Full opinion text
KALODNER, Circuit Judge. Cross-appeals were filed from an Interlocutory Decree of the District Court ordering the United States to pay to The P. Dougherty Company one-half of the damages suffered by its barge, Harford, while in tow of the Coast Guard cutter Mohawk, in the course of a rescue operation at sea. The District Court’s Decree was based on its determination that both the Harford and the Mohawk were negligent. Dougherty’s appeal is premised on its contention that the Harford was free of negligence and that the Mohawk’s negligence was the sole cause of her damage. The United States in its appeal contends (1) the negligent steering of the Harford was the principal cause of the accident and she was solely at fault; (2) it is not liable for negligence of the Coast Guard in a rescue operation; (3) even assuming such liability exists, the standard is “gross negligence” or “wilful misconduct” and not “ordinary” or “simple” negligence as was held by the District Court; (4) the “Good Samaritan” doctrine was erroneously applied by the District Court. It may be noted that the District Court’s Findings of Fact with reference to the sequence of events which led to this litigation are not seriously disputed. The salient facts, evidenced by the record, are as follows: The Harford was a wooden coast-wise barge, 267 feet long by 46 feet wide without motive power of her own, but equipped with steering gear. Her crew consisted of a master and two ordinary seamen. On the early morning of April 22,1947, in stormy weather and rough seas, the Harford was cast adrift and damaged in collision with another barge while in the tow of the tug Barlow off the Delaware coast. At the request of the Barlow the Coast Guard Station at Cape May, New Jersey, ordered the Mohawk to proceed to the Harford. The Mohawk reached the Harford on the early evening of April 22d. At about 6 a. m. on the morning of April 23d, the Mohawk received instructions from the Coast Guard base at Cape May to tow the Har-ford to the Harbor of Refuge. Following several hours delay due to the fact that the Harford had considerable difficulty in raising her port anchor, (her starboard anchor was unusable) the Mohawk got under way with the Harford in tow at 12:45 p. m. At that time the Mohawk sent a message to the Coast Guard Search and Rescue Center at Cape May advising that the Har-ford was unable to anchor and requesting a tug to take over the tow five miles from Overfalls Lightship, off the entrance of Delaware Bay. At 2:30 p. m. the Mohawk was advised that the tug Barlow was unable to take the barge in tow outside and was directed to proceed to the Harbor of Refuge. The Mohawk reached Overfalls Lightship in the evening. For some time prior to the parting of the tug Barlow’s towing cable on April 22d the weather had been stormy with strong winds and rough seas. By the evening of April 23d, when the Mohawk reached Overfalls Lightship, the wind had somewhat abated and the weather was clear with reasonably good visibility. The tide was at flood in Delaware Bay, setting north and northeast at a speed of about one and one-half to two knots. In the vicinity of Overfalls Lightship the Mohawk shortened her towing hawser from 100 to 30 or 40 fathoms, and at about the same time the master of the Harford turned the wheel over to ordinary seaman Norman Hill while the master went below to work on the Harford’s pumps which had become clogged. The Mohawk and her tow passed abeam of Overfalls Lightship at 8:24 p. m. The entrance to the Harbor of Refuge lies between Cape Henlopen on the south and the southerly tip of the Harbor of Refuge Breakwater on the north, a distance of about eight-tenths of a mile. The customary method of navigation for a vessel entering the harbor at flood tide with a tow is to hold close to Cape Hen-lopen leaving the obstruction buoys and sand bar close aboard on the port hand. This method is followed because of the strong northerly set of the flood current toward the Breakwater; it is necessary to allow ample clearance of the Breakwater to avoid being set on it by the flood current. The Mohawk originally set a course midway between Cape Henlopen and the Breakwater, but some time after passing Overfalls Lightship those in charge of the Mohawk sighted a vessel at anchor inside the Harbor of Refuge in a position which, they believed, made it necessary to alter the course of the Mohawk so as to pass between the anchored vessel and the end of the Breakwater to the north. The new course lay appreciably closer to the Breakwater than had at first been planned. At 8:28 p. m. the Mohawk reduced her engine speed from 65 r. p. m. to 55 r. p. m., and at 8:41 p. m. further reduced it to 45 r. p. m. This action was taken apparently in the belief that both of the Harford’s anchors were unusable and that therefore it would be necessary to circle around the anchored vessel inside the Harbor of Refuge until the Barlow or some other tug could come alongside and take the Harford in tow. The slow speed was thought necessary to make the circling maneuver safe. It soon became apparent, however, that the Mohawk was being carried off her course to the north, that is to the right. Several substantial changes of course to port were made, with little or no effect, and at approximately 8:57 p. m. several increases in speed were made in quick succession. The Harford, meanwhile, as the Mohawk came close to the entrance to the harbor, began to steer a course to the right, thus accentuating the effect of the current and wind upon the Mohawk. During the last fifty yards from the Breakwater the Har-ford went off on a more or less northerly course. The Mohawk lost steerageway, and at 9:00 p. m. her starboard side struck the end of the Breakwater. The commanding officer of the Mohawk ordered the towing hawser cut, and the Mohawk moved away from the Breakwater, apparently undamaged. The Har-ford, cast adrift while still outside the Harbor of Refuge Breakwater, swung starboard side to the Breakwater and for forty-five minutes pounded against the large irregular stones of which the Breakwater was constructed. Another tug, the Jack, whose services had been secured that afternoon by Dougherty, without the knowledge of the Mohawk, then removed the Harford from the Breakwater and towed her northerly through Delaware Bay and River until the Harford’s leakage became so bad as to cause her to be in danger of sinking. Thereupon the Jack beached the Harford on the sandy bottom at Joe Flogger shoal from which she was subsequently floated and towed to Hampton Roads. This beaching and subsequent towage did not increase the damage to the Harford. On the facts as stated the District Court made the fact finding that (1) the Mohawk had been negligent in navigating too close to the Breakwater; (2) the Harford had been steered in a negligent manner in that it had failed to follow the Mohawk; and (3) the negligence of both vessels had been proximate causes of the accident. With respect to the last-mentioned finding, it is well-settled that the ultimate finding as to liability-creating fault is but a legal inference from other facts. It must immediately be noted that we accept, for reasons subsequently stated, the District Court’s findings of fact that both the Mohawk and Harford were negligent. We further subscribe to the District Court’s determination that the negligence of the Harford made her liable. We do not agree that the negligence of the Mohawk created liability as to her for three separate reasons: (1) the negligence of the Mohawk was a “condition” and not a “cause” with respect to the happening of the accident; (2) the sole cause of the accident was the negligent failure of the Harford to follow the Mohawk; and (3) the District Court erred in ruling as a matter of law that “Under the Public Vessels Act the United States is liable for damage due to the negligence of those in charge of the Mohawk.” The District Court in its opinion presented in sharp focus the considerations, factual and legal, which premised its determination of liability on the part of both the Mohawk and the Harford, stating 97 F.Supp. at page 295: “I am clearly of the opinion that the Mohawk was guilty of negligence in failing to use due care in the selection of a course that was sure to be a safe one. I am equally of the opinion that even the course adopted by the Mohawk would have been a successful one had the Har-ford followed in a proper manner.” (Emphasis supplied.) Assuming, for the sake of argument, that the District Court was correct in its conclusion of law that the United States is liable for simple negligence of the Coast Guard in the conduct of rescue operations at sea, we are of the opinion that it erred in holding the Mohawk liable in view of its express finding “that even the course adopted by the Mohawk would have been a successful one had the Harford followed in a proper manner.” It is the general long-established rule in collision cases that: “Where fault on the part of one vessel is established by uncontradict-ed testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel.” The City of New York (Alexandre v. Machan), 1893, 147 U.S. 72, 85, 13 S.Ct. 211, 216, 37 L.Ed. 84; The Ludvig Holberg, 1895, 157 U.S. 60, 72, 15 S.Ct. 477, 39 L.Ed. 620. In applying the rule stated, it has frequently been held that even a prior act of negligence does not “contribute” if it merely creates a “condition” which makes it possible for the subsequent negligence of the other vessel to bring about a collision. Under the cases the earlier fault is held to be merely a “condition” and not a “cause” of the collision. These principles are well-established in collision cases: Ordinarily the first wrongdoer is not responsible for damages which result from his own negligence and that of another party unless the latter’s negligence was such as the first wrongdoer might reasonably have expected to occur * * * this rule is commonly expressed in terms of causation — the second wrongdoer’s negligence being called the proximate cause; an act, though negligent, is not the proximate cause of an injury, when but for the intervening negligence of another the injury would not have been inflicted; the fault of the vessel sought to be charged must be a “cause” and not a “condition” of the collision and the position of a vessel in navigation though “unlawful” and a “maritime fault” does not in and of itself make her liable and in order to be held, her position must be the “cause” of the accident and not merely a “condition” with respect to it. In accordance with the principles stated the Courts have time and again absolved from liability vessels which had transgressed statutes requiring their navigating in mid-channel or mid-stream or had executed “unjustifiable” maneuvers where the facts demonstrated that their conduct was merely a “condition” and not a “cause” of an ensuing collision. Thus in the early case of The Britannia, D.C.N.Y.1888, 34 F. 546 where a vessel violated a state statute requiring it “ * * * be navigated as near as possible in the center of the river” the Court held 34 F. at page 557: “ * * * the mere transgression of such a statute will not make the vessel liable where the disobedience of it did not contribute to the collision. And inasmuch as only the proximate causes of collision are deemed material, the mere fact that a vessel is on the wrong side of the river does not make her liable, if there was ample time and space for the vessels to avoid each other by the use of ordinary care. In such cases the cause of the collision is deemed, not the simple presence of the vessel in one part of the river rather than in another part, but the bad navigation of the vessel, that, having ample time and space, might easily have avoided collision, but did not do so.” (Emphasis supplied.) In The Morristown, 2 Cir., 1922, 278 F. 714, a violation by both tugs of the state statute requiring vessels to navigate near the center of the river was held by Judge Hough not a contributing cause to a collision which resulted from a violation by one of the tugs of the steering rules. In The Socony No. 19, 2 Cir., 1928, 29 F.2d 20, the situation was as follows; The Socony was a tug in charge of a tow; The Marine was also a tug in charge of a tow. The Marine executed a maneuver which was “unjustifiable” but nevertheless the Court held the latter to be a “condition” not a “cause” of the collision between The Socony tow and The Marine tow. The Socony was held to be liable because she was at fault in failing to navigate properly under the circumstances. In The Syosset, 2 Cir., 1934, 71 F.2d 666, a tug violated a New York statute by navigating down the wrong side of the East River. The Court held (Judge Augustus N. Hand) 71 F.2d at page 668; “It is true that the Syosset was at all times considerably to the east of the center of the stream, and therefore violated the East River statute, * * * The Sagamore was fully aware of her position in time to navigate with reference to her and her float so as to pass them safely. * * * She had no excuse for getting out of her course * * *. She could have kept out of danger by not crowding the lighter and by navigating prudently * * *. On the record before us we hold that the violation by the Syosset of the East River statute was a ‘condition’ and not a contributing cause of the collision.” In The Cornelius Vanderbilt, 2 Cir., 1941, 120 F.2d 766, 768, the tug Watup-pa was towing the barge Essex, and the tug Hempstead was towing the Cornelius Vanderbilt. The Watuppa was on the wrong side of a narrow channel. Nevertheless it was held not liable on the ground that the Hempstead was solely at fault in unnecessarily crowding the Wat-uppa and Essex and it “could have avoided the collision by simply holding back in season.” The Court (Judge Augustus N. Hand) stated 120 F.2d at page 768: “Though each vessel neglected to blow passing signals, as required by the rules, and the Watuppa was on the wrong side of the channel, the outstanding fact is that the Hemp-stead had the last clear chance to prevent a collision by the exercise of ordinary care”. (Emphasis supplied.) Applying the principles above stated to the District Court’s determination “that even the course adopted by the Mohawk would have been a successful one had the Harford followed in a proper manner” [97 F.Supp. 295], we are of the opinion that the Mohawk’s navigation close to the Breakwater was merely a “condition” and that the Harford’s failure to follow the Mohawk was the “cause” of her damage and that, accordingly, the District Court erred in failing to dismiss the libel. Our conclusion in this respect is buttressed by the fact that it has long been settled that it is the absolute duty of a vessel to follow the course of her tug and since the Harford was derelict in this respect according to the District Court’s factual determination, she is without recourse to the Mohawk. In The Maria Martin, 1871, 79 U.S. 31, 20 L.Ed. 251 a bark in tow failed to follow her tug which had ported her helm, in accordance with prescribed rules of navigation, to avoid a collision with a steamer. The tug was absolved of liability and the bark was found jointly at fault with the steamer. Said the Court 79 U.S. at page 47: “Seasonable attention * * * would certainly have prevented a collision if the tow had followed the movement of the tug, as she was bound to do, without unnecessary delay.” (Emphasis supplied.) In The Columbia, 9 Cir., 1901, 109 F. 660, the ship Columbia and the bark Ravenscourt were being towed to sea by the tug Tyee, the former on the port side of the tug and the latter on the starboard side. During the course of the tow the Tyee observed a sailing vessel off her port bow and changed her course to avoid a collision. The Columbia failed to follow. Her tow line parted and she came into collision with the Ravenscourt. The Court held that the Tyee was without fault; that the Columbia was solely at fault because she had not followed the course of her tug. In doing so the Court stated 109 F. at page 666: “It was the duty of the ship and bark to follow the course of the tug. The duty of proper steering devolved upon the respective vessels, and the tug cannot be held responsible for any fault of the vessels, or either of them, in that regard.” It is clear from the above that the District Court erred as a matter of law in failing to dismiss the libel on the ground that the Harford had failed to discharge her duty to follow the Mohawk. In our opinion the District Court further erred in its disposition on still another score — the challenging issue as to whether the United States is liable for fault of the Coast Guard in the conduct of a rescue operation at sea. In resolving this issue, unable to find any authority or precedent either under settled admiralty principles or the specific provisions of the Public Vessels Act, 46 U.S.C.A. § 781 et seq., the District Court resorted to the general common law rule of torts. It specifically ruled that the United States, having undertaken to maintain the Coast Guard for the purpose, in part, “to render assistance to vessels in distress” when performing the latter function acts as a “volunteer” and under the “Good Samaritan” rule of the common law rule of torts, is liable “for an injury negligently inflicted on the person or property of another,” and that such negligence need only be “simple” or “ordinary” in its nature. Collaterally, the District Court further laid down the principle that a salving vessel is liable for breach of the duty of reasonable care (simple negligence) even though it acts in good faith and there is absent any element of “gross negligence”, “culpable negligence” or “wilful misconduct.” As previously stated, we have accepted the District Court’s factual finding that the Mohawk was guilty of lack of ordinary care in navigating too close to the Breakwater, as we have accepted its factual finding that the Harford was guilty of negligence in failing to follow the Mohawk. We have done so in consonance with the settled rule that while an appeal in admiralty partakes of a trial de novo and serves to vacate the decree of the district court, the findings of the latter when supported by competent evidence, should not be set aside on appeal except upon a showing that they are clearly erroneous. With respect to the finding as to the Mohawk’s negligence, the evidence does not disclose it to be “clearly erroneous”; with respect to the finding as to the Harford's negligence, the evidence demonstrates it to be fully warranted. We cannot, however, subscribe to the District Court’s ruling of law that the United States is liable for fault of the Coast Guard in conducting a rescue operation at sea. We are of the opinion that public policy dictates that the United States should not be liable for fault of the Coast Guard in the field of rescue operations. There are two arrows in the quiver of this public policy. The first may be directed to the inevitable consequence on the morale and effectiveness of the Coast Guard if the conduct of its officers and personnel in the field of rescue operations under the indescribable strains, hazards and crises which attend them, is to be scrutinized, weighed in delicate balance and adjudicated by Monday-morning judicial quarterbacks functioning in an atmosphere of serenity and deliberation far from the madding crowd of tensions, immediacy and compulsions which confront the doers and not the reviewers. In its intramural aspects the Coast Guard functions, as do the other branches of the armed services, on a system of merits and demerits, promotions and demotions based on efficiency or lack of it, in their conduct and operations. A judicial determination that officers or men of the Coast Guard have been negligent in rescue operations would inevitably have a concomitant effect upon their service records. Aware of that fact, the instinct of self-preservation would inevitably function even under the pressures of life or death crises which so often arise in rescue operations when members of the Coast Guard are called upon to make decisions. If men are to be brought to an abrupt halt in the midst of crisis — to think first that if they err in their performance they may expose their Government to financial loss and themselves to disciplinary measures or loss of existing status, and then to pause and deliberate and weigh the chances of success or failure in alternate rescue procedures, the delay may often prove fatal to the distressed who urgently require their immediate aid. Thus would the point of the second arrow in the quiver of public policy be blunted —the arrow which is directed to preserve in the public interest our merchant marine and that of other nations with which we trade. History establishes that tragic losses in men and ships all too frequently attend disasters at sea, and too often is it impossible to give successful succor despite the most gallant and efficient of efforts. To expose the men in the Coast Guard to the double jeopardy of possible loss of their own lives, and loss of status in their chosen careers, because they failed, in coping with the intrinsic perils of navigation, to select the most desirable of available procedures, or their skill was not equal to the occasion, is unthinkable and against the public interest. As counsel for the Government pointed out in its brief, the training motto of the Coast Guard has been: “In the Coast Guard you always have to go out, but you don’t have to come back”, and its personnel have adhered to the finest traditions of the sea in hastening to succor the distressed without regard to their own safety. Consideration must be given to another facet of this problem, viewed from the standpoint of the merchant marine itself, and the marine insurance companies. A loss of a vessel, even though it is insured, means a loss of revenue to the shipowner until it is replaced, and it takes time to build ships. And as to the marine insurers, salving of stricken vessels means a reduction in their losses. Conversely, total losses mean higher insurance rates, which make for heavier operating costs to the shipowners, which are in turn passed on to those engaged in the export and import trade. That these considerations have prevailed is evident from the fact that for some twenty-five years after the Public Vessels Act of 1925 imposed liability upon the United States for damages caused by the negligent operation of its public vessels, there was no attempt to recover damages arising out of any rescue operations of the Coast Guard. It was not until some three years ago that such suits were instituted. See Note 12. It is interesting to note that in United States v. Taylor, 1903, 188 U.S. 283 at page 289, 23 S.Ct. 412, at page 414, 47 L.Ed. 477, the Supreme Court of the United States indicated serious doubt whether the United States “ * * * could, in any case, be regarded from the standpoint of a mere salvor * * On the score of liability of salvors in general, we must record our disagreement with the District Court’s ruling that a salvor is accountable for simple negligence. The overwhelming weight of opinion is that absent “gross negligence” or “wilful misconduct” a salvor is not liable. It was early held “the evidence must be conclusive before (salvors) are found guilty” and the law accords the Presumption of innocence in favor of salvors. It is not to be inferred from our discussion of the standard of care imposed upon salvors that we have held that the United States (via the Coast Guard) is to, or can be, regarded from the standpoint of a mere salvor. Cf. United States v. Taylor, supra. For the reasons earlier stated the Interlocutory Decree of the District Court will be reversed and the causes remanded with directions to proceed in accordance with this opinion. . The District Court’s opinion is reported ta D.C.Del.1951, 97 F.Supp. 287. . The Barlow departed for Lewes, Delaware to pick up a new hawser. . The E. A. Packer, 1891, 140 U.S. 360, 11 S.Ct. 794, 35 L.Ed. 453. . Cleary Bros. v. Port Reading R. Co. (The Wyomissing), 2 Cir., 1928, 29 F.2d 495, 498. . Long Island R. Co. v. Killien, 2 Cir., 1895, 67 F. 365, 367. There a vessel which violated a state statute requiring it to navigate as nearly as possible in the center of the East River, was held not to be condemned for a collision “which, notwithstanding her presence there, would not have occurred if the other vessel had exercised ordinary care to avoid it.” (Emphasis supplied.) . The Perseverance, 2 Cir., 1933, 63 F.2d 788, 790. There Judge Learned Hand stated: “We accept the common form of statement that the fault must be a ‘cause,’ and not a ‘condition,’ of the collision. By that as we said in The Socony No. 19, [2 Cir.,] 29 F.2d 20, we mean that although the fault was a cause, in the sense that it was a part of those circumstances necessary to the occurrence, the tug was amply advised in advance of the ship’s position, and could have avoided her by proper navigation. The situation is similar to that often comprised within the formula that a wrongdoer is solely liable if he has a ‘last clear chance’ of avoiding the damage.” . The Penoles, 2 Cir., 1924, 3 F.2d 761, 763. There the Court held that though a vessel ignored a statute requiring her to travel in the middle of a stream and “hugged” the shore, that circumstance did not of itself make her liable. . The holding in The Britannia was cited with approval in The Clara, 2 Cir., 1893, 55 F. 1021, 1024. There, too, the vessel failed to comply with a state statute. The Court held that she was not liable; that the fault was with the vessel which collided with her and which had not been steered properly. In doing so the Court stated: “A finding that negligence, or an act not amounting to a wanton wrong, is the proximate cause of an injury, is not warranted unless it appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” . In Construction Aggregates Co. v. Long Island R. Co. (The Bandmaster), 2 Cir., 1939, 105 F.2d 1009, all the vessels involved in the collision were in violation of the statute in being in the wrong part of the stream. It was held that the navigation in the wrong part of the steam was “irrelevant.” To the same effect was the holding in The S. S. Deutschland, 2 Cir., 1937, 90 F.2d 454. In that case two steamers collided. The Deutschland was on the wrong side of the navigating channel in violation of a statute. Despite that fact she was held not liable — that her fault did not contribute — that the other vessel had navigated improperly. . To the same effect: The Sanday, 2 Cir., 1941, 122 F.2d 325; also The Lord O’Neill, 4 Cir., 1895, 66 F. 77. . To the same effect see The Doris Eck-hoff, 2 Cir., 1892, 50 F. 134; The Virginia Ehrman, 1878, 97 U.S. 309, 24 L. Ed. 890. . While the issue as to tlie liability of the United States for fault of the Coast Guard in rescue operations has been presented in a number of cases (hereinafter listed) in the past few years, none of them reached a decision on the question, so that the District Court’s ruling in the instant case is the first expression with respect to it. (1) Lacey v. United States, D.C.Mass. 1051, 08 F.Supp. 219 — failure to rescue, companion suits under Tort Claims Act and Public Vessels Act, 46 U.S.C.A. § 781 et seq., dismissed on motion. (2) Page v. United States (The Duchess), D.C.E.D.La.1952, 105 F.Supp. 99 — alleged negligence in course of rescue; held — no proof of negligence; no proof of distinguishable injury, decree for the United States. (3) Geertson v. United States (The Anna G — CG30311), (W.D.Pa., Adm. No. 174) — alleged negligence in the course of rescue — tried at Erie, April 1, 1952 and mot yet submitted. (4) Johnson v. Sapio, United States impleaded (The Tradewinds III — C.G. 36393), (D.N.J. Civil No. 752-50), Coast Guard impleaded by fishing party boatman sued by passenger who broke leg in course of rescue. Impleader voluntarily dismissed on day of trial at Camden, November 14, 1951. (5) Friesenborg v. The Peter Maersk and United States (The Irma-Pauline— Peter Maersk — OGC Marion), (E.D.Va., Adm. No. 7423) — suit by rescued vessel hit by the Maersk against both the Maersk and Coast Guard cutter which was towing the rescued vessel. Voluntarily dismissed as to Government on July 28, 1951. (6) Charles W. Smith, Inc. v. United States (The Olivia Brown — Navesink), (S. D.N.Y., Adm. No. 165-387) — alleged negligence in course of rescue — suit at issue since October, 1950. (7) CGC Yocona — Kallie P., Hansen v. United States, (D.C.Ore. No. 6634) — suit begun September, 1952. . Swenson v. Argonaut, 3 Cir., 1953, 204 F.2d 636; Read v. United States, 3 Cir., 1953, 201 F.2d 758. . It is immaterial that an opposite conclusion might well have been reached by the District Court; that it might have found (1) the Mohawk had used reasonable care; or (2) the Mohawk was guilty of error but not of fault. Cf. The Grace Girdler, 1869, 74 U.S. 196, 205, 19 L.Ed. 118. There the Court held infallibility is not required in navigation and distinguished between “error” and “fault”, stating “In the eye of the law the former error) does not rise to the grade of the latter (fault), and is always venial.” . Witness the District Court’s statement: “I am clearly of the opinion that the Mohawk was guilty of negligence in failing to use due care in the selection of a course that was sure to be a, safe one." [97 F.Supp. 295.] (Emphasis supplied.) . Cf. The Island City, 1862, 66 U.S. 121, 180, 17 L.Ed. 70. There the Supreme Court cited with approval the principle applicable in salvage cases that “Public policy encourages the hardy and industrious mariner to engage in these laborious and sometimes dangerous enterprises * * * ” and “ * * * the general interests of society require that the most powerful inducements should be held out to men to save life and property about to perish at sea. * * * ” In The S. C. Schenk, 6 Cir., 1907, 158 F. 54, at page 60, the Court (Judge Lurton, later Justice Lurton of the Supreme Court) stated: “Salvage service in the public interest should be encouraged.” . 46 U.S.C.A. §§ 781-90. . The Coast Guard makes many thousands of rescues a year, many of which result in injury to persons or property saved, according to counsel for the United States. Annual reports of the Secretary of the Treasury furnished by the United States disclose in summary the following statistics for the years 1948 to 1951, inclusive: . There the United States Navy undertook to salvage The Infanta Maria Teresa, a Spanish vessel which had been sunk by the Navy while attempting to run a blockade from the habor of Santiago in the Spanish American War. The sunken vessel was raised and after temporary repairs, while in tow of a United States repair ship and a wrecking tug, privately owned, again sunk during a severe storm. The United States had entered into a contract with a private wrecking company to conduct the salvage operations but at the time the vessel sank an Officer of the Navy was in charge of the operation. The Court dismissed the libel, stating: “The government acted with due prudence in employing persons whose business it was to do such work, to raise and deliver the vessel at the Norfolk Navy yard. If no attempt had been made, the vessel would finally have gone to pieces where she lay. “Salvors are not held responsible for a loss when attempting to salvage in good faith, and with reasonable judgment and skill (The Laura, 14 Wall. 336, [20 L. Ed. 813] * * *) and we know of no reason why the government should be held to a more rigorous accountability, even if it could, in any ease, be regarded from the standpoint of a mere sal-vor of the property of another.” (Emphasis supplied.) . The Henry Steers, Jr., D.C.N.Y.1901, 110 F. 578, distinguished between want of ordinary care and culpable negligence and stated the rule to be that the salvor is only liable for gross negligence or recklessness. In The S. C. Schenk, 6 Cir., 1907, 158 F. 54, at page 59, it was held: “* * * But does it follow because her attempt to assist in the salvation of the Bourke (the towed barge) was not attended with success that she (the Schenk) is to be condemned for her loss, even though her efforts loere not guided by the best slcill and her management not above criticism? * * * The Bourke’s loss is attributable to the Schenk only in the sense that her voluntary effort to help her toas not efficient. * * * There is no suggestion of bad faith or willful misconduct. * * * There was no gross neglect. At most the negligence in this matter was slight and not enough to condemn the Schenk as having proximately caused the loss of the Bourke. * * * But when, as here, liability is sought to be fastened upon a salving vessel solely because the attempted service was ineffectual, no independent injury having been caused by the salvor, there is no responsibility if the service was rendered in good faith, without clear evidence of culpable negligence or willful misconduct.” (Emphasis supplied.) See also Dorring-ton v. City of Detroit, 6 Cir., 1915, 223 F. 232, 241; The Daniel Kern, D.C. Wash.1928, 27 F.2d 920, 921. The English Courts have long subscribed to the same view. In The Baltic, 4 Law Rep. A. & E. 178 (1874) Sir Robert Philli-more stated: “The question I have had to take the opinion of the Elder Brethren on is this — whether the damage on all of these occasions, but especially on the second, when the material damage was done, can fairly be excused on the ground of accidental mishap, having regard to the size of the vessel and other circumstances, or whether it shews crassa negligentia, as we are in the habit of saying — gross want of proper navigation, which certainly would, in my judgment, render her liable for the damage that she thus caused, notwithstanding that she was acting as a salvor.” (Emphasis supplied.) . The Charles Adolphe, Swabey’s Admiralty Reports, 153, 156 (1856). In The Henry Steers, Jr., Note 20 supra, it was stated [110 F. 583]: “ * * * condemnation for negligence should be made sparingly * * *. In short, the law. should not scrutinize too-narrowly (salving) services rendered * * */> . Kennedy, The Law of Civil Salvage, page 145. . Section 1 of the Public Vessels Act provides that “A libel in personam in admiralty may be brought against the United States * * * for damages caused by a public vessel of the United States * * ®.” Section 3 continues: “ * * * Such suits shall be subject to and proceed in accordance with the provisions of (the Suits in Admiralty, Merchant Vessels Act of March 9, 1920, c. 95, 41 Stat. 525, 46 U.S.C.A. §§ 743-52) * * * insofar as the same are not inconsistent herewith * * Section 3 of the Merchant Vessels Act provides: “Such suits shall proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties.” This statute was held by the United States Supreme Court to impose upon the United States the same liability “ * * * as is imposed by the admiralty law on the private shipowner * * *.” Canadian Aviator, Limited v. United States, 1945, 324 U.S. 215, 228, 65 S.Ct. 639, 646, 89 L.Ed. 901. However, there is no status or relationship in the realm of private vessels comparable with that which exists between a vessel in distress and a Coast Guard vessel which comes to her rescue, since it has long been the settled policy of the United States not to make salvage claims and thus there are no “like cases between private parties” to which the Courts may refer in consonance with Section 3 of the Merchant Vessels Act. The District Court noted “No authority or precedent has been cited or found regarding the duty of a privately owned vessel giving gratuitous assistance to another.” [97 E.Supp. 292.]
BIGGS, Chief Judge (dissenting). I regret that I cannot agree with the interpretation put upon the facts by the majority. It is indeed an extraordinary interpretation. Nor can I agree with the majority view as to the applicable principles of law. I. The customary and indeed the only safe course of navigation for a vessel with a tow to enter the Harbor of Refuge at flood tide after passing Overfalls Lightship (because of the strong northerly set of the tide toward the Breakwater) was to hold very close to Cape Henlopen, leaving the obstruction buoys and sandbar very close to the port. A projected course, at its inception, must provide for a very ample clearance of the Breakwater if a vessel is to escape being put upon it by the tide. The majority admit that the Mohawk did not pursue this safe course. First, she originally set a course midway between Cape Henlopen and the Breakwater. Next, after passing Overfalls Lightship, the Mohawk sighted an unidentified vessel at anchor inside the Harbor of Refuge in a position which made it necessary (the Mohawk’s navigating officer erroneously thought) for the Mohawk to alter her course still further toward the Breakwater so that she and the Har-ford might pass safely between this unidentified anchored vessel and the southerly end of the Breakwater. The Commander of the Mohawk, believing that both of the Harford’s anchors were unusable, had planned to circle around the unidentified vessel until the Barlow, or some other ship, could take the Harford in tow. Having thus originally embarked on a dangerous course, the Mohawk, immediately on passing Overfalls Lightship, in order to avoid the unidentified anchored vessel, greatly increased the danger to herself and to the Harford by setting a course even closer to the southerly end of the Breakwater. The dangers of collision with the Breakwater became imminent. This fact was instantly apparent to a disinterested and experienced observer, Captain Tracy of the pilot boat “Philadelphia”. The pilot boat was on her regular station between Overfalls Lightship and the Harbor of Refuge and Captain Tracy was in a position to observe accurately. He testified that the Mohawk at first was properly lined up when she started toward the Breakwater but after proceeding two-thirds of the course in, the Mohawk continuously showed a broad green light to the Philadelphia. The Mohawk was drifting steadily to starboard when she should have been porting her helm. As Captain Tracy put it: “Then I saw where the Mohawk was going to get into a jam and the barge, and I said to myself, T don’t know whether they are going to make the stone pile or outside the stone pile.’ ” (Emphasis added.) The Mohawk was then 500 feet from the Breakwater. The Mohawk then accentuated the dangerous situation even more by shortening the towing hawser from one hundred fathoms (about 550 feet) to thirty or forty fathoms (about 220 feet). The Mohawk towed the Harford, an unloaded seagoing barge, 267 feet long and 46 feet wide, without motor power of her own, on a short hawser. The Harford was unloaded and she rode with her rudder half out of water. This, plus a heavy ground swell increased greatly the difficulty of steering her. Next, augmenting the ever increasing danger, the Mohawk reduced her speed from 65 r. p. m. to 55 r. p. m., and a few minutes later again reduced her r. p. m. to 45 (little more than bare headway). This reduction in speed was thought to be necessary in order to avoid striking the unidentified anchored vessel. But the reduction in speed also reduced the ability of the Harford’s helmsman to follow the Mohawk to the minimum. While the Mohawk increased her speed to some small degree immediately thereafter, the situation had become catastrophic. Failing a complete reversal of course, collision of the Mohawk herself with the Breakwater was inevitable. Thereafter the Mohawk, in quick succession made several rapid changes of course to port, but both the Mohawk and the Harford were by then within a few feet of the Breakwater; the Harford within 50 feet of it. A few seconds later the Mohawk struck the end of the Breakwater with her starboard side. She immediately cut the towing hawser and retreated out into the stream for half a mile. The Harford was forced by wind and tide against the side of the Breakwater. The Commander of the Mohawk stated what had happened succinctly and accurately, when, forty minutes after the accident, he sent this message to the Coast Guard station: “In towing barge Harford into Harbor of Refuge current and wind effects were greater than rudder and increased speed of vessel, causing Mohawk to rub the end southern of outer breakwater. Tow was cut loose and drifted alongside breakwater just north of Harbor of Refuge Light * * * ” To hold the Mohawk not guilty of fault in navigation under the circumstances, as do the majority, seems almost incredible. Here is a towing vessel which puts herself as well as her tow on a breakwater and the majority say that she was not at fault. When a towing vessel casts herself on a breakwater under the circumstances at bar I am astonished that an experienced admiralty court should hold that her navigation was without blame. Finding the Mohawk to be without fault in herself striking the Breakwater, should not the majority, as an inherent necessary corollary, hold the Harford liable for the accident to the Mohawk? Should it not be the rule that tows, when tows and towing vessels go aground, should be held liable for the damage sustained by the towing vessels? Such would be a novel departure from existing law but is it not the rule actually set up by the majority opinion in the instant case? The majority conclusion as to lack of fault of the Mohawk is rendered all the more remarkable by the complete disregard of the testimony of Captain Tracy of the pilot boat, Philadelphia, and the message of the Commander of the Mohawk sent immediately after the accident and hereinbefore quoted. Captain Tracy was in a position to observe the dangerous position in which the Mohawk had placed both herself and the Harford and pungently commented on it. The message of the Mohawk’s Commander seems equally conclusive. The position of the majority of this court and of the court below is that the collision of the Harford with the Breakwater would not have occurred had she been properly steered. This position is demonstrably fallacious from one un-disputable fact alone; viz., that the Har-ford was within 50 yards of the Breakwater when the Mohawk began her rapid increases in speed. But there are many more facts which prove conclusively that the Harford followed the Mohawk as well as circumstances permitted and that the collision occurred only because the officers and quartermaster on the bridge of the Mohawk were unaware of the proximity of the Breakwater. As has been said, the Harford’s rudder was half out of water. Captain Tracy said the Harford was “setting on top of the water”. The towing hawser had been shortened and the speed of the flotilla greatly reduced. There was also a heavy following ground swell and the tide was running at 1 y2 knots at flood in the direction in which the Mohawk and the Harford were proceeding. These conditions combined to make close following of the Mohawk by the Harford impossible. And Quartermaster Tillson of the Mohawk, the man actually at her wheel during the latter and disastrous part of the tow, swore in respect to the Harford’s steering: “I would still say as far as I was concerned it [the Harford] was steering fairly good coming in until we [the Mohawk] hit the breakwater there. Right off of there she [the Harford] took off.” (Emphasis added.) Quartermaster Tillson also testified that he never saw the end of the Breakwater, the point struck by the Mohawk! Lieutenant Vogelsang, the navigating officer of the Mohawk (who was conning the vessel), testified, when asked why he continued steadily on his planned course: “It was evident to me that we were going to make the breakwater with no trouble until we were within about 50 yards of the breakwater.” (Emphasis added.) When the Mohawk herself was but 50 yards from the Breakwater, Lieutenant Vogelsang, the navigating officer of the Mohawk, proceeding steadily by his own admission on his original plotted course, became aware for the first time of the danger the flotilla was in. Lieutenant Vogelsang testified that when he saw the light on the end of the Breakwater it was but 50 yards away and that its nearness came as a “terrific surprise” to him. It was then but two minutes before the accident. Lieutenant Thistle, a deck officer of the Mohawk, who was on the bridge at the latter part of the tow, testified that at 20.57, three minutes before the Mohawk hit the Breakwater, there was a conference between Commander Lecky, Lieutenant Vogelsang and himself as to the change in course to be pursued by the Mohawk in order to avoid the Breakwater. According to Lieutenant Thistle’s testimony it was only shortly before this that he began to have a “shadow of doubt” as to the safe position of the flotilla. According to the Mohawk’s “Bridge Log,” immediately following the line respecting the Breakwater light being but 50 yards away and the time being 20.59, 60 seconds before the accident, comes the dramatic announcement “Losing steerage way Increased speed to standard speed with 25° Left Rudder.” It was then too late to avoid the accident. In culmination of all of this see the testimony of Commander Lecky of the Mohawk. He said pointedly: “We learn a great deal by experience. The next time I will come awful close [to Cape Henlopen].” The testimony referred to seems almost unbelievable but it is the evidence of the Mohawk’s own responsible officers. As such it must be credited. In view of the evidence I cannot but conclude that the Harford did not contribute to the accident and that the collision resulted because the Mohawk was “grossly” negligent and lacking in seamanship in the sense that the majority employ the term “grossly”. At the very least the record demonstrates that the Mohawk was guilty of “ordinary” negligence as the majority use that term. II. We really are not free to decide, contrary to the majority view, that liability may not be imposed on the United States by reason of acts of public vessels. This question has been decided for us by the Supreme Court of the United States. Coast Guard vessels are public vessels. The United States has consented to be sued for torts committed in the operation of public vessels on specified statutory terms. Section 1 of the Public Vessels Act provides that: “A libel in personam in admiralty may be brought against the United States * * * for damages caused by a public vessel of the United States * * * ” Section 2 states: “ * * * Such suits shall be subject to and proceed in accordance with the provisions of [the Suits in Admiralty Act of March 9, 1920, c. 95, 41 Stat. 525, 46 U.S.C.A. §§ 741-752] * * * insofar as the same are not inconsistent herewith * * It is settled law that this section makes the provisions of the Suits in Admiralty Act a part of the Public Vessels Act, insofar as there is no inconsistency. See Canadian Aviator, Ltd. v. United States, 1945, 324 U.S. 215, 228, 65 S.Ct. 639, 646, 89 L.Ed. 901. Vital to the instant case are those provisions of Section 3 of the Suits in Admiralty Act which state: “Such suits [against the United States] shall proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties.” (Emphasis added.) The effect of the two sections, read together, was succinctly stated by the Supreme Court in Canadian Aviator, supra, [324 U.S. 215, 65 S.Ct. 646] as follows: “Since we hold that the Public Vessels Act was intended to impose on the United States the same liability (apart from seizure or arrest under a libel in rem) as is imposed by the admiralty law on the private shipowner, it remains [only] to be considered whether petitioner states a valid cause of action under general principles of admiralty law, in rem and in personam.” I conclude that under the ruling in Canadian Aviator both the procedural and substantive law applicable to the instant controversy must be determined by examining the principles that would govern similar litigation between private shipowners. A special rule of exemption may not be created by judicial decision for Coast Guard vessels. But the majority take the view that public policy requires that the United States should not be liable for any “fault” or tort of the Coast Guard in the field of “rescue” operations. The application of the doctrine of Coast Guard vessel immunity in the very broad terms in which the majority have laid this principle down, would relieve the United States of any liability whatsoever for any fault or misfeasance by the Coast Guard during the course of such operations. It is unnecessary for the majority decision to go so far for having held that the Mohawk’s towing, since it had become a “condition”, did not cause the collision of the Harford with the Breakwater, that portion of the majority opinion dedicated to the Coast Guard exception is purest dicta. I cannot bring myself to believe that Congress, implicitly and sub silentio, intended to relieve the United States for Ma-bility for tbe torts of Coast Guard vessels. In asserting the contrary proposition I cannot help but believe that the majority is substituting sentiment for the plain provisions of the Public Vessels Act. I do not decry the bravery of the Coast Guard or its usual competency but we are dealing in the instant case with an Act of Congress clearly expressing the congressional intent, and with certain specific acts of the Coast Guard in the course of its operations with the Harford. The conclusion seems inescapable that the United States must answer for the Mohawk’s “fault” or torts. The majority even indicate doubt that a Coast Guard vessel may ever be viewed as a salvor. III. But the majority assert additional grounds for relieving the United States of liability. Holding that the Mohawk’s negligence, since it had become a “condition”, did not cause the collision, the majority conclude, also by way of dictum, even assuming arguendo that a Coast Guard vessel could have the status of a salvor, that liability could be successfully asserted against the United States only where the Coast Guard was guilty of “gross negligence” or “wilful misconduct” in salvage operations. The majority assert that a salvor, when a private individual or corporation, as distinguished from an agency of the United States, by the “overwhelming weight” of authority cannot be held liable for “ordinary” negligence, which, say the majority, (while denying there was any negligence of the Mohawk which caused the accident) is the kind of negligence which, at worst, was demonstrated by the Mohawk by the circumstances at bar. It follows, say the majority, that no liability can possibly attach to the United States under the Public Vessels Act in the case at bar. Conceding that the operations of the Coast Guard in this case were salvage or “rescue” operations and that the Mohawk was guilty of only “ordinary” negligence, I must disagree with the majority statement that the overwhelming weight of authority renders the salvor liable only if he has been guilty of “gross negligence” or “wilful misconduct”. I believe that the weight of authority is to the contrary and renders the salvor liable where his negligence has been only “ordinary” as the majority employ that term. In support of their position the majority cite five cases, four American decisions and one English decision. These five authorities are as follows: The Henry Steers, Jr., D.C.E.D.N.Y.1901, 110 F. 578; The S. C. Schenk, 6 Cir., 1907, 158 F. 54; Dorrington v. City of Detroit, 6 Cir., 1915, 223 F. 232, 241; The Daniel Kern, D.C.W.D.Wash.1928, 27 F.2d 920, 921; and The Baltic, L.R. 4 A. & E. 178 (1874). These cases will be discussed here in the order presented in the majority opinion. See also note 20 cited to that text. The Henry Steers, Jr., decided in 1901, is the first American decision which I have found or which has been cited to us in which the phrases “culpable negligence” and “gross negligence” have been used. A salvor attempting to save a tug and her tow from going aground later permitted them to go aground on the same shore, which the flotilla was seeking to avoid, against a dangerous breakwater. The tug was grounded on the rocks and damaged. The negligence displayed by the salvor was about of the kind displayed by the Mohawk under the circumstances at bar. Both the libel for salvage and the libel for damages were dismissed. In The S. C. Schenk, decided in 1907, the Schenk, a towboat, filed a libel to recover for salvage services rendered to the barge, “Bourke” and a cross-libel was filed by the owners of the Bourke for damages, alleging negligence on the part of the salvor. The libel and the cross-libel were both dismissed. The court held as to the Schenk that [158 F. 60]: “There was no gross neglect. At most, the negligence * * * was slight and not enough to condemn the Schenk as having proximately caused the loss of the Bourke.” (Emphasis added.) The court went on to say “ * * * when, as here, liability is sought to be fastened upon a salving vessel solely because the attempted service was ineffectual, no independent injury having been caused by the salvor, there is no responsibility if the service was rendered in good faith, without clear evidence of culpable negligence or willful misconduct.” (Emphasis added.) But in the prior line of the identical paragraph just quoted from the court said: “When a distinguishable injury has resulted from the negligence of one undertaking a salvage service, there may be not only forfeiture of all right of salvage, but an affirmative award of damages against the salving vessel.” (Emphasis added.) It will be observed hereinafter how widely the interpretation of the Schenk decision by the majority of this court differs from that of the Court of Appeals for the Second Circuit in that court’s unanimous opinion in The Cape Race, 1927, 18 F.2d 79. In Dorrington v. City of Detroit, decided in 1915, a moored sailing vessel, the Maria Martin, slipped her moorings in a gale and came into collision with a bridge owned and operated by the City of Detroit. A fire boat belonging to the City was ordered to take her in tow. A line was put on the Martin by the fire boat but it slipped its post. Thereafter, another line was fastened to a quarter-post inside the “skin” of the Martin but this was pulled up by the roots when the fire boat tightened the line. The Martin then went against the bridge which had not been opened by the bridge-tender despite signals given to him to do so, seriously damaging the Martin. The owner of the Martin, Dorrington, brought suit against the City of Detroit. The District Court held against the libel-lant. On appeal the Circuit Court of Appeals for the Sixth Circuit held, 223 F. at page 239, that the City of Detroit was responsible for not opening the bridge and therefore the libellant was entitled to damages. As to the liability of the fire boat the Court of Appeals said: “We are not able to say that the District Judge was wrong in exonerating the fire boat from the charge of negligence in tying to the quarter post, and should not, in any event, disturb his finding unless it were against the decided preponderance of the evidence. * * * We do not find such preponderance here. In some respects the case is like that of The S. C. Schenk referred to. So far as the captain of the fire boat knew, the ship was lost unless he went to her rescue. What he did in attempting to fasten the hawser was probably what any one would have done except one of great experience in towing vessels. To hold him negligent in not seeking some post which would certainly hold, if any of them would have held, would be to discourage laudable attempts to save vessels in distress by the deterrent fear of a claim for damages if the attempt failed.” [223 F. 241] The Court of Appeals went on to say: “There certainly is no clear evidence of culpable negligence or willful misconduct. What Judge Lurton says in the Schenk Case is particularly applicable * * *: ‘But when, as here, liability is sought to be fastened upon a salving vessel solely because the attempted service was ineffectual, no independent injury having been caused by the salvor, there is no responsibility if the service was rendered in good faith, without clear evidence of culpable negligence or willful misconduct.’ ” (Emphasis added.) It will be observed that the fire boat in the Dorrington case, if it was negligent at all, was but slightly so. Judge Rodney in the court below in the instant case, citing the Steers decision, said that the rule laid down by it “ * * * was apparently followed in Dorrington v. City of Detroit, * * * and in the more recent case of The Cape Race, 2 Cir., 18 F.2d 79”. [97 F.Supp. 291] From it he deduced the principle that a salvor is held to the exercise of reasonable care in the rendering of his service. Judge Rodney said: “The use of the term ‘culpable negligence’ in Judge Lurton’s opinion-does not, in my opinion, necessarily mean ‘gross negligence,’ but rather a failure to exercise the degree of care which had previously been specified in his opinion [in the Schenk case], namely, reasonable care.” See 97 F.Supp. at page 291. I agree with Judge Rodney. The word “culpable” used in the connotation in which it is employed in the Schenk case and in the Dorrington case means nothing more than “blameworthy” or “censurable” ; namely, that the salvor did not exercise the degree of care which was reasonable under the circumstances. In The Daniel Kern, decided in 1928, the court quoted the language of the Schenk case verbatim but went on to say that since the officers of the claimant, the salvor, were acting in good faith and had exercised reasonable judgment and skill and that there was no evidence of “culpable negligence” or “wilful misconduct” a salvage award should be made. It is difficult to see how this decision greatly aids the majority view. A tug was towing a barge and landed her on a reef. But the court found that the tug was exercising “reasonable judgment and skill” [27 F.2d 921] (emphasis added), and denied recovery against her. While the court quoted the phrases on which the majority rely from Judge Lur-ton’s opinion in The Schenk it is obvious that the court did not regard these phrases as possessing the meaning which the majority places upon them. They were used rather to express blameworthy seamanship ; viz., seamanship lacking in the ordinary skill to be expected of the experienced mariner. In the English case, The Baltic, decided in 1874, particularly relied on by the majority, the Baltic was a bark which had been in collision with two other sailing ships. The Baltic was not in danger of sinking but was having difficulty navigating. She signalled the Butler, a steam vessel, to come to her assistance. The Butler did so but in the process of laying on a line collided three times with the Baltic. Later, the Butler having taken the Baltic in tow, a hawser broke. The Butler moved astern with a view to shortening the remaining hawser and struck the bowsprit of the Baltic, breaking it. It was in this case that Sir Robert Phillimore made use of the phrases of “crassa negligentia” and “gross want of proper navigation”, saying that this rendered the Butler liable for the damage to the Baltic. But compare The Thetis, L.R. 2 A. & E. 365, decided by Sir Robert Phillimore in 1869, only fiv