Page:Federal Reporter, 1st Series, Volume 3.djvu/599

 592 FBDEBAIi BEPOBTEB. �uted in any appreciable degree to occasion or aggravate tha collision, The absence of a watchman on the tow was, how- ever, in my judgment, a culpable omission, inasmueh as it appears that the captain of the tug, who was direeting her course, was not in a position toseecontiauously the approaching steamer, as a watchman on board the tow could have been. �Subject to these qualifying remarks as to the fourth specifica- tion, I am eonstrained by the weight of evidence to adjudge that these charges are sustained. It is conceded that in the testimony is fonnd data for a plausible argument against my conclusions; but the weight of the argument, as weU as the weight of evidence, in my judgment, sustain them. �In regard to one point persistently and confidently urged as a pivotai one on behalf of the tug-boat, it may be well here to append a remark or two. �It was contended that the evidence (including certain plata exhibited, and certain statements of distances, and estimates of the speed of the tug-boat and steamer, respectively) estab- lished as an incontrovertible fact that, at the moment the officers of the steamer first saw the tug and tow, the tug and tow had reached a point in the westerly part of the channel of the river out of the course — that is, out of the way of the steamer — and that consequently, if the steamer had kept on her course, and had not veered from it by porting her helm, no collision could or would have occurred. This point, I would remark, has received due consideration, and the cou- flicting testimony bearing upon it been canvassed and weighed; the conclusion arrived at being, as above substan- tially stated, that the point is not sustained by the weight of evidence. �It results that I must pronounce for the libellants as against both the steamer and the tug, as being both culpably in fault and liable for the damage occasioned by the collision. As to the amount of the damage, it must be referred to a commis- sioner to inquire and report, unlesa the parties eau agree thereon. ����