Villain & Fassio E Compagnia v. Tank Steamer EW Sinclair

• Decision Date: 02 August 1962
• Citation: 207 F. Supp. 700
• Parties: VILLAIN & FASSIO E COMPAGNIA INTERNAZIONALE DI GENOVA SOCIETA RIUNITE DI NAVIGAZIONE, S.P.A., as owner of the MOTOR VESSEL ANGELA FASSIO, Libelant, v. The TANK STEAMER E. W. SINCLAIR, her engines, boilers, etc., and Sinclair Refining Company, Respondent (and Cross-Suit).
• Court: U.S. District Court — Southern District of New York

207 F. Supp. 700

VILLAIN & FASSIO E COMPAGNIA INTERNAZIONALE DI GENOVA SOCIETA RIUNITE DI NAVIGAZIONE, S.P.A., as owner of the MOTOR VESSEL ANGELA FASSIO, Libelant, v. The TANK STEAMER E. W. SINCLAIR, her engines, boilers, etc., and Sinclair Refining Company, Respondent (and Cross-Suit).

United States District Court S. D. New York.

August 2, 1962.

COPYRIGHT MATERIAL OMITTED

Ehrich, Stock, Valicenti, Leighton & Holland, by Albert D. Jordan, Robert Nicol and Gordon W. Paulsen, New York City, for libelant.

Burlingham, Underwood, Barron, Wright & White, by Stanley R. Wright, and Edward L. Wyckoff, New York City, for respondent.

EDELSTEIN, District Judge.

This is a consolidated cause arising out of a collision between the motor vessel ANGELA FASSIO and the tanker E. W. SINCLAIR on the morning of December 3, 1959, in the Delaware River. The ANGELA FASSIO, owned by libelant, Villain & Fassio E. Compagnia Internazionale Di Genova Societa Riunite Di Navigazione, S.p.A. (Villain & Fassio), was built in 1956. She is 492 feet long, 62 feet abeam, of 7016 gross tons, and powered by 5500 h. p. diesel motors. At the time of the collision her drafts were about 12' 1" forward and 16' 9" aft. The E. W. SINCLAIR, owned by respondent Sinclair Refining Company (Sinclair), is a tanker built in 1942. She is 520 feet long, 72 feet abeam, of 10,907 gross tons and powered by a 6000 h. p. turbine. On the day of collision, her drafts were approximately 31 feet forward and 30' 6" aft.

On the trial, the only really substantial dispute as to the facts concerned the nature and timing of certain signals sounded by the FASSIO. The chronicle of this collision is fairly well established by the evidence.

On the fateful morning, the ANGELA FASSIO, inbound from New York to Philadelphia under the command of Captain Giovanni Zustovich, picked up a Delaware River pilot at 6:45 a. m. at the Pilot Station. She proceeded up the river until fog was encountered at about 9:00 a. m. near Buoy 42. Believing that it was dangerous to continue up the river, the master and pilot made preparations to turn to starboard out of the channel in order to anchor. By 9:20 a. m. the FASSIO was properly and lawfully anchored in the fog off Arnold Point, approximately 250 meters east of the Liston Range of the Delaware River channel. She was anchored 0.4 of a mile northwest of Buoy 42 to three shots of chain (45 fathoms) on a heading of 150° true, directly into a flood current of about 1½ knots then running up channel in a northwest (330° true) direction. Visibility in the area at that time was limited to 100 yards due to the dense fog prevailing. The captain and watch officer remained on the bridge while the pilot went below to rest. A double anchor watch, consisting of the ship's carpenter and an able-bodied seaman, was posted on the bow. From the time of anchoring to the time of collision, the fog bell signal prescribed by the Inland Rules, 33 U.S.C. § 191, 33 U.S.C.A. § 191 (1958), was sounded continuously by the anchor watch.

Sometime before the collision, the chief officer of the FASSIO, then standing on the starboard wing of the bridge, reported to the captain that he thought he heard a distant whistle signal. Almost immediately thereafter, the watch officer reported a target on the radar screen. At what time this happened, as well as the timing of all the subsequent events, is vigorously disputed by the SINCLAIR. Resolution of these questions of fact is difficult in view of the conflicting testimony. But the course of events is clear even if the precise moment when each act took place is not. For the moment, the narrative will proceed using the timing urged by the FASSIO.

When these two reports were given to the captain, approximately twenty minutes before the collision, he remained on the wing of the bridge for a minute or two, listening for a further signal. Hearing nothing, he relieved the watch officer at the radar screen. The radar with which the FASSIO was equipped was a Decca model, in good working order, which had been set on a three mile range. Calibration of the radar had been checked by visual comparisons the prior evening and that same morning. Captain Zustovich observed the target to be 2.2 miles distant and approaching on the easterly edge of the channel. By observing the approaching target's movement over a three-minute period, he computed its speed to be twelve knots or better. Continuing his radar observations, the captain correctly determined that the approaching target was a ship moving at high speed on the extreme easterly edge of the channel.

As the captain continued to observe the oncoming vessel he became apprehensive. He knew that the fog was present around Buoy 42, having encountered it only a half hour earlier, and knew that visibility was limited to 100 yards. He was aware that the limit of range of a fog bell was about 0.3 of a mile. He had no way of knowing whether the other vessel had radar.¹ Thus, he was concerned lest his presence and position were not known to the other vessel. He considered the possibility that the approaching vessel might intend to anchor due to the fog, as he himself had done earlier. In any event, he knew that the current was setting in somewhat of an easterly direction from the channel toward his vessel. He could not be certain that the moving vessel was not slightly to the east of the channel. Based upon all these factors and the high speed of the approaching vessel, Captain Zustovich was concerned that his bell would not be heard in time to prevent a collision. Fearful that a danger of collision existed, he decided to give a signal, supplementary to his bell, to warn the approaching vessel of his presence and position.

When the approaching vessel was a mile away, according to his radar observations, the captain personally sounded the international "R" signal (a short blast of one second, a long blast of five seconds, and a short blast of one second). He observed that the ship's clock mounted in the forward bulkhead of the bridge showed the time as 9:44 plus a few seconds. When the approaching vessel was 0.5 of a mile distant, near Buoy 42, and continuing to approach with apparently undiminished speed, the captain ordered the chief officer to sound the "R" signal again. The watch officer observed the ship's clock to show 9:47 at the time the second signal was sounded.

Here there is a slight discrepancy in the evidence. At the trial, the captain testified that shortly after the second whistle signal was sounded he saw the target of the approaching ship merge with the target of Buoy 42 on the radar screen and almost immediately lost the image of the ship in the "sea return." This is a bright disc or spot in the center of the radar screen caused by the reflection of the radar waves from the waters near the vessel. In his nautical journal, the captain recorded that the approaching vessel's pip merged with Buoy 42 a moment before he ordered the sounding of the second "R" signal. I do not believe that it makes any difference whether the pip merged with the image of the buoy a moment before or a moment after the signal sounded. Suffice it to say that the second signal was made at about the time the SINCLAIR was at Buoy 42.

After the second signal was sounded, Captain Zustovich went to the starboard wing of the bridge and ordered the anchor watch to "intensify to the maximum" the ringing of the fog bell. The captain and his officers remained on the starboard wing of the bridge until, some three minutes later, the E. W. SINCLAIR came out of the fog at observably high speed and struck the ANGELA FASSIO. The time of the collision, according to the clock aboard the FASSIO was 9:50 a. m.

On the SINCLAIR, meanwhile, events were proceeding apace. The E. W. SINCLAIR, inbound to Philadelphia on a coastwise voyage from Texas with a full cargo of 16,000 tons of Bunker "C" heating fuel, was under the command of Captain Richard E. Dutson. She arrived at the Pilot Station shortly after the FASSIO and picked up her pilot, Francis Reardon, shortly before 7:00 a. m. The vessel then proceeded up channel in clear weather with visibility extending up to twelve miles. She was proceeding at a sea speed of 13.3 knots. A freighter, which later proved to be the ANGELA FASSIO, was observed by the captain and pilot approximately four miles ahead of the SINCLAIR. She was proceeding rapidly up the channel and not much attention was paid to her. Nor was any effort made to keep track of her.

About half way between Ship John Light and Buoy 42 fog was observed approximately two miles ahead in the vicinity of Buoy 42. Discussing the situation, the captain and pilot decided that they would make Buoy 42, and that if the fog was dense after entering it, the SINCLAIR would anchor north of Buoy 42. Accordingly, the engines were put on standby, the chief mate was ordered to stand by the anchor, a lookout was posted on the bow and fog signals were commenced. The order to the engine room was for the purpose of bringing the ship's speed from sea speed to maneuvering speed. The order is regularly given approximately ten minutes before intended maneuvers in order to enable the engine room personnel to adjust the engines and boilers so as to be able to undertake maneuvers involving changes of speed. The effect of the order, when accomplished, was to reduce the engine revolutions from 88, yielding a sea speed of about 13 knots to 66 revolutions, yielding about 10 knots.

It is at this point in the narrative that the timing of the various acts is disputed. The engine maneuvers of the SINCLAIR were recorded in the Engine Room Bell Book. The book is kept in the regular course of business by the engine room personnel, who immediately record all orders which are received. They are not influenced by what is transpiring above decks, nor are they concerned with the reasons for any particular order. The entries in the bell book conflict in some...