THE CITY OF ROME

• Decision Date: 26 February 1928
• Citation: 24 F.2d 729
• Parties: THE CITY OF ROME. THE S-51. OCEAN S. S. CO. OF SAVANNAH v. UNITED STATES.
• Court: U.S. District Court — Southern District of New York

24 F.2d 729 (1928)

THE CITY OF ROME THE S-51 OCEAN S. S. CO. OF SAVANNAH v. UNITED STATES.

District Court, S. D. New York.

February 26, 1928.

Barry, Wainwright, Thacher & Symmers, James K. Symmers, and Earle Farwell, all of New York City, for Ocean S. S. Co. of Savannah.

Charles H. Tuttle, U. S. Atty., J. Frank Staley, Sp. Asst. Atty. Gen., Horace M. Gray, and Charles A. MacDonald, Sp. Asst. U. S. Attys., all of New York City.

Bigham, Englar & Jones, T. Catesby Jones, W. J. Nunnally, Jr., and James W. Ryan, all of New York City, for claimants Dobson and others.

Duncan & Mount, of New York City, and Arthur C. Muller, Jr., of Brooklyn, N. Y., for claimant Benoit.

William A. Ryan, of Brooklyn, for claimants Elser and others.

Silas B. Axtel, of New York City, and Elizabeth Robinson, for claimant Mims.

Kellogg & Rose, of New York City, for claimant Crawford.

J. Ralph Hilton, of New York City, for claimant Noble.

David C. Cohen, of New York City, for claimant McCarthy.

GODDARD, District Judge.

Proceeding brought by the owner of the steamship City of Rome to limit its liability under sections 4283 to 4287 of the Revised Statutes (46 USCA §§ 183-187; Comp. St. §§ 8021-8025), and a suit by the owner of the City of Rome against the United States under the Public Vessels Act (Act March 3, 1925, 43 Stat. 1112, c. 428; 46 USCA §§ 781-790; Comp. St. §§ 1251¾ — 1 to 1251¾ — 10), for damages sustained by the City of Rome as a result of a collision between the City of Rome and the United States submarine S-51, in the Atlantic Ocean, off Block Island, on September 25, 1925, at 10:24 p. m.; the submarine having sunk almost immediately after the contact, with the loss of the lives of 33 of her officers and crew.

The City of Rome was a passenger and freight steamer and was on one of her regular voyages from Savannah to Boston. She was 331 feet long, 46 feet beam, with a net tonnage of 2,300 and at the time of the collision, was drawing about 20 feet aft and 13½ feet forward. She had a full crew consisting of 78 members, including officers. She carried the regulation masthead, stern, and side lights, and her deck saloon, and cabins were brilliantly lighted.

The S-51, a submarine of the United States Navy, was 240 feet 6 inches long, 25 feet beam, with a surface displacement of upwards of 1,000 tons; she had a flush deck, with a conning tower, which was approximately 10 feet long and the forward end of which was located 116 feet from her stem. Her navigation lights consisted of a white light located on the forward end of the conning tower or chariot bridge 11 feet 2 inches above the hull, referred to as a masthead light; a white light on the after end of the conning tower, 10 feet 6 inches above the hull, 105 feet from the stern, and referred to as her stern light; a red light and a green light on the port and starboard sides respectively. A naval officer, who had made tests in behalf of the government, testified that the greatest distance the red light was visible was 1.6 miles and the white light 5.3 miles. Another witness testified that he had not been able to see similar colored side lights on a submarine until he was within 200 yards of it. Each side light was set in a recess of the chariot bridge 7½ feet above the hull; they were not fitted with inboard screens projecting 3 feet forward from the lights, but the sides of the recesses were relied upon for screens. The stern light was not screened, except by the conning tower shears. Her station was New London, and at the time she was engaged in an "availability run," commencing the 12-hour portion of her surface run at 6 p. m. on September 25th. The last communication from her was received by a sister ship, the S-50 at 8 o'clock that evening reporting her position at 8 o'clock as 5 miles north of Sandy Point Light on Block Island. Her movements between that time and the time of the collision are unknown.

The City of Rome passed Block Island, with the south light on Block Island approximately 3 miles abeam at 9:18 p. m., and where the collision occurred, as evidenced by the position of the submarine, which sank almost immediately after the contact, was 11.6 miles distant from that point, indicating that she, during this 1 hour and 6 minutes, had been traveling at an average speed of about 10.45 miles per hour, and the record indicates no change of speed from the time she had the light on Block Island abeam until she came in contact with the submarine. There was a breeze of 15 or 20 miles an hour from the northeast; the night was dark, but clear; sea choppy.

At 2 minutes after 10 o'clock, the bow lookout of the City of Rome, Adamson, sighted and reported to the watch officer in the pilot house, third officer, Dreyer, who also observed it, a white light bearing four points on the starboard bow; the lookout estimating the light as between 5 and 6 miles distant. The lookout continued to watch the light, which he says "stayed on the same bearings" and "came closer" — "the light was growing brighter." At 10:04 the master of the ship, Capt. Diehl, entered the pilot house and took charge of her navigation, and, seeing the white light, inquired from the third officer what it was, who replied that he thought it might be a light on "a tow going to the westward, or some small Coast Guard boat." The captain says he then walked to the port side of the ship to accustom his eyes to the darkness, and remained there, in some of his testimony 17 minutes, and in other testimony 3 or 4 minutes, when he returned to the starboard side and watched the light from time to time; that it remained on the same bearing; that for 20 minutes after he first entered the pilot house there was an uncertainty in his mind as to the character of the craft and as to the direction in which it was headed, but that during that time he blew no whistle; that about 15 minutes after his return to the starboard side he looked through the glasses, and it seemed to be "quite brighter, and I imagined I saw a reflection of the light on the water"; that the light was getting closer and brighter, and he ordered the helm to starboard, but did not blow two whistles, or give any warning of his change of course; that at this time the white light was 500 to 600 feet away; that, some 20 seconds after the starboard helm movement, a red light suddenly appeared on the other ship, a little to the right and lower than the white light; that when he saw the red light he swung hard aport, blew the danger signal, and signaled for full speed astern; that the submarine was struck on her port side, forward of her lights, and immediately she swung around on the starboard side of the City of Rome, parallel with her; that the collision occurred 30 to 35 seconds after the red light appeared; that when the submarine came within the illumination of the deck lights of the City of Rome, some 60 or 70 feet, he saw that it was a submarine crossing his course at almost right angles.

The engine room log of the City of Rome shows that no signal for reverse or change of speed was received until 5 seconds after the collision. The testimony of the engineer in charge of the engine room is that no signal was received until after he had felt a sudden and violent jolt, which threw him against a bench near him, indicating that the ship had come in contact with another vessel.

The stem of the City of Rome penetrated the outer and inner hull of the submarine, only 3 members of her crew surviving; 6 officers and 27 enlisted men of the navy losing their lives, among them the claimants' decedents. The stem of the City of Rome came in contact with the S-51 at a point 31½ feet forward of the port side light. The testimony of the master and the third officer of the City of Rome, as indicated by oral statements and diagrams, is that the vessels came together at an angle variously estimated between 45 and 90 degrees. Two surveyors called by the petitioner testified that they examined the S-51 when she was in dry dock after the collision, and that the angle of collision was 72 degrees. There was some criticism that the measurements made by the surveyors were incorrect, as they had assumed that the submarine was lying parallel with the sides of the dry dock, when in fact her bow was to the left; but, if that were so, it would tend to make the angle of collision greater than the 72 degrees. Commander Ellsberg, who also examined the submarine, testified that the angle of collision was 40 degrees. When the submarine was examined by divers as she lay on the bottom after the collision, her heading was almost due north and rudder was "hard right."

Capt. Diehl has testified before the Naval Board of Inquiry and before the Board of Steamboat Inspectors, and such portions of his testimony as were offered in evidence at this trial have been taken into consideration, but not the testimony or record in the criminal proceeding.

During the present trial, Capt. Diehl was examined and cross-examined at length, and, after observing his manner of testifying and his general demeanor, my conclusion is, and I think this is supported by circumstances, that Capt. Diehl, the lookout, and the third officer at the wheel of the City of Rome saw the white masthead light, and but 30 to 35 seconds before the collision saw the red light to the right of this light, and that those on the City of Rome did not see the stern light until at or about the time the contact occurred; that when the white light was first seen it was upwards of 4 miles away and four points on their starboard bow, and that its bearing did not change, but the light grew brighter and came closer.

In order to determine what fault or combination of faults brought about the collision between the City of Rome and the S-51 it must first be ascertained what the situation was, and as the only survivors on the submarine were those who were below deck, and who neither saw nor knew what happened, their relative courses, and...