FRANK, Circuit Judge.
The appellants attack the findings that the scow was seaworthy and that the scow overturned because leakage had accumulated during the loading to a level higher than the keelsons at the stern.
On the question of seaworthiness, the trial judge relied upon the testimony of the expert who indicated that the scow was seaworthy. We must accept this finding. Similarly, we must accept his finding, based on sufficient testimony, that the overturning was caused by the collection of water in the stern until the water-level was higher than the keelsons'.
The fact that she was seaworthy does not mean that the scow could be expected not to leak. The trial court found, from the uncontradicted testimony of appellee’s expert, that all wooden vessels leak, and that the leakage increases when the vessel is loaded. Appellant, experienced in handling scows, was chargeable with notice of some leakage; it was also chargeable with notice that the water running aft might easily rise above the keelsons, where it would be free to run from side to side, causing the scow to list and cargo to shift. Nevertheless, appellant failed to check for leakage or man the pumps.
As there was no captain aboard the scow, appellant had control of the scow and responsibility for its safety. “Upon seeing that the scow had no bargee on board, the dredging company was put to its choice: either to refuse to load her at all, unattended as she was, or to give her such attention as a competent bargee would have given.” F. E. Grauwiller Transportation Company v. Exner Sand & Gravel Corporation, 2 Cir., 162 F.2d 90, 91.
Affirmed.
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.