Petition of United States, 7622.

• Decision Date: 05 May 1955
• Docket Number: No. 7622.,7622.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: PETITION OF the UNITED STATES of America as Owner of the USNS HAITI VICTORY, for exoneration from or limitation of liability.

131 F. Supp. 712

PETITION OF the UNITED STATES of America as Owner of the USNS HAITI VICTORY, for exoneration from or limitation of liability.

No. 7622.

United States District Court E. D. Virginia, Norfolk Division.

May 5, 1955.

Thomas F. McGovern, Dept. of Justice, Washington, D. C. (L. S. Parsons, Jr., U. S. Atty., John M. Hollis, Norfolk, Va., Asst. U. S. Atty., Edward B. Hayes, Chicago, Ill., Dept. of the Navy, David C. Wood, Dept. of Justice, Washington, D. C., on the briefs), for the United States.

Edwin Longcope, New York City, and Edward R. Baird, Norfolk, Va., for intervening claimant, British Transport Commission.

William B. Eley, David H. Batchelder, Jr., Leon T. Seawell, Jr., R. Arthur Jett, C. Lydon Harrell, Jr., and John W. Oast, Jr., Norfolk, Va., for other intervening claimants.

BRYAN, District Judge.

Just before dawn in the North Sea on May 6, 1953, the USNS Haiti Victory, headed for Bremerhaven, and the westbound S.S. Duke of York, an overnight ferry between the Hook of Holland and Harwich, England, collided. The Duke of York had just emerged from a fog; the Haiti Victory was running in clear weather. Minor damage was suffered by the Haiti Victory, but her stem so deeply knifed into the port side of the Duke of York, just forward of her bridge, that the entire bow of the latter fell off and sank. Several of her 437 passengers were killed, others injured, and a large number lost their personal baggage. As owner of the Haiti Victory, the United States of America has filed a petition for exoneration from or limitation of liability. The question is whether either or both vessels failed to observe the care and caution enjoined upon mariners, by seamanship and statute, for the prevention of collisions at sea.

Asking $1,500,000 for her damage, the British Transport Commission, operating the Duke of York in connection with the British railway system, has led in the effort of the claimants to lay responsibility for the accident to the Haiti Victory. Petitioner's right to limitation, as well as the limitation fund of $1,039,959.52, has been established without contest. Certain claimants sought, through impleading petitions, to assert and try in this proceeding the liability of the British Transport Commission to them; the attempts were rejected and the immunity of the Commission thereto in the present forum was sustained. Ascertainment of the quantum of damages has been deferred in each instance to the determination of liability.

The Duke of York, a twin-screw steam turbine oil burner, 339 feet in length, left the Hook of Holland bound for Harwich a few minutes after midnight May 5, 1953 (early morning of May 6). She had a maximum speed of 18-20 knots and the crossing was normally a matter of five hours. Her lane was slightly south of due west — W ¼ S., 267° magnetic — and took her about a mile south of Galloper Lightship, located off the English coast some distance north of the Thames' mouth. The Hook and Harwich are nearly on the same parallel, a little below the 52nd N. The Duke was showing all required navigation lights — two steaming lights forward, masthead and mainmast, a stern light, and red and green side running lights. Her equipment included radar, but the instrument failed before the ship was twenty minutes out. In addition to her regular officer complement, she carried a Dutch pilot all the way across.

The Haiti Victory is a single-screw propeller, of the Victory ship type, 439 feet in length and equipped with radar. She took on a licensed British pilot at Dover just after 0117 British Summer Time, which was one hour ahead of Greenwich Mean Time and is the time of the references herein. Up to Galloper Lightship her course was generally 022° at first, and then 024°, gyro. Passing on her port hand the South and East Goodwin Lightships enroute, she came abeam of Galloper at about 0414 BST. After an alteration of her course to 050° gyro, to go under the stern of a crossing vessel, when 1½ miles to the east of Galloper, the Haiti Victory settled on a firm course of 036° gyro. She was maintaining her maximum speed, 17-18 knots, and was showing all requisite lights.

The Haiti Victory's first notice of the Duke's presence was the latter's fog whistle just after 0414 hours. It was caught by the Haiti Victory's forward lookout, and immediately reported to the bridge, as being off the starboard bow. Her pilot had heard it too. Instantly he passed to the starboard door of the wheelhouse, scanned the darkness from bow to beam, saw nothing and went directly to the radar. It disclosed a target on his starboard bow. Going again to the starboard wing of the bridge and again seeing nothing, he at once stopped his engines — 0415 hours. Within a moment the red light of the Duke appeared on his starboard bow, but ½ mile off; thereupon the Haiti's rudder was put Hard Right, her engines Full Astern, and her whistle given a short blast. At 0416 the ships were together.

Aboard the Duke, the captain heard a whistle four or five points on her port bow — the blast of the Haiti as she went Right Rudder and Full Astern. About the same time his forecastle-head lookout shouted his observation of the Haiti's masthead light, as well as her green light, ¼ mile away, about 6 points on the port bow. While taking a "fix" from the Decca dials in the wheelhouse, the Duke's second mate heard the lookout's call, and running out on the port wing picked out the Haiti's green light with his binoculars, his radar being inoperable. At once the master put the Duke's engines on Slow, manually sounded a prolonged blast on her whistle, and followed it with Full Astern and 3 short blasts. Collision ensued.

The collision was two miles east of Galloper. The prow of the Haiti Victory penetrated the port bow of the Duke of York on the foreside of her bridge. The Haiti Victory puts the time at 0416, the York at 0418 hours. No fault is found in the engine or wheel movements of either vessel after they became aware of each other. Agony of collision was upon them and avoidance was then impossible. Existence or absence of earlier fault becomes a question of whether for the weather then prevailing the conduct of either vessel constituted negligence in navigation; therefore, the primary and crucial inquiry is what was the weather as known, or as it ought to have been known, to the two navigators.

A meteorological cold front was moving over the North Sea, from northeast to southwest, on the very early morning of the collision, May 6, 1953. It seemed to be pivoting on a point to the north of the east coast of England. By illustration, at midnight, GMT, along the English coast the weather was favorable, and was as favorable along the European coast as far north as the Hook of Holland; from midnight until 4 o'clock A.M. BST it moved southwardly 60 miles along the Dutch coast, but only 20 to 30 miles along the English shore. As a "weak" front it included only drizzle, overcast and fog with very poor visibility. At 4 o'clock BST it was still 60 miles northeast of Galloper, but twice as far down the European coast as on the opposite coast. From 4 o'clock until 7, it was almost stationary on the English side, leaving fair visibility there, but the night was dark. In and around Galloper the weather at 0300 hours was "cloudy with wet dew", meaning on Galloper's log legend that the moon or stars would be visible at times. Fog signals were not commenced by Galloper until 0445 (the collision was at 0416 or 0418) and not until 0600 was it overcast and misty at Galloper. "Misty * * * is not quite as thick as fog but enough to cause objects to be...