Reichert v. Long Island R.

194 F. 407 | 2d Cir. | 1912

PER CURIAM.

We think the conclusions of the District Judge, who heard the principal witnesses and believed them, should be accepted upon the disputed questions of fact. There is nothing improbable about their story, which fully accounts for what happened. It appears that the tug did come in contact with the abutment, and there is evidence to warrant the finding that she caught in the lower loosened planks. She sank the morning after, and the only adequate explanation of her sinking is the fact of the injury of the afternoon before. It would have been rather remarkable if some other injury had intervened to sink the vessel at this particular time.

We are not impressed by the testimony as to a slight opening on the starboard quarter. Nor are we impressed by the circumstance that the injuries to the port side were not discovered till she sank the next morning. During the rest of her navigation that day, about two hours, only one of the started seams was under water, possibly not so badly started as the others. It is quite probable that whatever water came in through that seam was not more than the bilge pump would discharge. Therefore, until that pump ceased to act, when the engines stopped, there would be nothing to indicate damage. Shortly after she was tied up for the night, all on board left her, siphoned out and dry. Thereafter the water would accumulate, the bilge pump having stopped, slowly at first, until it brought another seam below the water level, which would double the intake, and thereáfter, as each of the other three got to water level, the intake would increase still further. Tight as she was, with empty tanks, we find nothing improbable in the circumstance that she did not actually sink until the morning after the injuries were received.

We are not satisfied that there was any negligence on the part of the master of the Mischief.

The decree is affirmed, with interest and costs.