The opinion of the court was delivered by: KIRKPATRICK
This is a suit in admiralty for damages arising out of the sinking of the government dredge Manhattan by the tanker Bessemer in a collision which occurred at 2:55 a.m. November 22, 1929, in the lower end of the Bellevue range section of the Delaware river channel, a short distance above Wilmington.
There is no suggestion that the Manhattan was at fault in any particular. The sole question is whether the disaster was caused by the fault of the Bessemer, or was an inevitable accident. The Bessemer's contention is that her course was governed by an irresistible sheer to port caused by her encountering in the shoal water to the east of the channel forces of sheer and suction, so powerful that she could not answer her rudder and was temporarily out of control.
The libelant's answer is; first, that there are no such forces powerful enough to have caused the sheer; and, second, that, even if there were, the Bessemer would be responsible for getting so close to the bank.
It will thus be seen that we may eliminate at the outset all questions relating to the navigation of the Manhattan as well as to lights and passing signals on the part of both vessels.
1. The channel of the Delaware river is 800 feet wide, and of an average depth of 35 to 40 feet. It consists of a series of straight courses or ranges. The Bellevue range is next above the Cherry Island range and intersects it at an obtuse angle; the course up the Cherry Island range being 17 degrees true, and that up the Bellevue range 35 degrees. At the intersection, the channel had, prior to November 22, 1929, been widened on two different occasions by cutting away the bank in the bend of the angle. The last time was in July, 1929, at which time the width at that point had been increased by cutting back the bank, making a total additional width of 200 feet. That work was done between July 8 and July 29, and about the latter date the turning buoy (referred to on the charts and in the testimony as 2-B) which had marked the old channel was permanently anchored, in 27 feet of water, 100 feet to the east of the easterly edge of the newly dredged channel, and about midway in the cut-off portion in the bend.
3. At about 2:50 a.m. the Bessemer, proceeding up the Cherry Island range directly on the range lights, and therefore in the exact middle of the channel way, approached the intersection of the Cherry Island and Bellevue ranges. She was traveling at full speed or 10 1/2 knots, including the tide. (For convenience it may be noted here that this is about 1,064 feet per minute.) The master, Graul, who was navigating, was standing on the port wing of the navigating bridge. The second mate, Johnson, and the wheelsman, Gillis, were in the pilot house, and a lookout was at his station on the forecastle head. At the same time the Manhattan was moving slowly down the Bellevue range about 150 feet from the west bank of the channel. She had her drags down, and was making about two miles an hour. The night was clear with little wind, and a flood tide (2 miles per hour) was running.
4. The master of the Bessemer sighted the Manhattan on the Bellevue range, concluded (erroneously) that she was in the center of the channel, and determined to pass her on her port hand about 300 feet off. When he had reached a point from which the 2-B buoy bore four points on his starboard bow (which point would be some 1,200 feet below the intersection of the ranges), he gave the wheelsman the order "Port your helm," and his ship swung to starboard to a heading of 42 degrees true. As she neared the buoy the master ordered, "Ease your wheel," and, as she passed the buoy 300 feet abeam, "Steady as you go." The last order put the ship on a course about 41 degrees true, on which she continued for about 1,200 feet until she went outside of the channel limit and into shoal water at a point which I fix as 1,500 feet below the beginning of the straightaway on the west bank of the Bellevue range.
Comment. -- The gyro record confirms the testimony that the foregoing orders were executed by the wheelsman as given, and shows that the ship was answering her helm. "Ease your wheel" brought her back to about 35 degrees, though the tracing at that point on the record is somewhat difficult to distinguish. It is to be remembered that the recording mechanism of the compass had an error of about 2 degrees; the line always showing that amount short of the actual headings of the ship.
5. At the point last mentioned the Bessemer began to swing to port. The master gave the order "Port your wheel," followed by "Hard aport." The sheer to port continued, and danger signals were blown and the engines reversed. The speed of the ship was checked, but too late, and she collided with the Manhattan at a point about 50 feet below the Cherry Island range front light (the buoy wharf), and 200 feet from the shore. The Manhattan was carried upstream by the force of the collision and the tide, a distance of about 1,200 feet, and sank in five minutes.
Comment. -- The above are the bare facts of the collision. As found, I believe they are practically undisputed. Whether or not the wheelsman executed the last two orders and whether or not the ship answered her helm are matters which, it will be noted, have not been determined. Before further fact findings are made it will be convenient to consider the theory advanced by the Bessemer, and her position in this case as regards the burden of proof.
When it was shown that on a clear night without influence of wind or weather the Bessemer suddenly sheered across the channel and collided with the Manhattan, the initial burden of proof resting upon the libelant was met and overcome. These basic facts in themselves constituted evidence of fault. Further, since they were not disputed, and since there was no suggestion of fault on the part of the Manhattan, the case in this respect being not very different from that of a moving vessel ...