The opinion of the court was delivered by: LEVET
These suits are the result of a collision between the MV Atlantic Sun and the SS Georgel which occurred in the Delaware River in the early morning of May 3, 1960. 61 Ad 65 is a suit by the Sun Oil Company, libellant, in rem against the Georgel and in personam against its owners, Central Navigation Corporation of Monrovia for damages to its ship, the Atlantic Sun, occurring in the collision. 61 Ad 876 is a cross-libel by Central Navigation Corporation of Monrovia against Sun Oil Company in personam and against the Atlantic Sun in rem to recover for damages sustained by its ship, the Georgel, in the collision. The actions were consolidated for trial.
After hearing the testimony of the parties, examining the exhibits, the pleadings, the stipulations, the briefs and the proposed findings of fact and conclusions of law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law pursuant to Admiralty Rule 46 1/2:
1. On May 2 and 3, 1960, the Sun Oil Company, a New Jersey corporation, was the owner of the MV Atlantic Sun, an American flag tanker type vessel, 547 feet in length, 72 feet in width, powered by direct drive diesel engine of 7500 horsepower with a maximum speed of 13 knots, of about 11,400 gross tons. (11, 12, 28; Pre-Trial Order)
2. On May 2 and 3, 1960, Central Navigation Corporation of Monrovia was the owner of the SS Georgel, a Liberian flag Liberty type dry cargo ship 441'6" in length, 57' in width, powered by a steam engine of 2500 horsepower and of 7,253 gross tons. (506, 507; Pre-Trial Order)
3. The Georgel in ballast, under the command of Captain Marco Psilos, was bound up the Delaware River for Kaighn's Point Anchorage, Philadelphia, Pennsylvania. (510) At this time the Georgel had a maximum draft of about 12'4". (508) The Atlantic Sun, also proceeding up the river, was fully loaded with a cargo of 154,000 barrels of blending stock gasoline with a draft of 31'10". (30) The evening of May 2 and 3, 1960, on the Delaware River, was dark but the weather was clear and the visibility was good. (31, 70, 71, 264, 534) The winds were westerly, variable and light. (534) The tide was flooding at an estimated strength of 1 1/2 knots. (97) Captain Psilos conceded that there was no total overcast that night (501); that there was more open sky than clouds (502); and Pilot Charles F. Goodrich said there was good visibility. (534)
4. The Atlantic Sun, inbound from Guayanilla, Puerto Rico, with the cargo aforesaid, was proceeding to discharge berth at Marcus Hook, Pennsylvania, and was under the command of Captain William Kegel who in 1950 had obtained a pilot's license for that portion of the Delaware Bay and River from Overfall Lightship to Marcus Hook. (11) Between 1950 and May 1960, Captain Kegel averaged about twenty trips per year on the river except for a couple of years when he was operating in the Far East. (185)
5. At 2110 on May 2, 1960, when the Georgel was in the vicinity of the Harbor of Refuge Light inside the Delaware Capes, Captain Charles F. Goodrich, a licensed Delaware Bay and River pilot, boarded the ship and assumed the conn.
6. As the two vessels continued up the Delaware River, the Atlantic Sun was astern of the Georgel until the vessels arrived in the vicinity of Ship John Lighthouse, when the Atlantic Sun overtook the Georgel. (Ex. 42) Appropriate whistle signals were exchanged and, as conceded by Goodrich, the Atlantic Sun displayed regulation navigation lights which were clearly visible to those on the bridge of the Georgel. (529, 530)
7. At 2008 on May 2, 1960, the Georgel was abeam of Overfall Lightship, Delaware River, and anchored to await the pilot. (Respondent Ex. C) At 2110 on May 2, 1960, the Georgel, after Goodrich boarded her, proceeded up the Delaware River at full speed, averaging 12.07 knots (Respondent Ex. C; Goodrich 506; Libellant Ex. 41; Bush 399) At 0119, May 3, 1960, when off Reedy Island, the Georgel was approximately 1.1 miles astern of the Atlantic Sun. (Libellant Ex. 42; Goodrich 529, 530; Bush 392) At 0211, May 3, 1960, when the Atlantic Sun was approaching the Delaware Memorial Bridge, the Georgel was 3.1 miles astern and the stern light of the Atlantic Sun was in the range of visibility of those on the Georgel, although it was not seen. (Libellant Ex. 42; Bush 392)
8. The course of the Atlantic Sun in the period before the collision was as follows: At 0243 the Atlantic Sun steadied on Marcus Hook Range, proceeding north in the center of the starboard side of the Channel (49, 50, 51, 464), reducing to slow ahead at 0247, stopping at 0252 to drift by Buoy 6M. (49, 50) At 0258 1/2 the Atlantic Sun turned into the anchorage. (54) At this time Captain Kegel observed the Georgel 1 1/2 miles distant coming on to Marcus Hook Range. (51, 52) At 0259 1/2 the engines of the Atlantic Sun were stopped and put on full astern. (54) At 0302 the starboard anchor of the Atlantic Sun was let go. (55; Ex. 33)
9. The Atlantic Sun was equipped with magnetic compasses, a gyro compass, Sperry gyro pilot and a gyro course recorder, a radio direction finder, a fathometer, a loran set and radar. (12)
10. The action of the Georgel just before the collision was as follows:
(1) Immediately after the Atlantic Sun dropped anchor and the vessel swung, the Georgel left the channel in the vicinity of Buoy 6M, showed its green and red navigational lights and headed directly for the Atlantic Sun. (Kegel, 56, 57; Bush, 353, 354)
(2) At 0306, as the Georgel headed toward the Atlantic Sun, the Atlantic Sun blew a four blast danger signal, which the Georgel did not hear (485) and at 0306 1/2 placed its engines at full astern in an attempt to avoid a collision. (Kegel 57, 58)
(3) Goodrich conceded that the speed of the Georgel up the river was 10-10 1/2 knots and later 11-11 1/2 knots (509); that the speed over the ground averaged 11 1/2 to 12 (510); and that this speed was maintained until after the collision. (528)
(4) The Georgel continued without diminishing speed on a collision course, in which the bow of the Georgel struck the bow of the Atlantic Sun as the Georgel tried to turn hard right before the impact. (58, 355, 356, 513)
(5) To the time of the collision the engines of the Georgel were at full speed; only after the collision were the Georgel's engines stopped. (Psilos 482; Goodrich 555)
(6) The Georgel had no lookout on the way up the Delaware River. (See Finding of Fact No. 16)
(7) The Georgel blew no signals just before the collision. (485, 551)
11. At 0308, the pilot and Master of the Georgel sighted the Atlantic Sun at a distance of 250 to 300 feet. A hard right rudder was ordered on the Georgel and she came around 10 degrees or 15 degrees to the right prior to her port bow striking the stem of the Atlantic Sun. (513; see also Exs. 20, 21, 22, 23) At 0309, after the collision, the engines of the Georgel were put full astern, the wheel hard to port and the vessel left the Atlantic Sun to port and anchored to the north of the Marcus Hook Range and north of the Atlantic Sun at a distance of about 1,500 feet. (Ex. C)
12. The evidence clearly indicates that the Atlantic Sun was in the Marcus Hook anchorage and not in the channel at the time of the collision. The collision occurred approximately 600 feet inside the anchorage. No portion of the Atlantic Sun was then in the channel.
1. Testimony of Captain Kegel.
The testimony of Captain Kegel of the Atlantic Sun places that vessel in the right or starboard side of the channel before turning into the anchorage. At 0252 he stopped the engine and drifted up Marcus Hook Range. He said when he came around he was nearly exactly on the range and as he came up he got over to his right slowly. (50) He was on the center line of the channel on Marcus Hook Range and as he came up the channel he came over to the right side of the channel more. At 0258 1/2 there was no other ship in the anchorage. (51) At 0258 1/2 he arrived at the point where he wished to turn, approximately off the No. 1 dock, which is the northerly dock of the Sun Oil Company docks. He was to the right of the center line of the channel heading up the river. (52; Ex. 13) At that point in time he put his rudder hard right and came slow ahead on the engine and the ship started to turn smartly into the anchorage. (53) The ship turned to the starboard. (54) At 0259 1/2 he stopped the engine and requested full astern. At 0302 she appeared to be almost stopped and he ordered "slow ahead." (54) At the same time he gave the order to let go the starboard anchor. The ship was heading into the anchorage and athwart the anchorage. Two shots of chain or 180 feet were given to the anchor. (55)
Captain Kegel had been watching the Georgel and it was about this time that he noticed that the Georgel was heading right for the Atlantic Sun. At 0306 he gave the danger signal of four short blasts on the whistle. He was able to see the Georgel visibly. (56)
Captain Kegel further testified that immediately after the collision he sounded the general alarm and ordered that bearings be taken to fix the position of the ship in anchorage. (59) Captain Kegel also testified that Buoy 2M and Buoy 6M marked the right hand side of the Marcus Hook Channel when going up the river. He said that as he swung into the anchorage he observed Buoy 6M was to the right of Buoy 2M and that this confirmed that he was in the anchorage. (120) He said he was in the starboard side of the channel when he turned right to go into the anchorage. (464) The channel is 800 feet in width.
The anchor bearings were taken within a few minutes of the collision. (59, 60, 61) The ship was still at anchor and within 100 feet of its location at the time of the collision. (62)
2. Testimony of John Refausse.
The anchor bearings after the collision were taken by John Refausse, the third mate (281) and observed by William Bush, second mate. (366) These bearings were based on three points: (1) The back range lights of the Marcus Hook Range (bearing No. 1); (2) The green pipeline marker on the Jersey shore (bearing No. 2); (3) The center of the uppermost Sun Oil dock (bearing No. 3). (281-83) Refausse marked down the bearings on Libellant's Exhibit 12 and plotted the result on the ship's chart (285) and on Libellant's Exhibit 11. This demonstrated that the position of the Atlantic Sun was 600 feet into the anchorage at that time. Refausse also confirmed Captain Kegel's observations with respect to the lights of Buoys 2M and 6M at the time the vessel swung out of the channel into the anchorage. (289)
3. Testimony of Karl F. Welty.
Karl F. Welty, first mate of the Atlantic Sun and now a Coast Guard Lieutenant, testified that at the time the engines were placed astern, the anchor was down since it grabbed immediately. The danger signal given by the Atlantic Sun was given some time afterwards. He said: "We had been anchored and swung in the anchorage there awaiting to go back to the dock, or rather awaiting to pull the anchor up." (222)
4. Testimony of William B. Bush.
William B. Bush, second mate of the Atlantic Sun, testified that he heard Captain Kegel order Refausse to take the bearings. He saw Refausse do so approximately two minutes after the collision (373) and he observed Refausse plot the bearings on a chart. (366) Furthermore, he checked the position of the Atlantic Sun on radar twice. (367) It was 0.2 to 0.3 of a mile from the dock. (369) Based upon lengthy experience on the Delaware, Bush estimated the Atlantic Sun was about 1,600 feet from the dock. (371) Allowing 300 feet to the westerly channel line and 800 for the width of the channel, this would place the Atlantic Sun 500 feet into the anchorage.
5. Testimony of Harry Albert Hays.
Harry Albert Hays, the operator of a launch service and not an employee of either party hereto, testified that he observed the Atlantic Sun coming up the river in front of the Sun Oil Company docks, saw her swing broadside into the anchorage and drop anchor. (576) Hays also testified that after the collision he crossed by small boat to the Atlantic Sun and to the Georgel. He said the Atlantic Sun, both bow and stern, was in the anchorage at the time of the collision. (580, 583) By a second trip with an official of Sun Oil Company, he concluded that the Atlantic Sun was in the anchorage. (586)
6. Testimony of Anthony Suarez.
Anthony Suarez, a research engineer in hydrodynamics and navigational matters, testified for the Atlantic Sun. He took readings of the course recorder of the Atlantic Sun from 2:40 through 3:30 A.M. The positions are shown on the course recorder. He examined the deck entries appearing in the log book of the Atlantic Sun for May 3, 1960. He examined the relevant deck bell book entries of the Atlantic Sun beginning at 0225. He correlated the time of the course recorder headings with the times referred to in the deck log and in the bell book. (440) He found a differential of 15 minutes between the course recorded and the readings which came directly from the course recorder because the course recorder was 15 minutes ahead of the deck log time. He also found that there was a discrepancy between the course recorder readings as corrected by him and the two ranges of 2.9 degrees. (441) He further took the engine room orders and executions thereof from 2:14 to 3:08. (See Exs. 40, 41, 42, 47, 48)
The heading of the Atlantic Sun, according to Suarez, at the time Captain Kegel testified that he observed the Georgel coming up the river and blew the alarm (3.06 1/2), was 191.4 degrees. (449) On the basis of these readings he concluded as follows in respect to the position of the Atlantic Sun at the time of the collision:
(A) That the vessel was approximately 150 to 200 yards into the anchorage and had a heading of 212.9 degrees. (444; see Ex. 48) Assuming that the vessel was in the center of the channel coming up the Marcus Hook Range at that ...