A majority of the court are of the opinion that the result reached by us in this case upon the first hearing in no way conflicts with either decisions or dicta in The City of Norfolk, 4 Cir., 266 F. 641, or The Socony No. 9, 2 Cir., 74 F.2d 233. It may be conceded that when the "Bohemian Club" first anchored at 7:41 A.M. on the eastern side of the channel, being then unable to proceed because of the density of the fog, her action in such circumstances did not incur liability-creating possibilities. But it is quite another thing to say that, because the anchorage first taken, out of necessity, would not have furnished a basis of liability, the ship may thereafter lift anchor and maneuver about in the channel, while still obscured by fog, in the hope of finding a supposed better anchorage and then, because of the fog, anchor in the channel without knowledge of her position and in a manner so as to prevent or obstruct the passage of other vessels or craft, and still not be subject to a charge of negligence. To so hold would be to impose a hazard upon navigation which no decided case has yet done and which we do not think would comport with the intendment of the law. See Act of March 3, 1899, c. 425, § 15, 30 Stat. 1152, 33 U.S.C.A. § 409.
The trial judge found, and we have already adopted the finding, that the "Bohemian Club's" second anchorage was made "in such a manner as to present an obstruction to the free passage of other vessels, particularly ones approaching from the other range." But the trial judge did not find, nor do we, that the "Bohemian Club's" first anchorage similarly offended. Indeed, such a broad finding would be unwarranted on the record in this case which shows that three other vessels navigating downstream had passed the "Bohemian Club" in safety while she lay at her first anchorage, - a fact known at the time to the master of the "Bohemian Club" as he testified at trial.
It is true that the later discovered presence of a buoy near at hand to the anchorage first made by the "Bohemian Club", plus a belief that the turn of the tide in about two hours would possibly bring the ship in contact with the buoy, presented a problem to the master of the vessel. It is also true that the master, and not a reviewing judge, was then and there in command and had the responsibility of making a decision as to the proper course of action in the circumstances, for which decision liability is not to be imposed for mere error in judgment. But it is equally our duty to pass upon that conduct afterwards, when the matter has become the subject of litigation, and to decide whether, in our judgment, what was done was done in the exercise of due care.*fn1 We think our conclusion that both the "Laura Maersk" and the "Bohemian Club" were at fault is correct. The order entered herein on October 21, 1942, is therefore confirmed.
BIGGS, Circuit Judge (dissenting).
The rule of navigation which the majority opinion announces nails a vessel in a fixed position of known danger in a narrow channel and provides that if she moves she does so at peril of being held to be negligent.
The Bohemian Club was a large, long vessel.*fn1 When she anchored in the dense fog,*fn2 unknown to her master she was close to a large steel buoy and very close to the east edge of the channel. She was therefore in a position of some danger even before the turning of the tide. If she had remained in the same position, with the turning of the tide, probably she would have fouled the buoy or have gone aground. At the time her master moved her, she was jutting out into the east half of the channel and her stern was near to or over the range line.
When the fog thinned or lifted, about two hours before the turning of the tide, her master, for the first time able to see the vessel's dangerous position, took the opportunity to drop the Bohemian Club a little way downstream and away from the dangers which confronted her. This was sound seamanship, as the learned District Judge found. The fog thickened immediately and the master was forced to anchor the vessel again. At this anchorage the Bohemian Club was in the west part of the channel. Her direction (that is to say, her angle in respect to the channel) was almost the same as it was before. There is but one reason why the majority conclude that the Bohemian Club was not in a position of danger in the east part of the channel and was in a position of danger in the west part of the channel. The reason is that three vessels bound downstream passed the Bohemian Club while she was on the east side of the channel. They passed her, as would be expected, without mishap. If a vessel had attempted to move upstream on the east side of the range line (as negligently as did the Laura Maersk moving downstream) while the Bohemian Club was anchored in her first position inevitably a collision would have occurred.
The majority rule requires the master of the Bohemian Club to have possessed prescience, to have had knowledge that the Laura Maersk would be operated negligently and to have known also that if he moved the Bohemian Club from her first anchorage he would move her into a position of danger from a negligently operated vessel moving downstream. This rule misinterprets the Act of March 3, 1899, c. 425, Section 15, 30 Stat. 1152, 33 U.S.C.A. § 409. It is a very novel rule. It substitutes the court's knowledge post the event for a master's judgment exercised reasonably in an emergency. The rule renders navigation more difficult, for a vessle once anchored because of fog must remain at its first anchorage even if it be in a dangerous position, until the fog has lifted, not momentarily, but completely. I think it is unfortunate that this jurisdiction, which includes within its territorial limits one of the great rivers of the country, should embrace such a rule.
Accordingly I reiterate my ...