Opinion
May 21, 1945
Burlingham, Veeder, Clark Hupper, of New York City (Chauncey I. Clark and Charles E. Wythe, both of New York City, of counsel), for Agwilines, Inc.
Kirlin, Campbell, Hickox, Keating McGrann, of New York City (Robert S. Erskine and John F. Gerity, both of New York City, of counsel), for the Stad Haarlem.
These cross suits in Admiralty were brought by the respective owners of the steamships Agwidale and Stad Haarlem for damages sustained in a collision on the morning of March 16th, 1943, about 2:24 A.M., while both vessels were in convoy. The Stad Haarlem was #82, the second ship in the 8th column and the Agwidale was #92, the second ship in the 9th column. The convoy of 65 ships, in 11 columns, was bound for North Africa and was on a course of 237° true (247° 30' standard). By order of the Admiralty the vessels were proceeding blacked-out at a speed of 7 1/2 knots. The prescribed convoy distances were 5 cables between columns and 3 cables between vessels in the same column, but there was a tendency for the columns to draw closer together at night. The convoy commodore was on vessel #61. The vice commodore for the starboard section of the convoy was on vessel #91.
The weather was clear. The sea was moderate with just a little swell. The wind was S.W. and about force 5 on the Beaufort scale. There was a half moon. Visibility was good, although there were some clouds. Two columns of the convoy were visible from either side of a vessel.
The Stad Haarlem had an overall length of 385 feet; a beam of 52 feet; a depth of 28 feet 6 inches, a gross tonnage of 4518 and a net tonnage of 2737. She was built in 1929 and had 3 Scotch Furance boilers, a triple expansion engine with an indicated horsepower of 2250, and a right handed propeller with a 17 1/2 foot pitch. At convoy speed of 7 1/2 knots the Stad Haarlem's propeller turned about 44 revolutions. Her full speed loaded was 9 1/2 knots. She was formerly owned by the Halcyon Line, a Dutch concern, and during the war was operated by the Netherlands Shipping Committee for the Royal Netherlands Governruent. At the time of the collision she was under charter to the British Ministry of War Transport.
The Agwidale was owned by Agwilines Inc. She was 385 feet long, had a draft around 18 feet, 21 feet aft. Her tonnage was 3763 gross and 2969 net. She was powered by reciprocating engines and her speed in the convoy was 7 1/2 knots on about 55 revolutions. She had a right hand propeller with a pitch of 18 feet. At full speed under draft she could make 10 knots.
At the time of the collision the Stad Haarlem was partly loaded with Army stores, coal, and 1600 tons of ballast, to a draft of about 24 feet. She was struck by the Agwidale on the starboard side, about 65 feet from the stern at the after part of hatch #4, which was the first hatch aft of the engineroom. Several plates were pushed in for about one-half foot to a foot; the deck was set up; the sailors quarters were leaking; a raft was smashed; and it appeared that there was damage under the water line. Shortly thereafter the Stad Haarlem had to drop out of the convoy, but she managed to reach a bay where she was beached and temporarily repaired, before going to Scotland for repairs in dry dock. The Agwidale's bow was bent to the right. She was able to stay with the convoy until she reached a port in Africa. She was fully loaded.
The Agwidale's Version of How the Collision Occurred.
The navigation of the Agwidale was under the supervision of William F. Wright, the second officer, who was on the bridge. The master, John F. Manuel, was in his cabin aft of the wheelhouse. Tuchband, an A.B. seaman, was wheelsman; a lookout, Ritzberg, was on the forecastle. The standard compass on the bridge had been checked with the steering compass in the wheelhouse several times in the 2 1/2 hours preceding the accident. The convoy course was 2480 on her standard compass and 2350 on her steering compass. The Agwidale was on her course following her column leader #91, proceeding at the convoy speed of 7 1/2 knots on about 55 revolutions. The columns of the convoy converged during the night to a point where they were about 2 cables apart on her port and starboard sides.
About one-half hour prior to the collision second officer Wright observed that the Stad Haarlem had moved ahead of her proper position. When she was less than 2 cables away he observed that the Stad Haarlem was swinging to starboard, toward the Agwidale's column. The lookout Ritzberg signaled on his bell at the forecastle — 2 bells to indicate a ship on the port bow. The second officer, Wright, blew 4 short blasts on the whistle, ordered the rudder hard right and then gave 1 blast on the whistle. At the same time (2:24) he stopped her engines. The Stad Haarlem continued to swing towards the Agwidale and Wright ordered the Agwidale's engines full speed astern at 2:25 and blew 3 blasts. The Stad Haarlem headed across the Agwidale's bow, and put her rudder hard left, which swung her starboard quarter so that it collided with the Agwidale's port bow. The angle of collision was 75°.
The Stad Haarlem swung back 5 or 6 points to port on her hard left rudder, towards her own column. The Agwidale swung 4 or 5 points to starboard under her hard right rudder and stopped between the ninth and tenth columns, athwart the convoy. The ships in the ninth column passed on the Agwidale's stern in a direction starboard to port, and the ships in the tenth column passed on her bow in the same direction.
Captain Manuel of the Agwidale reached the bridge about one-half minute after the collision and immediately ordered the engines stopped at 2:27. He was mounting the ladder to the bridge when the collision occurred.
It is contended for the Agwidale that she had not veered from her convoy course, but that at all times prior to the collision she followed vessel #91 in the convoy. No signals were heard from the Stad Haarlem. After the collision the master ordered the "out of command" lights switched on (2 red lights). The witnesses for Agxvidale testified that the Stad Haarlem also put up 2 red lights after the collision but the Stad Haarlem's officers say they put up but one. The Agwidale allowed the convoy to pass and then fell in behind the fourth ship in the ninth column. The following morning she proceeded to regain her position astern of #91.
The Agwidale charges that the Stad Haarlem was at fault because (1) she was off her convoy course in the eighth column and had swung over into the path of the Agwidale in the ninth column; and (2) she failed to maintain a proper lookout in that (a) she had no bow lookout, (b) her deck officer in charge of navigation was not a proper lookout, (c) he was away from his station at the starboard end of the bridge immediately prior to the collision and did not see the Agwidale until just before the impact, (d) the lookout on the port wing of the bridge could not see the starboard side because the wheelhouse blocked his view. The Agwidale also charges that the Stad Haarlem was (3) not properly handled in the face of the collision, in that (a) her engines were put full speed ahead instead of full astern, and (b) she was given a hard-a-port rudder which caused her stern to swing over to the right, towards the bow of the Agwidale.
The Stad Haarlem's Version
The navigation of the Stad Haarlem was in charge of her second officer, Adrianus Lagendyk. The master, Johannes Smit, was in his cabin, from which he could communicate with the bridge through a speaking tube. The second officer was in charge of navigation and also acted as lookout for the starboard side. Jan Marinus Leenhouts, a bos'n with 20 years experience, was at the wheel. There was a lookout, Maarten Stolk, on the port side of the bridge, but no lookout in the bow because there was a half moon and he was not needed.
The Stad Haarlem's position in the convoy was #82, the second vessel in the eighth column. She was following her column leader at all times, travelling at 7 1/2 knots on about 44 revolutions. Shortly after 02:00 the second mate observed that the Agwidale was abeam on the starboard side, and that #72 was a little abaft of the port beam. All vessels at that time were in their proper columns. Later he "saw suddenly because the bridge is closed" the Agwidale about 2 or 3 cables off the Stad Haarlem's starboard side, heading straight for the Stad Haarlem slightly ahead of her beam, at an angle of about 80°. The second officer then ordered the wheel port — hard-a-port — gave 2 short blasts on the whistle and telegraphed full speed ahead. About two minutes elapsed between the time the second officer first observed the Agwidale swinging towards the Stad Haarlem and the collision. The second officer guessed that the Stad Haarlem went 5 or 6 points under the hard-a-port rudder. He had the rudder hard-a-port for about 2 minutes before the collision. The bow of the Agwidale collided rather heavily with the Stad Haarlem's starboard quarter, in the after part of hatch 4, at an angle of 80°.
After the collision Lagendyk ordered the Stad Haarlem's wheel hard to starboard. The Agwidale fell alongside and dropped astern and later displayed two red lights. No signals were sounded by the Agwidale, except a danger signal, a series of short blasts, at the time of the collision.
When the master of the Stad Haarlem, Captain Smit, came to the bridge about a minute after the collision (Lagendyk had called him) he noticed that the Stad Haarlem was about in convoy course, that #81 was a little on the starboard bow, about 1/2 a point, and that the Agwidale was drifting astern between the eighth and ninth columns, and was showing two red lights. The Agwidale was then about 2 cables from the bridge of the Stad Haarlem. The wheelsman, bos'n Leenhouts, informed the master that the course had been altered about 3 points to the port at the time of the 2 blasts of the Stad Haarlem, but that she had been brought back to the convoy course on a starboard rudder immediately after the collision.
The Stad Haarlem put up one red light and contintued in convoy position for about fifteen minutes after collision. The master endeavored to contact the Agwidale by signal lights without success. As the water gained in her hold, the Stad Haarlem dropped back between the seventh and eighth columns and made for the nearest port, Donegal Bay, where she was beached by the stern.
The Stad Haarlem charges that the Agwidale was at fault in that (1) she came over to the eighth column and collided with the Stad Haarlem; (2) the Agwidale's steering compass was unreliable and her wheelsman inexperienced; (3) through the indecision of the Agwidale's watch officer the necessary measures to avoid the collision were not promptly taken; (a) he stopped his engines for a minute before reversing them and (b) he should have gone full speed astern at once.
The argument is made that the stories of the second officer and the wheelsman of the Agwidale as to the course followed by their vessel and by the Stad Haarlem involve a physical impossibility, when the angle of impact is considered; But the same demonstration can be made and a similar result achieved when the stories of the second officer and the wheelsman of the Stad Haarlem are plotted on paper. Further, the stories told by. each pair in exoneration of their own ship are irreconcilable. The Agwidale claims that the Stad Haarlem came over to the ninth column and crossed the bow of the Agwidale. On the other hand the Stad Haarlem states that the Agwidale came over to the eighth column and struck the Stad Haarlem. For neither story can it be said that it is wholly credible and consistent with itself and with the courses of the steamers, so that neither one can be selected as the more probable and as a proper basis for a judgment. The guiding principle of The Alhambra, D.C., 25 F. 846, is of no avail in this case.
The Agwidale's Compasses
One of the faults charged to the Agwidale is that her wheelhouse steering compass was badly off. A reading of the testimony of second officer Wright and of Captain Manuel leaves one with the impression that the steering compass had been giving some trouble, especially when the degaussing system was off as it was at the time of the collision. Captain Manuel testified that the reason for the error in the compasses was that they had been corrected with the degaussing system on. When the system was off the pilot house compass varied considerably, while the standard compass varied one or two degrees. He said it was "a condition that would have to be watched, not necessarily unreliable"; and that "our compasses were steady. While they were out they did not vary to any extent at all." In order to hold the convoy course of 237° true the standard compass was at 2480 and the wheelhouse compass was at 235°. The captain thought that the deviation was not excessive for a steering compass "with the degaussing outfit and no corrections."
The second officer, Wright, testified that he checked the courses 235° on the steering compass and 248° on the standard when he went on duty at midnight and that he checked the wheelhouse compass several times between 01:20 and the time of the collision (about 02:26 1/2). There were two deviation charts, one to be used when the degaussing was on, and the other with it off. The compasses were more accurate with the system on. Wright knew that the wheelhouse compass had such an unusual degree of deviation that it required watching. He testified that he looked at the standard compass right after he gave the right rudder order, between 02:24 and the time of collision, and the reading was 248°. The Agwidale's wheelsman, seaman Tuchband, testified that the ship was not steering exactly on 235° all the time; she would go 10 to 30 one way or the other, but did not go more than 40 to the left of 235° at any time.
Considering the explanation of the Agwidale's compasses and their variation given, as above stated, I am of the opinion that the steering compass was giving trouble and that its condition was responsible for some of the Agwidale's departure to the left from her convoy course in the ninth column, so that she was over near the eighth column when the collision took place. Her wheelsman was not very experienced. He had been going to sea for only about a year, during which time he had steered four ships.
The Agwidale was Considerably Off Her Course, to the Left
The testimony of the Agwidale's captain and of her second officer, was that the collision took place in the ninth column or a little to the right of the ninth column, and that after the collision the Agwidale fell astern between the ninth and tenth columns. The captain did not see the collision. He was in his cabin at the time he heard the whistles of his own ship. He put on his shoes and sweater and left his cabin for the bridge. The collision occurred as he was ascending the ladder to the bridge. He testified that when he reached the bridge the Stad Haarlem was on the Agwidale's port bow proceeding ahead, about 50 feet away. The Agwidale was swinging to the right. He looked around to see the Agwidale's position with regard to :the rest of the convoy. The Agwidale was in between columns. The ship astern was over the Agwidale's starboard quarter and was going ahead. The ships in the convoy went ahead and the Agwidale fell in behind the last ship in the ninth column. The next morning he found that he was the fourth ship in the ninth column and he proceeded to regain his position as #92. He also testified that about 30 or 40 minutes after the collision, when the Agwidale was the rear ship of the ninth column of the convoy, he saw a ship flash on 2 red lights (not under control) — a ship in the position of #82, on the port bow ahead. He saw the 2 red lights for about half an hour, then that ship dropped astern out of sight of the convoy.
When Captain Manuel reached the bridge right after the collision the engines of the Agwidale were in full speed reverse. The Agwidale was swinging to the right. He testified that the other ship (the Stad Haarlem) was not more than 50 feet away; the distance was opening up. His second officer Wright was at the telegraph, which was full astern. The Captain told Wright to stop the engines. By the time he got stopped the Stad Haarlem was about a thousand feet away, abeam of the Agwidale, heading evidently on her convoy course right ahead, with no more than 500 feet from her stern to the Agwidale's port side. The Agwidale had been going astern. I believe that the Captain's testimony shows that the collision took place between the eighth and ninth columns, over near the eighth column.
The second officer of the Agwidale testified that when the Captain told him to stop the engines he was sent below to ring the emergency alarm and ascertain the damage. When he returned to the bridge the Stad Haarlem was a little to the port and ahead; she was between columns 8 and 9. Prior to the collision he saw her somewhat ahead on the port bow swinging over towards the Agwidale, which he says was in her proper place in the ninth column.
In my opinion the Agwidale had altered her course toward the Stad Haarlem, a vessel in a parallel column, without notice, and that that was a fault which contributed materially to the collision. The War Pointer, 4 Cir., 277 F. 718, at page 721.
The Stad Haarlem was Somewhat Off Her Course, to the Right
I believe that the Stad Haarlem was also somewhat off her course, but not to the extent the Agwidale was. The Stad Haarlem's deck log entry and her engineer's (Balje's) testimony show that the collision occurred only a few moments after the Stad Haarlem's second officer saw the Agwidale and gave the engine order for full speed ahead. It was at that time also that he gave the rudder order of hard-a-port.
The wheelsman, Leenhouts, testified that he was on the hard-a-port order altogether about four minutes and that about two minutes elapsed between the hard-a-port order and the collision. He testified that at the time of the hard-a-port order he was on the convoy course WSW, 237° true; that the collision occurred when the Stad Haarlem had reached SW by S, 213° 45' in her swing to port; that she did not stop swinging to the left until she reached S by W, 191° 15', at about the time he got a hard starboard order. In other words, he stated that the Stad Haarlem was on a hard-aport swing for four minutes and changed her course during that time from 237° true to 191° 15' true. He further testified that the Stad Haarlem had come back to SW by W by 1/2W, 231° true, when he was relieved at the wheel and was sent below to check the damage. He did not state specifically how long he was on the starboard rudder, but the inference to be drawn from his testimony is that he was on the starboard swing at least as long as he had been on the port swing. He said he was relieved about 9 or 10 minutes after he got the hard-a-port order.
Captain Smit of the Stad Haarlem testified that the telegraph was at full speed ahead when he came on the bridge about a minute after the crash, and he put it on half speed. He noticed at the time that the Stad Haarlem was about on convoy course; his leader was right ahead. He did not know how much the Stad Haarlem had altered her course to port at the time of the two blasts because when he arrived on the bridge she was on course again, but the wheelsman told him about 3 points.
The second officer, Lagendyk, in his testimony expressed a guess that the Stad Haarlem had swung about 5 or 6 points under the hard-a-port rudder. He said that he did not know how long it took the Stad Haarlem to get back on her convoy course, because he was below making soundings in the hold.
If Captain Smit is correct in his statement that he arrived on deck one minute after the collision and that the Stad Haarlem was then on convoy course, the Stad Haarlem could not have been on her starboard swing for an appreciable length of time (if at all) in getting on her convoy course after the collision. If the collision occurred a few moments after the Agwidale was seen approaching (as the Stad Haarlem's log states) which was the time the full speed ahead and the hard-a-port orders were given, then the collision occurred at the beginning of the Stad Haarlem's swing to port, and thereafter her continued swing to port must have been towards her convoy course.
The captain's story is inconsistent with the bos'n's. Indeed the bos'n's statement had the Stad Haarlem still swinging on her hard-a-port rudder for 2 minutes after the collision, before she started back on a starboard rudder. The captain's story, that the Stad Haarlem was on her convoy course at the time he came on the bridge one minute after the accident, when fitted into the statement of the second officer and the bos'n that the Stad Haarlem was put on a hard-a-port rudder when the full speed ahead order was given and continued swinging to the left after the collision, warrants the conclusion that the Stad Haarlem must have been to the right of her convoy course, when the hard-a-port order was given.
Although the bos'n's testimony reads well as to compass points and degrees, it is in conflict with the testimony of the engineer, the captain, and even the second officer. If the Agwidale struck the Stad Haarlem at an angle of 80° as the second officer testified, and if at the time of the collision the Stad Haarlem was on a course of 213° 45' (SW by S) as the wheelsman testified, then the Agwidale must have been on a course about 134° true, instead of the convoy course of 237° true. Just prior to the collision the Agwidale's bow must have already fallen off somewhat to the right under the effect of her hard right rudder and her engines full speed in reverse, thus her original course before the hard right rudder would have been still further to the left. I am of the opinion that although the Agwidale was off her course to the left at the time of the collision she was not off any thing like 80° or 100° as the bos'n's story would place her. The collision took place between the eighth and ninth columns, but nearer to the eighth column. The Stad Haarlem at the: time was not following her column leader and was off her course somewhat to the right. The Agwidale was not following her column leader and was considerably off her course to the left. Even at that, the accident could have been avoided if the Stad Haarlem had had a proper lookout.
The Stad Haarlem Failed to Maintain a Proper Lookout
The extract from the official log book of the Stad Haarlem, identified by Captain Smit, states:
"On Tuesday 16th March 1943 at 2.20 A.M. without having given any signal at all No. 92 vessel in the convoy came suddenly right up to us and a few moments later collided with my vessel and struck us starboard side after side hatch No. 4."
This entry was written by the chief mate from the rough log. The watch officer writes the rough log.
Second officer, Lagendyk, who was in charge, testified that the time interval between first observing #92 (Agwidale) swinging toward his own vessel (Stad Haarlem) and the time of collision was about two minutes and that when he thus observed the Agwidale she was two or three cable lengths away. He says that he then ordered his wheelsman port, hard to port, blew two short blasts on the whistle and put the telegraph full speed ahead. When he first saw the Agwidale, his own vessel the Stad Haarlem was making about 7 1/2 knots. Her full speed was 9 to 9 1/2 knots. The speed does not increase suddenly to any extent. The bearing of the Agwidale when he saw her coming was slightly ahead of the Stad Haarlem's beam and at an angle of about 80 degrees. He observed that there was danger of collision. He called Captain Smit right after the collision. Captain Smit testified that he was in his cabin when he heard his vessel blow two blasts and that the interval between that and the collision, a rather heavy bump, was about two minutes. He was still in his cabin when the collision occurred. It took the captain a little over a minute to reach the bridge. When he came up on the bridge the Agwidale was falling away and was about 2 cables from the bridge of the Stad Haarlem. The bridge of the Stad Haarlem is about 220 feet from its stern.
The Stad Haarlem deck log entry was made on the day of the accident. If we take as the fact the entry that the Agwidale "came suddenly right up to" the Stad Haarlem "and a few moments later collided with" the Stad Haarlem, then the lack of a proper lookout on the Stad Haarlem is established beyond question because the visibility was good and the Agwidale should have been seen sooner. The New York, 175 U.S. 187, at page 204, 20 S.Ct. 67, 44 L.Ed. 126; The British Resource, 73 L1.L.R. 143. I believe that the log entry is reliable. It is supported by the testimony of the Stad Haarlem's engineer, Balje, who testified that the order for full speed ahead came "just on the shock" — "at the same moment as the shock." Full speed ahead was the first order given to the engine room when the second officer, Lagendyk, observed the Agwidale coming right at the Stad Haarlem.
The second officer probably delayed too long in the wheelhouse of the Stad Haarlem when checking her course, and for that reason did not see the Agwidale until it was too late. Concerning his visit to the wheelhouse, the second officer was evasive in his answers. At first he denied it. Later he admitted that he had been there, but said that it was only a short while after the captain had spoken to him, slightly after two o'clock. But the bos'n, Leenhouts, who took over the wheel at 2:20 said on cross examination that the second officer "came in to check the course when the wheel was given over, in order to see whether it was all right," and that he remained there "about a quarter of an hour" (manifestly an overstatement). Later, on redirect examination, he changed this estimate to two seconds to check the course (highly improbable) and added that then the second officer "went out again on the starboard side." The bos'n also testified that the second officer had been in the wheelhouse checking the course about 2 or 3 minutes before he gave the bos'n the hard-a-port order. While the second officer was in the wheelhouse there was no lookout on the starboard side. That was a fault. The City of Edinburgh, 72 L1. L.R. 19.
Lagendyk testified that when he walks from the starboard end of the bridge around the rear of the steering house, towards the port end of the bridge, he loses sight of the starboard side for the time that he goes that way towards the port side, until he turns around and goes "back this piece," that is until he again passes from behind the wheelhouse on his walk back to the starboard end of the bridge; but that the time he loses sight of the starboard "can't be even a minute."
Probably the closeness of the Agwidale when he first saw her is the reason why Lagendyk gave the engine order full speed ahead and the rudder order hard-a-port, in the hope that he might either get across the Agwidale's bow, or, if struck, receive only a glancing blow. He was too close to avoid the collision by reversing. I believe that that was the real situation, although he testified that when he first saw the Agwidale shortly before the collision the Agwidale was 2 or 3 cables away and coming straight toward the Stad Haarlem's starboard at an angle of 80°, pointing slightly ahead of the beam. If the vessels had been that far apart with whose headings he would have avoided the collision by the order full speed ahead, even though coupled with an order to put the rudder hard-a-port, which would have the effect of reducing Stad Haarlem's speed 40% and of swinging her stern to starboard (Knight, 10th Edition, pages 499-501). Both vessels were about the same size, 385 feet long, and were proceeding at convoy speed of 7 1/2 knots, 750 feet a minute. The engine room log of the Agwidale (Ex. F) supports the testimony of her second officer, Wright, and her captain, Manuel, that the Agwidale had her engines full speed astern for about two minutes before the collision, and that before going into reverse her engines had been stopped for about a minute.
Seaman Stolk, the lookout on the port side of the Stad Haarlem's bridge, testified that when he heard the 2 blasts of the Stad Haarlem he looked around for almost 1/2 minute on the port side of the bridge and seeing nothing went over towards the starboard side of the bridge and he saw the Agwidale right aft of the bridge "heading straight for us" may be 100 or 200 meters away at about a minute before the collision.
There was no lookout on the bow of the Stad Haarlem. The excuse, that he was not needed in good weather, is of no avail. He was needed at night, with the vessel forming part of a large convoy, under war conditions, with ships all around and all blacked-out. The Corozal (The Daniel Pierce), D.C., 62 F. Supp. 123, 1944 A.M.C. 778. The greatest peril the vessel faced in navigating under those conditions was the peril of collision. It was constantly present.
The second officer of the Stad Haarlem was the deck officer in charge of navigation during the watch from midnight to 4 A.M. To have him acting also as the sole lookout for the starboard side of the vessel was a fault. The Corozal (The Daniel Pierce), D.C., 62 F. Supp. 123, at page 126, 1944 A.M.C. 778, at page 782, citing cases. The vessels were supposed to steer a compass course and to maintain their proper positions in their respective columns. Under the circumstances sufficient lookouts properly posted were essential to safety. The War Pointer, 4 Cir., 277 F. 718, at page 720. The gun crews were not members of the vessel's crew; they were there to protect the vessel from enemy action. The Stad Haarlem should have had a lookout at the bow and a lookout at both ends of the bridge.
The burden was on the Stad Haarlem to show that her bad lookout did not contribute to the collision. The Ariadne, 80 U.S. 475, 13 Wall. 475, 20 L.Ed. 542, The Madison, 2 Cir., 250 F. 850, cited in The Corozal (The Daniel Pierce), supra. She did not sustain that burden. As a matter of fact the bad lookout of the Stad Haarlem was an active, contributing and proximate cause of the accident.
The Engine and Rudder Orders Just Prior to the Collision
The Agwidale's second officer Wright is criticized for not having reversed his engines promptly, at the time he gave the stop order at 2:24 instead of a minute later at 2:25. Wright testified that the Stad Haarlem was less than 2 cables away when at 2:24 he first noticed that she was swinging towards the Agwidale's column. He stopped the Agwidale's engines. He says the Stad Haarlem kept swinging toward him and that he then, at 2:25, rang half and full astern in rapid succession. When he rang full astern the Stad Haarlem was about a cable nearer and she kept coming closer all the time. He had ordered the Agwidale's rudder hard right when he stopped the engine at 2:24. The Agwidale struck the Stad Haarlem, about at 2:26 1/2 on her starboard quarter, at an angle of 75° or 80°. The Agwidale's speed was not stopped at the time of the collision; she was still going ahead. The Stad Haarlem almost managed to get across. It may be that if the Agwidale had the aid of an extra minute of her engines in reverse (the minute during which they were stopped prior to being reversed) she would not have hit the Stad Haarlem. Knight states that if the courses of vessels are converging and the ships are very close, each should turn away from the other and stop (p. 482). Perhaps the second officer of the Agwidale had in mind also the presence of other vessels behind the Agwidale, which was well up in the convoy, and he may have been expecting some cooperating action from the Stad Haarlem. The Agwidale had a right hand propeller. Her engine was in reverse but she was still going ahead. Under those conditions the effect of a hard right rudder was to throw her stern to port. Knight p. 493. The time intervals between the engine orders are shown by the Agwidale's engine room. Under the circumstances I believe that there was no fault in the engine and rudder orders of the Agwidale.
As to the orders given by second officer Lagendyk of the Stad Haarlem at the time he first saw the Agwidale approaching, we must consider the circumstances under which they were given. Lagendyk testified that when he first observed the Agwidale coming straight towards the starboard side of the Stad Haarlem bearing slightly ahead of her beam, the Agwidale was 2 or 3 cable lengths away and that two minutes elapsed between the time he saw her and the collision. He says he put his engines full speed ahead and gave her a hard-a-port rudder, hoping to clear the Agwidale. The hard left rudder would have a tendency to reduce the speed of the Stad Haarlem and to swing her stern towards the Agwidale. The Agwidale charges that the Stad Haarlem was at fault in both her rudder and engine action, claiming that the Stad Haarlem should have reversed her engines. In passing judgment on errors of navigation in a case like this, where the two vessels concerned were very close and a collision was imminent, having in mind the fact that both vessels were in convoy, with vessels ahead, astern and on both sides of them, it seems to me that the General Prudential Rule would apply and that the special circumstances would warrant a departure from the rules in order to avoid immediate danger. Besides, I am of the opinion that the two vessels were much closer than Lagendyk said they were when he first saw the Agwidale. They were so close that to reverse would have invited a collision amidships. By going full speed ahead the Stad Haarlem almost escaped. True, her hard left rudder swung her stern towards the Agwidale and that may have prevented the Stad Haarlem from getting by. At any rate her engine orders were correct under all the circumstances and I cannot say that the collision would not have occurred if her rudder action had been different.
Whistle Signals
The testimony of the Stad Haarlem's witnesses on the whistle signals blown by the two vessels was as follows: Lagendyk, the second officer, testified that the Stad Haarlem blew two blasts when the hard-aport order was given (about two minutes before the collision) and that the other vessel, the Agwidale, blew a series of short blasts at the time the collision occurred. Captain Smit testified that he was awakened before the collision by the two short blasts of his own vessel; that there was an interval of about two minutes between the two blasts of the Stad Haarlem and the collision and that he heard several short blasts from another vessel very close to the Stad Haarlem just about the moment of the collision. Leenhouts, the wheelsman, testified at first that he heard the Stad Haarlem's two blasts when he got the hard-a-port order and that he heard a series of short blasts aft (from the Agwidale) at the same time he felt the shock. Later on cross examination he testified that he heard a series of short blasts from another ship (the Agwidale) right after the Stad Haarlem had sounded her whistle and on redirect he repeated that it was right after the Stad Haarlem's whistles that he heard a series of short blasts, about the same moment as the collision; but he added that the interval of time between the hard-a-port order and the shock of collision was about two minutes. Stolk, the lookout on the port side of the bridge, testified that when he heard two blasts from the Stad Haarlem he looked around about half a minute and while he walked around to starboard side of the bridge he heard the short blasts of another vessel which he saw when he came to the starboard side. He stood there for about a minute and then she struck the Stad Haarlem.
Concerning the whistles blown by the Agwidale, her witnesses testified as follows: Wright, the second officer, said that when the Stad Haarlem was less than 2 cables away and he saw her start to swing towards the Agwidale's column, he blew the danger signal and gave the wheelsman orders to put his wheel hard right and gave one blast on the whistle. A minute later he put the engines full speed astern and blew three blasts. He said he did not hear any whistles from the Stad Haarlem.
From Captain Manuel's deposition it appears that he was asleep in his cabin when he heard the ship blow 4 whistles. When he was getting his shoes on he heard one whistle and immediately following that he heard three whistles, all from the Agwidale. He did not hear any whistles from any other ship. Tuchband, the wheelsman of the Agwidale, testified that first he heard two bells from the lookout in the bow, then he heard the telegraph to the engine room ringing and then he heard the whistle of the Agwidale. After which he got a hard right order. He heard no whistles from the other ship. I believe that the Agwidale was the first to blow her whistle. Her second officer Wright saw the Stad Haarlem, before Lagendyk, the second officer of the Stad Haarlem, saw the Agwidale. Wright's testimony as to the engine room signals is supported by the engineer and the engine room log of the Agwidale. The whistles were related to the engine action in time. On the other hand, the engineer of the Stad Haarlem does not support Lagendyk as to the time he gave his full speed ahead order.
Agwidale's Failure to Produce Log Entries and Records of Collision
The proctor for the Stad Haarlem argues that the Agwidale's failure to produce records of the collision made that day and to produce Ritzberg, the bow lookout, raises an inference that the records and the lookout's testimony would be unfavorable to the Agwidale's case. It appears from the Agwidale's reply brief that arrangements had been made to take Ritzberg's deposition at 10:30 A.M. on July 14, 1943, and opposing counsel were notified. The witness arrived about noon, after the taking of the deposition had been adjourned to 2 P.M. He said that he had had no breakfast so "he was told to get something to eat and return at 1:30 P.M. He never came back. * * * He was no longer in the employ of the Agwidale owners." I think that the failure to take his deposition has been satisfactorily explained.
But the situation in respect to the Agwidale's deck logs is different. (Her engine room log is in evidence.) The Agwidale's rough log book was produced but it did not contain any entry about the collision. Concerning the deck log itself Captain Manuel testified that they have instructions to destroy all records pertaining to the ship's movements in convoy by burning, but that he cut the pages out with the expectation of saving them and kept that page with the courses; that it is customary to keep the courses. He had no recollection of destroying them. He assumed that he had destroyed them because they are not available. He added: "I can't remember destroying them but I remember destroying all other records." Earlier he had said "They were accidently destroyed."
The second officer, Wright, who was in charge at the time of the collision testified that he made a record on a little pad and that he left it in the wheelhouse. He also said he wrote a report on a sheet which he gave to the purser and he typed it out. But none of these records were produced. The failure to do so has not been satisfactorily explained. I believe that the alleged circumstances of their accidental destruction are such that the nonproduction of the records is "in itself evidence of conscious fault." The Arabic, D.C.S.D.N.Y., 34 F.2d 559, 561, 1929 A. M.C. 1364, 1368. "This failure seriously reflects upon their testimony." The Arabic, D.C., 34 F.2d 559, 1929 A.M.C. 1364. See, also The Pocahontas (The San Tirso), D. C., 4 F. Supp. 208, 1933 A.M.C. 1082; J.V. Petrie Sons, Inc., v. Motor Ship Interwaterways Line, Inc., 1928 A.M.C. 1732; The Philadelphia, 3 Cir., 44 F.2d 1, 1931 A. M.C. 217; Societa Anomma Cantiero Olivo v. Federal Ins. Co. (The Ettore), 2 Cir., 62 F.2d 769, 1933 A.M.C. 323; Cary-Davis Tug Barge Co. v. United States (Pres. McKinley-Tug Oregon), 9 Cir., 8 F.2d 324, 1925 A.M.C. 1630; Drummond Lighterage Co. v. Oregon-Washington R. Nav. Co., 9 Cir., 20 F.2d 118, 1927 A.M.C. 1161; The Gulf of Mexico, 2 Cir., 281 F. 77.
Lights
The ships in the convoy were travelling blacked-out under war time regulations. Neither ship turned on its navigation lights as the danger of a collision developed. Some cases hold that even in war time and while ships are in convoy, navigation lights should be switched on the vessel that sees another approaching dangerously close. The Corozal (The Daniel Pierce), supra. It was intimated in The Cushing, D.C., 266 F. 570, at page 575, that the danger from submarines might be an excuse for not turning on the lights. However, in one of several appeals in the same case (292 F. 560) the Circuit Court of Appeals, Second Circuit, in affirming the Cushing case, states at page 565 of 292 F.: "It is no answer to say that the navigator was fearful of submarines at the time." In the Cushing case only two vessels sailing alone were involved and the collision took place off the Atlantic Coast near Cape Lookout. In The Dominion Monarch, 73 L1.L.R. p. 229, the appellate court reversed the decision of the trial court which had held that two vessels which collided while sailing separately without lights in war time in the English channel were both at fault for failing to switch on their lights, immediately danger of collision arose.
The record here does not disclose in detail the convoy regulations, but Wright, the second officer of the Agwidale, testified that the orders were that it was a blacked-out convoy and that they were not supposed to switch on the running lights unless they got orders from the Commodore. But if failure to switch on her navigation lights was a fault on the part of the Agwidale it was equally a fault on the part of the Stad Haarlem, whose second officer testified that he saw the Agwidale approaching at a distance of 2 or 3 cables.
According to the officers of the respective vessels, the Agwidale turned on 2 red lights on a wire over the bridge after the collision, and the Stad Haarlem turned on one red light. The 2 red lights signified "out of control", so that the following ships of the convoy would avoid the Agwidale, but that did not mean that her steering gear was out of control. The Stad Haarlem's officers said they put up one red light to attract attention, because there had been no reply to her blinker message to the Agwidale after the collision.
I do not believe that the facts of this case require the application of the doctrine of The Victory (The Plymothian), 168 U.S. 410, 18 S.Ct. 149, 42 L.Ed. 519, that "when one vessel is guilty of glaring fault, we will not too jealously scrutinize the navigation of the other." Woodruff v. Delaware, L. W.R. Co., 2 Cir., 130 F.2d 121, at page 123. The absence of a proper lookout, where the fault clearly contributed to the collision as it did in this case, is not so readily disregarded. The requirement of a proper lookout on a vessel proceeding as part of a large convoy blacked-out at night, is most essential to the safety of that vessel and of other neighboring vessels.
I have found both vessels at fault and I believe that they were equally at fault. Even if it were true that the Agwidale's fault of being so far off her convoy course was greater than the Stad Haarlem's fault of failing to keep a proper lookout, still the damages would have to be divided. This court would have no power to apportion the damages other than on a 50-50 basis. Postal S.S. Corp. v. Southern Pac. Co., 2 Cir., 112 F.2d 297. And that is the basis of division which the facts themselves fully justify.
I am filing findings of fact and conclusions of law together with this opinion. The decree in each case will provide for a reference to a Special Master to determine the amount of the damage to the vessels involved. Settle decrees on two days' notice.