City of New York v. McLain Lines, 184.
| Decision Date | 03 January 1945 |
| Docket Number | No. 184.,184. |
| Parties | CITY OF NEW YORK v. McLAIN LINES, Inc. THE MAVIS. THE ANN MARIE TRACY. |
| Court | U.S. Court of Appeals — Second Circuit |
COPYRIGHT MATERIAL OMITTED
Ignatius M. Wilkinson, of New York City (Herbert B. Lee, of New York City, of counsel), for appellant.
Foley & Martin, of New York City (Christopher E. Heckman, of New York City, of counsel), for appellee McLain Lines, Inc.
Macklin, Brown, Lenahan & Speer, of New York City (Gerald J. McKernan and Anthony M. Menkel, both of New York City, of counsel), for appellee Tracy Towing Line, Inc.
Before CHASE, CLARK, and FRANK, Circuit Judges.
It is fairly obvious from the record, and it was conceded at the oral argument here, that the findings, filed a month after the oral opinion, were substantially those presented to the trial judge by the proctors for the barge-owner, the successful libellant. On the unfortunate and undesirable character of findings thus made we have often commented, calling attention to the importance of findings because they bind the upper courts unless clearly erroneous and because findings carefully made ensure a painstaking review of the evidence. One such comment, that in United States v. Forness, 2 Cir., 125 F.2d 928, 942, 943, has recently been cited with approval by the Supreme Court. United States v. Crescent Amusement Co., 323 U.S. 173, 65 S.Ct. 254.2
Perhaps because of the manner of their making, the findings here do not enlighten us as to the crucial fact — as to which the evidence was in conflict — of the distance which separated the ferryboat from the tug when the ferryboat crossed the tugs' bow. In finding that this occurred when the tug was about 500 feet east of O'Brien's stakeboat, the trial judge relied on the testimony of the tug's captain; that testimony, because of its contradictions, inherent improbabilities, and patently biased character, seems to us highly unreliable and were we free to do so, we would hold that the distance was about a mile. But, accepting the finding, it seems clear that the distance was at least a half mile, and that, at the time, the tug was in water about 25 feet deep. On that basis, we consider "clearly erroneous" the finding that the ferryboat's speed was "excessive under the circumstances." And, considering the distance, we conclude that the ferryboat was not chargeable with a duty to foresee that swells caused by it were likely to strike the barge before they ran out...
To continue reading
Request your trial
-
LaTouraine Coffee Co. v. Lorraine Coffee Co.
...928, 942, 943, certiorari denied City of Salamanca v. United States, 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764; City of New York v. McLain Lines, 2 Cir., 147 F.2d 393, 395; United States v. Crescent Amusement Co., 323 U.S. 173, 185, 65 S.Ct. 254, 89 L.Ed. 160. The trial court's preoccupati......
-
THE SEVERANCE, 5389.
...Petterson v. New York Central R. Co., 2 Cir., 126 F.2d 992; Schilling v. Schwitzer, 79 U.S.App.D.C. 20, 142 F.2d 82; City of New York v. McLain Lines, 2 Cir., 147 F.2d 393; Chicago, D. & G. B. Transit Co. v. Moore, 6 Cir., 259 F. 490. We do not hold that the practice affords a ground for re......
- McGarry v. Securities and Exchange Commission
-
Rooted Hair, Inc. v. Ideal Toy Corp.
...courts in which this practice appears to have found some favor, it has been repeatedly criticized in this Circuit, City of New York v. McLain Lines, 2 Cir., 1945, 147 F.2d 393; United States v. Forness, 2 Cir., 1942, 125 F.2d 928, cert. denied, 316 U.S. 694, 62 S.Ct. 1293, 86 L.Ed. 1764; Ma......