The opinion of the court was delivered by: KAUFMAN
The United States, the owner of the S.S. William J. Riddle, petitions for exoneration from, or limitation of, liability pursuant to 46 U.S.C.A. § 183. This proceeding arises out of a collision between the Riddle and the S.S. American Farmer, owned by the United States Lines. Claimants, in addition to the United States Lines, include insurers who have been subrogated to the claims of owners of cargo carried by the Farmer.
The Riddle is a four-hatch Liberty ship 441 feet, 6 inches in length. On the voyage on which the collision occurred, it had a mean draft of 15.08 feet. The Farmer is a C-2 type Liberty ship 459 feet, 1 inch long with a draft of 27 feet, 10 inches.
On the evening of July 31, 1946, both vessels were proceeding on Track C of the Atlantic Ocean, 650 to 700 miles west of the British Isles. The Riddle was traveling westbound, full speed ahead, which was approximately 9 1/2 to 10 knots. The Farmer, eastbound, was also proceeding at full speed ahead, or 16 knots. The ships were approaching each other on courses that were almost parallel; the Riddle steering 262 degree true, the Farmer 81 degrees true.
The sky was overcast and a moderate wind of about force 3 was blowing from the southwest. The vessels sighted each other at approximately the same time, i.e., 9:54 P.M. Farmer time and about 11:20 P.M. Riddle time. The time discrepancy is attributable to the different time zones in which the vessels were traveling. Five or six minutes after the ships sighted each other, the Riddle's bow crashed into the Farmer's port side forward of the superstructure, between No. 1 and No. 2 holds. The impact opened a large hole in the side of the Farmer and both holds were flooded when the bulkhead between them was carried away. Within half an hour the Farmer was abandoned. Her passengers and crew were taken aboard the Riddle and were transferred, the next morning, to another ship bound for the United States. Contrary to expectations, the Farmer remained afloat and was brought to England, where salvage was awarded.
There is no dispute that just before the vessels collided the Riddle turned hard left and the Farmer hard right. As to almost all the other facts material to the issues here involved there is entire disagreement. The Riddle contends that the two ships were approaching each other in a starboard to starboard passing situation, when the Farmer suddenly swerved hard right directly across the path of the Riddle. The Farmer contends that the vessels were approaching in a port to port passing situation and that the Riddle suddenly swung hard left into the path of the Farmer.
According to the testimony of the officers and crew of the Riddle, visibility had been poor from 8 P.M. on, due to mist and patches of fog, but improved somewhat between 11:10 and 11:15 P.M. Captain Brinson then left the bridge of the Riddle and went to the room containing the master gyro-compass. According to his testimony, he wished to determine whether or not a discrepancy previously noticed in the readings of the master gyro-compass and the repeater compasses on the bridge had recurred. A check was made with the aid of the Third Officer, Oehrlein, who remained on the bridge and communicated with Brinson by telephone. This check was completed in three or four minutes, at which time the Third Officer came to the door of the room and told Brinson that a single white light had been sighted. They immediately proceeded toward the bridge, where Brinson observed a light bearing to starboard which he estimated was about 13 degrees on the Riddle's starboard bow and 2 1/2 to 3 miles away. This light was broadening on the starboard bow when a sudden rift in the fog bank revealed a second white light below and to the right of the first one. The lights continued to broaden on the starboard bow and the degree of separation between them kept increasing. A few seconds later, a green light appeared. From these observations, Brinson concluded that the vessels were in a starboard to starboard passing situation.
Captain Brinson testified that when the lights had broadened to approximately 18 degrees off the starboard bow, the Riddle sounded a prolonged blast, not to signal a course change, but as a fog signal, and then altered the course of the Riddle 5 degrees to port. Another prolonged blast was sounded by the Riddle, according to Brinson, and then the white lights of the other vessel suddenly closed up and, in addition to the green light, a white light became visible, indicating that the approaching ship was headed directly for the Riddle. Brinson ordered the helmsman to turn hard left and after swinging to port for about a minute, the Riddle's bow struck the Farmer. This occurred about 11:26 P.M., Riddle time.
The testimony given by the witnesses for the American Farmer contradicts the testimony of the Riddle on almost all the material issues. Brown, the Farmer's Third Officer, who was on watch, testified that visibility was good when, at 9:54 P.M., Farmer time, he observed two dim white lights approximately half a point on the port bow. The lights were not in line vertically but were separated with the lower light to the left of the upper. Upon looking through his binoculars Brown observed the red port light of the vessel which later proved to be the Riddle. There was a constant broadening of the Riddle's lights on the port bow. These observations led to the conclusion that the two ships were not approaching head-on, but were in a port to port passing situation. As the distance between the vessels decreased, Brown estimated that they would be 500 feet apart when the passed each other. With the intention of increasing this passing distance, Brown ordered the Farmer's course altered 5 degrees to starboard. The ships were, at that time, a mile to a mile and one-half apart. No whistle was sounded to signal this course change. It was believed by Brown that the 5 degree turn to starboard would be sufficient to insure that the passing distance between the vessels would be 'upward to three ship lengths', which would be about 1,300 feet.
Following the course change, the lights of the Riddle kept broadening until they reached approximately 4 points (45 degrees) on the Farmer's port bow. The ships were then about a half mile apart. A minute after the Farmer made its 5 degree turn to starboard, the Riddle suddenly made a rapid turn to its own left into the path of the Farmer. Brown thereupon ordered the Farmer turned hard right in an endeavor to put her on a heading parallel to the Riddle's. A half minute later, after the Farmer had started turning, Brown ordered the engines stopped. Thirty seconds later, at approximately 10 P.M., Farmer time, the two ships collided.
Brown's testimony has been corroborated by three members of the Farmer's crew with respect to matters observed by them immediately preceding the collision.
Certain facts can be considered as having been established. The Riddle failed to signal its turn to port just before the collision, and its engines were neither stopped nor reversed until after the collision. Her engine room was not put on 'standby' at any time material to the accident. The Farmer's whistle was not blown at any time material to the accident.
The two accounts of the accident are irreconcilable. The ships were approaching each other either starboard to starboard, as the Riddle contends, or port to port, as the Farmer contends. In the final analysis, the resolution of this issue and the subsidiary issues of fact must hinge upon the credibility of the witnesses, since, save for the evidence offered by the Riddle dealing with the angle of impact, which will be discussed later, and the testimony concerning the headings of the Farmer which has been corroborated by her automatic course recorder (the Riddle was not so equipped), the accounts of the collision are based entirely on testimonial evident.
A witness's demeanor on the stand is an element of importance in the solution of the always difficult problem of determining the truthfulness of his testimony. The demeanor of a witness is always assumed to be in evidence. 3 Wigmore, Evidence, § 946 (3d ed. 1940). Brown, the watch officer of the Farmer, judging by his conduct on the witness stand, appeared to be telling the truth. A contrary impression was engendered by the demeanor of the Riddle's officers. This conclusion receives strong support from the inferences to be drawn from unexplained inconsistencies in the story told by the Riddle's officers. A few examples will suffice to indicate the unreliability of their testimony. Brinson, the Riddle's master, stated that continuous foggy weather prevailed during the night of July 31; that there were low fog banks which he termed 'the most treacherous fog in the world'. If the sea was enveloped in fog, it seems rather strange that during the entire 8 P.M. watch up to the collision, the Riddle's engines were operating at normal full speed ahead; that her watch engineer had not been given a 'standby' signal; and that the lookout had been posted on the flying bridge. It was admitted by Captain Brinson that it is customary to reduce speed in a fog and to put the engine room on 'standby', and that it would be extremely difficult to hear a fog signal on the flying bridge because of the noise made by the wind whistling through the rigging. Furthermore, petitioner makes no point or criticism of the fact that the Farmer was not sounding fog signals. Brinson and Oehrlein testified that visibility was limited to 2 1/2 to 3 miles, yet on the night of the collision they thought the Farmer's lights were first sighted at a distance of 5 miles. In testimony given to the Coast Guard in 1946, Brinson claimed the visibility was four miles. In court, Brinson stated he was unable to see the second white light of the Farmer until a minute or so after the first light was seen, because the second light had been obscured by fog. He told the Coast Guard one week after the collision that 'probably at first they were more in line, which was the reason I could see only one light'.
In his statement to the Coast Guard, Brinson estimated that the angle of collision between the starboard side of the Riddle and the port side of the Farmer was about 30 degrees. On the stand he thought the angle was about 40 degrees between ...