Cook v. Moran Towing & Transportation Co.
Opinion of the Court
The facts of the case are so fully set forth in the opinion of the district judge (188 Fed. 846) that we shall not undertake to rehearse them here. The tug was found in fault for not keeping a proper lookout.
This case is a very close one and might have been decided either way. Under these circumstances, we ought not to disturb the conclusion of the court which has the primary duty of finding the facts and which had the advantage of seeing and hearing the witnesses, unless we are very clearly of the opinion that there was error in some material finding. If the facts are as the district judge found them, the conclusion that a proper lookout was not maintained legitimately follows.
Referring briefly to the matters in dispute:
(1) We do not believe that between the time the vessels came in sight of each other and the time of the collision the tug changed her course to starboard. There seems to be no reason why she should. Even if she did make a slight change, that would not operate to haul the tows over as described. The witnesses from the launch have evidently confused the movements of the launch on which they were with the movements of the tug and tows — a not infrequent occurrence.
(2) We agree with Judge Holt that all libelant’s witnesses have greatly exaggerated the time they were in the water, as they naturally would.
(4) Libelant’s witnesses’ estimates of distances are of little value. ■Quite naturally they put the tug’s distance from them at 200 feet. Hope and expectancy were picturing her as coming near enough 'to them to render aid. They also testified that the tug passed them about as far off as the distance between the tug and the first scow. That is manifestly wrong. The launch under existing conditions could not drift 1,200 feet in five minutes.
(5) We concur also as to the time. Not much reliance can be placed on the stoppage of the watches after immersion. There are too many elements of uncertainty; but there is positive evidence by two of libel-ant’s witnesses as to looking at their watches before sighting the tug. It had then grown light enough to make out the numbers on the watch faces, and the witnesses noted the time and testified to it. Since the district judge credited their testimony as to that circumstance which has nothing improbable about it, we also accept it.
(6) We think the lookout, except for approaching lights, was mainly to port, through the open window on the side of the pilot house where the lookout stood. The tug’s own evidence shows this.
The decree is affirmed, with interest and costs.
Reference
- Full Case Name
- COOK v. MORAN TOWING & TRANSPORTATION CO.
- Status
- Published