The opinion of the court was delivered by: CONGER
These actions arise out of a collision on January 30, 1947 between the S/S Esso Springfield, owned by the Standard Oil Company (N.J.), and the S/S Wellesley Victory, operated by American Export Lines, Inc. The collision occurred in fog a few miles south of Ambrose Light Vessel at about 2:05 in the afternoon.
Standard Oil filed a libel against the Wellesley Victory and American Export Lines, Inc. The latter answered and at the same time filed a cross-libel against the Esso Springfield and Standard Oil, which Standard Oil answered. The actions were thereafter consolidated for trial and decree.
The Esso Springfield is a steel, single-screw, steam-turbine tanker, 504 feet long and was built in 1944.
The Wellesley Victory is a single-screw, turbine steamship, 493.1 feet long and was at the time of the collision under bareboat charter to American Export from the Maritime Commission (owner).
The Version of the Esso Springfield
On January 30, 1947, the Esso Springfield, bound from New York to Baytown, Texas, in ballast, dropped her pilot at 1:17 p.m. and proceeded slowly in thick fog on a course about 150 degrees true, sounding proper fog signals. The Master was on the bridge in charge of her navigation; the Third Officer was on watch on the bridge; a helmsman was at the wheel and a look-out was on the bow. Her engines had, since 1:17 p.m. been alternating between slow ahead and half ahead. While so proceeding a whistle was heard forward of the beam on the starboard side at 2:01 p.m. The engines were immediately stopped and the vessel continued to navigate with caution. A prolonged whistle blast was blown, and hearing no answer, the signal was repeated. Shortly thereafter, the Wellesley Victory was observed off the starboard bow. The engines of the Esso Springfield were immediately put full astern at 2:02 p.m. and a three-blast backing signal was blown. About a half minute later, the engines were put at emergency full astern. At 2:03 p.m., despite the efforts of the Esso Springfield to avoid collision by backing, the port bow of the Wellesley Victory, in the way of her anchor windlass, struck the bow of the Esso Springfield, causing damage to both vessels. The Wellesley Victory continued ahead after the collision across the bow of the Esso Springfield and disappeared in the fog. Thereafter, the vessels communicated by radio and each stated that it did not need assistance.
The Version of the Wellesley Victory
On January 30, 1947, the Wellesley Victory was proceeding toward New York from Philadelphia, carrying about 6,500 tons of general cargo. At 10:57 a.m. visibility decreased to about 3 miles. The Captain gave the engine room 'stand-by engines' orders, posted a look-out on the bow, and commenced sounding regulation fog signals. Visibility continued to decrease and at about 12:30 p.m. speed was reduced to 50 R.P.M., which was about 9 knots. About 1:55 p.m. a fog whistle was heard bearing about 3 points off the port bow of the Wellesley Victory which whistle appeared to be drawing to port and aft of the Wellesley Victory, indicating the whistle was on a parallel course headed south. As the Wellesley Victory was approaching Ambrose Light Vessel, the Captain ordered the First Officer to take over while the Captain took radio bearings on Ambrose. The First Officer was stationed at the open porthole in the center of the wheelhouse and the Third Officer was on the port wing of the bridge. At approximately 2:01 p.m., just as the Captain had completed taking radio bearings, he was told by the First Officer that the fog whistle appeared to be closing. As he stepped back from the chart room to the wheelhouse, the other officers on the bridge reported, and the Captain heard, two-blast signals, which signals bore about 3 points on the port bow. At 2:03 p.m., the two-blast signals appeared to be getting louder so that the Captain ordered reduction of speed to 20 R.P.M., a speed of about 3 knots. About 1 minute later, the Esso Springfield appeared out of the fog 3 or 4 points on the port bow about 400 yards away at a speed estimated from her bow wave of 4 to 10 knots. The Captain of the Wellesley Victory immediately ordered the helm hard right and signalled the engine room for full speed astern. The backing signal was sounded. The helm was then ordered hard left but this was countermanded before it could be carried out and the helm again ordered hard right. After the Wellesley Victory had been backing about 1 minute the Esso Springfield ran into the port bow of the Wellesley Victory at approximately a 90 degrees angle and cut 15 feet into the hull at the forecastle deck. The ships were in contact a short time and then the Esso Springfield backed clear. Radio signals were exchanged and each ship reported no need of assistance.
The factual disputes arising out of the respective versions of the collision will be resolved as the contentions of the parties are dealt with.
The libellant and cross-respondent Standard Oil contends, firstly, that the collision was caused by the Wellesley Victory's failure to observe Article 16 of the International Rules for Navigation at Sea, 33 U.S.C.A. § 92, now Section 145n, which read at the time of collision and of trial:
'Art. 16. Every vessel shall, in a fog, mist, falling snow, or heavy rainstorms, go at a moderate speed, having careful regard to the existing circumstances and conditions.
'A steam vessel hearing, apparently forward of her beam, the fog signal of a vessel the position of which is not ascertained shall, so far as the circumstances of the case admit, stop her engines, and then navigate with caution until danger of collision is over.'
It is undisputed that the Wellesley Victory first heard the fog signals of the Esso Springfield at least 9 to 10 minutes prior to the collision. The Master, the First Officer and the Third Officer, all admitted hearing the signals at 1:55 p.m. It is further undisputed that no order was given as a consequence of such signals until 2:03 p.m. when the Wellesley Victory engines were reduced to slow ahead. As a matter of fact this order does not purport to be a compliance with Article 16 and is not urged as such. Rather, the Wellesley Victory seeks to avoid the operation of the Article by the claim that her conduct was influenced by a false and misleading two-blast signal given by the Esso Springfield. This claim is based upon the testimony of the Captain, the First Officer and the Third Officer of the Wellesley Victory. In my opinion no such signal emanated from the Esso Springfield despite the belief and testimony of the Wellesley Victory officers that they heard it. The helmsman said he heard a 'blast' when pressed on cross-examination. As to hearing a two-blast signal, he said, 'I don't know;' 'I can't say;' 'I don't remember if I did;' although he recalled the Captain's asking, 'wasn't that two blasts?' and one of the mates answer, 'Yes.' The bow look-out did not say that he heard it even though he had all the opportunity in the world to say he did from the form of counsel's questions. No one on the Esso Springfield testified to such a signal from that ship and, as a matter of fact, counsel for the Wellesley Victory did not ask any witness from the Esso Springfield, except the bow look-out, who did not hear it, whether such a signal was given. Not even the Captain was pressed on this when an inconsistency between his trial and Coast Guard testimony regarding signals was called to his attention. It seems highly probable that the Wellesley Victory officers were mistaken in this respect.
Assuming, however, that they did hear it, I am at a loss to discover how it excuses the Wellesley Victory. No one claims to have heard it prior to 2:02 or 2:03 p.m. and by that time they had been listening to the fog whistle of the Esso Springfield some 7 to 8 minutes. In the same span of time, they had been violating Article 16 which is quite clear as to the procedure the Wellesley Victory should have taken under these conditions. She should have stopped her engines. The Wellesley Victory has no valid excuse for this ...