Morris saw only the Moran's green light, he was still unquestionably under a duty not to attempt a passing without having reached an agreement by signals.
The libellant's requests do not ask me to fix the point where the Moran was when she first observed the lights of the Hercules. (21) I fix the point slightly to the North of the center line of the Tinicum channel, opposite the lower end of Tinicum Island and just off the line of the range lights.
The libellant's 18th request is not affirmed. In its place I find, as requested by the claimant-respondent, that (22) 'Prior to the collision, when the vessels were 200 to 300 feet apart, the Master of the Moran, who was on top of her wheelhouse, ordered the mate, who was navigating, to slow up or stop the Moran and put her wheel hard left, but the mate failed to carry out either of these orders and upon such failure the Master when below into the wheelhouse and put the engines astern shortly prior to the collision.', and I add (23) that at about that point the Moran sheered to her starboard, showing her red light momentarily to the Hercules, and immediately thereafter, without blowing any signals, straightened up on her course. I know that Judge Dickinson, in The Wachusett II-Triumph, 1933 A.M.C. 640, called the story of a sheer 'a shopworn defense'. In this case however there is positive testimony from the Hercules that the sheer did occur and Captain Eaton of the Moran testified not only that the mate did not put the wheel hard left when ordered to do so but that it was possible that he put it hard right. In any event, (24) the sheer was only momentary and the ships were so close together when it occurred that it was not the proximate cause of the accident. That cause was negligent failure to agree on a passing which had brought them into a position where a collision was unavoidable.
I also make the finding (25) that there was floating ice in the river on the New Jersey or south side of the channel and there may have been some in the channel on its southerly side, but there is no evidence that ice in the channel made navigation in it difficult or dangerous.
26. The Moran made no material change in course from the time she observed the Hercules until the collision occurred.
27. The Hercules, after crossing the line of the Tinicum range Projected, began to haul to starboard intending to pass just inside the buoy 'C' near the bend in the channel and was in the course of completing the turn when the collision occurred.
28. Both vessels checked or reversed their engines immediately before the collision and when it was too late to avoid it but, up to that point, both had proceeded at full normal speed ahead without change.
The libellant's requests for conclusions of law are generally correct but it might be well to point out the conditions existing in this case which make them specially applicable.
This was a passing situation in a narrow channel, complicated by the facts that there was a bend in the channel and that it must have been evident to both vessels that the passing would occur at or very near the bend. Without deciding whether passing without agreement by signals would have been negligent had the channel been straight and both vessels on their right side, an agreement was plainly required in this case.
The master of the Moran, when he first saw the Hercules's lights, had no idea in what part of the channel the Hercules was. What he could see was that she was on another range, approaching him obliquely and on a course, which if continued without change, would cross the course on which he was. He knew that there was a bend in the channel ahead of the Hercules but, for all he knew, the Hercules might be (as I believe she was) outside the channel to the north, in which case it certainly was one of the possibilities that she would attempt a starboard to starboard passing close to the bend. In this situation a passing agreement was imperative and when it became evident that no agreement would be reached the only safe thing for him to do was to stop his engines and blow the attention signal.
As to the Hercules, there was even more need for a passing agreement. Although outside the channel she was nevertheless not far from its edge and her master testified that when he made his turn he headed to pass inside the 'C' buoy which would have brought him (and perhaps did bring him) into the channel and place him in a passing position in a narrow channel on the wrong side of the Moran. Whatever the reasons for this maneuver, it clearly should have been attempted only after a passing agreement had been reached.
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