81 F. 227 | 3rd Cir. | 1897
This is an appeal from a decree in admiralty. We are all convinced, upon separate consideration of the evidence, of the correctness of the conclusions of the learned judge of the district court upon every material question of fact on which he based his decision.
It is impossible to fix with precision the spot at which the Armonía was anchored, bat it is not requisite to do so. It is enough to say, and of this we have no doubt, that she was not, as the appellants
The contradictory statements of the witnesses as to whether the Armonia had an anchor light up at the time of the collision fully justify the remark of the learned judge below, “that it is difficult to avoid the conclusion that some of them have intentionally falsified.” The weight of the evidence is, however, with the appellee, and our deduction therefrom — that the Armonia did, at the time of the collision, have an anchor light set and burning; — is accepted with especial confidence because the answer as originally filed admits that there was such light, and objects only that it was not sufficiently bright. It is true that this answer was not verified by the respondents, but by their proctor, but it also appears that it was based upon “statements made by the pilot and officers of the steamship Bedruth”; and it is a quite significant circumstance that the statement which was thus made accords with the evidence for the appellee as to the nature of the complaint which was made upon the same subject immediately after the occurrence of the accident. The amended answer was also prepared upon information derived from the pilot and others who were on the deck of the Bedruth, and we cannot avoid the conclusion that its allegation that the Armonia did not have up an anchor light is less likely to be correct than the circumstantial admission of more than a year before, that there was such a light.
By leave of this court, the appellants, after the record had been brought up, assigned further error as follows:
“(a) For that the court omitted to find and hold that the only negligence, if any, of those on hoard the Bedruth, which contributed to the collision, was that of a compulsory pilot.
“(b) For that the court omitted to find and hold that the respondents and appellants, in an action in personam, were not liable for damages caused by the'negligence of a pilot compulsorily employed.”
The appellants complain of the action of the court below in its allowance of certain items as damages, and of its disposition of the question of costs. We have examined these several objections in detail, but find no reason for rejecting the report of the commissioner, which was confirmed by the district court. The conclusions reached by him were in every instance the result of careful and intelligent investigation, and we have not been convinced that he committed any error of fact or in law, to the injury of the appellants. The ground of exception which has seemed to us to be most serious is that there was no competent proof of several of the items which were sustained. The libelant, as to the items referred to, produced the bills claimed to have been paid, and witnesses who testified that they had paid them. He did not call those to whom payment had been made, but we are of opinion that it was not, for the purpose of making out a prima facie case, requisite for him to do so. The course pursued accords with the decision of the circuit court in The America, 4 Fed. 337, where (the evidence being similar to that received in this instance) Judge McKennan said: “This was primary proof of the expenditure, of its purpose and its necessity, and, unless answered by counter proof, was altogether sufficient to justify the allowance of such payments.” The amount allowed for delay does not seem to be excessive. ' The demurrage rate fixed by the charter party under which the Armonía was then sailing was shown, and there was evidence that this was also- the market rate, as well as the customary rate of this vessel. The commissioner declined to adopt the contention of either party. He thought the libelant asked too much, and the respondent conceded too little. In this he was clearly right; but it was not pretended that no allowance whatever should be made, and the evidence, at least, does not indicate that the ¡sum which he allowed was greater than the amount of the loss actually sustained in consequence of the detention occasioned by the collision, and for this the libelant is entitled to be compensated. We therefore entirely agree with the learned judge of the district court in thinking that thé conclusion reached by the commissioner ought not to- be disturbed. The decree is affirmed.