(dissenting).
The “Matton No. 20” is of course chargeable with the statutory fault of failing to blow a bend whistle; and she is equally chargeable with not having a lookout stationed where he should be, a fault which we have twice held is to be regarded as the equivalent of a statutory fault.1 On the other hand, the “Carutica” was guilty of the most unardonable navigation, whether, as seems to me most probable, she was merely cutting close to the north shore to make an easier turn around the bend, or was guilty of the strange navigation attributed to her in the findings. If her fault was the first, I should not be willing to say that the failure of the “Matton No. 20” to blow a bend whistle could have had nothing to do with the collision. If the “Carutica” had heard such a whistle, it is not certain that she would not have pulled over to her starboard and given the oncoming “Matton No. 20” a fair berth. The doctrine of The City of New York, 147 U.S. 72, 13 S.Ct. 211, 37 L.Ed. 84, and The Victory and The Plymothian, 168 U.S. 410, 18 S.Ct. 149, 42 L.Ed. 519, would not in that event have protected the “Matton No. 20”; for, although that doctrine does hold that, when one of two vessels in collision has been guilty of very grave fault, the other should not be held at fault except upon “clear and convincing” proof, once the fault of the other is proved, apparently the doctrine is functus officio, and if the fault be “statutory,” the usual rule still applies that the guilty ship must show that the fault could not have contributed to the collision.2 I should have doubt whether the absence of the lookout on the “Petroleum No. 7” should also be counted, for it is hard to believe that even had he been in position, he would have seen the “Carutica” enough earlier than Roberts to make a difference. However, it would be unnecessary to decide that question, because the failure to blow the bend whistle would alone have charged the “Matton No. 20.”
But all of this is beside the point, if we accept the findings, for these ascribe to the “Carutica” the following amazing navigation. The two vessels first made each other out, when they were 800 feet apart, which, at a mutual approach of about four miles an hour, means that they were about two and a half minutes away from each other at unslacked speed. The “Carutica” was then “in about the center of the buoyed channel,” and after the vessels had exchanged passing signals, “her main engines were stopped and her captain started to swing her to starboard.” Obviously, if that had been all she did, she could never have gone to port, because backing on her main engine did not throw her bow to port or starboard. How then did she collide with the tow of the “Matton No. 20,” when the bow of that tow was only 20 feet from the channel boundary? So far as I can see, she could have got herself in that posture only as follows. About a minute after the vessels saw each other, i. e. when they were presumably 400 feet apart (though Roberts thought in about half that distance), “the ‘Caru-tica’ opened up with its green light to the ‘Matton No. 20.’” It is obviously impossible to account for this, unless the “Carutica” turned to port early enough to bring her tow from “about the center of the buoyed channel” to within sixty feet or so of its north boundary, where the collision occurred. If that is a true account of what happened, it *110seems to me that the “Matton No. 20” did show beyond doubt that her failure to blow a bend whistle could have had nothing to do with the collision; and that she therefore satisfied the rule of The Pennsylvania, 19 Wall. 125, 22 L.Ed. 148. Certainly when a vessel veers from an agreed passing, port to port, and at a distance of 400 — to say nothing of 200 — swings across the bows of the other, the absence of a bend whistle five or six minutes before cannot have contributed an iota to the collision. So too of the absence of a lookout on the bows of the “Petroleum No. 7.” There remains the putative fault of the “Matton No. 20” in not backing, and in trying to scrape through what water the “Caru-tica" had left of the channel. That was not a statutory fault in any event; and as to it the doctrine of the City of New York, supra, 147 U.S. 72, 13 S.Ct. 211, does apply; and it ought to clear the “Matton No. 20.” For, again, consider the occasion. When the “Carutica” “opened up” her green light, the “Mat-ton No. 20” must have understood it for what it was: a swing towards her and into her water. Was it plainly bad navigation, faced with such a preposterous and unanticipated manoeuvre, to think it a better chance to try to slide past rather than to stop dead in what apparently might be the path of the on-comer? I submit that that is precisely the situation that the doctrine was intended to meet, and that it exonerated the “Matton No. 20.”
Therefore, the appeal seems to me to turn upon whether one should accept the findings that impute to the “Carutica” the uncanny antic I have described; or whether one should substitute what seems to me the more likely version of what happened. I feel in some doubt; but, after all, I was not at the trial, and I do not believe that I ought to refuse to go along with the findings of the experienced judge who made them, supported as they are by the testimony of witnesses whom he heard and saw. Therefore, I think that the “Matton No. 20” should be exonerated, and that the “Carutica” should pay the whole bill. Is it out of place to point out that the suit is one more illustration of our strange obstinacy in clinging to the division of damages and refusing to apportion them? This has become even more egregious, when we reflect that, where personal injuries are in issue, we do follow the more enlightened doctrine, now in force in most countries.3
. The Anna W., 2 Cir., 201 F. 58; Gulf Oil Corporation v. Socony No. 16, 2 Cir., 162 F.2d 869.
. The San Simeon, 2 Cir., 63 F.2d 798, 801; General Seafoods Corp. v. J. S. Packard Dredging Co., 1 Cir., 120 F.2d 117, 120; Lind v. United States, 2 Cir., 156 F.2d 231, 233.
. The Max Morris, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586; Pope & Talbot v. Hawn, 346 U.S. 406, 74 S.Ct. 202.