215 F. 87 | 2d Cir. | 1914
The negligence alleged in the libel was that the tug “run the said barge No. 23 over what is known as the Tenth Street buoy at about 9 a. m. o’clock of the day aforesaid, resulting in damage to the bottom of said barge, causing her to leak.” The District Judge was in grave doubt upon the following questions of fact:
First.—Did the barge run over the Tenth Street buoy?
Second.—If so, was she damaged by so doing?
Admitting that it was a “very puzzling case” and that he could not understand how the injury happened even if the barge had gone over the buoy, he found for the libelant upon the theory that the barge
It Seems to, us that the burden is on the libelant to show some negligence o'n the part of the tug and that until this is done, the burden of proof does not shift. There is nothing in the testimony here to show that the tug was guilty of fault. It is all left to guesswork and speculation. ' The argument is that the barge was injured at some tittie, probably while being towed by the tug, ergo the tug is liable, fn other words the tug may be held liable for an injury which she did not cause or aid in causing. No one knows or pretends to .know how this injury was caused and until some proof is produced that the tug caused it, it seems to us she should not be held liable. The rule laid down by the District Court practically makes the tug an insurer.
Decree reversed with costs.