183 F. 105 | 2d Cir. | 1910
The principal question is one of fact, which was decided by the District Judge in favor of the Gilchrist and against the Simla, after seeing and hearing all of the important witnesses. The rule is well settled that his decision will not be disturbed, unless clearly against the weight of evidence. In the present case we are of the opinion that the weight of testimony upholds his conclusions, and, after an examination of the record, we fail to see how he could have reached a different result. It was a gross fault for the Simla to attempt the navigation of the St. Clair river, crowded as it is with vessels, having but one man, the second mate, on deck. He was expected to act as master, helmsman, and lookout, and at the same time
We cannot find that anything in the Gilchrist’s navigation initiated the sheer. Having asked and obtained assent to her passing the Simla on the latter’s starboard hand, the Gilchrist, as the overtaking vessel, was required to keep out of her way, and it seems to us she did all that was required of her to that end. There was not such a difference between the respective speeds of the two vessels as to render the passing hazardous. The Gilchrist began the maneuver on a course sufficiently far away from the Simla as to be entirely safe. She steered for a fixed point on shore, and, as the evidence conclusively shows, kept her course. That being so, one of two possible causes must have operated to bring them closer together as they both progressed. Either the Simla's original course was not parallel with that of the Gilchrist, or the Simla changed her own course to starboard while the maneuver was being executed. The Gilchrist was keeping her course well over towards the American shore when the Simla sheered towards her. If the Gilchrist’s suction contributed to this result, it was the Simla's action which brought her (the Simla) within its influence.
The District Judge was satisfied that the Simla changed her course to starboard, which initiated the violent sheer towards the Smith; and we are not persuaded that his finding was erroneous.
The Smith was concededly free from fault, and we are unable to find any fault in the navigation of the Gilchrist which justifies a decree against her.
ft follows that the decree should he affirmed, with interest. As the Calvin Company, claimant of the Simla, is the only party appealing to this court, and as its appeal has not succeeded, it follows that the costs of the successful parties in this court must be taxed against the Calvin Company.
