135 F. 747 | 2d Cir. | 1905
We find it very difficult to dispose of these appeals. Negligence is charged (1) In making up said tow improperly; (2) in starting out in the face of weather conditions apparently endangering the safety of the tow; (3) in keeping on when it was apparent that safety was endangered; (4) in not landing the canal boat as the master requested and prudence required. The District Judge found against the tug on every one of these charges. The evidence, however, is more than usually inconsequential and unpersuasive, and upon the question whether the libelant has sustained the burden of proof the case is so close that different tribunals might well reach different conclusions. As to one—perhaps two—of the charges the proof is so unsatisfactory that we should be inclined to reverse, but as to the others there is evidence to support the charges. The District Judge heard the witnesses, and observed how their testimony was given—an important advantage in this case, where seemingly some of them gave somewhat different accounts at different times. Upon the whole, we do not see how we can reverse on the main charge of fault. We are not satisfied that any of the other methods of making up the tow which have been suggested would have been any safer for the tow •as a whole. They would have made it less risky for the Hawes, but more risky for some other boat. But if the boats were such an incongruous assortment that they couldn’t be put together more satisfactorily than they were, it might fairly be held imprudent to take them out in weather which, though rough, would not be dangerous for a more homogeneous tow.
Upon the whole, in view of the fact that there is some evidence to support a finding of fault, and that the District Judge saw and heard all the witnesses, we have concluded to affirm, with interest and costs.
