Pacific-Atlantic SS Co. v. United States, 5827.

• Decision Date: 09 June 1949
• Docket Number: No. 5827.,5827.
• Parties: PACIFIC-ATLANTIC S. S. CO. et al. v. UNITED STATES. THE OREGON.
• Court: U.S. Court of Appeals — Fourth Circuit

175 F.2d 632 (1949)

PACIFIC-ATLANTIC S. S. CO. et al. v. UNITED STATES.

THE OREGON.

No. 5827.

United States Court of Appeals Fourth Circuit.

Argued April 5, 1949.

Decided June 9, 1949.

Robert S. Erskine, New York City (Baird, White & Lanning, Norfolk, Va., Kirlin, Campbell, Hickox & Keating, New York City, George M. Lanning, Norfolk, Va. and Eugene F. Gilligan, New York City, on the brief), for appellant Pacific-Atlantic Steamship Co.

Leonard J. Matteson, New York City (Vandeventer & Black, Norfolk, Va., Bigham, Englar, Jones & Houston, New York City, and Barron F. Black, Norfolk, Va., and Julian S. Gravely, Jr., New York City, on the brief), for appellant E. J. Lavino & Co.

Alfred T. Cluff, Sp. Asst. to the Atty. Gen. (H. G. Morison, Asst. Atty. Gen., on the brief), for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

The Pacific-Atlantic Steamship Company, as owner of the American motorship Oregon filed under the Public Vessels Act, 46 U.S.C.A. §§ 781-799, in the United States District Court for the Eastern District of Virginia, a libel in admiralty against the United States, in connection with the sinking of the Oregon after a collision between that vessel and the New Mexico, a battleship of the United States Navy. Intervening libels were filed by E. J. Lavino and Company and by Defense Supplies Corporation, owners of the Oregon's cargo. The United States filed a cross-libel for the damage to the New Mexico. The intervening libel of Defense Supplies Corporation was withdrawn before trial.

The District Court adjudged that the collision "was caused entirely by faults and errors in navigation on the part of the Oregon," and decreed that the Pacific-Atlantic Steamship Company, as owner of the Oregon, is "entitled to limitation of its liability to the value of its interest in the Oregon and its pending freight." Further, it was ordered by the District Court that the intervening libelants are not entitled to any recovery from the Pacific-Atlantic Steamship Company, that there could be no recovery by any party against the United States, and that the United States recover its damages by reason of the collision from the Pacific-Atlantic Steamship Company, subject to this Company's right to limitation of liability. An appeal has been taken to us by the libelant, Pacific-Atlantic Steamship Company, and by the intervening libelant, E. J. Lavino and Company.

The collision between the Oregon and the New Mexico occurred about 4:42 A.M. on December 10, 1941, in the Atlantic Ocean at a point approximately forty miles south of the Nantucket Shoals Lightship. The New Mexico was preceded by a screen of three destroyers, the Hughes, the Sims and the Russell. The three destroyers were on the arc of a circle, each about 2,000 yards distant from the New Mexico, with the Hughes almost dead ahead of the New Mexico, the Sims on the New Mexico's port bow, about 20 degrees forward of the battleship's port beam, and the Russell on the New Mexico's starboard bow, about 20 degrees forward of the battleship's starboard beam.

Due to war conditions, all of the vessels here concerned were blacked out, running without lights. The four naval vessels, according to plan, were zigzagging. Their base course was 236 degrees true (about southwest by west); but, just before the collision, on a leg of the zigzag, they were on a course 216 degrees true, proceeding at a speed of 14 knots. The course of the Oregon was 340 degrees true (about north-northwest) and her speed was just over 13½ knots.

At the time of the collision, the sky was overcast; the moon was obscured by broken clouds of moderate density, with some diffusion of light through the clouds, and there was neither rain nor fog. The visibility was described by some witnesses as "good," by others as "fair." Captain Gillette of the Oregon, placed the range of visibility at from 1½ miles to 2 miles for such an unlighted object as a ship. According to the witnesses on the New Mexico, it was placed for the naked eye at 2 miles, with binoculars at from 2½ or 3 miles to 4 miles.

When the Oregon entered the arc of the destroyer screen, she was between the Hughes and the Sims, with the Hughes to the Oregon's port and the Sims to the Oregon's starboard. At this time, the Hughes was closer to the Oregon than the Sims, and the Russell was, of course, the most distant of the three destroyers.

As is quite usual in cases of this kind, there are grave discrepancies in the testimony of the various witnesses as to precisely what happened, and when and where and why, just before the collision. The elaborate and able opinion filed by the District judge contains a searching analysis of the vital parts of the testimony, with extended findings of fact and conclusions of law appropriately based on these findings.

First, we review briefly the testimony given by the witnesses on the Oregon. Captain Gillette testified that he, the second officer and a lookout were on the starboard side of the bridge, keeping an alert watch, while able seaman Jackson was at the wheel. They observed a dark object (which was, of course, the New Mexico) bearing about 4 points on the starboard bow and about a mile or less distant. Immediately the running lights of the Oregon were turned on in pursuance of Captain Gillette's order, and, about 15 or 20 seconds later, the New Mexico turned on her running lights. According to Captain Gillette, he could not determine the course of the New Mexico until her lights came on and, accordingly, he could not until then perceive that the two ships were on intersecting courses.

Captain Gillette estimated the distance between the Oregon and the New Mexico, when the latter's lights came on, to be about one-third of a mile. He immediately ordered the helm "left" and a second or so later "hard left," in the belief that such conduct offered the best chance of avoiding an imminent collision, and he hoped the New Mexico would cooperate by turning to her right. He admitted that he gave no signal whatever to indicate his intention to make this turn, and that he made no effort to reduce his speed until the moment of impact, when he ordered full astern for the Oregon's engines. He stated that the collision occurred about one minute, or less, after he gave the "left" order.

At the time of the collision, according to Captain Gillette, the Oregon had turned about 40 degrees and was approximately a ship's length to the left of her original course; while the New Mexico, which just a few seconds before had veered to her right, had swung about 10 degrees. This resulted in the New Mexico's bow striking the starboard side of the Oregon, forward of her bridge, at an angle of about 45 degrees. He fixed the time of the collision at 4:43 A.M.; and estimated the elapsed time between the first sighting by the Oregon of the dark loom of the New Mexico and the collision at about 1½ minutes.

The evidence indicates that no one on the Oregon saw any of the destroyers until the Oregon started her left turn just before the collision. Then the lights on the Hughes were seen.

The second mate of the Oregon and the seaman, who were on the Oregon's bridge with Captain Gillette, could not testify, as they were both drowned when the Oregon sank. The testimony of Jackson, who was at the wheel of the Oregon, followed, with some variations, the same general line as the evidence of Captain Gillette. His estimate of the elapsed time between the first sighting of the loom of the New Mexico by the Oregon and the collision was "not much over a minute," and the time interval between the start of the Oregon's turn to the left and the collision as "not more than half a minute." Jackson admitted his inability to make any accurate estimate of the distance at any time between the Oregon and the New Mexico, beyond his statement that, when the New Mexico first showed her lights, the two vessels were then "very close."

Next we comment upon the evidence on behalf of the New Mexico given by those on that vessel and those on the destroyers. Lieutenant (jg) Waliszewski was the New Mexico's officer of the deck. Through his binoculars he picked up the loom of a vessel (which was the Oregon) bearing about 45 degrees off the port bow of the New Mexico at a distance which he estimated to be between 5,000 and 6,000 yards, and he testified that this vessel appeared to be at least 2,000 yards ahead of and beyond the Sims. He called the strange vessel to the attention of Lieutenant Krick, supervisor of the watch on the New Mexico. While Waliszewski and Krick were discussing the strange vessel, the lights of the Oregon came on.

Thereupon, Krick ordered the lights of the New Mexico turned on and directed that Captain Brown, asleep in his sea cabin just a few steps away, be called. There was testimony by the officers concerned as to the following intervals of time: from Waliszewski's sighting of the loom of the Oregon until the latter showed her lights, 2 or 3 minutes; from the lighting of the Oregon until the lighting of the New Mexico, less than 20 seconds; from the time Waliszewski started for Captain Brown until the Captain appeared on the bridge, 20 or 30 seconds.

Krick estimated the distance between the New Mexico and the Oregon, at the time the latter's lights came on, as about 3,000 yards. Captain Brown, when he first saw the Oregon with his naked eye, estimated her distance at from 2,000 to 2,500 yards, and that when he procured his binoculars and observed the Oregon, she was about 2,000 yards away. There was further testimony by Captain Brown that, without changing the New Mexico's course or speed, he kept the Oregon under close observation for 3 or 4 minutes and that the Oregon, during that period, made no change in course or speed.

Captain Brown testified that when the distance between the two vessels was about 700 yards, he realized "that the Oregon could not avoid a collision by her own efforts," so he...