*1 á69 following: ordinarily be must “There THE AAKRE. verities, present and five wit: concur et al. al. et WATERMAN THE AAKRE fact, newly (a) The must be in evidence No. 344. trial; discovered, i. since the discovered Appeals, Circuit. Second Circuit Court (b) alleged facts be from which must July part 1941. diligence court infer movant; on, (c) the must Writ of Certiorari Denied Dec. evidence relied 1941. impeaching; merely cumulative be -, UEd. —. See-U.S. 62 S.Ct. (d) it in- be material must issues volved; such, (e) must and be and nature, trial, such on a new newly probably discovered evidence would produce acquittal. 12 Cyc. cases cited.” Judge Parker, Circuit, of the Fourth re- situation, ferring to a similar in Isgrig v. States, 131, 134, United 109 F.2d as to the duty court, says: case “The will remanded, however, only showing if appellate made to court that the lower justified court would be granting
new trial. States, Cf. Horne v. United 51 F.2d 67.” Murrey Considering affidavit of alone, the counter and without reference Government, presented affidavits in view the above authorities we are would not opinion that the lower court on Mur- justified granting a new trial testimony rey’s should it be of nature by his affidavit. His statement disclosed credibility. He doubtful prisoner appellant at Leaven- fellow again at Alcatraz did worth appellant until his information to disclose too The statement has March 1940. appearance of a last effort much appellant himself scheme evolved escape appellant may punish- in order that crime, certainly not and is for his ment which, that character of trial, placed a new in evidence acquittal. probably produce an See Good- States, Cir., 97 F.2d man v. United case, of this The unusual circumstances gravity charged crime as well imposed, punishment have com- and the scrutiny record manded a careful study points legal in- close
volved, both motion to remand as to proper. con- appeal From such appellant sideration, conclude the trial, impartial without a fair committed, and there prejudicial error sustaining the sound reason for either the cause. reversing motion remand remand is motion to Accordingly,
denied, is affirmed. and the case
FRANK, Judge, Circuit dissenting. Roger Englar, D. of New City York Houston, (Bigham, Englar, & W. Jones J. Nunnally, Jr., Prem, and F. Herbert all of City, New York brief), for libel- lants-claimants-appellants. Griffin, W. City New York John Griffin, (Haight, Deming Gardner, & Poor, McKown, Wharton Jr., James City, of New York brief), on the for Rederi Henneseid. A/S Galey, City L. (Burl- New York John Veeder, ingham, Hupper Clark & and Bur- White, City, ton H. all New York Line, brief), Lamport & Holt Ltd. City proceeded on this When New York she had Sprague, George C. Archibald, es- through the water—an about miles Sprague H. (Crawford and C. & leak brief), ground timated 30 miles over City, all of New York —a developed in a “tele- from a latent defect Co. Continental Grain *3 engines stopped scope pipe,” and the FRANK, SWAN, CLARK, and Before repairs. permit 11:45 P. to at court M. Judges. Circuit found, back by tracing her course that her drift point stranding, from the of CLARK, Judge. Circuit M., 2:50 A. between 11:45 P. andM. of strand- out proceeding arose started, was about engines again ves- Aakre, Norwegian motor ing of west, placing her four miles almost due net, 2,336 4,138 tons and gross sel of tons southerly than where a new course more Island Manan Cheney Grand on in Island near pass necessary old would be Bay Fundy morning on of Instead, Proprietor she east of Old Shoal. cargo of of the Much 1937. October A. From 2:50 steered further to the west. jettisoned, and potatoes on board was then true, M., 221° M. until she ran 4:00 A. through remainder was lost most of the delay and islands be- toward mass of shoals rehandling. and M., Proprietor. At 4:00 A. she hind Old still west shifted her further course bills incor- cargo carried under true; M., ran 252° at 4:20 she 44 miles and A. Carriage porating Water the Canadian Cheney Island, aground on about Act, 1936, re- in all material Goods spects from Carriage St. with our own is identical John. by Act, 46 1300- Goods Sea U.S.C.A. §§ strange from 2:50 steered courses IV, 1, of the Schedule By Art. sub. M., A. 4:00 4:20 until 4:00 and from until Act, “Neither Canadian of Rules carrier nor the M., captain’s explained by the com- A. for loss ship shall be liable plete position. His misunderstanding of his resulting from un- damage or arising or reckoning engines were dead until by caused want seaworthiness unless stopped roughly at 11:45 P. M. was at least part diligence on the of the carrier due accurate, although probably did al- seaworthy, secure ship and to make the low for the effects of currents favorable manned, properly equipped ship speed ground. over At about 2, “Neither the supplied”; by sub. and and M., however, 1:45 the third officer saw A. responsible ship shall be carrier nor the to the east Prim what he believed resulting arising damage or or for loss from Light, actually Point which was invisible act, neglect default of (a) or time, from the at the mariner, master, pilot or servants of anywhere except and from well the east navigation or the man- the carrier in the midnight position. her dead-reckoned * * * perils, ship: (c) agement of the Surprised this, captain at called other danger, accidents sea or and bearing, officer a radio navigable waters.” took from A. latter St. 2:25 John stranding trial court found that M., true, found to erroneous- be 216.5° but by unseaworthiness, caused but was not ly transcribed on the chart as about 195° consequently navigation. an error in By ap- true from St. this error John. exonerating rendered decree and parent position of the vessel was shown liability, dismissing from and carriers position, to be far east of actual cargo owners’ libel. From this decree report the third officer’s mistaken hav- appeals. latter ing sighted Light Prim Point was con- sailed from St. 9:00 The Aakre John captain firmed. Hence the believed that M., 28, 1937, intending tra- October P. east, west, of original he was instead of Bay by way and leave of the verse set new 2:50 A. M. course Proprietor gap between Old Shoal accordingly. Ledge. The distance from St. Northwest bearing A second radio from St. miles, gap is about John John A. 3:41 M. showed the taken at vessel at gap about miles. The ves- width true; made, another error was 218.5° good from sel first St. made John bearing was transcribed which, continued, and this onto the true, 211° if about have 197° as about true from chart St. just east of Pro- carried her Old John. 21°, were of the amount Bay. Both errors safely prietor Shoal out variation,1 Weyerhaeuser been made local Timber 304 U.S. to 58 marking the chart reference Although L.Ed. 1533. rather than the first mate magnetic, originally inner was misled the er- true, chart, captain the second St. roneous outer rose. When er- noticed the immediately ror and midnight. crossed bearing was corrected before More- John a Yarmouth, over, navigation Nova bearing period after drift- correct Scotia, captain point departure, led to believe from a new completely and and his course to the east of detached from was still Ledge. period. Northwest before that dangerously near Even the course then this, he veered reckoned from Meaning avoid the erroneous chart had gone uncorrected, di- A. sharply at 4:00 M. it could never have westward *4 rectly Cheney negligible thrown the vessel more than onto Island. distance to its the west of reckoned ques- entirely appellants to It futile for the east-west in the actual difference simple mistakes apparently tion that such position buoy and indicated The made. navigation could have been Consequently, slight. unseaworthiness certainly bearings three stated radio respect chart, existed, to the had certainly taken, ship’s course was could not have contributed to the accident. explanation of other laid as described. No course, except complete useless- that charge of unseaworthi The imagined. compasses, ness be can deficiency alleged ness was directed at the this, any al- Appellants suggest do not compass in compass book of entries on compasses were explanation. ternative deviations.2 The vessel carried deviation reliable, shown to accurate (1) The records in different forms: three were, appellants court found compass card, kept bridge, showing case to out a serious have not made even compass the deviations at each interval of contrary. degrees, government by ten as found ad charges unseaworthiness two juster Sandefjord, Norway, on March Aakre appellants against which make 9, 1936; compass book, kept (2) the also an inaccurate chart of are that it used bridge, showing 103 deviation entries Bay, proper compass rec- and that lacked Sandefjord adjustment, and made since the ords. intervals; compass catalogued also under charges showing many more en gist logbooks, of these first tries, except catalogued chart in the using an old but not the Aakre was Fairway Buoy chronological outside order which showed which Appellants argue logbook miles south en St. Harbor to be taken. 2% John practically position time, tries are because not east of its at that useless accessible, practice easily good taking buoy point departure and that as a requires daily she steered regular a course observations and en somewhat west of book, compass what she tries in the at least of intended. showing observations much as de one as aboard, however, The vessel had gree’s last recorded difference from the ob another catalogue lights chart and a this, servation in the same sector. With buoys by might which the error have been expert all the it witnesses and the court corrected, captain and the personally agree; self seemed to evident that and it is aware of the error. Under such circum compass book lacked a record of some stances, necessary a failure to make observations it would had if possibly naviga routine correction was bad practice strictly had been observed. tion, certainly deficiency but was not a equipment. found, however, the vessel’s adequate United States Steel The court made, and, Foreign Products Co. v. American & Ins. observations had been from the 752; Cir., entries, 82 F.2d logbook cf. The in the W. W. the deviation Bruce, quadrant greater 94 F.2d de certiorari south-west had never been nied, Pacific-Atlantic Steamship degrees. Co. v. than three Of this maximum de- pole compass. “Variation” is the in de- difference netie and the needle. As grees parts magnetic between the direction of true of a will influence pole magnetic pole: susceptibility needle, com- must be ascer- paratively locality, every fixed for one but tained and recorded for course ship might is not same different localities. which the make. Deviation age repairs, “Deviation” is the in de- also be affected difference grees cargo. mag- vessel, between the direction of the compass “sufficient for safe data were navigator apprised viation the accepted trial entry compass September navigation”; and the court book fact, this plus showing three-degree devia- true captain W; also a true statement what tion 50° and if the navi- on a course S complete always gator proper make believed. failed to allowance facts accident, answer other are shown night of error could unless absolutely incredi- captain’s faith lack attributed to of information. make the par- ble. book Since the carried the occasion, necessary entry ticular for this thought captain explained deficiency fairly general in the even a 2:25 apparent change could not have material records currents, owing A. M. on which Furthermore, suffi- stranding. it is a been adrift hours. vessel had almost three charge, for- cient answer to mer, Actually, his south of drift a little ship’s possible error that no west, supposed little drift was while period drifting before east south —a in direction of difference afterwards, have affected her about Aakre infor- 90°. had aboard degrees’ her and that three difference mation the direction of currents not have course after 2:45 M. would A. Bay, captain did examine it. but the *5 captain’s her effects of the saved from the He Bay reputation the knew a misconception position. of his changeable His and uncertain currents. compass recognize the Since that we from 4:00 4:20 to A. M. conclusive- entries which book did not contain the ly demonstrates he had run that believed he good seamanship required, is nothing added since 2:50 A. M. 10 knots faster almost argument proof to the of a Nor- the speed, engine although than the current the wegian enjoining in regular entries statute knots, actually was not more than 2 and at compass materiality its book. The of opposite If he that time direction. disproved exactly in the same violation is attempt made at all his to reconcile fashion, just and as have stated. supposed positions, 2:50 and 4:00 A. he M. Bay thought currents entire- must however, Appellants’ argument, chief is direction; ly unpredictable force and deficiency compass a of rec- possibly knew them.3 nothing about (necessarily entailing ords a violation navigation, bad perhaps This Norwegian law) directly responsible quality no at all on the of the reflection catastrophic navigation ship’s equipment. least, Arguendo, they at Aakre. assume transcription careless of the St. already contrary, it has On bearings directly radio to blame. John compass was shown been stated But, contend, positions at accurate, compass to highly and bearings put the far those so ordinary to conform to book was shown her actual removed from and dead-reckoned respect requirements, least position accepted they could have been quadrants In quadrant. south-west other only by unquestioningly who lacked one radically Appellants deficient. reckoning, faith his dead and therefore length great recite taken from list compass in his data. discrepancies logbook of between Aakre’s positions and on puts directly dead-reckoned observed argument into issue previous voyages as inaccurate captain’s belief in evidence of state of mind —his discrepancies compass Most such accuracy navigation. and the suffi- reasonably ex compass data, than are to be greater as the no ciency of the as well tide, accuracy plained by incalculable effects of fact of one currents, To captain him- wind. some extent sufficiency the other. The steering or poor to might be attributable self testified Aakre’s greatest used, But observation. ever inaccurate he had best try 2 :25 and 2:50 A. on his out south-by-west it.” direction. [3] That to It chart determine explanation He said that true did not current for a their nature M. know slight is inconsistent assumption why “just drift south-by-west currents or he allowed assumed between borne with of a posed reckoned east current. no the belief which he matter, roneous attempt 2:25 A. therefore, assumption. midnight that he to But M. have had elicit stood drifted from his dead- position rationalization, several; on his trial on to south-by- quite sup- er-
474
Indeed,
along
Pennsylvania
discrepancies
largely
however The
shown are all
stated,
originally
history
rule was
ship’s
not transverse
the line
application
it,
to
extent not relevant
shows
has done
and to that
than
reading
proof
the com- more
shift the burden of
performance or
pass.
previ-
causality.
Appellants’
to two
That was all that was
reference
necessary
Pennsyl
stranded
decision of The
ous occasions on which the Aakre
itself,
case,
probative
vania case
effect without
to the Richelieu
su
can have little
74,
pra,
Martello,
64,
particular
the causes.
153
more
evidence of
U.S.
723,
637,
14
appears
affirmatively
that on at least one
S.Ct.
38 L.Ed.
v. San
Lie
Co.,
navigat-
291, 298,
&
the Aakre was
Francisco
P. S. S.
243
occasions
U.S.
these
waters,
270,
37 S.Ct.
in narrow
coastal
L.Ed. 726.
It seems
currents,
storm have been
through
disregarded altogether
snow
strong
White
Transportation
Boston,
Oak
Cape
a hurricane.
Such circumstances
Co. v.
Cod &
support
341,
no inference
New York
certainly
those would
Canal
258 U.S.
344,
338,
649,
of unseaworthiness.
L.Ed.
and was
assumed to have done no
shift
than
argument
Much
has been devoted to
Henry
the burden in
DuBois Sons Co. v.
125,
Pennsylvania, 19
rule in The
Wall.
Rederi,
Cir.,
Ivarans
116 F.2d
A/S
declares
U.S.
L.Ed.
certiorari denied The Ariosa v.
Iva
upon
shown to
A/S
it to be incumbent
a vessel
Rederi,
rans
61 S.Ct.
85 L.Ed. -.4
statutory
violating
guilty
Still,
applied
if it
strongest
prove
that the viola
rule of
conceivable, requiring
defaulting
sense
to the en
tion could not have contributed
vessel to show that
inference
non
Appellants
that it
suing collision.
contend
sequitur
probable,
was not
most
applicable
strandings as well
only possible,
but even the
inference from
collisions,
Cir.,
Denali,
F.2d
evidence, appellants
facts
still could
rehearing 9
112 F.2d
certiorari
*6
succeed;
point
for every
issue
denied,
Steamship
v. Pacific
Co.
Alaska
case,
captain’s
including
faith in
65,
687,
Co., 311
61 S.Ct.
Coast
U.S.
Coal
compass,
was established
direct tes
,
evidence,
and, being
85 L.Ed.
a rule of
—
timony.
proceedings
foreign as well
under
Richelieu & On
under domestic
See
law.
questions
The
involved in this
Co.,
tario Nav.
Boston Marine Ins.
Co. v.
questions
proceeding
of fact which
423,
934,
408, 422,
10
34 L.
136 U.S.
opinion
court below resolved
Finally,
upon
cast
398.
burden
Ed.
which demonstrates the
and considera
care
something more than a
vessel is
to be
said
tion which
gave
he
to the matter. D.C.S.
relationship.
disproving a causal
burden of
D.N.Y.,
F.Supp.
this,
31
8-23. In view of
problems, in
far as
so
criticisms made of
that he was confused
The
case,
easily
navigator
ship,
settled.
If as
need affect this
because
always
Pennsylvania
prescribes anything
distinguish
rule
did not
between the
proof
mate,
more than a shift
the burden of
master and the second
seem rather
captious.
findings
regard
with
to the causal relation of de
His material
are clear
injury
penalty
recently emphasized
it is an absolute
and definite.
have
fault to
We
—if
admiralty findings
accepted
much
than a
should
for default —it is
rule that
requires
appeal
clearly
procedure.
It then
unless
erroneous.
United
evidence
Co.,
Gypsum
the establishment of facts not otherwise a States
Co. v. Conners Marine
689;
action,
Cir.,
Andrus,
clearly
part of
cause of
af 2
119 F.2d
v.
2
Johnson
Cir.,
287;
rights
parties.
F.2d
the substantive
119
McAllister Bros. v.
fects
Co., Cir.,
event,
applicable
Pennsylvania
2
it is not
cause
R.
ill m Having significant deviations record failure to was not violated. wegian statute book) Woolsey’s compass little or con- abilities he had no Judge for great respect and, compass chartings by remand in admiralty judge, I would fidence his as an therefore, upon findings primarily de- on that other relied him for definite case to facts that de- vices j navigating. in sub ect. quadrant had viation southwest nugatory to would do so Of degrees and greater been than three never that, even record clear from if it were deviation was entered that one such violated, could cargo statute were against book not militate would Pennsylvania recover, rule. under compass; general there lack of faith in the finding again, lack a definite But here master, merely reason no more those question is whether of fact. many entry one because of the correct possibility have “by any violations magnitude, trust deviations of similar to stranding. con- Cargo contributed” quadrant readings one more in this argues such could. tends other, than in several of those as to to compass deviations violations caused the important seemingly which there were un- inaccessible; inaccessibility led that that He recorded or unavailable deviations. chartings previous gross inaccuracies knew that there had been violations this, turn, in likeli- by compass; many (i. the statute failures to record confi- meant master had hood no significant compass book) deviations in that, voyage chartings; dence his nothing there to indicate that question, lack of confidence that, if significant knew all the deviations probably ignore the charted induced him to recorded, quadrant in this had been there bearing, as rely and to on radio course would have shown a deviation mate, mistakenly recorded greater single than was shown in that re- position strik- which showed an erroneous cording. position ingly variance ac- with by compass; cording charted finding course A that he faith lacked contention, that that reliance that error the compass justify on cargo’s stranding. second mate caused which, detail, is as follows: On question, the voyage in the course was laid highly plausible. That contention is by compass Subsequent- out on chart. There is doubt that contains the record ly, repair engines, in order that, prior voyages, much evidence on permitted about three to drift by compass charted had been strik- time, At that the second hours. mate inaccurate; ingly evidence was offered bearing. to obtain directed a radio explain facts, Dis- but the these did; inaccurately. As recorded it finding, way trict made no one result, shown, position according another, respect them.11 Had he many recording, his mistaken miles so, I strongly done should be inclined ship’s position. cap- actual from the I findings; follow his would now remand seemingly knew that the drift tain But, purpose. for that until and unless ship during preceding one- two and Court, remand, District on makes such west; although half hours finding, cargo the evidence behalf of on part to the ef- sufficiently some strong that we as- so should fact, he was aware fect that of that previous voyages, sume fact, charting is a oc- by compass courses charted fre- time, quently eloquently which more substantially curring at the erroneous. sub- Such *9 easily stantial belief the drift errors could be due the attests his had statute; the master the Even been important violation of for the had westward. deviations, navigator, yet, merely log only looking at if recorded amateur an originally by charted com- readily the as book—and thus not when course accessible the by knowing that drift west- compass— pass, was being the course was and charted ward, been at the he would have shocked well have make resulted a failure to according to the second adequate shown position when was corrections the course bearing— recording the radio justi- thus charted. facts mate’s And such would fy believed the course that, provided an the master inference the master because by compass was reliable. e., the charted statutory (i. originally knew the violations reading performance roason, of the com- For that I do not the to the believe justified majority saying pre- pass. is discrepancies vious were “not relevant” shocked, he have would no finding. Had he been thus reason which one bear- explanation conjecture the radio could mas- thinking called for have The result ing that, as recorded. would ter surprised was not instead of is course, immediately error would rechecking second mate’s been he stranding been have detected —and steered westward. evidence shows But the The violation of not would have occurred. that at 3:51 a obtained bearing cross was causal Yarmouth, the factual statute is thus in be which showed him to con-, chain; “possibly According have Ledge. and it could close to the Northwest stranding. fog. tributed” to the trial court: “He was Therefore, escape what he believed depends reasoning cogency this immediately chang- impending danger he of the master knew on whether or not the * * *” sharply ed his course at 4 a.m. evidence, though in drift. The westward that, ap- The fact finding himself in such decisive, to indicate that he did. tends parent danger, he did not time take position point P 1:45 as chart course, hardly prove recheck his would supposed sighting Prim fixed thought he utterly erratic. currents bearing.12 Light Point the first radio surprised, Even if he might well he Q computed under point position thought avoid would be better to 2:50, direction at when master’s apparent danger immediate and recheck engines computation started. Furthermore, later. there more reason southerly westerly shows a drift.13 surprise 2at o’clock than at computation inconsistent fatally That apparently his mistaken course had apparent southeasterly with the drift from corroborated least two additional midnight position charted 1:45 bearings. radio position.14 I find it inconceivable I said it was “inconceivable” that thought the currents master thought should have erratic, so currents were utterly ship were so erratic that the would suppose impossible. but I it was not southeasterly midnight drift between For, although replotting a.m., almost 1:45 a distance five times Woolsey using had no hesitation about drift, southwesterly far as it would di tables, current which a west south- showed rection, 1:45 a.m. 2:50 a.m. between direction, westerly testify the master did not believe that difficult to the line that “we drifted about three hours without midnight drawn and 1:45 a. between log anything prove kind of else to positions m. was a mere formal act way ship would drift”. (1) to connect master he never general testimony, statements, and similar seriously at, thought he was with one however, must, regarded qualified by erroneously thought correct; which he know that he did the direction that, not since did the line seri take current: ously, he was aroused fact that opposite current, Q. it went you so did And did have a chart which accuracy tide, check bother to showed the direction of the set of plotting Oh, yes, mate’s bearing. radio it? A. usual chart. Q. general You knew the set of the My colleagues suggest, showing Oh, yes. tide? A. thought entirely the master the currents unpredictable, surprised that he The Canadian Government’s Table Bay 2:50 Fundy, at his charted course from to 4:00. Currents inis “* * * that, however, record, says flatly: the court As below made change 12 Respondent interprets point mate, upon sighting P as be when the third correlating fix, Light, Prim Point Prim :30 Point found that Light apparently eastward, observation the first radio drifted perhaps bearing, possible surprised and this is so that he called the master on testimony. explanation Assuming If, argued, way deck. as is interpretation correct, not, telling why drift, does where the my surprise apparent affect conclusion was there east- *10 plotting drift, P-Q line to reflect the mas ward drift? unequivocally majority opinion showed that he knew suggests ter that southwesterly. may drift was the master the have had some “rational- fact, conflict, There is the additional ization” of this but he offered my impression that corroborates the offi- none. westward, drift knew the cers that on another attention centrating make his entire few miles of even a in by cargo, contention and distinct advanced char- in current’s] a marked difference [the weight, i. agree, without chiefly the we all is in is acter. difference water, e., violated statute was the time slack in of strength and chart. because of of an erroneous No doubt the use in direction”. much not so uncertain, the whole but current was the reasoning the suggested that line It is of unqualified there no record employed by to that the viola- cargo show general the did know that the master any by Norwegian statute could tion of the direction,15 would have he which is all the possibility strand- have contributed to fix, 1:45 a.m. suspicious of be the know it ing, highly involves because tenuous midnight position, shown thought if he That captain’s seems “state of mind”. Since, chart, how- accurate. that, of applying standard imply record, ever, there are contradictions Pennsylvania case, ex- must be there findings as I would remand consideration, link in the as a cluded knowledge that drift would master’s chain, opera- mental factual causal tions, normal westward, possibility (2) the i. causal chain such a factual position as midnight believed in his had regarded of as when one to be broken he would have plotted reckoning, dead normal, I links is a mental factor. apparent south- so astonished been agree. the so-called cannot Even under 1:45, easterly as drift between then and rule, proximate such doc- cause no bearing. the radio check on mind” trine. If usual of of “state non-n,eurotic break the horse Judge Woolsey does stated It true that chain,16 why that of a man? causal er- should stranding entirely due to Surely the no erroneously lay- courts shown such second mate in ror of functioning snobbishness about the bearing. supports He ing out radio ordinary Pennsyl- all, man. In The is, a mind of “finding” after —which itself, the Court took into account vania at' all ade- lump conclusion and not sum it factor asked: can such a when “How quately “finding” to another detailed — proved had foghorn if a been ship’s divides the move- this effect: He those on board the steamer would segments, into three different blown ments * * * season, not have heard stopped, the being engines her before first speed change their their being period and check drifting, * * jn *?» tjjjg sense) requires happened drifting what the third after assumption psychological over; the navi- that what oc- concludes vessel, horn, fog gator hearing a segment nothing of a first curred had person. as normal are will react There to do with occurred in whatsoever what support third, many because, says, cases in books to the second— npt mental factors drifting disjunc- conclusion period —created passing ques- courts are when first the third. This taboo tion between the See, Wagner “proximate g., tions causation. e. v. reasoning cause” smacks Ry. 232 N.Y. N. effect International insulating in- unforseeable Cardozo, events; J., E. 19 A.L.R. tervening reasoning, such where as we * ** seen, “Danger pertinence invites rescue. has when The said: Moreover, applies. ignore Pennsylvania rule does not these reactions of Judge The law min,d tracing Woolsey, particular conduct to its conse- making this recognizes quences. them as normal”. disjunction, paid “finding” as to such at- how, “by must consider knowledge neither to master’s tention And here drift, master, possibility” the mind as- the westward effect nor to normal, inadequate operat- to be would have recording suming de- ; was, judge point, at that con- viations ed. ments know, where ance several out Q. When “ * seeing anything nobody X do not as the * * being very strong the record: you following, established stands.” Bay tides called Fundy, which there are master’s going. can such state- again say allwe With- ignor- sure just before you F. spot rent you ? A. about City [16] Q. try You two o’clock Yes. figured you Prim Point L.R.A.,N.S., figure Winona is where the doing out then what Botzet, were at Light you? you current bearing A. No. certain took cur- told did *11 below, cargo went In tried the case as theories, multiplicity into very large. consequence the record obliged findings was Judge Woolsey theories; many to consider all those that reason —and because be that for preserved were now the narrower issues they him clearly presented them in into go us—he did not detail; explain, justifies serves to, imputing mistake reference At mate. the second rate, Woolsey, having con- inadequate find- cluded —on the basis of law, a matter of fact — be- not violated statute was properly record com- cause of failure deviations, very probably pass did not feel certainly necessary not— he did to—and any adequate findings ne- of fact make statute,' if gating possibility violated, thus have contributed stranding. kind, aIn case where the issues are far narrower reach this below, Court than we should judge hesitate to the trial reverse when findings covering not made elements in the important case which are as we Consequently, my ap- case. view the plicable here, law I were to be followed should, indicated, go reasons further than to remand the case fur- findings questions ther noted foregoing. costs, As to issue of I concur with opinion. majority
In re SAGE’S ESTATE.
SAGE al. COMMISSIONER et OF IN- TERNAL REVENUE.
No. 7708. Appeals,
Circuit Court of Third Circuit. June