JOHNSTONE v. FURNESS, WITHY & CO., Limited, et al.

JOHNSTONE v. FURNESS, WITHY & CO., Limited, et al. (Circuit Court of Appeals, Second Circuit. July 26, 1910.) No. 269. Appeal from the District Court of the United States for the Southern District of New York. This cause comes here upon appeal from a decree of the District Court, Southern District of New York, holding Furness, Withy & Co., owners of the steamship Dalton Hall, solely in fault for damages to cotton shipped from Montgomery, Ala., to Genoa under through bill of lading. The cotton was damaged through the sinking of a lighter after delivery to the steamer in the port of Savannah. The opinion of the District Judge will be found in 172 Fed. 1016. J. Parker Kirlin and John M. Woolsey, for appellant. Lawrence Kneeland (Kneeland & Ilarison, of counsel), for libelant. Stewart & Shearer (Charles C. Burlingham, George L. Shearer, and Williamson Pell, of counsel), for Atlantic Coast, Line R. R. Oo. Before LACOMBE, CONE, and NOYES, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. The facts are stated in the opinion of Judge Adams and we concur in his findings and conclusions. The merely negative testimony of the ship’s officers cannot in our opinion overcome the testimony of the three witnesses (to which he refers) that before 7 o’clock on Monday morning they saw a five-inch stream of water coming out of the discharge pipe. And, accepting the length of the lighter to be 70 feet as stated in the survey and not 60 feet as some of the witnesses estimated, we are not persuaded by the argument that she was so located on the port side of the steamer that it would not be possible for this stream to fall upon her. We find no abuse of discretion in allowing the amendment conforming the pleading to the proof. Decree affirmed, with interest and a single bill of costs of this appeal against appellant.