130 F.2d 341 (3rd Cir. 1942), 7946, H.S., Inc., No. 72

Docket Nº:7946.
Citation:130 F.2d 341
Party Name:THE H. S., INC., NO. 72. v. HENRY STEERS, Inc. PETITION OF HENRY STEERS, Inc. CIFRONDELLO
Case Date:August 03, 1942
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 341

130 F.2d 341 (3rd Cir. 1942)

THE H. S., INC., NO. 72.

PETITION OF HENRY STEERS, Inc.

CIFRONDELLO

v.

HENRY STEERS, Inc.

No. 7946.

United States Court of Appeals, Third Circuit.

August 3, 1942

Argued May 4, 1942.

Page 342

Louis R. Freund, of Newark, N.J. (Samuel F. Shatz, of Newark, N.J., on the brief), for appellant.

Charles W. Broadhurst, of Jersey City, N.J. (Collins & Corbin and Edward A. Markley, both of Jersey City, N.J., on the brief), for appellee.

Before BIGGS, JONES, and GOODRICH, Circuit Judges.

BIGGS, Circuit Judge.

This is an action brought by John Cifrondello, administrator ad prosequendum of the estate of Vito Cifrondello, to recover damages for his death from Henry Steers, Incorporated. The suit arises out of the following extraordinary circumstances. Henry Steers, Incorporated, was the owner of a deck scow. Hugo Wuori was the captain of this scow. On August 7, 1936 it was moored on the west side of the Passaic River at the foot of Coal Street, in Newark, New Jersey. Vito Cifrondello, who was a little over fifteen years of age, and three other boys went swimming in the river. At or about this time someone defecated on the deck of the scow. Wuori was not on the vessel at this time but returned to it shortly thereafter. Wuori, who had had difficulty with trespassers before, some of whom had attacked him on the scow, had prepared a deadly weapon to protect himself and the scow. This consisted of a two-foot length of rubber garden hose, plugged at each end and packed with fine sand. Vito Cifrondello and his companions after swimming about for a while came to one end of the scow and clung to its bumper. Wuori attacked them with the rubber hose and despite the pleas of Vito and his companions that Vito could not 'swim so good' drove him from the scow striking him several times as he did so. As the result of this the boy drowned.

John Cifrondello, as administrator ad prosequendum, brought the suit in the Supreme Court of New Jersey under the New Jersey statute relating to 'death By

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Wrongful Act', Revised Statutes of New Jersey 2:47-1 to 6, N.J.S.A. 2:47-1 to 6. Steers removed the cause to the District Court on the ground of diversity of citizenship and then filed a petition on the admiralty side of the court for limitation of liability pursuant to the provisions of the Act of June 5, 1936, c. 521, Sec. 1, 49...

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