(dissenting):
Judge Smith’s thorough and scholarly analysis of the historical development of the Ryan-type warranty demonstrates that we are not here confronted with such an indemnity but with an implied obligation arising out of Chevron’s contract to provide tug assistance. However, I do not agree with the majority’s interpretation of the nature and extent of that implied obligation. Furthermore the proof is overwhelming that there was no breach of it.
Chevron did not contract to assume control over a dead ship. See, e. g., Tebbs v. Baker-Whiteley Towing Co., 407 F.2d 1055 (4th Cir. 1969); Todd Shipyards Corp. v. Moran Towing & Transportation Co., 247 F.2d 626 (2d Cir. 1957); James McWilliams Blue Line, Inc. v. Esso Standard Oil Co., 245 F.2d 84 (2d Cir. 1957). It contracted merely to provide “ordinary tug assistance if required” to the Western Eagle as a live ship under its pilot’s control. This is not, therefore, a case of the type referred to by the district judge where “[t]he shipowner turns his vessel over to the tug’s control, depending on the latter’s expertise in conducting safe towing operations.” (App. 298a). Were control of the ship to be with Chevron, it might have insisted upon taking greater precautions than those observed by one rendering “assistance.” Indeed the tugs hired by Chevron could justifiably have refused to accept control initially unless they were given ample advance opportunity to exercise control effectively, which was not the case here since there was a dense fog and the pilot did not ask for tug assistance until the ship had gone past Buitenhaven and was in danger. Were the tugs in control, they might have demanded that the Western Eagle drop anchor until they could navigate safely; or, in the alternative, they might have decided upon a different and safer course to pursue up the Scheldt River.
But control of the Western Eagle remained with the pilot and Chevron was not required to take these precautions. It bound itself merely to provide “ordinary tug assistance.” Regardless whether that obligation is labelled a contractual promise or a warranty, it did not convert Chevron into an insurer against accidents, see Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699 (1932). Nor did it relieve the shipowner of responsibility for accidents occurring while the ship was within its control, The McCaldin Brothers, 213 F. 211 (2d Cir. 1914). The contract obligated the tugs to render such assistance as could *1262reasonably be expected of them under all of the circumstances that might be confronted, see Stevens v. The White City, supra, including the position in which the vessel might place itself prior to calling for assistance and the possibility that if the tugs should, in the course of rendering assistance, be faced with imminent peril to themselves and their crews they could not reasonably be expected to destroy themselves. Faced with imminent peril to themselves or the ship, their contractual duty to assist would not preclude their exercise of reasonable discretion in determining whether to carry out dangerous orders from the pilot, see The Edward G. Murray, 278 F. 895 (2d Cir. 1922); cf. Esso Standard Oil, S. A. v. S. S. Gasbras Sul, 387 F.2d 573, 580 (2d Cir. 1967), cert. denied, 391 U.S. 914, 88 S.Ct. 1808, 20 L.Ed.2d 653 (1968). Surely these time-honored principles of reasonableness in construing the term “assistance” cannot be repealed or negated by invocation of the- term “warranty” as if it were some sort of magical talisman, particularly when the policy reasons for the judicially created Ryan-type “warranty of workmanlike service” are not present. With the shipowner in command of the ship, the need for saddling the tugs with strict liability is certainly less than where they are in control. In my view a tug obligated to render “assistance” is held to no more than a standard of reasonable care in the rendition of that assistance, whether or not the obligation is labelled contractual or given the more exacting term ■ “warranty.”
Regardless whether Chevron’s obligation rose to the level of a warranty, the proof was clearly insufficient to support a finding that Chevron breached its obligation. Since the key witnesses, the pilot of the ship (Pennarts) and the captains of the two tugs (Schuiling and Bout) testified by deposition, we are in as good a position as the trial judge to assess their testimony. The record reveals that the two tugs (the Sophia and the Frederik Hendrik) proceeded from port to assist the Western Eagle as soon as they were called upon to do so. How-
ever, this may well have been too late ■ because, as both tug captains testified, it was dark, there was a “dense fog,” with “visibility . . . [that] varied from thirty to forty meters,” there was a strong flood tide and a force 5 to 6 wind sweeping the ship east and northward toward the rocky dike. The Hendrik, which was the first tug to arrive near the ship, went to the port side of the bow of the Western Eagle as directed by its pilot and was unsuccessful in picking up the ship’s tow rope because the ship was going astern and moving away as the tug lay dead in the water. At that point, with the Hendrik under the ship’s bow, the tug captain (Bout) saw the mast headlights of two coasters bearing down on his position from the eastward. The Western Eagle swung violently to the port. The Hendrik, fearing that one of the coasters would collide with it, then moved to the starboard side of the Western Eagle. The Hendrik’s captain testified that “his first duty was to get himself into safety, when he saw that coaster.”
In the meantime the tug Sophia arrived on the scene and, according to the testimony of her captain (Schuiling) found the ship “at a distance of about a hundred to one hundred fifty meters away from the coastline” upon which the ship was soon to strand. The captain further testified that as his tug was located about 30 meters from the stern of the Western Eagle he was instructed by its pilot to stand by so that he could make fast by tow line to the aft of the ship. At that point he observed two coasters coming down the river from the east, one on the right side of the channel and the other to the left, and “took for safety’s sake a position amidships of the Western Eagle.” The Western Eagle was going astern, located only a short distance from the north shore, and the first coaster passed 30 to 40 meters off its port bow toward the near shore. Immediately thereafter the second coaster also passed along the port side of the Western Eagle toward the north shore and only “a few meters” from its stern. The Sophia then picked up the Western *1263Eagle’s tow rope and made fast to the ship but the line parted. More tow ropes were then picked up and made fast but by that time the Western Eagle was aground.
Thus, according to the testimony of the two tug captains, they had little or no time to make fast to the Western Eagle, one having been unable to pick up the tow rope near the bow and the other having been ordered by the pilot to stand by in readiness to pick up a tow rope near the stern, when they saw the two coasters bearing down on them and, apprehending a collision, moved to a safer position. As it was, the second coaster barely missed colliding with the Western Eagle.
That the tugs’ apprehension of an imminent collision with the coasters was not unreasonable is attested to by the following testimony of the pilot of the Western Eagle:
“Q. Were you concerned about a collision with the second coaster, is that the reason you stopped your vessel? A. Yes. I wanted to give her room.
“Q. So that the second coaster was close enough that you were concerned about a possible collision and that is the reason you gave stop? A. Yes.” (App. 63a).
The vessel’s log contained the following entry:
“To avoid collision with two other vessels seaward bound we were obliged to perform full astern and whistled,three short blasts.” (Ex. I; App. 113a).
Since the tugs measured 36 meters long by 8 meters in the beam it appears that, if it had remained to the port of the Western Eagle, the Hendrik would probably have been struck by one of the two coasters, which passed only a short distance away on the same side of the Western Eagle.
Notwithstanding the foregoing, the district court found:
“Apparently, the tugs feared a collision with the coasters, which arrived on the scene as they were about to make fast. The testimony and written statements of Pennarts, however, who had the best vantage point to judge the situation, fail to show that he believed there was any danger that the tugs and coasters would collide. Rather, there was ample room between the WESTERN EAGLE and the northern shore for the coasters to pass, as they did, without incident.” (App. 306a).
The proof, including the testimony of the pilot of the Western Eagle, however, shows that everyone, including the pilot, feared a collision. Furthermore, if the Western Eagle had been located 3 cables (i. e., approximately 1,800 feet) from the north shore, rather than 100 to 150 meters as Captain Schuiling testified, the tugs would undoubtedly have had ample time after the two coasters passed to make fast and start towing the ship southward.
In view of the foregoing undisputed evidence, the district court’s finding that Chevron breached its obligation to render tug assistance was clearly erroneous.