condemns The Choapa for: (1) proceeding at a rate of speed that was excessive in view of the dense fog; (2) maintaining an inefficient watch; and (3) navigating on the wrong side of the channel.
In seeking to establish that The Harmony was on the wrong side of the channel at the time of the collision, The Choapa relies heavily on testimony furnished by witnesses for The Harmony, since her own witnesses, not having been informed by the Commodore that the convoy was proceeding through the swept channel, did not have any knowledge of her position with respect to the mid-channel buoys. The Harmony, required by her Naval instructions to keep to the west of the buoys, was admittedly on the wrong side of the channel when she came down to the eastward of Buoy D. Her Master testified that after leaving Buoy E properly to port, he altered his course to 133 degrees true, the outbound channel course between Buoys E and C, and that he was still on that course when he passed Buoy D 'very close' on his starboard hand. He admitted that he had not made any allowance for the possible effect of wind or current and suggested that a light westerly wind might have been responsible for The Harmony being out of position at Buoy D. The Chief Officer of The Harmony, who was on watch on the bridge, testified on direct examination that with the aid of field glasses he saw the letter 'D' and trellis work of Buoy D only 50 to 100 feet away to starboard. If this testimony of the Chief Officer is to be believed, then, in view of the subsequent maneuvers of The Harmony (altering her course 8 degrees to starboard, maintaining it for about 9 minutes at a speed of 3 or 4 knots, and then putting her helm hard astarboard), not only was The Harmony on the proper side of the channel at the time of the collision, but also when she sighted the first vessel in the incoming convoy.
However, the Chief Officer's story is discredited by his testimony on cross-examination that after steering a course of 8 degrees to starboard for 9 minutes after passing Buoy D, The Harmony was on the line of the buoys. Taking an average speed of 3 1/2 knots for the 9 minute period, her 8 degree alteration in course would have carried The Harmony over 400 feet laterally from her position abeam of Buoy D. Therefore, if The Harmony passed only 50 to 100 feet to the Eastward of Buoy D, at the end of 9 minutes she would have been approximately 300 to 350 feet to the westward of mid-channel and not merely on the line of the buoys. This inconsistency in the two estimates by the Chief Officer casts grave doubt on the reliability of either, a doubt not dispelled by the testimony of The Harmony's master, who at first admitted that he was still on the wrong side of the channel when he passed the first vessel of the incoming convoy, but then changed his mind and testified that by that time he was just at mid-channel. It seems clear that neither the Master nor the Chief Officer had any means of knowing with certainty where their vessel was with respect to the middle of the channel. Since there is no evidence, and no reason to suppose, that the convoy was being led up the westerly side of the channel, the likelihood is that The Harmony passed Buoy D considerably further to the eastward than estimated by her witnesses and that she was still in easterly waters when she encountered the convoy.
Under these circumstances, the navigators of The Harmony must be held at fault for altering her course to starboard after passing the first vessel in the convoy starboard to starboard and hauling across the path of the convoy. Cf. United States v. Valldemosa S.S. Co., (The Valldemosa), 2 Cir., 162 F.2d 759; Alcoa Steamship Co. v. The Sovac (Socony Vacuum Transportation Co.), 1946 A.M.C. 811. The Master of The Harmony admitted that his hard right rudder action put him athwart the course of the convoy, but stated 'I preferred to do what I did rather than run down the middle of the two columns (if there were two columns) of this convoy,' and 'given a little speed, I intended crossing astern of the first ship and ahead of the second ship- and then I would have been well clear of this convoy.' This explanation hardly absolves The Harmony in view of the fact that her predicament was the result of her own negligence in navigating on the east side of the channel.
In order to avoid liability The Harmony has the burden of proving that her negligence in this respect was not a cause of the collision. See Southern Pac. Co. v. U.S., 2 Cir., 72 F.2d 212, 214; Tidewater Associated Oil Co. v. U.S., D.C., 60 F.Supp. 376, 381-382. In this connection her Master and Chief Officer testified that before The Choapa was sighted The Harmony had reached the west side of the channel and had swung back to the channel course of 133 degrees true. However, in view of the testimony that the collision occurred at an angle of between 45 and 90 degrees, it is highly improbable that The Harmony was on a course of 133 degrees true when The Choapa was sighted, since that would mean that The Choapa was proceeding approximately 45 to 90 degrees to the west of the up channel course and heading toward the New Jersey shore.
In a brief on behalf of The Harmony it is suggested that The Choapa's Master was navigating by following the fog blasts of the vessel ahead, rather than by steering an exact compass course; that, mistaking the fog blast of The Harmony for that of the vessel ahead, he directed his course toward the British vessel; and that this 'would account not only for The Choapa being out of her column line and far over toward the west side of the swept channel, but would also, in conjunction with the hard-over port helm order executed by The Choapa shortly prior to the collision, account for the wide-open collision angle.'
This explanation, based on pure speculation, is refuted by the evidence and the reasonable inferences to be drawn therefrom. The Choapa's Master testified that he at all times followed the courses ordered by the Convoy Commodore and that when he sighted The Harmony he was proceeding on a course somewhere between 310 and 320 degrees true. Although he could not remember the precise course, his recollection of it being between 310 and 320 true is consistent with the fact that the course for inbound vessels between Buoys D and C was 313 degrees true. The Master's testimony that he kept his position by listening to the blasts of the ships ahead, astern and to the starboard of him referred to maintaining his position in relation to the other vessels in the convoy, and is entirely consonant with his testimony that he was steering the course ordered by his Commodore. Moreover, it does not seem plausible to attribute the wide-open collision angle to the hard left helm action taken by The ...