P. DOUGHERTY CO. v. UNITED STATES; P. DOUGHERTY CO. v. UNITED STATES, 207 F.2d 626

KALODNER, Circuit Judge. Cross-appeals were filed from an Interlocutory Decree of the District Court ordering the United States to pay to The P. Dougherty Company one-half of the damages suffered by its barge, Harford, while in tow of the Coast Guard cutter Mohawk, in the course of a rescue operation at sea. The District Court’s Decree was based on its determination that both the Harford and the Mohawk were negligent. Dougherty’s appeal is premised on its contention that the Harford was free of negligence and that the Mohawk’s negligence was the sole cause of her damage.

The United States in its appeal contends (1) the negligent steering of the Harford was the principal cause of the accident and she was solely at fault; (2) it is not liable for negligence of the Coast Guard in a rescue operation; (3) even assuming such liability exists, the standard is “gross negligence” or “wilful misconduct” and not “ordinary” or “simple” negligence as was held by the District Court; (4) the “Good Samaritan” doctrine was erroneously applied by the District Court.

It may be noted that the District Court’s Findings of Fact with reference to the sequence of events which led to this litigation are not seriously disputed. The salient facts, evidenced by the record, are as follows: The Harford was a wooden coast-wise barge, 267 feet long by 46 feet wide without motive power of her own, but equipped with steering gear. Her crew consisted of a master and two ordinary seamen. On the early morning of April 22,1947, in stormy weather and rough seas, the Harford was cast adrift and damaged in collision with another barge while in the tow of the tug Barlow off the Delaware coast.

At the request of the Barlow the Coast Guard Station at Cape May, New Jersey, ordered the Mohawk to proceed to the Harford. The Mohawk reached the Harford on the early evening of April 22d. At about 6 a. m. on the morning of April 23d, the Mohawk received instructions from the Coast Guard base at Cape May to tow the Har-ford to the Harbor of Refuge. Following several hours delay due to the fact that the Harford had considerable difficulty in raising her port anchor, (her starboard anchor was unusable) the Mohawk got under way with the Harford in tow at 12:45 p. m.

At that time the Mohawk sent a message to the Coast Guard Search and Rescue Center at Cape May advising that the Har-ford was unable to anchor and requesting a tug to take over the tow five miles from Overfalls Lightship, off the entrance of Delaware Bay. At 2:30 p. m. the Mohawk was advised that the tug Barlow was unable to take the barge in tow outside and was directed to proceed to the Harbor of Refuge. The Mohawk reached Overfalls Lightship in the evening. For some time prior to the parting of the tug Barlow’s towing cable on April 22d the weather had been stormy with strong winds and rough seas.

By the evening of April 23d, when the Mohawk reached Overfalls Lightship, the wind had somewhat abated and the weather was clear with reasonably good visibility. The tide was at flood in Delaware Bay, setting north and northeast at a speed of about one and one-half to two knots. In the vicinity of Overfalls Lightship the Mohawk shortened her towing hawser from 100 to 30 or 40 fathoms, and at about the same time the master of the Harford turned the wheel over to ordinary seaman Norman Hill while the master went below to work on the Harford’s pumps which had become clogged.

The Mohawk and her tow passed abeam of Overfalls Lightship at 8:24 p. m. The entrance to the Harbor of Refuge lies between Cape Henlopen on the south and the southerly tip of the Harbor of Refuge Breakwater on the north, a distance of about eight-tenths of a mile. The customary method of navigation for a vessel entering the harbor at flood tide with a tow is to hold close to Cape Hen-lopen leaving the obstruction buoys and sand bar close aboard on the port hand.

This method is followed because of the strong northerly set of the flood current toward the Breakwater; it is necessary to allow ample clearance of the Breakwater to avoid being set on it by the flood current. The Mohawk originally set a course midway between Cape Henlopen and the Breakwater, but some time after passing Overfalls Lightship those in charge of the Mohawk sighted a vessel at anchor inside the Harbor of Refuge in a position which, they believed, made it necessary to alter the course of the Mohawk so as to pass between the anchored vessel and the end of the Breakwater to the north.

The new course lay appreciably closer to the Breakwater than had at first been planned. At 8:28 p. m. the Mohawk reduced her engine speed from 65 r. p. m. to 55 r. p. m., and at 8:41 p. m. further reduced it to 45 r. p. m. This action was taken apparently in the belief that both of the Harford’s anchors were unusable and that therefore it would be necessary to circle around the anchored vessel inside the Harbor of Refuge until the Barlow or some other tug could come alongside and take the Harford in tow. The slow speed was thought necessary to make the circling maneuver safe.

It soon became apparent, however, that the Mohawk was being carried off her course to the north, that is to the right. Several substantial changes of course to port were made, with little or no effect, and at approximately 8:57 p. m. several increases in speed were made in quick succession. The Harford, meanwhile, as the Mohawk came close to the entrance to the harbor, began to steer a course to the right, thus accentuating the effect of the current and wind upon the Mohawk. During the last fifty yards from the Breakwater the Har-ford went off on a more or less northerly course.

The Mohawk lost steerageway, and at 9:00 p. m. her starboard side struck the end of the Breakwater. The commanding officer of the Mohawk ordered the towing hawser cut, and the Mohawk moved away from the Breakwater, apparently undamaged. The Har-ford, cast adrift while still outside the Harbor of Refuge Breakwater, swung starboard side to the Breakwater and for forty-five minutes pounded against the large irregular stones of which the Breakwater was constructed.

Another tug, the Jack, whose services had been secured that afternoon by Dougherty, without the knowledge of the Mohawk, then removed the Harford from the Breakwater and towed her northerly through Delaware Bay and River until the Harford’s leakage became so bad as to cause her to be in danger of sinking. Thereupon the Jack beached the Harford on the sandy bottom at Joe Flogger shoal from which she was subsequently floated and towed to Hampton Roads. This beaching and subsequent towage did not increase the damage to the Harford.

On the facts as stated the District Court made the fact finding that (1) the Mohawk had been negligent in navigating too close to the Breakwater; (2) the Harford had been steered in a negligent manner in that it had failed to follow the Mohawk; and (3) the negligence of both vessels had been proximate causes of the accident. With respect to the last-mentioned finding, it is well-settled that the ultimate finding as to liability-creating fault is but a legal inference from other facts.

It must immediately be noted that we accept, for reasons subsequently stated, the District Court’s findings of fact that both the Mohawk and Harford were negligent. We further subscribe to the District Court’s determination that the negligence of the Harford made her liable.

We do not agree that the negligence of the Mohawk created liability as to her for three separate reasons: (1) the negligence of the Mohawk was a “condition” and not a “cause” with respect to the happening of the accident; (2) the sole cause of the accident was the negligent failure of the Harford to follow the Mohawk; and (3) the District Court erred in ruling as a matter of law that “Under the Public Vessels Act the United States is liable for damage due to the negligence of those in charge of the Mohawk.” The District Court in its opinion presented in sharp focus the considerations, factual and legal, which premised its determination of liability on the part of both the Mohawk and the Harford, stating 97 F.Supp. at page 295: “I am clearly of the opinion that the Mohawk was guilty of negligence in failing to use due care in the selection of a course that was sure to be a safe one.

I am equally of the opinion that even the course adopted by the Mohawk would have been a successful one had the Har-ford followed in a proper manner.” (Emphasis supplied.) Assuming, for the sake of argument, that the District Court was correct in its conclusion of law that the United States is liable for simple negligence of the Coast Guard in the conduct of rescue operations at sea, we are of the opinion that it erred in holding the Mohawk liable in view of its express finding “that even the course adopted by the Mohawk would have been a successful one had the Harford followed in a proper manner.” It is the general long-established rule in collision cases that: “Where fault on the part of one vessel is established by uncontradict-ed 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.” The City of New York (Alexandre v.

Machan), 1893, 147 U.S. 72, 85, 13 S.Ct. 211, 216, 37 L.Ed. 84; The Ludvig Holberg, 1895, 157 U.S. 60, 72, 15 S.Ct. 477, 39 L.Ed. 620. In applying the rule stated, it has frequently been held that even a prior act of negligence does not “contribute” if it merely creates a “condition” which makes it possible for the subsequent negligence of the other vessel to bring about a collision. Under the cases the earlier fault is held to be merely a “condition” and not a “cause” of the collision.

These principles are well-established in collision cases: Ordinarily the first wrongdoer is not responsible for damages which result from his own negligence and that of another party unless the latter’s negligence was such as the first wrongdoer might reasonably have expected to occur * * * this rule is commonly expressed in terms of causation — the second wrongdoer’s negligence being called the proximate cause;

an act, though negligent, is not the proximate cause of an injury, when but for the intervening negligence of another the injury would not have been inflicted; the fault of the vessel sought to be charged must be a “cause” and not a “condition” of the collision and the position of a vessel in navigation though “unlawful” and a “maritime fault” does not in and of itself make her liable and in order to be held, her position must be the “cause” of the accident and not merely a “condition” with respect to it.

In accordance with the principles stated the Courts have time and again absolved from liability vessels which had transgressed statutes requiring their navigating in mid-channel or mid-stream or had executed “unjustifiable” maneuvers where the facts demonstrated that their conduct was merely a “condition” and not a “cause” of an ensuing collision.

Thus in the early case of The Britannia, D.C.N.Y.1888, 34 F. 546 where a vessel violated a state statute requiring it “ * * * be navigated as near as possible in the center of the river” the Court held 34 F. at page 557: “ * * * the mere transgression of such a statute will not make the vessel liable where the disobedience of it did not contribute to the collision.

And inasmuch as only the proximate causes of collision are deemed material, the mere fact that a vessel is on the wrong side of the river does not make her liable, if there was ample time and space for the vessels to avoid each other by the use of ordinary care.

In such cases the cause of the collision is deemed, not the simple presence of the vessel in one part of the river rather than in another part, but the bad navigation of the vessel, that, having ample time and space, might easily have avoided collision, but did not do so.” (Emphasis supplied.) In The Morristown, 2 Cir., 1922, 278 F. 714, a violation by both tugs of the state statute requiring vessels to navigate near the center of the river was held by Judge Hough not a contributing cause to a collision which resulted from a violation by one of the tugs of the steering rules.

In The Socony No. 19, 2 Cir., 1928, 29 F.2d 20, the situation was as follows; The Socony was a tug in charge of a tow; The Marine was also a tug in charge of a tow. The Marine executed a maneuver which was “unjustifiable” but nevertheless the Court held the latter to be a “condition” not a “cause” of the collision between The Socony tow and The Marine tow. The Socony was held to be liable because she was at fault in failing to navigate properly under the circumstances. In The Syosset, 2 Cir., 1934, 71 F.2d 666, a tug violated a New York statute by navigating down the wrong side of the East River.

The Court held (Judge Augustus N. Hand) 71 F.2d at page 668; “It is true that the Syosset was at all times considerably to the east of the center of the stream, and therefore violated the East River statute, * * * The Sagamore was fully aware of her position in time to navigate with reference to her and her float so as to pass them safely. * * * She had no excuse for getting out of her course * * *. She could have kept out of danger by not crowding the lighter and by navigating prudently * * *.

On the record before us we hold that the violation by the Syosset of the East River statute was a ‘condition’ and not a contributing cause of the collision.” In The Cornelius Vanderbilt, 2 Cir., 1941, 120 F.2d 766, 768, the tug Watup-pa was towing the barge Essex, and the tug Hempstead was towing the Cornelius Vanderbilt. The Watuppa was on the wrong side of a narrow channel.

Nevertheless it was held not liable on the ground that the Hempstead was solely at fault in unnecessarily crowding the Wat-uppa and Essex and it “could have avoided the collision by simply holding back in season.” The Court (Judge Augustus N.

Hand) stated 120 F.2d at page 768: “Though each vessel neglected to blow passing signals, as required by the rules, and the Watuppa was on the wrong side of the channel, the outstanding fact is that the Hemp-stead had the last clear chance to prevent a collision by the exercise of ordinary care”. (Emphasis supplied.) Applying the principles above stated to the District Court’s determination “that even the course adopted by the Mohawk would have been a successful one had the Harford followed in a proper manner” [97 F.Supp. 295], we are of the opinion that the Mohawk’s navigation close to the Breakwater was merely a “condition” and that the Harford’s failure to follow the Mohawk was the “cause” of her damage and that, accordingly, the District Court erred in failing to dismiss the libel.

Our conclusion in this respect is buttressed by the fact that it has long been settled that it is the absolute duty of a vessel to follow the course of her tug and since the Harford was derelict in this respect according to the District Court’s factual determination, she is without recourse to the Mohawk. In The Maria Martin, 1871, 79 U.S. 31, 20 L.Ed. 251 a bark in tow failed to follow her tug which had ported her helm, in accordance with prescribed rules of navigation, to avoid a collision with a steamer. The tug was absolved of liability and the bark was found jointly at fault with the steamer.

Said the Court 79 U.S. at page 47: “Seasonable attention * * * would certainly have prevented a collision if the tow had followed the movement of the tug, as she was bound to do, without unnecessary delay.” (Emphasis supplied.) In The Columbia, 9 Cir., 1901, 109 F. 660, the ship Columbia and the bark Ravenscourt were being towed to sea by the tug Tyee, the former on the port side of the tug and the latter on the starboard side. During the course of the tow the Tyee observed a sailing vessel off her port bow and changed her course to avoid a collision. The Columbia failed to follow.

Her tow line parted and she came into collision with the Ravenscourt. The Court held that the Tyee was without fault; that the Columbia was solely at fault because she had not followed the course of her tug. In doing so the Court stated 109 F. at page 666: “It was the duty of the ship and bark to follow the course of the tug.

The duty of proper steering devolved upon the respective vessels, and the tug cannot be held responsible for any fault of the vessels, or either of them, in that regard.” It is clear from the above that the District Court erred as a matter of law in failing to dismiss the libel on the ground that the Harford had failed to discharge her duty to follow the Mohawk. In our opinion the District Court further erred in its disposition on still another score — the challenging issue as to whether the United States is liable for fault of the Coast Guard in the conduct of a rescue operation at sea.

In resolving this issue, unable to find any authority or precedent either under settled admiralty principles or the specific provisions of the Public Vessels Act, 46 U.S.C.A. § 781 et seq., the District Court resorted to the general common law rule of torts.

It specifically ruled that the United States, having undertaken to maintain the Coast Guard for the purpose, in part, “to render assistance to vessels in distress” when performing the latter function acts as a “volunteer” and under the “Good Samaritan” rule of the common law rule of torts, is liable “for an injury negligently inflicted on the person or property of another,” and that such negligence need only be “simple” or “ordinary” in its nature.

Collaterally, the District Court further laid down the principle that a salving vessel is liable for breach of the duty of reasonable care (simple negligence) even though it acts in good faith and there is absent any element of “gross negligence”, “culpable negligence” or “wilful misconduct.” As previously stated, we have accepted the District Court’s factual finding that the Mohawk was guilty of lack of ordinary care in navigating too close to the Breakwater, as we have accepted its factual finding that the Harford was guilty of negligence in failing to follow the Mohawk.

We have done so in consonance with the settled rule that while an appeal in admiralty partakes of a trial de novo and serves to vacate the decree of the district court, the findings of the latter when supported by competent evidence, should not be set aside on appeal except upon a showing that they are clearly erroneous. With respect to the finding as to the Mohawk’s negligence, the evidence does not disclose it to be “clearly erroneous”; with respect to the finding as to the Harford's negligence, the evidence demonstrates it to be fully warranted.

We cannot, however, subscribe to the District Court’s ruling of law that the United States is liable for fault of the Coast Guard in conducting a rescue operation at sea. We are of the opinion that public policy dictates that the United States should not be liable for fault of the Coast Guard in the field of rescue operations. There are two arrows in the quiver of this public policy.

The first may be directed to the inevitable consequence on the morale and effectiveness of the Coast Guard if the conduct of its officers and personnel in the field of rescue operations under the indescribable strains, hazards and crises which attend them, is to be scrutinized, weighed in delicate balance and adjudicated by Monday-morning judicial quarterbacks functioning in an atmosphere of serenity and deliberation far from the madding crowd of tensions, immediacy and compulsions which confront the doers and not the reviewers.

In its intramural aspects the Coast Guard functions, as do the other branches of the armed services, on a system of merits and demerits, promotions and demotions based on efficiency or lack of it, in their conduct and operations. A judicial determination that officers or men of the Coast Guard have been negligent in rescue operations would inevitably have a concomitant effect upon their service records.

Aware of that fact, the instinct of self-preservation would inevitably function even under the pressures of life or death crises which so often arise in rescue operations when members of the Coast Guard are called upon to make decisions.

If men are to be brought to an abrupt halt in the midst of crisis — to think first that if they err in their performance they may expose their Government to financial loss and themselves to disciplinary measures or loss of existing status, and then to pause and deliberate and weigh the chances of success or failure in alternate rescue procedures, the delay may often prove fatal to the distressed who urgently require their immediate aid.

Thus would the point of the second arrow in the quiver of public policy be blunted —the arrow which is directed to preserve in the public interest our merchant marine and that of other nations with which we trade. History establishes that tragic losses in men and ships all too frequently attend disasters at sea, and too often is it impossible to give successful succor despite the most gallant and efficient of efforts.

To expose the men in the Coast Guard to the double jeopardy of possible loss of their own lives, and loss of status in their chosen careers, because they failed, in coping with the intrinsic perils of navigation, to select the most desirable of available procedures, or their skill was not equal to the occasion, is unthinkable and against the public interest.

As counsel for the Government pointed out in its brief, the training motto of the Coast Guard has been: “In the Coast Guard you always have to go out, but you don’t have to come back”, and its personnel have adhered to the finest traditions of the sea in hastening to succor the distressed without regard to their own safety. Consideration must be given to another facet of this problem, viewed from the standpoint of the merchant marine itself, and the marine insurance companies.

A loss of a vessel, even though it is insured, means a loss of revenue to the shipowner until it is replaced, and it takes time to build ships. And as to the marine insurers, salving of stricken vessels means a reduction in their losses. Conversely, total losses mean higher insurance rates, which make for heavier operating costs to the shipowners, which are in turn passed on to those engaged in the export and import trade.

That these considerations have prevailed is evident from the fact that for some twenty-five years after the Public Vessels Act of 1925 imposed liability upon the United States for damages caused by the negligent operation of its public vessels, there was no attempt to recover damages arising out of any rescue operations of the Coast Guard. It was not until some three years ago that such suits were instituted. See Note 12. It is interesting to note that in United States v.

Taylor, 1903, 188 U.S. 283 at page 289, 23 S.Ct. 412, at page 414, 47 L.Ed. 477, the Supreme Court of the United States indicated serious doubt whether the United States “ * * * could, in any case, be regarded from the standpoint of a mere salvor * * On the score of liability of salvors in general, we must record our disagreement with the District Court’s ruling that a salvor is accountable for simple negligence. The overwhelming weight of opinion is that absent “gross negligence” or “wilful misconduct” a salvor is not liable.

It was early held “the evidence must be conclusive before (salvors) are found guilty” and the law accords the Presumption of innocence in favor of salvors. It is not to be inferred from our discussion of the standard of care imposed upon salvors that we have held that the United States (via the Coast Guard) is to, or can be, regarded from the standpoint of a mere salvor. Cf. United States v. Taylor, supra. For the reasons earlier stated the Interlocutory Decree of the District Court will be reversed and the causes remanded with directions to proceed in accordance with this opinion. .

The District Court’s opinion is reported ta D.C.Del.1951, 97 F.Supp. 287. . The Barlow departed for Lewes, Delaware to pick up a new hawser. . The E. A. Packer, 1891, 140 U.S. 360, 11 S.Ct. 794, 35 L.Ed. 453. . Cleary Bros. v. Port Reading R. Co. (The Wyomissing), 2 Cir., 1928, 29 F.2d 495, 498. . Long Island R. Co. v. Killien, 2 Cir., 1895, 67 F. 365, 367.

There a vessel which violated a state statute requiring it to navigate as nearly as possible in the center of the East River, was held not to be condemned for a collision “which, notwithstanding her presence there, would not have occurred if the other vessel had exercised ordinary care to avoid it.” (Emphasis supplied.) . The Perseverance, 2 Cir., 1933, 63 F.2d 788, 790. There Judge Learned Hand stated: “We accept the common form of statement that the fault must be a ‘cause,’ and not a ‘condition,’ of the collision.

By that as we said in The Socony No. 19, [2 Cir.,] 29 F.2d 20, we mean that although the fault was a cause, in the sense that it was a part of those circumstances necessary to the occurrence, the tug was amply advised in advance of the ship’s position, and could have avoided her by proper navigation. The situation is similar to that often comprised within the formula that a wrongdoer is solely liable if he has a ‘last clear chance’ of avoiding the damage.” . The Penoles, 2 Cir., 1924, 3 F.2d 761, 763.

There the Court held that though a vessel ignored a statute requiring her to travel in the middle of a stream and “hugged” the shore, that circumstance did not of itself make her liable. . The holding in The Britannia was cited with approval in The Clara, 2 Cir., 1893, 55 F. 1021, 1024. There, too, the vessel failed to comply with a state statute. The Court held that she was not liable; that the fault was with the vessel which collided with her and which had not been steered properly. In doing so the Court stated: “A finding that negligence, or

an act not amounting to a wanton wrong, is the proximate cause of an injury, is not warranted unless it appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” . In Construction Aggregates Co. v. Long Island R. Co. (The Bandmaster), 2 Cir., 1939, 105 F.2d 1009, all the vessels involved in the collision were in violation of the statute in being in the wrong part of the stream.

It was held that the navigation in the wrong part of the steam was “irrelevant.” To the same effect was the holding in The S. S. Deutschland, 2 Cir., 1937, 90 F.2d 454. In that case two steamers collided. The Deutschland was on the wrong side of the navigating channel in violation of a statute. Despite that fact she was held not liable — that her fault did not contribute — that the other vessel had navigated improperly. . To the same effect: The Sanday, 2 Cir., 1941, 122 F.2d 325; also The Lord O’Neill, 4 Cir., 1895, 66 F. 77. .

To the same effect see The Doris Eck-hoff, 2 Cir., 1892, 50 F. 134; The Virginia Ehrman, 1878, 97 U.S. 309, 24 L. Ed. 890. . While the issue as to tlie liability of the United States for fault of the Coast Guard in rescue operations has been presented in a number of cases (hereinafter listed) in the past few years, none of them reached a decision on the question, so that the District Court’s ruling in the instant case is the first expression with respect to it.

(1) Lacey v. United States, D.C.Mass. 1051, 08 F.Supp. 219 — failure to rescue, companion suits under Tort Claims Act and Public Vessels Act, 46 U.S.C.A. § 781 et seq., dismissed on motion.

(2) Page v. United States (The Duchess), D.C.E.D.La.1952, 105 F.Supp. 99 — alleged negligence in course of rescue; held — no proof of negligence; no proof of distinguishable injury, decree for the United States.

(3) Geertson v. United States (The Anna G — CG30311), (W.D.Pa., Adm. No. 174) — alleged negligence in the course of rescue — tried at Erie, April 1, 1952 and mot yet submitted.

(4) Johnson v. Sapio, United States impleaded (The Tradewinds III — C.G. 36393), (D.N.J. Civil No. 752-50), Coast Guard impleaded by fishing party boatman sued by passenger who broke leg in course of rescue. Impleader voluntarily dismissed on day of trial at Camden, November 14, 1951.

(5) Friesenborg v. The Peter Maersk and United States (The Irma-Pauline— Peter Maersk — OGC Marion), (E.D.Va., Adm. No. 7423) — suit by rescued vessel hit by the Maersk against both the Maersk and Coast Guard cutter which was towing the rescued vessel. Voluntarily dismissed as to Government on July 28, 1951.

(6) Charles W. Smith, Inc. v. United States (The Olivia Brown — Navesink), (S. D.N.Y., Adm. No. 165-387) — alleged negligence in course of rescue — suit at issue since October, 1950.

(7) CGC Yocona — Kallie P., Hansen v. United States, (D.C.Ore. No. 6634) — suit begun September, 1952. . Swenson v. Argonaut, 3 Cir., 1953, 204 F.2d 636; Read v. United States, 3 Cir., 1953, 201 F.2d 758. . It is immaterial that an opposite conclusion might well have been reached by the District Court; that it might have found (1) the Mohawk had used reasonable care; or (2) the Mohawk was guilty of error but not of fault. Cf. The Grace Girdler, 1869, 74 U.S. 196, 205, 19 L.Ed. 118.

There the Court held infallibility is not required in navigation and distinguished between “error” and “fault”, stating “In the eye of the law the former error) does not rise to the grade of the latter (fault), and is always venial.” . Witness the District Court’s statement: “I am clearly of the opinion that the Mohawk was guilty of negligence in failing to use due care in the selection of a course that was sure to be a, safe one." [97 F.Supp. 295.] (Emphasis supplied.) . Cf. The Island City, 1862, 66 U.S. 121, 180, 17 L.Ed. 70.

There the Supreme Court cited with approval the principle applicable in salvage cases that “Public policy encourages the hardy and industrious mariner to engage in these laborious and sometimes dangerous enterprises * * * ” and “ * * * the general interests of society require that the most powerful inducements should be held out to men to save life and property about to perish at sea. * * * ” In The S. C. Schenk, 6 Cir., 1907, 158 F. 54, at page 60, the Court (Judge Lurton, later Justice Lurton of the Supreme Court) stated: “Salvage service in the public interest should be encouraged.” . 46 U.S.C.A. §§ 781-90. .

The Coast Guard makes many thousands of rescues a year, many of which result in injury to persons or property saved, according to counsel for the United States. Annual reports of the Secretary of the Treasury furnished by the United States disclose in

summary the following statistics for the years 1948 to 1951, inclusive: . There the United States Navy undertook to salvage The Infanta Maria Teresa, a Spanish vessel which had been sunk by the Navy while attempting to run a blockade from the habor of Santiago in the Spanish American War. The sunken vessel was raised and after temporary repairs, while in tow of a United States repair ship and a wrecking tug, privately owned, again sunk during a severe storm.

The United States had entered into a contract with a private wrecking company to conduct the salvage operations but at the time the vessel sank an Officer of the Navy was in charge of the operation. The Court dismissed the libel, stating: “The government acted with due prudence in employing persons whose business it was to do such work, to raise and deliver the vessel at the Norfolk Navy yard.

If no attempt had been made, the vessel would finally have gone to pieces where she lay. “Salvors are not held responsible for a loss when attempting to salvage in good faith, and with reasonable judgment and skill (The Laura, 14 Wall. 336, [20 L. Ed. 813] * * *) and we know of no reason why the government should be held to a more rigorous accountability, even if it could, in any ease, be regarded from the standpoint of a mere sal-vor of the property of another.” (Emphasis supplied.) .

The Henry Steers, Jr., D.C.N.Y.1901, 110 F. 578, distinguished between want of ordinary care and culpable negligence and stated the rule to be that the salvor is only liable for gross negligence or recklessness. In The S. C.

Schenk, 6 Cir., 1907, 158 F. 54, at page 59, it was held: “* * * But does it follow because her attempt to assist in the salvation of the Bourke (the towed barge) was not attended with success that she (the Schenk) is to be condemned for her loss, even though her efforts loere not guided by the best slcill and her management not above criticism? * * * The Bourke’s loss is attributable to the Schenk only in the sense that her voluntary effort to help her toas not efficient. * * * There is no suggestion of bad faith or willful misconduct. * * * There was no gross neglect.

At most the negligence in this matter was slight and not enough to condemn the Schenk as having proximately caused the loss of the Bourke. * * * But when, as here, liability is sought to be fastened upon a salving vessel solely because the attempted service was ineffectual, no independent injury having been caused by the salvor, there is no responsibility if the service was rendered in good faith, without clear evidence of culpable negligence or willful misconduct.” (Emphasis supplied.) See also Dorring-ton v. City of Detroit, 6 Cir., 1915, 223 F. 232, 241; The Daniel Kern, D.C. Wash.1928, 27 F.2d 920, 921.

The English Courts have long subscribed to the same view. In The Baltic, 4 Law Rep. A. & E. 178

(1874) Sir Robert Philli-more stated: “The question I have had to take the opinion of the Elder Brethren on is this — whether the damage on all of these occasions, but especially on the second, when the material damage was done, can fairly be excused on the ground of accidental mishap, having regard to the size of the vessel and other circumstances, or whether it shews crassa negligentia, as we are in the habit of saying — gross want of proper navigation, which certainly would, in my judgment, render her liable for the damage that she thus caused, notwithstanding that she was acting as a salvor.” (Emphasis supplied.) .

The Charles Adolphe, Swabey’s Admiralty Reports, 153, 156 (1856). In The Henry Steers, Jr., Note 20 supra, it was stated [110 F. 583]: “ * * * condemnation for negligence should be made sparingly * * *. In short, the law. should not scrutinize too-narrowly (salving) services rendered * * */> . Kennedy, The Law of Civil Salvage, page 145. .

Section 1 of the Public Vessels Act provides that “A libel in personam in admiralty may be brought against the United States * * * for damages caused by a public vessel of the United States * * ®.”

Section 3 continues: “ * * * Such suits shall be subject to and proceed in accordance with the provisions of (the Suits in Admiralty, Merchant Vessels Act of March 9, 1920, c. 95, 41 Stat. 525, 46 U.S.C.A. §§ 743-52) * * * insofar as the same are not inconsistent herewith * *

Section 3 of the Merchant Vessels Act provides: “Such suits shall proceed and shall be heard and determined according to the principles of law and to the rules of practice obtaining in like cases between private parties.” This statute was held by the United States Supreme Court to impose upon the United States the same liability “ * * * as is imposed by the admiralty law on the private shipowner * * *.” Canadian Aviator, Limited v. United States, 1945, 324 U.S. 215, 228, 65 S.Ct. 639, 646, 89 L.Ed. 901.

However, there is no status or relationship in the realm of private vessels comparable with that which exists between a vessel in distress and a Coast Guard vessel which comes to her rescue, since it has long been the settled policy of the United States not to make salvage claims and thus there are no “like cases between private parties” to which the Courts may refer in consonance with

Section 3 of the Merchant Vessels Act. The District Court noted “No authority or precedent has been cited or found regarding the duty of a privately owned vessel giving gratuitous assistance to another.” [97 E.Supp. 292.]