(dissenting).
I am unable to concur in the decision of the court. Article 29 of the Inland Buies (33 USCA § 221) provides: “Nothing* in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the ease.”
It is admitted that there were no lookouts on the tugs until the fog* was observed. The pilot of the Wyomissing testified as follows:
“Q. Where was your lookout stationed when you came on watch, Captain? A. What, the other man?
“Q. Your lookout, when you came on watch, where did you station your lookout? A. When I came on — why, when T came on at 12 o’clock it was not necessary to station the men.
“Q. You didn’t have any lookout at all? A. It was not necessary. After we got through — got down through the B. & 0. bridge he was in the pilot house then with me.
“Q. When did ho come into the pilot house, where were you when he came in ? A. Just when I got the other side of the B. & 0. bridge.
“Q. Up to that time he had not been on lookout? A. He was down in the place — he was down in the kitchen; one deckhand is kept busy in the kitchen, to keep the kitchen clean for the cook. * * ®
“A. He took that station on the bow as I was coming' around Tremley Point. He was *838up in the pñot house with me, sitting in the chair while the weather was clear, there being-no bridge down;' and when we seen the fog-coming I said ‘You better go down in the bow deck, we are going to have a fog the way it is coming in there.’ So he went right down in the bow. * * *
“Q. You say the lookout was sitting in the pilot house with you; where was he sitting— what part of the pilot house? A. He was sitting on a chair right behind me.”
In the majority opinion the court, commenting on the absence of the lookout, says: “Admittedly, the lookout was not at his post beforé the fog was observed. It is equally certain that he was at his post before the fog set in and that because of its density he could see nothing and, for some reason, he heard nothing- from the Drill Boat. We discover no causal connection between the tug’s failure to maintain a lookout when the weather was clear and the collision which occurred in the' fog, under authority of Ship Blue Jacket v. Tacoma Mill Co., 144 U. S. 371, 12 S. Ct. 711, 718, 36 L. Ed. 469, in which the court said: ‘It is well settled that the absence of a lookout is not material where the presence of one would not have availed to prevent a collision.’ The Nacoochee, 137 U. S. 330, 11 S. Ct. 122, 34 L. Ed. 687.”
The facts in Ship Blue Jacket v. Tacoma Mill Co., supra, may be easily distinguished from those in the instant ease. It was there conclusively shown that the ship would have avoided collision by keeping her course or porting her helm, but that she changed her course and starboarded her helm. Even if there had been a lookout on the tug, the collision could not, because of the unexpected change of course by the ship-, have been avoided.
It appears from the evidence in the instant case that the pilot knew of the approximate location of the drill boat and, notwithstanding that knowledge, attempted, after the fog had set in, to make the maneuver described in the majority opinion. As a result of this maneuver, it was inevitable that the tug, with her long unwieldly tow, would sweep over the area where the drill boat was working. It is a well-settled rule in admiralty that vessels in motion are required to keep out of the way of a vessel at anchor, if the latter is without fault, unless it appears that the collision was the result of inevitable accident; the rule being that the vessel in motion must exonerate herself from blame, by showing that it was not in her power to prevent the collision by adopting any practicable precautions. The Virginia Ehrman (The Agnese), 97 U. S. 309, 24 L. Ed. 890. See, also, Strout v. Foster, 1 How. 89, 11 L. Ed. 58; Wetmore v. The Granite State, 3 Wall. 310, 18 L. Ed. 179; The Bridgeport, 14 Wall. 116, 20 L. Ed. 787.
The question then is whether, under the evidence, the petitioner has sustained the burden of exonerating the tugs from liability for violation of their duty to keep a proper lookout, as required by article 29 of the Inland Rules, supra. The absence of a lookout is prima facie evidence of negligence. The Ariadne, 13 Wall. 475, 20 L. Ed. 542. The burden was therefore upon the petitioner to establish by evidence that the position of the drill boat could not have been ascertained even if there had been a lookout on duty when the weather was clear, before the fog settled. This requirement is not unreasonable, since it was shown that the visibility was good until such time as the tugs were about 900 to 1000 feet from the drill boat. The obvious inference is that the drill boat, displaying red and white lights, could have been seen by a lookout prior to the settling of the fog and that,', if information concerning its exact location had been given to the pilot, the tugs could have safely maneuvered their tow past the drill boat. Conceding that no one can tell what would have happened, had a lookout been on duty in accordance with the Inland Rules cited above, nevertheless the petitioner has failed to show that, if the lookout had been stationed before the fog fell as he should have been, a warning at that time as to the precise location of the drill boat would not have prevented the collision. The Herbert L. Pontin (C. C. A.) 50 F.(2d) 177. My view is that the burden was upon the petitioner to show that the precaution of having a lookout on duty would not have availed to prevent the collision and that the petitioner has failed to sustain this burden. Perth Amboy (D. C.) 48 F.(2d) 640. Dahlmer v. Bay State Dredging & Contracting Co. (C. C. A.) 26 F.(2d) 603. The Madison (C. C. A.) 250 F. 850.
Nor has the petitioner, in my opinion, justified its infraction of article 25 of the Narrow Channel (Inland) Rules (33 USCA § 210), which provides: “In narrow channels every steam vessel shall, when it is safe and practicable, keep to that side of the fairway or mid-channel which lies on the starboard side of such vessel.”
The maneuver described in the majority opinion was for the convenience of the tugs and their tow without regard for the safety *839of others. The drill boat was anchored about 40 feet from the eastern side of the channel and 320 feet from the western side. Knowing that the drill boat was somewhere within the general location but being unable to detect the exact location because of the fog, the pilot was under more than the routine duty to obey the Narrow Channel Rules and keep to the starboard. Had he done so, the tugs and their tow could have proceeded on the starboard until such time as the drill boat was ■unquestionably passed, and then made the turn for the purpose of tying up at the Cyan-amid Company’s dock. There was only a possibility that the tide would sweep the tow into the drill boat if the tugs proceeded on the starboard in obedience to the Narrow Channel Rules, but a collision was certain if the Rules were not obeyed.
My view is that courts in admiralty should require strict adherence to the rules for preventing collision and that the failure or neglect to keep a proper lookout at all times, as well as the failure to obey the rules for keeping to the designated part of the channel, should not be lightly excused. I am therefore constrained to the conclusion that the District Court was in error and that its decree should be reversed.