The opinion of the court was delivered by: KALODNER
Included in the records of the case are depositions of the crew of the Pilar.
The collision occurred on December 21, 1940, in the lower Delaware Bay, about six miles north of Overfalls Lightship. The time was about 8:15 P.M. Both vessels were bound up the bay for Philadelphia.
Wind, tide, sea, weather, visibility, other traffic were not factors. The channel, at the point of collision, is wide and deep, and narrowness of the channel with subsequent limitation upon maneuver was also not a factor; nor was shallow water.
Both vessels were damaged in the collision. Each claims that the other was entirely and exclusively at fault, and seeks recovery accordingly.
The wind was light, the sea was smooth, the tide at ebb, near slack, visibility good. Both vessels carried required navigation lights, but the Pilar, a blackout ship, had her ports painted and boarded so that there was no light to walk the decks. The decks of the Pastores were well lit. Shrapnel barriers, erected on the bridge of the Pilar outside both doors of the wheelhouse, cut off the view to port or starboard from the wheelhouse.
At the impact the starboard side of the Pilar near the bow was in collision with the port side of the Pastores at a point 203 fee from her stern.
The Pastores is a twin-screw steamship: Length, 487 feet., breadth, 55 feet; mean draft at time of collision, about 19 feet.
The Pilar is a single-screw steamship: Length, 460 feet; breadth, 58 feet; mean draft at time of collision, about 12 feet.
Both vessels had picked up pilots at the Overfalls Lightship. The Pilar then proceeded up the bay towards Philadelphia at a speed of between 8 1/2 to 9 knots. Ten minutes later the Pastores, having picked up its pilot, followed the Pilar up the bay at a speed of between 13 and 13 1/2 knots. Each was aware of the presence of the other at the time of picking up the pilots. The vessels followed approximately parallel courses until just before the collision. The Pastores followed the Pilar.
From the testimony, I adopt and find the following version of the events leading up to and including the collision:
The Pastores was a faster boat than the Pilar. She gradually overtook the Pilar, until a time arrived when the Pastores, on an approximately parallel course with the Pilar (340 deg. true), was 500 feet astern and from 200 to 400 feet to starboard of the Pilar -- at which time the Pastores had the Pilar between 4 and 5 points on her port bow.
Joseph, pilot on the Pastores, estimated a lateral distance between the vessels at that time at something between 200 and 250 feet. Dye, third mate on the Pastores and one watch at the time of the collision, estimates the lateral distance between the two vessels as the bow of the Pastores commenced to come up to the stern of the Pilar at between 400 and 500 feet. Trapero, able-bodied seaman and lookout on the Pastores at the time of the collision, estimates the distance at that time at between 400 and 500 feet. No witness for the Pilar except the lookout Longdon testified as to the distance at that or any other time (or, for all that appears, ever saw the Pastores after the vessels left the Overfalls Lightship); and the Pilar lookout Longdon estimated the distance at the time the Pastores was lapping the stern of the Pilar at 40 feet.
Because of improbability and weight of evidence, I reject Longdon's story in this regard: As between the stories of those aboard the Pastores, I am most inclined to accept that of the pilot Joseph -- first, because while not altogether disinterested, he is still less interested a witness than the regular officers or crew of the Pastores; and second, because since he was in charge of navigation he would be the one most apt to concentrate on the distance in an overtaking maneuver.
I therefore conclude that the distance between the vessels at about the time the bow of the Pastores caught up to the stern of the Pilar was about 250 feet. I also find that thereafter and until the time when the Pilar first made a right swing, as hereinafter described, the vessels were on very close to parallel courses -- within a degree or less; wherefore, the distance between them remained approximately the same until the Pilar commenced a right swing.
At that time the Pilar commenced a rapid right swing -- toward the Pastores. As soon as this maneuver was noticed by the Pastores, her pilot Joseph ordered the rudder right and, immediately thereafter, hard right. The collision was not averted; the Pilar continued her right swing and struck the Pastores at the point already mentioned. The collision took place at 8:15 P.M., as established by the testimony (both the oral testimony of witnesses for the Pastores and mute testimony of the course recorder of the Pastores, coupled with Commander Creasap's reconciliation of course recorder time and Pastores' clock time). The time which elapsed between the beginning of the Pilar's right swing and the collision was from a minute to a minute and a half.
At no time did either ship blow a whistle. Both ships maintained full speed until subsequent to the collision.
After the collision the Pastores circled around to the left, exchanged names with the Pilar and information concerning the damage. The Pastores took bearings to determine the place of the collision. This was rendered possible because the anchor of the Pilar had run out due to the collision, so that the point of the contact could be determined and the bearings taken.
There is no testimony anywhere to explain the reason for the right swing. The Pilar's pilot died from natural causes about three months after the collision. No officer or member of the crew of the Pilar attempted to give a reason for the Pilar's sudden right swing. The pilot Rowland never gave any reason for it. The testimony shows he had simply given two successive orders to the wheelman to go to starboard, following which the vessels collided. Counsel for the Pilar contend that the right swing was a proper maneuver because at some time during the voyage from Overfalls Lightship to Brandywine Light a deviation to the right in the course of the Pilar would be proper; but no one testified that that was done at the proper or necessary time or place. I can not accept what amounts merely to a supposition, and a vague and remote one at that, in the place of a reason which should be furnished by testimony if such a reason existed.
It may be mentioned at this point that the testimony shows that just prior to the collision, the Pilar's pilot gave the order to port the helm, but this came too late to have any effect on the Pilar's heading, and the Pilar continued her right swing until the collision.
At some time during the course of these proceedings, it was contended on behalf of the Pilar that the Pastores had attempted by a left swing to cross the bows of the Pilar, thus causing the collision; this contention, however, is not only unsupported by the testimony, but was entirely negatived by the course recorder of the Pastores (the Pilar was not equipped with a course recorder).
The Pastores' course recorder (perhaps more accurately called a heading recorder) entirely substantiates the story of the Pastores' pilot -- that the Pastores had maintained a course of about 340 deg. true until about 500 feet astern of the Pilar; that she then changed to and maintained a course of about 342 deg. true until a minute or a minute and a half before the collision, or until the commencement of the starboard swing by the Pilar.
At the time of the collision the Pilar, instead of being headed 340 deg. true -- a course which would have brought her to her destination at Brandywine Light -- was headed north northeast, a difference of about three points or over 33 deg., and a course which, if it had been maintained, would have landed her on the Jersey beach.
The following were on the deck of the Pilar when she commenced her right swing and up to the time of the collision:
b. Dance, the third mate on watch.
c. Shore, chief engineer (who came on deck after the swing started and just before the collision).
d. Longdon, able-bodied seaman and lookout.
Those on the deck of the Pastores:
a. Dye, third mate on watch.
b. Eilertsen, able-bodied seaman and helmsman.
c. Trapero, able-bodied seaman and forecastle lookout.
The distance between the vessels at the time the Pilar commenced her starboard swing is of importance. I have already indicated my finding on that ...