187 F. 807 | 3rd Cir. | 1911
In the court below the Enterprise Contracting Company, owner of a dredgeboat, filed a libel against the towboat Leader, to recover damages for the latter’s alleged negligence in injuring and sinking such dredge. The proofs show that the
The'allegation of the libelant was that the Leader was at fault in attempting to go through the Felice channel under headway, instead of flanking sideways, and that in doing so she got out of the channel and ran head-on upon a rock near the north shore. The allegation of the towboat was that, while flanking through the channel, the spud on the north side of the dredge, near the head of the scow, dropped, through the negligence of the dredge’s crew, and that this caused the head of the tow -to swing around and strike as charged. The libelant admits the spud dropped, but says it fell after the Leader struck the rock, and its fall had nothing to do with the accident.
We have carefully examined all the proofs, and have reached the ■conclusion the libel should be sustained. To our mind the weight of the testimony is clearly with the libelant. Leaving out of question the proof of the respective crews of the Leader and the dredge, each of which contradicts the other, both as to the mode of navigation and as to the time the spud fell with reference to striking the rock, we are clear that there is overpowering proof from other sources in those particulars. The channel at Felice is tortuous, narrow, and hard to navigate. At the then stage of water there was no question but that it. would not have been good seamanship for the Leader, with her tow, to attempt to pass through it under steam headway and paralleling the north shore. In view of this, we are warranted in giving serious weight to libelant’s witness Cook. He was apparently wholly disinterested, was operating a ferry some 400 to 500 yards above Felice, and was familiar with the way boats passed that channel. He was crossing the river as the Leader went down, and his testimony is that “she was going down parallel with the north shore,” that at that stage of water “she should have gone with the rear end towards the south shore,” that navigating as she did “she would hit that narrow place, there,”'and. that from yrihere he was “it appeared to me the front end of this boat struck this bar.” Moreover, Corbett, the engineer of the Leader, says that at the time the tow struck the Leader was working .ahead on a slow bell, which supports libelant’s contention that she was not flanking through the channel.
But, over and above the possible uncertainty of human testimony, we have silent, but convincing, proof from the character of the injury itself. No explanation is vouchsafed by either witnesses, respondent, or counsel as to how such a tear in the dredge’s bottom could be caused by a sidewise swing of the tow. It began at the rake of the dredge at
The decree must therefore he reversed, and the case remanded, with directions to enter a decree in favor of the libelant, and assess such damages as it sustained.
