Sternberg Dredging Co. v. Moran Towing & Transp. Co.
| Decision Date | 16 December 1952 |
| Docket Number | No. 57,Docket 22100.,57 |
| Citation | 200 F.2d 603 |
| Parties | STERNBERG DREDGING CO. v. MORAN TOWING & TRANSPORTATION CO., Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Eugene Underwood, New York City, for petitioner.
Harry F. Stiles, Jr., New Orleans, La. (Deutsch, Kerrigan & Stiles, New Orleans, La., Macklin, Speer, Hanan & McKernan, New York City, Leo F. Hanan, New York City, of counsel), opposed.
Before SWAN, Chief Judge, and L. HAND and CLARK, Circuit Judges.
Apparently our opinion was not as clear as we had hoped to make it; we add what we trust will remove any remaining ambiguities.
(1) We repeat our holding that on the present record the plaintiff proved that the dredge had an observable list at 4:30 P.M.; and that this imposed upon the tug the duty to send someone on board to ascertain the reason. We construe the testimony of Thompson as we did before, though we do not now, and we did not before, mean to impugn his honesty.
(2) On a new trial both parties may adduce any evidence that they think relevant, the effect of which we cannot of course predict.
(3) Upon the issue whether the tug's fault caused the dredge to founder, we again hold that, in view of the relative ease of access by the tug to the facts, a presumption arose that her failure to send someone aboard the dredge was the cause of the foundering. We mean the same kind of presumption that exists in the case of a bailment, as the Supreme Court has laid it down: "it does no more than require the bailee" (the tug) "if he would avoid the inference, to go forward with evidence sufficient to persuade that the non-existence of the fact" (that the fault caused the loss) (the tug) "does go forward with evidence enough to raise doubts as to the validity of the inference, which the trier of fact is unable to resolve, the bailor" (the dredge) "does not sustain the burden of persuasion which upon the whole evidence remains upon him, where it rested at the start."1
(4) We do not decide whether, in addition to the presumption just mentioned, the tug had the burden (the "burden of proof") of eventually persuading the judge that the fault did not cause the dredge to founder. That question we leave open, as we did before. If upon the new trial it becomes necessary to decide it, the trial judge will make...
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Petition of Marina Mercante Nicaraguense, SA
...have struck the channel bank. 7 Cf. Young Bros. v. Cho., 183 F.2d 176, 178 (9th Cir. 1950). See also, Sternberg Dredging Co. v. Moran Towing & Transp. Co., 200 F.2d 603 (2d Cir. 1952). 8 Compare Curtis Bay Towing Co. v. Southern Lighterage Corp., 200 F.2d 33, 35 (4th Cir. 9 Compare Sternber......
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Offshore Company v. G & H Offshore Towing Co., 64-H-88.
...Trans. Co., 235 F.2d 741 (5th Cir. 1956); Sternberg Dredging Co. v. Moran Towing & Trans. Co., 196 F.2d 1002 (2nd Cir. 1952), on reh. 200 F.2d 603; The Anaconda, 164 F.2d 224 (4th Cir. 1947); Simkins v. R. L. Morrison & Sons, 107 F.2d 121 (5th Cir. 1939); The Stirling Tomkins, 56 F.2d 740 (......
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United States v. Central Gulf Lines, Inc., Civ. A. No. 81-3339.
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