The opinion of the court was delivered by: BEEKS
The above-entitled cause having come on for trial during the week of December 19, 1966, before the Honorable William T. Beeks, Libelant and Cross-Respondent United States of America being represented by Eugene G. Cushing, United States Attorney, Michael Hoff, Assistant United States Attorney, John F. Meadows, Attorney in Charge, West Coast Office, Admiralty and Shipping Section, and Henry Haugen, Attorney, Admiralty and Shipping Section, Department of Justice; and Respondent and Cross-Libelant Westfal-Larsen & Co., A/S, being represented by Edward C. Biele of Bogle, Gates, Dobrin, Wakefield and Long, and oral and documentary evidence having been introduced and the Court having considered all the testimony and evidence and being fully advised in the premises, the Court now makes the following:
1. This litigation arises out of a collision between the USS WHITEHURST and the Norwegian flag M/S HOYANGER on January 16, 1965, at the entrance to the harbor of Vancouver, British Columbia, and within the territorial waters of Canada. Both vessels were in Seattle, Washington, and within the jurisdiction of this Court when the actions were commenced. No other actions concerning this collision have been filed in any other court, foreign or domestic.
2. The parties have agreed that the substantive law of Canada applies. The International Regulations for Preventing Collisions at Sea ("International Rules") applies to the waters in question, but the 1960 amendments relating to the use of radar were not in effect on the date of the collision and have not been considered. The parties have further agreed that the proportional fault rule applies since Canada adheres to the 1910 Brussels Convention. Article 4 of that Convention reads:
If two or more vessels are in fault the liability of each vessel shall be in proportion to the degree of the faults respectively committed. Provided that if, having regard to the circumstances, it is not possible to establish the degree of the respective faults, or if it appears that the faults are equal, the liability shall be apportioned equally.
3. The USS WHITEHURST (DE-634) is a destroyer escort 306 feet in length, 36 feet in breadth, and of 1800 tons displacement. The vessel has turboelectric power, each of her two engines being of 6,000 horsepower. The vessel has twin propellers and twin rudders.
4. The WHITEHURST is owned and operated by and through the United States Navy and is a public vessel of the United States. The vessel is armed for surface, air, and anti-submarine warfare. The WHITEHURST is operationally classified as a "Group 2 Naval Reserve vessel." A nucleus crew of 45 to 50 active duty Naval personnel was maintained on the vessel at all times. A Naval Reserve crew of an authorized strength of 10 officers and 151 enlisted men was also assigned to the vessel. The home port of the WHITEHURST is Seattle, Washington.
5. During the period January 15 to 17, 1965, the WHITEHURST had both her nucleus crew and reserve crew embarked. The vessel engaged in various fleet exercises in company with the USS MARSHALL (DD-676), a destroyer, and the USS BRANNON (DE-446), a destroyer escort, in conjunction with an Operational Readiness Inspection conducted by personnel of the 13th Naval District. The general area of these maneuvers was from Seattle, Washington, to Vancouver, British Columbia.
7. The WHITEHURST was equipped with a type SPS-5C radar and her navigation was primarily accomplished by this means. One navigational team was stationed in the Combat Information Center and, through the use of a radar repeater, another navigational team was stationed on the bridge.
8. Vancouver Harbor is characterized by a narrow entrance known as First Narrows. The Lions Gate Bridge passes over this entrance and is high enough to allow the passage of all shipping here involved. The Canadian Government, through the National Harbour Board, Ministry of Transport, maintains the First Narrows Signal Station at approximately the center of the Lions Gate Bridge. This station is equipped with a "loud hail" (public address system), radar, a radio-telephone communications system and displays both day and night signals to inform ...