Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
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 asuming 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*fn1 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*fn2 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 Harford 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 Harford 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 Henlopen 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 Harford 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 Harford, 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.*fn3
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 Harford followed in a proper manner."
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 uncontradicted 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 reasonable have expected to occur * * * this rule is commonly expressed in terms of causation - the second wrongdoer's negligence being called the proximate cause;*fn4 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;*fn5 the fault of the vessel sought to be charged must be a "cause" and not a "condition" of the collision*fn6 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.*fn7
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 avoid collision, but did not do so."*fn8
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."*fn9
In The Cornelius Vanderbilt, 2 Cir., 1941, 120 F.2d 766, 768, the tug Watuppa 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 Watuppa 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 Hempstead had the last clear chance to prevent a collision by the exercise of ordinary care".*fn10
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 ...