THE P. H. BIRKHEAD, 104 F. 110

JENKINS, Circuit Judge, after stating the case as above, delivered the opinion of the court. The case with which we have to deal presents a question of fact merely, and needs not extended discussion. Prior to the arrival of the steamer and her consort, the Agnes C. was moored at the river front of the wharf, uninjured. The day after the departure of the steamer and her consort the tug was seen to list, and a day or two thereafter went to the bottom. Her frames were found to be broken or splintered, exhibiting fresh breaks, and three of her seams below the bilge were open. What caused this injury?

A few days before the arrival of the Birkhead the tug had been moved from her berth in the slip, and moored to her position at the wharf, in anticipation of the arrival of the steamer and her consort. No other vessel is shown to have been at that dock for some time before the arrival of the steamer. At that time the tug was apparently seaworthy. It is proven that no other vessels were in that vicinity after the departure of the steamer and prior to the sinking of the tug.

These facts alone present a strong case of circumstantial' evidence against the steamer, fortified by the evidence of five disinterested witnesses, each of whom claims to have been an eyewitness to the pounding or striking of the tug by the steamer or her consort. It is true that these witnesses differ much in their relations of the occurrences testified to. Two of them state the collision to have been on the day of the arrival of the steamer, and three of them on the day of her departure.

They testified a year or more after the event, and memory of the date of an event in which neither had an interest might well be faulty. We are far, however, from believing that the memory of either witness was treacherous, even as to time. It seems to us not improbable, considering the extent of the injury, that there was more than one collision and pounding and crushing of the tug between the steamer or her consort and the dock. The two vessels laden with coals were at different times during the three days they were at the dock moored just outside the tug, and in close proximity to her.

The evidence as to the mannér in which they were respectively moored does not disclose that anything was done which would prevent the larger and heavier vessels, in the easterly wind then prevailing, from being driven against and pounding the tug against the dock. It may well be that part of the injury was caused in this manner and part by contact of the steamer with the tug upon her arrival, and by like contact at the time of her departure. The tug was there of right, and was in a position in which she was at the mercy of the steamer and her consort.

It was the duty of the steamer in her maneuvers in close quarters to see to it that the tug suffered no injury. Notwithstanding the denials of those employed upon the steamer or her consort, we are, after a careful review of the evidence, impressed with the conviction that the Agnes C. received her injuries at the hands of the steamer or her consort, or both, and by reason of the faulty management of the steamer. Upon leaving port, the Birkhead met the steamer Christie and consort coming in, and it is urged that these vessels, being laden, as it is supposed, with coals, may have caused the injury to the Agnes C.

There is, however, no evidence that these latter vessels went to or near the dock in question, and no evidence to which bank of the river they went. We cannot assume, in view of the positive statement of the owner of the dock that no vessel was there after the Birkhead, that the Christie and her consort discharged at the dock in question. It could not have been a difficult matter to have shown where these vessels discharged, and under these circumstances it was the duty of the steamer to have shown the fact, and that the injury was caused by them. We are of opinion that the'decree should be affirmed.