'Three short blasts to mean, 'My engines are going at full speed astern." Article 28, 33 U.S.C.A. § 113.
The Harfry's captain places his ship at Buoy 14 at the time of the first exchange of short blasts, and claims that he was 'dawdling' there so as not to pass abreast of the Luso at Buoy 16. He testified that he was cutting in toward land across the Luso's bow, and was unable to accept her third short blast because at that time he had already gotten too close to the beach, was crowded by the Luso for that reason made the signal indicating he would cross to port, to which the Luso replied. He further testified that the exchange of whistle signals was rapid, and the Luso's log shows that they were exchanged within a period of less than two minutes. The chart indicates it is more than a mile between the two buoys, and the testimony shows that the collision occurred not far west of Buoy 16. This collision could not have occurred in this area if the Harfry were in the position claimed by her Captain, and the court finds that she must have been on a course somewhere in the channel between the two buoys and closing Buoy 16.
In so far as the speed is concerned the Harfry calculates that the Luso must have been making 7 knots through the water and that this was excessive. Logs from the Luso show that she made 'full speed' (10 knots) as she passed the jetties, but it is claimed that it was afterwards reduced to 'slow ahead' (2 knots). The court is not persuaded that the speed of the Luso was excessive in any event or that this was a contributing factor.
It is unfortunate that the attidtude of 'decency' which moved the Captain of the Harfry to 'dawdle' at Buoy 14 so that the two vessels would not pass abreast of Buoy 16 did not continue, and it is odd that it did not, since our observations of the chart show that the channel is approximately as narrow at any place between the two buoys as it is at Number 16. However clear it may be that the collision would not have occurred but for the failure of the Harfry to give way to the Luso, the court is not prepared to say that this omission conflicts with general prudence and is fatal in the absence of some specific regulation.
Testimony in behalf of the Harfry with reference to the position of the Luso as she passed Buoy 16 is that she was 250 to 300 feet inside while the witnesses for the Luso testified that she passed close to the buoy. The chart on this issue shows that within approximately 250 feet from the buoy the water shoals from 23 to 13 feet and that it is about 400 feet to the 10 foot curve south of the buoy. Even when allowances are made for the increased depths due to the tide, it is apparent having in mind the respective drafts of the vessels, that the Luso must have been outside the 13 foot curve which would allow her 250 feet within which to navigate, and assuming she used all this space, the Harfry still had 150 feet within reach to navigate. The chart, therefore, refutes the claim that the Luso crowded the Harfry.
It is claimed that the Luso failed to alter course to starboard according to her one blast signal, and it is also contended that the Harfry failed to alter to starboard pursuant to her response to that signal. The Rules of the Road, Article 28, supra, state that a one blast signal means, 'I am directing my course to starboard', and in the case of The Lisbonense, 2 Cir., 53 F. 293, it is declared that helm action is required. According to our interpretation of the evidence, the Luso was on her side of the channel. She was prevented from going too far to starboard because of a mine field, but there is no claim that she did not go to starboard on the execution of the first short blast. It must be remembered that passing signals were exchanged in less than two minutes according to the Luso's log and according to the Harfry's captain the exchange was rapid. It, therefore, appears to the court that the situation as it existed when the Harfry replied to the second short blast of the Luso could not have been materially different from the circumstances as they existed at the time the Luso sounded the first short blast. The admonition to stop and back in emergencies has often been given. Southern Pac. Co. v. United States, 2 Cir., 1934, 72 F.2d 212. Instead, however, the Harfry responded to the signal and indicated her approval of the proposed passing port to port. However, in a very shor time and after the Luso sounded the third short blast the Harfry gave two short blasts and undertook to cross the bow of the Luso and alter a normal port to port passing. Rules of the Road, Article 18, supra. It would seem that the greater responsibility for the due execution of the signal to pass to the left rested upon the Harfry. The Geo. L. Garlick, D.C.E.D.N.Y., 1898, 91 F. 920.
In the case of the Valley Forge, 3 Cir., 1903, 124 F. 192, the Carisbrook was going downstream in the Delaware and signaled to port to port passing which was agreed upon by the Valley Forge coming upstream. The Valley Forge later made two blasts and attempted to pass starboard to starboard, but collided with the Carisbrook which had sounded the danger signal and reversed her engines. The court ruled that the Valley Forge should not have crossed signals after accepting a port to port passing, that the Carisbrook was free from fault, and affirmed the lower court's decision.
In the instant case it might be argued that the Luso was at fault for accepting the cross signal of the Harfry, for she answered with two blasts. The Richard J. Barnes, 2 Cir., 1940, 111 F.2d 194; Southern Pac. Co. v. United States, supra. It appears, however, that at the time the Harfry changed her course to port the range between the vessels was somewhere between 400 and 1,000 feet. The Harfry was smaller and more maneuverable, and in view of the fact that the impact was received in the area of her starboard quarter, the court is constrained to the finding that the range was ample for her to execute this maneuver. This view is strengthened by the fact that at this time the Harfry was making 'full speed ahead' and at a critical moment there was a difference of opinion between her Captain and pilot which resulted in a momentary reversal of engines. We believe that this confusion on her bridge was a contributing factor in spite of the testimony of her engineer that there were only a few revolutions of the propellers in that direction.
Beyond this point the only complaint is that the Luso first dropped her starboard anchor which thrust her bow against the Harfry. The applicable rule is stated in The Lafayette, 2 Cir., 1920, 269 F. 917, 925: ' * * * if one vessel places another in a position of extreme danger by wrongful navigation, the other ship is not to be held to blame if she does something wrong and is not navigated with perfect skill and presence of mind.'
The libel, as amended to include damages for the loss of the personal effects of the crew, against the Luso in rem and against her owners in personam is dismissed. The cross libel against the Harfry in rem and against her owners in personam is sustained. Since no objection to libelant's application for limitation of liability is offered, recovery by cross-libelant shall be limited pursuant to statute.
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