SKIBS A/S SILJESTAD v. S/s Mathew Luckenbach

• Decision Date: 21 March 1963
• Citation: 215 F. Supp. 667
• Parties: SKIBS A/S SILJESTAD, as owner of the m/v Francisville, Libelant, v. S/S MATHEW LUCKENBACH and Luckenbach Steamship Corporation, Inc., Respondents. LUCKENBACH STEAMSHIP CORPORATION, Inc., as owner of the S/S Mathew Luckenbach, Cross-Libelant, v. M/V FRANCISVILLE and Skibs A/S Siljestad, Cross-Respondents. The EAST ASIATIC CO., Ltd., et al., Libelants, v. S/S MATHEW LUCKENBACH and Luckenbach Steamship Corporation, Inc., Respondents.
• Court: U.S. District Court — Southern District of New York

215 F. Supp. 667

SKIBS A/S SILJESTAD, as owner of the m/v Francisville, Libelant, v. S/S MATHEW LUCKENBACH and Luckenbach Steamship Corporation, Inc., Respondents.

LUCKENBACH STEAMSHIP CORPORATION, Inc., as owner of the S/S Mathew Luckenbach, Cross-Libelant, v. M/V FRANCISVILLE and Skibs A/S Siljestad, Cross-Respondents.

The EAST ASIATIC CO., Ltd., et al., Libelants, v. S/S MATHEW LUCKENBACH and Luckenbach Steamship Corporation, Inc., Respondents.

United States District Court S. D. New York.

March 21, 1963.

COPYRIGHT MATERIAL OMITTED

Haight, Gardner, Poor & Havens, New York City, for Skibs A/S Siljestad, as owners of the m/v Francisville; Charles S. Haight, Gordon W. Paulsen, Richard G. Ashworth, New York City, of counsel.

Burlingham, Underwood, Barron, Wright & White, New York City, for Luckenbach S.S. Corp., Inc., as owner of the s/s Mathew Luckenbach; Eugene Underwood, Kenneth H. Volk, New York City, of counsel.

Bigham, Englar, Jones & Houston, New York City, for East Asiatic Co., Ltd., and others, as owners of the Francisville cargo; Donald M. Waesche, Jr., Julian S. Gravely, Jr., New York City, of counsel.

THOMAS F. MURPHY, District Judge.

These are cross-libels in admiralty by the owners of two radar equipped vessels, the Norwegian flag m/v FRANCISVILLE and the United States flag s/s MATHEW LUCKENBACH, arising out of a collision between them in Buzzards Bay in dense fog on July 29, 1959. Another libel is by cargo aboard the FRANCISVILLE to recove from the MATHEW LUCKENBACH interests general average payments totaling $60,000. All libels were consolidated for trial.

The principal issue is whether the MATHEW LUCKENBACH was contributorily at fault since the FRANCISVILLE concedes hers. We will first enumerate the undisputed facts.

The FRANCISVILLE is a 6087 gross ton twin-screwed motor vessel 467.5' long, 59' beam, and had a draft on departure of 12' 8" forward, 17' 5" aft. The MATHEW LUCKENBACH is a 7870 gross ton C-3 single screw vessel, 492' long, 69.5' beam, and had a draft on departure of 15' forward, 19' 6" aft. The FRANCISVILLE was equipped with a Radio Marine radar model CR-101 with a 12" scope. The MATHEW LUCKENBACH was equipped with a Raytheon Pathfinder radar with a 16" scope. The FRANCISVILLE was equipped with a gyro compass repeater and a SAL log repeater; the MATHEW LUCKENBACH, with a course recorder.

The FRANCISVILLE left New York at 1824 on July 28, 1959, bound for Boston via Rhode Island Sound, Buzzards Bay and Cape Cod Canal. The MATHEW LUCKENBACH, bound from Boston to Philadelphia via Cape Cod Canal, Buzzards Bay, Rhode Island Sound, etc., left Boston at 0300 July 29, 1959. She was delayed at the entrance of the Cape Cod Canal because of fog, as were two other vessels, the Dutch flag KAMPERDYK and the Swedish flag VASAHOLM. When the fog lifted she proceeded through the Canal past the Cleveland East Ledge Light at the southerly end of the canal at 0442 July 29, 1959, followed by the KAMPERDYK and the VASAHOLM.

The FRANCISVILLE picked up her coast pilot, Begelman,¹ off Block Island at 0348 on July 29th and from then on the master, Nyhuus, second officer Steiro and helmsman Thommensen, were on the bridge with the pilot at the conn. On the bow was the lookout, Settei. She came abeam of whistle buoy RW at 0432 and Buzzards Bay Light Vessel at 0535, maintaining a speed of 15¼ knots in dense fog and sounding fog signals. The tide was ebbing.

The MATHEW LUCKENBACH came abeam of buoy BB on her starboard at 0517 and set a course of 245° for buoy 3HC. She encountered fog at 0524 and started to sound her fog signals at regular intervals. Thereafter and until the collision the master, Hodson, coast pilot, Towne and second officer, Kaldefoss, were on the bridge with the pilot at the conn and an able-bodied seaman, Bauer, at the wheel. On the bow was lookout, Clemente. Her speed, at least until 0532, was 15½ knots.

At about 0536 the MATHEW LUCKENBACH observed the pip of the FRANCISVILLE on her radar eight miles distant and about a half-mile off Buzzards Bay Light Vessel. At no time did those on the bridge of the FRANCISVILLE observe on her radar the MATHEW LUCKENBACH or her two following vessels, the KAMPERDYK and the VASAHOLM, although she picked up the buoys and navigational aids on her northeast course to 3HC.

The FRANCISVILLE and the MATHEW LUCKENBACH collided at approximately 0549 and almost immediately the electricity on the FRANCISVILLE failed and she let go her anchor shortly thereafter. The FRANCISVILLE'S speed at the moment of collision was 10.9 knots and her heading 026½°.

In dispute are the various times involved, the bridge and engine room orders and records thereof, the time of collision, the angle of collision, the place of collision, the speed of the MATHEW LUCKENBACH, her use of her radar and, naturally, the credibility of the witnesses.

The FRANCISVILLE by formal amendment to her pleading has admitted that she failed to proceed at a moderate speed in fog and was in contributory fault. Pursuant to a pretrial order the issues are defined as follows: "The issues of fact and law are whether the MATHEW LUCKENBACH was contributorily at fault and if she was, whether she is entitled to the benefit of the Major-Minor Fault Rule."

The FRANCISVILLE'S interpretation of the events and the causes of the collision is as follows:

Proceeding northeasterly from Block Island on a course of 040° with her radar picking up the buoys she came abeam of Buzzards Bay Light Vessel at approximately 0535 leaving the lightship a halfmile to starboard as observed by her radar. Continuing on 040° until abeam of buoy #1 (sometimes called 17 foot spot buoy) she changed course to 037° in order to get as close as possible to buoy 3 HC thereby providing a good departure point for the Cape Cod Canal approach. When 3HC was visually abeam to port a couple of ship lengths distant the FRANCISVILLE hauled to starboard for the next course 065° so that with the tidal set to starboard she would make good the 066° course for buoy BB.

Unaware of any other vessel (although her radar had worked well up to 3HC) she continued at unreduced speed sounding fog signals and relying upon her twin screws for backing power to take off her way in case of an oncoming vessel. She steadied on 065° and continued on that course for two or three minutes. Suddenly the MATHEW LUCKENBACH was sighted very close on the starboard bow at high speed. In rapid succession the FRANCISVILLE sounded a two-blast signal, put her rudder hard port, stopped her engines and sounded a danger signal. Upon seeing the MATHEW LUCKENBACH turning rapidly to her starboard the pilot ordered full astern and hard starboard in an effort to swing the FRANCISVILLE'S stern away from the MATHEW LUCKENBACH. The MATHEW LUCKENBACH'S bow struck the starboard side of the FRANCISVILLE amidships at right angles in the way of her engine room shorting her electric power.

FRANCISVILLE'S claim of the MATHEW LUCKENBACH'S movements is that after she came through the Canal followed by the KAMPERDYK and the VASAHOLM each proceeded at full speed ahead until they reached the vicinity of buoy BB where New York bound vessels turn to starboard and head for buoy 3HC. Although 3HC bears 246° from BB (the reciprocal of 066° course of the FRANCISVILLE) the MATHEW LUCKENBACH shaped her course to a heading of 245°. This heading of 245° with the southerly set of the half knot ebb tide brought the MATHEW LUCKENBACH along the line of buoys on the port hand heading on buoy 2B located 1 1/3 miles from 3HC. The MATHEW LUCKENBACH, passing an eastbound vessel, reduced her speed from full ahead sea speed to full ahead maneuvering speed at 0527. The KAMPERDYK reduced her speed to half ahead; the VASAHOLM stopped her engines for three minutes at 0538 when passing an eastbound vessel and put them half ahead at 0541. The KAMPERDYK continued at half speed until 0546, as did the VASAHOLM.

From buoy BB the MATHEW LUCKENBACH first altered her course 5° to starboard for about two minutes, then to 243° for six minutes and returned to 245° at 0536. It was at this juncture that she first spotted the pip of the FRANCISVILLE eight miles away on her port bow when the FRANCISVILLE was abeam of the Buzzards Bay Light Vessel. When the MATHEW LUCKENBACH was near the Penikese Island Buoy she ordered 60 rpm's, still keeping her engines at full speed ahead. This gave her a speed of 15½ knots on a course 245°.

It is the claim of the FRANCISVILLE that had the MATHEW LUCKENBACH stayed on this course no collision would have occurred and all the vessels would have passed her starboard to starboard which she asserts is not unusual in these waters. Instead, without making any plot of her radar observations, the MATHEW LUCKENBACH thought that the FRANCISVILLE was going too far northward toward 3HC and at 0542½ rang for slow speed and changed her course 5° to starboard. These two maneuvers, the FRANCISVILLE claims, put her on a collision course and caused those on the MATHEW LUCKENBACH to be unable to follow and plot the speed and course of the FRANCISVILLE. It is argued that the slow speed order only slightly diminished her way since it takes considerable time for her to run off her momentum even when the engines are stopped.

At 0545 the MATHEW LUCKENBACH, becoming frightened of a possible collision, stopped her engines and altered her course to starboard again (instead of stopping she should have gone astern it is claimed). Thus by her repeated starboard alterations the MATHEW LUCKENBACH instead of (as she thought) allowing more room for a port to port passing was navigating to cross the course line of the FRANCISVILLE from the FRANCISVILLE'S starboard to port.

At 0548, when the MATHEW LUCKENBACH heard the two-blast signal from the FRANCISVILLE, she rang slow astern and then stop engines and blew a danger signal. Seconds later the FRANCISVILLE came into sight on her port bow and at 0548½ the MATHEW LUCKENBACH'S pilot...