The opinion of the court was delivered by: COXE
These suits grow out of a collision in the North Atlantic on the night of October 14, 1944, between the Liberty ship 'Howard L. Gibson', owned and operated by the United States, and the 'George W. McKnight', a British merchant tanker, owned and operated by Anglo-American Oil Co., Ltd., a British corporation. Another United States vessel, the Liberty ship 'Stephen T. Mathers', due to the failure of her gyro compass, strayed from her assigned position in the convoy, and is charged with faults contributing to the collision. All of the involved vessels were in the same wartime convoy, consisting of about 70 ships, proceeding eastward from Norfolk, Virginia, to the Mediterranean.
In the collision the bow of the 'Gibson' struck the port side aft of the 'McKnight', approximately 190 feet from the stern, and at an angle of about 65 degrees, cutting into a tank containing high octane gasoline, and causing extensive fires to break out on both vessels. Both vessels were thereupon abandoned, but, later, parts of the crews came back, and, with help from the Navy escort vessels, the fires were brought under control and the damaged vessels proceeded to African ports, where temporary repairs were made, and the vessels subsequently returned to the United States. Seven lives were lost in the collision, but only one death claim is asserted.
There are nine separate suits involved in the litigation, and all have been consolidated for trial under a single title. Some of these suits are duplications, and may be disregarded. Those remaining consist of the following:
(1) A suit by Anglo-American Oil Co., Ltd., against the United States, owner of the 'Gibson' and 'Mather', for collision damages; (2) a cross-suit by the United States against the 'McKnight' and her owner, for damages to the 'Gibson' and her Government-owned cargo; (3) two suits by owners and underwriters of privately-owned cargo on the 'gibson' against the 'McKnight' and her owner, for cargo damaged, in which the United States has been impleaded; (4) a suit by the Administrator of a member of the 'Gibson's' Navy Armed Guard, who lost his life in the collision, against the 'McKnight' and her owner, for wrongful death, in which the United States has been impleaded. In all of the suits the ship owner sued had claimed the benefits of the statutes for limitation of liability.
All of the witnesses for the 'McKnight', with one minor exception, testified by deposition. For the 'Mather', two witnesses testified by deposition and six testified at the trial. For the 'Gibson', three witnesses testified by deposition, two testified at the trial, and the statements of two others were stipulated.
The ships in the convoy were arranged in thirteen parallel columns, numbered consecutively from left to right, and except for the 7th and 13th columns all of the columns had five or six ships. The prescribed distance between columns was 1000 yards and between ships in column 500 yards. The 13th column was a short column, with only four ships. On the night of October 14, 1944, the 'Mather' was No. 104, or the fourth ship in the 10th column; the 'Gibson' was No. 114, or the fourth ship in the 11th column; and the 'McKnight' was No. 126, or the sixth and last ship in the 12th column. Two other convoy ships, namely, the 'Vachel Lindsay', No. 124, and the 'Cornelius Ford', No. 125, have been drawn into the testimony; these ships occupied the fourth and fifth stations, respectively, in the 12th column.
The 'McKnight' was a Diesel-driven, twin screw vessel, 540 feet in length, 70.2 beam, 38.9 feet depth of hold, 12,502 gross tonnage, and 7009 net tonnage. The bridge was 200 feet aft of the bow. The top of the wheelhouse, or 'monkey island', was 55 feet above the water line, and it was there that the lookout was stationed. The navigation was conducted from the main bridge, just below. The wheelhouse was encased in concrete, with only narrow horizontal slits, or windows, forward and at the sides.
The 'Gibson' and the 'Mather' were standard Liberty cargo ships, 422.8 feet in length 56 feet beam, 34.8 feet depth of hold, 7136 gross tonnage, and 4380 net tonnage. These figures do not appear in the record, but have been taken from the 'McKnight's' brief, and are not in dispute.
It is not possible to fix the exact time of the collision, for the ships were keeping different times due to the change in time from one time zone to another. The 'Mather# witnesses placed the time of the collision at about 8:25 P.M.; those on the 'Gibson', at about 7:40 P.M., and those on the 'McKnight', at about 8:00 P.M.
The convoy was proceeding on a course of 90 degrees true, i.e., due east, and all of the vessels were blacked out. The official speed was 9 1/2 knots, but the evidence indicates that the ships were making something more than that, or about 10 knots. The night was dark; there was no moon; the weather was clear, with stars overhead; there were some broken clouds in the east, and the sea was moderate, with no appreciable wind. There is a dispute in the testimony as to the visibility, and that will be dealt with later. At about 4:00 o'clock on the afternoon of October 14th, a general message was sent out by the Commodore to all ships in the convoy, warning against submarines in the vicinity.
Navigation of the 'Mather'.
The 'Mather', No. 104, as already stated, was the fourth ship in the 10th column, and her beam ship on the starboard side was the 'Gibson', No. 114, or the fourth ship in the 11th column. The navigation was being conducted by gyro, from the flying bridge. There were two lookouts stationed on the bow of the vessel, one a member of the Navy Armed Guard and the other a merchant seaman. Another merchant seaman was acting as lookout on the starboard wing of the flying bridge. The watch officer on the 8:00 to 12:00 P.M. watch, on October 14th, was McBride, the third mate, who testified at the trial. The master of the vessel was Captain Gavin, and his testimony was taken by deposition. The member of the Navy Armed Guard, who acted as one of the two bow lookouts, was Dougherty, and he testified at the trial.
McBride testified as follows: He came on watch at 7:40 P.M. according to the ship's clock, and could then 'barely make out the 'Gibson", which was 'lagging' about four points abaft the 'Mather's' starboard beam. The outlines of the ship on the port side could, however, be seen 'fairly well'. There were 'dark clouds coming from the east, and periodically they would black out everything dead ahead', but this condition would only 'last momentarily, maybe two or three minutes', and when the clouds 'lifted, you could make out the outlines' of the ships ahead. These clouds did not at any time black out the vessels to port or starboard. Shortly after 8:00 o'clock, or about 25 to 30 minutes after McBride came on watch, he noticed 'a sudden flash of ships' across his bow. He immediately called to Cameron, the helmsman, asking for his heading, and Cameron answered that 'he was right on the course'. McBride thereupon ran over and looked at the gyro himself, and found that the heading as shown by the gyro was 90 degrees true, which was the convoy course. 'Within a minute or so afterwards' one of the bow lookouts called out 'Ship dead ahead'. McBride also saw this ship, which he said was a Liberty ship, (apparently the 'Vachel Lindsay', No. 124), and he ordered the wheel 'hard right', clearing the Liberty ship's stern 'very close'. He then sent for the captain. During this period of about 25 to 30 minutes after McBride came on watch, the 'Mather' had swung to the right, away from the line of the 10th column, had passed through the 11th column, and had reached the 12th column, and yet, according to McBride's testimony, it was not until he had seen the 'sudden flash of ships' across his bow, and had looked at the gyro himself, that he 'knew something was wrong'.
Captain Gavin testified as follows: He was on the bridge looking around at 'about 8:00 o'clock', on the change of the watch, but he apparently remained there only a very short time before going to his office on the deck below. (Gavin's time of 'about 8:00 o'clock' seems to synchronize with McBride's time of 7:40 P.M., when he came on watch, as Gavin said that he started advancing his clocks 20 minutes each watch at 6:00 P.M., whereas McBride said that the ship's clock was not advanced at all until midnight.) Gavin's testimony regarding conditions at 8:00 o'clock was that the 'Mather' was then had been in his position he could have seen the ship ahead of him with his naked eye; he could have seen the lead ship of the column with a pair of glasses; and he could have seen the ships 'on either side'.
At about 8:25 P.M., while Gavin was in his office, he was called to the bridge by McBride, and on reaching the bridge he noticed a ship on the starboard beam showing a red light-a 'port running light'. (This ship was identified at the trial as the 'Ford', No. 125) On seeing the red light Gavin asked the helmsman what the heading was, and was told that it was 90 degrees true. He then directed the helmsman to haul 'a little to the left', to clear the ship (i.e., the 'Ford'), 'about a ship's length away', and almost immediately afterwards the red light disappeared and the 'Mather' passed out of the convoy, through the line of the 12th column, between the stern of the 'Lindsay', No. 124, and the bow of the 'Ford', No. 125.
Soon after the 'Mather' had passed out of the convoy, there was an explosion, followed by flames, from the two ships in collision ('Gibson' and 'McKnight'), about two or three points on the 'Mather's' starboard quarter, and 'about a thousand feet away'. By this time Gavin's eyes had become adjusted to the darkness, but he could not understand why there were no ships ahead or alongside, and he asked McBride ...