(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.1 When she anchored in the dense fog,2 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 fo 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 reason*1007ably in an emergency. The rule renders navigation more difficult, for a vessel 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 previous dissent.
The Bohemian Club was 435 feet over all in length. She drew 27 feet 1 inch aft and 27 feet forward. She was fully loaded with crude oil.
The master of the Bohemian Club stated: “There was no visibility when I anchored. Therefore, it wasn’t safe to navigate any further.” He testified also that just as he turned on the Bulkhead Range another ship, the Gulfpride, was ahead of him; that he lost sight of this vessel in the fog and that the Gulfpride blew “three whistles” which indicated that its engines were being put full speed astern. Obviously the master of the Bohemian Club could do nothing else but anchor. The channel of the Bulkhead Bar Range is 35 feet deep. That portion of the channel lying to the east of the range line was 400 feet in width and that part of the channel lying to the west of the range line was 800 feet. These facts are not in dispute. The majority opinion quotes Oaptain Down of the motor vessel White Flash (one of the vessels which passed the Bohemian Club going downstream when the Bohemian Club was anchored to the east of the range line) to the effect that the Bohemian Club could have anchored out of the channel on the Bulkhead Bar Range. An examination of the chart of the Delaware River in evidence shows the practical impossibility of such a course. Though there was some water both to the east and the west of the Bulkhead Bar Range which was deep enough to permit a vessel of the draft of the Bohemian Club to anchor, it is difficult to believe that a master could have picked it out in a fog. In addition, this deep water is so small in area and so close to shoal water or shore as to make such an operation difficult even in the best of weather.