Campbell v. The Young America

BBOWN, District Judge. Whatever may have been tbe character of tbe mark left upon tbe side of tbe libelant's canal boat, tbe fact is proved that tbe rake iron, which ran perpendicularly down tbe extreme after end of tbe planking on tbe side, was torn up, broken, and left banging and swinging from tbe uppermost fastening. Tbis fact seems to me to prove conclusively that there was some defect in tbe claimant’s tugboat, probably in tbe rupture and projection of her wearing iron, which distinguishes tbis case altogether from those of contacts in tbe usual course of navigation, and shows that tbe damage in tbis case was caused by the rough impact of tbe tug’s broken wearing iron. Had tbe stern planks of tbe libelant’s boat been rotten, their edges, across which this projecting iron passed, would naturally have given way, without other damage. Tbe stern planks, however, were ripped off by tbe impact. But from tbe mark left upon tbe side of tbe boat, even to tbe depth sworn to by tbe libelant’s witnesses, it would not seem that there was a contact of sufficient depth, breadth or force to have carried away those three stern planks by merely passing across tbe edge of one of them, bad they been fastened securely across tbe stern. Tbe evidence of tbe claimant in that respect is very direct and positive that most of those bolt fastenings were rusted off between tbe planks and tbe timbers inside. I must regard such a proved defect as a cause equally contributing to tbe loss; and the damages must, therefore, be divided. Tbe Syracuse, 18 Fed. Rep. 828; Hie Atalanta, 34 Fed. Rep. 918; The N. B. Starbuck, 29 Fed. Rep. 797. Decree accordingly.