Citations
- 223 F. Supp. 598
Full opinion text
McLEAN, District Judge.
This is a suit in admiralty by the owner of the S. S. Pilot against the Tug Sagamore, the barge MCS 701, and th#eir respective owners. The barge and its owner did not participate in the trial, the parties having stipulated that payment of 90 per cent of the barge’s damages would abide the event of the trial of libellant’s claim against the tug. The Sagamore and her owners did not file a cross libel.
The collision which gives rise to this suit occurred between the Pilot and the barge towed by the Sagamore at 12:45 A.M. on May 24, 1957. It was a fine clear night. The visibility was good. Both vessels were properly lighted and there was' ample room for them to pass. The parties’ explanations of this seeming-]y inexplicable accident are in sharp conflict. In brief, libellant contends that the Pilot, southbound on a straight course, would readily have passed the northbound tug and its tow in a normal starboard to stai'board passing, had it not been for the fact that the tug suddenly and unaccountably altered her course to starboard and crossed directly in front of the oncoming Pilot, with the result that, although the tug succeeded in clearing the Pilot’s bow, the barge collided with the Pilot on the latter’s starboard quarter. Respondent, on the other hand, asserts that the vessels would have passed port to port had it not been for the fact that shortly before the collision, the Pilot altered her course to port and headed directly for the tug, which tried to escape by changing her course to starboard, but was unable to tow her barge to safety before the impact occurred.
The issue thus presented is an issue of fact, depending essentially upon the credibility of the witnesses. Respondent has attempted to buttress the testimony of its witnesses by mathematical computations designed to prove that, shortly before the accident, the Pilot was not where libellant’s witnesses said she was and that therefore she must have altered her course to port or the collision could not have occurred. The attempt is not convincing. Respondent’s calculations are based entirely on estimates made by libellant’s witnesses as to the direction and distance of the tug’s lights, or of Point No Point Light, at a time over thirty minutes before the collision, when the vessels were still some miles apart. These estimates, derived merely from the naked eye observations of the witnesses, made at night over water without the aid of navigational instruments, are not precise enough to serve as the essential premise of trigonometric formulae. Moreover, even if the Pilot were, at some time before the collision, on a course different from that to which libellant’s witnesses testified, it would not necessarily follow that she thereafter altered her course at a moment immediately prior to the accident. We have only the testimony of respondent’s witnesses as to that.
Judged by the usual criteria of credibility, libellant’s witnesses, to my mind, are more worthy of belief than respondent’s. The Chesapeake Bay pilot in charge of the S.S. Pilot impressed me favorably by his demeanor on the stand and by the clarity and candor of his testimony. His testimony on the fundamental issue of which vessel altered its. course is supported by the testimony, in. person or by deposition, of the master, chief mate, helmsman and lookout of the* vessel and by the contemporaneous entry in the Pilot’s log. Respondent, on the-other hand, called only two witnesses on. this issue, the mate and deckhand of the* tug. The captain of the tug did not. testify, and his absence was rather lamely accounted for only by hearsay testimony to the effect that he had gone to-Norway for a vacation. The mate’s version of the accident was not supported’ by his own entry in the tug’s log. It appeared for the first time in an accident report which he subsequently prepared after consultation with the captain. Respondent’s version of the accident seems: to me more inherently improbable than libellant’s. Accordingly, on this fundamental issue of fact, I have accepted libellant’s version. On this basis I find' the facts to be as follows:
The S.S. Pilot was a Liberty ship of Panamanian registry with a Greek crew.. She left Baltimore bound for Rotterdam about 4:30 P.M. on May 23, 1957, heavily-loaded with a cargo of coal. On her passage down Chesapeake Bay she was in-charge of Walter F. Jacobs, a duly licensed pilot. Her speed was about 9 to-9% knots. Captain Jacobs’ usual practice is to steer a course of 160 degrees, true from 18A Buoy to Cove Point, where he usually alters course to 163 degrees, true. On this occasion, however, in order to avoid traffic in the Cove Point area, he did not alter the vessel’s course-at the usual place, but continued to steer a course of 160 degrees true for about 30 minutes longer than usual. He then-changed to a course of 163 degrees true-As a result, after the change to a course of 163 degrees, the Pilot’s track down the Bay was somewhat to the east of what it otherwise would have been. Although there was much discussion of this fact at the trial, it does not, in my opinion, affect the outcome of the case in any way.
■Once the Pilot’s course had been 'changed to 163 degrees true, her course was not altered again until the maneuvers subsequently to be related, which took place immediately prior to the collision. This is a fact of critical importance.
At approximately midnight, as the Pilot was approaching Point No Point Light, Captain Jacobs observed in the distance the lights of a vessel which ultimately turned out to be the Sagamore. These lights then bore approximately 3 ■degrees on the Pilot’s starboard bow, i. e., •almost dead ahead. He estimated that they were ten to twelve miles away.
Captain Jacobs continued to watch the lights and after a time he concluded that the vessel was a tug towing a barge and that she was approaching on a course reciprocal to the Pilot’s. Captain Jacobs could see the tug’s green side light which indicated that she was to the starboard operate in an area which the statutory rule did not attempt to cover. It does, not contradict the statutory rule,, but merely supplements it.
Whether the rule is wise or not is a question for the rule making authority, not for the court. Whether or not pilots,, as a matter of practice, disregard it when they see no risk of collision is beside the point. It may be observed, however, that a collision actually occurred in this case, even though the projected tracks of the vessels were nearly a quarter of a mile-apart and even though there was no “risk of collision” as that phrase is defined by the statutory rule.
Captain Jacobs admitted that he was aware of the Pilot Rule and that he had' not complied with it. Doubtless he would have said, if he had been asked, that he gave no signal because he saw no danger. Nevertheless a collision did occur, and a signal might have averted it.
I conclude, therefore, that the Pilot was also at fault in failing to sound a signal for a starboard to starboard passing shortly before 12:40 A.M. when the Sagamore undertook its disastrous maneuver. I conclude that this fault was a contributory cause of the accident. It follows that the libellant may recover only one-half its provable damages and that, pursuant to the stipulation, it is liable for one-half the damages sustained by the barge.
Pursuant to Admiralty Rule 46y2, this opinion constitutes the court’s findings of fact and conclusions of law.
Submit decree in accordance with this opinion.
. The statute to which the court referred is the statutory Inland Rule I which, as I have pointed out, applies only to the “end on or nearly so” situation.
. The Court of Appeals placed its affirmance of Judge Caffey’s decision on a different ground and did not pass upon this question. The W. L. Steed (The Papoose), 79 F.2d 2 (2d Cir. 1935), cert. denied, John E. Moor Co. v. Pan Am. Petroleum & Transport Co., 297 U.S. 708, 56 S.Ct. 500, 80 L.Ed. 995 (1936).