Opinion
No. 136.
January 10, 1927.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel by Phoebe Taylor against the Cornell Steamboat Company. Decree for libelant, and respondent appeals. Reversed.
Robert S. Erskine, of New York City, for appellant.
William F. Purdy, of New York City, for appellee.
Before HOUGH, MANTON, and MACK, Circuit Judges.
We perceive no question of law in this case; the question of fact is whether, under the circumstances, respondent's tow masters were negligent in performing their duty to libelant's boat in tow.
The tow was on a very easy voyage, at a time of year when heavy snowstorms are unusual. Such a storm arose, and the tow tied up on the Brooklyn side of the East River. It was made fast at the head and rear of a tow of 11 boats. The tide changed and the wind rose higher, but never exceeded (according to the weather report) 40 miles up to the time of the accident, which consisted in the lines furnished by the stern boat in tow (according to custom) parting and the bitts on the head boat in tow tearing out. This caused the boats to get out in the river, still under control of the towboat, and libelant's boat was tossed about by the waves, so as to receive some injury from adjacent boats in tow.
We are of opinion, after reviewing the evidence regarding the circumstances above set forth, that as matter of fact the tow masters and their assistants did all that was required of them by the ordinary skill of their vocation, and that no act of negligence — i.e., lack of due care under the circumstances — is shown. Consequently libelant cannot recover.
Decree reversed, with costs.