THE MAYFLOWER. MENDELSSOHN PARK EXCURSION & AMUSEMENT CO., Limited, et al. v. HEWITT et al.

THE MAYFLOWER. MENDELSSOHN PARK EXCURSION & AMUSEMENT CO., Limited, et al. v. HEWITT et al. (Circuit Court of Appeals, Third Circuit. April 5, 1897.) No. 11, March Term, 1897. Collision—Steamer, with Wharf Boat. Where a wharf boat sunk immediately after being struck by a steamer, and when she was raised it was found that a new and strong plank connected with the knee which received the blow was split a distance of many feet, and opened so as to admit water freely, held, on the weight of the evidence, that the sinking was due to the blow, so as to make the steamer liable, though the wharf boat was previously in bad condition and sometimes leaked. Appeal from the District Court of the United States for the Western District of Pennsylvania. This was a libel in rem by Isaac Hewitt and James Hewitt, doing business as the McKeesport Wharf-Boat Company, against the steamboat Mayflower (the Mendelssohn Park Excursion & Amusement Company, Limited, claimant), to recover damages for an alleged collision. The libelants were the owners of a wharf boat ivhieh was moored at McKeesport, on the Monongahela river, and was used by them as a landing for packets and as a produce and provision store. They alleged that on the evening of October 31, 1894, the Mayflower, in attempting to land at McKeesport, struck a knee of the wharf boat, thereby causing a long split in one of her bottom planks; and that from the effects of this injury she sank the same night, and a lot of their produce was lost or damaged. The respondents deny the fact of collision, and assert that, if it be found in fact to have occurred, the libelant’s -watchman v?as negligent in not promptly discovering the injury, and taking steps which would have prevented the boat from sinking. The evidence was very conflicting, but the court below found, after a caareful examination of it, that “the Mayflower must be adjudged to have struck the wharf boat, and that her subsequent sinking was the result of the blow”; and also that the facts did not warrant the conclusion that the subsequent conduct of libelant’s watchman was such as to charge them with the loss caused by the sinking of the boat. The court, however, permitted libel-ants to submit further testimony to show damage resulting from the loss of the use of the boat, and thereafter, to wit, on January 4, 1897, filed the following additional opinion (pa Buffington, District Judge): “We have re-examined the proofs submitted on the former hearing, and also those taken subsequent thereto. The last-mentioned testimony, and the forcible argument of counsel thereon, go a long way towards challenging the correctness of the conclusion arrived at on the former hearing; but, after careful consideration of the entire proofs, we will adhere to the one then reached. The proofs, however, satisfy us that respondents should not pay all the bills claimed for repairs. A substantial portion of these repairs was necessitated, not by the collision, but by the condition the boat was in prior thereto. The claim for prospective profits is not allowable under the proofs.” Marcus W. Acheson, Jr., for appellants. Samuel Mc'Clay, for appellees. Before DALLAS, Circuit Judge, and BUTLEB and KJNKPAT-BICK, District Judges. [MAJORITY — BUTLER, District Judge.] BUTLER, District Judge. The district court found the Mayflower responsible for the loss sustained by the wharf boat; that the latter sank in. consequence of a blow inflicted by the former, as charged in the libel. The very able argument presented on behalf of the Mayflower has not satisfied us that this finding is wrong. It seems to be fully sustained by the proofs. No doubt the wharf boat was in bad condition, and sometimes leaked; but this does not appear to have had anything to do with her disaster. She was afloat and safe when struck, and directly after sank. When raised, a plank, new and strong, connected with the knee which received the blow, was split a distance of many feet, and forced open sufficiently to admit water freely. It cannot well be doubted that this was the cause of sinking, notwithstanding some testimony to the contrary. Nor do we find anything that would justify us in interfering with the damages awarded. The subject appears to have been examined with care by the court, and, while there may possibly be room for doubt respecting some of the items allowed, we think the decree cannot safely be disturbed. It is therefore affirmed.