Opinion
Burlingham, Veeder, Clark & Hupper, New York City (Adrian J. O'Kane and Richard W. Palmer, New York City, of counsel), for S. S. Halsted.
Kirlin, Campbell & Keating, New York City (Ira A. Campbell, Raymond T. Greene and Walter L. Hopkins, New York City, of counsel), for Standard Oil Co. and Camden.
COXE, District Judge.
These suits grow out of a collision between the steamship William S. Halsted, owned by the United States and operated under bareboat charter by Moore-McCormack Lines, Inc., and the tank steamship Esso Camden, owned and operated by the Standard Oil Company (N.J.)
The collision occurred in Chesapeake Bay, a short distance below Sandy Point, Maryland, which is on the western shore of the Bay, during dense fog, on the night of November 2, 1946. The Halsted was at the time proceeding down the Bay from Baltimore, bound for Baltic ports, and the Camden was proceeding up the Bay from Sewell's Point, near Norfolk, bound for Baltimore. In the collision the port quarter of the Camden came into contact with the port side of the Halsted at the break of the forecastle head, causing fires to break out on both vessels, with considerable damage.
A short distance off shore from, and a little to the northeast of, Sandy Point, is a major lighthouse, 51 feet high, with a flashing light having a visibility of 13 miles, and equipped with a foghorn. Southwest of Sandy Point is a ferry slip from which a ferry runs across the Bay to and from Matapeake, on the eastern shore. The Bay, at this point, is about four miles wide, and on the night of the collision there were two ferryboats engaged in making the run, each about 200 feet in length, and each leaving one of the slips hourly, on the hour, the crossing requiring from 25 to 30 minutes.
The Halsted is a Liberty Ship of 7191 gross tons, 441.7 ft. in length, 57.1 ft. beam, and having engines of 2500 horsepower. The Camden is a tanker of 10296 gross tons, 504 ft. in length, 68.2 ft. beam, and having engines of 6000 horsepower. The full indicated speed of the Halsted was 10 1/2 knots, and that of the Camden, 15 knots. On the night of the collision the navigation of both vessels was in charge of licensed Maryland State pilots; the tide was flood, with a velocity of a knot to a knot and a half, and the wind was northeast, with a velocity of from three to six miles an hour.
All of the witnesses for both vessels, with the exception of Davis, the pilot on the Halsted, testified by deposition, and Davis testified at the trial.
The story of the collision, as told by the Halsted's witnesses, is as follows: The vessel left Baltimore at 8:43 PM on November 2, 1946, loaded with 6000 tons of coal in the lower holds, and with cattle and their fodder in the 'tween decks and in pens on deck. The weather was clear at the time, and after getting out into the channel, the vessel proceeded down the Bay at full speed. She passed Sandy Point Light, which was clearly seen, abeam to starboard, and about three-quarters of a mile distant, at 11:02 (deck time), at which time her course was set at 195 degrees true, and she continued on that course until just before the collision. At 11:10 (deck time), or eight minutes after passing Sandy Point Light, a light haze was seen coming in from the northeast in streamers- a patchy fog. The engines were thereupon placed on stand-by and the vessel commenced sounding fog signals at intervals of every 30 seconds. At about the same time, the Sandy Point Lighthouse started blowing fog signals.
Captain Maynard, the master of the Halsted, had been in his room since the vessel cleared Baltimore channel, and when he heard the Halsted's fog signals he immediately came to the bridge and found that the fog was 'coming about the vessel', with visibility reduced to 'a mile, mile and a half'. From then on until the collision the Halsted's navigating personnel consisted of Maynard, the master; Davis, the pilot; Olsen, the third mate, and a helmsman, all of whom were on the bridge, and a lookout on the forecastle head.
After Maynard reached the bridge, the engines were put on half speed ahead at 11:11 (deck time), and at 11:12 (deck time) they were stopped upon hearing fog signals from two vessels ahead, one bearing on the starboard bow and the other on the port bow. These vessels turned out to be the ferryboats John M. Dennis and Governor Harry B. Nice, plying between Sandy Point and Matapeake. Maynard testified that at the time the engines were stopped the Halsted was making 'in the neighborhood of perhaps 7 knots' through the water.
The first of the ferryboats to come into view was the Dennis, which had left Sandy Point for Matapeake at 11:02, and appeared off the Halsted's starboard bow, about a quarter of a mile away. By that time the fog had increased so that the visibility was only a quarter of a mile. The Dennis blew a three- blast signal, indicating that she was backing to enable the Halsted to pass, and at 11:13 (deck time) the Halsted's engines were put back at half speed to facilitate the crossing. The clearance between the two vessels when they passed was estimated by Davis at 500 feet, and by Maynard at a quarter of a mile.
After the Halsted had passed the Dennis, the red running light of the Governor Nice, which had left Matapeake for Sandy Point at 10:59, came into view off the Halsted's port bow, and at 11:15 (deck time) the Halsted's engines were put full speed ahead to clear her. The Governor Nice had stopped her engines in the meantime, and, as testified by Maynard, the Halsted crossed her bow at an estimated distance of a little more than a quarter of a mile, and at a speed 'in the neighborhood of five and a half to six knots: through the water.
The stern of the Halsted had hardly cleared the Governor Nice when the white masthead light of the Camden loomed up ahead, through the fog, bearing two to three degrees on the Halsted's starboard bow, followed almost immediately by the red and green running lights of the Camden. The visibility was then still only about a quarter of a mile, and the Halsted's rudder was at once placed hard right, and her engines were kept at full speed ahead, in an effort to avoid collision. The Camden, in turn, swung to her starboard, and the collision occurred at 11:17 Halsted deck time (11:20 Camden's time), about a minute after the white masthead light was first seen by the Halsted, the Camden's port quarter striking the port side of the Halsted a glancing blow, as already stated.
No signals other than fog signals were sounded by the Halsted at any time, and no signals were heard by the Halsted from the Camden except a single loud and long blast just before the collision.
The Camden's version of the collision is as follows: The vessel left Sewell's Point at about 1:00 PM on November 2, 1946, partly loaded with a cargo of gasoline and naptha, destined for Baltimore. The navigation north through Chesapeake Bay to within a short distance of the place of collision was without incident. About a half-hour before the collision, the weather conditions were 'absolutely clear'; the vessel was then below Thomas Point, proceeding at full speed of 16 knots over the ground, and there was no difficulty in observing the various navigational lights. The 16-knot speed continued up to the time of the collision. As the vessel proceeded on a course of 10 degrees true, Sandy Point Light was picked up, about 10 miles away. At about 11:08 the course was changed to 19 degrees true, and, according to the gyro compass course record, the vessel steadied on that course at 11:10, and so continued until just before the collision. The collision occurred at 11:20, according to the Camden's time.
The navigational personnel of the Camden, during the period just prior to the collision, consisted of Malm, the master; Worthington, the pilot; Filliaux, the third mate, and Hahn, the helmsman, all of whom were on the bridge, and Stone, the lookout, who was stationed on the forecastle head.
Stone, the lookout, testified that he came on watch 'a few minutes before 11:00', and that the weather conditions were then 'very good', but 'approximately fifteen minutes' afterwards these conditions changed, and he 'noticed that the shore lights began to disappear, apparently because of the fog or a light haze'. He thereupon 'unfastened the phone box and placed the phone in a handy position', and almost immediately he observed two white lights in line, very close and high ahead, less than half a mile away, which appeared to be on another vessel in a fog. He then ran to the after end of the forecastle head, where the ship's bell was located, and rang three bells, which indicated the sighting of a vessel directly ahead. Before he could get back to his station at the forecastle head, he heard a single short blast from this vessel, which turned out to be the Halsted, and immediately thereafter he heard a single blast from the Camden. Other than these two blasts, he heard no horns or whistles blown at any time prior to the collision. He estimated that it was 'a minute' from the time the shore lights were beginning to fade until the time he observed the Halsted's lights.
Captain Malm, the master, testified as follows: His first knowledge of the presence of the Halsted was when he picked up her 'light, one light'- a 'white light', which appeared to be in a little haze, almost ahead and close. Prior to his sighting this white light the 'weather conditions were good, visibility very clear', and no whistle signals were heard from other vessels in the vicinity. Also prior to his seeing the white light, no one on the Camden made any report of seeing the Halsted, but immediately after he sighted it the lookout, the third officer and the pilot, reported it. He insisted, too, that, 'only a matter of a few seconds' before he saw the white light, 'we had seen Sandy Point and also ships'. Immediately after the white light appeared, a one-whistle signal was heard from the Halsted, which the Camden at once answered with one blast. According to Malm, this one whistle of the Halsted was taken as an indication of a passing signal, and the Camden's rudder was placed at hard right. The Camden was 'swinging very rapidly' and changed her course 21 degrees to starboard, as shown by the gyro compass course record. Before the collision, the rudder was put back to hard left 'to draw the stern' from the Halsted. Malm heard no fog whistles from any vessel for a period of 15, 20 minutes, prior to the collision. Neither did he hear any foghorn from Sandy Point. His estimate of visibility at the time he first saw the white light of the Halsted was 'about half a mile'. His first knowledge of fog was 'a few seconds before we picked up the ship'. He saw the white light of the Halsted 'perhaps thirty seconds' before the collision.
Worthington, the pilot, testified that when the Camden was 'somewheres about midway between Thomas (Point) and Sandy Point' the weather conditions changed, and that just before this happened he was on the port wing of the bridge talking with Captain Malm, when 'out of a clear sky, there was a signal, three bells', and at the same time 'wisps of fog' were seen 'going over the foremast headlight' of the Camden. Worthington thereupon rushed to the wheelhouse with the intention of stopping the vessel, but before he could get to the telegraph he saw the two white masthead lights of the Halsted in line dead ahead, and so close that he decided to keep 'full maneuverability'. At about the same time Worthington heard a one-whistle signal from the Halsted, which was answered by the Camden with one whistle, and the Camden's rudder was immediately placed hard right. The Camden swung sharply to starboard, but, when it was seen that 'the maneuver was not clearing', the rudder was placed hard left to bring the stern away from the Halsted. The vessels did not remain in contact after the collision. Prior to sighting the Halsted, no fog whistles were heard from any vessel in the vicinity, or from any of the various shore stations. When Sandy Point Light was first picked up, the Camden was roughly ten miles to the south, and the Sandy Point Light was then visible 'about between five and six miles'. It was 'roughly a minute' between sighting the lights of the Halsted and the collision. Worthington said that he actually saw Sandy Point Light within seconds before he received the three-bell signal from the forecastle head. The lights at Sandy Point ferry landing on the western shore, and at Matapeake on the eastern shore, were both 'visible immediately prior to this collision'. He saw these lights 'as late as 11:18, that is, two minutes before the collision'. He did not see any fog until about the same time that he ran into it.
Filliaux, the third mate, testified that he was continuously on the bridge with the master and the pilot from 8:00 to 12:00 PM. His duties were mainly to keep a good look out and to translate any engine orders on the telegraph to the engine-room. The weather conditions had been excellent all through the watch until just before the collision. All vessel lights, the buoys, and the lighthouses were visible. They could be picked up without difficulty. The first indication that he had of the presence of the Halsted, or of the presence of a fog, was a blurred white light which appeared dead ahead at the same time as the lookout reported it with a three-bell signal. He first saw the Sandy Point Light a half-hour or more before he saw the Halsted, bearing fine, i.e., no more than one point, on his port bow. The weather conditions were excellent when he saw the Halsted's light, but the light itself was blurred- it must have been fog- although the Camden was then 'definitely not' in a fog. He estimated the distance to be about a quarter of a mile or less. The pilot then ordered a right rudder, which the master changed to hard right. Both vessels sounded single-blast passing signals, the Halsted first. Prior to sighting the Halsted he had heard no fog signals, nor had he received any reports as to fog signals. The collision occurred about a minute and a half or two minutes after he sighted the Halsted, and it occurred in a fog although the Camden had not been in a fog before. He made the following entry in the rough log book:
'At approximately 11:18 fog bank suddenly engulfed vessel. Visibility zero. At approximately 11:19 southbound vessel showed up dead ahead. Rudder was thrown hard right. One blast of whistle was sounded, vessels cleared each other's bows, and rudder was thrown hard left in an endeavor to clear each other's sterns. At 11:20 southbound vessel S/S 'William S. Halsted' collided with S/S 'Esso Camden'. S/S 'Esso Camden' struck glancing blow at #8.9 port tanks. Vessel immediately caught fire. Fire and emergency signal immediately sounded, crew responded and fought fire with all available equipment. Steam smothering system immediately operated.'
Filliaux testified that this entry was written between 6:00 and 7:00 the following morning; that it was not a correct entry; that it was written after he had been up for 24 hours, during five hours of which he had been fighting a very hot fire; that the times were all estimated; that, starting with 'At approximately 11:19'. everything in the entry thereafter is true, but that the first two sentences, 'At approximately 11:18 fog bank suddenly engulfed vessel. Visibility zero', are incorrect. He never, however, corrected the entry, or made any reference to the mistakes when he testified before the Coast Guard on November 5, 1946, two days later, because, as he says, he wasn't asked about them.
1. The principal charge of fault asserted against the Halsted is that she was not proceeding 'at a moderate speed, having careful regard to the existing circumstances and conditions', as required by Article 16 of the Inland Rules, 33 U.S.C.A. § 192. The vessel passed Sandy Point Light at 11:02, at which time her course was set at 195 degrees true, and she continued on that course until just before the collision. She was then proceeding at full speed of 10 1/2 knots against a flood tide of one to one and a half knots, or a speed through the water of at least 9 knots. At 11:11 the engines were placed at half speed ahead, and at 11:12 they were stopped, upon hearing fog signals from the two ferryboats. At 11:13 the engines were put back at half speed ahead, to facilitate the crossing of the first ferryboat, and at 11:15 they were advanced to full speed ahead to clear the second ferryboat. They remained at full speed ahead until the collision two minutes later.
I think this full speed ahead at 11:15 was clearly excessive under the existing circumstances and conditions. The Robert M. Thompson, 2 Cir., 244 F. 662; The City of New York, D.C., S.D., N.Y., 15 F. 624, 628. See also The Sylvan Arrow, 2 Cir., 104 F.2d 102. Maynard, the master, estimated that when the vessel crossed the bow of the Governor Nice her speed was in the neighborhood of 5 1/2 to 6 knots through the water. This estimate seems to be too low, but, however that may be, I am satisfied that at the time the Camden was sighted the speed was at least 6 1/2 knots through the water, and I so find.
The argument of the Halsted that full speed ahead at 11:15 was necessary to clear the Governor Nice is not supported by the evidence. There was no difficulty in passing either of the two ferryboats; the Halsted never changed her course during this passage, and she crossed the bow of the Governor Nice at an estimated distance of a little more than a quarter of a mile. I hold, therefore, that the Halsted was at fault for not proceeding at a moderate speed.
2. The only question for determination with respect to the navigation of the Camden is whether she had, or should have had, knowledge that she was approaching a fog bank, for it is perfectly obvious that if she had, or should have had, this knowledge, she was at fault for immoderate speed and for failure to sound fog signals.
At 11:10 Halsted time, or 11:13 Camden time, fog was first seen by the Halsted, coming in from the northeast, and the Halsted thereupon commenced to blow fog signals, which were continued until the time of the collision. At about the same time, the Sandy Point Lighthouse started blowing fog signals, and these, too, continued until the collision. The two ferryboats also began sounding their fog signals at least as early as 11:12 Halsted time, or 11:15 Camden time. Yet no one on the Camden admitted hearing any signals, except Stone, the lookout, who said that he heard, just before the collision, a single blast from the Halsted, followed immediately by a single blast from the Camden. It is simply incredible that no one of the navigating personnel of the Camden, if he had been at all alert, should have heard at least some of these signals.
The incredibility of this failure to hear any of the fog signals is further brought into sharp focus by the testimony (1) of Malm, the master, that 'only a matter of a few seconds' before he saw the white light, he had seen Sandy Point, and (2) by the similar testimony of Worthington, the pilot, that he had seen the lights at Sandy Point ferry landing on the western shore and at Matapeake on the eastern shore 'as late as 11:18, that is, two minutes before the collision'. The evidence is clear that during these times, respectively, the fog was dense, with a visibility of only a quarter of a mile, and enveloping the area directly ahead of the Camden. It is most unlikely, therefore, that the places mentioned by these witnesses could have been seen at times so close to the actual collision.
I am not impressed with the attempt of Filliaux, the third mate, to repudiate the portion of the entry made by him in the rough log book of the Camden, as follows: 'At approximately 11:18 fog bank suddenly engulfed vessel. Visibility zero.' The entire entry indicates a clear comprehension of the facts surrounding the collision, and no good reason has been advanced for his failure to correct the entry at the Coast Guard hearing on November 5, 1946, three days after the collision, if the entry had, in fact, been incorrect.
I find that the navigating personnel of the Camden had, or should have had, knowledge that the vessel was approaching a fog bank, and it follows, therefore, that the Camden must also be held at fault for the collision. The Automatic D.C., S.D., N.Y., 298 F. 607.
There may be a decree in each suit holding both vessels at fault for the collision, and for divided damages, without costs to either party.