299 F. 586 | 2d Cir. | 1924
(1) The seaworthiness of the Perry Setzer at the inception of her voyage is sufficiently evidenced by the testimony regarding the repairs bestowed upon her shortly before sailing, and by the inspections made and rating given immediately after repairs completed.
(2) The deckload was properly stowed and dunnaged, a finding well supported by the positive evidence of practical seamen and by the inferences legitimately drawn from the approval of said cargo as stowed for purposes of insurance. • We agree with the particular finding of Judge Hand as to what witnesses are especially to be relied upon on this subject.
(3) There was a cyclonic storm, which created a peril of the sea so severe that the jettison of deck cargo was a proper sacrifice for the safety of all. Here we agree with the court below in regarding as very
(4) Finally, we agree with the trial court in rejecting as unworthy of credence the evidence of certain of the crew, who, after signing and swearing to a protest, wholly supporting claimant’s story of disaster, and so signing after the United States consul had read the document to them, swore later to a tale of moderate weather. Unless the story of these seamen be believed, there is no evidence justifying.the decree prayed for by appellants.
We express no opinion on several other points argued, but, finding that in point of fact the losses complained of were solely due to peril of the sea, affirm the decree, with costs.
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