
    THE DEUTSCHLAND. FARLEY et al. v. HAMBURG AMERIKANISCHE PACKETFAHRT AKTIEN-GESELLSCHAFT. CLARK v. SAME.
    District Court, S. D. New York.
    March 25, 1936.
    
      Morgan & Lockwood, of New York City (Mark W. Maclay and John T. Carpenter, both of New York City, of counsel), for trustees of Munargo S. S. Co. and George Clark.
    Carter, Ledyard & Milburn, of New York City (Rush, Taggart, of New York City, of counsel), for American Molasses Co.
    Haight, Smith, Griffin & Deming, of-New York City (John W. Griffin and Arnold W. Knauth, both of New York City, of counsel), for Hamburg Amerikanische Packetfahrt, etc.
   COXE, District Judge.

These suits grow out of a collision, between steamships Munargo and Deutschland in the main ship channel of New York Harbor, a short distance off the green flashing buoy No. 31 near the Statue of Liberty, at about 5:43 p. m. on Friday, November 17, 1933.

There are four libels: (1) By the owner of the Munargo against the Deutschland for damage to the Munargo; (2) by the American Molasses Company against the Deutschland for damage to a cargo of molasses on the Munargo; (3) by the chief steward of the Munargo against the Deutschland for loss of personal effects; and (4) a cross-libel by the owner of the Deutschland against the Munargo for damage to the Deutschland. The four libels were tried together as one suit, and will be disposed of in one opinion.

The Munargo is a passenger and cargo vessel 413.8 feet long, 57.8 feet wide, and 6,484 gross tonnage. She arrived from southern ports on the morning of November 17, 1933, docking at Pier 64, North River, where she discharged her passengers and part of her cargo. There she took on some outbound cargo, and was proceeding to Erie Basin, Brooklyn, to discharge' a cargo of molasses for the American Molasses Company. The Deutschland is a large transatlantic liner, 627 feet long, 78.10 feet beam, 20,680 gross tonnage, engaged in regular passenger service between Hamburg and New York; she was inbound from Hamburg with 277 passengers and cargo; and her destination was Pier 86, North River.

Just prior to the collision, the vessels were proceeding in opposite directions. For the Munargo, it is asserted that the courses required a port to port passing. The Deutschland says, on the other hand, that the vessels were green to green, and a starboard to starboard passing was indicated. The main issue is essentially one of fact, and involves primarily a determination of the relative positions of the two vessels as they approached each other.

The time of the collision was between 5:42 and 5:43 p. m. on November 17, 1933. The place of collision was about 600 feet east of the 'green buoy No. 31. The tide was flood; the wind southwest, between 20 and 30 miles an hour; and the weather clear, with good visibility, although it was after dusk. The angle of collision was about 60 degrees, and the bow of the Deutschland struck the Munargo on the Munargo’s port side, slightly forward of amidships, penetrating about 5 feet in the bottom plates, and about 12 féet on “A” deck. The damage to the Deutschland was on the bow, the photographs showing a pronounced snubbing of the stem to port. Immediately after the collision the Munargo was beached off Bedloe’s Island, just north qf the Statue of Liberty. At the green buoy there is a bend in the channel of about 17 or 18 degrees to the westward, so that a vessel approaching the bend must necessarily expect to make an alteration of course at that point.

The Munargo cast off at Pier 64, North Rive'r, at 5:15 p. m., and started backing from the slip; she was assisted by two Mesick tugs; and after being turned around was straightened down the river at 5 :20 p. m. Captain Fallon, the master, Rasmussen, the pilot, and Warso, the quartermaster, were on the bridge; and Goodman, the chief officer, Fernandez, the boatswain, and Pastoriza, the carpenter, were on the forecastle head acting as lookouts.

Rasmussen, the pilot, died before the trial, and the story of the collision, and of the Munargo’s navigation down the river, came almost entirely from Captain Fallon and Goodman; the others of the crew were either confused in their testimony, or added little of any real consequence.

Captain Fallon testified that after the Munargo had straightened out in the river, she passed between the New York pier ends and the ‘Brittanic, which lay in front of the slip and in the middle of the stream. The Munargo then angled towards the New Jersey shore; and when about opposite the Erie or Pennsylvania piers it was estimated that she was 1,200 to 1,400 feet off the Jersey pier ends. The course was aimed to take the vessel “a short distance off” the green buoy, which was carried “a trifle on the starboard bow.”

The Munargo first passed under the stern qf a tow bound west, which apparently came out of the East River. The engines were slowed to let this tow pass, but Captain Fallon insisted that there was no change of course for her. Goodman said, however, that “possibly they did alter it slightly” to port. When the Munargo was “just to the northward of Ellis Island,” Captain Fallon first saw the Clyde Line vessel Shawnee proceeding up the main channel; she was “just about ahead,” showing her red light, “around the south end of Governor’s Island.” The Munargo passed the Shawnee “somewhere in the vicinity of the north end of Governor’s Island,” port to port, and about a ship’s length off; and, in passing, the Munargo changed her course to starboard “just a little bit.”

The Deutschland was first seen by the Munargo before the Munargo got abreast of the Shawnee, or, as testified by Goodman, “about the time we passed the Clyde boat”; she was then from a mile to two miles off; her stacks were illuminated by flood lights; her ranges open to port; herr red light showing; and her bearing “a little on the starboard bow.” The Munargo then blew- one whistle and “ported easy.” Captain Fallon insisted that this whistle was not blown to,, or answered by, the Shawnee. No answer was heard from the Deutschland; and, after an interval of “possibly half a minute,” during which the Munargo was at slow speed, and “porting easily,” the Munargo blew a second one whistle. This second signal was answered by two whistles from the Deutschland, which was at once recognized as a cross signal. The ranges on the Deutschland then appeared to close, and the green light became visible. The Munargo immediately blew a third one whistle, her wheel was put hard aport, and her engines full speed ahead. This was at 5:42 p. m. according to the deck log, and at 5 :41 p. m. according to the engine room bell book; and the vessels were at the time" about half a mile apart.

The Munargo continued hard aport, and at full speed, until just before the collision, and Captain Fallon said that the speed of the vessel at the moment of collision was “about 11 or 12 knots.” The collision according to the Munargo’s deck log was at 5 :45 p. m., and according to the engine room bell book at 5 :43 p. m., so that the period of the Munargo’s starboard movement was somewhere between 2 and 3 minutes.

In the meantime, the Deutschland was seen to swing farther towards New Jersey, her danger signals were heard, and the noise of her anchor as it went down became apparent. Just before the collision, the helm of the Munargo was put hard astarboard. The vessels were in contact only for a brief interval, and, after they had cleared, the Munargo was quickly beached north of the Statue of Liberty.

The Munargo called various outside witnesses in support of her theory of the collision, but, before discussing their testimony, it will be helpful to consider the evidence offered by the Deutschland.

The course of the Deutschland is not in serious dispute. She was turning around at Quarantine from 5:15 until 5:21 p. m., and at 5:21 started full speed ahead up the channel. The pilot, the master, the chief officer, the second officer, the fourth officer, and two quartermasters were on duty on the bridge; the carpenter was at the windlass; and lookouts were at the stem and in the crow’s nest. At first the vessel ran in midchannel, and then over on the westerly side of midchannel. This was the usual course for vessels of the Deutschland’s class, especially on a flood tide. In the beginning, the course was 26 degrees true. Off Greenville, the Paris, bound out, was passed on the port side; and at the same time the Shawnee, inward bound, passed on the starboard side, at a distance off of about 200 yards. The Shawnee was proceeding faster than the Deutschland, and, as she passed, the Deutschland went slightly to port to give the Shawnee “a little more room,” then returning to her original course of 26 degrees true. When a little below the Statue of Liberty, the Deutschland began changing her course gradually to port in order to pass the green buoy about 900 to 1,000 feet off; and this continued until a course of 20 or 21 degrees true was reached.

The Deutschland was on this course of 20 or 21 degrees true, and below Governor’s Island, when the Munargo was first seen about half a point on the starboard bow, showing her green light, and about a mite and a quarter away. The Munargo was then on the easterly side of midchannel, her ranges open to the eastward, and she appeared to be heading be-’ tween the Battery and Governor’s Island. The Munargo almost immediately straightened out her course so as to head down the channel, and the Deutschland blew two whistles for a starboard passing. The Munargo was then about a point on the starboard bow, and still showing green; and the distance separating the vessels was about a mile. The Deutschland’s engines were at slow, and her speed not over 7% knots.

The first two-blast signal of the Deutschland was not answered, and a second two whistles was blown; the Munargo was still on the starboard bow and showing green. The Munargo then seemed to alter her course a little to starboard, apparently to pass the Shawnee, and the Deutschland blew a third two whistles. This was answered by one blast from the Munargo. The vessels were at that time from 700 to 900 yards apart, and in a position to pass starboard to starboard by 200 yards. The Munargo then started swinging to the -westward “all of a sudden” and her red light opened. The Deutschland immediately sounded danger signals, reversed her engines, and dropped her port anchor. This was two minutes before the collision.

The witnesses for the Deutschland insisted that she had substantially no forward way at the time of the collision, and this seems to be fairly well indicated by the evidence. The engines were at slow ahead for three minutes before the order to reverse was given, and for the two minutes immediately preceding the collision, they were at full speed astern. Then, too, the anchor must certainly have arrested the forward movement, for it held after 30 fathoms of chain ran out.

The Deutschland was swinging to port prior to the collision, and her heading at the time of collision was 10 degrees. The vessels cleared at once, and after the Munargo was beached, the Deutschland proceeded on up the river to her pier.

The position, of the Munargo on the easterly side of the river, and her sudden westward swing prior to the collision, as testified to by the Deutschland’s witnesses, was strongly corroborated by an imposing array of outside witnesses, most of whom not only witnessed the collision but were in positions to see what actually transpired.

McCaffrey, Finley, and Finnerty were on the municipal ferryboat Dongan Hills, which left Staten Island for South Ferry at 5:30 p. m.; they testified that the Dongan Hills was about three-fourths of a mile behind, and a little to the eastward of, the Deutschland, but gaining on her; and they placed the Munargo on the easterly side of the river, and described her swing across the Deutschland’s bow. Durning and D. J. Sullivan were on the mail boat President, which took off part of the Deutschland’s mail at Quarantine; they said that the President was running up on the easterly side of the channel, and was off the southerly end of Governor’s Island at the time of the collision; they saw the Munargo to the eastward of the Deutschland, and told about her sharp swing to starboard just before the collision. Terpening, mate of the mail, boat No. 28, testified that he came up from Quarantine on the easterly side of the channel; the Deutschland passed him on his port side; and when he was south of Buttermilk Channel he saw the Munargo “1,000 to 1,500 feet” off Castle William, and “a little bit to the eastward of midchannel.” He thought the. vessels should have passed starboard to starboard with a clearance of about 300 to 350 feet, and he saw the Munargo’s swing. Fountain, master of the Helen B. Moran, was 800 or 900 feet off the southerly part of Governor’s Island ; he saw the Munargo on the easterly side of the river about off Pier 1; and he testified that she made “a rank turn, sharp.” In addition to the above, there were a number of other witnesses, who claimed to have seen the Munargo from different points, and placed her in the position substantially as testified to by the Deutschland’s witnesses.

The Deutschland also called four passengers who were standing on deck in the forward part of the Deutschland as she came up the Bay; these witnesses all placed the Munargo well to starboard of the Deutschland, with plenty of room to pass starboard to starboard, and they gave vivid descriptions of the Munargo’s swing across the Deutschland’s bow. The testimony of Benecke was particularly impressive. He was standing in the forward part of the boat deck, just below the bridge, He drew a sketch on December 9, 1933, before he had been interviewed by either side, on a letter, which graphically showed the position of the Munargo well to starboard of the Deutschland, and her.swing prior to the collision.

But by far the most convincing testimony in the case came from the witnesses from the Shawnee, who were called by the Munargo, and obviously were reluctant to testify at all. These witnesses placed the Shawnee well over on the easterly side of the channel when she passed the Munargo, port to port, with a clearance of from 200 feet to a ship’s length. They, therefore, definitely located the Munargo prior to the collision in substantially the position testified to by the Deutschland’s witnesses. The Shawnee was bound for Pier 34, North River, and her normal course up the river was about 800 feet off the New York pier ends. She overtook and passed the Deutschland near Greenville, and then proceeded up the easterly side of the channel on a course a little more to the eastward than usual! This course was not changed for the North River until the vessel was about abreast of Castle William.

Captain Devereux, master of the Shawnee, testified that when the Shawnee was near the southerly end of Governor’s Island he saw the Munargo coming down the North River. The Shawnee was then headed about for the end of Pier 1. Captain Devereux thought the Munargo was “going into the East River,” because her range lights were open to the east; he even told the mate to blow two whistles, but just as he gave the order, the Munargo “swung over and closed in his range lights.” The Shawnee then blew one whistle to the Munargo, which the Munargo answered, thus accounting for the first of the three one whistles sounded by the Munargo; and the vessels passed “quite close,” port to port, at a distance of about a ship’s length. Young, the Shawnee’s second officer, placed the Munargo “somewhere near midriver” when he first saw her. Jones, the third officer, testified that when the Munargo was first seen, the captain gave an order to the quartermaster to swing to port, but when the Munargo straightened out, this order was countermanded. Graber, the first officer, said that when he first sighted the Miunargo, she was “a little above the Battery,” and “about in midchannel”; the Shawnee was then heading about for the end of Pier 1; he recalled the order to swing to port which was countermanded; and he remembered that the Munargo and the Shawnee exchanged one whistles, and passed at a distance of not over 200 feet. The Deutschland also called Reed, one of the Shawnee’s ■passengers, who was standing on deck as the Munargo passed; he said that the vessels passed at a distance of “about 400 feet”; he testified that he saw the Munargo’s starboard swing; and that before it was made the vessels were on courses to pass safely starboard to starboard.

The Munargo is thus met with an Overwhelming mass of testimony in direct contradiction of the story told by Captain Fallon and Goodman;' and her own outside witnesses fail utterly to support her theory of the collision. Decker, the master of the Jersey Central ferryboat Bayonne, left Twenty-Third street for Communipaw at 5 :30 p. m., and obviously was too far behind the Munargo to know anything about her movements. Moreover, when he was interviewed about six weeks after the collision, he said that he had not seen the Munargo at all. Weinberg, mate of the ferryboat Westfield, left Twenty-Third street for Communipaw at 5:15 p. m.; he testified merely that the Westfield was proceeding about in midstream, and that the Munargo was ahead and a little to the westward. Ryan was bound from Pier 18 on the Jersey side for the East River; he admitted, however, on cross-examination the complete accuracy of a prior written statement which he signed shortly after the collision; and this statement fully supports the Deutschland’s position. The witnesses from the Mesick tugs did not see the collision, and their testimony is valueless. Segrave, Krohn, and Kolb were on the tug Long Branch, which left Dock 6 of the Jersey Central between 5:36 and 5:40 p. m., bound for Pier 10, North River; they testified that they saw the Munargo when she was off -the Morris Canal, and that she was then on the Jersey side of the river. O’Brien was a deck hand on the tug Overbrook, which was bound from the East River to the Pennsylvania stake boat, near the New Jersey shore; he did not see the collision, but he told about a vessel coming down the river “about mid-channel.” He was not clear as to the identity of this vessel, and he undoubtedly confused the Munargo with the .Santa Theresa, which passed down the river ahead of the Munargo. Bunce and Ran-zinger, from the Staten Island ferryboats, were equally vague and uncertain about the vessel they saw, and were unquestionably testifying about the Santa Theresa and not the Munargo. Petrouskas, the soldier from Bedloe’s Island, did not see the collision, and was called merely to give a bearing. These are all of the Munargo’s outside witnesses, except the witnesses from the Shawnee, whose testimony has already been considered, and they gave practically no support to the story told by Captain Fallon and Goodman.

I have no doubt that the Deutschland’s story of the ' collision is the correct one. It is sustained not only by the sheer weight and character of the testimony, but by the position of the Shawnee near the New York pier ends, as proved by the Shawnee’s witnesses. And on no other hypothesis is it possible satisfactorily to account for the Munargo’s hard aport helm at full speed for a period of from two to three minutes immediately prior to the collision.

It is not particularly hard, either, to understand how the collision occurred. The Munargo came down on the easterly side of the river, and it probably was the intention gradually to work over towards the green buoy in order to be in a position to round the lower end of Governor’s Island. But traffic difficulties were encountered near the Battery. And when the westbound tow appeared, the engines were slowed, and the swing made to the easterly heading which so many of the witnesses observed. The Munargo then straightened to pass the Shawnee, port to port. Her first one whistle was blown to the Shawnee, and the Deutschland was too far away to hear the second. The Deutschland’s first two signals were missed because at the time the Munargo was occupied with the tow and the Shawnee. When the tow and the Shawnee had passed, it was found that the Munargo was then on the easterly side of the channel, and it was decided to place her on the westerly side. The distance separating her from the Deutschland was completely misjudged. And the long swing to starboard was made at full speed directly across the Deutschland’s bow in order to get to the westward of the Deutschland.

It is first insisted for the Munargo that the Deutschland failed to take into account the bend in the channel under the rule of The Victory & The Plymothian, 168 U.S. 410, 18 S.Ct. 149, 42 L.Ed. 519. From the standpoint of a vessel bound up the main ship channel, this bend was to the westward, and its effect was to place vessels above the bend more on the port bow of the Deutschland than they would be if the channel were straight. Even in spite of the bend, the Munargo was on the Deutschland’s starboard bow, and if the channel had been straightened the Munargo would have been considerably more on the Deutschland’s starboard bow than she actually appeared. The rule of The Victory & Plymothian does not, therefore, help the Munargo, but does help the Deutschland.

The vessels being on courses to pass starboard to starboard should have passed that way; no assent to such a passing was required under the present rules. The George H. Jones (C.C.A.) 27 F.(2d) 665; The Delaware (C.C.A.) 66 F.(2d) 467; The Bellhaven (C.C.A.) 72 F.(2d) 206; The Edwin Slick (C.C.A.) 286 F. 43; The Californie (C.C.A.) 250 F. 790.

The narrow channel rule has been held applicable to the waters of the main ship channel at the place where the collision occurred. The La Bretagne (C.C.A.) 179 F. 286, certiorari denied 219 U.S. 585, 31 S.Ct. 470, 55 L.Ed. 347. But it is well settled that, under the facts of the case at bar, the presence of the Deutschland on the westerly side of the channel must be deemed a condition, and not a contributing cause of the collision. The La Bretagne, supra; The Bellhaven, supra; The Clara (C.C.A.) 55 F. 1021; The Syosset (C.C. A.) 71 F.(2d) 666.

There may be a decree in favor of the Deutschland on the cross-libel, and dismissing the three main libels, with costs.  