Opinion
February 25, 1943.
Bingham, Dana Gould, of Boston, Mass., Kirlin, Campbell, Hickox, Keating McGrann and Eugene F. Gilligan, all of New York City, and Charles S. Bolster, of Boston, Mass., for Pocahontas S. S. Co. and S.S. Bylayl.
John W. Knox, of New York City, and Nathan W. Thompson, of Boston, Mass., for Socony Vacuum Oil Co., Inc., and S.S. Vacuum.
In admiralty.
Libel by the Pocahontas Steamship Company, as owner of the S.S. Bylayl, against S.S. Vacuum, her engines, etc., of which Socony Vacuum Oil Company, Inc., was claimant, and a cross-libel by the Socony Vacuum Oil Company, Inc., against S.S. Bylayl, her engines, etc., of which the Pocahontas Steamship Company was cross-claimant to recover damages sustained in a collision between the two vessels.
Cross-libel dismissed and decree for libelant in accordance with opinion.
These are cross-libels; one brought by the Socony Vacuum Oil Company, Incorporated, as owner of the S.S. Vacuum against the owner of the S.S. Bylayl; the other brought by the Pocahontas Steamship Company, as owner of the S.S. Bylayl, against the owner of the S.S. Vacuum. The actions are brought to recover damages sustained to the respective vessels as a result of a collision between them, which occurred on February 20, 1942, at 3:24 a.m. Vacuum time [4:23 Bylayl time] in the open ocean and about five miles south of Parramore Banks Buoy off the Virginia shore.
The Vacuum was running on Eastern Standard Time and her clock was about one minute faster than the clock on the Bylayl, which was running on Eastern War Time, so there was 59 minutes difference.
The Bylayl, owned by the Pocahontas Steamship Company, 318 feet long, drawing 17 feet of water, was bound light from Providence to Norfolk, Virginia, and was proceeding on a course 206 1/2° at a speed of 11 to 11 1/2 knots an hour.
The Vacuum, owned by the Socony Vacuum Oil Company, Incorporated, was 453 feet long, drawing 27 feet of water, was bound from a Gulf port to a New England port with a cargo of oil, and was proceeding on a course of 29° at a rate of 10 knots an hour.
Because of war conditions and orders of the United States Navy, each vessel was keeping fairly close to the shore and running without range lights, but each had a mast head light and the usual red and green side lights, powered by 25 watt bulbs visible at a distance in excess of the requirements under the International Rules, i.e. at least five miles for mast head and at least two miles for red and green side lights. The weather was clear and dark; wind moderate northwest, choppy to moderate sea.
The bow of the Vacuum collided with the starboard side of the Bylayl at an angle of approximately 70° from the Bylayl's bow [20° forward of the Bylayl's starboard beam]. Both vessels sustained considerable damage, but were able to reach port. Each vessel continued at full speed up to the time of contact and neither vessel blew any whistle before the collision.
Until about 3:22 [Vacuum time] the Vacuum and the Bylayl were proceeding on their respective courses, each vessel having the other on its starboard hand and showing her green light. Neither vessel had any right of way over the other. At that time the Bylayl claims that the Vacuum suddenly and without warning swung to the Vacuum's starboard across the course of the Bylayl.
The Vacuum contends that the Bylayl should have altered her course more to her port as the vessels were approaching so as to make a wider passage and that her failure to do so contributed to the happening of the collision. That as the Captain of the Vacuum was not familiar with the water between him and the shore, he did not know how far in the Vacuum could go. (But the chart shows ample depth of water in the two miles between Parramore Banks Buoy and the Vacuum's course.) However, the chief fault charged against the Bylayl is not that her attempted narrow passage embarrassed the Vacuum — it is that she suddenly showed her red side light indicating that she had changed her course toward the Vacuum compelling the Vacuum to swing to her own starboard in an effort to avoid a collision. The vacuum also charges the Bylayl with fault in swinging to her port at full speed instead of stopping and backing after she saw the Vacuum swing to the Vacuum's starboard. Each charges the other with fault for failing to sound any signal.
Captain Sheldon of the Vacuum testified that he came on the bridge between 3:05 and 3:10; that he saw the Bylayl's white and green lights "about ahead, possibly a little on our starboard bow", some four miles distant; that as the vessels proceeded the lights broadened slightly on the Vacuum's starboard bow and he estimated that the vessels would pass clear of each other, green to green, 600 feet apart; that when they were 1/2 to 3/4 of a mile apart and the Bylayl bore three quarters to one point [8.4375 to 11 1/4 degrees] on the Vacuum's starboard bow the Bylayl showed her red light and he, knowing that their courses were close, concluded that the Bylayl intended to make a port to port passing instead of a starboard to starboard passing, ordered the Vacuum's wheel "hard right"; that after he saw the red light and had given the order "hard right" he saw the Bylayl's green light again, but made no change in the Vacuum's course.
Second Officer Friberg on the Vacuum, in charge of her navigation at the time, testified that around 3 o'clock he saw the white light of a vessel which proved to be the Bylayl which bore "three or four" degrees on the Vacuum's starboard bow, at a distance which he estimated to be five or six miles; that five minutes or so later he saw the Bylayl's green light and that the bearing had increased to seven or eight degrees on the Vacuum's starboard bow and he estimated that they would pass each other between two and three ship lengths apart, that is — 900 to 1350 feet. [The Vacuum was 453 feet long.] That he kept the Bylayl's lights under observation from time to time and her bearing continued to broaden on the Vacuum's starboard bow; that when he received the order to put the Vacuum's wheel "hard right", he looked again and the Bylayl's lights were "wide open green", and that he saw no red light. The Bylayl bore one point [11 1/4 degrees] on the Vacuum's starboard bow.
Tahnsted, wheelsman on the Vacuum, testified that he saw the Bylayl's white light shortly after 3 o'clock bearing a little bit on our starboard bow; later he saw her green light; that at no time did he see her red light.
The testimony of Long, bow look-out on the Vacuum, is that about 3:05 o'clock he saw the Bylayl's white mast head light at a point [11 1/4, degrees] on the Vacuum's starboard bow, and a few minutes later he saw her green light; that he did not see her red light, although he was keeping a good watch.
Chief Officer White, who was on the bridge of the Bylayl, testified that he first observed the Vacuum's white light at about 4:08 practically ahead; the bearings of this light gradually broadened and at 4:14 or 4:16 it bore one point [11 1/4 degrees] on Bylayl's starboard bow and then he saw the Vacuum's green light; that the lights continued to broaden on Bylayl's starboard bow and he estimated that they would pass each other at a distance apart of "a couple of ships lengths, a thousand feet or so" [length of Bylayl — 318 feet]; that there was no change in the course of either ship until he saw the Vacuum's red light open up shortly before the collision indicating that the Vacuum had swung to her right toward the Bylayl; that at the time the Vacuum swung to her right, the Vacuum bore three points on the Bylayl's starboard bow; that when the Vacuum swung, he immediatelly ordered the Bylayl hard left and kept on at full speed in an attempt to avoid the Vacuum. But the collision occurred less than one minute later.
Shacklock, wheelsman on the Bylayl, who had received his A. B. Certificate in 1938, testified that the Bylayl was equipped with a Kelvin spherical magnetic compass which worked "very steady"; that she was a good steering ship and that she was not rolling or pitching; that he first saw the white light of the Vacuum dead ahead when they were four, five or six miles away. A few minutes later he saw her white and her green lights two or three points on the Bylayl's starboard bow; that their bearing widened all the time; that just before the collision he saw the red, white and green lights of the Vacuum and he received the order hard left. Before that, he had been holding the course which had been set for him. When he saw the Vacuum's red light it looked to be 1500 feet away.
The Vacuum was on a course 29° true. The Bylayl's course was 206 1/2° or 2 1/2° from being opposite to the Vacuum's course. The Vacuum was proceeding at a speed of 10 knots an hour, and the Bylayl at a speed of 11 to 11 1/2 knots, so they were approaching the point where they would pass each other at a combined speed of 21 to 21 1/2 knots Both ships maintained this speed until the Vacuum went hard right at 3:22, so that when the Vacuum sighted the Bylayl at 3 o'clock, they must have been some seven miles apart. The Bylayl sighted the Vacuum at 3:09 (4:08 Bylayl time), when they must have been not less than five miles distant from each other.
Lieutenant Commander Little, an expert on navigation, called as a witness in behalf of the Vacuum, testified that assuming that when the Bylayl sighted the Vacuum the two vessels were three miles apart and held their courses, they would have passed 400 feet off each other, and assuming that they were four miles apart when the Bylayl sighted the Vacuum and each vessel held her course, they would have passed 525 feet or not more than 700 feet from each other. It is obvious, therefore, as they were on diverging courses, that if they were even five miles from each other instead of the four assumed by Lieutenant Commander Little, when the Bylayl sighted the Vacuum, they would have passed each other by more than the 525 to 700 feet, or by approximately 650 to 825 feet.
It appears conclusively from the plotting of the courses of the vessels and from the testimony of those in charge of the navigation of the vessels, that up to the time Captain Sheldon of the Vacuum says he saw the red light of the Bylayl, the vessels were on courses to pass each other safely — green to green. All agree on this. Captain Sheldon of the Vacuum himself testified that the ships would pass clear of each other.
The cause of the collision must be found by determining what actually occurred at or just before Captain Sheldon says he saw the Bylayl's red light: If he saw her red light, which would indicate that the Bylayl had changed her course to her starboard toward the Vacuum, he was justified in trying to avoid her by ordering the Vacuum "hard right". But did the Bylayl suddenly change her course to the starboard and show her red light? All of the Bylayl's witnesses were emphatic in their denial of any change of course until after the Vacuum swung across the Bylayl's course. Second Officer Friberg of the Vacuum said that after he heard Captain Sheldon give the order "hard right" he looked at the Bylayl and she was "wide open green". Captain Sheldon testified that when he gave the order "hard right", the Bylayl was wide open red and remained that way for twenty to thirty seconds before again opening up her green and shutting out her red.
Confirming the testimony of the Bylayl's witnesses that she made no change in her course, is the testimony of the Second Officer of the Vacuum, her wheelsman Tahnsted, and Long, her bow look-out, who appeared to be alert and reliable men, that they saw the Bylayl's green light but no red light. It seems quite improbable that not one of them should have seen the red light during the time it must have been clearly visible, if what Captain Sheldon says is correct. Assuming Captain Sheldon and Second Officer Friberg's estimates of the bearing of the Bylayl as only one point on the Vacuum's' starboard bow to be correct, the Bylayl would have had to swing 11 1/4 degrees, plus the 2 1/2 degrees divergence between their courses, or 13 3/4 degrees to even have opened up her red light to the Vacuum and to have swung through a still greater arc in order to shut out her green light, and then to have maintained this position for the twenty to thirty second period during which Captain Sheldon says he saw the red light. In view of all the testimony and the probabilities deduced from it, my conclusion is that the Bylayl did not change her course so as to show her red light and that Captain Sheldon is mistaken in his belief that he saw it.
Proctors for the Vacuum seek to explain the showing of the Bylayl's red light by a sudden yaw of the Bylayl caused by the wind and sea, or by inattention on the part of her wheelsman, but the condition of the wind and sea at the time were not such as to produce a yaw of such character, and I could not in fairness find on the testimony that the Bylayl's wheelsman was inattentive and allowed her to swerve widely. Proctors for the Vacuum say that it is highly improbable that the Vacuum should have suddenly changed its course and risked a collision unless the movements of the Bylayl made it necessary. This is, I admit, difficult to explain but they make a similar charge against the Bylayl. One of them is guilty of this charge or the collision would not have occurred, and as I have said above, my considered conclusion is that it was the Vacuum which was at fault. Captain Sheldon, the only one who says that he saw the Bylayl's red light, may have been confused. He may not have realized how close the vessels were, as he had been on the bridge but a short time, and decided to make a port to port passing. It also appears from the Vacuum's gyro record that he even made no effort to correct his course after he saw the Bylayl's green light, or to reverse his engines. Whether the passing distance was 600 feet, as testified by Captain Sheldon, or the 1350 feet testified by another witness, I do not think it particularly important or that that led to the collision, for all agree that if both vessels had held their courses they would have passed safely.
The Bylayl was not required to blow a passing signal; she was approaching the Vacuum green to green and the bearing of the Vacuum was steadily broadening on her starboard bow. Under the International Rules, Article 28, 33 U.S.C.A. § 113, neither vessel was obliged to blow a signal unless she changed her course. Article 17 and 27, 33 U.S.C.A. §§ 102 and 112, are not applicable. They were not confronted with any special circumstance or danger so long as each held its course. Cf. The Atlantic City, 3 Cir., 143 F. 451. Although as an extra precaution it probably would have been well to have exchanged signals as they were approaching each other, this omission did not contribute to producing the collision. It was not until the Vacuum went "hard right" that danger appeared. At that time she should have blown a signal indicating her change of course. That the Bylayl did not blow a signal when she went "hard left" and continued on at full speed in an effort to avoid the Vacuum should not condemn her. She was confronted with a sudden critical situation, and if those in charge of her navigation committed an error, it was only some thirty seconds before the collision, and was a situation in extremis, and it may well be that her maneuver resulted in the Bylayl being struck a glancing blow forward by the Vacuum instead of the Bylayl's bow striking the port side of the Vacuum, which might have been more serious for the Vacuum and her cargo of oil. In any event, the fault of the Vacuum in going "hard right" without warning across the Bylayl's course is amply sufficient to account for the collision without speculating whether the Bylayl might have done anything more than she did when faced with the sudden peril. Puratich v. United States, 9 Cir., 126 F.2d 914; The Atlantic City, 3 Cir., 143 F. 451; In re Rend, D.C., 126 F. 564; The Mexico, D.C., 78 F. 653; Theothilatos v. Martin Marine Transp. Co., 4 Cir., 127 F.2d 1016.
The libel against Pocahontas Steamship Company, as owner of the S. S. Bylayl, is dismissed and the Pocahontas Steamship Company may have a decree against Socony Vacuum Oil Company, Incorporated, for the damage sustained by the Bylayl, the amount of damages to be referred to a Commissioner. Proctors for the prevailing party to submit proposed Findings of Fact and Conclusions of Law upon five days' notice.