The opinion of the court was delivered by: MCGRANERY
The United States of America, as owner of the Steamship Norwich Victory, and the American Dredging Company, as owner of Dump Scows Nos. 116, 120, and 122, have each filed a libel against the other, claiming damage resulting from the collision of their vessels on January 16, 1947. The case has been tried on depositions and was submitted upon pleadings and proofs.
2. Later that day, at about 1 p.m., the tug L. Y. Schermerhorn, also owned by the Dredging Company, observed the three Scows adrift from their mooring and aground about 1,000 feet down river from Buoy No. 44. Shortly thereafter, the Captain of The Schermerhorn phoned this information to the Camden office of the Dredging Company. At about 2 p.m., The Schermerhorn went alongside the Scows, but, finding that she was unable to move them, went to another assignment.
3. At about the same time, the tug Arthur W. Herron, owned by the Dredging Company, also saw the Scows grounded and the Captain of The Herron notified the Camden office of the American Dredging Company at 2:50 p.m.
4. Shortly after 9 p.m., the Master of the tug H. H. Deinlein, having been told about the presence of the Scows by radio from the tug Goheen, found them, and notified those at the Navy Yard of their presence. He proceeded as well to Pier 96 where he told the Captain of an American Dredging Company dredge of the Scows. Previously, the Master of the tug Goheen had agreed to report the matter to the Dredging Company's office at Gloucester, New Jersey.
5. A few minutes after 10 p.m., the 38 foot Coast Guard Picket Boat No. 38327, with S1 Robisch in charge, and two other Coast Guardsmen along, left the Coast Guard station with orders to find some drifting barges and report back to the base. They proceeded down river and sighted the Scows when they were about 200 yards away from them. The Scows appeared to be a 'dark mass' and at first they could see no lights on them. They played the Picket Boat's searchlight upon the Scows and circled them, and as they came close to the Scows, one very dim light became visible. After circling the Scows, continually playing the searchlight on and around them, the Picket Boat headed upstream to report back to its base. A few hundred feet upstream from the Scows, Robisch realized that the Norwich Victory coming downstream might hit the Scows. Accordingly, he tried to warn the ship of the danger, playing the searchlight on the Scows and then back across the bow of the oncoming ship. However, The Norwich Victory made o change in course or speed until striking Scow No. 122. From the time the Picket Boat's searchlight first spotlighted the Scows until the accident was about ten minutes.
6. Prior to the collision, The Norwich Victory (measuring 439' x 62' x 34.5') had been anchored off Gloucester because of fog conditions. She got under way again at 10:04 p.m., 18 minutes before the accident, and about 2 1/2 miles upstream from the spot where it was to occur. On its way downstream, The Norwich Victory passed two tugs and tows, and had rung up her engines to 80 r.p.m. at 10:14 p.m., but at the time of the collision she was not making more than 12 knots. The Pilot, the Captain and the Third Mate of The Norwich Victory were all on the bridge and saw the light of the Picket Boat flashing back and forth ahead of them downstream. The Third Mate saw the light about ten minutes before the accident; the Captain and the Pilot saw it about six minutes later. Though the light was remarked upon, no significance was attached to it by the men on the bridge. The Pilot stated that had the lookout reported the light before, he might have slowed the ship down. In this period of time, the bright Navy Yard lights impaired, rather than helped, visibility, the glare making it difficult to see the dark water clearly. The ship's course and speed were maintained until the shock of collision with Scow No. 122.
8. The Norwich Victory collided heavily with Scow No. 122, impaling it. Scow No. 116 was damaged when No. 122 was driven into her. Scow No. 120 suffered no injury.
Negligence of Norwich Victory and Three Scows
I do not feel that there can be much disagreement over the negligence of the three Scows. They were left unattended, adrift, and inadequately lit in the middle of a busy channel at night. Cf. 33 U.S.C.A. § 178(d), 221 and 409; The Lehigh, D.C., 12 F.Supp. 75. There is some controversy as to whether the Scows were lit when the collision occurred, but I do not feel that it can be seriously contend that there was more than one 'dim' light on one Scow, and that this was not the 'good white light' provided for in 33 U.S.C.A. § 178(d). However, it is forcefully urged that this negligence was not the cause of the accident and that the Government's libel should, therefore, be dismissed. It is pointed out that even though the lights on the Scows may have been inadequate the searchlight of the Picket Boat illuminated the scene for at least ten minutes prior to the collision. This ignores the fact that the meaning of the Picket Boat's searchlight was misunderstood by The Norwich Victory, while three proper lights on the three Scows probably would not have been. It is further argued that whatever negligence there may have been in having the Scows adrift in the middle of a busy channel, The Norwich Victory could easily have avoided the accident, and that its failure to do so was due to an inadequate lookout, or the absence thereof, and reckless seaman seamanship. In support of the latter contention the Dredging Company refers to Speed Regulation Number 2 of the 'Harbor Rules and Regulations, Port of Philadelphia, Revised and adopted June 4, 1935,' issued by the 'Board of Commissioners of Navigation for the River Delaware and its Navigable Tributaries.' That Regulation provides: 'Vessels shall not be worked or navigated in the Delaware River in front of the Navy Yard, between Gas and Bell Buoy No. 44 off mouth of Schuylkill River and Red Nun Buoy No. 46, off Eagle Point, at a greater rate of speed than twelve (12) nautical miles an hour.' The Government contends that this Regulation is not meant to apply to use of the Delaware River as a highway, but only to local shipping, that it does not have the force of a statute, and that, in any event, The Norwich Victory was not proceeding at a greater speed than 12 knots an hour. I feel that the Government's last assertion is correct, and that it is unnecessary to construe or determine the force of the quoted Regulation. It is true that the Engineer stated that a speed of 80 r.p.m. was called for, and that under ideal conditions, this would mean a rate of about 13 1/2 knots per hour. However, actual speed above water is another thing, and the Captain, the Pilot, and the lookout Highlands were in agreement that the ship was actually not travelling at more than 12 knots when the accident occurred.
However, the Dredging Company's contention that The Norwich Victory was proceeding in a negligent fashion is, I feel, correct in two respects; the lookout was either absent or inadequate and the admitted sight of the Picket Boat's lights should have given the Captain or the Pilot pause. The testimony as to the lookout is conflicting, Loftesnes said that the accident occurred five minutes after Highlands relieved him. Highlands maintained that he saw the Scows and reported to the bridge right after he took over. The discrepancy indicates that either Highlands or Loftesnes had five minutes before the collision to report what he saw and did not, either because no one was there, or because whoever was there was not paying much attention. In addition, Loftesnes had noticed the lights five minutes before Highlands relieved him but failed to inform him of their presence. It is difficult to avoid the inference that the lookout, whoever he was, was either absent or inadequate, and that, should the latter be the case, 'an inefficient lookout is no better than no lookout.' See The Socony No. 20, 2 Cir., 162 F.2d 199, 200. It should be pointed out, in addition, that the Pilot stated that had the lookout reported the lights sooner, he might have slowed the ship to examine the situation.
In addition, the Captain and Pilot were negligent, I feel, in proceeding at a good rate even though they had noticed and commented upon the searchlight flashing back and forth. See the Koyei Maru, 9 Cir., 96 F.2d 652, 655; The Bright, D.C., 38 F.Supp. 574, 580. The lights from the Navy Yard admittedly interfered with visibility and this alone would suggest caution. See The Paris, 2 Cir., 37 F.2d 734, 740. It is, of course, impossible to tell with certainty at just what spot slackened speed or a change in course would no longer have prevented a collision, but I feel that the negligence of the men on the bridge and of the lookout was legally causative; i.e., that The Norwich Victory should have slackened speed or changed course at a time when it was still possible to avoid the accident. The Government argues that The Norwich Victory could not have stopped in less than 2,400 feet and that an examination of Admiral Knight's Modern Seamanship, 10th Ed., page 503, indicates that a vessel 420 feet long will advance 400 yards or 1200 feet, before her stern leaves the course upon which she was proceeding. From this it concludes that The Norwich Victory (length 456 feet) could not possibly have avoided the Scows from the time they became visible (150 feet away). This, of course, begs two questions; whether the Scows would have become visible sooner had the lookout been more attentive, and whether, upon the basis of the lights alone, The Norwich Victory should have stopped, slackened its speed, or changed its course. Accepting the Government's figures and its contention that the ship was not going at over 12 knots, her speed roughly was over 1200 feet a minute. This ...