The opinion of the court was delivered by: KALODNER
This is an admiralty suit tried before me without a jury.
A libel was filed to recover for damages suffered by the motor ship Sun in a collision with a steam tank vessel, the Gulfstar, on July 16, 1937, off the east coast of Florida, approximately 15 miles northeast from Fowey Rocks Light, in the neighborhood of 1 a.m. Each party claims that the collision and consequent damage occurred solely through the fault of the other. In addition, the claimant-respondent contends that even if it were negligent, no liability rests upon it because negligence of the libellant's ship contributed to the collision.
Some essential facts are not in dispute. They are:
The collision happened on a clear, dark, moonless night, in a smooth sea, and with a gentle breeze blowing. Each ship displayed standard navigation lights -- range lights, masthead lights, green starboard and red port lights. Up to a few minutes before the collision the Sun's course was 220 degrees true -- approximately southwest. The course of the Gulfstar was one degree true -- almost directly north. The Sun was running at a speed through the water of between 11 and 11 1/2 knots, and the Gulfstar at about 9.8 knots. To the east of the Gulfstar and about 250 yards away was a submarine, the S-30 was the submarine S-1, about 500 yards away from and broad on the bow of the S-30 -- both maintaining northerly courses approximately parallel to that of the Gulfstar, and both running on the surface and equipped with standard running lights.
The Sun and the Gulfstar were on crossing courses, wherefore, under the applicable International Rules of Navigation, the Sun was the privileged and the Gulfstar the burdened vessel, the latter having the former to her starboard.
There was a flat and outright contradiction between the respective versions of the two boats relating to the events innediately preceding the collision.
Without entering upon detail, their two stories may be summarized thus:
Sun's version: At 1 a.m. (Sun's time) the Gulfstar, then one mile or more distant from the Sun, crossed the latter's course. At 1:01 a.m., the Gulfstar was observed by Hodgson (Second Officer of the Sun) to be slowly changing her course to the right. At 1:02 a.m., the Gulfstar opened her red (port) light. At that time the Gulfstar was bearing about one point on the starboard bow of the Sun and heading for her starboard side. The Sun's wheel was ordered hard right and she blew a signal of one blast on the whistle. The distance between the vessels was then about 3/4 of a mile.
The Gulfstar, instead of continuing her right swing, steadied on. Hodgson, observing this, ordered the Sun's engines full astern -- this at 1:03 a.m. The Sun's wheel was kept at hard right. The vessels approached each other. Just before the collision the Gulfstar was again observed to swing hard right. At 1:05 a.m. the bluff of the Gulfstar's port bow struck the port side of the Sun, somewhere abreast of number one tank. The angle of impact was one point (11-1/4 degrees) or less. The port sides of the two vessels raked along each other until there was contact between both sterns, after which the vessels cleared each other. All times given are Sun's time.
Gulfstar's version (all times mentioned are S-30 time): The collision happened at 1:14 a.m. At 1:09 a.m. the Gulfstar changed her course to the right to avoid crossing the Sun's course and to pass astern of her. Her maneuvering was limited by the necessity of avoiding heading over too far and crossing the course of the S-30, which had been abreast of her at 1:07 a.m. but which had gradually fallen back, since the S-30 was making only 5 1/2 knots and approximately paralleling the Gulfstar's course -- about 250 yards east of her. At that time, 1:09 a.m., a distance of about two miles separated the Sun and the Gulfstar, and the latter sounded a one-blast whistle, as required by the rules of navigation, to signal her change of course to the right.
With this change of course -- according to the Gulfstar -- the vessels involved would have passed safely had the Sun held her course. However, the latter, when the vessels had approached to within a half-mile of each other (the Sun then bearing half a point on the Gulfstar's starboard bow), altered her course to her own left; whereupon the Gulfstar swung her rudder hard right and ordered her engines full speed ahead. The maneuver was insufficient to avoid the impact, however; and, the Sun continuing toward the Gulfstar, the vessels collided port bow to port bow at an angle of about 15 degrees.
It is necessary to discuss the testimony of the respective sets of witnesses, since it is under attack.
Witnesses for the Sun: Hodgson, second mate of the Sun; Gibson, oiler on the Sun; Van Gemmert, master of the Sun; Baldwin, ablebodied seaman and acting as quarrermaster on the Sun; Miller, engineer officer on the Sun; Simmons, seaman on the Sun; Captain Campbell, yard captain or dock master of the Ship Building and Dry Dock Company, and in command of both the Sun and Gulfstar on their trial trips; Whittaker, manager of the Marine Department of the Sperry Gyrescope Company.
Witnesses for the Gulfstar: Lindstrom, second mate of the Gulfstar; Jenkins, master of the Gulfstar; Kutch, second assistant engineer on the Gulfstar; Fisher, ordinary seaman on the Gulfstar; Creasap, marine superintendent of the Thespian Steam Ship Company.
Hodgson, for the Sun, was on watch from midnight until after the collision, and Lindstrom was on watch on the Gulfstar during the same time. Each party depends for the most part upon the testimony of its watch officer to establish its version of the collision and the events preceding it. In general, the two contrasting fact versions given hereabove are gathered from the testimony of these two witnesses.
Gibson was on watch in the engine room of the Sun. His testimony related to signals from the bridge; turning on the air to stop and reverse the engines, and putting the engines in reverse. Van Gemmert, master of the Sun, was asleep and was awakened by the collision, and testified as to the position of the vessels thereafter; as to the setting of the wheel and the going astern of the engines. He also identified the course recorder chart. Baldwin, on watch as quartermaster of the Sun in the wheelhouse at the time of the collision, testified as to the relative positions of the Sun and the Gulfstar prior thereto, and in general corroborated Hodgson's story.
Miller was engineer officer on watch on the Sun at the time of the collision. He described the engines of his ship and the activities in the engine room just prior and subsequent to the collision. simmons, lookout on the Sun at the time of the collision, also corroborated ...