The opinion of the court was delivered by: HAIGHT
MEMORANDUM OPINION AND ORDER
This admiralty action arises out of an alleged collision in the North Atlantic on July 11, 1981 between plaintiff's sailing yacht OLYMPUS CAMERA and the container vessel TEL EXPRESS. Following bench trial, the Court enters the following memorandum and order which will serve as its findings of fact and conclusions of law. Rule 52(a), F.R.Civ.P.
Plaintiff Kai Granholm is a citizen of Finland. He is a member of the Finnish Foreign Service presently posted as Counselor to the Finnish Embassy at the Hague. In July, 1981 Granholm was assigned to the Finnish Embassy at Lisbon, Portugal.
At that time Granholm owned the sailing yacht OLYMPUS CAMERA (hereinafter "CAMERA"). The CAMERA was an "Avance 36" stock design, 10.80 meters length overall, single-masted, with an auxiliary diesel engine. She was built in Finland during the spring and succeeding months of 1980. Granholm was her first (and only) owner. During construction he arranged for additional navigation and electrical equipment to be placed on board.
Granholm insured the hull and equipment of the CAMERA with Finnish marine underwriters. Following the loss of the vessel, in the circumstances to be related, Granholm received a payment from his underwriters. That prompted a suggestion by counsel for defendants at trial that, in the absence of a loan or subrogation agreement, Granholm was not the proper party to sue for recovery of amounts paid by underwriters. The issue was resolved when plaintiff's counsel represented on the record, and the Court and defendants' counsel accepted, that counsel acted for Granholm's underwriters as well as for Granholm, so that the underwriters would be bound and abide by the result of the litigation and not seek to assert a subsequent claim. The case proceeded on that understanding.
Defendant Timur Carriers (Pte.) Ltd. is a business entity existing under the laws of Singapore, and the owner of the TEL EXPRESS (hereinafter "EXPRESS"), an ocean-going container vessel. Her precise dimensions do not appear in the record. A photograph, Ex. 1 to the deposition of watch officer Mok, gives a general impression of the EXPRESS's characteristics, as does the photograph of a sister ship, the TEL LIBERTY, PX 3.
Defendant Trans Freight Lines, Inc. is alleged by defendants to be the time charterer of the EXPRESS, in no way responsible for her navigation.
THE CONTENTIONS OF THE PARTIES
The case for the plaintiff is that on July 8, 1981 the CAMERA departed Newport, R.I. for Portugal. Granholm was sailing her alone. This is an activity known as "single handed sailing." Granholm had indulged in single handed sailing since 1974. Enough enthusiasts pursue this activity to permit organized single handed sailing races across the North Atlantic. Indeed, the voyage from Newport to Portugal upon which Granholm was engaged at the pertinent time constituted a qualifying sail for the London Observer transatlantic single handed race from Plymouth, England to Newport, scheduled later in 1981, in which Granholm intended to compete.
The first four days of the voyage passed uneventfully. Night had fallen on July 11. Granholm was on deck. The night was clear. A light wind was blowing from the west at 0-2 knots. The CAMERA was on autopilot steering a course of 90 degrees. Her main sail was rigged to port with a preventer line, and her number 1 Genoa sail was boomed out to starboard with the spinnaker pole. Her auxiliary engine was not running. The OLYMPUS CAMERA carried a tricolored lantern near the top of the mast which performed the combined functions of sidelights and sternlight.While on deck, Granholm checked the navigation equipment and all functions of the CAMERA, including the sails (which were properly set) and the navigation lights (which were burning). He scanned all around the horizon for the lights of other vessels and for any sign of deteriorating weather, stepping up on a deck winch in order to obtain greater elevation. Granholm saw no lights. The weather was clear. He had a cup of coffee in the cockpit of the CAMERA, and then went below to sleep. He did not observe the time. He set an alarm clock to ring thirty minutes later. This was not a clock which told the time. In the fashion of a kitchen egg timer, it rang an alarm at a pre-set interval.
Granholm was resting in his bunk when suddenly there was "a terrible crashing noise." The CAMERA rolled over, throwing Granholm to the deck. She then righted herself. Granholm rushed to the cockpit. He saw the stern of a large vessel just passing by. Water was coming into the CAMERA. Granholm assessed the damage. In the course of doing so he examined the mast, and observed that the tricolor hights were still burning. He made a "mayday" call on his VHF radio. Two vessels responded: a Norwegian merchant vessel and another vessel which turned out to be the EXPRESS. A white strobe light had broken loose from the CAMERA and ignited upon contacting the water. Granholm also flashed a search light towards the larger vessel he had seen just after the collision, which by this time was about two miles away, and turned on the CAMERA's deck and masthead working lights. Those on board the EXPRESS confirmed that they could see these lights, which served to identify the EXPRESS as the nearer of the two responding vessels. Granholm, in contact with the EXPRESS's master by VHF radio, asked that the EXPRESS return to assist him. The EXPRESS did so.
Time was kept on the CAMERA by Granholm's wristwatch, two chronometers, and the satellite navigator device. The chronometers showed Greenwich Mean Time ("GMT"). The wristwatch showed local time.In the collision area local time was three hours earlier than GMT.Immediately after the collision Granholm did not observe the time. The 30-minute alarm had not sounded before impact.When Granholm returned to the cabin after surveying the damage on deck, he looked at one of the chronometers. It read "about 1:30." That was GMT July 12, the equivalent of 2230 July 11 local time.
When the EXPRESS circled back and arrived alongside the CAMERA, Granholm advised her master that it did not appear that the CAMERA would sink. Granholm expressed his preference to stay on board the CAMERA, and the EXPRESS departed the scene, remaining in radio contact with the CAMERA for some time afterwards. It is right to say at this juncture that the plaintiff makes no criticism of the actions of the EXPRESS after the collision.
On the morning of July 12 Granholm turned back for Newport. He utilized the CAMERA's engine, since there was insufficient wind to sail.The CAMERA was taking water.Granholm used the electric bilge pump, and then pumped by hand after the electric pump ceased to function. He continued this course throughout July 31. The weather was deteriorating, and it became increasingly difficult for Granholm to control the level of water. On July 14 he decided that he could not keep the CAMERA floating any longer. Granholm made a distress call. In the afternoon of July 14 he was picked up by the tank vessel CYS BRILLIANCE, bound for Venezuela. Granholm abandoned the CAMERA, which has never been seen again, and rode the tanker to Venezuela, returning to New York by air.
In this action, Granholm charges the EXPRESS with failing, as an overtaking, power-driven vessel, to keep out of the way of the CAMERA; with failure to make proper use of her radar; and with failure to maintain a proper lookout.
Granholm claims damages for loss of the CAMERA and her equipment and other property, and for personal injury.
The case for the defendants is that on the night of July 11, 1981 the EXPRESS was bound on a voyage from Wilmington, North Carolina for Rotterdam. She carried less than a full deck load of containers. As the photographs reveal, the bridge, engine room and accommodations of the EXPRESS are located in the after part of the vessel.
On the night of July 11, the EXPRESS was steering a course of 056 degrees true and making good a speed of 18 knots. The wind was blowing from the northwest at force 4-5, producing a few white caps on the ocean surface. The moon was shining. There was very good visibility. Those on watch could see to the horizon. The EXPRESS was showing her navigation lights consisting of two white mast headlights, one forward and one aft, colored sidelights, and a white sternlight.
The master of the EXPRESS was Carl Jacobsen. Jacobsen, a Norwegian national, had been fifteen years at sea, sailing for seven years as an officer and one year as a master. On July 11 Jacobsen ate dinner at 1800 hours local time. After dinner he attended to paper work, and then played cards with the chief engineer in the latter's cabin for two hours, from 2000 hours to 2200 hours.Jacobsen looked at his watch when he left the chief engineer's cabin; it read 10:00 (that is, 2200 hours). It was Jacobsen's habit to go to the bridge every night before retiring. Accordingly he proceeded to the bridge from the chief engineer's cabin, arriving there at about 2203 hours. The deck officer of the watch during the 2000-2400 watch was third officer Mok Sien Kang. The other member of the deck watch was ordinary seaman Abu Bakar Bin Jaafar. Both these individuals had received their maritime education and training in Singapore. When Jacobsen reached the bridge at about 2203, third officer Mok was the only individual there. He was in the chart room.
Mok was alone on the bridge of the EXPRESS because, at about 2158 or 2159 hours, he had asked Bakar if there was any other traffic around.Bakar was acting as lookout. The EXPRESS was on automatic pilot. Bakar stood his watch as lookout on the wings of the bridge, crossing on occasion from the starboard wing to the port wing and back again. Bakar looked around the horizon, and told Mok that there was no other traffic visible. Mok thereupon sent Bakar down below to get tea. Mok made a visual check around the horizon, observed no lights of other vesses, and at 2200 hours went into the chart room to obtain the EXPRESS's position at that hour from the satellite navigation device. Mok was thus engaged when Jacobsen arrived on the bridge shortly after 2200.
Jacobsen went to the starboard wing. He looked forward and saw nothing. He then looked astern of the EXPRESS, and observed a blinking white light at an estimated distance of about two miles. Jacobsen asked Mok if the latter had observed such a light. Mok answered in the negative. Both officers regarded the blinking white light through their binoculars. No other lights were visible. Jacobsen and Mok then heard a "mayday" call coming over the VHF radio. The distress call stated in substance: "I have been hit--collided --taking in water--need assistance." No position was given in the distress call, but the individual initiating it stated that he would turn on his deck lights: "maybe you can see me." As Jacobsen and Mok kept the blinking white light under observation, they saw additional white lights come on, near the blinking light. While another vessel had also responded to the mayday call, this display convinced Jacobsen that the EXPRESS was the closest vessel. At the time the additional white lights came on, the EXPRESS (which had continued on her course of 056 degrees true) was about four miles distant. Jacobsen recalled Bakar to the bridge to act as helmsman. The EXPRESS was placed on hand steering. Jacobsen altered course to starboard, and the EXPRESS headed back towards the CAMERA. Granholm had identified himself and his vessel in the continuing VHF exchange. Jacobsen reduced the speed of the EXPRESS's engine by various hand maneuvers on the bridge. The EXPRESS had direct bridge to engine room controls. These orders were not logged. As the EXPRESS approached the CAMERA, Jacobsen ordered the EXPRESS's engines stopped. That order is recorded in the engine room log, DX C, at 2230 hours.
The EXPRESS was equipped with two radar sets. One radar screen was in the wheelhouse, and the other in the chartroom. On the evening in question the wheelhouse radar was on "standby." That means the radar was warmed up, but not operating. It is necessary to turn the radar fully on before getting a picture. With the radar on standby, the picture appears almost at once.
The chartroom radar was switched off. Jacobsen's policy was to leave use of the radar to the watch officer's discretion, except when the EXPRESS navigated in confined waters or poor visibility, in which events the radar was always on. At the pertinent time the EXPRESS was proceeding in the open ocean on a clear night. Keeping the radar on standby in those circumstances was consistent with policy.
After being contacted by the CAMERA on radio, Jacobsen switched on the wheelhouse radar. He never picked up the yacht as a target. However, Mok was able to observe the CAMERA on the radar screen as the EXPRESS steamed away after resuming her course.
Jacobsen testified that, as he approached and circled the CAMERA, he did not observe any colored navigation lights or a white stern light.He did observe white deck lights, and bright "spreader" lights on the mast. These lights are used to illuminate the deck area for work purposes. They are among the lights which Granholm turned on in order to facilitate the location of his vessel by rescuers.
There is no dispute between the parties as to the further exchange between Granholm and Jacobsen, and the circumstances under which the EXPRESS left the scene. At Granholm's request, Jacobsen sent messages concerning the CAMERA's situation to the United States Coast Guard and to her underwriters. The message to the Coast Guard, DX B, was handed in to the EXPRESS's radio operator at "0350Z" on July 12 and transmitted at "0403Z." The "Z" is an abbreviation for "Zulu," which in turn means Greenwich Mean Time. Thus these times are 0050 and 0103 local time on July 12 respectively. The message to the Coast Guard reads as follows:
"SINGLE MAN SAILBOAT OLYMPUS CAMERA/OF3080 POSN 0125Z JULY/12TH 4042N 6122W COURSE 270 BOUND FOR NEWPORT R.I. STOP DAMAGED HULL FROM COLLISION WITH MERCHANT VESSEL TFL EXPRESS/ 9VPU PROCEEDING NEWPORT UNDER OWN ASSISTANCE STOP EXPECT TO ARRIVE IN 5DAYS PLS NOTIFY ROYAL WESTERN YACHT CLUB OBSERVERS OFFICE TEL. NEWPORT R.I. 8494761
Jacobsen also sent a radio message to his vessel's Rotterdam agents. That cable, PX 6, reads in full:
"On July/12TH 0125GMT POSN 4042N 6122W COLLIDED WITH SINGLE MAN SAILBOAT OLYMPUS CAMERA/OF 3080 FINISH REGISTRY BOUND FOR NEWPORT RHODE ISLAND DAMAGE TO SAILBOAT 2FEET CRACK ON STARBOARD QUARTER ABOVE WATERLINE FIBERGLAS MATERIAL. NO DAMAGE TO OWN VESSEL. SAILBOAT DID NOT SHOW ANY LIGHTS BEFORE COLLISION AND OCCU PANT ASLEEP SAILBOAT DECLINED ASSISTANCE AND PROCEEDS NEWPORT UNDER OWN SAILS AND ENGINE SAILBOAT INSURED WITH SCANDINAVIAN CLAIM OFFICE NEWYORK TEL. 212 2698244 NAME OF OCCUPANT MR. KAI GRANHOLM DELAY TO OWN VESSEL APPROX 3HOURS.
This radio message was handed in on July 12 at 0515Z (0215 local time) and transmitted at 0540Z (0240 local time).
Defendants charge Granholm and the CAMERA with failing to maintain a proper lookout, failing to show the requisite navigation lights, and failing to take steps to avoid collision.
I preface my discussion of the parties' several allegations of fault by resolving three particular issues of fact.
The Fact of the Collision
In their pre-trial submissions defendants questioned whether the EXPRESS had in fact collided with the CAMERA. Counsel did not formally abandon the issue during summation, but it is not pressed; and the evidence adduced by both parties, which I need not restate, clearly demonstrates that the EXPRESS struck the CAMERA.
The Time of the Collision
This is a hotly disputed issue, because of its interrelation with the conceded failure of the EXPRESS, during one particular interval on the night of July 11/12, to maintain a proper lookout.
On defendants' own evidence, shortly before 2200 watch officer Mok sent seaman Bakar, who had been acting as lookout, below to get tea. Mok then went into the chartroom to fix the 2200 position. Thus the EXPRESS was left entirely without a lookout. Indeed, even if Mok had remained on the bridge the EXPRESS would have been deficient in this respect, it being well settled that a proper lookout must have no other duties. Defendants' counsel conceded in summation, with commendable candor, that the EXPRESS was in violation of Rule 5
from the time Bakar left the bridge until he was summoned back, after Jacobsen observed the CAMERA's lights astern.
The question therefore arises whether the collision occurred during the interval when Bakar was away from the bridge. Plaintiff says that it did. Defendants say it did not.
Plaintiff contends that the collision occurred at about 2225 local time. He relies upon the radio message Jacobsen sent to defendants' Rotterdam agent, PX 6. I quoted the full text supra. That message commences:
"On July/12th 0125GMT POSN 4042N 6122W COLLIDED WITH SINGLE MAN SAIL BOAT OLYMPUS CAMERA..."
Plaintiff interprets that message to mean that the collision occurred at 0125 GMT, the equivalent of 2225 local time. Accepting defendants' evidence on the point, Bakar had gone below just before 2200.He could not say when he returned to the bridge. From this plaintiff invites me to draw the inference that the collision occurred while Bakar was below, and the EXPRESS accordingly deficient in her lookout.
Plaintiff finds corroboration of this collision time in the EXPRESS's course recorder tape, PX 11. The course recorder is a device with a moving pen which constantly traces the vessel's heading in degrees. The time of day appears on the margin of the tape. Course recorder tapes can furnish evidence of dramatic clarity when the course recorder clock is synchronized with the ship's clock. When these clocks are not synchronized, uncertainty intrudes.This case furnishes an illustration.
The course recorder tape of the EXPRESS shows a sweeping turn to the right beginning at 1710 hours course recorder time. I accept that this is the right turn Jacobsen ordered after observing the CAMERA's lights astern. Neither party suggests otherwise.But it necessarily follows that the course recorder clock was not synchronized with the ship's clock. 1710 hours for commencement of the turn to the right does not square with either party's version of the events, whether we are speaking in local time or GMT.
On July 20, 1981, her voyage having been completed, the EXPRESS was boarded at Felixstowe, England by two solicitors retained by her owners to investigate the incident. Jacobsen signed a 13-page statement written in the hand of one of the solicitors. At trial plaintiff's counsel confronted Jacobsen with the following passage in that statement:
"With regard to the ship's course recorder for the 11th July it has been pointed out that the course alternations when we returned to the OLYMPUS CAMERA are timed at 1710. The course recorder should record GMT and it is therefore roughly 8 1/2 hours behing."
Plaintiff points out that the addition of 8 hours and 30 minutes to the course recorder time of 1710 results in the time of 0140 GMT. Commencement of the turn at 0140 GMT is consistent with collision at about 0125 GMT. The interval is 15 minutes. Jacobsen estimated that when the EXPRESS commenced her turn to the right, the CAMERA was about four miles astern. At a speed of 18 knots, the EXPRESS would travel four miles in just over 13 minutes.
Finally, plaintiff testified that at about ten minutes after the collision he observed the CAMERA's chronometer, which read "about 0130."
Defendants place the collision at shortly before 2200 local time. They rely in the first instance upon the evidence of Captain Jacobsen. He testified that he arrived on the bridge at 2203, and almost immediately observed the CAMERA's white light about two miles astern. Timing that observation at, say, 2204, and recognizing that at a speed of 18 knots it would take the EXPRESS just over six and one-half minutes to travel two miles, a collision time of about 2257-1/2 results. This has for the EXPRESS the convenience of being just before the time when Mok and Bakar testified that the latter went below.
Defendants also rely upon the entry in the engine log book that the engines were stopped at 2230 local time. He stopped the EXPRESS's engines, Jacobsen testified, when his vessel was only about 50-100 meters from the CAMERA. 2230 hours local time is the equivalent of 0130 GMT. The EXPRESS had to travel four miles to get back to the CAMERA. Jacobsen testified that he was gradually reducing speed as the EXPRESS turned and made her way back. This account is consistent with a collision time somewhat prior to 2200.
Defendants also rely upon the course recorder tape. As noted, the EXPRESS's turn to the right began at 1710 course recorder time. The vessel's course for Rotterdam, 056 degrees, was resumed at 1825 course recorder time. This interval is 75 minutes. According to the deck log, the eastbound voyage resumed at 2325. 2325 less 75 minutes results in the turn to the right having commenced at 2210 ship's time. When the turn commenced, the CAMERA was four miles astern, a distance which as noted the EXPRESS would require 13 minutes to travel at a speed of 18 knots. A collision time of 2157 results from these calculations.
Defendants also rely upon entries in the deck log that at 2215 the vessel was turned around to assist, and at 2240 arrived "approximately 100 feet from the sailboat."
Clearly the parties' calculations of collision time cannot be reconciled. Defendants attack the bases for the plaintiff's calculations. As for the radio message Jacobsen sent to his agents, he testified that the time "0125 GMT" was not intended to indicate the time of collision. Rather, it indicated the time at which the EXPRESS was at the coordinates 40-25N and 61-22W, the position where the EXPRESS found the CAMERA after returning to the yacht.
Jacobsen explains his statement to defendants' solicitors at Felixstowe about an 8 and 1/2 hours discrepancy between course recorder time and ship time as the result of a misunderstanding. Jacobsen testified that he had been without sleep for a number of days, and did not fully appreciate what the solicitors were saying to him on the point.
Plaintiff, for his part, charges the EXPRESS witnesses with perjury and wholesale falsification of the logs. He must do so. I can reject the defendants' calculation of collision time only if I conclude that Jacobsen swore falsely concerning the time of his return to the bridge and the events immediately following; that Mok swore falsely on the same subjects; and that the quoted entries in the engine and deck logs are fabricated. Plaintiff's argument has to be that, in the midst of spinning this web of lies, Jacobsen inadvertently gave the game away by the radio message to his agents giving a collision time of 0125 GMT.
I cannot accept plaintiff's submission on this point. Watch officer Mok testified by deposition, and so I could not observe his demeanor.But Captain Jacobsen appeared before me. He testified at length on direct and cross-examination. He impressed me as candid, straightforward and truthful. I do not believe that in the early morning hours of July 12, 1981 he orchestrated a series of false entries, at the same time suborning perjury in his watch officer and chief engineer. I do not believe Captain Jacobsen lied to me on the stand.
I reach this conclusion, although I appreciate the force of plaintiff's argument concerning the deck and engine logs. The reference to the engine being stopped at 2230 in the engine log appears as a "remark" appended below contemporaneous notations. The deck log entries describing the events in suit appear in a separate document referred to as the "official log," composed particularly for the purpose of describing them.In consequence, these documents lack the chronological spontaneity of, say, an engine room bell book. It is recognized that an engine bell book, in which orders received from the bridge are immediately entered by engine room personnel with no knowledge of what is happening above decks, have a particular trustworthiness. The EXPRESS did not maintain such a document. But I adhere to my refusal to reject the defendants' evidence on the point as fabricated.
Plausible explanations exist for the perceived discrepancies upon which plaintiff relies. I accept Jacobsen's testimony that the time reference in his radio message to the agents refers to the time at which the EXPRESS arrived alongside the CAMERA, at the position 40-42N and 61-22W. The radio message lends itself to either interpretation. I accept Jacobsen's testimony because, as noted, I found him to be a credible witness. But my finding on the point is also influenced by the radio message Jacobsen sent to the Coast Guard at Granholm's request. That is, DX B in evidence, which I have also quoted in full. Granholm described the circumstances in which that message was sent. He testified on cross-examination:
Q. After the Express came alongside your sailboat, did you dictate messages that you requested the master to send on the radio?
A. No, sir. I didn't dictate any messages, but I asked him to send two messages that was already when they had left, a little later. I asked him to send one cable to the U.S. Coast Guard and one cable to the Scandinavian marine claims office.
Q. Did you give him the context [sic] of the message that you wished sent?
A. I told him to inform the coast guard of the accident, to tell the coast guard that I tried to sail back to Newport and that I didn't need immediate assistance, but I didn't dictate the message. Then some minutes later the master came back on radio and he read a message that he was ...