Petition of Socony Vacuum Transp. Co.
| Decision Date | 07 April 1950 |
| Docket Number | A141-136. A147-338,No. A135-268,A138-213,A152-9.,A135-268 |
| Citation | 93 F. Supp. 718 |
| Parties | Petition of SOCONY VACUUM TRANSP. CO., Limited, and four other cases. THE VOCO. THE CHOAPA. THE EMPIRE GARRICK. THE BRITISH HARMONY. |
| Court | U.S. District Court — Southern District of New York |
John W. Knox, and Macklin, Brown, Lenahan & Speer, New York City, by John W. Knox, Paul Speer, and Leo Hanan, New York City, for Socony Vacuum Transp. Co., Limited.
Bingham, Englar, Jones & Houston, New York City, by Richard F. Shaw, New York City, for Cargo Claimants Commodity Credit Corp.
Kirlin, Campbell, Hickox & Keating, New York City, by Robert S. Erskine and John F. Gerity, New York City, for Compania Sud-Americana de Vapores.
John F. X. McGohey, United States Attorney, New York City, by Max Taylor, Special Asst. to the Attorney General, for Leslie Bentley and United States as owner of the John P. Poe.
Reid, Cunningham & Freehill, New York City, by Herbert P. Reid, New York City, for British Tanker Co., Ltd.
These five suits arise out of four collisions that took place during the existence of dense fog in the wartime swept channel approach to New York Harbor.
In the first proceeding, the Socony Vacuum Transportation Company, Ltd., as owner of the S. S. Voco, seeks exoneration from or limitation of liability. Claims for damage have been filed in this proceeding by the Compania Sud-Americana de Vapores, as charterer and bailee in possession of the S. S. Choapa; the Commodity Credit Corporation and others as owners of cargo on board The Choapa at the time she sank; Leslie Bentley, as master and bailee of the S. S. Empire Garrick; and the United States of America, as owner of the S. S. John P. Poe. The right of the owner of The Voco to limit liability is not disputed. The question remaining is its right to be exonerated.
The second proceeding is a petition by the Compania Sud-Americana de Vapores, charterer of The Choapa, for exoneration from or limitation of liability. Claims for damage have been filed on behalf of The Voco, Empire Garrick and John P. Poe. The issue before the court is whether the petitioner should be exonerated. Its right to limit liability is not disputed.
These two limitation proceedings are the result of collisions on the afternoon of September 21, 1944 between The Voco and Choapa, Empire Garrick and Choapa, and Empire Garrick and John P. Poe.
The third suit is by the charterer of The Choapa against the master of The Empire Garrick to recover for damage alleged to have been sustained as a result of the afore-mentioned collision between the two vessels.
The fourth and fifth suits arise out of a collision between The Choapa and another vessel on the evening of September 20th. At the time of collision the identity of that vessel was not known. Subsequently, however, information was received by the Compania Sud-Americana de Vapores tending to identify the unknown vessel as The British Harmony, owned by the British Tanker Company, Ltd. Thereupon the charterer of The Choapa filed a libel against the owner of The British Harmony, the fourth suit herein, for damage sustained by The Choapa in the collision on the evening of September 20th. The owner of The Harmony filed an answer admitting that The Harmony collided with another vessel that evening, but denying that the vessel was The Choapa. The fifth suit, a cross-libel by The Harmony against The Choapa, has been stayed by the injuction in The Choapa's limitation proceeding. It has been agreed, however, that the owner of The Harmony may file a claim in the limitation proceeding of The Choapa, nunc pro tunc, for the damage sustained by her if it be determined that she was in fact the vessel which collided with The Choapa on the evening of September 20th.
All the parties have consented to consolidate the several proceedings for the purpose of this trial. Nevertheless, whenever depositions introduced in evidence were taken without opportunity of cross examination by any party to these proceedings, the court has not considered the testimony binding on such party.
The witnesses for The Choapa, a vessel with an overall length of 307 feet, breadth of 41.7 feet and depth of 18.9 feet, told the following story concerning the first of her three collisions: On the evening of September 20th, in a dense fog, The Choapa was proceeding fully laden into New York as part of a convoy consisting of a port column of seven ships and a starboard column of six. The Choapa was maintaining her position as the fifth ship in the port column. The master of The Choapa knew that there was a swept channel, marked by mid-channel buoys, in the approach to New York Harbor, but had not received any instructions as to the exact position of the buoys or the compass direction between them. For some time before the collision The Choapa proceeded at the convoy speed of 8 knots and followed the courses signalled from time to time by The Commodore, maintaining her position in the port column by the bearing of the signals of the vessels ahead, astern and to the starboard. Her master could not recall her precise compass heading at the time the vessel with which she subsequently collided was sighted. His recollection was that The Choapa's heading lay between 310 and 320 degrees true. Visibility was less than 1000 feet, and The Choapa was showing her navigating lights, sounding regulation fog signals and maintaining a proper lookout forward. Suddenly a fog blast was heard off The Choapa's starboard bow which seemed to come from a vessel other than one of the convoy units. The Choapa's engines were immediately stopped. As soon as the white mast-head light of a vessel came into view close off the starboard bow, approximately 900 feet away, The Choapa's engines were put full speed astern and her rudder hard astarboard in an effort to avoid collision by a port to port passing. When the loom of the other ship was seen she appeared to be moving across the path of The Choapa at an angle of about 45 degrees and was too close to be avoided by The Choapa's starboard rudder, whereupon The Choapa put her rudder hard aport in order to minimize the contact. By her prompt engine movements The Choapa's 8 knot headway had been largely reduced when the collision occurred at 7:53 P. M. The stem of the other vessel, identified at the time as a tanker, struck the starboard side of The Choapa abreast of No. 2 hold, scraped aft along the side to a point about abreast of the forward end of No. 4 hold, and struck and demolished The Choapa's starboard lifeboat, which was hung outboard as a wartime precaution. The tanker then disappeared along the starboard side off the stern of The Choapa into the fog. Following the collision, an investigation by the Chief Officer and First Engineer disclosed that the damage to The Choapa was not serious, and the Convoy Commodore was so advised by wireless. The Commodore thereupon instructed the master of The Choapa by radio to anchor well clear to starboard and to proceed at his discretion when visibility permitted. Thereafter, at 8:47 P. M., The Choapa dropped her anchor in compliance with the Commodore's instructions.
The witnesses for The British Harmony, a tank steamer with a gross tonnage of 8,452½, net tonnage of 4,896½, overall length of 482 feet and width of 61 feet, gave the following version of her collision: On September 20, 1944, The Harmony, fully laden and acting under Naval orders, took her departure from Gedney Buoy in New York Harbor at 3:30 P. M. Preceded by a convoy patrol vessel and followed by two merchant ships, she proceeded in single-column formation outbound through the swept channel, the middle of which was marked by buoys lettered I to A, located approximately three to four miles from each other. On account of the dense fog The Harmony proceeded at speeds varying between three and five knots and sounded regulation fog signals. Her Master, Chief Officer and Helmsman were on the bridge, and a lookout was stationed on the forecastle head. The Naval instructions received by The Harmony required her to pass all of the mid-channel buoys on her port hand, and these instructions were complied with except that Buoys I and D were passed close to starboard. At 6:57 P. M., when in the vicinity of Buoy E, the navigation lights of The Harmony were turned on and her course was altered to 133 degrees true, which was the channel course between Buoys E and C. At this time The Harmony was maintaining a speed of 3 to 4 knots. When Buoy D was sighted at 7:30 very close by on her starboard hand, she altered her course 8 degrees to starboard in order to pick up Buoy C on her port side. At approximately 7:39 the whistle of a vessel sounding the signal "K-7" in Morse Code was heard ahead and interpreted by the Master of The Harmony to mean that the vessel sounding it was leading a convoy and proceeding at a speed of 7 knots. Shortly thereafter The Harmony sighted a vessel about 1000 feet on its starboard bow, heading on practically an opposite course, and the two ships passed each other starboard to starboard. Thereupon The Harmony immediately put her wheel hard astarboard and advanced her engines to full ahead. This speed was maintained for about a minute and a half for the purpose of facilitating quick rudder action and then reduced. Thereafter The Harmony, swinging around to a course of approximately 180 degrees true, crossed ahead of two other incoming vessels consecutively, in each instance advancing her engines to full ahead for about a minute or a minute and a half, and then reducing her speed to slow ahead. After these maneuvers she returned to her outbound channel course of 133 degrees true. At about 7:44½ P. M., upon hearing a fog whistle bearing approximately two points off her port bow, her engines were stopped. They remained stopped until 7:50, at which time a slow ahead order was given for the purpose of...
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