The opinion of the court was delivered by: INCH
These consolidated actions arise out of a collision between the steamship Seatrain Texas and the motor vessel Ekefors south of Fort Wadsworth in the Narrows, New York Harbor, on December 16, 1949.
Seatrain Lines, Inc., as owner of The Seatrain Texas, filed a libel against The Ekefors on December 29, 1949 claiming damages of $ 200,000, and the stipulation for value filed by Fridafors Fabriks A/B, as owner of The Ekefors, was later reduced to $ 168,000. Fridafors filed a cross-libel against The Seatrain Texas and her owner on January 27, 1950 for damages amounting to $ 100,000, and thereafter the stipulation for value filed by Seatrain Lines, Inc. was reduced to $ 50,000.
The American Insurance Company of Newark, New Jersey and other insurers of cargo of The Seatrain Texas filed an intervening petition in The Seatrain Lines suit against The Ekefors, claiming damages to the cargo, including general average, salvage charges and incidental expenses amounting to $ 8,500.
On November 28, 1952, after the substitution of its original proctors and almost three years after the collision, Seatrain Lines, Inc. filed a libel against the steamship Santa Monica which had been in the vicinity of the collision and also filed a petition impleading The Santa Monica in The Fridafors cross-suit against The Seatrain Texas and its owner. The American Insurance Company of Newark, New Jersey and the other cargo insurers which had intervened in the suit of Seatrain Lines, Inc. against The Ekefors also intervened in The Seatrain Lines, Inc. suit against The Santa Monica.
Although there is considerable conflict in the evidence as to certain lights, headings, speeds and distances, many of the material facts are not in dispute.
The Seatrain Texas, a vessel of 8,108 tons, and specially constructed to carry railroad cars, left Edgewater, N. J. fully loaded with freight cars at about 4:30 P.M. on December 16, 1949 bound for New Orleans. The steamship Santa Monica, a passenger and cargo vessel of 8,610 tons, sailed from Pier 45, North River loaded with cargo at about 5:00 P.M. on the same day bound for South American ports.
At about 5:30 P.M. both vessels were proceeding south down the main ship channel off Staten Island toward the Narrows and Ambrose Channel. The width of the channel at the Narrows between Fort Wadsworth and Fort Lafayette is approximately 4,000 feet. The Seatrain Texas was on the starboard side of the channel, and off her stern port quarter The Santa Monica was running a parallel course approximately 500 feet to the estate of The Seatrain Texas' course. The Santa Monica was proceeding at a speed of between 12 and 13 knots and was overhauling. The Seatrain Texas very slowly. Eventually the bow of The Santa Monica overlapped the port stern quarter of The Seatrain Texas, but she never drew abreast of or overtook The Seatrain Texas, and she remained in this same relative position until she turned away from the impending collision.
The Seatrain Texas increased the number of nozzles operating in its steam turbine engines from 9 to 17 at 5:40 P.M. and at 5:45 P.M. further increased the nozzles from 17 to 21. This last increase occurred 6 minutes before the collision and was maintained until after the collision. Although the Chief Engineer of The Seatrain Texas testified that 21 nozzles would give the ship a speed of 15 1/2 knots, her Master testified that it would 'probably' be 14 knots after 'you get up there and get going, and get everything set', but that shortly before the collision he was only going 12 1/2 or 13 knots which he admitted was 'a little above normal harbor speed.'
On the bridge of both The Santa Monica and The Seatrain Texas were the master, chief officer and a Sandy Hook pilot, and each vessel had a quartermaster at the wheel and a lookout stationed at the bow. The second officer and a carpenter of The Santa Monica were standing by the anchors, but no one was stationed at the anchors of The Seatrain Texas. The navigation lights of both vessels were set and burning brightly. The weather conditions were excellent with visibility unlimited, wind from the north at about Force Two and the tide was at the last of the flood with a speed of approximately one knot.
When the vessels were about off Quarantine Station the inbound Ekefors was observed in Ambrose Channel some distance below Craven Shoal Buoy (Buoy 19-A) approximately 2 1/2 to 3 miles away.
When first sighted by The Santa Monica The Ekefors' red port light and her range lights were visible off The Santa Monica's port bow. Shortly thereafter both The Ekefors' sidelights became visible with her range lights almost in line, bearing fine on The Santa Monica's port bow. The Santa Monica thereupon blew a one-blast signal to The Ekefors thereby proposing a port to port passing. About twenty seconds later The Seatrain Texas likewise blew a one-blast signal to The Ekefors and put her rudder 'easy right'. The pilot of The Seatrain Texas testified that The Ekefors was then about one mile away, but according to the captain of The Santa Monica The Ekefors was then more than two miles off. The Ekefors did not reply to either of these one-blast signals, but continued to swing to the left shutting out her red side light and showing only her green starboard light. The harbor pilot aboard The Santa Monica remarked to the captain of The Santa Monica: 'He is going to head in for Quarantine and beat the 6 o'clock curfew, so we better get out of here'. Consequently The Santa Monica swung to the left 30 or 40 degrees and went over to the Brooklyn side of the Narrows just inside the entrance to Gravesend Bay with the Navy mooring buoys on her starboard side. Thus The Santa Monica was about a mile away when The Ekefors and The Seatrain Texas collided.
When The Ekefors failed to answer the one-blast signals from The Santa Monica and The Seatrain Texas, The Seatrain Texas repeated her one-blast signal within about one-half a minute. The Ekefors thereupon blew a cross-signal of two blasts and continued her swing to port. The Seatrain Texas then blew an alarm and one blast and put her rudder 'hard right'. The Ekefors blew an alarm and two blasts, and The Seatrain Texas again blew an alarm and one blast and repeated these signals.
The vessels collided at about 5:51 P.M. a short distance south of the Fort Wadsworth light close to the Staten Island shore. Shortly before the collision The Ekefors put her engines in reverse and dropped her port anchor. The Seatrain Texas continued at 'full ahead' until after the collision, but her rudder was put hard left just prior to the collision in an effort to pivot her port side away from the bow of The Ekefors. Nevertheless, the bow of The Ekefors struck the port side of The Seatrain Texas at about an 80-degree angle.
Turning first to The Santa Monica, it is plain on this record that she was free from fault. It is significant that The Ekefors makes no complaint concerning the navigation of The Santa Monica and does not allege any fault against her. The Seatrain Texas, however, contends that The Santa Monica violated Article 18, Rule VIII, 33 U.S.C.A. § 203, in that she attempted to pass The Seatrain Texas without sounding an overtaking signal. The fact is, as already stated, that The Santa Monica at no time overtook The Seatrain Texas, and although her bow eventually overlapped the stern quarter of The Seatrain Texas, she maintained that position until she turned away from the impending collision. I cannot find on this proof that The Santa Monica attempted or even intended to pass The Seatrain Texas prior to the collision, and under such circumstances a passing signal was not required. See: 'The Pleiades, 2 Cir., 9 F.2d 804, 806, certiorari denied 270 U.S. 662, 46 S. Ct. 471, 70 L. Ed. 787. Moreover, had The Santa Monica complied with the above rule, ...