to collision within six minutes and the NORSCOT therefore made a speed during that interval of somewhat in excess of 13 knots, since that, of necessity, had to be the combined speed of the vessels to cover a two mile distance in six minutes. (N.T. 596-8)
42. When the NORSCOT's engines were reduced from half ahead to slow ahead at 1707 hours, the NORSCOT was still making 13.47 knots over the ground. (N.T. 682-3)
43. At the time of the collision, or after the NORSCOT's engines had been slow ahead for three minutes from 1707 hours, the NORSCOT was still making 11.31 knots over the ground. (N.T. 683)
44. A speed of 14 knots with a visibility of only 300' is excessive. (N.T. 770-1)
45. When the NORSCOT sighted the HARRISON on radar, two miles distant, bearing dead ahead, and the NORSCOT was proceeding at a speed of 14 knots, she was already in an emergency situation and her engines should have been immediately backed full, her helm put hard right, a danger signal blown, and her anchors dropped. (N.T. 774)
46. A hard right rudder order by the NORSCOT at any time up until and including 1708 1/2 hours would have cleared the path of the approaching HARRISON. (N.T. 686-8, Ex. R-3)
47. The radar bearing of an approaching vessel which remains fairly constant is indicative of a collision course and requires immediate and radical avoiding action by the observing vessel. (N.T. 775-6)
48. The radar bearing of the PRESIDENT HARRISON as observed by Captain Davis on the NORSCOT became fairly constant between 1 1/2 and 2 minutes before collision, or between 1708 and 1708 1/2. (N.T. 45-6)
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this action.
2. The respondent has conceded that its vessel, the PRESIDENT HARRISON, committed negligent acts which were causes of the collision between the PRESIDENT HARRISON and the NORSCOT.
3. 33 U.S.C. § 192 provides that "Every vessel shall, in a fog * * * go at a moderate speed,
having careful regard to the existing circumstances and conditions." Where a vessel violates this statute by proceeding through fog at an immoderate speed, her only chance to extricate herself from liability resulting from her collision with another vessel is not to show that the other vessel was guilty of a more flagrant fault but rather to show that such statutory fault not only did not cause, but could not possibly have caused the collision in question. O/Y Finlayson Forssa Aì v. Pan Atlantic SS Corp., 259 F.2d 11 (5th Cir. 1958); The Pennsylvania, 19 Wall. (86 U.S.) 125, 136, 22 L. Ed. 148 (1873).
4. The NORSCOT was proceeding at an immoderate speed in violation of 33 U.S.C. § 192 at all times after it entered dense fog up until its collision with the PRESIDENT HARRISON.
5. The libellant has failed to sustain its burden of proof that its excessive speed was not a contributory cause of the accident. To the contrary, we find that had the NORSCOT proceeded at a moderate speed,
each vessel would have had more time to apprehend the other, and the collision could have been averted.
6. The NORSCOT did not have a lookout on her bow immediately prior to the collision. Cf. 33 U.S.C. § 213.
7. Failure to have a lookout on a vessel's bow is a statutory fault and imposes on the guilty vessel the burden of showing beyond a reasonable doubt that the fault could not have contributed to the collision. Rice v. United States, 168 F.2d 219 (2nd Cir. 1948); Moore-McCormack Lines, Inc. v. SS Portmar, 249 F. Supp. 464 (SDNY 1966).
8. The libellants have failed to sustain their burden of showing that the absence of a lookout was not a cause which contributed to the collision.
9. The libellant contends that the NORSCOT did not sight the HARRISON on radar until after it passed the SUN OIL at 1704 hours and did not fix the HARRISON on a constant bearing until several minutes thereafter, at which time the NORSCOT was in extremis and could not have avoided collision. To the contrary, we find and conclude that the NORSCOT was not navigated in a reasonable and prudent manner in the period before collision in that: it failed to set its radar for a greater range prior to entering the fog so that it could prepare to navigate with respect to obstacles in the fog; it passed the SUN OIL at such an immoderate speed that it did not have reasonable time to maneuver with respect to any vessels following the SUN OIL; it failed to recognize an emergency situation and take appropriate corrective measures when its officers sighted the HARRISON two miles distant, bearing dead ahead (Cf. Finding of Fact No. 45); and it failed to execute a hard right rudder prior to 1708 1/2 hours. (Cf. Finding of Fact No. 46)
10. The damages of the collision should be shared equally by the parties.
11. The foregoing Conclusions of Law numbers 5, 8, and 9 are each independently sufficient to support Conclusion of Law No. 10.