Page:Federal Reporter, 1st Series, Volume 8.djvu/361

THE FRANK G. FOWLER. 047 �as this in justification of the tug would, it seems, if true, have been set up in the answer, which was filed December 30, 1880. Yet not only is it not set up in the answer, but, on the contrary, the answer virtually admits that they left Duck island when they did because their coal was getting exhausted. Thus the answer states — �" ihat it was then found that the supply of coal necessary to run the enginCs of the tug was being rapidly consumed, and that the nearest point to replenish the said coal was at New Haven; that In this emergmoy it was deemed'to be the most prudent course to tow the said barge out into the sound, where there would be a better chance of her being picked by some other vesssel or steamer, and at 12 o'clock and 10 minutes, midnight, of November sixth, [flf th,] the said tug and tow left the lee of the said island and proceeded for New Haven, in hopes that with a fair wind and tide she would be enabled to tow the said barge into New Haven, or some other place of ssrfety," etc. �It seems to me quite inconsistent with this answer now to claim that there was any other reason for leaving the lee of the island, at a time and under circumstances almost certainly involving the risk of the loss of the tow, than the want of coal. Moreover, the pilot, Clifford, who was examined before the trial, and whose exam- . ination Captain Meyers attended, gives no testimony whatever tending to show that an apprehended change of wind had anything to dw with their leaving the lee of the island. On the contrary, his testi- mony strongly confirma the libellant's charge that they left for want of coal. If anybody would have known of the fact that they left because of a change, or threatened change, in the wind, if that were 80, it was Clifford, the pilot, who was the person actually having charge of the navigation of the tug. It is inconceivable that if Captain Meyers, at the time of Clifford's examination, had, this point in his mind, and believed that the change, or threatened change, of wind was the reason for the movement, that he should not have attempted to prove the fact by the testimony of the pilot. Clifford is a disinterested witness, having no known bias in the case, unless to justify himself in his conduct of the voyage, and his testimony, where it makes for the libellant, is entitled to great weight. The testimony of the other persons on the tug, so far as it goes, aids the libellant on this point. They heard the matter of the want of coal talked about. One of them, a deck hand, called as a witness for the libellant, does indeed testify to having overheard the pilot say that there were indications of the wind hauling more to the south- erly. There is no confirmation of this by any other witness. Even if it were said, I am satisfied, from the testimony of the pilot, that ��� �