The opinion of the court was delivered by: FORMAN
This proceeding arose out of a collision which occurred December 10, 1939 south of Dunkirk Road near the entrance to Dunkirk Harbor, France. It involves in personam actions between Toft Steamship Company, Limited, the owner of the S.S. Harfry of British registry and Sociedade Geral De Comerico Industria E Transportes, Ltda., the owner of the S.S. Luso of Portuguese registry, and in rem actions between the respective ships by their owners, the owner of the Harfry having filed the original libel and the owner of the Luso having filed a claim and cross libel. By consent of parties the causes of action upon the libel and cross libel were consolidated for trial. The libel on behalf of the Harfry was amended to include a claim for loss of personal effects of her master, officers and crew. On the trial in this court evidence was offered including testimony on both sides in the form of depositions taken abroad about two years following the occurrence of the collision. The claimant and cross-libelant questioned the jurisdiction of this court, but in an earlier decision jurisdiction to hear the cause was retained.
Annexed hereto will be found a diagram traced from the chart of the harbor at Dunkirk, France. Inshore buoys numbered 14, 16 and 18 are indicated, and the other numbers together with curves show the depth of the water in feet at low water. The area north of the buoys was formerly a marked passage leading to the channel protected by jetties shown at the right of the drawing, but at this time that area was mined and not navigable. Thus, traffic was routed close to the French shore so as to pass south and inshore of Bouy No. 16.[SEE ILLUSTRATION IN ORIGINAL]
The Luso is a comparatively large vessel: 460 feet long, 58 foot beam, and drew 25 feet 11 inches aft. The Harfry is smaller: 200 feet long, 32 foot beam, drawing either 15 feet and 6 inches or 13 feet 6 inches aft on the day of the collision.
Testimony shows that the variation between low and high tide was about 17 to 18 feet, that the condition at the time of the collision was about half-flood, and neither party contends that the water was more than 8 feet deeper than the chart soundings indicate.
On the morning of the collision the weather, sea and visibility were good, and the tide was running about two knots from west to east approximately parallel with the buoys.
Shortly before 9 a.m. the Harfry left her anchorage in the vicinity of Buoy No. 9 west of Buoy No. 14. The Luso was anchored east of the jetties and got under way around 8:45 a.m. on a westerly course so as to proceed past the jetties and inside the buoys shown on the diagram. Both ships had local pilots aboard. The Luso was sighted before she reached Buoy No. 16, and the Captain of the Harfry testified that his ship lay off Buoy No. 14 to wait for the Luso to come through the pass so that 'we would not pass abreast of Buoy No. 16', and that his holding back was not in accordance with any traffic regulations but for 'decency's sake'.
As the Luso passed the jetties she gave a long blast, made full speed (10 knots), straightened out. angled her course with reference to Buoy No. 16 and reduced speed to 'slow ahead', estimated to be around two knots. The collision occurred just west of Buoy No. 16.
When the Luso was in the vicinity of Buoy No. 16 she made a short blast and the passing signals which followed occurred within two minutes according to her log and the testimony of witnesses. At this time, the testimony of the Harfry's Captain is to the effect that the Harfry was still 'dawdling' at Buoy No. 14, giving her engines a kick now and then, cutting in towards land with the Luso about three points on the port bow, and in response to the signal her engines were put 'slow ahead' (2 to 3 knots) and her helm hard astar-board and a short blast was given. The Luso made another short blast which was answered by the Harfry and the latter's Captain states she was still obeying the signal but getting close to shore. The Luso made a third short blast when the ships were four or five ship lengths apart (according to the Harfry's Captain) which the Harfry answered with two short blasts, and the Luso in turn replied with two short blasts.
When the Harfry crossed signals the range between the ships was estimated to be 400, 600 or 1,000 feet, and she rang up 'full speed ahead', came to port and the Luso made what appears to be a slight alteration to port. While the Harfry was crossing, her Captain, who was in the Pilot House, rang up 'full speed astern', but this was immediately altered from the bridge by the Pilot to 'full speed ahead'. When the ships were 40 to 50 feet apart the Harfry shifted her rudder to starboard in an effort to swing her stern clear of the Luso's bow.
It is contended that the Luso dropped her starboard and port anchors in succession. She reversed her engines, and her bow struck the Harfry's starboard side abaft the beam about two-thirds the length from her bow. The Harfry then swung around the Luso's starboard side between her and Buoy No. 16 which was about 40 feet away on her port side (Harfry's). She made for the beach where she settled. Included in her losses were her logs and records.
Evidence with regard to speed, state of the tide, range, and the position of the ships in the channel, is not exact. The Harfry contends that the Luso proceeded at an excessive speed, that she was too far inshore, that she did not alter her course to starboard pursuant to her whistle signal, that she failed to alter her course to port as later agreed upon, and that she was at fault in dropping the starboard anchor for that veered her bow into the Harfry's side. The Luso contends that she was on her side of the channel (outboard), that the Harfry was at fault in crossing her bow and for reversing her engines while executing the maneuver, that the Harfry must have made a helm error when she cut across, that the Harfry failed to alter course to the right pursuant to her responsive signal, that she dropped both her anchors simultaneously, that the Harfry was not 'dawdling' at Buoy No. 14 when the first short blasts were exchanged, but was on a straight course in the channel between Buoys 14 and 16, and that the failure of the Harfry to produce her logs and records constitutes an admission against her.
The provisions of the International Rules of the Road with reference to passing signals are as follows:
'When two steam vessels are meeting end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard, so that each may pass on the port side ...