The Cushing

266 F. 570, 1920 U.S. Dist. LEXIS 1071

• Court: District Court, S.D. New York
• Decided: June 26, 1920
• Status: Published

Opinion

EEARNED HAND, District Judge

(after stating the facts as above). In this case the conceded facts seem to me to help dispose of much of the controversy, regardless of the testimony of the witnesses, based upon necessarily fugitive recollection. It is agreed that the Proteus, a vessel 390 feet long, with a speed of 13% knots, was upon a course N. 50° E. true. It is further agreed that she made no maneuver except to hard-aport her helm and continue at full speed. If she had turned through an angle of eight points, as is practically certain, we can tell with much approach to certainty the position of her bow off her course at the time of the collision; i. e., what had been her “traverse.” We can also tell how far she had advanced, measured along her projected course, from the point of porting; i. e., her “advance.” The basis of this calculation I take from Admiral Knight’s “Modern Seamanship,” plate 93, p. 303. This shows that the “advance” of a ship 350 feet long is 453 yards, and for a ship 420 feet is 663 yards. The “advance” of the Proteus, on the basis of the smaller ship reckoning that the proportion is constant, would be about 1,514 feet; on the basis of the larger, about 1,845 feet. It is of course impossible to be exact, but it is reasonably safe to take it at 1,700 feet, and to say that the bow of the Proteus, when she ported, was 1,300 feet behind the place of collision, measured on her own projected course.

I shall show later that the stern of the Cushing had not yet left her course, taking her story of backing and porting at its full value. If she was headed two points to starboard, and her stern was on her course, her bow had made a “traverse” of a little over 150 feet, and as she struck the Proteus about amidships, the bow of the Proteus was substantially crossing the projected course of the- Cushing at the moment of collision. Since it is possible to find the “traverse” of the Proteus by the same means as her “advance/’ we can tell with very reasonable accuracy how far the courses were apart. By the same calculation as in the case of the “advance” I find the Proteus “traverse” to have been between 1,100 and. 1,200 feet.

The distance actually covered by the Proteus is more difficult to estimate, and is not important, except as it fixes the time from her hard-over helm to the collision. Capt. Colomb (transparent diagram 4) gives to a vessel under similar conditions a change of about 5% points in 85 seconds, a minute and a half. The distance covered by a boat 420 feet long computed on Admiral Knight’s plate 93, is about 2,250 feet, and for a boat 350 feet long, 1,410 feet. If I take the distance covered by the Proteus at 2,000, it will not be far wrong. At the end of this time her speed is 60 per cent, of her initial speed. An average of 75 per cént. is not far wrong, or 10 knots an hour, say two minutes. This corresponds pretty well with Colomb’s figure for a change of 5% points, and is, all things considered, not very far off the estimates of all the witnesses, of between 2% and 3 minutes.

I can now, I think, estimate fairly closely the position of the Cush-ing when the Proteus ported, taking the Cushing’s version of porting and backing and a change of 2 points. Colomb’s diagrams (transparent No. 4) for such a situation gives a change of a little less than two points at the end of 35 seconds. A change of 2 points would not take over forty seconds, and the “advance” is just about two lengths; i. e., 850 feet. The earlier part of the two minutes the Cushing was going at full speed, 12% knots, a distance of say 1,600 or 1,700 feet, Her bow was therefore about 2,500 feet from the place of collision when the Proteus ported. At that time the vessels were about 4,000 feet away from each other; the Proteus bearing a little more than 1% points on the Cushing’s starboard bow. The estimate of 1 to 1% miles of the Proteus’ witnesses is not so far wrong as might be expected at night, and that of three-quarters of a mile made by the Cushing’s witnesses would be close, if they had seen the original change of helm, though I do not believe they did, for reasons given later.

Knight, pp. 316-318, gives a somewhat different description of the behavior of a ship backing under a hard-aport helm; but it is to be observed (page 318) that the discrepancy between these authors disappears in cases where the helm is first put hard over and the vessel therefore begins to swing before she feels the effect of the screw. He says:

“If the ship has actually begun to swing in obedience to a hard-over helm before the screw is reversed, she will in most eases continue ’ to swing the same way in spite of the screw, although much less rapidly than if the screw were not reversed.”

In the case at bar the helm was put over first to port and then hard-aport for some seconds before the engine was reversed. A very substantial part of a minute must also be allowed in the engine room (20 or 30 seconds, Brown). Besides, Bergman had to enter the wheelhouse to turn on the lights and go back to the bridge to reverse. It is safe to say that the Cushing was quite all of 30 seconds under a port helm before the engines were reversed. This, if anything, makes the time of her swing of two points to starboard shorter than I have found.

The supposed bearing of the Cushing from the Proteus seems to me so clearly wrong that I can only account for it through the excitement of the moment. It is physically impossible that the Cushing should ever have been on the Proteus’ port bow. The supposed bearing of the Proteus from the Cushing is stated by the witnesses generally to have been ll/¿ points at 5 miles, but that is equally impossible. At 5 miles the Proteus would have borne about 5 degrees on the Cushing’s starboard bow, if the courses had been exactly parallel or 8° in fact. This bearing broadened till it was a little, over points when the .Proteus ported. However, it is not likely that during the earlier part of the Proteus’ swing her changed helm without side lights could be noticed from the Cushing. For nearly half her “advance” her mass continued on her old course, and meanwhile the Cushing was advancing. At about the time when she began lo make in upon the Cushing she bore substantially more than 2 points on her starboard bow. It was not far from that time when the Proteus blew her whistle, and this I think is the first moment when Bergman became aware of her maneuver. His estimate of bearing is not so far wrong, then, though the distance bad become about half a mile, not three-quarters. I remember that he says he could tell the change in the range of the masts, and saw her swing' before this, but I think this most unlikely. The angle subtended by the masts at that distance and seen so nearly ahead was small. It is clear from the log that he did not act till he heard the whistle, and that was about the time when he could first have seen any change, unless by the range of the masts. If he had in fact seen the Proteus start to cross his bows, I can scarcely believe that he would have waited at all to act as eventually he did act. Besides, his vessel would have been in a different position, had he been backing and hard-aporting for so long. Taking all the evidence, it appears to me the more reasonable conclusion to suppose that he did not, as he. supposes, see so finely as to observe the masts come in range, but that he saw the Proteus swing in and heard her whistle, and that then he did what he says.

1 am, of course, aware that deductions of the foregoing sort are proverbially hazardous. In this case, however, they are founded on unusually certain data, and, what is perhaps more, they correspond surprisingly well with the observations of the witnesses where these are not in conflict. As to the period of the Cushing’s backing, her testimony rests entirely upon estimates made at a moment of great excitement, except that of the engine room, the entries in whose log I am unfortunately forced to conclude, from inspection, have been tampered with.

Such being the facts, as I find them, the fault of the Proteus is open and unquestioned. To take but one, the failure to sound her whistle until midway on her swing cannot he shown not to have contributed to the collision. For the greater part, perhaps the whole, of the interval between her hard-aport helm and her whistle she was still on her course. I have concluded that Bergman failed to act for probably a minute after she in fact put her helm over, and had he not so waited the collision would not have happened. If he had got a single blast at once, as he should, it is of course impossible to say that he would not have acted.

Furthermore, it seems to me a clear fault not to have switched on her lights at once when she began to maneuver. Whatever latitude is to be allowed to commanders because of submarines, the period of caution ends when the ships begin to avoid collision. The Larchgrove, 1 Lloyd’s Hist. Rep. 498. Had the Proteus done so, Bergman would have seen the red light open before he did in fact notice any change in course. These two faults I find, and it is not necessary to consider the more doubtful question of the sharpness of her lookout. That the case was not one of head-on meeting, but of starboard to starboard, appears plain. I think it indistinguishable from the case of The Worsley Hall, mentioned below.

As to the Cushing, the question is, indeed, more embarrassing. In spite of Bergman’s admission that he saw the masts swing into range, I have, for the reasons I have given, concluded that he did not observe the Proteus’ change of course until her mass began to move towards him, at about which time he heard her whistle. It is quite impossible in my judgment to convict him of any delay in the remaining period, or the ship either, assuming two men should have been on the bridge, as they should. He had not much more than a minute to do everything, and he succeeded in getting his helm over and his ship backing for a period of over half that time. Of course, the calculations are not to be taken exactly; but this very fact forbids holding him at fault. I am aware that it is a somewhat strong finding, in the face of his admissions, to say that he did not see the change earlier; but I can only add that it is clear that, as he was certainly keeping a sharp lookout and was ready to act, it seems to me incredible that he should have waited after he became aware of the Proteus’ perilous undertaking. If the Cushing was at fault, it was for letting matters come to such a pass that the emergency could arise at all.

The Cushing had had the Proteus under observation for at least 10 minutes, and had pretty clearly made out her course. Bergman assumed, though he clearly had no right to do so, that the Proteus had equally made him out. He had every advantage in seeing, and it was clearly negligent not to consider his own low visibility at night to one peering away from the moon. He knew, also, at least he was charged to know, that he only had a berth of about 3 lengths, and that, while all would be well if the Proteus kept her course, he was dealing, not with mechanical forces, but human beings, whose automatic conduct, when surprised, is not absolutely predictable. In short, he had no right to suppose anything about the conduct of the Proteus if surprised in a narrow berth, unable to make out without lights what was the course and speed of another ship close aboard.

What he had reason to expect actually happened. The Proteus made him out, misunderstood his position, and did exactly the wrong thing. It was then too late. Now he had had it entirely in his hands to avoid just that emergency. I quite agree with his conclusion that it was not a case of article 18 at all, because the two vessels would “pass clear of each other,” if both kept their courses. The English cases earlier than The Worsley Hall, H. of L. Dec. 19, 1919, so far as they may be to the contrary, are no longer to be considered as English law. To have ported and crossed the Proteus’ bows would have been improper and hazardous, and it was not in the least necessary. Yet it does not follow that he should have kept on without giving warning. All cases are necessarily of special circumstance in which the ships run without lights; the rules, of course, presuppose that the courses of all ships shall be declared to each other, so that they shall be able to navigate accordingly. Though Bergman knew that he could pass clear, he should have used a caution measured by the consideration that the Proteus might not have the same knowledge.

He was bound, I think, either to flash or set his lights, or to give her a wider berth. If he had given as his reason for not showing his lights earlier that he was afraid of submarines, I should not, perhaps, hold his decision wrong; that being the judgment of the master pro hac vice as to when an emergency had arisen. But he does not give that as an excuse; on the contrary, he says that he supposed that the Proteus already saw him and was navigating accordingly. That, as I have said, he had no right to assume. It does not appear that he would not have thought the situation an emergency, if he had supposed that the Proteus did not see him. H ence it seems to me that he cannot be, excused on a ground which he does not suggest, and because of a choice which apparently he did not make. At best it would have been proper to call Miller, the master, and let him make the choice whether the time had come to give some signal with the lights.

But I think it is not even necessary to assume this. Indeed, if he had given as his reason that in his judgment the time had not yet come under the navy orders to flash or set his lights, I, should still think his navigation improper, because the very fact that he could not give the usual information of his presence, and so set in operation as it were the steaming rules, that very fact imposed upon him the duty to insure against the possibility of danger arising from the special circumstances in which he was forced to steam. All that he need have done, when the Proteus’ course was once made out, was to ease off to the south, and give her an ample berth, a maneuver which would, in addition, have involved in its execution the clear warning of a double blast. It cannot be reasonable for a master under such circumstances to hold his course through thick and thin, because from his superior position he and he alone can see that all will go well if neither ship changes her helm.

No rule forbade this; he was not bound to hold his course, and he had open sea on his port. hand. It required but a little easing of his helm during the period of at least 5 minutes after he had made her out and before .she saw him. The most common prudence would have suggested that he make his scanty assurance doubly sure. Why lie should have so persistently held a course which brought him to such close quarters is inexplicable, except upon the assumption that he slavishly followed the letter of the master’s orders, or was unwilling to rouse him. I find the Cushing at fault because, with the fullest possible notice, she failed either to warn the Proteus of her advance or to put between them a safe distance.

It is quite true that both in her own petition and in her answer to the Cushing’s petition the Proteus alleges as a fault, the supposed star-boarding of the Cushing; but that is quite another matter. It refers to a starboarding after the Proteus ported, which never took place. The fifth and seventh charges of fault include failure to warn the Proteus, and the eighth is a general charge of failure to take precautions when the risk of collision should have become apparent., I think that that risk did become apparent as soon as the Cushing saw or should have seen that the vessels would pass so close that a confusion or misunderstanding of their courses on the part of the Proteus might result in collision.

In The Worsley Hall, H. of L. Dec. 19, 1919, a very closely similar situation was held not to be a head-on case, but one of passing starboard to starboard. The ship corresponding to the Cushing was entirely relieved upon closely analogous navigation to that of the Cushing here. Yet there is one difference which appears to me to be of final importance between that case and this. There the ships made each othei^out about 1% miles off, and the Worsley Hall, as soon as she got the loom of the Ioannis Vatis, at once uncovered her lights, which the Ioannis Vatis did not do. 1 Lloyd’s List. Rep. 414. At least this was alleged in the case made by the Worsley Hall, and was not denied by the Ioannis Vatis. As the joint speeds of tifíese two ships was 18% knots, this was over 4 minutes before they would have met. That time would have been ample in the case at bar to avoid collision, even if the Cushing had waited, as the Worsley Hall did not, for a very substantial period after she discovered the Proteus. The case cannot be taken for more than that such a situation is a starboard to starboard meeting, with'which I humbly agree, and that the navigation of the Cushing in extremis was free from fault in the case at bar. The other cases of ships without lights decided in England do not appear to me to be relevant. This, so far as I am advised, is the first case which has arisen in this country.

I find it impossible to reach any but a speculative conclusion, based upon the Cushing’s camouflage, and in any event it appears to me to be irrelevant.