Polarus Steamship Co. v. THE T/S SANDEFJORD

• Court: U.S. Court of Appeals — Second Circuit
• Writing for the Court: MEDINA, LUMBARD and WATERMAN, Circuit
• Citation: Polarus Steamship Co. v. THE T/S SANDEFJORD, 236 F.2d 270, 1956 A.M.C. 1779 (2nd Cir. 1956)
• Decision Date: 20 August 1956
• Docket Number: 366,Dockets 24002,24003.,No. 365,365
• Parties: POLARUS STEAMSHIP CO., Inc., as owner of THE T/S POLARUSOIL, Libelant-Appellee, v. THE T/S SANDEFJORD, her engines, boilers, etc., and Viriks Rederi A/S (Haldor Virik, Manager), Respondents-Appellants. VIRIKS REDERI A/S (Haldor Virik, Manager) as owner of THE T/S SANDEFJORD, Cross-Libelant-Appellant, v. THE T/S POLARUSOIL, her engines, boilers, etc., and Polarus Steamship Co., Inc., Cross-Respondent-Appellee.

236 F.2d 270 (1956)

POLARUS STEAMSHIP CO., Inc., as owner of THE T/S POLARUSOIL, Libelant-Appellee, v. THE T/S SANDEFJORD, her engines, boilers, etc., and Viriks Rederi A/S (Haldor Virik, Manager), Respondents-Appellants.

VIRIKS REDERI A/S (Haldor Virik, Manager) as owner of THE T/S SANDEFJORD, Cross-Libelant-Appellant, v. THE T/S POLARUSOIL, her engines, boilers, etc., and Polarus Steamship Co., Inc., Cross-Respondent-Appellee.

Nos. 365, 366, Dockets 24002, 24003.

United States Court of Appeals Second Circuit.

Argued May 18, 1956.

Decided August 20, 1956.

Haight, Gardner, Poor & Havens, New York City (MacDonald Deming and Gordon W. Paulsen, New York City, Richard G. Ashworth, New York City, of counsel), for cross-libelant-appellant.

Dow & Symmers, New York City (Wilbur E. Dow, Jr. and William A. Wilson, New York City, of counsel), for libelant-appellee.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

MEDINA, Circuit Judge.

At about two o'clock in the morning of July 11, 1951, two tankers, each over four hundred feet long, approaching one another in a fog from opposite directions, collided some forty odd miles at sea in the travelled highway off Barnegat Inlet on the New Jersey coast. The district judge found that one of the vessels, the Sandefjord, was solely to blame, and she appeals.

The Polarusoil, which had no radar, was bound for Texas on a southerly course and the Sandefjord was heading north from Philadelphia to New York. Except for the fog, which "was a changing, fluid thing," nothing interfered with navigation, as there was no sea or wind and the current was negligible.

The Sandefjord was equipped with navigational radar in good order and had a full speed under the prevailing conditions of about fourteen knots through the water. As the fog closed in, she reduced her speed only two knots. Despite hearing five or six fog signals from the Polarusoil, and observing in the radar a vessel some miles ahead off her port bow, she maintained this excessive speed of twelve knots until she sighted the Polarusoil close aboard, when the Sandefjord ordered her engines in reverse. Her fault is clear and was conceded at the trial. She contends, however, that the Polarusoil was also to blame.

The Polarusoil's full speed was about twelve knots, but because of the fog she was proceeding at half speed, or about six knots through the water. The first warning to those aboard the Polarusoil that another vessel was close by was the fog whistle of the Sandefjord two minutes or thereabouts before she was hit. She stopped her engines immediately and, on hearing the second blast, she put her engines full astern. Then for the first time, the oncoming Sandefjord was visible to the Polarusoil. At the time of impact the Polarusoil "was dead in the water or going astern slowly."

There were a number of other factors, such as the standby order to the engine room of the Polarusoil and her trim, as well as the failure of those in command of the Sandefjord to make proper use of her radar. Indeed, what happened here demonstrates how radar may, when not properly used, increase the chances of collision. Had successive observations been plotted to determine the course and speed of the Polarusoil, which was plainly visible on the radar screen when about seven miles away, the ships would probably have passed one another in safety. But the master of the Sandefjord made no such calculations; he merely guessed that the Polarusoil was steering a course parallel to the coastline and moving to the left of the Sandefjord. While a matter of conjecture, it seems not unlikely that the Sandefjord would have proceeded more cautiously had she not been equipped with radar, which, under the circumstances, gave a false sense of security.

We cannot disturb the finding that the Sandefjord was solely to blame. There was no violation by the Polarusoil of Article 16 of the International Rules, 33 U.S.C.A. § 92, requiring vessels to proceed in foggy weather "at a moderate speed, having careful regard to the existing circumstances and conditions."

"Moderate" speed is undoubtedly less than full speed. The Pennland, D.C.S.D.N.Y., 23 F. 551; The State of Alabama, D.C.S.D.N.Y., 17 F. 847. But the term is a relative one, and precisely how much less the statute requires depends on the peculiar circumstances of each case. The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148; The Bayonne, 2 Cir., 213 F. 216; Quinette v. Bisso, 5 Cir., 136 F. 825, 5 L.R.A.,N.S., 303, certiorari denied 199 U.S. 606, 26 S.Ct. 746, 50 L.Ed. 330; The State of Alabama, supra; see also, Shope, Collision at Sea 341 n. 34 (1903).

True it is that there are statements that in congested harbor waters, and at...