18 F. 603 | S.D.N.Y. | 1883
The testimony in these cases is irreconcilable as to the identity of the vessel which collided with the libelants’ boat, the B. F.Wade, on March 11, 1881. On the part of the libelants several witnesses testify that the B. F. Wade was moored on the north side of pier 46, bows in, with her stern about 100 feet from the end of the
Some five or six witnesses for the claimant testify that the City of Chester, though she had come across the river that morning for' the purpose of towing the Juno from the slip below, and had passed near the end of pier 46, did not touch it, nor go at all inside of the slip between that and pier 47, or come in contact with any boat. The canal-boat was so far inside of the slip that it is difficult to see how the steam-tug, having no business in the slip, could have got in so far, without gross carelessness in handling, notwithstanding the strong north-west wind; and it is not possible that she could have got so far in the slip and become wedged in, as it were, between the two vessels at her bow and her stern, unable to extricate herself for so long a time as tire libelants’ witnesses testify, without the fact being perfectly known and remembered by the claimants’ witnesses, if the tug was, in fact, the City of Chester. Among the libelants’ witnesses, one had no interest in favor of the libelants, and two of the witnesses for the defense were without interest for the claimants. The examination of the witnesses on either side did not disclose any ground for doubting their credibility. Other vessels were proved to have come into the slip the same morning, and it was not until four or five hours afterwards that any substantial injury was discovered or apprehended from the drifting of the vessel, whatever vessel it was, against the stern of the Wade. These libels were filed about a month afterwards.
It would seem improbable that persons who were present at the time should mistake as to the vessel which came against the Wade. The fact that the contact came in the ordinary course of vessels drifting iñ a high wind, and not with any very violent blow, and that it did not lead to any apprehension of serious injury at the time, in connection with the fact that other tugs were going in and out, leaves ropm for the possibility that the question of what boat it was, was not considered until several hours afterwards, when the Wade was first found to be leaking; and it may have been then that the witness heard some one sing out, “It is the City of Chester.” The witness says “that was after she had left,” which gives some color to the possibility that the determination of which vessel it was that had rubbed or had pounded against the Wade did not specifically arise in the minds of the witnesses until the leak was discovered; and if the vessel was not supposed to be injured at the time, they might
The burden of proof is upon the libelants to make out their ease by a fair preponderance of evidence. The Albert Mason, 2 Fed. Rep. 821; 8 Fed. Rep. 768. The claimants’ witnesses, as I have said, are in no way discredited. There are no other material circumstances about the transaction in which they are shown by other evidence to be grossly inaccurate or untrustworthy, so that the court has no satisfactory ground for preferring the testimony of the libel-ants to that of the claimants, as in the case of The Florence P. Hall, 14 Fed. Rep. 408.
Without being able, therefore, to answer satisfactorily the questions which arise upon the testimony on either side, I am compelled to find that there is no such preponderance of proof as entitles the libelant to recover.
The libel must therefore be dismissed, with costs.