
    THE CALORIC. UNITED STATES v. DAMPSKIBS AKTIESELSKABET ATLANTIC.
    District Court, S. D. New York.
    November 14, 1928.
    Charles H. Tuttle, U. S. Atty., of New York City (Charles E. Wythe, Sp. Asst. U. S. Atty., of New York City, of counsel), for the United States.
    Haight, Smith, Griffin & Deming, of New York City (John W. Griffin, of New York City, of counsel), for claimant.
   KNOX, District Judge.

The collision, which gives rise to libelant’s claim against the Caloric, occurred in the Panuco river, near Tampico, in Mexico, and the owners of the libeled vessel raise several questions of Mexican law which, it is said, necessitate the dismissal of the libel. Fortunately, the facts in the case are unusually simple, and, as they warrant a decision in favor of claimant on the merits, no consideration need be given to the points of foreign law to which attention has been invited.

The conclusion which I draw from the testimony of the fact witnesses is that the Cathwood was not in sight when the Calorie cast off her lines from the Huasteca wharf, and began to turn around in the river in order to head out to sea. She proceeded in this Maneuver to a point where she was practically athwart the channel of the stream when the Cathwood came from around El Humo bend, and saw her progress blocked by the presence of the Calorie. The Gathwood blew for a starboard to starboard passing, and followed these blasts with danger signals. These were repeated, and, so far as appears, they were not answered by the Caloric. The officers of the latter ship were unaware of the collision of the Cathwood with the Colonel Bowie until three years after the event, and have no definite recollection of the events leading up to it. The Mexican pilot who was taking the Calorie to sea recalls the approach of the Cathwood while he was engaged in turning the Calorie so as to head down the river towards the Gulf, and admits that he heard the signals of the Cathwood. He says, however, that when such signals were received he had his ship athwart the river channel, and there was nothing he could do to facilitate the passing of the Cathwood, except to turn his vessel as quickly as possible, and get her straightened out downstream. He had a narrow channel in which to maneuver a loaded tanker which was not far from being as long as the channel was wide. Had he gone back on the engines for an appreciable distance, the stem of the Caloric would have collided with the Huasteca dock, and had he gone forward he would have run his ship aground. His only recourse was to back and fill until he could get the vessel headed downstream. Meanwhile, the Cath-wood, having seen that if she continued ahead she must collide with the Caloric, reversed her engines and dropped an anchor. This caused her to veer into the Colonel Bowie. The damages arising from the impact have been paid by libelant, and the same are now sought to be recovered under an assignment from the owners of the Colonel Bowie, together with a recoupment for the injuries and loss suffered by the Cathwood.

The officers of libelant’s vessel give a version of the facts which, if believed, in their entireties, would place responsibility for what happened upon the Caloric. There is, nevertheless, one circumstance which makes me a little hesitant to accept all that they say at its face value. It is' that as the Cathwood came down the river two vessels, the Calorie and the Texarkana, both of which had been moored parallel with the Huasteca dock, started to leave their moorings to turn around in the river preparatory to going to sea; that following the signals from the Cathwood, the Texarkana went back to the pier, while the Caloric continued to swing into the stream and block the channel. The captain of libelant’s ship insisted in his testimony that he was sure the Texarkana had acted in the manner described, having observed her vdth his own eyes. While it is possible that two large loaded tankers would have attempted such a maneuver in a narrow channel in which a two-mile current was running, I think it hardly probable that they would have done so. There is, however, another feature of the matter which tends to give discredit to the accuracy of the statements of the Cathwood’s officers, and that is that on the day in question, the Texarkana was not at Tampico, but at Newport News, Ya.

Assuming, however, that the captain of the Cathwood was merely mistaken in the identity of the vessel which he believed to be the Texarkana, and that another vessel did start to leave the Huasteca dock at the same time as the Calorie, and was able to get back alongside, while the Calorie continued to turn, the fact does not necessarily impose liability on the latter ship. All the witnesses from the Caloric are definite in saying that when the vessel oast off her lines and started to turn, the river, so far as the movement of large vessels was concerned, was clear. Further, that once the vessel was committed to. the turning movement, she had no alterna-' tive than to continue it to completion. That this opinion of the matter is altogether reasonable is given some support by the master of the Cathwood, who stated that when he first observed the Calorie there was an angle of 20 degrees between her bow and the dock. If all her lines had been cast off, as appears to have been the fact, there is slight reason to believe that she could have done otherwise' than she did. The current was on her port bow, she had the momentum of her engines in getting away from the wharf, and her movement could have been checked only with great difficulty. Her keel was scarcely a foot above the bottom of the river, and dropping her anchor would have accomplished but little. It would not have held until considerable chain had been paid out, and the natural direction of movement in paying out the chain would have been across the course of the Cathwood. Had the Caloric attempted to use her helm to straighten herself up the river, the presence of the vessel, which the Cathwood’s master supposed to be the Texarkana, might well have been an obstacle. Had the Calorie reversed her stem, • which was close to the dock, she would have collided with it. Notwithstanding all this, which might well have been surmised by the Cath-wood, she continued on her way until the angle between the Calorie’s bow and the dock had increased to 50 degrees. Then it was that the Cathwood reversed her engines and followed the movement by dropping her anchor. Had she taken these steps when she first observed the movement of the Caloric, and when there was no answer assenting to the passing signal, the collision with the Bowie would probably have been avoided.

This, however, is not all. The testimony and the exhibits, particularly the report of the accident which the Cathwood’s master made to his owners, indicated that when that vessel proceeded up the Panuco to turn around, she went above the El Humo bend, and on coming down the river was running at a fairly high rate of speed. Until she rounded the bend, she could not see what was going on in the relatively straight reach of the river in the vicinity of Huasteca dock. Prom a notation of the Cathwood’s engine movements, appearing on the master’s report of the accident, they began to go full ahead at 2:10 p. m. Three minutes later they were put at half speed, and so continued until 2:18, when they were stopped. Until this time the ship must have been proceeding over the ground at at least five knots per hour. Add to this a two-mile current, and the result is a probable speed of at least seven miles. With such rate of advance, the Cathwood drifted until 2:21, when trouble was imminent. The engines were then put full speed astern. The collision with the Bowie ensued. It is fairly inferable, I think, that the engines were put at half speed when the 'Caloric was first observed. The bow of the latter, it will be remembered, was then at an angle of 20 degrees to the dock, and she refused to assent to the Cathwood’s passing signal. Notwithstanding, the ship proceeded with undiminished speed for a period of three minutes. In my judgment, this was improper navigation and renders the Cathwood solely at fault.

It may be that the Caloric should have responded to the danger signals of the Cath-wood, which immediately followed the passing blasts. But such response, if made, could not have changed a situation that was fully appreciated by the Cathwood.

In conclusion, it may be added that the Cathwood was without a licensed pilot on her undertaking to navigate, and that her master had been in command for a period of but four months. Never before had he attempted to take a vessel to sea from out the Panuco river. At the same time he admits that, from experience gained as a junior officer, he knew that pilots, in taking vessels from Tampico, ordinarily proceeded at slow speed. The master of the Cathwood should have been as cautious as the pilots.

From all that has been said, I think the libel should be dismissed.  