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    THE AGWIDALE. THE STAD HAARLEM.
    District Court, S. D. New York.
    May 21, 1945.

      Burlingham, Veeder, Clark & Hupper, of New York City (Chauncey I. Clark and Charles E. Wythe, both of New York City, of counsel), for Agwilines, Inc.
    Kirlin, Campbell, Hickox, Keating & Mc-Grann, of New York City (Robert S. Erskine and John F. Gerity, both of New York City, of counsel), for the Stad Haar-lem.
   LEIBELL, District Judge.

These cross suits in Admiralty were brought by the respective owners of the steamships Agwidale and Stad Haarlem for damages sustained in a collision on the morning of March 16th, 1943, about 2:24 A.M., while both vessels were in convoy. The Stad Haarlem was #82, the second ship in the 8th column and the Agwidale was #92, the second ship in the 9th column. The convoy of 65 ships, in 11 columns, was bound for North. Africa and was on a course of 237° true (247° 30' standard). By order of the Admiralty the vessels were proceeding blacked-out at a speed of 7% knots. The prescribed convoy distances were 5 cables between columns and 3 cables between vessels in the same column, but there was a tendency for the columns to draw closer together at night. The convoy commodore was on vessel #61. The vice-commodore for the starboard section of the convoy was on vessel #91.

The weather was clear. The sea was moderate with just a little swell. The wind was S. W. and about force 5 on the Beaufort scale. There was a half moon. Visibility was good, although there were some clouds. Two columns of the convoy were visible from either side of a vessel.

The Stad Haarlem had an overall length of 385 feet; a beam of 52 feet; a depth of 28 feet 6 inches, a gross tonnage of 4518 and a net tonnage of 2737. She was built in 1929 and had 3 Scotch Furance boilers, a triple expansion engine with an indicated horsepower of 2250, and a right handed propeller with a 17% foot pitch. At convoy speed of 7% knots the Stad Haarlem’s propeller turned about 44 revolutions. Her full speed loaded was 9% knots. She was formerly owned by the Halcyon Line, a Dutch concern, and during the war was operated by the Netherlands Shipping Committee for the Royal Netherlands Government. At the time of the collision she was under charter to the British Ministry of War Transport.

The Agwidale was owned by Agwilines Inc. She was 385 feet long, had a draft around 18 feet, 21 feet aft. Her tonnage was 3763 gross and 2969 net. She was powered by reciprocating engines and her speed in the convoy was 7% knots on about 55 revolutions. She had a right hand propeller with a pitch of 18 feet. At full speed under draft she could make 10 knots.

At the time of the collision the Stad Haarlem was partly loaded with Army stores, coal, and 1600 tons of ballast, to á draft of about 24 feet. She was struck by the Agwidale on the starboard side, about 65 feet from the stern at the after part of hatch #4, which was the first hatch aft of the engineroom. Several plates were pushed in for about one-half foot to a foot; the deck was set up; the sailors quarters were leaking; a raft was smashed; and it appeared that there was damage under the water line. Shortly thereafter the Stad Haarlem had to drop out of the convoy, but she managed to reach a bay where she was beached and temporarily repaired, before going to Scotland for repairs in dry dock. The Agwidale’s bow was bent to the right. She was able to stay with the convoy until she reached a port in Africa: She was fully loaded.

The Agwidale’s Version of How the Collision Occurred.

The navigation of the Agwidale was under the supervision of William F. Wright, the second officer, who was on the bridge. The master, John F. Manuel, was in his cabin aft of the wheelhouse. Tuchband, an A. B. seaman, was wheelsman; a lookout, Ritzberg, was on the forecastle. The standard compass on the bridge had been checked with the steering compass in the wheelhouse several times in the 2% hours preceding the accident. The convoy course was 248° on her standard compass and 235° on her steering compass. The Agwi-dale was on her course following her column leader #91, proceeding at the convoy speed of 7% knots on about 55 revolutions. The columns of the convoy converged during the night to a point where they were about 2 cables apart on her port and starboard sides.

About one-half hour prior to the collision second officer Wright observed that the Stad Haarlem had moved ahead of her proper position. When she was less than 2 cables away he observed that the Stad Haarlem was swinging to starboard, toward the Agwidale’s column. The lookout Ritzberg signaled on his bell at the forecastle — 2 bells to indicate a ship on the port bow. The second officer, Wright, blew 4 short blasts on the whistle, ordered the rudder hard right and then gave 1 blast on the whistle. At the same time (2:24) he stopped her engines. The Stad Haarlem continued to swing towards the Agwidale and Wright ordered the Agwidale’s engines full speed astern at 2:25 and blew 3 blasts. The Stad Haarlem headed across the Agwi-dale’s bow, and put her rudder hard left, which swung her starboard quarter so that it collided with the Agwidale’s port bow. The angle of collision was 75°.

The Stad Haarlem swung back 5 or 6 points to port on her hard left rudder, towards her own column. The Agwidale swung 4 or 5 points to starboard under her hard right rudder and stopped between the ninth and tenth columns, athwart the convoy. The ships in the ninth column passed on the Agwidale’s stern in a direction starboard to port, and the ships in the tenth column passed on her bow in the same direction.

Captain Manuel of the Agwidale reached the bridge about one-half minute after the collision and immediately ordered the engines stopped at 2:27. He was mounting the ladder to the bridge when the collision occurred.

It is contended for the Agwidale that she had not veered from her convoy course, but that at all times prior to the collision she followed vessel #91 in the convoy. No signals were heard from the Stad Haarlem. After the collision the master ordered the “out of command” lights switched on (2 red lights). The witnesses for Agwidale testified that the Stad Haarlem also put up ¿ red lights after the collision but the Stad Haarlem’s officers say they put up but one. The Agwidale allowed the convoy to pass and then fell in behind the fourth ship in the ninth column. The following morning she proceeded to regain her position astern of #91.

The Agwidale charges that the Stad Haarlem was at fault because (1) she was off her convoy course in the eighth column and had swung over into the path of the Agwidale in the ninth column; and (2) she failed to maintain a proper lookout in that (a) she had no bow lookout, (b) her deck officer in charge of navigation was not a proper lookout, (c) he was away from his station at the starboard end of the bridge immediately prior to the collision and did not see the Agwidale until just before the impact, (d) the lookout on the port wing of the bridge could not see the starboard side because the wheelhouse blocked his view. The Agwidale also charges that the Stad Haarlem was (3) not properly handled in the face of the collision, in that (a) her engines were put full speed ahead instead of full astern, and (b) she was given a hard-a-port rudder which caused her stern to swing over to the right, towards the bow of the Agwidale.

The Stad Haarlem’s Version

The navigation of the Stad Haarlem was in charge of her second officer, Adrianus Lagendyk. The master, Johannes Smit, was in his cabin, from which he could communicate with the bridge through a speaking tube. The second officer was in charge of navigation and also acted as lookout for the starboard side. Jan Mari-nus Leenhouts, a bos’n with 20 years experience, was at the wheel. There was a lookout, Maarten Stollc, on the port side of the bridge, but no lookout in the bow because there was a half moon and he was not needed.

The Stad Haarlem’s position in the convoy was #82, the second vessel in the eighth column. She was following her column leader at all times, travelling at 7% knots on about 44 revolutions. Shortly after 02:0Q the second mate observed that the Agwidale was abeam on the starboard side, and that #72 was a little abaft of the port beam. All vessels at that time were in their proper columns. Later he “saw suddenly because the bridge is closed” the Agwidale about 2 or 3 cables off the Stad Haarlem’s starboard side, heading straight for the Stad Haarlem slightly ahead of her beam, at an angle of about 80°. The second officer then ordered the wheel port — hard-a-port — gave 2 short blasts on the whistle and telegraphed full speed ahead. About two minutes elapsed between the time the second officer first observed the Agwidale swinging towards the Stad Haarlem and the collision. The second officer guessed that the Stad Haarlem went 5 or 6 points under the hard-a-port rudder. He had the rudder hard-a-port for about 2 minutes before the collision. The bow of the Agwi-dale collided rather heavily with the Stad Haarlem’s starboard quarter, in the after part of hatch 4, at an angle of 80°.

After the collision Lagendyk ordered the Stad Haarlem’s wheel hard to starboard. The Agwidale fell alongside and dropped astern and later displayed two red lights. No signals were sounded by the Agwidale, except a danger signal, a series of short blasts, at the time of the collision.

When the master of the Stad Haarlem, Captain Smit, came to the bridge about a minute after the collision (Lagendyk had called him) he noticed that the Stad Haar-lem was about in convoy course, that #81 was a little on the starboard bow, about 1/2 a point, and that the Agwidale was drifting astern between the eighth and ninth columns, and was showing two red lights. The Agwidale was then about 2 cables from the bridge of the Stad Haarlem. The wheelsman, bos’n Leenhouts, informed the master that the course had been altered about 3 points to the port at the time of the 2 blasts of the Stad Haarlem, but that she had been brought back to the convoy course on a starboard rudder immediately after the collision.

The Stad Haarlem put up one red light and continued in convoy position for about fifteen minutes after collision. The master endeavored to contact the Agwidale by signal lights without success. As the water gained in her hold, the Stad Haarlem dropped back between the seventh and eighth columns and made for the nearest port, Donegal Bay, where she was beached by the stern.

The Stad Haarlem charges that the Ag-widale was at fault in that (1) she came over to the eighth column and collided with the Stad Haarlem; (2) the Agwidale’s steering compass was unreliable and her wheelsman inexperienced; (3) through the indecision of the Agwidale’s watch officer the necessary measures to avoid the collision were not promptly taken; (a) he stopped his engines for a minute before reversing them and (b) he should have gone full speed astern at once.

The argument is made that the stories of the second officer and the wheels-man of the Agwidale as to the course followed by their vessel and by the Stad Haarlem involve a physical impossibility, when the angle of impact is considered. But the same demonstration can be made and a similar result achieved when the stories of the second officer and the wheelsman of the Stad Haarlem are plotted on paper. Further, the stories told by each pair in exoneration of their own ship are irreconcilable. The Agwidale claims that the Stad Haarlem came over to the ninth column and crossed the bow of the Agwidale. On the other hand the Stad Haarlem states that the Agwidale came over to the eighth column and struck the Stad Haarlem. For neither story can it be said that it is wholly ■ credible and consistent with itself and with the courses of the steamers, so that neither one can be selected as the more probable and as a proper basis for a judgment. The gniding principle of The Alhambra, D.C., 25 F. 846, is of no avail in this case.

The Agwidale’s Compasses

One of the faults charged to the Agwi-dale is that her wheelhouse steering compass was badly off. A reading of the testimony of second officer Wright and of Captain Manuel leaves one with the impression that the steering compass had been giving some trouble, especially when the degaussing system was off as it was at the time of the collision. Captain Manuel testified that the reason for the error in the compasses was that they had been corrected with the degaussing system on. When the system was off the pilot house compass varied considerably, while the standard compass varied one or two degrees. He said it was “a condition that would have to be watched, not necessarily unreliable”; and that “our compasses were steady. While they were out they did not vary to any extent at all.” In order to hold the convoy course of 237° true the standard compass was at 248° and the wheelhouse compass was at 235°. The captain thought that the deviation was not excessive for a steering compass “with the degaussing outfit and no corrections.”

The second officer, Wright, testified that he checked the courses 235° on the steering compass and 248° on the standard when he went on duty at midnight and that he checked the wheelhouse compass several times between Q1:20 and the time of the collision (about 02:26%). There were two deviation charts, one to be used when the degaussing was on, and the other with it off. The compasses were more accurate with the system on. Wright knew that the wheelhouse compass had such an unusual degree of deviation that it required watching. He testified that he looked at the standard compass right after he gave the right rudder order, between 02:24 and the time of collision, and the reading was 248°. The Agwidale’s wheelsman, seaman Tuchband, testified that the ship was not steering exactly on 235° all the time; she would go 1° to 3° one way or the other, but did not go more than 4° to the left of 235° at any time.

Considering the explanation of the Agwidale’s compasses and their variation given, as above stated, I am of the. opinion that the steering compass was giving trouble and that its condition was responsible for some of the Agwidale’s departure to the left from her convoy course in the ninth column, so that she was over near the eighth column when the collision took place. Her wheelsman was not very experienced. He had been going to sea for only about a year, during which time he had steered four ships.

The Agwidale was Considerably Off Her Course, to the Left

The testimony of the Agwidale’s captain and of her second officer, was that the collision took place in the ninth column or a little to the right of the ninth column, and that after the collision the Agwidale fell astern between the ninth and tenth columns. The captain did' not see the collision. He was in his cabin at the time he heard the whistles of his own ship. He put on his shoes and sweater and left his cabin for the bridge. The collision occurred as he was ascending the ladder to the bridge. He testified that when he reached the bridge the Stad Haarlem was on the Agwidale’s port bow proceeding ahead, about 50 feet away. The Agwi-dale was swinging to the right. He looked around to see the Agwidale’s position with regard to the rest of the convoy. The Agwidale was in between columns. The ship astern was over the Agwidale’s starboard quarter and was going ahead. The ships in the convoy went ahead and the Agwidale fell in behind the last ship in the ninth c-olumn. The next morning he found that he was the fourth ship in the ninth column and he proceeded to regain his position as #92. He also testified that about 30 or 40 minutes after the collision, when the Agwidale was the rear ship of the ninth column of the convoy, he saw a ship flash on 2 red lights (not under control) — a ship in the position of #82, on the port bow ahead. He saw the 2 red lights for about half an hour, then that ship dropped astern out of sight of the convoy.

When Captain Manuel reached the bridge right after the collision the engines of the Agwidale were in full speed reverse. The Agwidale was swinging to the right. He testified that the other ship (the Stad Haar-lem) was not more than 50 feet away; the distance was opening up. His second officer Wright was at the telegraph, which was full astern. The Captain told Wright to stop the engines. By the time he got stopped the Stad Haarlem was about a thousand feet away, abeam of the Agwi-dale, heading evidently on her convoy course right ahead, with no more than 500 feet from her stern to the Agwidale’s port side. The Agwidale had been going astern. I believe that the Captain’s testimony shows that the collision took place between the eighth and ninth columns,. over near the eighth column.

The second officer of the Agwidale testified that when the Captain told him to stop the engines he was sent below to ring the emergency alarm and ascertain the damage. When he returned to the bridge the Stad Haarlem was a little to the port and ahead; she was between columns 8 and 9. Prior to the collision he saw her somewhat ahead on the port bow swinging over towards the Agwidale, which he says was in her proper place in the ninth column.

In my opinion the Agwidale had altered her course toward the Stad Haarlem, a vessel in a parallel column, without notice, and that that was a fault which contributed materially to the collision. The War Pointer, 4 Cir., 277 F. 718, at page 721.

The Stad Haarlem zms Somewhat Off Her Course, to the Right

I believe that the Stad Haarlem was also somewhat off her course, but not to the extent the Agwidale was. The Stad Haar-lem’s deck log entry and her engineer’s (Balje’s) testimony show that the collision occurred only a few moments after the Stad Haarlem’s second officer saw the Agwidale and gave the engine order for full speed ahead. It was at that time also that he gave the rudder order of hard-a-port.

The wheelsman, Leenhouts, testified that he was on the hard-a-port order altogether about four minutes and that about two minutes elapsed between the hard-a-port order and the collision. He testified that at the time of the hard-a-port order he was on the convoy course WSW, 237° true; that the collision occurred when the Stad Haar-lem had reached SW by S, 213° 45' in her swing to port; that she did not stop swinging to the left until she reached S by W, 191° 15', at about the time he got a hard starboard order. In other words, he stated that the Stad Haarlem was on a hard-a-port swing for four minutes and changed her course during that time from 237° true to 191° 15' true. He further testified that the Stad Haarlem had come back to SW by W by 1/2W, 231° true, when he was relieved at the wheel and was sent below to check the damage. He did not state specifically how long he was on the starboard rudder, but the inference to be drawn from his testimony is that he was on the starboard swing at least as long as he had been on the port swing. He said he was relieved about 9 or 10 minutes after he got the hard-a-port order.

Captain Smit of the Stad Haarlem testified that the telegraph was at full speed ahead when he came on the bridge about a minute after the crash, and he put it on half speed. He noticed at the time that the Stad Haarlem was about on convoy course; his leader was right ahead. He did not know how much the Stad Haarlem had altered her course to port at the time -of the two blasts because when he arrived on the bridge she was on course again, but the wheelsman told him about 3 points.

The second officer, Lagendyk, in his testimony expressed a guess that the Stad Haarlem had swung about 5 or 6 points under the hard-a-port rudder. He said that he did not know how long it took the Stad Haarlem to get back on her convoy course, because he was below making soundings in the hold.

If Captain Smit is correct in his statement that he arrived on deck one minute after the collision and that the Stad Haar-lem was then on convoy course, the Stad Haarlem could not have been on her starboard swing for an appreciable length of time (if at all) in getting on her convoy course after the collision. If the collision occurred a few moments after the Agwi-dale was seen approaching (as the Stad Haarlem’s log states) which was the time the full speed ahead and the hard-a-port orders were given, then the collision occurred at the beginning of the Stad Haar-lem’s swing to port, and thereafter her continued swing to port must have been towards her convoy course.

The captain’s story is inconsistent with the 'bos’n’s. Indeed the bos’n’s statement had the Stad Haarlem still swinging on her hard-a-port rudder for 2 minutes after the collision, before she started back on a starboard rudder. The captain’s story, that the Stad Haarlem was on her convoy course at the time he came on the bridge one minute after the accident, when fitted into the statement of the second officer and the bos’n that the Stad Haarlem was put on a hard-a-port rudder when the full speed ahead order was given and continued swinging to the left after the collision, warrants the conclusion that the Stad Haarlem must have been to the right of her convoy course, when the hard-a-port order was given.

Although the bos’n’s testimony reads well as to compass points and degrees, it is in conflict with the testimony of the engineer, the captain, and even the second officer. If the Agwidale struck the Stad Haarlem at an angle of 80° as the second officer testified, and if at the time of the collision the Stad Haarlem was on a course of 213° 45' (SW by S) as the wheelsman testified, then the Agwidale must have been on a course about 134° true, instead of the convoy course of 237° true. 'Just prior to the collision the Agwidale’s bow must have already fallen off somewhat to the right under the effect of her hard right rudder and her engines full speed in reverse, thus her original course before the hard right rudder would have been still further to the left. I am of the opinion that although the' Agwidale was off her course to the left at the time of the collision she was not off any thing like 80° or 100° as the bos’n’s story would place her. The collision took place between the eighth and ninth columns, but nearer to the eighth column. The Stad Haarlem at the time was not following her column leader and was off her course somewhat to the right. The Agwidale was not following her column leader and was considerably off her course to the left. Even at that, the accident could have been avoided if the Stad Haarlem had had a proper lookout.

The Stad Haarlem Failed to Maintain a Proper Lookout

The extract from the official log book of the Stad Haarlem, identified by Captain Smit, states:

“On Tuesday 16th March 1943 at 2.20 A. M. without having given any signal at all No. 92 vessel in the convoy came suddenly right up to us and a few moments later collided with my vessel and struck us starboard side after side hatch No. 4.”

This entry was written by the chief mate from the rough log. The watch officer writes the rough log.

Second officer, Lagendyk, who was in charge, testified that the time interval between first observing #92 (Agwidale) swinging toward his own vessel (Stad Haarlem) and the time of collision was about two minutes and that when he thus observed the Agwidale she was two or three cable lengths away. He says that he then ordered his wheelsman port, hard to port, blew two short blasts on the whistle and put the telegraph full speed ahead. When he first saw the Agwidale, his own vessel the Stad Haarlem was making about 7% knots. Her full speed was 9 to 9% knots. The speed does not increase suddenly to any extent. The bearing of the Agwidale when he saw her coming was slightly ahead of the Stad Haarlem’s beam and at an angle of about 80 degrees. He observed that there was danger of collision. He called Captain Smit right after the collision. Captain Smit testified that he was in his cabin when he heard his vessel blow two blasts and that the interval between that and the collision, a rather heavy bump, was about two minutes. He was still in his cabin when the collision occurred. It took the captain a little over a minute to.reach the bridge. When he came up on the bridge the Agwidale was falling away and was about 2 cables from the bridge of the Stad Haarlem. The bridge of the Stad Haarlem is about 220 feet from its stern.

The Stad Haarlem deck log entry was made on the day of the accident. If we take as the fact the entry that the Agwidale “came suddenly right up to” the Stad Haarlem “and a few moments later collided with” the Stad Haarlem, then the lack of a proper lookout on the Stad Haarlem is established beyond question because the visibility was good and the Agwidale should have been seen sooner. The New York, 175 U.S. 187, at page 204, 20 S.Ct. 67, 44 L.Ed. 126; The British Resource, 73 LI.L.R. 143. I believe that the log entry is reliable. It is supported by the testimony of the Stad Haarlem’s engineer, Balje, who testified that the order for full speed ahead came “just on the shock” — “at the same moment as the shock.” Full speed ahead was the first order given to the engine room when the second officer, Lagendyk, observed the Agwidale coming right at the Stad Haarlem.

The second officer probably delayed too long in the wheelhouse of the Stad Haar-lem when checking her course, and for that reason did not see the Agwidale until it was too late. Concerning his visit to the wheelhouse, the second officer was evasive in his answers. At first he denied it. Later he admitted that he had been there, but said that it was only a short while after the captain had spoken to him, slightly after two o’clock. But the bos’n, Leenhouts, who took over the wheel at 2:20 said on cross examination that the second officer “came in to check the course when the wheel was given over, in order to see whether it was all right,” and that he remained there “about a quarter of an hour” (manifestly an overstatement). Later, on redirect examination, he changed this estimate to two seconds to check the course (highly improbable) and added that then the second officer “went out again on the starboard side.” The bos’n also testified that the second officer had been in the wheelhouse checking the course about 2 or 3 minutes before he gave the bos’n the hard-a-port order. While the second officer was in the wheelhouse there was no lookout on the starboard side. That was a fault. The City of Edinburgh, 72 LI. L.R. 19.

Lagendyk testified that when he walks from the starboard end of the bridge around the rear of the steering house, towards the port end of the bridge, he loses sight of the starboard side for the time that he goes that way towards the port side, until he turns around and goes “back this piece,” that is until he again passes from behind the wheelhouse on his walk back to the starboard end of the bridge; but that the time he loses sight of the starboard “can’t be even a minute.”

Probably the closeness of the Agwidale when he first saw her is the reason why Lagendyk gave the engine order full speed ahead and the rudder order hard-a-port, in the hope that he might either get across the Agwidale’s bow, or, if struck, receive only a glancing blow. He was too close to avoid the collision by reversing. I believe that that was the real situation, although he testified that when he first saw the Agwidale shortly before the collision the Agwidale was 2 or 3 cables away and coming straight toward the Stad Haarlem’s starboard at an angle of 80°, pointing slightly ahead of the beam. If the vessels had been that far apart with whose headings he would have avoided the collision by the order full speed ahead, even though coupled with an order to put the rudder hard-a-port, which would have the effect of reducing Stad Haarlem’s speed 40% and of swinging her stern to starboard (Knight, 10th Edition, pages 499-501). Both vessels were about the same size, 385 feet long, and were proceeding at convoy speed of 7% knots, 750 feet a minute. The engine room log of the Agwidale (Ex. F) supports the testimony of her second officer, Wright, and her captain, Manuel, that the Agwidale had her engines full speed astern for about two minutes before the collision, and that before going into reverse her engines had been stopped for about a minute.

Seaman Stolk, the lookout on the port side of the Stad Haarlem’s bridge, testified that when he heard the 2 blasts of the Stad Haarlem he looked around for almost 1/2 minute on the port side of the bridge and seeing nothing went over towards the starboard side of the bridge and he saw the Agwidale right aft of the bridge “heading straight for us” may be 100 or 200 meters away at about a minute before the collision.

There was no lookout on the bow of the Stad Haarlem. The excuse, that he was not needed in good weather, is of no avail. He was needed at night, with the vessel forming part of a large convoy, under war conditions, with ships all around and all blacked-out. The Corozal (The Daniel Pierce), D.C., 62 F.Supp. 123, 1944 A.M.C. 778. The greatest peril the vessel faced in navigating under those conditions was the peril of collision. It was constantly present.

The second officer of the Stad Haarlem was the deck officer in charge of navigation during the watch from midnight to 4 A. M. To have him acting also as the sole lookout for the starboard side of the vessel was a fault. The Corozal (The Daniel Pierce), D.C., 62 F.Supp. 123, at page 126, 1944 A.M.C. 778, at page 782, citing cases. The vessels were supposed to steer a compass course and to maintain their proper positions in their respective columns. Under the circumstances sufficient lookouts properly posted were essential to safety. The War Pointer, 4 Cir., 277 F. 718, at page 720. The gun crews were not members of the vessel’s crew; they were there to protect the vessel from enemy action. The Stad Haarlem should have had a lookout at the bow and a lookout at both ends of the bridge.

The burden was on the Stad Haarlem to show that her bad lookout did not contribute to the collision. The Ariadne, 80 U.S. 475, 13 Wall. 475, 20 L.Ed. 542, The Madison, 2 Cir., 250 F. 850, cited in The Corozal (The Daniel Pierce), supra. She did not sustain that burden. As a matter of fact the bad lookout of the Stad Haarlem was an active, contributing and proximate cause of the accident.

The Engine and Rudder Orders Just Prior to the Collision

The Agwidale’s second officer Wright is criticized for not having reversed his engines promptly, at the time he gave the stop order at 2:24 instead of a minute later at 2:25. Wright testified that the Stad Haarlem was less than 2 cables away when at 2:24 he first noticed that she was swinging towards the Agwidale’s column. He stopped the Agwidale’s engines. He says the Stad Haarlem kept swinging toward him and that he then, at 2:25, rang half and full astern in rapid succession. When he rang full astern the Stad Haarlem was 'about a cable nearer and she kept coming closer all the time. He had ordered the Agwidale’s rudder hard right when he stopped the engine at 2:24. The Agwidale struck the Stad Haarlem, about at 2:26% on her starboard quarter, at an angle of 75° or 80°. The Agwidale’s speed was not stopped at the time of the collision; she was still going ahead. The Stad Haarlem almost managed to get across. It may be that if the Agwidale had the aid of an extra minute of her engines in reverse (the minute during which they were stopped prior to being reversed) she would not have hit the Stad Haarlem. Knight states that if the courses of vessels are converging and the ships are very close, each should turn away from the other and stop (p. 482). Perhaps the second officer of the Agwidale had in mind also the presence of other vessels behind the Agwi-dale, which was well up in the convoy, and he may have been expecting some cooperating action from the Stad Haarlem. The Agwidale had a right hand propeller. Her engine was in reverse but she was still going ahead. Under those conditions the effect of a hard right rudder was to throw her stern to port. Knight p. 493. The time intervals between the engine orders are shown by the Agwidale’s engine room. Under the circumstances I believe that there was no fault in the engine and rudder orders of the Agwidale.

As to the orders given by second officer Lagendyk of the Stad Haarlem at the time he first saw the Agwidale approaching, we must consider the circumstances under which they were given. Lagendyk testified that when he first observed the Agwidale coming straight towards the starboard side of the Stad Haarlem bearing slightly ahead of her beam, the Agwidale was 2 or 3 cable lengths away and that two minutes elapsed between the time he saw her a.nd the collision. He says he put his engines full speed ahead and gave her a hard-a-port rudder, hoping to clear the Agwidale. The hard left rudder would have a tendency to reduce the speed of the Stad Haarlem and to swing her stern towards the Agwidale. The Agwidale charges that the Stad Haarlem was at fault in both her rudder and engine action, claiming that the Stad Haarlem should have reversed her engines. In passing judgment on errors of navigation in a case like this, where the two vessels concerned were very close and a collision was imminent, having in mind the fact that both vessels were in convoy, with vessels ahead, astern and on both sides of them, it seems to me that the General Prudential Rule would apply and that the special circumstances would warrant a departure from the rules in order to avoid immediate danger. Besides, I am of the opinion that the two vessels were much closer than Lagendyk said they were when he first saw the Agwidale. They were so close that to reverse would have invited a collision amidships. By going full speed ahead the Stad Haarlem almost escaped. True, her hard left rudder swung her stern towards the Agwidale and that may have prevented the Stad Haarlem from getting by. At any rate her engine orders were correct under all the circumstances and I cannot say that the collision would not have occurred if her rudder action had been different.

Whistle Signals

The testimony of the Stad Haarlem’s witnesses on the whistle signals blown by the two vessels was as follows: Lagendyk, the second officer, testified that the Stad Haarlem blew two blasts when the hard-a-port order was given (about two minutes before the collision) and that the other vessel, the Agwidale, blew a series of short blasts at the time the collision occurred. Captain Smit testified that he was awakened before the collision by the two short blasts of his own vessel; that there was an interval of about two minutes between the two blasts of the Stad Haarlem and the collision and that he heard several short blasts from another vessel very close to the Stad Haarlem just about the moment of the collision. Leenhouts, the wheelsman, testified at first that he heard the Stad Haarlem’s two blasts when he got the hard-a-port order and that he heard a series of short blasts aft (from the Agwi-dale) at the same time he felt the shock. Later on cross examination he testified that he heard'a series of short blasts from another ship (the Agwidale) right after the Stad Haarlem had sounded her whistle and on redirect he repeated that it was right after the Stad Haarlem’s whistles that he heard a series of short blasts, about the same moment as the collision; but he added that the interval of time between the hard-a-port order and the shock of collision was about two minutes. Stolk, the lookout on the port side of the bridge, testified that when he heard two blasts from the Stad Haarlem he looked around about half a minute and while he walked around to starboard side of the bridge he heard the short blasts of another vessel which he saw when he came to the starboard side. He stood there for about a minute and then she struck the Stad Haarlem.

Concerning the whistles blown by the Agwidale, her witnesses testified as follows: Wright, the second officer, said that when the Stad Haarlem was less than 2 cables away and he saw her start to swing towards the Agwidale’s column, he blew the danger signal and gave the wheelsman orders to put his wheel hard right and gave one blast on the whistle. A minute later he put the engines full speed astern and blew three blasts. He said he did not hear any whistles from the Stad Haarlem.

From Captain Manuel’s deposition it appears that he was asleep in his cabin when he heard the ship blow 4 whistles. When he was getting his shoes on he heard one whistle and immediately following that he heard three whistles, all from the Agwi-dale. He did not hear any whistles from any other ship. Tuchband, the wheelsman of the Agwidale, testified that first he heard two bells from the lookout in the bow, then he heard the telegraph to the engine room ringing and then he heard the whistle of the Agwidale. After which he got a hard right order. He heard no whistles from the other ship. I believe that the Agwi-dale was the first to blow her whistle. Her second officer Wright saw the Stad Haar-lem, before Lagendyk, the second officer of the Stad Haarlem, saw the Agwidale. Wright’s testimony as to the engine room signals is supported by the engineer and the engine room log of the Agwidale. The whistles were related to the engine action in time. On the other hand, the engineer of the Stad Haarlem does not support Lagendyk as to the time he gave his full speed ahead order.

Agwidale’s Failure to Produce Log Entries and Records of Collision

The proctor for the Stad Haarlem argues that the Agwidale’s failure to produce records of the collision made that day and to produce Ritzberg, the bow lookout, raises an inference that the records and the lookout’s testimony would be unfavorable to the Agwidale’s case. It appears from the Agwidale’s reply brief that arrangements had been made to take Ritz-berg’s deposition at 10:30 A.M. on July 14, 1943, and opposing counsel were notified. The witness arrived about noon, after the taking of the deposition had been adjourned to 2 P. M. He said that he had had no breakfast so “he was told to get something to eat and return at 1:30 P. M. He never came back. * * * He was no longer in the employ of the Agwidale owners.” I think that the failure to take his deposition has been satisfactorily explained.

But the situation in respect to the Agwi-dale’s deck logs is different. (Her engine room log is in evidence.) The Agwidale’s rough log book was produced but it did not contain any entry about the collision. Concerning the deck log itself Captain Manuel testified that they have instructions to destroy all records pertaining to the ship’s movements in convoy by burning, but that he cut the pages out with the expectation of saving them and kept that page with the courses; that it is customary to keep the courses. He had no recollection of destroying them. He assumed that he had destroyed them because they are not available. He added: “I can’t remember destroying them but I remember destroying all other records.” Earlier he had said “They were accidently destroyed.”

The second officer, Wright, who was in charge at the time of the collision testified that he made a record on a little pad and that he left it in the wheelhouse. He also said he wrote a report on a sheet which he gave to the purser and he typed it out. But none of these records were produced. The failure to do so has not been satisfactorily explained. I believe that the alleged circumstances of their accidental destruction are such that the non-production of' the records is “in itself evidence of conscious fault.” The Arabic, D.C.S.D.N.Y., 34 F.2d 559, 561, 1929 A. M.C. 1364, 1368. “This failure seriously reflects upon their testimony.” The Arabic, D.C., 34 F.2d 559, 1929 A.M.C. 1364. See, also The Pocahontas (The San Tirso), D.C. 4 F.Supp. 208, 1933 A.M.C. 1082; J. V. Petrie & Sons, Inc., v. Motor Ship Inter-waterways Line, Inc., 1928 A.M.C. 1732; The Philadelphia, 3 Cir., 44 F.2d 1, 1931 A. M.C. 217; Societa Anonima Cantiero Olivo v. Federal Ins. Co. (The Ettore), 2 Cir., 62 F.2d 769, 1933 A.M.C. 323; Cary-Davis Tug & Barge Co. v. United States (Pres. McKinley-Tug Oregon), 9 Cir., 8 F.2d 324, 1925 A.M.C. 1630; Drummond Lighterage Co. v. Oregon-Washington R. & Nav. Co., 9 Cir., 20 F.2d 118, 1927 A.M.C. 1161; The Gulf of Mexico, 2 Cir., 281 F. 77.

Lights

The ships in the convoy were travelling blacked-out under war time regulations. Neither ship turned on its navigation lights as the danger of a collision developed. Some cases hold that even in war time and while ships are in convoy, navigation lights should be switched on the vessel that sees another approaching dangerously close. The Corozal (The Daniel Pierce), supra. It was intimated in The Cushing, D.C., 266 F. 570, at page 575, that the danger from submarines might be an excuse for not turning on the lights. However, in one of several appeals in the same case (292 F. 560) the Circuit Court of Appeals, Second Circuit, in affirming the Cushing case, states at page 565 of 292 F.: “It is no answer to say that the navigator was fearful of submarines at the time.” In the Cushing case only two vessels sailing alone were involved and the collision took place off the Atlantic Coast near Cape Lookout. In The Dominion Monarch, 73 Ll.L.R. p. 229, the appellate court reversed the decision of the trial court which had held that two vessels which collided while sailing separately without lights in war time in the English channel were both at fault for failing to switch on their lights, immediately danger of collision arose.

The record here does not disclose in detail the convoy regulations, but Wright, the second officer of the Agwidale, testified that the orders were that it was a blacked-out convoy and that they were not supposed to switch on the running lights unless they got orders from the Commodore. But if failure to switch on her navigation lights was a fault on the part of the Agwidale it was equally a fault on the part of the Stad Haarlem, whose second officer testified that he saw the Agwidale approaching at a distance of 2 or 3 cables.

According to the officers of the respective vessels, the Agwidale turned on 2 red lights on a wire over the bridge after the collision, and the Stad Haarlem turned on one red light. The 2 red lights signified “out of control”, so that the following ships of the convoy would avoid the Agwidale, but that did not mean that her steering gear was out of control. The Stad Haar-lem’s officers said they put up one red light to attract attention, because there had been no reply to her blinker message to the Agwidale after the collision.

I do not believe that the facts of this case require the application of the doctrine of The Victory (The Plymothian), 168 U.S. 410, 18 S.Ct. 149, 42 L.Ed. 519, that “when one vessel is guilty of glaring fault, we will not too jealously scrutinize the navigation of the other.” Woodruff v. Delaware, L. & W. R. Co., 2 Cir., 130 F.2d 121, at page 123. The absence of a proper lookout, where the fault clearly contributed to the collision as it did in this case, is not so readily disregarded. The requirement of a proper lookout on a vessel proceeding as part of a large convoy blacked-out at night, is most essential to the safety of that vessel and of other neighboring vessels.

I have found both vessels at fault and I believe that they were equally at, fault. Even if it were true that the Agwidale’s fault of being so far off her convoy course was greater than the Stad Haarlem’s fault of failing to keep a proper lookout, still the damages would have to be divided. This court would have no power to apportion the damages other than on a 50-50 basis. Postal S. S. Corp. v. Southern Pac. Co., 2 Cir., 112 F.2d 297. And that is the basis of division which the facts themselves fully justify.

I am filing findings of fact and conclusions of law together with this opinion. The decree in each case will provide for a reference to a Special Master to determine the amount of the damage to the vessels involved. Settle decrees on two days’ notice.


source: Caselaw Access Project

author: CAILLOUET, District Judge.

license: Public Domain

text:
    UNITED STATES SMELTING, REFINING & MINING CO. v. WATERMAN S. S. CORPORATION.
    No. 571.
    District Court, E. D. Louisiana, New Orleans Division.
    Sept. 20, 1945.
    Bigham, Englar, Jones & Houston, of New York City, and Dart & Dart, of New Orleans, La., for plaintiff.
    Deutsch, Kerrigan & Stiles, of New Orleans, La., for defendant.
   CAILLOUET, District Judge.

The libelant alleges, substantially, that there was lost and damaged, respectively, parts of libellant’s 1052 tons of structural steel that were delivered, for its account, to respondent at the Port of Baltimore, Maryland, for loading on its SS “West Kyska” and carriage by sea thereon to Seattle, Washington, to be there discharged and thence transshipped to Nome, Alaska, by other carrier than libelant; that such structural steel on delivery to respondent at the vessel’s side, and also, inferentially, on loading and subsequent departure from port, was all in good order and condition; that, however, said shipment which was loaded and carried, 771 tons on deck and 281 tons under deck, was discharged at Seattle “seriously injured and damaged, and short, namely, among others, 13 short #97 to 101 inch, #111 to 118 inc.; 70 damaged, various bends, #1 to 81 inc., #92 to 191 inc., #227 to 242 inc.”

To the original libel was annexed, as part thereof, the straight bill of lading. It specifically provided (1) that the terms “Owner’s Risk” and “O. R.” meant that the carrier should not be liable for loss or damage ■“unless shown to have resulted from some negligence or default of carrier against liability for which it is precluded by law from contracting”; (2) goods carried on deck were at “owner’s risk”; and (3) as follows, to-wit:

“This bill of lading shall be deemed to incorporate and shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States, approved April 16, 1936, and nothing herein contained shall be deemed a surrender by Carrier of any of the rights or immunities or an increase of any of its responsibilities or liabilities thereunder; nor shall Carrier be deemed to have warranted the seaworthiness of the Vessel. The provisions stated in said Act shall, (except as may be otherwise provided herein) govern before the Goods are loaded on and after they are discharged from the ship and throughout the entire time that they are in the custody of the Carrier. In respect of Goods carried on deck and stated herein to be so carried, all risks of loss or damage by perils incident to such carriage shall be borne by Cargo Owner but in all other respects the custody and carriage of such Goods shall be governed by the terms of this bill of lading and, except as otherwise herein provided, by the provisions stated in said Carnage of Goods by Sea Act notwithstanding Section 1(c) thereof. Carrier shall also have the benefit of Sections 181 to 189, inclusive, of Title 46, U.S.Code, and of all other statutes of the United States or any other country which may be applicable in the circumstances to grant Carrier exemption from or limitation of liability. * * *”

Exception having been taken to the libel on the ground that, on its face, it failed to -disclose a right or cause of action against respondent, and the same having been duly sustained with leave granted, however, to amend, there was thereupon first filed, with reservation, what libelant denominated a supplemental and amended libel, setting out specifically, but no more than, the following new matter, to-wit:

“On information and belief, libellant alleges that on or about May 3, 1941, the said S.S. ‘West ICyska’, having libellant’s cargo aforesaid on board, was proceeding at sea in normal weather, with a wind force of 3 on the Beaufort Scale, when the deck lashings to No. 1 port deck load gave way, permitting a quantity of said structural steel to slide overboard into the sea, and otherwise damaging libellant’s cargo aforesaid ; that prior thereto, namely, on or about April 15, 1941, respondent had permitted the bracings or lashings holding said cargo in place to break or become loose, and that the same were not thereafter properly secured but were allowed to, remain insecure and insufficient to properly protect said cargo, and the loss of and damage -thereto was caused by the aforesaid failure to properly stow and care for the said cargo.”

Further exception being taken to libel-ant’s pleadings, there was thereupon filed in due course, with repeated reservations, a re-drafted entire libel, in which was reproduced the aforementioned amendatory matter just quoted, by way of an added paragraph (b) to the fifth article of the libel, which otherwise remained substantially unchanged.

Respondent answered that if any shortage or damage occurred to libelant’s shipment of steel, only the portion of’ such steel as was stowed on deck was involved, and that, under the terms of the bill of lading, no liability attached to respondent.

Pleading in the alternative, respondent then set up by way of defense that on May 3, 1941, while the West Kyslca was proceeding to Seattle, she encountered a heavy westerly swell upon her port beam, causing her to roll and labor heavily; once rolling heavily to starboard and, upon the commencement of the counterroll to port, being struck by a wave which made her “righten suddenly, sharply, violently and with a twisting movement”; that this unusual movement caused the pelican hooks attached to the turnbuckles in the lashings securing the No. 1 deck stow of a portion of libel-ant’s steel cargo, to straighten out; this allowed the hooks to slip out from under their shank rings, which released the chain lashings of the stow whose full weight upon being thrown against the outboard stanchions, between stow and ships rail, sheared them off at the rail’s level; following which, some steel plates in the stow slipped overboard. But respondent’s contention is that the occurrence was in no way caused by unseaworthiness of ship or equipment, or by faulty stowage of the deck cargo, or by negligence or failure of those in charge of the West Kyska in caring for the cargo, and that, therefore, under the bill of lading terms already referred to, respondent is not liable to libelant for the value of the lost plates.

Respondent furthermore pleaded that it could be held liable, in no event, if damage or injury sustained by the cargo took place while such shipment was no longer in respondent’s custody — or, that is to say, after discharge of the shipment by the West Kyska at Seattle, and the subsequent carriage thereof from Seattle to Nome, Alaska, by other vessel.

From the evidence it appears that the shipment of structural steel involved was not loaded on cars at the manufacturing plant at Lancaster, Pennsylvania, for transportation to shipside at Baltimore, until it had all been first assembled and piece-marked to assure proper fit on the contemplated job of dredge construction at Nome, Alaska.

The parties stipulated that the structural steel shipment was, at all times, libelant’s property and that upon its delivery to the railroad cars at Lancaster, the shipment was in good order and condition, none of the pieces composing it having bends or distortions other than such as were required as part of the steel’s fabrication process.

They further stipulated that if one F. A. Finch had been called as a witness he would have testified that, for 20 years continuously up to the date of trial inclusive, he was a surveyor of the Board of Underwriters of New York at the Port of Baltimore, Maryland, and, in said capacity, had inspected more than 10,000 ship loadings; that he was thoroughly familiar with the proper and adequate methods of stowing deck cargo on ocean-going vessels; that he held an unlimited master’s license, any ocean, any tonnage, had acted as master of vessels at sea and, altogether, had 25 years of actual sea-going experience; that he attended the loading of the West Kyska, during March 1941, in his aforementioned official capacity, for the specific purpose of determining whether the vessel’s stowing was proper and adequate; that he saw the steel plate stow alongside the vessel’s No. 1 hatch, and that such stowage was properly done and adequately secured, the lashings and gear used therefor appearing to then be in good and proper condition; and that he, thereupon, issued the usual and customary certificate of loading of The Board of Underwriters of New York, which he dated March 25, 1941.

They further stipulated, amongst other matters, that if certain named representatives of the respondent had been called as witnesses they would have testified that neither pelican hooks, nor tumbucldes to which attached, used in securing the West Kyska’s No. 1 deck stow which went adrift on May 3, 1941, were ever subsequently delivered to respondent and were, so far as known by respondent, still on said vessel; and that title, ownership and control of said West Kyska passed to the United States of America (War Shipping Administration) as of August 26, 1943.

Libelant’s construction engineer testified that he witnessed the loading of the greater part of the railroad shipment and, thereafter, the loading of a portion of the steel on to the West Kyska at Baltimore, and that at neither time did he observe “any particular little bends or anything that might have occurred in shipment”, but that at Seattle, where he was also present for the discharge of cargo at the end of respondent’s voyage, he did notice a few “bends or distortions” but took particular note of none, nor made a record thereof. In connection with his testimony, there was filed Libelant’s Exhibit No. 1, i.e., a statement entitled “Nome Dredge No. 5, Pieces Damaged in Shipment”, which the witness testified that he personally made up from damage listings appearing on dock slips, handed him at Nome, Alaska, upon discharge there of the steel shipment by other carrier than respondent.

The total cost to libelant for reconditioning and straightening out the damaged pieces listed, which included steel for the dredge job other than that forming part of the Pennsylvania shipment, identified by the letters L. I. W., was $2,094.04; which aggregate repair cost, by use of the weights set opposite the damaged pieces listed, respectively, can readily be pro-rated and allocated between the two lots of steel involved.

The witness testified that in the' loading of the West Kyska at Baltimore, one piece, about twenty-five feet long, was dropped with the result that it was bent in the center; so it was reported to him, he says, but he did see the piece, which had been set aside awaiting his inspection thereof and his consent to include it in the cargo notwithstanding its damaged condition. Such consent he did give, while keeping a record of the piece’s identifying marks, which were: “Piece No. 131; Erection mark SSG-1.”, he further testified.

It is to be observed, however, that no such piece is listed as damaged on the aforementioned Libelant’s Exhibit No. 1.

The witness also testified that upon the West Kyska’s discharge of libelant’s steel shipment at Seattle, the cargo checked thirteen pieces short, and that the replacement value of such pieces F.O.B. Seattle was $8,064.18, which sum libelant actually disbursed in order to forthwith provide the necessary substitute pieces for carrying on the dredge construction work at Nome.

The Master of the West Kyska on the voyage in question was Captain Wood, 37 years, 22 years at sea, serving as a ship’s officer since 1931 and holding a master’s license since 1936.

He testified that both the Chief Officer and the Second Officer of the vessel had since died and that while the Third Officer, to the best of his knowledge, was alive and still sailing, he knew not his whereabouts.

There were five hatches on the West Kyska, he also testified, — two forward of the deck house, one between the bridge and the smokestack, and two aft of the engine-room; No. 1, on the port side forward, was approximately twenty-nine feet long by twenty in width, and the distance from the hatch coaming, which was about two high, to the ship’s port rail was twenty feet, more or less; on port and starboard side of the coaming, at three equally-distant points, and opposite said points at the base of the ship’s rail, were affixed to the deck, welded and bolted, pad-eyes or fixed loop openings or rings to which may be hooked chain lashings or the like.

Continuing, Captain Wood testified that it was the Chief Officer’s responsibility to properly stow the ship’s cargo, and that said officer personally supervised the loading of respondent’s structural steel shipment at Baltimore; that he, himself, was not on board the West Kyska at all times during the loading of the vessel, but that the steel cargo was loaded to his satisfaction, both on deck and under deck.

The steel plates in the cargo, said he, had welded or riveted upon them, mostly on one side, brackets or ribs six to eight inches high, and it was, therefore, impracticable to use dunnage in the stowing of the cargo except between the first tier of the steel stacks and the deck floor; which was done. The portion of said steel cargo which was loaded on deck, was stowed on both port and starboard sides of the vessel’s hatches Nos. 2, 4 and S, and besides like steel stowed on the port side of the No. 1 hatch, there was steel on the starboard side of said hatch, although the witness swore that he did not remember what it looked like and that, therefore, he could not identify that stow as part of libelant’s shipment.

The Master further testified that when the steel was being stowed on deck at Baltimore, it was first divided into the several piles which eventually made up the deck stow of 771 tons; that each of the several piles was stacked to a height of approximately eight feet and then there were stretched over and across said piles, in each instance but one, three galvanized chain lashings, with links of seven-eighths of an inch in diameter, running from the three pad-eyes at either port or starboard side of the hatch coaming over to the three opposite ones, located at the base of the ship’s rail; that there were but two lashings used with respect to the stow on the port side of hatch No. 1, which stow was approximately twenty feet long and eight feet wide and high; that such deck stow, being considerably shorter, than the others, no more than the two pad-eyes aft, of the three in line at the hatch coaming, and the two opposites at the base of the ship’s rail, could be utilized for the lashing of said No. 1 hatch stow; that the ship’s rail at this point was about three feet high and that three wood stanchions, six inches by six inches, twelve feet high, were set up, and braced against the bulwark or rail, in order to hold the steel pile in position away from the rail; that such bracing was effected by the laying of similarly-sized pieces of timber, except much shorter, on the deck between ship’s rail and the heel of each stanchion, then running like pieces from the ends of the horizontal pieces at an angle to the stanchions, so as to make these cross-braces rest on the uprights at a point approximately four feet from the deck, from which still other similar pieces, about six feet long, were jammed between stanchions and the top of the ship’s rail and nailed fast; and that from the steel so stowed, with two chain lashings and braced stanchions, to the coaming of hatch No. 1, intervened a distance of approximately two feet, and between stow and port rail, six feet.

The Master insisted that because the stow, when so set up, was within two feet of the No. 1 hatch coaming, no stanchions could be erected on the inboard side; there was nothing there to brace against, said he. The two chain lashings, he then testified, came down inboard from the top of the steel pile to the two pad-eyes located at the base of the hatch coaming, at a slight angle. He swore that stanchions were used at none of the other steel piles, each of which was securely held by the customary three chain lashings, and that the use of stanchions was only made necessary at the No. 1 hatch stow, on the vessel’s port side, because the structural steel was “well away from the rail,” while such was not the situation as to any of the other cargo piles. Finally, he contended it was his opinion that the No. 1 hatch stow, as described, was an entirely proper one and that, besides its having been set up under the eye of survey- or Finch of the Board of Underwriters of New York, the stow was inspected by another surveyor of said Board of Norfolk, Virginia, port of call of the West Kyska on its voyage from Baltimore to Seattle.

Waldemar F. Berg, declaring himself a Master Mariner, with sea-faring experience of about 50 years on all oceans, with all sizes of ships, and as having handled “most every kind of cargo you can think of,” who testified as expert witness for libelant, swore positively that such a stow as the one libelant complains of, — where there was but little security on the inboard side, by comparison with the precautions taken on the outboard — is bad stowage. He insisted that the two inboard lashings ran down to the pad-eyes, at the hatch coaming, in entirely too vertical a fashion; and that they, in no manner, protected the stow against side-sway to starboard against the lashings and then back to port against the stanchions. A much better stow, said he, could have been made by setting up stanchions on the inboard side between the steel and the No. 1 hatch, braced, with a chain lashing wrapped around the top of one of the inboard stanchions, at the uppermost surface of the stow, and thence stretched across the steel down to the deck pad-eyes on the outboard side; and with a lashing, additionally, stretched from the top of one of the outboard stanchions across the stow and over to the deck pad-eye beyond hatch No. 1. With such suggested lashings, the witness continued, the top of the stow would have been firmly held in place, whilst, with no more done to secure the stow than has been previously detailed hereinabove, side movement under the chains was to be expected.

The witness, upon having his attention called to the following excerpt from Bridger and Watts’ work on “The Stowage of Cargo”, which forms part of the documentary evidence now before the Court, viz.:

“It is necessary to see that sufficient good fastenings are provided to which the lashings may be secured. One often sees in such cases many turns of wire or chain taken round a piece of deck cargo and secured to a small ringbolt, which in its turn is perhaps lightly riveted to a hatch coam-ing or on deck. If the required number of good fastenings are not available it is always advisable to fit special ringbolts into the ship’s side, and at or about the hatch coamings. This is very little trouble as ringbolts can always be bolted on with heavy bolts and are easily removed.
“When lashing a deck cargo, such as those above mentioned, consideration must be given to the side force exercised by a sea striking the vessel during heavy weather, and one must imagine the vessel heeled over to a considerable angle and tons of force being applied to the side of the cargo. The average landsman has not the slightest idea of the tremendous force exercised by a sea when striking a vessel’s deck in bad weather.
“To compensate for this force, if the piece of deck cargo cannot be placed well in clear of the rail it must be tommed or shored from inside such as from the hatch coaming, mast, or other part of the ship.”,

swore that he was in entire agreement with the so-expressed views of the authors on the subject of deck stowage.

At the trial, an additional stipulation was made and entered into by the parties. It was to the effect that the steel cargo described in the libel was discharged from the railroad cars to the West Kyska, at the Port of Baltimore, by employees or agents of the respondent.

The vessel, according to its log and the testimony of the Master, Captain Wood, sailed out of Baltimore for Norfolk, Virginia, on the first leg of its voyage up the West Coast, on March 26, 1941, and left Norfolk for Savannah, Georgia, on March 28, 1941, from which port it departed for Jacksonville, Florida, on March 30, 1941.

The log entries as to weather and sea encountered from Baltimore to Jacksonville reflect no extraordinary conditions. The weather changed, at times, from hazy, clear, to partly cloudy, cloudy, overcast, drizzling rain, and the sea, from smooth to moderate northwest sea, rough beam sea, rough northwesterly sea, shipping seas starboard side, fore and aft. Also, the Master specifically testified that from Baltimore to the Panama Canal Zone nothing unusual occurred.

At Jacksonville, the two chain lashings over the No. 1 hatch stow of short structural steel pieces were removed and so were the top and the diagonal brace. Then between steel stow and rail was loaded creosoted lumber to about the same height as the steel, and over both steel and lumber two chain lashings were stretched. The three outboard stanchions to the steel stow no longer serving any useful purpose except to keep steel and lumber apart.

Thereafter, on the voyage from Jacksonville through the Panama Canal to Wilmington, California, where the lumber cargo was discharged, the same was carried where and as stowed, without loss or damage, although both Master and ship’s log bear witness to the vessel’s undergoing an unusual earthquake experience, while on the way, some 12 miles off the Mexican Coast, about 20 miles southeast of Cape San Telmo.

Such earthquake, the vessel’s log recorded as having taken place on April 15, 1941, with two severe shocks, lasting two minutes each, and separated by an interval of 32 minutes. The Master, Captain Wood, testified that he was on the bridge during each shock and that he “saw the deck load shift,” the cargo “clapping up and down and making an awful racket”, while the “vibrating and jumping up and down of the ship” was so severe that “the men on deck appeared to be tap dancing,” and the cargo moved at least six to eight inches up and down and sideways, although it was not displaced in all, though in some, places; particularly, was it not displaced at the No. 1 hatch.

He further swore that following the occurrence, due examination was made of the cargo and that the turnbuckles on the No. 1 hatch stow “appeared to be still in good order”; all chain lashings, however, were slack and were thereupon tightened.

The West Kyska, he continued, proceeded up the Mexican Coast without other interruption, meeting no particularly heavy seas as a result of the earthquake, but a rough sea was subsequently encountered in the neighborhood of the Gulf of Lower California ; nevertheless, the voyage from the Panama Canal up to Los Angeles and thence to Wilmington, California, aside from the earthquake, was made under conditions of weather and sea no different than one would normally be led to anticipate on an intercoastal voyage during the Spring of the year.

His testimony furthermore covered what took place at and after the unloading and discharge of the creosote lumber cargo at Wilmington. The lumber was released from under the two lashings and unloaded, stanchions and braces were then re-set in their former positions and the same chains, though now shortened, were re-stretched over the steel, the pelican hooks placed in the pad-eyes, and the lashings thereupon made tight by use of the same turnbuckles; so that, in outward appearance, at least, the general situation on and about the West Kyska was as formerly existed when she left Baltimore, and, in the Master’s opinion, the No. 1 hatch stow, considering the nature of the cargo, was properly lashed and conditioned for the remainder of the voyage.

From Wilmington to San Francisco the voyage was without unusual incident and the sea at no time was logged as more disturbed than moderately rough, with the West Kyska pitching moderately.

On the way from San Francisco to Seattle, the vessel encountered no weather but such as one would expect for that season of the year, Captain Wood testified.

Nevertheless, as his further testimony runs substantially, the West Kyska lost overboard a part of the libelant’s structural steel, stowed on the port side of the vessel’s No. 1 hatch. This happened on May 3, 1941, three days out of San Francisco, about 20 miles west of Gray’s Plarbor. No other deck cargo was so lost and all other deck stowage remained secure, nor did the vessel sustain any damage whatever on this leg of the voyage. The two chain lashings over the particular stowage mentioned did not break, nor did the four pad-eyes, nor the two shackles attached to which the chain lashings were made fast on one end; but both of the two pelican hooks, next to the turnbuckles in said lashings at the other end thereof, did bend and thereby permit, in each instance, the forward end of the closed hook hinge to withdraw from and slip out of the grip of the link or ring which is “noosed” over the forward end of the pelican hook’s hinged piece, in order to make tight the tie-in of chain lashing to the pad-eye. When the pelican hook so collapsed, the lashings were, necessarily, completely released and no longer held the steel cargo, with the direct result that, as is hereinafter detailed, the full weight of the upper half of the steel pile was thrown against the three port-side stanchions, sheared them off at about the level of the lowermost three feet or so of the stow which was braced against the ship’s bulwark, and the loose steel slid to port over the bracing and the rail into the sea.

The loss occurred at 8:37 A.M. as both log entry and the Master recount. He testified that he personally examined the pelican hooks and the stanchions and found the former to have been freshly bent and to have pulled open, while the wood of the latter, clearly, had just been shivered and broken. With new pelican hooks and turn-Duckles, but with the same chains, the remaining lower portion of the No. 1 hatch stow was made secure and the vessel continued in orderly course on its way to Seattle harbor, where it berthed on the succeeding day. Captain Wood swore that he made due report of the accidental loss of cargo to the West Kyska’s agents at Seattle, and also to the Mobile Office of respondent. He did not submit the damaged pelican hooks and turnbuckles to the ship’s agents for examination, said he, and, so far as he • knew, the same were still on the vessel at the time he was testifying in May, 1944. However, it must be noted that the vessel had passed into Government control during August, 1943.

About one-half hour before the No. 1 stow went adrift on May 3rd (so further testified Captain Wood) and after he had previously requested, at breakfast, the Third Officer to see to it that all lashings were made “good and tight” as is usually done at the beginning of each day on a vessel carrying deck cargo, the Master ascended the bridge, where the Third Officer was in charge of the watch, and saw, standing at the No. 1 hatch, the First Officer with certain members of the crew who had just completed the tightening of turnbuckles in the deck cargo.

The wind, at the time, was force 3 on the Beaufort scale (8 to 12 miles, gentle) and a heavy westerly swell was striking the ship about two points forward of port beam, the vessel rolling heavily but running at its full normal speed of 10% knots on a course of 341, standard compass. The rolling had been going on unceasingly from the early hours of the preceding night, Captain Wood continued, and just before the cargo loss he observed that the sea was “apparently building up gradually” although there was nothing unusual in the sky, and he was preparing to alter the West Kyska’s course in order to prevent her rolling “so heavily.” He remembered distinctly, said he, the heavy westerly swell, with the vessel’s rolling deep and coming back gradually, which caused no sudden motion of the ship; but at 8:37 A. M., there occurred a very severe roll to port with the vessel “jerked kind of short” when the next wave struck her, causing a twisting motion as “she righted herself too sudden”. It was then, he' swore, that the pelican hooks “straightened out” and part of respondent’s steel went overboard, but up to that moment, so reads the log, the deck load involved “had not been shifting or working any”; and thereupon the vessel’s course “was altered to 305 per standard compass to ease ship” and her speed reduced to 10 knots.

The Master was positive that no water came aboard on the roll which he so described as unusual. There appears to have been none other like it but this may have been due to the change of course and reduction of speed.

As to the claimed damaged condition of the steel shipment, over and above the overboard loss of the thirteen plates, Captain Wood’s testimony was substantially to the effect that he knew of but one steel place bent or dented in the loading of libellant’s shipment at Baltimore; no other piece, within his knowledge, was dropped in loading or unloading during the course of the voyage; he did not observe any other plates bent or dented either upon taking on cargo at Baltimore or upon discharging at Seattle; considering that a cargo of paper stowed in the hold was badly damaged by the up-and-down movements of vessel and cargo in the earthquake of April 15, 1941, the witness was of opinion, said he, that the earthquake agitation could account for dents actually present in the steel plates, claimed to have been found damaged at Nome, Alaska, inasmuch as the lashings of all steel stows were greatly loosened and there followed considerable horizontal and perpendicular movement of the structural steel; but if denting did take place in libellant’s shipment, the Master knew not, of course, whether this occurred wholly in the 771 tons stowed on deck, or partly in the same and in the underdeck stow of 281 tons.

Under the most favorable construction that may reasonably be given to all of the evidence bearing on the subj ect of the steel shipment’s condition, it is established that except for one piece, which was damaged in respondent’s loading of said shipment from the railroad cars onto the West Kyska, at Baltimore, the cargo left port in good condition, and it may be justly inferred that said one damaged piece was among the thirteen that were lost overboard between San Francisco and Seattle, inasmuch as li-belant’s witness Watkins, Construction Engineer, on his direct examination swore that he noted its specific identifying marks (No. 131, SSG-1) at Baltimore, at the time that he directed that said damaged piece be loaded as part of the steel cargo, and yet he did not list it, in his compilation of pieces claimed to have been delivered in damaged condition. See Libelant’s Exhibit No. 1.

That compilation he made, said he, from the dock slips (covering the damaged pieces) that were handed to him at Nome, Alaska, which is approximately 2288 miles, by sea, beyond the point of discharge by the West Kyska of libelant’s shipment from Baltimore, Maryland, to Seattle, Washington. Of the 52 damaged pieces he thus listed, only the 30 carrying the initials L. I. W. (Lancaster Iron Works) ahead of their respective numbers, he testified, formed part of the shipment covered by the bill of lading in this case.

He swore that he witnessed the vessel’s discharge of the structural steel cargo at Seattle, and while he claimed to have seen “a few” bends or distortions, he hastened to volunteer the statement “but I did not take any particular note or make a definite note of the number of pieces or where that occurred or take a definite record of it.” Asked whether he made a record of the number of pieces “found to be bent upon discharge at Seattle”, his answer was “No”.

There is no satisfactory proof before the Court to the effect that the aforementioned 30 pieces of libelant’s structural steel were delivered in damaged condition at Seattle. In the absence of such proof, the mere fact that, when the common carrier accepted the shipment at Baltimore for transportation to Seattle, the shipment was in good condition avails libel-ant nothing; no prima facie case of liability for damaged cargo can be made against the West Kyska, unless and until the damaged condition be established to have existed at the termination of its contract of carriage, evidenced by its bill of lading, upon the shipment’s discharge and acceptance at Seattle. Libelant’s proof, however, under the most favorable view that may be accorded it, is no more than to the effect that at Nome, Alaska, when delivery was made to it at the end of a second voyage by other common carrier than respondent’s West Kyska, thirty pieces of libelant’s structural steel shipment which had originated from the Lancaster Iron Works, in Pennsylvania, and had been carried by that vessel from Baltimore to Seattle, were only then found to be in damaged condition to the claimed value of approximately one-third of a total damage claim, covering this and another shipment of structural steel, fixed at $2,094.04. See Watkins’ deposition, pp. 9, 10.

Libelant has failed to establish by the preponderance of evidence just what was the damaged condition of the 30 pieces of steel at Seattle, if damaged they then were, and what was the actual loss that libelant sustained, if any, during the carriage of its goods by sea on the West Kyska and the discharge and delivery thereof at Seattle, port of destination. There can be no recovery, therefore, as to this phase of the case.

But there is no doubt that libelant should be indemnified for the 13 pieces of structural steel which slipped overboard from the West Kyska, while in transit from San Francisco to Seattle, and representing a money loss of $8,064.18 (Watkins’ deposition, p. 16).

While that part of libelant’s structural steel shipment as comprised the thirteen lost jpieces was stowed on deck at “owner’s risk” and under the shipper’s specific agreement to bear “all risks of loss * * * by perils incident to such carriage,” and while the Carriage of Goods by Sea Act relieves the carrier and ship from liability for loss or damage to cargo carried which arises or results from “perils, dangers, and accidents of the sea, * * 46 U.S.C.A. § 1304(2) (c), it is nevertheless clear that, under the hereinabove detailed circumstances attending the partial loss of cargo, recovery may and should be had by libelant.

The respondent carrier, under said Carriage of Goods by Sea Act, was under the legal obligation to “properly and carefully * * * stow, carry, keep, care for, and discharge the goods carried,” 46 U.S.C.A. § 1303(2), and it appears that respondent negligently failed to comply therewith.

Libelant having proved that the West Kys-ka contracted to carry said 13 pieces from Baltimore to Seattle and that it sustained loss., by reason of non-delivery at the discharge port, the burden thereafter rested on respondent to prove that such loss and damage was excepted from its liability as common carrier under the law or by the terms of the contract of carriage evidenced by the bill of lading; — in other words, that the loss was solely caused by a peril, danger, and accident of the sea, or by a peril incident to on-deck carriage, without contributing negligence on its part. Clark v. Barnwell, 1851, 12 How. 272, 13 L.Ed. 985.

Even were it conceded that the loss overboard proximately resulted either from an excepted peril or from the carrier’s negligence in caring for the cargo, the burden would still be respondent’s to show its freedom from negligence. The Niagara v. Cordes, 1858, 21 How. 7, 62 U.S. 7, 16 L.Ed. 41; The Vallescura, 1934, 293 U.S. 296, 55 S.Ct. 194, 79 L.Ed. 373.

The sea and weather conditions encountered by the West Kyska on the San Francisco-Seattle leg of its voyage were never such as to justify respondent’s contention that it was solely because of an excepted peril that the 13 pieces of structural steel were lost overboard. The Lady Drake, 1935 A.M.C. 427, 434-436; Id., 1936 A.M.C. 998; Id. 1937 A.M.C. 290, 292; Weil v. American-West African Lines, Inc., (The West Kebar) 2 Cir., 147 F.2d 363, 1945 A.M.C. 191, 195, 196.

In view of Captain Wood’s testimony, hereinabove detailed, with respect to the West Kyska’s sudden righting from a “very severe roll to port,” respondent places great reliance upon the case of Automobile Ins. Co. of Hartford, Conn. v. Hart-Wood Lumber Co. et al. (The San Diego), 9 Cir., 1939, 105 F.2d 387. In that case, while the San Diego was on her way off the coast of Oregon, on August 13, 1935, with the wind blowing 25 to 31 miles an hour and the waves running about 10 to 12 feet high, as was not unusual for the season and location, she was struck by one big wave, absolutely different from all others, which partly filled the vessel with water, “causing her to list to starboard by reason of the weight of water taken aboard.” This unexpected and unusual occurrence caused a shift to starboard of the vessel’s lumber cargo, carried on deck, and the weight of the cargo in displaced position sundered the lashings securing the lumber, a part of which, upon being so freed, slipped over the vessel’s side into the sea. The lumber cargo, so the evidence further showed, had been secured “in the usual fashion with chain lashings and turnbuckles which had been set up before the ship left the dock and which were tightened from time to time as they were loosened by the working of the deckload in the seaway.”

The appellant contended that no peril of the sea was’encountered and that the partial loss of cargo was due to unseaworthiness of vessel occasioned by claimed negligent stowage of the lumber cargo and the failure to take ship stability tests before the San Diego left port.

The testimony was to the effect that the usual stability tests were actually taken before sailing and the Court of Appeals concluded, as reads the Court opinion, “that the affirmative evidence justified the finding of the trial court that the ship was seaworthy, the deckload was properly stowed and secured, that the ship was properly manned, that there was no negligence, and that the loss of the deck cargo was caused by a peril of the sea either by an unusual and unexpectedly large wave, or by an unusual and unexpected roll of the ship into the wave due to an unusual and unexpected combination of circumstances, causing a list of the vessel and the carrying away of the deck lashings and the loss of the cargo.”

It is patent that the circumstances attending the West Kyska’s loss of libelant’s 13 pieces of structural steel were far different than those which led to the finding that the San Diego’s partial loss of cargo resulted from a peril of the sea.

In view of the foregoing considerations, and to relieve the parties from the necessity of complying with the local Admiralty Court Rule 12, so that delay may be obviated, the Court does now make these following findings of fact and conclusions of law, viz.;

Findings of Fact.

1. None of libelant’s structural steel shipment was proved to have been discharged in damaged condition by the common carrier, the SS West Kyska, at Seattle, Washington, the port of destination of the voyage from Baltimore, Maryland, with reference to which respondent issued its bill of lading No. 11 of March 25, 1941.

2. The No. 1 hatch deck stow of a portion of said shipment on said vessel was improperly made and inadequately secured.

3. Such faulty and insecure condition of stowage was the sole proximate cause of the loss overboard of libelant’s thirteen (13) pieces of structural steel on May 3, 1941.

4. No peril of the sea, nor peril incident to on-deck stowage, was present and responsible for such loss.

5. The loss actually sustained by libel-ant, as the proximate result of the breaking up of said No. 1 hatch stow and the slipping overboard of the topmost part thereof, or said thirteen pieces, amounted to the sum of $8,064.18.

6. The necessary replacement of the lost 13 pieces cost libelant the said sum of $8,-064.18, which it paid on June 9, 1941.

Conclusions of Law.

1. Libelant is not entitled to recover from respondent for claimed delivery in damaged condition of a part of the shipment covered by respondent’s bill of lading No. 11, of March 25, 1941.

2. Libelant is, however, entitled to recover from respondent the sum of $8,064.18, with interest at the rate of five (5%) per ■cent, per annum, until paid, as damages sustained by it in being put to the necessity of making replacement of thirteen (13) pieces of structural steel, lost overboard from respondent’s SS West Kyska by reason of the carrier’s negligence in failing to properly and carefully stow, carry, keep and care for the same.

3. Said interest should be computed from the moment of the loss, or that is to say, from June 9, 1941, upon which date libelant disbursed said principal sum of $8,064.18 as necessary cost of replacement.

Accordingly, the appropriate decree will be signed on presentation.