The City of New York

• Decision Date: 07 February 1893
• Citation: 54 F. 181
• Parties: THE CITY OF NEW YORK. v. THE CITY OF NEW YORK. STEVENS et al.
• Court: U.S. Court of Appeals — Second Circuit

54 F. 181

THE CITY OF NEW YORK.

STEVENS et al. v. THE CITY OF NEW YORK.

United States Court of Appeals, Second Circuit.

February 7, 1893

H. G Ward, for appellant.

Jos. F Mosher, for appellees.

Before WALLACE, LACOMBE, and SHIPMEN, Circuit Judges.

WALLACE Circuit Judge.

The learned district judge who heard this cause in the court below did not express any opinion in deciding it upon the facts or law of the cause, and we are wholly uninformed of the reasons which led him to conclude that the libelants were entitled to recover. In controversies involving questions of negligence there is usually less difficulty in applying the rules of law to the facts than in ascertaining what the facts really are. In the present case the findings of the trial judge, in whose presence the important witnesses for the parties were examined, would have been most persuasive with this court in determining the facts, and probably would have been controlling, because the testimony is conflicting, and its weight and force depends upon the credit to be given the witnesses. The demeanor of the witnesses is a material and important part of the evidence, which cannot be sent up with the record; and, because this is so, the rule prevails in appeals in admiralty that the opinion of the trial judge will not be disturbed upon questions of fact, depending upon the credibility of witnesses who were examined in his presence unless there is a decided preponderance of evidence the other way. Under the present circumstances, we must decide all questions of fact depending upon the credibility of witnesses as best we may upon reading the record.

It has been urged for the appellees that the decision of the district judge, without an opinion, is equivalent to the general verdict of a jury upon the issues of fact, and is necessarily a decision in favor of the libelants upon all litigated questions of fact necessary to a full recovery. We cannot for a moment assent to this proposition. How can a reviewing court know what questions of fact entered into the decision until it is informed what the judge decided as matter of law? We can hardly suppose in this case that the learned judge regarded the steamship as an insurer of the safety of the injured tug; but if he did, in the view which we take of the law, his decision could not involve any finding upon the most essential facts of the case.

The facts, as upon the record we deem them to be, are these: On the 8th day of October, 1890, the steamship City of New York arrived at the port of New York from Liverpool, and the master of the steam tug Viking, expecting that the steamship would require assistance in getting into her berth, which was the slip between piers 42 and 43, North river, applied for employment to the superintendent of the Inman & International Steamship Company, the owners of the steamship. He was told by the superintendent that he might assist with his tug, and according to his testimony, he was told by the superintendent to use the tug on the starboard quarter of the steamship. At that time the steamship was on her way coming up the river from the Battery. The tug proceeded a short distance down the river, and laid off, awaiting the arrival of the steamship, until after the steamship had passed by on the starboard hand. When the steamship came opposite her berth, she stopped her headway, and got her bow into her own slip, at the end of pier 43. Her stern projected further out into the river, and was about abreast of midway between piers 40 and 41. She fastened a headline, and also a breastline, to pier 43, leading from her port side, and commenced using her propellers for the purpose of swinging her stern up the river against the tide, and straightening into her berth. The tide at this time was ebb. She lay in this situation some little time, working a little into her slip, using her starboard propeller to back, and her port propeller to go ahead, and being assisted on her port side by the tug Pulver. Two other tugs were lying on her port side waiting to assist her. While the steamship was in this situation, and was thus maneuvering, and during a momentary interval in which her propellers were not in motion, the Viking came up, and went under the stern, and towards the starboard quarter of the steamship. The Viking was 90 feet long, and 20 feet in width. There was a schooner lying at the end of pier 41, and a steamer lying on the northerly side of the pier, and in the position of the steamship there was not sufficient room between her and pier 41 to enable the tug to push her at right angles, or to assist her with any advantage...