Before the fog set in the leading tug did not have a lookout on duty. On reading the majority opinion in this case it will be clear that we knew article 29 of the Inland Rules for Preventing Collisions, 33 USCA § 221, which provides that "Nothing * * * shall exonerate any vessel * * * from the consequences of any neglect * * * to keep a proper lookout * * *." It will also be clear that we are acquainted with the equally settled rule that "the absence of a lookout is not material where the presence of one would not have availed to prevent a collision." The Blue Jacket v. Tacoma Mill Co., 144 U.S. 371, 12 S. Ct. 711, 718, 36 L. Ed. 469; The Nacoochee, 137 U.S. 330, 11 S. Ct. 122, 34 L. Ed. 687. We held the latter rule applied on a finding of fact that this collision was not a consequence of the tug's failure to have a lookout at his post before the fog set in, because at that time the position of the tug, well north of a bend in the Kill, was such as to make it impossible for a lookout, if at his post, to see the Drill south of the bend. We found this fact on the uncontradicted evidence of the captain of the tug who, on being requested, marked on a map the position of his tug when the fog set in by "a point with a circle around it." R-151. Now the point with a circle around it, appearing on the map, is above the bend of the Kill about 4000 feet from the Drill. By laying a ruler on the map from the point showing the position of the Drill to the point with a circle around it showing the position of the tug, it is plain that neither a lookout nor anyone else aboard the tug could see the Drill down the waterway. Tremley Point cut off the water view. Whether the Drill could be seen across the land is another matter. Accordingly we affirmed the decree of the court below denying relief to the claimants-respondents.
The claimants-appellants petitioned for a rehearing on the ground that, notwithstanding the evidence of a point with a circle around it as denoting the position of the tug when the fog set in, we misapprehended the evidence and misconceived the position of the tug and her tow. We allowed the petition and on rehearing the proctor for the claimants asserted and (to our astonishment) the proctor for the petitioner admitted that the point with a circle around it (the only point of that kind on the map) did not denote the position of the tug north of the bend and about 4000 feet from the Drill when the fog set in, but a point on the map without a circle around it south of the bend in plain view of the Drill about 1000 feet away was the mark made by the captain showing the position of his tug when the fog set in.
This concession changes the whole face of the case and brings into operation Article 29. It also brings into operation its companion rule that the burden of exonerating the tug for violating her duty to keep a proper lookout is upon the petitioner. The petitioner's effort to do this by attempting to prove, argumentatively, that the captain, its own witness, was wrong when he marked his tug's position south of the bend, close to and in sight of the Drill before the fog set in, does not persuade us that the presence of a lookout "would not have availed to prevent the collision." Hence we are constrained in this suprisingly reversed situation, to withdraw our previously announced decision and reverse the decree below, with direction that the District Court enter a decree for the claimants-respondents limited in amount to the value of the petitioner's interest in the Steamtug "Wyomissing," the tug dominating the navigation of the tow and the only one proved negligent in not maintaining a lookout, and to her pending freight, if any, on the voyage. Schuyler's Steam Towboat Line v. Madison M. Caleb, 103 U.S. 710, 26 L. Ed. 467; Liverpool, Brazil & River Plate Steam Nav. Co. v. Brooklyn Eastern District Terminal, 251 U.S. 48, 40 S. Ct. 66, 64 L. Ed. 130; The W. G. Mason (The W. I. Babcock) (C.C.A.) 142 F. 913; The Transfer No. 21 (C.C.A.) 248 F. 459; Erie Lighter No. 108 (D.C.) 250 F. 490.