Davin v. Hudson River Day Line , 6 F. Supp. 691 ( 1933 )

PATTERSON, District Judge.

On August 15, 1928, a tow of sixteen or eighteen canal boats in charge of the tug Joan Flannery was proceeding down the Hudson river. The steamer De Witt Clinton passed the tow at a point between Poughkeepsie and New Hamburg at about 2:39 p. m. Three separate libels were filed against the steamer by the owners of three boats in the tow. It is charged that the rate of speed of the De Witt Clinton while passing the tow was excessive, that the high swells thereby produced made the boats jump around and collide with one another, and that the De Witt Clinton is responsible for the resulting damage.

The only issue is one of fact, whether the speed of the De Witt Clinton on passing the tow was excessive. The witnesses for the libelants testified that the steamer, although warned by whistles from the tug, passed close to the canal boats without moderating her speed. The witnesses for the steamer, with their memories refreshed from the log, testified that the speed was slowed down for five minutes while in the neighborhood of the tow, in order to prevent damage from swells. Upon a balancing of the testimony and a consideration of the probabilities of the ease, I accept as true the version given by the latter group of witnesses and find that the De Witt Clinton did not pass the tow at a dangerous rate of speed.

The libels will accordingly be dismissed. The petitions bringing in other parties will also be dismissed.