The Meta

THOMAS, District Judge. The libelant, the master of the barge Kaiser, lying between piers 18 and 19, East river, New York, with her bow towards the bulkhead, was on May 1, 1893, as he claims, injured by the tug Meta. The Kaiser was housed along her full length, excepting a short space on the bow and stern. There was a rail or string piece, about six inches wide, on the outside of the house, around the vessel, and about even with her deck. A large ship was lying alongside the dock on the upper side of the slip, with her stern near the end of the pier, occupying the dock for nearly its 22 whole length; and against this ship the Kaiser was lying. On the lower side of the slip were one or more vessels, and among them the scow Middlesex, which was attempting to get out of the slip, and in this attempt swung one end up against the side of the Kaiser, while the other end was lying against a vessel at the lower side of the slip. The steam tug Meta, passing along the East river, was called by the libelant to tow the Kaiser out of the slip, and take her to her destination. The tug came alongside of the port quarter of the barge as shfe lay in the slip, and made her towing line fast to a cleat on the Kaiser’s port quarter. This cleat was about 11 feet from the Kaiser’s stern, and the towing line passed around the corner of the Pennsylvania scow, there being about 15 feet between the cleat and the tugboat’s niggerhead, to which the line was made fast. Thereupon the tug started to back out, pulling the Kaiser from the slip, but shortly a loose and projecting guard iron on the side of the Kaiser’s port rail struck the corner of the Middlesex, preventing, for the moment, any further operation. Thereupon the tug stopped, slackened its line, and the tug’s stem was brought up to within three feet of the Kaiser’s side. The libelant claims that thereupon he left the stern of the Kaiser, where he had been standing, while the tug was pulling, and went out on the guard rail to disengage the corner of the scow from the side of the barge; that when he reached this point he held on to the hand rail along the top of the house with his right hand, having his back towards the tug, and with his left hand pushed on the scow, in an attempt to swing her back, and allow the Kaiser to pass by her; that while so engaged, and without any warning to him, the tugboat pushed her bow in between the scow and the barge in such a way as to shove , the scow away from the Kaiser’s side, and at the same time struck the libelant on the right foot, either with the niggerhead of the tug or the fender on the tug, in such a way as to press his ankle against the side of the Kaiser’s house, and thereby fracture the bone in his right leg near the joint. That the libelant’s leg was broken at this time is beyond doubt, but the burden is upon him to establish that it was broken in substantially the manner described by him, by the fault of the tug. Although there is corroborative evidence that the libelant was engaged in somewhat the manner described by him,.yet no one observed the alleged collision from which the injury is claimed to have arisen. On the part of the tug it is claimed that she came forward and pressed her stem against the side of the barge, but that the libelant was not in the vicinity of contact, and that she did not force her stem between the barge and the Middlesex in the way claimed by the libel-ant; and her evidence is quite as credible as that of the libelant on this issue. It must be remembered that the libelant has the burden of proof, and the object of such proof is to carry conviction to the mind of the court that the right of one person has been invaded by the fault of another. Such a conviction does not result in the present case. While there is no question of an injury, there is decide'd doubt as to the manner of its happening, and such doubt is by no means favorable to the libelant. Where the evidence is left in such condition that the court can give no logical reason for determining 23 the issue in favor of the libelant, it is just that the presumption that the person charged with tort is not guilty should be maintained. It must be confessed that the explanation given as to the maimer in which the tug would naturally detach the barge from the Middlesex, as presented by the libelant’s advocate, seems 1 he more plausible, although the captain of the tug strenuously asserts that such a course was not necessary, and was not employed, in the present instance. Did the question turn upon which method was the more suitable to loose the barge, there would be no hesitation on the part of the court in determining in favor of the libelant; but the quality and strength of the evidence as to what was actually done are at least as favorable to the claimant as the libelant, and, in view of the burden that rests upon the libelant to make definite his right to recover, it is considered that the decree should be in favor of the claimant. Let such a decree be entered, with costs to the claimant.