40 F. 501 | U.S. Circuit Court for the District of Southern New York | 1889
(afterdatingfindings and conclusions as above.') The grounds of decision in this case are perhaps sufficiently indicated in the findings. That the vessel wa's not unseaworthy by reason of overloading (a fault not charged in the libel) seems to have been the conclusion finally reached by the district court upon the rehearing. Such a conclusion is accordant with the testimony. Her behavior with seven feet of water in her well, and a cargo of wet guano in her hold, and the manner in which, after the leak was plugged, she recovered her buoyancy, should be conclusive on this point. So, too, on the rehearing, the district court found, as her witnesses testify, that before the plate was knocked off the vessel had encountered dangers of the sea, by reason of which there was eighteen inches of water in her well, and her cargo was damaged to a considerable extent. It is indeed hard to conceive by what casualty the plate could have been removed, while the water-way in which it was fastened was still on the weather side, and the evidence shows that they did not wear ship, thus developing the list to port, until after the eighteen inches of water had been found in her well.
It only remains to determine what caused the loss of the plate. There is no direct evidence on this point; only inferences to be drawn from known facts. That it was knocked out of sound wood by a blow from some floating article, which left no marks of violence upon the bulwarks or stanchions because it was swept overboard through the open port, is certainly not impossible. That the wood was rotten, or the fastenings defective, seems disproved bj7 the condition in which the holes were found; The vessel was not originally unseaworthy because she had bilge-pump holes covered as these were. The presumption of continuing seaworthiness in respect to this part of the ship is not rebutted by the single fact-that no special test was made as to their condition, in view of the testimony (especially that taken in this court) as to what is the usual examination given to such structures. They are considered as permanent fixtures; are located in the upper works, where they are almost constantly in view; and are not liable to deterioration from the lapse of time. Moreover, the evidence as to the condition of the waterway, and as to the torn and ragged appearance of the holes, indicates that they were reasonably fit to resist the ordinary shocks and action of the sea, and .were displaced by an accident of an extraordinary nature,
ON APPLICATION TO AMEND FINDINGS.
(December 18, 1889.)
Upon the two principal amendments to the findings asked for by the libelant, namely: (1) To insert the word “apparently” in the twenty-third finding; and (2 ) to prefix to the twenty-fourth finding the words, “It is to be inferred from the facts found in the 16th finding,” — his motion must be denied. The libelant claims that íbero was in fact some defect or weakness in the plate and cap, and the screws which secured them; that in consequence they washed out, and allowed the water to enter the vessel. Whether such defect or weakness existed or not is a question of fact, which it is the duty of the circuit court to decide. Such decision must bo presented, as a finding of fact, to the appellate court. The conclusion reached upon all the testimony was that there was no such defect. No doubt that conclusion was reached as an inference from the facts in proof. No one distinctly testified: “I made an elaborate examination of the cap, plate, and screws before the vessel sailed. They were then in sound condition, and I saw them knocked out by floating stuff washing across Ae vessel’s deck, and out through the open port.” Nevertheless, the testimony, taken as a whole, indicates that this was in fact what happened. If this court should amend the twenty-third and twenty-fourth findings in the manner suggested, the supreme court might reverse on the express ground that, because there was no distinct finding of fact to that effect, it must be inferred that the claimant did not convince the circuit court, as a matter of fact, that the vessel was tight, and that there was no latent defect in the plate, cap, or fastenings. But that is the very conclusion to which an examination and comparison of all the testimony adduced by both sides has led this court; and therefore compliance with the act of 1875 seems to require the statement of such conclusion as a finding of fact.