88 F. Supp. 436 | S.D.N.Y. | 1949
This is a suit in admiralty which arises out of a collision between the steamers Adrastus and George Westinghouse, off Nova Scotia in the North Atlantic, during the early morning of January 16, 1944. Cross libels have been filed for the collision. The Adrastus sustained some damage to her bow, and the Westinghouse had a hole in her starboard side and suffered some loss of cargo. There are mutual charges with faults in regard to lookouts, speed, lights, whistles and failure to follow prescribed route. The Adrastus charges Westinghouse attempted to cross The Adrastus’ bow and failed to reverse or pass under The Adrastus’ stern. Each vessel denies the charges of the other. The Adrastus also pleads limitation of liability statutes.
The Adrastus is a British steamer, which was a part of a large convoy crossing the North Atlantic. Some time about noon, January 15, she was detached with orders to proceed without escort at full speed to St. John, New Brunswick, through 43° 15'N and 66° 30'W. Her course in daylight was zigzag, and at night she was blacked out. She was carrying out these orders at the time of the collision. No intimation had been given to Adrastus that a convoy was in her course.
The George Westinghouse was a liberty ■ ship under the United 'States flag. She was proceeding in a two ship convoy from St. John, New Brunswick, to England by Halifax, Nova Scotia. At night she was blacked out. The Commodore Elk Island Park was the starboard ship, and The Westinghouse was port vessel. The convoy was escorted by the corvette Bayfield, owned by the Canadian Government. The Westinghouse had three lookouts, who were
The Westinghouse had received written and oral naval control routing instructions from the 'Canadian Navy at a conference in St. John, which directed the convoy to proceed through certain positions. There is a conflict in testimony as to the exact position of the collision and -a debate as to whether the convoy passed through Point “O”.
The weather was dark and overcast, wind north-northeast, force 3, accompanied by a slight sea. There is a dispute as to the amount of snow. The court finds that a light snow was falling generally at about the time of the collision and that there were snow squalls. At about 1:57 a. m., the Commodore Elk Island Park displayed navigation lights and flashed signal lights for change of course. About three minutes later, the second stage of course change followed. Thereafter The Westinghouse was on the designated course of 52° true. The Elk Island Park was about 2 points forward of the starboard beam and probably one-half mile distant. The Commodore’s lights were burning until after the collision. After the turn, to decrease distance from the Commodore, The Westinghouse changed course to 62° true. At about 2:20 a. m., the mate on the starboard wing of the bridge observed an unidentifiable shape bearing about 2 points on the starboard bow at a distance which he could not estimate. The bow lookout sighted this object and tried to telephone the bridge. The telephone bell rang, but it was unanswered. The mate turned on the navigation lights at full brilliancy as soon as he was sure that the loom was not that of the Commodore. The mate came out on the bridge again and, being unable to determine the heading of the object, observed, ran again into the wheelhouse and sounded five short blasts on the ship’s whistle and returned to the starboard wing of the bridge. The engine of The Westinghouse was placed full astern, but this had no appreciable effect before the ships struck.
On The Adrastus just before the collision, the second officer, who was on watch on the port wing of the bridge, crossed to the starboard wing to speak to the extra third officer stationed there. While the officers were talking, nothing having been seen by them and nothing having been reported by the lookout on the monkey island, the stern gunner telephoned and was answered by the second mate. He reported sighting a white light on the port quarter and a green light on the port bow. The extra third officer looked back to see what the lookout had sighted, and saw the lights of The Elk Island Park. As the second officer went to answer the telephone, the extra third officer rushed across the wheelhouse to the port side. This occupied about five seconds. He saw the loom of The Westinghouse about two seconds later after he had changed stations. He testified that she was at that time unlighted. He ordered the helm hard astarboard. Immediately after, he saw the lights of The Westinghouse come on. While the telephone conversation was going on between the second officer and the gunner, the lookout saw the light on the port bow. An order of full astern was given, but was never executed.
The Bayfield, which was a mile and a half away, picked up The Adrastus on the radar some minutes before the collision, but gave no signals and did nothing to prevent the accident.
Within a time certainly less than a minute and variously estimated at 25, 30 and 40 seconds, the two ships struck at an angle of about 38 degrees on their original courses.
There was an elaborate and efficient system of routing ships across the Atlantic during these perilous times. Orders were given in such a way that the courses would not cross and an opportunity
Therefore, neither of the vessels can be held at fault until we come to appraise the conditions immediately preceding the collision. Certainly, neither can be held responsible for the fact that The Bayfield, in the discharge of her duties as an escort, sounded no signals and gave no warning even after the course of The Adrastus was noted on the radar. The escort’s duties were purely military and the precautions required to be taken were only those which related to military security.
The faults charged to The Adrastus, which are of the essence, relate to the lookout which was being kept. In the first place, it was uncontroverted that she had no lookout in her bow' — in the eyes of the ship or “as far forward as possible,” as the older authorities say.
The attempts to justify this position of lookout savor of sophistical dialectic. It is argued that with the speed of The Adrastus only six seconds would elapse between the time that the bow passed a given point until the bridge passed it. This argument will, of course, not bear scrutiny. It is rather surprising to find that it was made. For, if five seconds
The Westinghouse likewise had faults as regard her lookout. The man on duty had been on duty during the day, which, of course, is an improper practice. Besides that, there was a housing or structure erected in the bow of the ship to protect him from the weather. It is uncontroverted that the lookout should not be hampered by any such hindrances. However, the evidence shows clearly that he did see and report The Adrastus. As to whether this was before or after The Adrastus was seen from the bridge is, in our opinion, doubtful. However, the court holds that these deviations had no relation to the accident.
The first impression of the court at the trial of this case was that no fault was attributable to either vessel which could be considered the cause of the accident. When ships under orders are sailing full speed ahead and blacked out on courses, which they 'have reason to believe will be kept clear, emergency conditions arise suddenly for which they cannot be held to, blame. Especially is this true where snow-is falling and a more difficult condition created. The change, of course which apparently was dictated by the assumed necessity of avoiding a west bound convoy threw these ships into the jaws of danger. The Westinghouse cannot be held responsible for this change, of course, since she was, bound to obey orders. But change of course and the failure of The Bayfield to, take action when The Adrastus came upon, the radar screen were the primary causes, of disaster. The United States had the. advantage of battle precaution and should; riot profit to the disadvantage of TheAdrastus thereby.
The court will dismiss all proceedings. Form of findings and judgment may be submitted.
. The attached map illustrates the theory of The Adrastus as to the collision, which the court accepts as approximately correct.
. Times stated herein are according to Westinghouse time, which was 3 hours behind Greenwich time. The Adrastus carried Greenwich time minus 4 hours.
. Chamberlain v. Ward, 21 How. 548, 571, 16 L.Ed. 211. “A competent and vigilant look-out stationed at the forward part of the vessel * * * is indispensable to exempt the steamboat from blame * * St. John v. Paine, 10 How. 557, 585, 13 L.Ed. 537.
. “The failure to produce witnesses * * may be the result of mishap or misfortune, but these cannot suffice to take the place of absent witnesses who should have been produced.” The Georgetown, D.C., 135 F. 854, 859.
. A “few feet may mean much” under difficult weather conditions, and the lookout should be in the eyes of the ship. The Kaga Maru, D.C., 18 F.2d 295, 298, 299.
. “A colliding vessel is never exonerated from liability for ber failure to keep a lookout, unless it appears that the collision would have occurred notwithstanding such failure.” The Eagle, 9 Cir., 289 F. 661, 663. See also The Blue Jacket, 144 U.S. 371, 389, 12 S.Ct. 711, 36 L.Ed. 469; The Columbia, D.C., 104 F. 105, 109; The Bailey Gatzert, 9 Cir., 179 F. 44, 49.
. If The Westinghouse had been acting alone, she would have been responsible for the deviation without which the collision would not have, qccurredj Tidewater Associated Oil Co. v. United States, D.C., 60 F.Supp. 376, 386.
. Some synthetic support can be obtained by a reading of some of the British authorities, but these are not in point. The Chester Sun, 1 Lloyd’s List Law Reports 478; The Melita, 4 Lloyd’s List Law Reports 105; The Sobieski, 81 Lloyd’s List Law Reports 51; The Ganges, 71 Lloyd’s List Law Reports 76; The Hoyanger, 79 Lloyd’s List Law Reports 284; The Vanity, 79 Lloyd’s List Law Reports 594.