The opinion of the court was delivered by: MURPHY
These matters having been tried to the court the following are made Findings of Fact:
1. At all times mentioned herein, libelants and petitioners were Trustees of Eastern Gas & Fuel Associates, a Massachusetts Trusteeship, with office for transaction of business in Boston, Massachusetts, and owners of the Liberty type steamship Melrose.
2. At all such times, respondent was a Delaware corporation with office and place of business within this judicial district, and owners and operators of the steamship Sandcraft, a sandsucker.
3. The collision giving rise to this litigation occurred sometime from 2:30 to 3:00 A.M. (D.S.T.) on July 2, 1950, in New York Harbor above Quarantine Station, between the Sandcraft, bound from Port Newark, New Jersey, to a point off Coney Island in order to suck up a cargo of sand there, and the Melrose on a voyage from Hampton Roads to Kearney, New Jersey, loaded with a cargo of coal. The collision resulted in total loss of the Sandcraft and damage to the Melrose.
4. The Sandcraft after emerging from Kill Van Kull, did not shape her course down the fairway to the Narrows. Instead, for some reason, excusable or otherwise, she proceeded inside the anchorage grounds which lie on the west side of the harbor along the shoreline of Staten Island from St. George to Rosebank, and passed an anchored vessel there between the west shoreline and that vessel. The Sandcraft continued within the anchorage grounds for about a mile in a tide which was running ebb at two knots. In order to avoid collision with another vessel, the Republic, anchored within the grounds, the Sandcraft directed its course to port so as to pass the bow of such vessel on the north. In view of the current, this necessitated bringing the Sandcraft to a heading east across the channel toward the Brooklyn shoreline. At this point the Sandcraft observed the Melrose to the south proceeding up channel.
5. The Melrose, proceeding north, upon observing the Sandcraft, sounded one-blast for a port to port passing. Upon receiving a two-blast response from the Sandcraft indicating alteration of that vessel's course to the left, the Melrose reduced its speed to slow ahead.
6. The Sandcraft maintained her course without alteration. When her bow came into line with that of the Melrose, with a distance of approximately 100 feet between the vessels, about a half-minute before the collision, the Melrose reversed its engines and sounded three-blasts. The bow of the Melrose collided head-on with the starboard stern quarter of the Sandcraft which sank in less than ten minutes.
7. The Sandcraft was at fault in delaying departure from the anchorage grounds until the precipitate hauling out to avoid collision with the anchored Republic, and also, thereafter, in failing to alter its course to the left after sounding a two-blast signal indicative of such maneuver.
8. The Melrose was at fault in failing to make timely reversal of its engines and sound the accompanying three-blast signal, after receiving the two-blast response from the Sandcraft.
9. The fault of both vessels specified in Findings 7 and 8 were proximate causes of the collision.
10. The fault of the Sandcraft contributed to the damage to both vessels to the extent of 80 per cent; that of the Melrose to the extent of 20 per cent.
Normally, in the approach of vessels at right angles or obliquely so as to involve risk of collision, the Pilot Rules (Former rule VII) would permit the Melrose as 'the steam vessel which has the other on her own port side' to hold her course and speed, and require the Sandcraft as 'the steam vessel which has the other on her own starboard side' to keep out of the other's way by starboarding so as to cross such other vessel's stern. Concededly, however, the present case is one of special circumstances which the same rule requires to be met 'by blowing the danger signal, and both steam vessels shall be stopped and backed if necessary, until signals for passing with safety are made and understood.'
In fixing fault upon both vessels rather than upon one of them solely, it must be kept in mind that immediately prior to the time when the collision became inevitable, each vessel with reasonable care and competence could have utilized her then existing ability to avoid the disaster: the Sandcraft, instead of maintaining her course directly across the Melrose's bow, by marked alteration of her course to the left, and indeed her two-blast signal indicated such maneuver; the Melrose, instead of maintaining her course at slow speed, by stopping and reversing as the Pilot Rules suggest, or altering her course to the left. Such maneuver by either vessel would probably have averted the result. Both vessels were at fault. Yet neither can be fairly said to have had a later opportunity than the other to avoid the harm. The 'last clear chance' situations of maritime collision are distinguishable in that respect alone.
In addition there is no finding that the Melrose realized, or should have realized in the exercise of reasonable care, any helpless peril of the Sandcraft resulting from her attempt to avoid ...