The opinion of the court was delivered by: LEVET
These proceedings were brought as a result of a collision between the M.V. Esso Balboa and the S. S. Mobilgas off the north coast of New Guinea during the early morning of September 19, 1944. The matters were tried by the court. After hearing the testimony, examining the exhibits, briefs and pleadings, the following findings are hereby made:
1. At all times mentioned herein, libelant, United States of America, was, and still is, a sovereign, and at all such times was the charterer of the S. S. Mobilgas and also insured the libelant, Socony-Vacuum Oil Company, Incorporated, with respect to the S. S. Mobilgas against certain perils and risks, including collision.
2. At all such times libelant, Socony-Vacuum Oil Company, Incorporated, was and is a corporation organized and existing under and by virtue of the laws of the State of New York, and owner of the tanker Mobilgas, a vessel of 9,925 tons gross, 6,174 tons net register, 486.3 feet long, 68.3 feet in breadth, 36.9 feet deep and built in 1937.
3. Libelant, United States of America, has paid certain sums of money to libelant, Socony-Vacuum Oil Company, Incorporated, under its contract of insurance and has become subrogated to and has succeeded to and acquired pro tanto the rights of the assured, Socony-Vacuum Oil Company, Incorporated, against the M.V. Esso Balboa and Panama Transport Co. by reason of the collision hereinafter described.
4. At all times mentioned herein, cross-libelant, Panama Transport Company, was and still is, a corporation organized and existing under and by virtue of the laws of the Republic of Panama, and at all times hereinafter mentioned was, and still is, the owner and operator of the tanker M.V. Esso Balboa, a vessel of 9,553 tons gross, 6,000 tons net register, 489 feet long, 66 feet beam, 36.3 feet deep and built in 1939.
5. At all such times the United States of America, through the War Shipping Administration, employed and operated the M.V. Esso Balboa under a requisition time charter, dated April 20, 1942 under which the charterer undertook to 'provide and pay for or assume' insurance of 'the full form of standard hull war risk policy of the War Shipping Administration, which shall include malicious damage, sabotage, strikes, riots, and civil commotion * * *.'
6. Pursuant to said charter, the Director of Wartime Insurance, War Shipping Administration, acting for the United States of America, executed and delivered to the Panama Transport Company War Risks Binder F.C. No. 838, insuring the M.V. Esso Balboa against war risks only from the time of delivery of said vessel to the termination of said charter.
7. The full form of standard hull war risk insurance policy of the War Shipping Administration in force at the time of the issuance of said binder was incorporated therein by reference and contained an endorsement entitled, 'War Risk Clauses,' which provided in part as follows:
'It is agreed that this insurance covers only those risks which would be covered by the attached policy (including the Collision Clause) in the absence of the F.C. & S. warranty contained therein but which are excluded by that warranty.
'This insurance is also subject, however, to the following warranties and additional clauses:
'The Adventures and Perils Clause shall be construed as including the risks of piracy, civil war, revolution, rebellion or insurrection, or civil strife arising therefrom, floating and/or stationary mines and/or torpedoes whether derelict or not, and/or military or naval aircraft and/or other engines of war including missiles from the land, and warlike operations and the enforcement of sanctions by members of the League of Nations, whether before or after declaration of war and whether by a belligerent or otherwise; but excluding arrest, restraint, or detainment under customs or quarantine regulations, and similar arrests, restraints, or detainments not arising from actual or impending hostilities or sanctions.'
8. During the early morning of September 19, 1944, shortly after 2:00 a.m., a collision occurred between the S. S. Mobilgas and the M.V. Esso Balboa off the north coast of New Guinea.
9. The night was pitch black and the weather was partly cloudy with an east southeast wind of about force 3; the sea was moderate.
10. In accordance with naval instructions, both vessels were proceeding blacked out and in opposite directions. The S. S. Mobilgas was sailing light and was steering a course of 170 degrees T at a speed of about 13 knots. The M.V. Esso Balboa was loaded with a cargo of fuel oil and was steering on a course of 326 degrees T at a speed of about 7 1/2 knots.
11. The M.V. Esso Balboa was proceeding from Finschhafen, New Guinea to Seeadler Harbor, Manus Island of the Admiralty Islands group. 'Vessels from Finschhafen to Seeadler Harbor were, at the time of the collision, being instructed to proceed on a track which passed through the following positions:
'(A) 06 degrees 30'S. : 148 degrees 08'E. thence in a direction 325 degrees to --
'(B) 05 degrees 33.8'S. : 147 degrees 29.8E. thence in a direction 355 degrees to --
'(C) 02 degrees 54.2'S. : 147 degrees 15.7'E.' (Exhibit 6)
12. On the early morning of September 19, 1944, the S. S. Mobilgas was proceeding from Seeadler Harbor to Finsch Harbor under naval instructions which required vessels making such trips at that time to proceed on a route which passed through the following positions:
'(L) 02 degrees 54'S. : 147 degrees 10'E. thence in a direction 175 degrees to --
'(M) 05 degrees 35'S. : 147 degrees 25'E. thence in a direction 146 degrees to --
'(N) 06 degrees 30'S. : 148 degrees 02'E.' (Exhibit 6)
13. Pursuant to the above-mentioned reciprocal and parallel routes, the S. S. Mobilgas was to turn to the left to course 146 degrees T at a point which was approximately 4 miles to the westward of where the M.V. Esso Balboa, under her instructions, was to turn to the right to course 355 degrees T.
14. At 2:00 a.m. on the morning of September 19, 1944, the position of the M. V. Esso Balboa in the Vitiaz Strait was obtained by a dead reckoning fix. Navigation by dead reckoning depends upon the course made over the sea bottom and the distance run. The set or direction of the current affects the course of the ship made over the sea bottom. Moreover, the speed of the vessel, which is a factor in determining the distance run, is also affected by the current.
15. Although there was evidence that a northwest current of approximately 2 knots was running through the Vitiaz Strait at the time of the collision, the navigator of the M.V. Esso Balboa conceded that in plotting the track he made no allowance for the set and drift of the current.
16. The navigator of the M.V. Esso Balboa admitted that on the M.V. Esso Balboa's return trip to Finsch Harbor in following the reciprocal route of 146 degrees, two changes in course, namely from 140 degrees to 137 degrees and from 137 degrees to 132 degrees, were made, possibly in order to turn the vessel more to the ...