(dissenting).
The findings of the district court showing that “[t]he officers and crew of the Lady Nelson were not negligent in any particular but on the contrary acted with the care and skill required of prudent navigators” seem to me strongly buttressed in the evidence. Upsetting them is contrary to the regard for admiralty findings expressed in McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6; additionally this course must rest on certain premises as to navigation which will surely both confuse and burden our merchant marine.
Since the tug’s one light denied the presence of a tow, and the towed barge was unlighted, no negligence can be attributed to the Lady Nelson for failing to see the barge in time to avoid the accident. Responsibility must therefore be predicated upon some unfulfilled duty owed the tug and in some manner transferred to the tow. Respondent’s counsel have been rather successful in building up an atmosphere of a big vessel running down a little one and forcing the latter to give way on pain of being hit. But I am quite clear that on the facts as they existed and were found, the claim is specious and unfounded.
Before I turn to the fact findings let me try to put this issue of “close-shaving” in its proper perspective as it came before the trial court. Respondent had some six or seven claims ranging from the jurisdiction of the court in admiralty to certain issues of fact. Most stressed of these issues was the alleged failure of the Lady Nelson’s lookout to report the barge; nearly as much was made of her claimed failure to make proper use of her radar equipment. The trial court properly found against respondent on them, and they are not adverted to in the opinion. The claim of close shaving was actually based upon the deposition of the tug’s master, Fuentes, that the Lady Nelson “changed her course” to pass on the port side very close to his vessel. But this contention of change of course was discredited in the evidence and not accepted by the trial court, which found that the Lady Nelson “continued on without change of course.” It also found that the vessels passed “port to port, without incident or difficulty, at a distance of about one shiplength” or over 400 feet. The trouble came thereafter from the unlighted low-lying barge in the wake of the tug.
In view of these well supported findings it would seem doubtful that the Lady Nelson could properly be held liable even if we accept the picture of inconsiderate navigation limned in the opinion. For she has completely fulfilled her obligation of 33 U.S.C. § 103 of navigating with respect to an approaching vessel “so that each may pass on the port side of the other.” But in truth this picture was not the one before the trial court, as was shown by the straightforward testimony of her master and mate, supported by the deposition of the disinterested witness Goss. After the Lady *596Nelson steadied on her course for the open sea, her master and mate first saw the tug’s single white light. This told little, since indeed it might have been the stern of a vessel. But close observation discovered the other lights of the tug and enabled the master to deduce correctly that approaching was a small steam vessel. There surely was then no oceasion for him to swerve off his course for fear of some misnavigation on the part of the approaching vessel. What he did was quite properly to order the quartermaster “not to allow anything to the port of the course” or “in other words, not to allow the ship to fall off to the left of her course.” (This is the direct testimony of Vaughan, the mate.) So she was held carefully to her course and so passed port to port safely and without incident as we have seen. What more should she have done? The holding otherwise seems somewhat as though a large car approaching a small Ford on a broad highway must climb the greensward to its right for fear there may be an unlighted trailer to the Ford which may get in its path.
Some point is made that the tug when three-quarters of a mile away made a change of heading to starboard and toward safety while the Lady Nelson con-tinned on her course, leaving it to the other vessel to move out of danger. This seems to me an unjustified deduction; yielding of the course by the tug would seem an appropriate, though unduly belated, action to get its unlighted tow out of the way of trouble if possible. It knew of the danger as the other vessel did not. Thus there is nothing to show that the t , r „• Lady Nelson s course was not circum- , , . . , „ . spect and appropriate, as her successful . . , , , , -r, • j passing of the tug demonstrates _ Point is also made of her speed, but this, too, seems appropriate for a passenger vessel in the ^ open sea. The desirability of maintaining schedules is, or should be, obvious in this age of competition for passenger carriage.
The safe navigation of ships, particularly at night, must depend on the trustworthiness of signals, known to mariners and set by law. Any holding which weakens their validity or indeed falsifies their message is disturbing. It lends some support to the careless, and it puts a duty of undefined character upon the vigilant to read something more than the signals themselves say. Here, further, two vessels, tug and tow, combined to falsify the message; yet they only share jointly and together the burden of liability which is placed equally on the vessel which has had the misfortune to rely on what they were saying. I think af-firmance here is desirable for the good of our merchant marine,