(dissenting).
Accepting the physical facts surrounding the accident as found by the trial judge, the launch Octyn was clearly at fault as the majority opinion states. But the Norcuba was also at fault, and on that point I am not in agreement with the majority opinion.
The Norcuba’s captain, as he boarded his ship shortly after 6 P.M. on April 1, 1953, warned the launches that were hovering near the ship to taxi crewmen ashore, that the ship was getting under way immediately. The Octyn remained alongside the Norcuba 175 to 200 feet forward of the ship’s stern, waiting for a particular fare. The other launches left. At that time the Norcuba was at anchor just west of Bay Ridge Channel, off 69th Street, Brooklyn. She was about to move to another anchorage in the lower bay.
The captain of the Octyn admitted that he had heard the Norcuba heaving up *892the anchor and had heard her propeller turning for ten minutes before the accident. The order for slow ahead was given at 6:23% P.M. The tide was flood. When the ship gained headway and her rudder was put hard right, the launch tried to escape by going ahead at full speed on a hard left, but became impaled on the ship’s propeller which was half out of water. The Norcuba was light, with no ballast. The trial judge found that “the Octyn was conscious of its apparent danger and heedlessly waited too long and too close.”
The trial judge also held that the Norcuba was at fault, because if the master or pilot (or a lookout, which it did not have) had actually looked over the port side of the Norcuba “the Octyn’s plight could have been seen.” I agree with Judge Murphy that the Norcuba’s master should have taken that additional precaution, especially since he intended to change the course of his vessel by a hard right, which would swing the stern of the ship to the left and it was on the port side, the shore side, that the Octyn was lying. Indeed, the master’s testimony and the pilot’s testimony impliedly recognized the need for that precautionary measure. Each testified that they both had looked over the port wing of the bridge to see if all the launches were clear of the ship. The trial judge did not accept that testimony and found as a fact that neither the master nor the pilot looked over the side of the ship. The reason why he rejected their testimony was sound. He concluded that if they had looked over the port side of the ship they would have seen the launch, that it was light enough to see the launch. His findings are not clearly erroneous. This appellate court should give due weight to the fact that the trial judge saw and heard the witnesses. Thomas v. Pacific S.S. Lines, 9 Cir., 84 F.2d 506, 507; The Pennsylvania, 9 Cir., 139 F.2d 478, 481.
An appellate court in reversing the judgment of a trial court, sitting without a jury in admiralty “may not set aside the judgment below unless it is clearly erroneous. * * * A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.’ ” McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 8, 99 L.Ed. 20. In the case at bar I have no such conviction. As I see it, the issue clearly presented is one of law, whether, under the facts as found by the trial judge, those in charge of the Norcuba were under a duty to look over the port side of the ship to see if all the launches were at a safe distance, before putting the ship on a hard right. I believe that the ship’s officers were obliged to take that precautionary measure. The accident was substantially contributed to by the fault of the Norcuba, although in a. less degree than by the fault of the Octyn..
The decree of the court below should' be affirmed in that it held both the launch Octyn and the ship Norcuba at fault, and divided the damages. In re Adams’ Petition, 2 Cir., 237 F.2d 884, certiorari denied 352 U.S. 971, 77 S.Ct. 364, 1 L.Ed. 325.