
    THE ARMINDA. THE SILVERYEW.
    Nos. 12360, 12365, 12425, 12368, 12631, 12448-12450.
    District Court, E. D. New York.
    Dec. 28, 1931.
    Bigham, Englar, Jones & Houston, of New York City (L. J. Matteson and D. Roger Englar, both of New York City, of counsel), for Rheinhold de Lein.
    Foley & Martin, of New York City (J. A. Martin, of New York City, of counsel), for Hedger Transp. Co.
    Paul C. Matthews, of New York City (Archibald F. McGrath, of New York City, of counsel), for Oscar Norman, Christian Svendsen, Michael Morales, and Ernest G. Hellsten.
    Lord, Day & Lord, of New’ York City (Allan B. A. Bradley and J. S. Hemingway, both of New York City, of counsel), for Silver Line, Limited.
   GALSTON, Distrifct Judge.

These cases were tried together. A collision between the motor vessel Arminda and the motor vessel Bilveiyew occurred in New York Harbor somewhat above the lino between the forts on the opposite sides of the Narrows shortly after 8 p. rn. on March 18, 1931.

The respective versions of those on board these two vessels of course cannot be reconciled with each oilier. Eat-h vessel ascribes the fault to tho other, and indeed in so doing relies for confirmation of its respective version of tho collision and the happenings that preceded it upon the testimony oC officers of the Bayonne, a third vessel, not involved in the collision, but which had both vessels more or less under observation at or about the time of the collision.

The Arminda left the foot of Twenty-Third street, Brooklyn, at about 7:20 p. in. and proceeded down Bay Ridge Channel. Captain De Lein, as second mate and pilot, was at the wheel. Blio came down Bay Ridge Channel at half speed until abreast of Can Buoy No. 1, at which point her speed was increased to full ahead. This occurred at about 7:54 p. m.

At 8 o’clock the Arminda passed Lhe J unction Buoy. Coming- down Bay Ridge Channel, De Lein held close to the Junction Buoy, close over to tile side along Can Buoys 5, 3, and 1, right down to the Junction Buoy. ‘The traffic wars heavy. In the Bay Ridge anchorage there were many barges and ships. This situation becomes a. matter of significance in connection with testimony that presently will be refcarred to in relation to the anchorage for the* night which the Bilveiyew sought.

From Junction Buoy De Loin laid his course direct for Craven Shoal Gas Buoy just about south. From Can Buoy No. i tho wheel was token by the quartermaster, with De Lein standing- alongside.

At about tho time that the Arminda was at Can Bnoy No. 3, De Loin saw two ships coming up from the Lower Bay heading- into the Narrows. The vessel in advance, which later proved to bo !he Silveryew, showed a rod light, the mast and range light, while the Bayonne, which was the other vessel, showed a masthead light, port light, and a flicker of the green. Do Lein, after the Arminda passed the Junction Buoy, gave one* blast for a port to port passage. To that blast he received no reply. At that time the Silveryew was about a point or a point and a half on his port bow and about three-quarters of a mile away. De Loin later sa,w a flicker of the green light from tho Silveryew, upon which the Arminda gave another single blast, bnt got no answer. It seemed to Mm that the Silveryew was heading towards Stapleton, since her red light went out and he could see only tho green. A third one-blast signal was given, and, as soon as he realized that the Silveryew would not change the course she was then pursuing, for a port to port passage, he .topped the Arminda’s engine, gave three whistles, and put her full speed astern. As tho Arminda backed, the range light and the masthead light of the Silveryew lined up again, and her course was changed a second time, this lime towards the Arminda. The Arminda then blew a danger signal, but nevertheless tho Silveryew came on full speed and struck tho Arminda on the starboard bow, swinging her around and causing her to head over toward the Brooklyn shore. The Silveryew also continued toward Brooklyn, and apparently went aground.

At the time of the collision, the Silveryew was not on a steady course, but swinging towards her starboard. It should be noted that, when the Arminda backed, she was swinging her bow to starboard, at which timo Do Lein ordered the quartermaster to put the wheel hard to starboard. Then the Arminda laid steady, her swing to starboard having been «hacked, but. she was heading at about that timo south by oast, that is, about a point to the eastward of her original course from Junction Buoy to Craven Shoal. The angle of collision was about forty-five degrees. The .Arminda had the Quarantine wharf a’beam at llm time the collision occurred.

The foregoing narrativo of the Arminda’s course ar?d tho Silveryew’s maneuvers is that given by Captain De Lein, and I am compelled, from a consideration of all the circumstances of the ease, to accept it as describing by far the more likely story.

There was no reason for the Arminda, as is claimed by the Silveryew, to have taken a sudden sharp sheer to port. Her engines, apparently, with the exception of a “sticky” cam, the effect of which must be disregarded, worked very well. Certainly there was no occasion for the Arminda from Junction Buoy to Craven Shoal to head otherwise than on a direct southerly bearing-. That is the shortest distance between those two points.

The Silveryew’s version, of course, is quite different. As testified to by her pilot, she came up Ambrose Channel on the starboard side and was proceeding under full speed, making eleven knots. When Pilot Warner first observed the Arminda, the Sil-veryew was just below the Narrows, and after leaving Ambrose Channel had passed the Bayonne on her starboard side. When he first saw the Arminda, she was a trifle on the Silveryew’s port bow, but practically ahead, and he could see a red light and a trifle of the green, but no masthead light nor any range lights. This red light, he says, broadened a trifle and the green light closed in and opened up again only immediately before the collision.

. In the matter of signals he disagreed with De Lein’s story, for he said that on receiving the one-blast signal from the Arminda he answered with one blast, and both vessels could have cleared each other on a port to port passing. He told the man at the wheel to port easy, and looked around to see whether he was obeying the order; and, when he turned to look ahead after a very brief interval, he saw the green light of the Arminda, and then he ordered the Silveryew’s wheel hard aport and full speed astern, but the collision was unavoidable. The Silveryew’s enginés, according to him, did not have a chance to get astern before the collision.

General confirmation of the Arminda’s story, though not in every detail, is afforded by the Bayonne’s officers. The Bayonne was an in-coming vessel. On the way in, the Sil-veryew passed her about two hundred feet on the starboard side, and, when the Bayonne reached the Craven Shoal Gas Buoy, the Sil-veryew was between a quarter of a mile and a half mile ahead, bearing from one-half point to three-quarters of a point on the Bayonne’s starboard bow. At this same time the Arminda, showing a strong red light and a flicker of the green, was almost dead ahead, somewhat on the port bow.

At this point the Bayonne was on a 343 true course. Those on the Bayonne heard single blast signals, but, except 'for the fact iihat these signals apparently came from the same direction, they could not determine whether they were from the same or different ships. The Bayonne, on getting the first blast signal, was given a port helm and changed her course to starboard-about five degrees. This brought the Bayonne astern of the Silveryew. The port light of the Sil-veryew was visible, and more of her port deck lights than those on the starboard side were observable.

At this time the chief officer of the Bayonne, who was in the pilot house, believed that the Silveryew was heading for Quarantine, that is to say, for the Staten Island shore, and at the same time the Arminda was blotted out. The cause of this happening is an interesting speculation, going right to the heart of the case. Those on the Arminda attribute the fact to the" Silveryew’s change of course to port; those on the Silveryew ascribe the blotting out to the change of course of the Arminda to starboard. A third alternative, of course, is possible, for, when there are three moving objects, any one of the three could be concerned in the result. Thus conceivably the movement of the Bayonne herself might have brought about the blotting out of the Arminda. However, this last alternative may readily be disregarded, because obviously no change in the course of the Bayonne had anything to do with the collision. The collision was caused because of the change in course of either the Arminda or the Silveryew, or both, and in consequence the most significant testimony offered by those on the Bayonne was that of the chief officer, that the Silveryew was heading for Quarantine. Of almost equal importance is the observation of Greis, her second officer, that the vessels, when he first observed them, were headed to pass port to port, and that it was the Silver-yew which blotted out the lights of the Ar-minda. As for the movement of his own vessel, he had steadied on a 348 course, as shown by the course recorder of the Bayonne. So far as I am able to understand from the course record, as shown by the photostatie reproduction, I can find no evidence of a sheer to starboard on the part of the Bayonne such as would account for the shutting out of the Arminda’s lights.

Greis and the course recorder tend to confirm the conclusion of the chief officer of the Bayonne that the Silveryew was heading for Quarantine. Nor can the Silveryew find from its witness, Captain Koljner of the Bayonne, any contradiction of this version. At most he declined to admit that he saw the Silveryew swing to port before the big swing to starboard.

Some additional proof of the Silveryew’s swing to port in the general direction of Quarantine is had by a consideration of the cross bearings taken by her chief officer, God-ley, of- her position after the collision, in con-neetion with testimony of other of her officers, of her heading before the collision. Her captain testified that coming up from Am-brose Channel she was on the starboard side of the channel with the buoys dose on the starboard hand. After leaving Ambrose Channel, she laid a course for the Narrows, keeping' the red light on Ft. Lafayette nearly ahead. Now the point indicated by the cross bearings taken by Godley after the collision was approximately one thousand feet west of the extended course of the Silveryew as thus described. While it is not certain, nevertheless, apparently the collision occurred to the west and south of the. point fixed by the cross bearings, so that them must have been some change in course on the part of the Silver-yew sufficient tq, bring lior more than one thousand feet to the westward of her original course. This change probably occurred close to Ft. Lafayette, and must have been ni substantial change to port from her oi iginal heading. In effecting such alteration in course, she would ha.ve intersected the line from Junction Buoy to Craven Shoal, and thus would have headed directly across the Anninda’s course. The graphic illustration of Captain Sheridan, as shown on Do Lein Exhibit 12, is thus very convincing’.

Contradictory versions of important happenings compel resort to the probabilities of the case for the ascertainment of the; truth.

I can find no reason why the Arminda should have changed her course. On the other hand, to find that the Silveryew did, is understandable, if Koljner was right in assuming that the ves«el was heading for Quarantine. I cannot believe that the Anninda’s single blast was answered with a similar signal from the Silveryew. It seems to me that there must have been faulty lookout, because, if one accepts the story of the Silveryew that by her signal she was prepared for a. port to port passage, one cannot understand why the collision should have followed.

The suggested alteration of course by the Arminda to port across the how of the Silver-yew is past belief, unless one predicates an order misunderstood by the helmsman. Indeed, Captain Butler of the Silveryew could offer no other possible explanation. In the conflirt, of testimony, reasonable explanation of the happening of the accident is afforded by the finding’ that before the sharp swing to starboard, the Silveryew had headed for Quarantine for anchorage, and, in the act of so doing, realized too late that she could not clear the Arminda’s bow. Then, in the des-púlate effort to avoid collision, she must have sought, without avail, a port to port passing.

Moreover, there is reason to believe that the Silveryew, despite the fact that there were men on the bridge, did not respond to the single blasts from, the Arminda. There is no denial that the Arminda did give the signals requesting a port to port passage, and, though it is assn ted by those on the Silver-yew that they heard one whistle and answered it, as Pilot Warner said, with a single blast, I cannot believe that the answering blast was given. The estimated interval of ion seconds gives one pause, for though conceivably short periods of time are difficult to estimate and a witness might be honestly wrong in making an estimate of a brief interval, yet Officer Greis of the Bayonne testified that, after hearing the first blast, the Bayonne made a change of course and held that changed course for two or three minutes before the Arminda’s lights were blotted out. It would seem, therefore, that the Silveryew did not respond to, and perhaps did not distinguish the Arminda’s signals. In The New York, 175 U. S. 187, 20 S. Ct. 67, 73, 44 L. Ed. 126, it was said:

“No reason is given why the signals of the Conemaugh were not heard, and as the New York was not more than a mile distant from her when her first signal was blown, and considerable less than that when the second signal was blown, her inability to hear them is inexplicable, except upon the theory that no sufficient lookout was maintained, or that such lookout did not attend properly to his duties. Her officers failed conspicuously to see what they ought to have seen or to hear what they ought to have heard. This, unexplained, is conclusive evidence of a defective lookout. The Sea Gull, 23 Wall. 165 [23 L. Ed. 90]; * * * The James Adger [Fed. Cas. No. 7,188], 3 Blatchf. 515; The Fanita [Fed. Cas. No. 4,636 ], 14 Blatchf. 545; The Sunnyside, 91 U. S. 208 [23 L. Ed. 302]; * * * Spencer, Collisions, § 175.”

The rule that reasonable probabilities should be considered as a guide in eases in which the evidence is conflicting is set forth in The Black Diamond (C. C. A.) 273 F. 811; The Winceco (D. C.) 39 F.(2d) 970; The Cedarhurst (C. C. A.) 42 F.(2d) 139.

On the other hand, I can find no fault attributable to the Arminda. If the Silveryew had shut out her red light and opened her green light, the starboarding of the Arminda’s helm could, hardly be termed a fault. The Arminda’s maneuver, however, was taken just immediately before the collision, and did not contribute to it. When it appeared that danger of collision was imminent at the time that the Silveryew appeared to cross the port bow of the Arminda, it was a reasonable maneuver for the Arminda to seek to go to port. Her navigator could not surmise that the Silveryew would again swing to starboard.

Again, though, it is said that the' Armin-da’s lights were not properly set nor burning brightly, yet at all times before the collision these lights were apparently in good working order, for they were seen by the neutral witnesses on the Bayonne. There was some testimony to the effect that the masthead light was obscured by smoke prior to the collision, obut the presence of smoke was not visible to those on the Bayonne until after the accident. Nor can the collision in any way be attributable to the manner in which the Arminda’s starboard light was screened. The result of a. defective screening of the starboard side light, such as was testified to by the witness Haight, would have been to lead those on the Silveryew to believe that the Arminda was headed further to starboard, which would have increased the margin of safety for the Silveryew.

Finally, it is charged that the Arminda was at fault in failing to have a proper lookout. The signal blasts given by the Arminda are in disproof of such contention. There is convincing testimony that the Arminda observed the approach of the Silveryew and gave ample call for a port to port passage. Moreover, the lookout man was stationed at the forecastle head of the Arminda until 8 p. m., and up to the time of the collision, two minutes thereafter, apparently there was nothing that a lookout could have reported to prevent collision that was not observed by Captain De Lein. Assuming the absence of a lookout between 8 p. m. and the time of collision, such absence cannot be held to contribute to the subsequent happenings. The Lake Monroe (D. C.) 270 F. 858; The Eagle (C. C. A.) 289 F. 661.

For the fortegoing reasons, I believe the Silveryew was responsible for the collision.

Accordingly, the libel of the Silver Line, Limited, must be dismissed, and thp other libels sustained. Present decrees on notice.

If this opinion is not in sufficient compliance with the rule requiring findings of fact and conclusions of law, submit findings of fact and conclusions- of law in accordance therewith.  