The opinion of the court was delivered by: RAYFIEL
Shortly after 2:00 A.M., on June 5, 1949, a collision took place between two vessels, the 'Exmouth' and the 'Hellenic Beach', in the vicinity of Overfalls Lightship, at the mouth of Delaware Bay. The 'Exmouth' was bound from New York to Philadelphia, with 300 tons of cargo aboard; the 'Hellenic Beach' was bound from Philadelphia to New York, and was carrying 5,000 tons of cargo.
The 'Hellenic Beach' filed a libel against the 'Exmouth', which, in turn, filed its cross libel. The owners of the cargo on board the 'Exmouth' intervened, and the parties stipulated 'That if the suit and the cross suit between the owners of the S.S. Exmouth and the S.S. Hellenic Beach should result in a decision of sole fault on the part of the Hellenic Beach, or mutual fault on the part of both vessels, that the cargo intervenors shall be entitled to an appropriate interlocutory decree in their favor * * *.'
The 'Exmouth was a vessel of the type known as a Victory ship. She was 439 feet long, with a beam of 63 feet. Her engines developed 8500 horsepower, which gave her a maximum speed of about 17 knots. The 'Hellenic Beach' was of the type known as a Liberty ship. She was 422 feet long, with a beam of 57 feet. Her engines developed 2500 horsepower, which gave her a top speed of about 10 1/2 knots.
While it had been foggy earlier that night, the visibility at the time of the collision was about five miles. There was some wind, a slight swell, and the tide was at flood, running northwest at over two knots.
The 'Exmouth' had run into the fog earlier that night, and had anchored about a mile southwest of Overfalls Lightship. At about 1:42 A.M., the fog having lifted, she heaved up anchor. At about 1:51 A.M. she was under way at her full maneuvering speed, which was about 12 knots, and proceeded on a course of about 285 degrees past the Overfalls Lightship. Her master, Captain Ecklund, was on her bridge, directing her navigation. With him were the third mate, Bernard E. Griffin, who was the officer on watch, and Whitney, the helmsman. The first officer and a lookout man were at the bow, acting as lookouts.
The 'Hellenic Beach' had dropped her pilot at 1:50 A.M. At 1:52 A.M. the order was given for full speed ahead, and she proceeded on a course of 124 degrees true to pass Overfalls Lightship on her left. She was being navigated from her flying bridge by Captain Macris, her master. With him were the second mate and a helmsman. A lookout was stationed on the forecastle.
Captain Ecklund testified that just as he passed the Lightship he ordered the helmsman to swing left to 311 degrees, and then went into the chartroom for a few seconds. When he emerged from the chartroom he saw a vessel which proved to be the 'Hellenic Beach'. He observed her masthead light, range light and red port side light bearing about 45 degrees on his starboard bow, and about a mile off. He stated that he ordered the helmsman to swing hard left, and he blew two sharp blasts of the whistle, thinking that the vessels would cross port to port. Instead of carrying out his order the helmsman said: 'You mean right captain,' and the third mate (Griffin) said 'hard right, hard right,' (SMP 117) which Captain Ecklund testified that he did not want, and ordered the helmsman to go hard left, with which order he complied. At that point the 'Hellenic Beach' was bearing down on the 'Exmouth' which, almost immediately thereafter, she struck at the Number 4 hold.
Griffin, the 'Exmouth's' third mate, called as a witness by he 'Hellenic Beach', testified that shortly after the 'Exmouth's' anchor was heaved up and she was proceeding at full maneuvering speed, steadied on a course of 290 degrees, he saw the lights of another vessel (the 'Hellenic Beach') which was coming down from the direction of the pilot station. He estimated she was then about three or four miles from the 'Exmouth'. He stated that he saw her masthead, range and red port side lights; that thereafter the 'Exmouth' passed the Lightship about a quarter of a mile off, and her heading was then approximately 285 degrees; that the other vessel ('Hellenic Beach') was about a mile or two away, about 45 degrees on her starboard bow; that he had called Captain Ecklund's attention to the other ship before they had passed the Lightship; that after they had passed it Captain Ecklund ordered a change of course left to 317 degrees, to which the helmsman replied: (S.M. p. 170) 'You mean right captain', and that he, Griffin, then added: 'Yes, that's right, you will have to come to the right'. Griffin testified, further, that Captain Ecklund repeated the command to come hard left, and the helmsman obeyed the order; that at that time the ships were only half a mile apart; that he (Griffin) then went into the chartroom to check the course, and ascertained that the changes of course should have been to the right, instead of the left; that he told this to Captain Ecklund, who then ordered the helmsman to come right, but the vessels were then less than 50 yards apart; that the master blew two blasts on the whistle and gave the 'hard right' order but the collision ensued.
There is no dispute that under the then existing circumstances and conditions the 'Exmouth' was the burdened vessel and the 'Hellenic Beach' the privileged one, for at page 21 of their brief, the proctors for the former admit that she (the 'Exmouth') 'unquestionably was in open and apparent violation of International Rule 19 which states 'When two steam vessels are crossing so as to involve risk of collision, the vessel which has the other on her starboard side shall keep out of the way of the other". The 'Exmouth' not only failed to keep out of the way of the 'Hellenic Beach', in clear violation of Rule 19, supra, 33 U.S.C.A. § 104,but her master navigated her in such a faulty manner as to make the collision inevitable. There was testimony to the effect that Captain Ecklund was intoxicated during his aforementioned supervision of the navigation of the 'Exmouth' but, regardless of the cause of his faulty navigation, there appears to be no doubt that he operated the 'Exmouth' in clear violation of International Rule 19, 33 U.S.C.A. § 104.
Let us see what those charged with the navigation of the 'Hellenic Beach' were doing all this time. Captain Macris her master, testified that sometime after she dropped her pilot he saw two masthead lights and a green light of a vessel, which later proved to be the 'Exmouth', from two to four points on his port bow, at a distance of about a mile and a half, and that he expected the vessel to turn right while he maintained his course and speed. As he said, (page 27 of the minutes of the trial) 'Under the rules I had to hold my course and speed and the other ship had to turn right and show me the red light after I showed it to her.' He stated, further, that he blew a one-blast signal when he was less than a mile away, but that there was no answer from the 'Exmouth'; that at three quarters of a mile he blew another one-blast signal, and the 'Exmouth' responded with a two-blast reply; that at about that point he sensed that there was danger of a collision, put his helm hard right, and signalled to the engineroom for full speed astern. The order was carried out, but almost immediately thereafter the collision took place.
On cross-examination he was questioned concerning his testimony taken by deposition on June 14, 1949, nine days after the accident and admitted that he then testified as follows: (S.M. p. 50)
'Q. I shall read to you now from page 11: 'Q. Did you blow any whistles? A. A little while later when I first thought the distance was shorter and she did not change course as she had to I blew my whistle one blast. I wanted to tell her to keep out of my way'.
'Q. Do you remember being asked that question and making that answer? A. Yes.
'Q. Do you remember being asked this question: 'Q. How far away was she at that time, about? A. A little more than half a mile'. Do you remember ...