54 F.2d 626 | 2d Cir. | 1931
We find no reason to upset the findings of fact of the District Judge as to what happened on the night in question. While it seems indeed somewhat strange that the tide without the aid of any northwest wind should have swept the floats along the Brooklyn shore, nothing makes it impossible, and the issue was one on which the findings below should certainly prevail. Also as to the seamanship of the tug masters, the testimony being again conflicting, we are not disposed to intervene. The situation called for immediate action, and, if the tug masters did not choose the best course, it was at least the best as they supposed. They were men of experience, and their judgment then exercised is as likely to have been right as that of their f allows called at the trial, who spoke as experts and judged without the disturbing pressure of immediate danger. That the Marion Moran adopted a hazardous maneuver also appears to us true. There was no occasion for her to round the bows of the flotilla, drifting in the ebb, and apparently out of control. Had she waited till it had passed, she might safely have gone to her berth. Assuming with the judge that the collision happened on the flotilla’s way down stream, and that the floats were obviously near the shore, it was a hazard to moor the lighter so close to their path, and the tug became responsible for the resulting collision. Again, we are faced with a dispute of fact as to which we are not in as good position on the cold record as the judge who faced the witnesses.
Decree modified by exonerating the Depew.