The Syracuse

23 F. Cas. 594, 6 Blatchf. 238, 1868 U.S. App. LEXIS 1442

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: November 20, 1868
• Status: Published

Opinion

NELSON, Circuit Justice,

after holding, that, on the proofs, the libellant had failed to sustain his position that the Syracuse caused the collision by suddenly altering her course, said: The proofs show that the Rip Van Winkle was clearly in fault in keeping up her high rate of spepd while crossing the river at this reach, in the midst of the vessels which at this time occupied it. There were two tugs, with tows, on the western side, and one nearly opposite, on the eastern side. The morning was somewhat dark, with occasional starlight; and one of the pilots on board oí the Rip Van Winkle says, that, when he first saw the lights, it appeared as if the river was filled with vessels, and that they became the subject of conversation between him and the other pilot. And yet the pilot who was in charge of the navigation of Rip Van Winkle, admits that he did not slacken his speed, but crossed among these vessels at his usual rate. That rate was seventeen miles an hour.

I cannot avoid referring to the confused and painfully tedious mode of taking the evidence in this case, by questions and answers, and not by way of narrative. The folios are fourfold in number what they would otherwise have been, and the surplus is worse than useless. I trust that this most inconvenient and embarrassing mode of taking testimony will be corrected by the rules recently adopted on tee subject by the circuit and district courts. These observations are not intended to apply any more to the present case than to most of ' the appeals which have come before me for some time past.

The decree below is reversed, and a decree will be entered dismissing the libel.

depositions de bene esse. Whenever such testimony shall be taken down by the clerk, the legal fees chargeable by him therefor, shall be taxable as part of the costs in the cause. Rule 124. When either party shall require viva voce testimony given in open court, to be taken down by the clerk, pursuant to the act of congress, it shall be taken in the same manner as in jury trials on common law issues, and not verbatim, as in depositions de bene esse. Rule 125. The notes of the judge may, by assent of parties, be used as if taken down by the clerk. Rule 126. Either party desiring to diminish, vary, or enlarge the minutes of proofs taken by the clerk or judge, may, within two days after the trial, serve a statement of proofs on the proctor of the opposite party, and such statement, if assented to, or, if no amendments are proposed thereto, within two days thereafter, by such proctor, shall be regarded the true minutes of the testimony given, and the notes of tne judge or clerk be corrected in conformity thereto. Rule 127. If amendments are proposed, and the parties do not agree therein, the statements and amendments shall be forthwith referred to the judge, and he shall settle or determine how the facts are, and the statement thus settled or adjusted, shall be filed as the true minutes of the testimony given.