The Perseverance, Nos. 254, 255

Nos. 254, 255 | 2d Cir. | Mar 26, 1926

HOUGH, Circuit Judge

(after stating tbe facts ás above). Although tbe evidence as to weather in the very early morning of June 4th is neither full nor altogether harmonious, we are satisfied that Perseverance saw Dutchess and her tow soon enough and long enough to keep clear, which was a-duty incumbent on tbe tug, whether tbe canal boat was moving or moored. We therefore agree that Perseverance was at fault.

But we are satisfied that Dutchess also was negligent. She bad anchored in tbe channel, wherefore prudence and common sense taught that extreme care should be exercised in warning other vessels using that channel. It is admitted that a then recent rule of the supervising inspectors required vessels anchored as was the Dutchess to show a black ball by day, indicating that she was anchored. Whether this ball was in fact displayed is the contested point in this ease.

The lower court held that it was, and the master and mate of Dutchess so swore. Indeed, the mate swore once that he put it up at daybreak, and- at another time that he raised the ball when he saw the Perseverance approaching, which was some hours after daybreak. Again, the mate is clear that he went to the locker and got the ball out for service, while the master is equally clear that he had gotten the ball out and had it ready. at 1 a. m. The evidence from the Perseverance is direct that there was no ball displayed. What in our opinion turns the scale is the undoubted fact that the master did not mention the display of any ball in his report to the local inspectors, nor in his testimony before them did he claim to have displayed one, though the inspectors called his attention to the rule as so recent that he had perhaps overlooked it. In short, we wholly disbelieve the evidence of master and mate on this point, and are of opinion that, had a ball been displayed, the master of Perseverance, who saw Dutchess a mile off, would have known of her immobility in time to go clear.

Decrees reversed, with costs to appellant, and causes remanded, with directions to enter new decrees holding Perseverance and Dutchess at fault. Costs of lower court to be- adjusted by that court.