The Beatrice Bush , 250 F. 855 ( 1918 )

LEARNED HAND, District Judge.

We cannot concur in the conclusion that the Bush was under way at the time of the collision, or at least that she had begun to turn to starboard, as Sullivan, the captain of the No. 14, says. It is true that his own deckhand in some measure supports him; but he is willing to go no further than to say: “She seemed to be starting out, coming ahead, swinging towards us.” The testimony of both Sullivan and the deckhand is quite consistent with the tendency so common in these cases of attributing all of two relative movements to the observed vessel and none to the vesáel upon which the witness himself is standing. It is true that Durkin, the captain of the Bush, seems to have had no very clear recollection of the situation, though it is possible that he was confused by the long, examination. The best witness of all, and the most unbiased, is Du-gan, the pilot of the Carroll, for, although he did not see the collision at the precise moment of its occurrence, it is perfectly clear from what he did see that the Bush was not under way. This he repeated several times and in various forms. He is borne out, moreover, by the testimony of the crew of the Bush', who say that the finés had only just been made fast, and some of whom say that the slack was still being taken up.

Concluding, as we do, therefore, that the Bush was substantially stationary in the water, there is no ground for holding her at fault. The fault of the No. 14 is amply proved, and we concur with the District Judge in his finding as to her.

Decree reversed, and libel dismissed, with costs of both courts.