The opinion of the court was delivered by: WEINFELD
The Wilson Victory, respondent's vessel, is charged with having collided with the fishing trawler, The Bucentaur, causing its loss and that of its entire crew of ten. That The Wilson Victory collided with an object near the Pit Buoy Light in the North Sea in the early hours of the morning of May 21, 1947, is not in dispute; that The Bucentaur was in the vicinity of the area of collision is not seriously challenged. What is challenged is that The Wilson Victory struck The Bucentaur. Thus, the first issue to be determined is: was it The Bucentaur that was struck by The Wilson Victory at 3:46 A.M. on May 21, 1947, a few miles below the Pit Buoy in the North Sea.
Since all hands on The Bucentaur were never heard from after she sailed from her home port at Lowestoft, England, on May 20, 1947, libellants, of necessity, rely in the main upon circumstantial evidence, some of it physical, and in part upon the testimony of officers of The Wilson Victory.
I have had the benefit of oral testimony given at the trial by the master and the third officer of The Wilson Victory. The balance of the evidence on both sides was submitted through depositions and exhibits. Based upon my observation of those witnesses who appeared before me, an appraisal of their credibility and after a most careful study of the depositions and examination of the physical exhibits, I am persuaded that The Wilson Victory struck The Bucentaur and as a result all hands aboard perished. The factors which have led me to this conclusion require a review of the evidence.
The area about the Pit Buoy Light in the North Sea was a popular fishing ground. It was in the path of the Humber-Elbe Route used by vessels plying between Bremerhaven, Germany and Dover, England. The Bucentaur, a steam fishing trawler, owned by the libellant Consolidated Fisheries, Ltd., was 105 feet in length, 21 feet in beam, and 11 feet in depth. On the morning of May 20, 1947, she left her home port, Lowestoft, England, bound for the Pit Buoy area on a regular fishing trip. Her crew were ten in number. A group of other fishing trawlers left the harbor at the same time, including The Dereske, which likewise was heading for the fishing grounds. The Bucentaur left Lowestoft for the open sea about a half hour before The Dereske, whose master, Captain Challis, knew the characteristics of The Bucentaur of which he once had been skipper. Prior to departure the captains of the two vessels had made arrangements to fish about the Pit Buoy Light,
which is approximately 148 miles northeasterly from Lowestoft. The Bucentaur and The Dereske first made for Smiths Knoll 28 miles away, which they reached about 2:00 P.M., and from there they set a northeasterly course for the Pit Buoy. The Bucentaur was three or four points on the port bow of The Dereske. Both trawlers were on the same course and speed -- about nine knots. The captain of The Dereske observed her in the same relative position until 10:00 o'clock (British Double Summer Time)
when darkness came, at which time he saw her stern light. He then went below, but subsequently and through the night and early morning was on the bridge at various times.
There is some contradiction in the testimony of Captain Challis as to whether or not he continued to see the stern light of The Bucentaur after midnight. However, I am satisfied that from the time of departure of the trawlers from Smiths Knoll he had The Bucentaur in sight while proceeding towards the Pit Buoy fishing grounds. Within three weeks after The Bucentaur was reported lost he filed a report with the Custom House at Lowestoft stating that he had her under continuous observation until midnight. I regard this as more reliable evidence than his recollection given respectively four and six years after the event. Thus, the last time The Bucentaur was seen was midnight on May 20th-21st. Her rate of speed, if maintained, would bring her to the Pit Buoy at approximately 3:00 A.M. or 4:00 A.M., German Double Summer Time.
We now consider the movements of The Wilson Victory. She is a combination cargo and troop ship, 455 feet in length, 62 feet in beam. The Wilson Victory departed from Bremerhaven, Germany, in the late afternoon of May 20, 1947, bound for New York via Dover, England. She proceeded northwesterly along the Humber-Elbe Route, which would take her by the Pit Buoy Light and the adjacent fishing grounds. Captain Chemnitz, the master of The Wilson Victory, was assisted in navigation by S. R. Marchant, a North Sea pilot. The ship's clocks were set to German Double Summer Time, which was one hour in advance of British Double Summer Time.
After leaving Bremerhaven The Wilson Victory proceeded along its charted course without indicent up to 2325, May 20, when fog set in. A bow lookout was posted, radar was put into operation, fog whistles were sounded, and all necessary fog precautions taken. At 2328 the captain ordered the engines on stand-by which reduced speed from sixteen and a half to about fifteen knots. When the fog became heavier at 2332 the engines were put on half ahead and within two minutes when a ship's fog signal was heard they were stopped. At 2335 the engines were again put on half ahead and at 2348, when the visibility improved, at full ahead. At midnight (0000 hours) on May 21st, fog again set in, reducing visibility to between two and three miles and the engines were again ordered on stand-by and fog signals resumed. The bow lookout was maintained. Visibility remained at two to three miles until 0300. At 0300 the fog lifted. Visibility, confirmed by radar, was at least eight miles and the engines were again put on full ahead. At 0325 The Wilson Victory, on a westerly course, passed the Pit Buoy Light about a mile off her port beam and altered her course to 209 gyro. In proceeding south southwest she was navigating in a standard shipping lane and one frequented by fishing trawlers. At about 0330 the captain authorized the bow lookout to go below for coffee. At 0335 The Wilson Victory's radar was secured upon order of the master. At about 0340 a low-lying 'haze' was seen arising from the surface of the water and at 0342 radar was put back into operation on a four-mile range scale.
Immediately thereafter, visually and by radar check, the master observed a Liberty Ship three miles distant and two points abaft the port beam. Nothing else appeared on the radarscope. The master went to the starboard wing of the bridge to scan the waters ahead. At 0344 the fog set in rapidly and visibility was reduced to about a half mile ahead and the master ordered the engines on stand-by. Fog signals were commenced. At 0345 the master from the starboard wing, the pilot, then in the center of the wheelhouse, and the third mate at the radarscope all saw a white masthead light fine on the port bow. The light appeared to be 'about' one-half a mile distant.
A second or two thereafter, the pilot also observed directly beneath the masthead light a small white deck light and made out the loom of a vessel which he believed was 800 or 900 feet away. This second light was not seen by either the master or the watch officer. The master, upon observing the white masthead light, ordered the engines of The Wilson Victory full astern and the wheel hard right. The log and the bridge bell book show that this order was given at 0345. At 0346, according to The Wilson Victory's bridge log, she collided with 'an unidentified vessel' on her port side. The loom of the stricken object passed down the port side of The Wilson Victory, into the fog and out of sight.
The first issue to be determined is whether The Wilson Victory struck a vessel. There was some hedging on this issue by referring to an 'object' that had been hit. Also, upon the trial the master, the watch officer, and the pilot in his deposition, sought to minimize the force of the impact by referring to it as 'slight' and a 'light thump.' However, the evidence is persuasive that The Wilson Victory was in substantial collision with a vessel and that the struck vessel was a fishing trawler or a small boat. On these issues the ship's logs, reports, and physical conditions supply the proof. As a result of the collision two stanchions on the port side of the forecastle head were bent, the plates of the forepart of the ship were indented, a piece of the rigging of the struck vessel was caught in the port railing on The Wilson Victory's forecastle head, and its bow was scraped a distance of ten to fifteen feet. This should set at rest any contention that the impact was slight. Its force is further indicated by the fact that soundings of the forward bilges were ordered by the captain immediately after the collision. As to whether a vessel (rather than an 'object') was hit, and its type, the short answer is found in the statements and actions of the ship's officers immediately at and after the incident. The captain of The Wilson Victory sent the following wireless approximately a half hour after the collision:
'2 Miles 211 Degrees True From Pit Buoy Collision With Small Craft Vessel Now Stopped In This Position In Dense Fog Ships Passing Keep Sharp Lookout For Any Shipwrecked Persons And Drifting Wreckage Master.'
The Wilson Victory's radio log shows that this message was re-broadcast at 0439 and again at 0458 and that a second message was sent about four hours later. In a report to the Army Transportation Corps dated the very day of the collision, the master stated: 'We collided with an unknown vessel,' and upon interrogation by the United States Coast Guard officials several weeks later likewise confirmed that he was in collision with another vessel.
That this small craft was a fishing trawler of the type and description of The Bucentaur finds support in the testimony of the pilot Marchant who stated that the silhouette which he saw immediately after the collision and called to the captain's attention 'struck me as being a small trawler; if not a small trawler a big tug.' The inference is fully warranted, and I so find, that the vessel struck by The Wilson Victory was a fishing trawler. The belated attempt, in view of the documentary proof to the contrary, to claim that an 'object' was hit and the effort to minimize the force of the collision casts a shadow upon the testimony of those advancing these contentions and their entire testimony must be appraised accordingly.
Having found that a fishing trawler was hit by The Wilson Victory, the further issue remains -- was it The Bucentaur?
No signs of life were seen about the struck vessel; no persons were observed aboard it; no bells, whistle signals or outcries of any nature were heard, and the vessel drifted astern and vanished in the fog. The Wilson Victory remained and maneuvered about the immediate vicinity of the collision for about four hours. First she dropped a life ring. General quarters were sounded. About five minutes after the contact floodlights were played in the area, but nothing was seen. Although motor lifeboats were immediately readied, the fog was so thick, according to Marchant, that 'to search the water would be useless.' It was not until 0409, when it cleared somewhat, that the starboard lifeboat was lowered 'to search for survivors.' The lifeboat circled in the vicinity, returning to The Wilson Victory from time to time. At 0633 it returned with a capsized lifeboat which was hoisted to the side of the ship and upon inspection was found to bear the insignia 'LT 170' -- the designation assigned to The Bucentaur by the British Registry Office. In addition to the upturned lifeboat, a point board, used for separating fish, and a dan buoy were also observed, both of which the pilot identified as part of a fishing trawler's equipment. At 0721 a picture of the upturned lifeboat was taken and it was cast adrift. The log of The Wilson Victory records at '0734 no survivors located' and thereupon it proceeded on its way to New York via Dover.
The four-hour search carried on after the collision and the repeated radio messages, 'Ships passing keep sharp lookout for any shipwrecked persons and drifting wreckage' warrant the inference that those on board The Wilson Victory feared a tragedy had occurred. Indeed, her captain acknowledged as much and also that in the twenty-three minute interval between the impact and the ...