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June 30, 1964

William J. KERNAN, Administrator of the Estate of Arthur E. Milan,
GULF OIL CORPORATION. John H. MEEHAN, Administrator of the Estate of Donald H. Worrell, v. GULF OIL CORPORATION

The opinion of the court was delivered by: KRAFT

On the evening of November 18, 1952, shortly after 10:00 o'clock, the tug Arthur N. Herron was proceeding downstream in the Schuylkill River, with a tow consisting of a loaded mud scow made up on her port side. As she was approaching the Penrose Avenue Bridge, the tug was suddenly enveloped in flames, and portions of it, including the entire wheelhouse, were destroyed. Two members of the crew, Milan and Worrell, lost their lives.

The American Dredging Company, owner of the tug, filed a petition in this Court for exoneration from or limitation of liability. The Court, in an opinion by Chief Judge Kirkpatrick, held that the petitioner was entitled to exoneration. In Re Petition of American Dredging Co., 141 F.Supp. 582 (E.D.Pa.1956). The Court of Appeals, Chief Judge Biggs dissenting, affirmed. A majority of the Court denied a petition for rehearing. 235 F.2d 618 (3rd Cir. 1956). The Supreme Court reversed and remanded the case for further proceedings. Kernan v. American Dredging Co., 355 U.S. 426, 78 S. Ct. 394, 2 L. Ed. 2d 382 (1958).

 On July 7, 1958, following a trial on the issue of damages, this Court, by Judge Kraft, entered judgment in favor of claimant William J. Kernan, Admr. Est. of Arthur E. Milan, in the sum of $ 37,500, and in favor of claimant John J. Meehan, Admr. Est. of Donald H. Worrell, in the sum of $ 90,000, and against petitioner American Dredging Company.

 The administrators also instituted the present actions in 1953 against Gulf Oil Corporation (Gulf), under the Pennsylvania Wrongful Death and Survival statutes. Following a trial in 1961 before Judge Wood and a jury on the issue of liability which resulted in verdicts for plaintiffs, the Court held that the evidence was insufficient to establish liability on the part of Gulf. Accordingly, Judge Wood granted Gulf's motion for judgment n.o.v., and granted, alternatively, its motion for a new trial in the event that the entry of judgment n.o.v. was reversed on appeal. Kernan v. Gulf Oil Corporation, 201 F.Supp. 117 (E.D.Pa.1961). On appeal, the Court of Appeals reversed the judgment n.o.v., but sustained the grant of a new trial. Meehan v. Gulf Oil Corporation, 312 F.2d 737 (3rd Cir. 1963).

 On remand of the record, the cases were tried on the issue of liability before Judge Kraft and a jury. Following verdicts for the defendant, the plaintiffs filed the present motions for judgment and for a new trial.

 Plaintiffs' first contention is that the verdicts were against the weight of the evidence. The evidence was so thoroughly reviewed in Judge Wood's opinion, as well as in the opinion of the Court of Appeals, on appeal, that we deem it unnecessary to review the evidence in minute detail. Moreover, the Court of Appeals indicated that the facts were for the jury. 312 F.2d 727, at 739.

 We have already stated that on the evening of November 18, 1952, the tug was proceeding downstream in the Schuylkill with a loaded scow lashed to her port side. The scow carried openflame kerosene lanterns on her port forward and aft corners. Witnesses testified that shortly after 10 o'clock, as the tug was approaching Penrose Avenue Bridge, they heard a rumbling sound as of thunder, and almost instantly the tug was engulfed in flames. Five men went over the side. Milan apparently drowned in the attempt to reach shore. No trace was ever found of Worrell.

 Gulf's refinery was located on the east side of the river, a short distance downstream from the Penrose Avenue Bridge. It is plaintiffs' theory that gasoline or other highly inflammable products escaped from Gulf's premises to form a 'slick' on the surface of the water and that the fire was caused by ignition of such substance or of the vapors therefrom. There was evidence that during a period of time preceding the fire, tankers and barges were loading and unloading gasoline and other petroleum products at Gulf's premises. There was also evidence of discrepancies between the amounts shown to have been pumped from the shore tanks and the amounts shown to have been received on board the tankers or barges. Defendant offered various explanations for these shortages. Crew members of one of these barges testified that they detected a strong odor of gas; that they turned their flashlights on the river and saw a mass of it; that 'it was all colors of the rainbow in the water'.

 An Assistant Fire Marshal of Philadelphia, who inspected the tug the day following the fire, stated that in his opinion an open flame lantern on the scow ignited a gasoline slick on the river, causing the fire.

 Plaintiffs' expert witness, in answer to a hypothetical question covering ten pages of the trial transcript, testified that in his opinion a very volatile material, such as gasoline, caused the fire, and that it came from the Gulf docks. The witness reached this conclusion on the basis of an involved series of calculations covering many pages of the transcript. He stated it as his conclusion 'that the tug and the fuel (diesel) that it carried could not possibly account for the fire that was had'.

 Defendant contended, on the other hand, that the fire originated on the tug, that its diesel fuel became ignited in some fashion, and that gasoline had no part in causing the fire. Defendant's expert witness stated in response to a hypothetical question:

 'My opinion is that the day tank overflowed and that it saturated the superstructure and that it was ignited by three probable sources of ignition; one, the galley stove that was in operation; the exhaust from the main diesel engine, and a third probable cause would be the open flame lanterns on the scow.'

 The witness discounted the possibility that the fire was caused by ignition of gasoline on the water:

 'It was just impossible to have quantities of gasoline on the water, have it spread rapidly, and have it not flash back to the source. It is incredible. It just doesn't happen.'

 The evidence was lengthy, involved and highly conflicting. In our view, the questions were clearly for the jury. Basic to the arguments on both sides, is the erroneous assumption that the jury was obliged to accept, in toto, the one version or the other. The jury was free, of course, to find any facts adequately supported by the evidence. It could have found that the fire was caused by the ignition of inflammable material in the water, but that the material did not originate at the Gulf premises; or that it was not persuaded by a fair preponderance of credible evidence what caused the fire.

 We find devoid of merit plaintiffs' contention that the verdicts were so contrary to the weight of the ...

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