c33:No. 140

MAYER, Circuit Judge
(dissenting). Just how the fire occurred is, as might be expected, a very puzzling question. However, I am inclined to the view stated by the District Court. I recognize the force of what is said in respect of the blowtorches in the opinion of this court, but I am not prepared to conclude that the blowtorches were negligently used.
In respect of this subject, there can, of course, easily be a difference of opinion, and I appreciate that on appeal the appellate court may arrive at the same resúlt as the court below through a different approach.
The question as to what the parties contracted seems to me to be on a different basis. I do not lose sight of the fact that it is settled law that an appeal in admiralty is a new trial. At the same time, when witnesses appear, weight is always given to the fact that the trial judge saw and heard the witnesses. This becomes especially important where the conclusion of the judge must necessarily be based upon his estimate of the truth of the testimony or the accuracy of the recollection of witnesses. The agreement between the parties was entered into carelessly and informally between men who knew each other well and who evidently had a high regard for each other. That is the sort of thing which men of large affairs often do and, when the unfortunate event thereafter occurs, they find themselves in opposition to each other and compelled to resort to their memory.
There is nothing in this record which indicates anything more than a difference in recollection. The two officers of respondent had much at stake, but so also did the vice president of libelant. The agreement testified to on behalf of appellee is one which seems to me very likely in the circumstances, and, if the testimony of the younger Fletcher (particularly) is accepted, I think it was intended to refer to any risk which could be covered by insurance. Obviously, the job was just the kind of job where the appellee would run risks through the negligence of its own employees. Indeed, it may be said that any fire or other disaster would more likely occur from some negligent act of appellee’s employees than from some outside cause.
Several questions were asked of Mr. Thomas in regard to the testimony of the younger Fletcher as to the conversation in the office of Mr. Thomas. The recollection of Mr. Thomas differed from that of the younger Fletcher, and he felt that he had “a reasonably good memory, and that, if he had heard anything like that to which Mr. Fletcher, Jr., testified, he would certainly have remembered it.” Finally, however, he was asked, “You do not absolutely deny that Mr. Fletcher, Jr., made that statement in your office?” To this Mr. Thomas answered, “No, I don’t absolutely deny it-. I simply say that to the best of my recollection he did not.” I do not construe that as a polite way of saying that Mr. Fletcher, Jr., had not told the truth, but I take the words as they appear on the printed page of the record, and thus as meaning that Mr. Thomas did not feel that he could go further than the “best” of his recollection. This court in an appeal in admiralty can, of course, reject testimony which seems unlikely. In cases involving navigation, testimony is, sometimes not susceptible of being reconciled with well-known rules of navigation or the maneuvers described may be so out of the ordinary as to require closer scrutiny than that accorded by the trial court.
Here, however, we have testimony as to an agreement which suggests neither lack of possibility nor lack of probability.
A judge of great experience, particularly in this branch of the law, after a most careful consideration, had brought to bear not only his knowledge and estimate of men in the analysis of their recollection as to a vital fact, but also his knowledge of such transactions in maritime circles.
When, therefore, in this case, this court disagrees with the conclusion of the court below, the question is how far we can go, when on the record, as I view it, the fact could have been decided either way and the decision, whichever way it went, would fundamentally rest upon the greater and legally very important advantage, which the trial judge has in a case, as said before, when he has seen and heard the witnesses.
I think also that we should not draw too fine a distinction between the language used in the office of Mr. Thomas and that used at the so-called Leviathan conference. Business men, when the negotiation is on, ordinarily do not speak in careful legalistic language, and, as is often gathered from al-1 the relevant circumstances, when laymen use words which seem to lawyers to be different, they really mean the same thing on each occasion.
Judge Ward pointed out that “all the witnesses on this subject are men of the highest character and standing,” and he was confronted with the problem of deciding as to differences in recollection, and his decision did not carry with it reflection on any of those concerned.
Summarizing what has been said supra, my view is that the trial judge was in the best position to determine wjiat'was the agreement between the parties, and therefore that this court should accept that determination unless it can say (as I think it cannot) that the probabilities clearly point the other way.
I think the decree should be affirmed.

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