Maloney v. The Seneca

47 F. 87 | D.R.I. | 1891

Carpenter, J.,

(after stating the facts as above.) Various subsidiary questions have arisen on the evidence in this case, and have been carefully argued; but I think they have no weight, except to support one side or the other of the single issue which must be decisive of the question of liability. The sole defense of the owner of the yacht is that the schooner changed her course, and thereby caused the collision. On this issue, whether she did so change her course, he has the affirmative and the burden of proof. I think he falls far short of sustaining this burden. All the crew of the schooner who have any knowledge of the facts give their testimony to the effect that the course was not changed; and they are corroborated by the testimony of the master of the Collins, who does not appear to be interested in this controversy. On the other hand, there is substantially but one witness; for I am not inclined to give much weight to the loose and indefinite reports of conversations which are given in by the cook and, the man-servant.

It is true that the master of the schooner admits that at first he mistook the yacht, -with her long'row of electric cabin-lights, for a tug with two barges in tow; and it is ingeniously argued that, since barges under the influence of the strong breeze would be considerably to the leeward of the course of a tug, it is reasonable to suppose that the master'of the schooner, knowing this fact, and relying on the slow rate of speed at which the supposed tug must be proceeding, would naturally think it safer to come about and pass the tow to the windward. Doubtless this consideration might have some weight if the testimony as to what actually occurred on board the schooner were much more evenly balanced. But, on the other hand, it is to be considered that, if the master supposed the yacht to be a tug with barges, he would still be conscious that it was his duty to hold his course, and the duty of the master of the tug to so manage his vessel and his tow that no collision should happen. On the whole, therefore, I am of opinion that the fault rests wholly with the yacht, and that there must be a decree accordingly.