The opinion of the court was delivered by: LEVET
The libelant, Afran Transport Company, owner of the Steam Tanker Burgan, brings this suit by reason of a collision off Portland, Maine, on May 24, 1955, between the Burgan and the Motor Tanker Bergechief, owned by A/S Sneffon. The cross-libellant, A/S Sneffon, contends that the Burgan was solely responsible for the collision with the Bergechief. The two cases were consolidated for trial and were tried by the court without a jury.
The only witnesses who testified in person at the trial were William W. Kuhne and Hilliard L. Lubin, experts on behalf of the libelant, Afran Transport Company, and Harry Manning, an expert who testified on behalf of the cross-libelant A/S Sneffon. References hereinafter made to the testimony of these witnesses are to the stenographer's minutes of the trial. All other testimony, including that of Gunnar Larsen, captain of the Bergechief, Vincenzo Persico, a watch officer and third mate of the Burgan, George H. Lubee, a pilot at Portland harbor, and Theodore A. Langzettel, master of the Portland pilot boat, was by deposition. References hereinafter made to the testimony of these witnesses are to their respective depositions, each of which has been marked as an exhibit in evidence, as follows:
Deposition of Larsen Exhibit 10
Deposition of Persico Exhibit K
Deposition of Lubee Exhibit 11
Deposition of Langzettel Exhibit 12
After hearing the testimony, examining the pleadings, exhibits, briefs and proposed findings submitted by the respective parties, this court makes the following Findings of Fact and Conclusions of Law:
1. On May 24, 1955, the Motor Tanker Bergechief was employed on a voyage from the Caribbean area to Portland, Maine, with a full load of crude oil. The Bergechief was built in Gothenburg, Sweden, in 1949; she is and was at the times concerned owned by claimant-cross-libelant A/S Sneffon and registered under the Norwegian flag. Her characteristics are as follows: Length overall 559'0', Breadth 69'9', Draft summer 30'5', Gross tonnage, 11,720, Net tonnage, 6,951, Summer deadweight tonnage 18,500. The Bergechief is a single screw ship with Burmeister and Wain diesel engines. (See Stipulation, Bergechief Exhibit 13, item 1)
2. The Bergechief's wheelhouse was equipped with a Raytheon model 1197 'Pathfinder' radar set, the scope of which is 7' in diameter; and the pamphlets entitled 'Mariners Pathfinder Radar, Operation and Maintenance Manual for Models 1197 and 1218' and 'Mariners Pathfinder Radar, Instructions for Operation and Maintenance of Models 1197 and 1218' are operating manuals for the Bergechief's radar. (See Stipulation, Bergechief Exhibit 13, item 3)
3. On May 24, 1955, the Steam Tanker Burgan was leaving Portland, Maine, in ballast. The Burgan was built in Sparrows Point, Maryland, in 1949; she is and was at the times concerned owned by libelant-cross-claimant-respondent, Afran Transport Company, and registered under the Liberian flag. Her characteristics are as follows: Length overall 624'10', Breadth 84'5', Draft summer 33'3 3/4', Gross tonnage 17,905, Net tonnage, 11,071, Summer deadweight tonnage 28,336. The Burgan is a single screw ship equipped with steam turbines generating 13,750 shaft horsepower. (See Stipulation, Bergechief Exhibit 13, item 2)
4. At or about 8:31 a.m. on May 24, 1955, less than a mile to the westward of the Portland, Maine, light vessel, the Bergechief and the Burgan collided in dense fog.
5. On the morning of the collision Bergechief was using maneuvering speeds, which were about as follows: Full ahead 11 knots, half ahead 7 knots or more, slow ahead 3-4 knots, dead slow 3 knots. (Larsen, Exhibit 10, pp. 119-120) The Bergechief could maintain steerageway at two or three knots with the propeller working ahead and at five or six knots with the propeller stopped. (Larsen, p. 46)
6. Burgan could maintain steerageway at about one knot. Under the prevailing conditions her speed through the water at dead slow ahead was two to three knots, at slow slightly under seven knots, and at half speed ahead in excess of seven knots. Her full speed ahead at sea was about seventeen knots. (Persico, Exhibit K, pp. 178-181; Kuhne, pp 119-120; Burgan chart, Exhibit G; Burgan bellbook, Exhibits E and H)
7. On the morning of the collision the tidal current ran northwesterly into Portland; the wind was southerly, force 3 to 4, and the visibility was practically nil.
8. Until 8:10 a.m. on May 24, 1955, the Bergechief was heading for Portland light vessel on a course of 345 degrees true; then she reduced to half speed, altered the course to 320 degrees true to bring her south of the light vessel in accordance with the directions given by the Portland pilots on previous trips.
9. At 8:14 the Bergechief reduced her speed to slow ahead and at 8:17 stopped her engines. Then she altered her course to 307 degrees true and at 8:20 went dead slow ahead. At 8:22 the light vessel was abeam at a distance of 1/2 mile on a 35 degrees true bearing and the engines were again stopped to await the pilot.
10. Although her Raytheon 'Pathfinder' radar was functioning properly, the Bergechief, which had been observing the Burgan on radar since 8:00, discontinued radar observations slightly after 8:22. Gunnar Larsen, captain of the Bergechief, testified that when he last saw the Burgan on radar the vessels were approximately 1 to 1 1/4 nautical miles apart. (Larsen, p. 126) When Captain Larsen took his bearing of the light vessel at about 8:22, the Burgan showed plainly on his radarscope. However, he was under the impression that she was at anchor or inbound awaiting a pilot. (pp. 32, 34-35)
11. About seven or eight minutes before the collision and while Bergechief's engines were stopped, Bergechief heard for the first time the fog signal of Burgan which bore 30 to 45 degrees on Bergechief's starboard bow and appeared to be heading towards the Bergechief. Captain Larsen estimated that the vessels were then under a mile apart. (p. 58)
12. At or about 8:26, the Bergechief gave a slight kick ahead of its engines at dead slow while on a course of 307 degrees. Bergechief heard a second whistle signal which her master took to be a shorter than usual fog signal. There is conflicting evidence as to whether this signal was heard before or after the slight kick ahead of the Bergechief's engines. (See Larsen, p. 23 and Bergechief's log entry, Exhibit 1) In any event, it is clear that the Bergechief neither recognized nor acted upon this signal as indicating that the Burgan was turning to starboard.
13. The Bergechief thereafter heard a third signal, which was a regular fog signal, followed by a fourth of allegedly shorter duration. It was at this time that the Bergechief's master realized that the Burgan was altering course to starboard.
14. Until shortly before 8:29, the speed of the Bergechief was 5 knots, which, according to Captain Larsen, was the minimum speed required by the Bergechief to maintain steerageway with its propellers stopped. (Larsen, p. 46)
15. Prior to 8:29, Captain Larsen knew that the Burgan was approaching in the path of the Bergechief and that he risked collision by maintaining Bergechief's forward way on the course it was then pursuing. However, he was counting on the Burgan's use of radar to avoid collision. (pp. 66-67)
16. At 8:29 Bergechief's engines were reversed to full speed astern and a three-blast signal blown to indicate this. For over 1 1/2 minutes after 8:29 Bergechief continued with her engines at full speed astern and still heading at 307 degrees, whereupon the Burgan was sighted about 100 to 200 feet off the starboard bow crossing the Bergechief's bow at almost right angles.
17. The collision occurred about 10 to 15 seconds after the Burgan was sighted; the angle between the port sides of the vessels was about 80 degrees, the top of the Bergechief's bow being in collision with the top portion of the Burgan's port side shell plating in the way of the No. 7 tank, which was pushed in as the Burgan scraped by, but without any penetration into the Burgan's hull. At the time of the collision, the Bergechief had headway of under half a knot. (Kuhne, p. 133; Persico, p. 169)
18. At the time of the collision and for a considerable period prior thereto, the Bergechief did not have a bow lookout. The lookout had been ordered aft to pull in the log when the Bergechief approached the light vessel. He was aft at the time the Burgan's fog signal was first heard; shortly before the collision he was on the bridge. (Larsen, p. 60)
19. At the time of the collision and for several minutes before the collision Captain Larsen had been in the wheelhouse. The windows of the wheelhouse were closed, though its door was open. The chief mate was running in and out of the wheelhouse. (Larsen, pp. 50-51) At 8:00 the Bergechief's chief mate had gone to breakfast, leaving only Captain Larsen and the wheelman at the bridge until the chief mate's return at about 8:15.
20. The Burgan had left her berth in Portland, Maine, on the morning of May 24, 1955, outbound to Venezuela, at or about 6:30. The pilot on the outgoing Burgan planned to take this vessel to the vicinity of the Portland light vessel and from there bring in the incoming Bergechief.
21. The Burgan, in dense fog, proceeded down the channel course of 141 degrees true. (Lubee, p. 5) She passed the last channel buoys on Corwin Rock and West Cod Ledge Rock, which are three miles northwest of the light vessel, at 7:55. At 8:08 she stopped her engines to await the pilot boat, which came along at about 8:17. As the pilot came alongside, the engines were put at slow ahead and her heading changed to port to 130 degrees true. Shortly before the Burgan dropped her pilot, the light vessel bore 142 degrees true from ...