(dissenting).
The majority opinion concedes that the tug was negligent in coming into the slip too close to The Copeland. The tug’s acting captain, Hunt, admitted that the distance between the vessels was “about two feet”. The sole eye witness to the occurrence said that the tug was right up against the paint of The Copeland “about as close as he could get.”
There was no emergency here involved. The tug was engaged in a routine job of work which had been going on for years and the dredging operations, including the tug’s handling the scows, as the captain of the dredge testified, “were not set up in any way to impede the progress of [coal] loading operations.”
As the tug was approaching the slip, Hunt saw the Copeland boom. Regarding it, he says, “I thought it was clear * * This was at 7:30 on a January night. Hunt knew that the ship which turned out to be The Copeland “was berthed taking on coal”. The Copeland, as found by the district judge, “was illuminated by clusters of floodlights suspended from each of her masts, which illuminated the deck and superstructure of the vessel.” Hunt had been taking scows in and out of the Greenwich Coal Pier since its construction, apparently" in 1928 or 1929. The position of the particular aft port Copeland boom, swung outboard as it was during the coaling process, was, as found by the court below, “the usual and customary manner of arranging the vessel’s booms at the Greenwich Coal Pier. The booms are arranged in this fashion so that they will not interfere with the operation of the stationary coaling machine.” [75 F.Supp. 370.] And regarding the period when the booms are extending outboard from vessels, Hunt said, “When they are out we won’t go in there, not unless we can go past them.” He was entirely familiar with the fact that booms which were swung outboard, of necessity had cables attached to them. He was asked: “Have you ever seen them out when there has been no cable attached to themf” (Emphasis supplied.) And he answered: “No! I don’t now how I could. There had to be a cable there, if they are out, to pull them in or something!” (Emphasis supplied.)
From the time of his first faulty observation of the boom when he had mistakenly thought it was clear, Hunt did not claim to have seen it .again prior to the accident and does affirmatively say that as he drew up to the stern of The Copeland he could *826not see the boom because his view was obstructed by the roof of his pilot house.
So in that situation Hunt took Ihis tug in so close to The Copeland that it scraped the latter’s paint. And the district court logically found that “The proximate cause of the accident was the navigation of the 'Sohermerhorn’ in unreasonably close proximity to the moored vessel.”3
According to the tug captain his reason for moving so close to The Copeland was because he was fearful of the mud flat to the south, but his whole maneuver was based on a glaring miscalculation. He thought his empty scow drew seven feet of water whereas it actually drew only four feet. Had Hunt known this, as he himself states, he would have had “very much more room”. The tug’s master, then, was wrong in this vital instance, as he was utterly wrong in his snap judgment that his forty-five foot stack would clear The Copeland’s outboard port boom tackle. I find no justification in the record for putting a premium on such gross negligence by reversing the judgment of the district court.4
On Motion for Clarification.
GOODRICH, Circuit Judge.The United States has moved for clarification of the Court’s opinion in the above entitled case to the effect “That the opinion and order of the Court provide that the respondent appellee Union Stevedoring Corporation be held primarily liable for the damages sustained to the tug Schermerhorn and that the respondent appellee United States of America be held secondarily 'liable for said damages.”
This motion will be denied; The Court’s opinion regarding the observance of care, or lack of it, by respective parties is self-explanatory, we think. The rights of the respondents against each other under the contract between them were not adjudicated in the District Court nor were they passed upon by us. If the United States has occasion to claim indemnity from Union Stevedoring Corporation and has to resort to litigation to establish its rights, the courts are certainly open for that purpose. But any decision by us concerning such rights at this stage of the litigation would be premature. See American Stevedores, Inc. v. Porello, 1947, 330 U.S. 446, 67 S.Ct. 847, 91 L.Ed. 1011. The case of Slater Fireproof Storage Co. v. Nicholson Transit Co., 7 Cir., 1931, 47 F.2d 734, cited by the Government, is not in point. In that case a controversy of the very kind we are now asked to rule upon was decided in the first instance by the District Court.
The motion will be denied.
Even if The Copeland could be said to be at fault, that fault was merely a condition not a cause of the collision, and as Judge Learned Hand said in The Perseverance, 2 Cir., 63 F.2d 788, 790, certiorari denied, Cornell Steamboat Co. v. Lavender, 289 U.S..744, 63 S.Ct. 692, 77 L.Ed. 1490, “* * * the tug was amply advised in advance of the ship’s position, and could have avoided her by proper navigation.” See also Matton Oil Transfer Corporation v. The Greene et ah, 2 Cir., 129 F.2d 618, 620. This law would all the more strongly apply if The Copeland’s hull had been really projecting fi-orn the pier at an acute angle as the majority opinion states.
In this case the lower court heard all of the witnesses with the exception of one whose testimony came in by way of deposition. In such situation Judge Den-man in The Catalina, 9 Cir., 95 F.2d 283, 284,- said: “While this admiralty appeal is a trial de novo, the presumption in favor of the findings of the District Court is at its strongest, since the trial judge heard all the witnesses, save one, and his deposition clearly sustains those heard.”