(concurring in part and dissenting in part):
The navigation of the Saratoga was almost as if she were by magnetic attraction brought onto a collision course with the Leonhardt. Even without study, but on mere glance at her courses as laid out on the annexed plot, it is immediately *761plain that the carrier insisted upon encroaching on the heading of the Leon-hardt as she yielded to the privilege of the carrier. The majority’s statement of the relative paths and positions of the vessels is convincing that the Saratoga’s erratic maneuvers forced the Leonhardt into the agony of collision.
*760
*761Now the court lays fault to the freighter’s avoiding action. Not only was the Leonhardt not guilty of negligence, as I see it, but even if so, it did not contribute to the collision, and in any event was too slight to warrant mulcting her in half of the damages.
The maritime doctrine of equally divided damages for joint fault in collisions is a harsh remedy — it does not apportion damages on a comparative negligence ratio — and admiralty has endeavored to relieve its rigor upon the much less culpable vessel. This desire is evinced in the major-minor and the Pennsylvania rules. They are applicable here and exonerate the Leonhardt. Speaking to the presently comparable circumstances, the Court in the City of New York, 147 U.S. 72, 85, 13 S.Ct. 211, 216, 37 L.Ed. 84 (1893), expounded the major-minor principle:
“Where fault on the part of one vessel is established by uncontradieted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. There is some presumption at least adverse to its claim, and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor.” (Accent added.)
The Pennsylvania rule is that when a ship, as was the Saratoga, is admittedly in violation of a statutory duty, then, to avoid liability she must prove that her violation could not have contributed to cause the accident. The Pennsylvania, 19 Wall. [86 U.S.] 125, 22 L.Ed. 148 (1873). This the Saratoga has not done. On the other hand, arguendo negligent the Leonhardt has acquitted herself of any careless complicity.
As the privileged vessel, the Saratoga was obligated to hold course.1 Her deficient seamanship is revealingly established by tracing the ships’ courses. These and the points of change will be described by numbers corresponding to those on the annexed plot.
When the vessels came within visual range of each other, the Saratoga was on a course of 174°, at point 1. Her officers recognized she had the right of way and was obligated to hold course. The Leon-hardt realized she was the subordinate vessel, and was prepared to fulfill her responsibility to clear the Saratoga astern. Nevertheless, the carrier then committed the following deviations from this obligation:
A. . With the ships little more than seven miles apart, the Saratoga changed course to 190°, at point 2.
B. Then, about six minutes before the collision, with the vessels less than 4 miles apart and closing at a relative speed of about 39 knots, the Saratoga without signal2 came 20 degrees to port, to 170° at point 3. This alteration — initiated only for the convenience of resuming her base course — is termed by the majority as a “whimsical departure”, from her *762previous course and a “gross violation of the rule.” Obviously, on 190°, the Sara-toga would have passed well ahead of the Leonhardt. (The Leonhardt’s later compelled turn, vide post, to starboard would have opened the gap even more.)
C. At 2358 with the vessels only about a mile and a half apart, the Saratoga compounded her earlier error by turning left to 160°, at point 4, again without signal, thus heading her nearer to the course of the Leonhardt.
This last course change, at point 4, roughly coincided in time with the Leon-hardt’s turn to starboard and the Sara-toga thus made the collision inevitable. This turn of the Leonhardt was from her original course of 330° to 000°, immediately after the Saratoga’s change to 160°. It was an avoiding action to stay to the Saratoga’s port. Defeating this the Sar-atoga came even farther to port by 10° to 150°. So confronted, and still endeavoring to escape the predicament in which the Saratoga had placed her, the Leon-hardt came hard to starboard. At nearly the same time the Saratoga took the same action, and the vessels scraped portside to portside.
Passing for the moment the throes of distress into which the Leonhardt had been projected by the Saratoga, it is time to look at the fault imputed to the Leonhardt by the court. Summarized it is this:
“Her failure to observe sooner the carrier’s port turns and to appreciate their extent, to see the carrier’s green starboard running light when the carrier’s turns placed Bernd Leonhardt on her starboard bow, and her failure to signal with her whistle her turn to starboard were contributing causes of the collision.”
The Saratoga’s most decisive turn was left at point 3, and the Leonhardt is criticized for not comprehending its dreadful significance. In this several factors are ignored. The turn was an un-signalled violation of the Saratoga’s statutory obligation to hold her course. The import of the duty is clear, and other courts have exonerated burdened vessels trapped into disaster by violations of this duty far less unjustified than those of the Saratoga. E. g., The Britannia, 153 U.S. 130, 14 S.Ct. 795, 38 L.Ed. 660 (1894); Hutchinson v. The Northfield, 154 U.S. 629, 14 S.Ct. 1184, 24 L.Ed. 680 (1878); cf. Yang-Tsze Ins. Ass’n v. Furness, Withy & Co., 215 F. 859 (2 Cir. 1914). As the Court in The Britannia, supra, said:
“[T]he preferred vessel shall not interfere with or thwart the movements 0f * * * [tine burdened ship] by bringing a new element into the calculation, which would be done if, instead of pursuing her course, she stopped her headway.” 153 U.S. p. 142, 14 S.Ct. p. 799.
Thus while required to keep a watchful eye on the Saratoga, the Leonhardt could rely on the expectation that the Saratoga would comply with her duty. It is a requirement designed to assure that the movement of one of the ships in a crossing situation will be predictable to a certainty.
Leonhardt’s failure to signal her turn to starboard was not a contributing cause to the collision. Since she saw the turn, the Saratoga would not have been more enlightened by a signal than she was already. United States v. S.S. Malden, 224 F.Supp. 705, 711 (E.D. Va. 1963), aff’d, 341 F.2d 292 (4 Cir.). In such circumstances this statutory duty would not be considered a defeating delinquency; it would not invoke against her the rule of The Pennsylvania. See National Bulk Carriers v. United States, 183 F.2d 405, 409 (2 Cir. 1950), cert. den. 340 U.S. 865, 71 S.Ct. 89, 95 L.Ed. 631.
Nor was the failure of the Leonhardt to see the green light of the Saratoga a contributory cause. Assuming, as the court finds, that the Leonhardt was “dead ahead” when the carrier was on 170°, both her sidelights — red and green —were showing to the Leonhardt. Then, as the court also finds, the Leonhardt had not crossed the carrier’s bow. To keep to the carrier’s port, as she was re*763quired, the Leonhardt went to 000°. At the same time or just before this movement, the Saratoga went to 160°. At that moment the ships were only about two minutes from collision, and because of the Saratoga’s unfathomable course changes, she was bearing down upon the Leonhardt in complete abandon of her duty. Having created the danger, the carrier can hardly be allowed to condemn the seamanship of the Leonhardt.
The majority, it seems to me, has violated the Supreme Court’s caution against judgment by sternsight:
“Whether she [the innocent ship] may not have been slightly in fault may be a close question. This is often so when subsequent knowledge of what might have prevented disaster tends to qualify the inquiry as to the prior duty to avert it.” The Victory & The Plymothian, 168 U.S. 410, 424,18 S.Ct. 149, 155, 42 L.Ed. 519 (1897). (Accent added.)
I find no justice in holding the Leon-hardt liable for one-half of the whole damages when the entire catastrophe was brought on by the carrier.
. Rules 19 and 21, International Rules of the Road, 33 U.S.C. §§ 146c and 146e:
Ҥ 146c. Power-driven vessels crossing (Rule 19)
When two power-driven vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.”
Ҥ 146e. Vessels having right of way; duty in aiding to avert collision (Rule 21).
Where by any of sections 146-146k of this title one of two vessels is to keep out of the way, the other shall Iceep her course and speed. When, from any cause, the latter vessel finds herself so close that collision cannot be avoided by the action of the giving-way vessel alone, she also shall take such action as will best aid to avert collision (see sections 146k and 147a of this title.)” (Accent added.)
. Rule 28(a), 33 U.S.C. § 147(a).