Petition of United States

• Decision Date: 21 November 1949
• Docket Number: 21434.,21433,Dockets 21379,67,No. 26,No. 68,26,68
• Citation: 178 F.2d 243
• Parties: PETITION OF UNITED STATES. THE F. S. 231. UNITED STATES v. BLACK DIAMOND S. S. CORPORATION. THE MIDLAND VICTORY. HARTZELL v. UNITED STATES.
• Court: U.S. Court of Appeals — Second Circuit

178 F.2d 243 (1949)

PETITION OF UNITED STATES.

THE F. S. 231.

UNITED STATES v. BLACK DIAMOND S. S. CORPORATION.

THE MIDLAND VICTORY.

HARTZELL v. UNITED STATES.

Nos. 26, 67, No. 68, Dockets 21379, 21433, 21434.

United States Court of Appeals, Second Circuit.

Argued October 11, 1949.

Decided November 21, 1949.

COPYRIGHT MATERIAL OMITTED

H. G. Morison, Assistant Attorney General, John F. X. McGohey, United States Attorney, New York City, Alfred T. Cluff, Special Assistant to the Attorney General, Proctors for United States of America.

Hunt, Hill & Betts, New York City, Proctors for the Claimant and Cross-Respondent-Appellant, Black Diamond Steamship Corp., John W. Crandall, Robert M. Donohue, New York City, Of Counsel.

Simone N. Gazan, New York City, Protor for Claimants-Appellants.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

CHASE, Circuit Judge.

This case involves three distinct questions which will be separately considered in this opinion. The background for all three may, however, be stated as follows.

The Midland Victory, an American steamer owned by the United States but operated under a bareboat charter by the Black Diamond Steamship Corporation (hereinafter called "Black Diamond"), and the F. S. 231, a United States Army transport, collided about half an hour before midnight on August 24, 1946, in the ocean off Fire Island, New York. Both vessels were damaged and four members of the crew of the transport were lost and several sustained personal injuries. Black Diamond filed a libel under the Public Vessels Act, 46 U.S.C.A. § 781 et seq., in the United States District Court for the Eastern District of New York, against the United States, for damages to the Midland Victory. The United States then filed a petition in that court for limitation of, and exoneration from, liability, and subsequently a cross libel for damages to it resulting from the collision. Suits for the deaths of three, and for the personal injuries of five, of the transport's crew were brought against Black Diamond, some of these suits being brought in the Southern District of New York and some in the Eastern District, some at common law, and the others in admiralty. The trial court restrained the trial of these suits against Black Diamond, and the personal injury and death claimants have appealed. Both vessels were held at fault, and both Black Diamond and the United States have appealed from the interlocutory decree so holding, contending that the other's vessel was solely at fault. The petition of the United States was denied, and it has appealed.

Liability for the Collision.

Black Diamond's Midland Victory, a vessel of 7,606 gross and 4,549 net tons, with an overall length of about 455 feet and a beam of 62 feet, was bound on the night of the collision, for New York on a voyage from Rotterdam with 1390 tons of cargo aboard and was off the coast of Long Island, headed for the Ambrose Light vessel. She was equipped with cross compound geared turbine engines that gave her a cruising speed of about 18½ knots, and was manned by experienced officers and an experienced crew. The F. S. 231, a transport of 573 gross and 270 net tons, with a length of 180 feet and a beam of 32 feet was bound for St. Johns, Newfoundland, from New York. She was manned by unlicensed officers and an inexperienced crew, and was equipped with a twin-screw motor that gave her a cruising speed of about 9½ knots. The weather was clear and there was good starlight visibility, with only a slight sea and a negligible wind.

The trial court found that at all times before the accident both vessels were travelling at their full cruising speeds, that each was displaying proper navigation lights, and that each had seen the other's lights for half an hour or more before the collision, though only the white masthead light of the transport was noticed by the navigators of the Midland Victory and they erroneously thought it was the stern light of a vessel they were overtaking. It was found that, as the vessels approached each other, the Midland Victory took the first action, when they were a quarter to a half mile apart, with a right and then a hard-right rudder, accompanied by a one-blast signal. The F. S. 231 was found to have heard this signal and then to have changed her course with a hard-left rudder accompanied by a two-blast signal. Thereafter the Midland Victory blew a one-blast signal which was again answered by the F. S. 231 with two blasts.¹ The vessels collided a few miles southeast of Fire Island Lightship buoy, which is located nine miles south of the shore light on Fire Island, New York. The collision was at right angles, the bow of the longer vessel striking the starboard quarter of the transport close to the latter's stern. The Midland Victory was held at fault for not maintaining a proper lookout, mistaking the F. S. 231's white light for that of a vessel being overtaken and failing to see the F. S. 231's side lights, which it was found, should have been seen at a distance of two miles, combined with her failure to reduce speed or reverse engines when she was in doubt as to the course and intentions of the F. S. 231. The latter was also held at fault for negligently steering hard left and attempting to cross the larger vessel's bow and in negligently failing to stop or reverse her engines after hearing the signals of the Midland Victory.

The trial court refused, however, to make any findings as to the bearings of the vessels when they first sighted each other, their courses, or the changes in those courses, on the ground that there was ample time and space afforded to each to prevent the collision, regardless of these bearings and courses. Both parties claim that findings should have been made, the United States insisting that there was a starboard to starboard approach, and Black Diamond contending that fifteen minutes before the collision a meeting situation arose, that continued as such or developed into a crossing situation. Our study of the record discloses nothing which makes necessary to decision specific findings as to the courses of these vessels at any time previous to the point when they were within about eight miles and about fifteen minutes of collision. They were navigating in open water with no other vessels in a position to hamper them in making any maneuvers they might have chosen to make and it is plain that eight miles and fifteen minutes gave to each ample space and time to avoid collision. What occurred before, we think, was too remote to be treated as a cause of collision.

The findings, made upon substantial supporting evidence, show that both vessels were displaying all the required navigation lights and that under the prevailing weather conditions the red and green lights of each were visible for at least two miles. It is undisputed that until collision was imminent the F. S. 231 had for at least ten minutes held a course of 79° true and that the course of the Midland Victory during that time had been changed from 267° true to 270° true about fifteen minutes before the collision and then to 272° true about four minutes later. No signal was given upon either change of course and, while, strictly speaking, one blast should have been given each time, we consider the omission of no real consequence; the vessels were still so far apart that it cannot be said to have been a proximate cause of the collision. But, as what later happened clearly shows, the vessels were, at least five minutes before the collision, so heading, relatively to each other, that one or both of the colored lights of the F. S. 231 could have been seen by those in charge of the Midland Victory. The undisputed evidence shows that a lookout was stationed on the bow of the Midland Victory in a position where his view of the F. S. 231 was unobstructed and that that the third officer was on the upper bridge in charge of its navigation with his view of the transport also unobstructed. It shows further that he had binoculars through which he looked at the F. S. 231 every two or three minutes and that, in addition, the captain went to the bridge just before the change of course to 272° true, which he ordered made, and that his view of the F. S. 231 was also unobstructed. The lookout testified that he saw only one white light on the F. S. 231 until the vessels were about three hundred yards apart,² when he saw the red and green lights. The third officer, the captain, and the seaman at the wheel all testified that they saw only one white light on the F. S. 231 before the collision. The first two thought until just before collision that the white light they saw was the stern light of a vessel they were overtaking. Under the circumstances this evidence is simply incredible, for within a short time, about two to five minutes, before collision the Midland Victory put her wheel right and sounded one blast, and the F. S. 231 then put her wheel left and sounded two. This was followed at once by the Midland Victory's going hard right on another one blast signal and by the F. S. 231 keeping on to her left with a two blast signal, all of which brought the vessels into collission as previously stated.

Thus, in order to get to the point of collision in the way these vessels did, they obviously had to be showing each other their colored lights when they were at least two miles apart. Yet no one, except perhaps the lookout, on the Midland Victory saw the colored lights on the F. S. 231 until the vessels were in dangerously close quarters, and it is impossible to tell when he saw them. Those in control of her navigation were charged with the knowledge which they would have gained from seeing what was in sight, The New York, 175 U.S. 187, 204, 20 S.Ct. 67, 44 L.Ed. 126, and consequently that they were not overtaking the vessel ahead. Needless to say, it is no excuse to say that their navigation was proper in an overtaking situation.

We agree with the trial court that,...