The Portchester

18 F.2d 75 | 2d Cir. | 1927

HAND, Circuit Judge

(after stating the facts as above). Before considering the evidence upon the steamer’s fault, we pause to say that the tug’s liability is in any case established. While it may be true that one of the hawser’s three strands was not quite cut through, it is clear from Bagger’s uncontradicted testimony that so little was left as to give it only two-thirds of its strength. In the absence of any explanation by the tug, in Whose custody the hawser remained, as to when and how this cut was made,, we must assume that it existed when the tow was made up. Nor are we willing to speculate upon its visibility by a proper inspection.

The tug’s mate and the bargee swore, it is true, that it was “all right” and a “good-looking line”; but that is far from enough to exonerate the Portchester. While a tug is not, of course, an insurer of its hawsers (The Sunnyside, 251 F. 271 [C. C. A. 2]), if they are in fact unsuitable for their purpose, she is prima facie at fault (The Washington Irving, 250 F. 797 [C. C. A. 2]), and she is bound to show that the defect could not have been discovered by a reasonable inspection. It appears to us too plain for argument that, if the cut had existed at the time, it should have been so discovered. We think, therefore, that the prima facie case was not met.

The ease against the Priscilla depends upon whether it was in fact her swells which parted the hawser, since it is conceded that, if so, her speed was too great. That ease depends on the testimony of the master, the mate, and the cook of the tug, which would, we agree, under ordinary circumstances be sufficient. Yet it must be remembered that a steamer is at a great disadvantage on the issue. She passes many tows daily on every trip in the crowded waters of this harbor, usually without, incident. Unless she chances to see the damage e'aused, nothing draws her attention to any exception from her daily routine. She can scarcely dispute what happens after she has passed, and the absence of any contradiction from her is therefore to be expected. All that she can usually do is to say, as here, that she was aware of no unusual incident.

It is significant in our opinion that the Hayward’s bargee says nothing about the steamer in his account of the incident. All he noticed was °a sudden sheer, very common in these waters, and the immediate parting of the hawser. It is true that at the time he was in his cabin cooking breakfast, but there was a forward window through which he was looking, and he neither saw any steamer nor felt the barge jump to her swells. It appears to us scarcely credible that, if swells had immediately preceded the parting, he would have failed to connect the two, or have noticed nothing but a sheer. His testimony, being in this regard impartial, weighs more than that of the tug’s crew, for obvious reasons.

However, we are not prepared to say, if the proof rested there, that we should have so decided a conviction as to overrule the decision of the District Judge, who saw the witnesses. The subsequent conduct of the tug and her owners seems to us to turn the scale. We hold it self-evident that, had the steamer in fact done the damage, the tug’s crew would have at once become vocal on that score. They knew nothing of any defect in the hawser, and they had lost the barge. Prima facie they were chargeable; in fact, they were not. The steamer alone was at fault. We think it moderate to say that, given such a situation, it is extremely improbable that the master should not have so reported the event to his owners, and we think it scarcely less likely that no claim should have been made within six months after the loss occurred.

The máster at first swore that he made a written report to his owner that a steamer had caused the trouble; but this was untrue, and his recollection was plainly of no value that he had even spoken of it to them. There is not an iota of evidence from the owners that he ever so reported to them, and we can only conclude that he did not. This is strongly corroborated by the fact that the tug gave no notice to the steamer of the survey of the barge, at which she attended. A most significant admission is that at the time she knew nothing of the steamer. Finally, it was only at the end of nearly six months, during two of which the suit was actually pending, that the steamer finally learned that she was charged.

In the face of all this, coupled with equivocal testimony of the bargee, to put,it most favorably, we cannot believe the story of the crew. The strong temptation and the slight chance of detection combine too persuasively' with the subsequent silence to satisfy us that the fact was as they say. Some contemporaneous declaration from the master, implicating the steamer, was in our judgment almost a certainty. None appears, and we know too well by experience that in such eases the bare word of watermen is not a strong reed on'which to lean.

Decree reversed, and tüg held alone at fault.