(dissenting).
The District Court reached a reasonable and rational conclusion in accordance with the views and testimony of disinterested witnesses, and I think we should follow our professed self-denying ordinance against reversing findings of fact in admiralty and affirm. The issue of fault on the part of appellant’s tanker is not barely the question of her speed, but that of her speed in the light of her course. The course she was following was roughly a dog’s leg to the left around Bergen Point on the north side of the channel. It would be natural in any event for a navigator to cut across the turn he must make and proceed near the Point; and this tendency would be the stronger in view of the considerable amount of shipping appearing on the Staten Island side of the channel at the time. Actually that was the tanker’s course according to the disinterested witnesses, resulting in the finding that as she approached the waters in question she “was on the northerly side of the channel heading somewhat toward the Staten Island side.” The opinion accepts this finding, but then— somewhat illogically, it seems to me- — refuses to accept the finding that she was going too fast under the circumstances, though she actually managed to get from the northerly side of the channel to the place of collision “slightly on the southerly side of mid-channel,” where “the New England very slightly favored the Staten Island shore.” Speed is relative; if we concede that the Plattsburgh Socony’s initial course was not necessarily negligent, no danger being then apparent, we should agree with the view that she went too fast on a new and confusing course.
This all has a bearing upon the application of the “gross-fault” rule. That rule is not particularly rational itself, but is only a rather cumbersome device for avoiding some of the consequences of a lack in our law of a rule of proportional division of loss according to degree of fault, “now the method of loss distribution employed by every important maritime country in the world except the United States.” Gregory, Legislative Loss Distribution in Negligence Actions, 1936, 53; Mole and Wilson, A Study of Comparative Negligence, 17 Com. L.Q. 333, 346; Robinson on Admiralty, 1939, 852-857. As such a device, it has certain utility; but it should be recognized for what it is, and its lifting-by-one’s-bootstraps qualities duly appraised. Here obviously the fault of the New England appears increasingly less gross, the more the Plattsburgh Socony is found to have approached from the latter’s port or “wrong” side of the channel and the nearer the collision occurred towards mid-channel or the northerly side thereof. In view of the other evidence and the natural circumstances of the case, I do not believe we should employ the gross-fault rule to cover up the confusing character of the Plattsburgh Socony’s own navigation, particularly against the findings of an experienced admiralty judge.