On Petition for Rehearing.
PER CURIAM.Where a boat lying motionless at a pier has her bottom torn out of her by a boat alongside, the latter is liable for the injury in rem, unless her claimant shows that it was an inevitable accident. In this case the presumption of negligence arose against the scow Connell exactly as if she had navigated straight into the Ward A, under which circumstances it would be no defense that she was being navigated by a charterer. As the charter was a demise, the charterer might, as between it and the owner of the Connell, be primarily responsible; but the claimant of the Connell did not establish that the charterer was primarily responsible. Therefore the decree should be absolute against the scow.
[3] An appeal in admiralty is a new trial; the decree of the court below is vacated. If the scow Connell was. erroneously discharged, this court ought to order her to be held, if it is possible to do .so. The libelant did not appeal, but the respondent, the Borough Development Company, did. This obliged it to file assignments of error. Its assignments, as well as its brief, covered charges of negligence against the Connell, and it may avail of the charges of negligence contained in the libel. The libelant becomes entitled to a decree against both of the defendants, although it did not appeal. This is. necessary to protect the rights of the appellant. Munson Line v. Miramar S. S. Co., 167 Fed. 960, 93 C. C. A. 360; The Galileo (C. C.) 29 Fed. 538. The ap- ' pellant, which has succeeded in holding the Connell liable, is entitled to the costs of this court as against her.
The petition for a rehearing is denied.