Pacific-Atlantic S. S. Co. v. United States (81 F. Supp. 777, 1948)

PAUL, District Judge.

This action involves a collision between the New Mexico, a battleship of the United States Navy, and the Oregon, a merchant vessel owned ' by- the Pacific-Atlantic Steamship Company. The collision occurred about 4:42 or 4:43 in the morning of December 10, 1941, at a point in the Atlantic Ocean about forty miles approximately due south of Nantucket Shoals Lightship.

The New Mexico, a 1918-class battleship, approximately 600 feet long on the water line, with a beam of 100 feet, and a displacement of about 35,000 tons, was proceeding from Casco Bay (Portland), Maine, to Norfolk, Virginia, and was accompanied by three destroyers, the U.S.S. Hughes, the U.S.S. Sims, and the U.S.S. Russell. These naval vessels were proceeding in a formation in which the destroyers formed an anti-submarine screen for the protection of the New Mexico. Due to the existence of war conditions brought on by the Japanese attack on Pearl Harbor a few days before (December 7), the navy vessels were running without lights. They were on a base course of 236 degrees true (approximately southwest by west), but were “zigzagging” in accordance with a prescribed plan. ' At the time of the collision they were on a leg of the zigzag and following a course of 216 degrees true at a speed of 14 knots.

The Oregon was a single screw merchant vessel with an over-all length of 417 feet, a beam of 60 feet, and a displacement of 12,875 tons. She was a new ship, having been completed during the summer of 1941, and at time of the collision was bound from Africa to Boston with a cargo of 6,400 tons of manganese ore and 14,000 bales of wool. Pursuant to instructions received at sea by radio a few days previously, she also was proceeding without lights and was heading for Nantucket Shoals Lightship by radio bearings. The Oregon was on a course of 340 degrees true (approximately north-northwest) and was moving at a speed of slightly over 13% knots.

The courses and speeds of the vessels are as testified to by their respective officers as those maintained until a brief period of time before the collision when both vessels altered their courses in an attempt to avoid collision.

In the collision the bow of the New Mexico penetrated the starboard side of the Oregon inflicting a severe wound to the latter vessel. The bow of the New Mexico suffered considerable injury but not of a nature to endanger her safety. Following the collision, and about an hour or an hour and a half thereafter, the Oregon, under conditions which will be hereinafter mentioned; undertook to proceed on her way to Boston. In the course of this effort, and due to the injury suffered in the collision, she sank between 1:00 and 2:00 p.m. the same day at a point about 20 miles northeast of Nantucket Shoals Lightship, with the resultant total loss of the ship and her cargo and the drowning of seventeen members of the ship’s personnel.

The libelant herein is the owner of the Oregon and the action is under provisions of the Act of Congress of March 3, 1925, known as the Public Vessels Act, 46 U.S. C.A. §§ 781-799. Intervening petitions have been filed by E. J. Lavino & Company and by Defense Supplies Corporation, the owners respectively of the manganese ore and the wool which constituted the Oregon’s cargo. A cross-libel has been filed by the United. States for damage to the New Mexico.

The libel filed by the Oregon charges various acts of negligence against the New Mexico, the substance of these being that the officers of the latter were incompetent; that she failed to maintain a proper lookout; that she was negligent and dilatory in warning the Oregon of danger after it had become apparent; that, after the peril of a collision became evident, she failed to alter her course or speed or to take any reasonable action to avoid collision; that she failed to take proper steps. to avoid collision or to mitigate the resulting damage; and that she failed to stand by the Oregon after the collision.

In turn, the answer and cross-libel filed by the New Mexico charges the Oregon with being in charge of incompetent persons and with failure to maintain an efficient lookout; that she failed to keep out of the way of the New Mexico by slackening her speed or by making a proper change of course; that she did nothing to avoid the collision after becoming aware of its imminence; that she altered her course improperly and without signaling to indicate such change of course. It is further charged that the Oregon was negligent following the collision in that, in view of her damaged condition, she was at fault in attempting to reach Boston instead of making for the rjearest safe port or harbor, and that, she failed to take adequate and seamanlike measures to protect herself from the action of the seas.

During the pendency of this action and after some evidence had been taken in the form of depositions, the libelant asked and was granted leave, over the objection of respondent, to so amend the libel as to include a charge of negligence based on the conduct of the destroyers which were accompanying the New Mexico; the gravamen of this being that the destroyers, although in position to do so, failed to give warning to either the New Mexico or the Oregon of their respective dangers prior to the collision or to take other steps which might have averted the collision.

To an understanding of these various charges made against each other by the parties, and as to their merit or lack of merit, a somewhat detailed recital of thé facts disclosed by the evidence is necessary.

The navy vessels were proceeding in a formation in which the destroyers formed a screeft for protection of the New Mexico. In this formation the stations of the destroyers were on the arc of a circle 2,000 yards distant from the battleship. The station of the destroyer Hughes was 2,000 yards dead ahead of the New Mexico; the station of the Sims was 2,000 yards away on the port side of the New Mexico and 20 degrees forward of the latter’s port beam; while the Russell was at the same distance on the starboard side of the New Mexico and 20 degrees forward of the New Mexico’s starboard beam. . These prescribed positions for the destroyers were always subject to some variation due to the impossibility of keeping them with exactness, especially at nighttime; but this variation appears to have been not more than a couple of hundred yards in distance or more than 10 degrees in direction. These vessels were following a base course of 236 degrees' true but were zigzagging at intervals. In pursuance of the zigzag plan, a change of course had been made at 4:30 a.m. to a course of 216 degrees. This change had been made about 12 or 13 minutes before the collision and the evidence indicates that the destroyers, after adjusting for the zigzag, were approximately on their prescribed stations at the time of the collision and had been for some minutes before, excepting that the Hughes, instead of being dead ahead, was in a position slightly off the starboard bow of the New Mexico.

With the navy vessels proceeding as above described and without lights, the Oregon, also unlighted, approached the formation from the general direction of the southeast and following a course, according to her testimony, of 340 true (i.e. 20 degrees west of north.) The course of the Oregon was such that she crossed the course of the Sims (the port destroyer) ahead of the latter and entered the navy formation (the area of the screen) between the Sims and Hughes (the lead destroyer), ■and a few minutes thereafter was engaged in the collision with the New Mexico.

The circumstances and happenings preceding the collision have been the subject of extended testimony which discloses a definite -dispute as to the facts in some important respects. The nature of these differences can best be shown by a summary of the substance of the evidence offered by the respective parties.

As to the conditions of weather and visibility, there seems general agreement that the sky was overcast; that there was a moon which at the time was obscured by broken clouds of moderate density; that there was a diffusion of light through the clouds; that there was no rain or fog. Descriptions of the visibility by the witnesses vary between “good” and “fair”. There is, however, some difference in the testimony as to the visibility in terms of distance. The master of the Oregon (Captain Gillette) estimates the range of visibility for an unlighted object such as a ship at between a mile and a half and two miles. The witnesses for the New Mexico estimate it at about two miles with the naked eye and from two and a half to three or four miles with binoculars.

The Testimony for the Oregon

The recital of events preceding the'collision as given by the master of the Oregon is substantially the following: That he, ■the second officer, and a lookout were on the bridge of the Oregon on the starboard side and keeping an alert watch when they observed a dark obj ect (which later turned out to be the New Mexico) on the horizon bearing about four points (45 degrees) on the starboard bow and about a mile or less away; that he immediately ordered the running lights of the Oregon turned on, ■the accomplishment of which took about five seconds. That about fifteen or twenty seconds later the lights were turned on on the New Mexico. That the lapse of time between his first sighting of the loom of the New Mexico (as a dark and unidentifiable object) and the time when both ships were lighted was about twenty-five seconds. That during this period there was ho noticeable change in the bearing of the New Mexico. That it was not until the lights of the New Mexico came on that he was able to determine her course and to discern that the ships were on intersecting courses. That at this time the distance between the vessels was about one-third of a mile. That he immediately ordered the helm “left”, and a second or two later “hard left”; and that he did so in the belief that this offered the best chance of avoiding a collision and in the hope that the New Mexico would cooperate by turning to her right and that a collision could thus be avoided. That the collision occurred about one minute or less after he had given the order to turn left and that the Oregon had turned about 40 degrees and was about a ship’s length to the left of her original course when the collision occurred. That the New Mexico appeared to be moving at a speed of 18 or 20 knots and made no change in her course until a few seconds before the vessels collided when she appeared to swing to her right; that she had swung about 10 degrees when the impact occurred. That as a result of these movements the bow of the New Mexico struck the starboard side of the Oregon at an angle of about 45 degrees, the point of impact on the Oregon being just forward of her bridge.

The captain of the Oregon further testified that from the time of sighting the New Mexico until the collision no effort was made to reduce the speed of the Oregon and that she was still going at between 13-% and 14 knots when the impact occurred; that thereafter he ordered her engines full astern. That, as soon as he ascertained the course of the New Mexico, he realized that under the crossing situation presented the New Mexico had the right of way and that under normal circumstances the rules of navigation called for the Oregon to turn to the right, but that the vessels were so near together that such action offered no chance to avoid a collision; that he believed that the only chance to avoid a collision, or to lessen the force of the impact, if a collision did occur, was to continue his speed and turn hard left, and he, therefore, pursued this course. He stated that in turning left the Oregon gave no signal by whistle or otherwise to indicate her intention so to turn.

The master of the Oregon estimated that the time which elapsed between his first sighting the New Mexico as a dark object until the collision occurred was about one minute and a half. He fixed the time of the collision at 4:43 by his ship’s time. It appears that the Oregon had not seen any of the destroyers, prior to the time when she started her left turn; that while turning she saw the lights of a vessel, the location of which she describes as slightly off her port bow and slightly closer than the New Mexico. (The evidence indicates that this was the Hughes, the lead destroyer.)

Jackson, an able seaman, who was at the wheel of the Oregon, testified that he was the first on that vessel to -sight the loom of the New Mexico and that he called it to the attention of Captain Gillette. As to events thereafter, his testimony was in accord with that given by Captain Gillette, except in a few minor particulars. This witness states that the New Mexico turned on her lights “immediately” after lights were shown on the Oregon, that it was “only a matter of a few seconds”. He estimated the lapse of time from the first sighting of the unlighted New Mexico until the collision to be “not much over a minute”, and from the time the Oregon started to turn left until the collision at “not more than half a minute”. However, this witness Stated his inability to make any estimate of the distance between the ships at any time, other than to say that when the New Mexico showed her lights they were “very close”. The second mate and another seaman who were on the bridge of the Oregon prior to and at the time of the collision were lost when the ship sank later in the day, and there was, of course, no testimony available from them. The chief engineer of the Oregon also testified at some length. However, his testimony related almost entirely to the engine room equipment and to the maneuverability of the vessel under various •conditions, and he had no knowledge of the events preceding the collision.- Therefore, no summary of his testimony seems necessary at this time.

The Testimony for the New Mexico

The evidence on behalf of the New Mexico, gained from the testimony of various officers aboard her and on the destroyers, so far as relates to the collision and to the events preceding it, was substantially the following:

That prior to 4:30 a. m. the naval vessels had been on a course of 241 degrees and that at 4:30, in pursuance of the zigzag plan, they had turned 25 degrees left to a course of 216, which latter course they had been pursuing for some minutes prior to the collision. Lieutenant (jg) Waliszewslci, who was officer of the deck on the New Mexico, testified that he had come on duty at 4:00 o’clock and was stationed on the forward part of the bridge; that visibility was good; that the range of visibility with the naked eye for a fair sized object like a ship was about 3,500 or 4,000 yards and with the aid of binoculars probably 6,000 yards; that the destroyers were approximately on their stations and visible to him with the naked eye. This witness states that two or three minutes after the New Mexico had made the zig-zag turn and steadied on course 216 he was sweeping the horizon with his binoculars and picked up the loom of a vessel (which later turned out to be the Oregon) bearing about 45 degrees off the port bow of the New Mexico and at a distance which he estimated to be 5,000 or 6,000 yards (2-% or 3 miles) ; that the bearing of this vessel from the New Mexico was between the Sims and the Hughes and that it appeared to be at least 2,000 yards ahead of and beyond the Sims. After looking toward the destroyers and thereby making certain that the vessel just sighted was not one of them, the witness called the strange vessel to the attention of Lieutenant Krick, supervisor of the watch on the New Mexico who was also on the bridge. As they were discussing the possible character of the strange vessel, the lights of the Oregon came on and, thereupon, Lieutenant Krick directed that the commanding officer of the New Mexico, Captain Brown, who was asleep in his sea cabin, be called. At the same time, he ordered the lights of the New Mexico turned on. Lieutenant Waliszewski walked to the Captain’s cabin, a matter of seven or eight steps, and states that before he entered the cabin he heard the quartermaster report that the New Mexico’s lights were on; that he entered the cabin and called Captain Brown who rohsed at once and came out on the bridge; that when he returned with Captain Brown the lights of both vessels were on.

The periods of time elapsing between these various steps were estimated by the witnesses as follows: From the first sighting of the loom of the Oregon by Waliszewski until the Oregon showed her lights, two or three minutes; from the lighting of the Oregon until lights were ordered on the New Mexico, ten or fifteen seconds, with the lapse of a few seconds more (three or four) until the New Mexico’s lights came on. From the time Waliszewski started to go for Captain Brown until the latter was out on the bridge, twenty or thirty seconds.

Lieutenant Waliszewski also testifies that prior to the time the Oregon lighted up he wa^s able to make an estimate of her course which he took to be about 310 degrees (approximately at right angles to the course of the New Mexico); that from the time the Oregon was sighted until her lights came on, and at that time, her bearing from the New Mexico was unchanged at about 45 degrees off the port bow.

Lieutenant Krick, who remained on the bridge while Lieutenant Waliszewski roused Captain Brown, testified that when the Oregon’s lights came on she was at a distance which he estimated to be about 3,000 yards; that she appeared to have crossed the course of the Sims ahead of the latter vessel; that the Oregon’s bearing was about 45 degrees off the port bow of the New Mexico and that she seemed to be on a course crossing that of the New Mexico at a right angle. Captain Brown arrived on the bridge, according to the testimony, about forty-five seconds or a minute after the Oregon first showed her lights and about a half-minute after both vessels had become lighted. On his arrival, he observed the Oregon with his naked eye and estimated her distance at close to 2,500 yards. He then procured his binoculars — a matter occupying about half a minute — and on observing the Oregon through them, estimated that she was then about 2,000 yards away and inboard of but ahead of the Sims. The testimony of the witnesses named was supported, with slight variation, by that of other members of the New Mexico’s personnel; one exception being a signalman who estimated the distance of the Oregon at 1500 yards when she turned on her lights.

After Captain Brown had taken the Oregon under observation with his binoculars and estimated her distance at 2,000 yards, he continued the New Mexico on her course without change of speed, at the same time-watching for any indication of a change-in the course or speed of the Oregon. The-New Mexico thus continued for a period estimated to be three or four minutesj during which time there was no change in the course or speed of the Oregon. By this, time the ships had closed to a distance estimated at from 500 to 700 yards. In this situation and in the belief (as stated by him) “that the Oregon could not avoid a collision by her own efforts”, Captain-Brown gave the order “Right full;' full speed astern”, in an effort to swing the New Mexico as far as possible to the right and to slacken her advance, in the hope that the ships would clear.' His orders were instantly obeyed and the New Mexico started swinging rapidly to starboard and had swung about 60 or 70 degrees when her bow collided with the starboard side of the-Oregon at an angle of about 20 or 30 degrees. Simultaneously with the execution, of the order to swing the New Mexico to the right, a blast was blown on the ship’s siren and a general alarm sounded. The time elapsing between the order to go hard right and the collision was approximately a minute or slightly more. That after the New Mexico had swung to the right and immediately before the collision the Oregon appeared to swing to her left. That when the ships came together the bow of the New Mexico had swung approximately 350 yards to the right of her original course. The New Mexico fixed the time of the collision at 4:42. The witnesses aboard the New Mexico were in agreement in testifying that from the time the Oregon was sighted and her course became apparent until she swung left immediately before the collision there had been no noticeable change in her course or in her bearing from the New Mexico; that during this period her bearing was at all times about 45 degrees off the port bow and her course appeared to be intersecting that of the New Mexico at approximately 90 degrees; and that from the time the course of the Oregon became ascertainable it appeared that the ships were probably on collision courses.

It may be noted that in the testimony of all the foregoing witnesses, for both the Oregon and the New Mexico, their estimates as to bearings and distances at various points and times were based on visual observations and not arrived at by the use of mechanical means.

Testimony was also had from persons aboard the destroyers, the substance of which was as follows:

From the Sims it-was testified by Lieutenant Farley, officer of the watch, that the Sims was on a course of 216 true and approximately on her station 2,000 yarijs from the New Mexico when at about 4:35 the Oregon was sighted by the port lookout who at once notified Lieutenant Farley who was on deck. When sighted, the Oregon, then unlighted, was about 5 degrees off the port bow of the Sims (almost dead ahead), at a distance estimated at about 4,000 yards, and was crossing ahead of the Sims on a course which Lieutenant Farley estimated as being approximately 350 true. The Captain of the Sims (who was later killed during the war) was at once roused and came on deck. The Sims reported the presence of the unknown ship to the division commander of the destroyers who was aboard the Hughes, using some means of inter-ship communication referred to as the TBS radio, and the signalman on the Sims was ordered to challenge the Oregon by means of the blinker tube. The Oregon gave no response or acknowledgment to the challenge and continued on her course. When the Oregon, after crossing the course of the Sims, had reached a position where she was about 40" or 45 degrees on the starboard bow of the Sims, the Oregon’s lights came on; at which time she was about 1500 yards distant from the Sims. Immediately after lights appeared on the Oregon, the New Mexico’s lights went on and the destroyers turned on their lights. Thereafter, so Lieutenant Farley testified, he heard the siren on the New Mexico but did not know there had been a collision until the Sims received a report to that effect from the Russell over TBS. Lieutenant Farley was unable to fix any time intervals between, the various pertinent events prior to the collision, except that he estimated the lapse of time from the first sighting of the Oregon until he heard the New Mexico’s siren as “within ten minutes or less”.

From the Hughes, testimony was given by the commanding officer, Captain Ramsey, and by a signalman, Dickinson. The testimony of the former was to the effect that he was lying awake in the emergency cabin just off the bridge when the officer of the deck (Lieutenant Moyer) called through tkfe voice tube and reported the sighting of a dark object off the port bow. Captain Ramsey immediately came out on the bridge and saw the unidentified ship bearing about 45 degrees on the port bow and at an estimated distance of 3,000 yards. The unidentified ship appeared to be ahead of the Sims and Captain Ramsey started to call the Sims through the radio telephone but before he could do so the Sims cut in and rep'orted to him that it had observed the ship. Captain Ramsey directed the Sims to investigate the ship and also ordered the signalman on the Hughes to challenge the ship with the blinker tube; he further ordered the guns of -the Hughes to be trained on the approaching vessel with a view to firing on her if she proved hostile. Captain Ramsey further testified that he verified the course of the Hughes and found it to be 216 true, the prescribed course. That when he first saw the Oregon as an unidentified vessel, he estimated her target angle as 20 degrees which would have placed her on a course of 331 true. That as the Oregon approached and entered the formation she appeared to be changing her course to the right and assuming a course almost parallel with, but opposite to, that of the Hughes, resulting in a port-to-port passing of the two vessels. That he did not see the lights of the Oregon at the moment they came on but that when the Oregon had come abeam of the Hughes on the port side the lights of the Oregon were on; that the Oregon was then about 1,000 yards or more distant from the Hughes. That the Oregon at no time gave any answer or recognition of the blinker tube signals from the Hughes, but that when her lights came on he recognized her as a merchant ship. That as the Oregon passed abeam he looked astern toward the New Mexico and saw her lights on; that the New Mexico was at least 2,000 yards astern of the Hughes. That when he first saw the lights on the Oregon she was approximately 2200 yards from the New Mexico and that both the Oregon and the New Mexico were lighted when they were about 2,000 yards apart. That as the Oregon passed abeam, he (Captain' Ramsey) considered her to be about 1,000 yards away and on such a course as that she and the New Mexico would make a clear port-to-port passing. But that when the Oregon had reached a position approximately 45 degrees off the port quarter of the Hughes he observed that the Oregon was turning left under the stern of the Hughes and between the Hughes and the New Mexico. That- he did not see or hear the collision and did not hear the New Mexico’s siren.

Dickinson, signalman on the Hughes, testified that as he watched the Oregon approach, after she had been sighted off the port bow, she appeared to be heading on a 'course parallel to the Hughes. That when the Oregon had reached a position 10 or 20 degrees forward of the port beam of the Hughes, he identified her as a merchant vessel and, acting on orders, began challenging her with the blinker tube and continued challenging for from one to two minutes, during which period the Oregon passed abeam *of the Hughes and on toward the New Mexico. That he received no response to his signals at any time. That he estimated the distance between the Oregon and the Hughes as they passed each other at about 1500 yards and that the Hughes was- on her station 2,000 yards ahead of the New- Mexico. This witness first observed lights on the New Mexico and then on the Oregon, but his first notice of lights on either was at a time after the Oregon had passed the Hughes and was nearing the New Mexico.

The testimony from the Russell, given by Lieutenant Hart, officer of the deck on that vessel, adds little to that from the other ships. The Russell occupied the starboard position in the destroyer screen and was farthest from the path of the Oregon and from the scene of events preceding the collision. Lieutenant Hart first received information of the sighting of the Oregon by the report of the Sims over the inter-ship radio telephone. Following this, and through his binoculars, he located the Oregon bearing slightly more than 45 degrees off the port bow. The Oregon was then unlighted and appeared to be beyond the screen. As the Oregon came nearer, she appeared to turn to the right — this being inferred from the fact that she presented a broader target than when first sighted. Later, and after the Oregon entered the screen, Lieutenant Hart saw a red light appear on her, and then the lights on the New Mexico came on; following wliich the Russell lighted up. Lieutenant Hart testified that, to the best of his recollection, at the time he first saw the lights on the Oregon her bearing was just about on the beam of the Russell. Lieutenant Hart heard the siren of the New Mexico. He could not hear the collision but saw the ships merge and surmised that they had collided. This witness made no attempt to estimate intervals of time between any of the events mentioned.

The foregoing outline of testimony of witnesses aboard the several vessels has been in considerable detail due to a belief on the part of the Court that it covers that portion of the testimony which is most pertinent to the important questions arising in the case and because it serves to bring into relief the rather limited issues to which the case has narrowed. The outline of the testimony given does not purport to include all, or even a major part, of all that appears in the record. The evidence in the case was voluminous and took a wide range into various aspects of navigation and the handling of ships. Some of this will necessarily be referred to later, but it is believed that the testimony hereinbefore summarized is that within which solution of the case must be found.

Briefly and broadly stated, the differences in the testimony offered by the two colliding ships as to the facts under which the collision occurred are these: In behalf of the Oregon it is stated that her first knowledge of the' presence of the naval vessels was the sighting of the loom of the New Mexico and that thereupon she (the Oregon), as speedily as possible, lighted up. That when, following this, the New Mexico turned on her lights and thereby made it possible to ascertain her course, the two ships were so close together that the Oregon believed that the only chance to avoid a collision was for her to turn left while continuing her speed, which she did.

On the other hand, the New Mexico testifies that she slighted the Oregon while the latter was from 2to 3 miles distant and that she had the Oregon under continuous observation for a period of approximately eight minutes or more before the collision. That both ships had become lighted when they were as far apart as a mile or more. That after both ships were lighted they continued on their respective courses for a period of three or four minutes and until they were from 500 to 700 yards apart when the New Mexico, in an attempt to avoid an impending collision, turned hard to her right; that the

Oregon took no avoiding .action until she turned to her left less than a minute before the collision.

The Contentions of the Parties

Again, briefly and broadly stated, the contentions of the parties on the question of negligence are substantially as follows: The Oregon contends that having discovered the presence and course of the New Mexico only after the ships were in close proximity, she (Oregon) was faced with a situation of emergency in which she was forced to exercise her best judgment as to the course of conduct best adapted to avoid collision or to lessen the injurious effects thereof; and that the course which she pursued was proper and that she was without fault. On the other hand, she charges the New Mexico with negligence in that the New Mexico sighted the Oregon at a distance when no collision was imminent and when there was sufficient time within which to warn the Oregon of the danger into which she was heading; that the New Mexico, with knowledge of the approach of the Oregon, failed to turn on her lights or give other warning of her presence at a time when such warning would have enabled the Oregon to take proper avoiding action; that the New Mexico, with knowledge that the ships were on collision courses, continued on her course until the ships were so close that it was impossible for the Oregon to avoid collision by her own action alone, and that the New Mexico took no avoiding action until immediately before the collision and too late to be effective. The destroyers are also charged with negligence in not warning the Oregon of her danger at a time when they had opportunity to do so and when she might have taken steps to avert it.

The New Mexico on her behalf contends that, running darkened under wartime conditions, it would have been contrary to the dictates of military security for her to have turned on her lights or to have given other warning of her presence at the sighting of a strange vessel at a distance where no present danger of collision existed and the character of the vessel, whether friendly or hostile, could not be determined. That when the Oregon threw on her lights, indicating her awareness of the presence of the New Mexico, the latter promptly followed suit; and that both vessels were lighted and in view of each other while they were a mile or more apart and when there was no imminent danger of collision. That under the crossing situation presented the New Mexico was required by the rules of navigation to continue her course and speed and that the duty was on the Oregon to avoid crossing in front of the New Mexico, which she had abundant time to do either by stopping or slowing her progress or by turning to the right and passing on the New Mexico’s port side. That the Oregon failed to take avoiding action when she should have done so and had time to do so, but continued oji her course until shortly before the collision when she turned to her left across the course of the New Mexico. That when, due to the lack of proper action on the part of the Oregon, it became apparent that a collision was imminent, the New Mexico turned as sharply as possible to her right in an attempt to prevent it. It is asserted that the New Mexico was without fault in any respect.

As to the Oregon, it is contended that she was negligent in not sooner discovering the presence of the New Mexico, and further that she was negligent in not taking steps to avoid crossing in front of the New Mexico after discovering the presence of the latter and when there was adequate time to avoid such crossing. That the Oregon negligently failed to give way to the New Mexico which was the privileged vessel and failed to avoid crossing ahead of the New Mexico, as required by the rules of navigation, but on the contrary negligently and without warning turned to her left and across' the path of the New Mexico at a time which made it impossible for the New Mexico to avoid the collision.

In their respective contentions, based on their differing assertions of fact, both vessels rely upon the application of certain established rules of navigation. These rules, generally referred to as “International Rules for Navigation at Sea”, are to be found in 33 U.S.C.A. Chapter 2, §§ 61 to 142. Those pertinent here are the following:

Article 19, 33 U.S.C.A. § 104. “When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.”

Article 21, 33 U.S.C.A. § 106. “Where, by any of these rules, one of two vessels is to keep out of the way the other shall keep her course and speed.

“Note. — When, in consequence of thick weather or other causes, such vessel finds herself so close that collision can not.be avoided by the action of the giving-away vessel alone,, she also shall take such action as will best aid to avert collision.”

Article 22, 33 U.S.C.A. § 107. “Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.”

Article 23, 33 U.S.C.A. § 108. “Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse.”

Article 27, 33 U.S.C.A. § 112. “In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.”

Article 29, 33 U.S.C.A. § 121. “Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.”

The libelants contend that the facts here show a case to which there must be applied the provisions of Articles 27 and 29 and that portion of Article 21 set out in the second paragraph (Note) thereto. In other words that the meeting of these vessels was under “special circumstances”, in which the New Mexico failed in the duty imposed on her by the provisions referred to. The respondent, on the other hand, contends that the facts show a usual case of vessels on crossing courses under circumstances in which the Oregon was compelled by the rules to keep out of the way; and that the Oregon failed in her duty in this respect; and that there were no special circumstances which relieved the Oregon from the consequences of her fault. These differing versions necessarily require a careful consideration of the conflicting evidence in order to determine the real facts surrounding this happening.

Discussion.

In the first place it must be said that the testimony of the Oregon itself is such as to make it impossible to absolve her from fault in the events leading to this collision. Even if we were to accept her statement that she was confronted with a sudden emergency only a minute or more before the collision, it seems clear that her lack of care in the matter of previous watchfulness, resulting in her failure to discover the New Mexico sooner, was a cause of the emergency with which she was confronted.

It is testified by Captain Gillette that when both ships became lighted they were only about 700 yards apart and that it was about 25 seconds before this that he had first sighted the New Mexico. If these ships were on the courses and traveling at the speeds testified to by them respectively the distance between them was being lessened at the rate of about 824 yards a minute. Therefore, at the time when Captain Gillette says he first sighted the loom of the New Mexico (25 seconds before both ships became lighted) the ships were only 1044 yards apart, just a little over half a mile. At this distance the Oregon would have been about 900 yards within the screen after having passed between the Sims and the Hughes. These destroyers were somewhere between 2300 and 2600 yards apart and the Oregon must have passed not more than 1300 yards from one of them. The evidence indicates that she passed closer than this to the Hughes. Yet the Oregon testifies that she never saw either - of these destroyers until she had started to turn left immediately before the collision and when all ships had lighted up.

The Oregon was sighted by the New Mexico, the Sims, and the Hughes at distances of from 3,000 to 5,000 yards. The New Mexico was a much larger vessel than the Oregon and presumably her loom would have been more (certainly not less) easily visible than that of the Oregon. There is the added fact that Captain Gillette testified that the visibility at the time for an unlighted object was between a mile and a half and two miles. In view of these facts,, there seems only one explanation of-the fact that the Oregon passed between the two. destroyers without -seeing either of them and came to a point about half a mile from the New Mexico before sighting that large vessel. The inescapable conclusion is -that the Oregon was not maintaining a constant and alert lookout as she approached the scene and that this failure led her into the situation which she considered an emergency. To this testimony of the Oregon, there-may be added that of the Sims and Hughes, to the effect that -they both challenged the-Oregon with their blinkers before or about the time she entered the screen. The Oregon states that she 'saw no such signals, but if it be true that they were given it emphasizes the failure of the Oregon’s lookout.

But there are other features of the Oregon’s testimony inconsistent with the foregoing and which tend to deny her claim, that she was confronted with a sudden emergency. If this other testimony be accepted then, while it absolves the Oregon, to some extent of -the charge of inadequate lookout, it clearly points to fault in other-respects. Captain Gillette states that when, he first sighted the New Mexico she was-at a distance of probably a mile. It is. clear that this is not consistent with his-statement that 25 seconds later, when -both, vessels had become lighted, the distance between them was only a third of a mile, and' also with the statement that the time lapse between the lighting of -both vessels and the collision was abou-t a minute. In the space of 25 seconds the distance between the ships could not have lessened by as much as two-thirds of a mile (1333 yards). The actual reduction of distance would have been 344-yards. It is not desired to hold -this witness* or any other, too closely to estimates of time and distance where reasonable error might exist. But Captain Gillette was rather positive in his testimony in this respect, as shown by these excerpts from his testimony:

“Q. So according to your testimony both vessels were showing their running lights about twenty to twenty-five seconds after you first saw the New Mexico? A. Yes, sir.

* * * * * * ■

“Q. So that you had advanced toward each other about two-thirds of a mile in twenty-five seconds? A. Yes, sir.

“Q. You think she (the New Mexico) was as close as a third of a mile, Captain? A. Yes, sir.

“Q. When she turned on her lights? A. Yes, sir, I do.”

It will be seen that the witness was positive that in the lapse of twenty-five seconds the distance between the ships was reduced from a mile to one-third of a mile, but he also testified that thereafter a minute was consumed in traveling the remaining, and much shorter distance, to the point of collision. At a constant speed, this could not be.

The pertinency of the foregoing is that it indicates that the ships were both lighted at a distance much greater than one-third of a mile. If this be true then, when taken in connection with other testimony of Captain Gillette, it points to a lack of care on the part of the Oregon from the time she sighted the New Mexico. If the New Mexico was a mile distant when sighted by the Oregon, as Captain Gillette testified, and both ships became lighted within 25 seconds thereafter, then they were both lighted when they were between 1600 and 1700 yards apart. When lighted, if not before, it was apparent that they were on intersecting courses and that the Oregon was the burdened ship obligated to keep out of the way of the New Mexico. At a distance of 1600 yards there was abundant opportunity for the Oregon to do this in several ways-r-by turning to her right and passing port-to-port, or by slowing her speed to permit the New Mexico to pass ahead. Had the distance been much less, the Oregon could have without difficulty taken action to avoid crossing ahead of the New Mexico. Captain Gillette testified that the Oregon, at a speed of 14 knots, could turn 90 degrees with an advance of 1200 or 1300 feet.

But aside from the question of the distance at which the ships were both lighted, it appears that the Oregon was lacking in due care from the time she sighted 'the New Mexico as a dark object 45 degrees off her starboard bow at an estimated 'distance of a mile. There was no land in this vicinity and no reason to suspect that the dark object was anything other than a ship. Its location off the starboard bow should have at once aroused thought of the possibility that the vessels were on intersecting courses and of the duty resting on the Oregon as the burdened vessel. Under such circumstances, prudence would seem to dictate that the Oregon should have at once slackened her speed or taken other steps to retard her advance until such time as she could obtain better knowledge of the situation confronting her, instead of pursuing her course at full speed, in seeming disregard of possible danger. The authorities seem clear that when one ship has sighted another under conditions which raise the possibility that they are approaching under conditions which will impose upon the former the burden to keep out of the way, ordinary prudence requires that she should assume that this situation will develop and should act accordingly, even though at the time of sighting the course of the other vessel is not ascertainable. In Matton Oil Transfer Corp. v. Conners Marine Co., 2 Cir., 130 F.2d 195, 196, it is said, “When the Dynamic first made out the Cree, she had the Cree on her starboard hand, and the Cree’s course was not yet apparent. * * * That being the situation, the- Dynamic was charged as the giving way vessel until the Cree’s navigation disclosed that they were not on crossing courses.” And see Ocean S. S. Co. v. United States, 2 Cir., 38 5F.2d 782, 784; Wilder’s S. S. Co. v. Low, 9 Cir., 112 F. 161, 171, 172; The Buenos Aires, 2 Cir., 5 F.2d 425, 428; The Manaway, D.C.Va., 257 F. 476.

Moreover, Captain Gillette further testified that from the time he sighted the New Mexico until the latter was lighted her bearing showed no noticeable change. This in itself was an indication that the ships were on collision courses. And certainly when this became apparent the Oregon should promptly have taken avoiding action. The Maverick, 2 Cir., 84 F. 906, 908.

It may be argued that Captain Gillette was mistaken in his estimate of a mile as the distance at which he sighted the New Mexico and that the distance was less. This is, of course, possible.; but there are limits to the extent of any probable error and even if the distance were as little as two-thirds of a mile the fault of the Oregon would still appear. In the first place, this would emphasize the deficiency in the Oregon’s lookout. And even at two-thirds of a mile there were available to her the precautions which she failed to take and which have been heretofore stated.

Again, it should be noted that when the Oregon sought' to take avoiding action briefly before the collision she did so by turning left across the path of the New Mexico. This was an unusual and unorthodox course of action, as Captain Gillette himself recognized, but which he took in the belief that it afforded the best chance of avoiding collision. His hope, so he says, was that the New Mexico would “cooperate” by turning to her right and it •is argued that had the New Mexico promptly done so the ships would not have collided. But the Oregon gave no warning or signal of any sort to indicate the unusual action upon which she had decided — an action just the reverse of that normally to be pursued and contrary to that which the New Mexico had a right to expect. It would seem that when a ship changes course the movement is not discernible from an observing ship at the instant the helm goes over. There is some lapse of time, though it may be short, before the turning ship has swung sufficiently for the turn to be noticeable from the other vessel; and this would be particularly true in the darkness when the change of course would be noticeable to an observer only after the turning vessel had swung sufficiently to permit observation of a change in her silhouette or in the position of her lights. The very fact that the Oregon decided to pursue the unusual course of turning to her left dictated that she should have instantly, by whistle or other signal, given notice to the New Mexico of her intention; and unless she did it is difficult to see how or why she should expect the New Mexico to cooperate.

Summarizing the behavior of the Oregon as disclosed by her own evidence, it appears that she was first negligent when, after sighting the loom of the New Mexico, she continued on her course at full speed without regard to?, the evident possibility that the ships were on crossing courses.

Again, if both ships became lighted when as much as 1600 yards apart, as appears probable, the Oregon was negligent in not taking action at once to avoid crossing ahead of the New Mexico.

On the other hand, if the Oregon discovered the New Mexico only 25 seconds before the ships were as close as 700 yards (which would place the distance of discovery at 1,000 to 1100 yards and well within the screen), then it is evident that the Oregon’s lookout was not alert.

And the Oregon was again at fault, when, on deciding to pursue the unusual course of turning to her left across the course of the New Mexico, she failed to give any warning of her intention.

A somewhat unusual feature of the evidence in this case is that the witnesses on both the Oregon and New Mexico testify that, as the vessels approached, they believed their courses to be converging at •approximately 90 degrees; and that the bearing of each ship from the other was “broad (approximately 45 degrees) on the bow”. However, the testimony as to their own courses respectively is that the Oregon was on a course of 340 and the New Mexico on one of 216. If these are correct, then the angle of incidence between their qourses was 124 degrees, not 90; and the bearing' of each from the other was 28 degrees on the bow. But even if the latter situation be the true one, it is not seen how it affects the respective contentions of the vessels as to the responsibility for the collision. It is true that if the courses of the ships were converging at 124 degrees the opportunity of the Oregon to avoid collision by turning to her right would have been greater and could have been exercised at a later stage than if the ships were approaching at right angles. But the action of the Oregon must be judged in the light of what she belie.ved to be the situation and which was the same situation that was depicted to the New Mexico.

The Action of the New Mexico.

As previously stated, the New Mexico admits that she lighted the Oregon at a time when the latter was at a distance of two or two and a half miles, and at a time some six to eight minutes before the collision. She also admits that soon after the Oregon was sighted it became apparent that the ships were probably on collision courses, although no collision was then imminent. The New Mexico further admits that she made no alteration of her course or speed until about a minute before the collision. From these facts, the Oregon contends in substance that the New Mexico, with full knowledge of the danger of a collision and with adequate time to prevent it, failed to turn on her lights or otherwise warn the Oregon of the danger but continued to bear down on the unsuspecting Oregon until the vessels were so close as to make the collision inescapable. This argument is based on the premise, as testified by the Oregon, that the ships were within 600 or 700 yards before they both became lighted. It is this premise which the New Mexico denies. She insists that both ships were lighted when distant from a mile to a mile and a half and in abundant time for the Oregon to take any one of several courses of action to avoid crossing the course of the New Mexico.

The New Mexico justifies her conduct under the International Rules for navigation of vessels at sea, Art. 19 and Art. 21, heretofore referred to, which imposed on her the duty to pursue her course and speed and imposed on the Oregon the burden of keeping out of the way. The New Mexico does not contend that these rules are so imperative as to excuse a privileged vessel for continuing on her course into a collision with an unsuspecting ship or to excuse the privileged vessel from a failure to take avoiding action on her own part when it becomes apparent that only by doing so can a collision be averted. She contends, however, that in this case the Oregon was aware of the situation at a time, when no collision was imminent and in adequate time to take avoiding action, and that the New Mexico acted properly and without fault in adhering to the rules which required her to maintain her course and speed. It will be seen, therefore, that the question of the distance at which both-ships became lighted is one of primary importance.

On weighing all of the evidence in this, case, I am convinced that both of the ships had become lighted at a time when the distance between them was not less than 1500' yards and possibly as much as 2500 or 3,-000 yards. The testimony of the witnesses aboard the New Mexico is definitely to this, effect and it is strongly supported by that from the Sims and the Hughes. There is: some variation in the estimates of distance by those aboard the New Mexico, but they appear to be such as might be expected from a number of individuals, each giving his individual opinion. Without attempting to repeat the testimony of the separate witnesses, it may be said that it is in agreement to the effect that both ships were lighted when they were from 2,000 to 3,000‘ yards apart. The only exception is in the testimony of a signalman, Davis, who estimated the Oregon to be 1500 yards away when he saw her lights come on.

The testimony from the New Mexico (with the exception noted) is to the effect that the Oregon became lighted slightly before she entered the screen and this is supported by the testimony from the Sims and the Hughes, the two destroyers between which the Oregon passed on entering the screen and which were the closest to her at that time. The Sims testifies that the Oregon, after passing ahead of the Sims, had reached a position 40 to 45 degrees off the Sims’ starboard bow when she turned on her lights. This would place the Oregon just about on the arc of the screen or a little beyond. This is confirmed by the Hughes, the lead destroyer, who testifies. that when the Oregon was abeam of the Hughes the former’s lights were on. This also fixes the Oregon as being lighted when she entered the screen, or a little before. There is no dispute that the New Mexico was lighted within 20 seconds after the Oregon.

The Oregon urges that her claim as to her position when she lighted up is borne out by the testimony of the Russell and the Hughes. It is true that it finds some support, though to a limited extent, in the testimony of Lieutenant Hart, who was deck officer on the Russell. Lieutenant Hart stated that when the lights of the Oregon came on her bearing was, to the best of his recollection, about off the port beam of the Russell. This would place the Oregon deep within the screen at the time and pretty close to the New Mexico. However, the witness stated that his testimony in this respect was “only an estimate and subject to considerable error”. When asked to estimate the interval between the time when both vessels were lighted and the time when they appeared to merge, he said that he felt it was “an appreciable time”. Asked as to the distance between the Oregon and New Mexico when they both became lighted, the witness stated that it was his impression that they were “not in real close quarters” and that there was opportunity for them to clear each other; and when asked if the distance was as much as a thousand yards, he stated that it “could have been that far; it could have been more and it could have been less”. Lieutenant Hart emphasized that the events testified to were not sharp in his memory and that he was testifying from a recollection that was “hazy” and without any feeling of confidence in the accuracy of his estimates. The only point of definite difference between this witness and those aboard the other naval vessels is as to the position of the Oregon when she turned on her lights. There is nothing apparent in the evidence to explain this difference; although it should be noted that the Russell was much farther from the scene of events than any of the other ships, and that Lieutenant Hart’s recollection was admittedly uncertain.

I cannot accept the Oregon’s contention that her testimony as to the time when she lighted up is supported by that of the Hughes. This argument is founded on a supposition that the Hughes was not on a course of 216 but on one substantially to the left of that; and that, therefore, if the Oregon turned on her lights when off the port beam of the Hughes, the Oregon at that time must have been well within the screen. The basis for this supposition is in the testimony of one of the witnesses aboard the New Mexico, Ensign Johnson, who, in the course of his recital of the events, stated that after lights appeared on the destroyers he observed the Hughes and that she appeared to be on a course close to 45 degrees to the left of that of the New Mexico. However, this was at a time after all the ships had become lighted and this same witness testified that the Oregon showed her lights while she was still outside the screen and at a distance which he estimated at 2500 yards. To accept this single bit of testimony as to the course of the Hughes as it appeared to a witness on the New Mexico and to deduce from it a conclusion as to the position of the Oregon would require that all of the other testimony of the same witness be ignored. It would also require a complete denial of the testimony of the Hughes itself, whose commanding officer testified definitely that the Hughes was on a course of 216 and that the New Mexico was within a few degrees of being dead astern and at least 2,000 yards distant. And further stated that as the Oregon passed abeam of the Hughes and about 1,000 yards, away, he had both the Oregon and the New Mexico in sight, that they were both lighted at that time, and were approximately 2200 yards apart.

In the extremely voluminous and detailed testimony of the various witnesses in this case, there are no doubt some variations and discrepancies. This is always true in a recital of events from a number of persons who have observed the happenings under differing conditions and positions and whose testimony involves estimates of time and distance. By picking out single bits of testimony here and there and ignoring the rest of the testimony, almost any theory can be built up in almost any case. But a careful consideration of all the evidence here shows that the strong weight of it is to the effect that the Oregon turned her lights on when distant from the New Mexico not less than 2,000 yards, and possibly more; and that both ships were lighted at not less, and possibly more, than 1600 yards.

' It remains to consider the behavior of the New Mexico in the light of the conclusions stated above. I am not impressed with the thought that the New Mexico should have lighted up or otherwise made her presence known immediately on sighting the Oregon. The country was in a state of war with Japan and with the practical certainty that war with Germany would be declared within a few days (as it was) ; and the action of the Japanese had warned us that our enemies might attack at any time and without a declaration of war. Following the attack at Pearl Harbor, which had resulted in the loss of a number of the capital ships of the navy, the protection of the New Mexico, as one of the few survivors of that class, was of great importance. It was for reasons of security that she was traveling blacked out and in a protecting screen. These precautions would have meant little if the New Mexico, immediately upon sighting an unidentified vessel at a distance which offered no immediate expectancy of a collision, had made her location and course known to the stranger without waiting to ascertain whether the latter was hostile or friendly.

In arguing that the New Mexico should have shown her lights at once upon sighting the Oregon, the libelants cite a'number of cases dealing with darkened ships, including The Pierre Loti, 78 Lloyds’ L.R. 193, 196, and the Dominion Monarch, 71 Lloyds’ L.R. 110, 114 (both English cases) ; The Cushing, 2 Cir., 292 F. 560; The Corozal, D.C., 6