On Rehearing.
JONES, Circuit Judge.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 he 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 he 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.1 We *1006think 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.
Captain Down of the “White Mash”, a sister ship of the “Bohemian Club” and one of the ships which had passed downstream in safety while the “Bohemian Club” was at her first anchorage, testified at trial, as a witness for the libellant, — “Tes, I figured on anchoring if the weather stayed in that condition, as soon as I could, off the ranges. * * * ” (Emphasis supplied.) But, the “Bohemian Club’s” bow was right on the range line after she had made her second anchorage. Down also gave as “one reason why” he had not anchored sooner than he did,— *1006“ * * * I thought I would get down as far as I could. With that draft I could anchor on the westward or eastward side and lie out of the channel of anything that was moving.” (Emphasis supplied.) Yet that was precisely what the master of the “Bohemian Club” did not do when he changed his place of anchorage.