95 F. 184 | 2d Cir. | 1899
Several of the witnesses, including some of the more important ones, gave their testimony in the presence .of the district judge, and in such cases this court, for reasons which have been frequently given, rarely disturbs the findings of fact. This case, however, presents exceptional circumstances. It seems quite apparent from the opinion that in finding (hat the tugs did not use the reasonable caution required of them the court gave much weight to the fact that storm signals had been displayed at the barge office in this city, and was largely influenced by the circumstance that one of the tugs was not sem. ahead as a scout. The court says: “In approaching exposed situations with boats of this character, not able to withstand heavy seas, it has often been shown before me that tugs are accustomed to go out ahead, and make examination, before taking tows out int.o an exposed situation. Bee The Bordentown, 40 Fed. 682.” Reference to The Bordentown shows that the navigation then under consideration was through the Bay of New York. There is no evidence before us, however, of any such practice of sending scouts in advance prevailing on the Hudson river, where the conditions of navigation are very different. Not a witness produced by the libelants makes any such suggestion; on the contrary, the competent navigators called by libelants unite with those called by claimant in testifying that in navigating the Hudson river with tows they continue on and come through unless the weather is something extraordinary,, in which case they seek the nearest harbor. This particular storm was the most violent, for that season of the year, within the memory of any of the witnesses, several of whom had been navigating there for 20 years and upwards;
The cases at bar depend upon the question whether or not the master of the Pocahontas (deceased before trial), who had charge of the navigation of the ílo tilla, a man of large experience in Hudson river navigation, and bearing the reputation of a careful and prudent navigator, committed an act of negligence either in proceeding on below Stony Point: instead of making a harbor above Verplanek’s Point, or in not making a harbor after he had entered Harerstraw Bay, and when he found the wind so high and sea so rough as to imperil the safety of the tow. As was stated in Sewall v. La Champagne, 8 C. C. A. 624, 60 Fed. 299, this court is reluctant to substitute its judgment upon appearances it has not seen for that of experienced and competent navigators. Several propositions hearing upon the question at issue are abundantly settled by the evidence. The flotilla passed Stony Point no later than 1 a. m. according to the overwhelming weight of evidence. The district judge so finds, and the libelants so contend. Probably the time was somewhat earlier, but for the purposes of the argument it may be taken as 1 a. m. The concurrent testimony of all the competent navigators called on both sides is that, after the flotilla had once entered the rough water which it found in Harerstraw Bay, it could not turn around, and retrace its course to a harbor above Stony Point or Yerplanck’s Point. To undertake to do so would be to throw the tows into the trough of the sea, and imite inevitable disaster. Bo, too, the preponderance of the testimony given by the competent navigators called by both sides sustains the proposition that the magnitude of a, storm prevailing on Harerstraw Bay cannot always be determined by a navigator while he is coming south out of the Highlands, nor until he has got around Verplanck’s Point, and by the upper end of the bay itself; in other words until he is actually in the rough water. Moreover, the same witnesses practically ail agree Unit from Stony Point down to the Tappan Zee (here is no harbor in a southeast gab; unless Rockland Lake landing can be held to be one. It is apparent, then, that the first disputed question to be settled by the court is as to the condition of the weather during the time the flotilla moved from Cauldwell's, under the shoulder of the Dunder-berg, at the gateway of the Highlands, down to Blouy Point, where it entered the broader waters of Haverstraw Bay. As is usual in all such cases, then; is a violent conflict of evidence between the interested witnesses, die officers and crew of the tugs on one side and the owners and occupants of the canal boats on the other. The testimony of some of the eight interested witnesses called by the libelants, however, is entitled to little weight. Collins, on the Taylor, turned in to bed about 8 or 9 p. m., and did not turn out until after 3 a. m., when, as lie says, they were near Rockland. Peter Weber, on the P. W. Webber, went to bed about 9:30 p. m., when they were going by Cornwall, at the upper gateway of the Highlands, and got up, as lie says, at 4 a. m., “just breaking day.” John Weber, on the Webber Bros., went to bed about 9 p. m., and
The only remaining question is whether he should have put into Rockland Lake landing after the storm broke, assuming that it