Opinion
Kirlin, Campbell, Hickox, Keating & McGrann, of New York City (Wm. H. McGrann, of New York City, of counsel), for Pilot Boat Sandy Hook and owners.
Haight, Griffin, Deming & Gardner, of New York City (John W. Griffin and W. Parker Sedgwick, both of New York City, of counsel), for Den Norske Amerikanlinje.
COXE, District Judge.
This is a libel and cross-libel for a collision between the Norwegian motor ship Oslofjord and the pilot boat Sandy Hook, which occurred at about 6:24 A.M. on April 27, 1939, at a point bearing about 150 degrees true, and distant about a quarter to half a mile, from Ambrose lightship at the entrance to New York harbor.
The collision took place in a dense fog, with a visibility variously estimated at from 200 to 250 feet. The Oslofjord was inbound from Norway with a large number of passengers, including the crown Prince and Crown Princess of Norway, and a general cargo. The tide was ebb but it played no part in the movements of either vessel. The bow of the Oslofjord cut into the port side of the Sandy Hook a little aft of amidships, and the Sandy Hook sank at about 7:17 A.M. The Oslofjord also sustained some damage on the starboard side of her stem.
The Oslofjord is a passenger and cargo vessel 587 feet long, 73 1/2 feet beam, and has a loaded draft of 26 feet. The draft at the time of the collision was 21 feet forward and 24 feet aft. Her gross tonnage is 18,672, her indicated horse power 20,000, and she has four motors and twin screws. The vessel was built in Bremen in 1937, and Captain Bull, the master, testified that at slow speed she makes between 8 and 9 knots with 35 to 40 revolutions, and at dead slow between 5 and 6 knots with 20 to 25 revolutions.
The Sandy Hook was a single screw vessel of 361 gross tons, and had been a fishing vessel prior to her acquisition by the Pilots' Association. She was 168.6 feet long, 24.4 feet beam, and had a depth of hold of 12.6 feet. Her half speed was about 6 or 7 knots, and her slow speed about 3 1/2 knots.
Both vessels were blowing single blast fog whistles at regular intervals prior to the collision. The Sandy Hook was also sounding her pilot signal of one long, two short and one long. Goetz, the mate, and Sullivan, the pilot, of the Sandy Hook, testified that before the collision they heard a two-whistle signal from the Oslofjord. The evidence was, however, clear that the Oslofjord blew only single blasts prior to the collision. I, therefore, find as a fact that no signal of two whistles was blown by the Oslofjord before the collision.
The Oslofjord insists that the collision was caused solely by the navigation of the Sandy Hook directly across the Oslofjord's bow. For the Sandy Hook it is contended that the Oslofjord was not proceeding at 'moderate speed' as required by Article 16 of the International and Inland Rules, 33 U.S.C.A. § 92 and § 192; that she should have reversed her engines sooner than she did; and that her course was improperly altered to starboard prior to the collision.
The Oslofjord was running at slow speed up to 5:45 A.M.; the speed was then reduced to dead slow, and continued at that rate until 6:02 when there was a slight clearing with a visibility of half to three-quarters of a mile. The speed was thereupon increased to slow of 8 to 9 knots. At about the same time, the whistle of the pilot boat was heard from the vicinity of Ambrose lightship. The Oslofjord was then on a course of 269 degrees true.
The Oslofjord continued at slow speed from 6:02 to 6:10 when the fog again shut down, and at 6:10 the engines were stopped. They remained stopped until 6:19. During this period of 9 minutes the whistles of a tug with a tow, blowing one long and two short, were heard on the port bow, and the course was accordingly altered step by step to starboard until it reached 297 degrees true. The tug, with a tow of three dump scows on hawsers, was outbound to the dumping grounds, and passed the Oslofjord port to port. When the tug was about abreast of the Oslofjord it blew a dumping signal of four blasts. Captain Ulrich, master of the tug, testified that this dumping signal was given at 6:18.
Captain Bull of the Oslofjord testified that at 6:19 the headway of the vessel was about 1 knot. I think that this is a fair estimate of the speed at that time, in view of the fact that the engines had been stopped since 6:10. At 6:19 the bearing of the Ambrose lightship was 324 degrees true, and that of the pilot boat 315 degrees true. The engines were then (i.e., at 6:19) started again at dead slow, and stayed that way until 6:22. Captain Bull thought that the speed at the end of this 3-minute period was 3 1/2 or 4 knots.
During the period from 6:19 to 6:22, when the engines of the Oslofjord were at dead slow, the whistles of the pilot boat, which at 6:10, appeared west of the lightship, seemed first to be coming from east of the lightship, and then to be drawing aft of the Oslofjord. Captain Bull figured that the pilot boat would take a parallel course to that of the Oslofjord, and round the stern in the usual way in order to put the pilot on board on the port side. At 6:22 the bearing of the whistles of the pilot boat appeared to change, and no longer were drawing aft. The engines of the Oslofjord were then stopped.
The engines remained stopped for about a minute, or until 6:23, when the cut water and masts of the Sandy Hook were seen on the starboard bow 'heading right across or towards' the Oslofjord. The Oslofjord was then making 2 to 2 1/2 knots. Captain Bull at once jumped for the telegraph, and placed the engines full speed astern. The Oslofjord was equipped with a new device which only required the slight turning of a wheel to put the engines in reverse at full speed; and Captain Bull said it only took 3 or 4 seconds to start the full revolutions. The engines continued at full speed astern for about 20 seconds before the collision; the speed at the time of contact was stated to be 1 or 1 1/2 knots.
All of the Oslofjord's witnesses testified that the pilot boat proceeded directly across the Oslofjord's bow. Captain Bull said that the angle of approach was 4 points; Langstad, the quartermaster, said that it was 45 degrees; Bergesen and Jorgensen, the stewardesses, that the vessel was at an angle and swinging to the right; and Ouvre, the third officer, that the vessel was first at an angle and then appeared to swing 3 or more points to starboard. The diagrams of the different witnesses show the collision at nearly a right angle. The photograph of the pilot boat, taken after the collision, shows a triangular cut in the port side opposite the after rigging, with a penetration at the deck of about 6 feet, and only a slight opening below the water line.
I turn now to the evidence relating to the navigation of the Sandy Hook. She had placed pilots on five inbound vessels before going out to the Oslofjord, and in each instance the pilot had been taken inside or abreast of the lightship. At 6:05 a pilot was placed on the Monarch of Bermuda. The Sandy Hook was at the time west of the lightship. After the yawl returned, the vessel headed towards the lightship, stopped her engines, and drifted for 4 or 5 minutes. It was then that the mistaken two-blast whistle from the Oslofjord was heard; and Goetz, the mate who was navigating, turned to Sullivan, the pilot, who was in charge, and asked him if he wanted to run down to her. The pilot responded in the affirmative, and the vessel started on a course of S.S.E. magnetic, which is about 146 degrees true.
It is not clear when the Sandy Hook started, but I do not believe that it could have been much before 6:20. She proceeded with her engines slow ahead, which would give her a speed of about 3 1/2 knots. Both Goetz and Sullivan testified that during the run they heard the one-blast whistles of the Oslofjord on the port bow. The rudder at some stage was placed at half right followed by hard right. It is not clear, however, when this occurred. Sullivan said that he first saw the Oslofjord when the rudder was hard right and the Sandy Hook was partly across the bow. Goetz testified, on the other hand, that after the half right order the lookout pointed to the Oslofjord, and the hard right order was then given. Just before the collision the engines were advanced to full speed ahead, and the rudder was changed to hard left.
The two diagrams drawn by Goetz do not vary greatly from those of the Oslofjord's witnesses. They not only indicate the starboard swing of the Sandy Hook, but also show the collision at almost a right angle. Sullivan's diagrams, on the other hand, show the vessels approaching each other nearly head on, which I do not believe can be supported on any possible theory.
1. I think the fault of the Sandy Hook is perfectly clear. The arrival of the Oslofjord was expected, and her fog signals had admittedly been heard for a considerable period prior to the collision. The two-whistle signal, which Goetz and Sullivan thought they heard, probably came from the tug with the dump scows; the tug's dumping signal of four blasts was given at 6:18, and it was at about that time that the pilot boat commenced her run.
The S.S.E. course, followed by the Sandy Hook, intersects the course of 297 degrees true, on which the Oslofjord was proceeding, at a sharp angle, and it must have been apparent to the Sandy Hook that any change of course to starboard would bring the Sandy Hook directly across the Oslofjord's bow. It could hardly have been supposed, either, that the Oslofjord was standing still, despite the mistaken two-blast whistle, for the one-whistle signals from the Oslofjord were heard by the Sandy Hook on her port bow. Yet the Sandy Hook first placed her rudder at half right and then advanced it to hard right. It is difficult to say when these changes were made, but I think they were both before the Oslofjord was seen. That was the testimony of Sullivan, and it squares with Captain Bull's testimony that at 6:22 the whistles of the pilot boat appeared to change direction. I, therefore, fix the period of the Sandy Hook's starboard swing as more than a minute, which sufficiently accounts for her position at the time of the collision, as described by the witnesses for the Oslofjord.
I can find no plausible explanation for these right rudders of the Sandy Hook. The usual manner of placing a pilot on board is to round the vessel's stern and come up on the port side. The Oslofjord's course of 297 degrees true was what reasonably was to be expected, and if the Sandy Hook had kept on her original course she would have passed the Oslofjord to starboard. Instead, she swung directly across the Oslofjord's bow at a speed of 3 1/2 knots without apparently ascertaining the Oslofjord's course. For this, I think she is to be condemned.
2. It remains to determine whether the Oslofjord was also at fault. The first contention of the Sandy Hook is that the Oslofjord was proceeding at excessive speed in violation of Article 16. At 6:19 the vessel was settled on a course of 297 degrees true, and the speed at that time was about 1 knot. The engines were then started at dead slow, and remained in that condition until 6:22, when they were stopped. The speed at 6:22 was estimated at 3 1/2 to 4 knots. I think this speed is supported by the evidence. From 6:22 to 6:23 the engines were stopped, and I do not doubt that during the 1-minute interval some of the earlier speed had been run off. I, therefore, accept Captain Bull's estimate of a speed of 2 to 2 1/2 knots at 6:23, when the Sandy Hook was first seen, and the engines were reversed full speed astern.
Was a speed of 2 to 2 1/2 knots at 6:23 excessive? The visibility at that time was not over 250 feet, and, under the rule usually applied in this circuit, the speed should not have been such that the vessel could not be brought to a standstill within that distance. The Nacoochee, 137 U.S. 330, 11 S.Ct. 122, 34 L.Ed. 687; The Tuxedo, 2 Cir., 77 F.2d 354. Captain Bull insisted that the vessel, with her powerful engines, not only could be brought to a standstill, but actually was so brought, within the range of visibility.
I think that this contention is borne out by the evidence. In the first place, the Sandy Hook was traversing the course of the Oslofjord. Then, too, the headway at the collision must have been very slight only to have produced the cut in the Sandy Hook shown by the photograph. Finally, it was shown that the new device on the Oslofjord operates so quickly that almost immediately after it is engaged the engines commence to work at full speed astern. I hold, therefore, that the Oslofjord was not proceeding at excessive speed in violation of Article 16.
The next contention of the Sandy Hook is that the Oslofjord should have reversed sooner than she did. The argument is that the vessel should have reversed at least when the whistles of the Sandy Hook appeared to change direction at 6:22. The Oslofjord did, however, stop her engines, ascertain the position of the Sandy Hook, and thereafter proceed with caution as required by the rule. She had no reason to expect that the Sandy Hook would alter her course to starboard and come across her bow.
Finally, it is said that the Oslofjord was at fault for altering her course towards the Sandy Hook. This change of course on the part of the Oslofjord was made between 6:10 and 6:19, when the engines were stopped and the vessel was passing the tug and tow. It was made not only to escape entanglement with the tow, but to bring the Oslofjord substantially to the channel course. The change was fully completed by 6:19, or about the time that the Sandy Hook started to go out to the Oslofjord. I cannot believe, therefore, that it played any part whatever in the movements of the Sandy Hook.
There may be a decree in favor of the owner of the Oslofjord on the cross-libel, and dismissing the libel of the two Pilots' Associations, all with costs.