Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and THOMSON, District Judge.
This is an appeal from a final decree of the District Court for the Eastern District of Pennsylvania, wherein the learned judge dismissed the libel of the United States, owner of submarine L-1, against the pilot boat Philadelphia. The case arose out of a collision between the submarine, en route from Norfolk Navy Yard to the Philadelphia Yard, and the pilot boat Philadelphia.
The collision occurred at 2:50 a.m. on February 2, 1921, in the Delaware Bay just inside of Overfalls Lightship, with the weather clear, sky overcast, wind northeast, and tide flood. The libel was filed on August 1, 1923, damages in the sum of $31,000 being claimed. After hearing in open court, the District Judge filed an opinion dismissing the libel. In the opinion of the court below, the case turned on a single question of fact, namely, whether the port light on the submarine was showing red or white at the time of the collision.
The judge based his opinion largely on the testimony of Bennett, the pilot, who was awaiting his turn to pilot an incoming vessel. The substance of Bennett's testimony was that shortly after 2 o'clock, when he went on watch in the pilot house, the pilot boat was not under way, but lying dead in the water a little more than two miles inside the Overfalls Lightship. That at that time, the pilot boat was headed southeast by south, and the lightship bore a point off her port bow, about southeast. That a few minutes after he went on watch, Bennett saw a faint white light about a point and a half or two points, on his starboard bow. Shortly afterwards he saw another whicte light close to the first, the two lights appearing to him to be range lights of a vessel, and the fact that the lower of the two lights was to his right, he concluded that the vessel was showing her starboard side and was steering in direction which would cause her to pass the pilot boat on the latter's starboard. From the fact that he was unable to see any side lights, he concluded that the vessel was at least two miles away. He thought it was a vessel coming in, which would require a pilot. He went below and called Chambers, who is now dead, the pilot next in turn, and returned himself to the pilot house. He then signaled the engine room to start the vessel ahead slowly, which was done, making about six knots. He told the wheelsman, at the same time, to keep the approaching lights a point or a point and a half on his starboard bow, which orders were obeyed. Bennett then called Captain Kelley, the commander of the pilot boat, who, up to that time, was in his cabin just back of the pilot house. The pilot boat proceeded at the same speed without further orders, keeping the lights a point to a point and a half on the starboard bow. A few minutes after she started, a faint green light, Bennett says, appeared close to the white light, which confirmed his view that the approaching vessel was showing her starboard side and also that she was a considerable distance away.
The pilot boat continued her course, and about two minutes later, struck the hull of the submarine, whose lights were those which had been observed, the blow being at right angles at a point some twenty to thirty feet back of the submarine's bridge. After the collision, Bennett says he observed the lights of the submarine as she lay near the pilot boat. He says she carried three navigation lights; one, the masthead light high upon the fore port of the steamer, with side lights on either side of the superstructure, about two feet behind the masthead light, and two or three feet below it. He claims that the starboard side light showed green, and that the port side light, instead of showing red, showed white, so that any one seeing the submarine at a distance from any point on her port bow, saw two white lights, the masthead light and the port side light, which would be below it and to the right. If the latter showed white, the lights might be mistaken for the starboard view of the range lights of an approaching vessel, and it is claimed that the apparent absence of any side lights would give the further impression that the vessel was quite a distance away, as the observer would expect to see a green starboard light, if the vessel had come within a distance of two miles.
From this it is concluded that the improper showing of a white light, instead of a red light on the port side, was the cause of the collision, and that the pilot boat was without fault. This is the conclusion the court reached, after a consideration of the facts of the case.
The position of the libelant was very different. It is claimed that the logbook of the submarine accords in every detail with the facts, as testified to by its commander, Lieut. Cochran, then in charge of the navigation. The substance of this logbook is as follows:
"Proceeded on course 15 degrees true at 12:15; passed Fenwick Island Light, a beam. 200 yards distance; changed course to 330 degrees true; at 2:00, changed course to right and steered various courses, standing toward Overfalls Light Ship; at 2:30 passed the Light Ship on starboard beam at 200 yards away. Started to change course to 336 degrees but saw light of pilot boat one point on port bow. She carried the following lights, high white light, with red light below; below these and to the left, powerful white light; steadied on course 340. Began easing to the right, using 5 degrees right rudder. Suddenly saw green light to the right of the powerful white light; ship loomed up at about four points on port bow about 100 yards away. Gave full right rudder. At 2:50 our vessel was struck with great force on the port quarter. Stopped both engines and sounded short blasts on whistles. Started both main pumps. Pilot boat stood by and took submarine in tow for inner harbor."
The report by the master of the pilot boat, filed as required by law within two days of the collision, read:
"Beg to advise that while I was Captain of the pilot boat 'Philadelphia,' the following collision occurred off Delaware Cape. About 2:30 in the morning on February 2nd, 1921, we saw a vessel approaching, which proved to be the submarine L-1; the 'Philadelphia' at this time was headed in a southeasterly direction, which showed her starboard light to the submarine, and she in turn showed her starboard light to the 'Philadelphia.' When the vessels were getting very close together, the submarine, without any warning, proceeded directly across her bow, and although we ordered the pilot boat's engines astern at full speed, a collision occurred."
Nothing in this report indicated that the port red light showed white. No mention was made of any trouble with the lights, the collision apparently being caused by the submarine's proceeding directly across the bow of the pilot boat without any warning whatever.
The preliminary article of both the inland and international rules provides: "Risk of collision can, when circumstances permit, be ascertained by carefully watching the compass bearing of an approaching vessel. If the bearing does ...