The opinion of the court was delivered by: KALODNER
The S.S. 'E. H. Blum' stranded while being navigated through dense fog as she was bound up the Atlantic coast for Delaware Bay. This libel in admiralty is the outcome of that event. The vessel had been time chartered by her owner, the Atlantic Refining Company, the libellant herein, to the United States acting through its agent, the War Shipping Administration. Full charter hire is sought, and that is the over-all problem of the case.
The primary question for determination is whether the stranding was ' * * * caused or contributed to by war or warlike acts * * * ' and/or certain other forces enumerated in the charter agreement.
The cause having been presented to the court without a jury, on the basis of the pleadings, stipulations, and evidence, I make the following
1. The libellant, the Atlantic Refining Company, was at all times pertinent hereto a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, with principal offices in the City of Philadelphia, Pennsylvania, and was at all times pertinent hereto the owner of the S.S. 'E. H. Blum.'
2. The respondent is the United States of America and has consented to be sued herein.
3. The S.S. 'E. H. Blum,' a tanker, was built in 1941 for the libellant. She measured 523.10 ft. x 70.2 ft. x 39.7 ft. and had a dead weight capacity of 19,200 tons, a single rudder, a single screw propelled by a 5,000 hp electric motor; she was capable of 13.4 knots per hour. There were twenty-seven cargo tanks, nine on each side and nine in the center line. The pump room was located between the No. 5 and No. 6 tanks.
4. On one of her first voyages, the S.S. 'E. H. Blum' was damaged to the extent of a constructive total loss; the arranged total loss was $ 2,350,000, an allowance of $ 500,000 being made for the wreckage. The underwriters conveyed any interest they may have had in the S.S. 'E. H. Blum' to the libellant by quit claim deed.
5. On November 26, 1942, following completion of repairs to the S.S. 'E. H. Blum,' the respondent, through Emory S. Land, administrator, War Shipping Administration, and the libellant agreed to a requisition time charter, designated Contract No. WSA 3650 R, and on or about November 27, 1942, pursuant to the terms of the charter, the S.S. 'E. H. Blum' was duly delivered to the respondent.
7. At the request of the libellant, a voyage charter party was arranged bor the 'E. H. Blum' (Voyage R-1, Tanker Voyage Charter Party, November 30, 1942) by and between the libellant and the respondent, acting through the War Shipping Administration. The agreement, in effect, called for one voyage in ballast to Atreco, Texas, for a cargo of crude oil owned by the libellant, and thence to Philadelphia.
8. On December 19, 1942, a 'Tanker Bill of Lading' was issued at the port of Atreco, Texas, for 140,750 net barrels of fortified West Texas-New Mexico crude oil, aboard the 'E. H. Blum,' Allen D. Tucker, Master, to be delivered at Philadelphia to the libellant herein.
9. The Master of the 'E. H. Blum' at all times pertinent hereto was Allen D. Tucker. At the time of the taking of his testimony, May 6, 1946, he was 61 years of age. He held a Master's license, unlimited, for all oceans since about 1911 and various pilot's licenses, including pilot's license for the waters herein involved. He was made a Lieutenant Commander, Naval Reserve, in 1928, and has served as Master on merchant ships since 1916, throughout World War I and until the stranding of the 'E. H. Blum,' after which he was recalled to active duty in the Naval Reserve. He was then assigned as assistant port director for petroleum at Port Arthur, Texas, and within a short time became port director. When in command of the 'John D. Gill,' about March 13, 1942, his vessel was torpedoes in the vicinity of Frying Pan Shoal, south of Diamond Shoal. In May, 1942, while in command of the 'Robert H. Colley,' after being detached from a convoy off Key West, his vessel was pursued by submarines for two nights.
10. In l942 the German-Italian attempt to halt allied transport was at its peak.
11. On the morning of December 29, 1942, the 'E. H. Blum,' carrying an armed guard, fully laden and drawing between thirty and thirty-one feet, was part of a naval convoy bound up the Atlantic ocast for New York. The convoy comprised about sixteen vessels arranged in four columns, each vessel being approximately 500 yards apart. The 'E. H. Blum' was in one of the inner columns well up in front. While in convoy, depth charges were heard, some shaking the 'E. H. Blum,' but it was not known whether submarines were actually in the vicinity.
12. At the 10 A.M. on December 29, 1942, the 'E. H. Blum' received an order, by pre-arranged signal, detaching her from the convoy, and at about 10:25 A.M., the 'E. H. Blum' departed for the Delaware River pursuant to instructions.
13. Throughout the evening of December 28, 1942, while the 'E. H. Blum' was in convoy, and continuously thereafter until the 'E. H. Blum' stranded, the weather was foggy and misty making it impossible for those in charge to determine her exact position by means of celestial navigation. At about 1 P.M., December 29, 1942, the fog thickened and for at least two hours before the stranding the fog was dense. The fog horn was sounded. The winds encountered on December 29, 1942, before the stranding, were mild, of force 2 to 4, Beaufort Scale, varying from South, Southeast and Southwest.
14. At about 7:30 A.M. on December 29, 1942, those in charge of the navigation of the 'E. H. Blum' determined her attitude by a sight on the pole star, and her longitude by dead reckoning, and estimated their position at 7:42 A.M. to be latitude 37 degrees 23.5 minutes north, and longitude 73 degrees 52 minutes west.
15. From 7:42 A.M. to 10:25 A.M., December 29, 1942, the convoy, including the 'E. H. Blum,' covered approximately four miles. After being detached from the convoy, those in charge of the navigation of the 'E. H. Blum' estimated, by dead reckoning, that her position at 10:25 A.M. was approximately latitude 37 degrees 28 minutes north, and longitude 73 degrees 51 minutes west. Upon being detached, those in charge of the 'E. H. Blum' were not given the convoy position, but they were as able to determine their position as anyone else either in or connected with the convoy.
16. After being detached from the convoy, the Master of the 'E. H. Blum' determined to get into the coastal waters as soon as possible, where, in his opinion, the submarine menace would be less and where he might contact a patrol boat. Taking his departure at 10:25 A.M. from the point where he had estimated his then position, he headed his vessel on a course 314 degrees true and held that course until 2:30 P.M. at full speed estimated to be 12 knots, except when he slowed down for soundings at 1 P.M., 2 P.M., and 2:30 P.M. The sounding at 1 P.M. showed no bottom at thirty fathoms; at 2 P.M., 20 fathoms, yellow sand; and at 2:30 P.M., 17 fathoms, fine gray sand. The soundings indicated that the course and estimated position at 2:30 P.M. was correct. The distance traveled between 10:25 A.M. and 2:30 P.M. was about 48 or 49 miles.
17. At 2:30 P.M. the Master determined to, and did, change his course to 347 degrees true, heading just off the eastern Fenwick Island Shoal Whistle Buoy, located in latitude 38 degrees 25.2 minutes north, longitude 74 degrees 45.9 minutes west, and held that course until the vessel stranded at 6:40 P.M., December 29, 1942. The waters along the course plotted by by the Master, 347 degrees true, are of sufficient depth to enable safe passage of a vessel of the type and draft of the 'E. H. Blum.'
18. While the 'E. H. Blum' was on the course 347 degrees true, soundings were taken, on December 29, 1942, at 3:30 P.M., showing 13 fathoms, yellow sand; at 4:30 P.M., showing 11 fathoms, fine white sand; at 5:40 P.M., showing 13 fathoms, white sand with black specks; and a sounding was being taken at 6:40 P.M. when the 'E. H. Blum' stranded.
19. For the 'E. H. Blum,' full speed was 13.4 knots. However, as preparation for anything that might be encountered, the number of revolutions of the engines was reduced, so that full speed was 12 knots, half speed, about 7 knots, and slow speed, about 3 1/2 to 4 1/2 knots. All soundings were taken at slow speed. Within an hour prior to the stranding, the 'E. H. Blum' was on slow speed; between the sounding at 4:30 and that at 5:40, she was on half speed.
20. All soundings were taken with a 70 pound lead line, specially made for that purpose, by the Chief Officer who was an experienced and capable leadsman. The 'E. H. Blum' was not equiped with fathometer. She was equipped with a sounding machine in good order and condition, but for practical reasons the sounding machine was not used. In shallower waters, the lead in the hands of an experienced leadsman furnishes a sounding at least as accurate as the sounding machine.
21. The 'E. H. Blum' was also equipped with a course recorder in good order at the beginning of the trip, but later out of order. There was no opportunity to have it repaired.
22. The 'E. H. Blum' was equipped with a radio direction finder which had been calibrated within a few weeks prior to December 29, 1942. At 3:30 P.M. on December 29, 1942, the Master of the 'E. H. Blum' obtained a bearing of 344 degrees true on Overfalls Lightship, a radio beacon station. Attempts at that time to obtain the bearing of the radio beacon station at Cape Henry were unsuccessful because of heavy static. The bearing of Overfalls Lightship at 4:30 P.M. was 343 degrees true, and at 5:40 P.M. it was 431 degrees true. These bearings indicated that the 'E. H. Blum' was inside the anticipated course, that the angle on Overfalls Lightship was widening, and that the vessel was headed in an easterly direction away from shallower waters.
23. It was essential that the 'E. H. Blum' reach a suitable anchorage before nightfall on December 29, 1942. The Master determined to anchor in nine fathoms at a point above and to the west of the eastern Fenwick Island Shoal Whistle Buoy, located in latitude 38 degrees 25.2 minutes north, longitude 74 degrees 45.9 minutes west. This was a desirable anchorage from the point of view of the submarine menace and that of traffic avoidance.
24. The Master took into consideration the wind, swell, current and tide, but concluded that they were not such as to warrant changing the course of his vessel.
26. The 'E. H. Blum' stranded at 6:40 P.M., December 29, 1942, on a four fathom shoal determined to be in latitude 38 degrees 24.4 minutes north and longitude 74 degrees 55.45 minutes west, between three and four miles west of the point where the Master had intended to anchor for the night. It was still daylight. The distance between the point of departure at 2:30 P.M. and the point of stranding was approximately 26 to 27 miles. At the time of the stranding, the Master was about ready to anchor, believing that he was abeam, and to the west, of the eastern Fenwick Island Shoal Whistle Buoy.
27. The point of stranding was approximately eight miles west and abeam of the eastern Fenwick Island Shoal Whistle Buoy, and above Isle of Wight Shoal. It was about eight miles inside the Master's original anticipated course, and about three to four ...