73 F. 844 | 3rd Cir. | 1896
These two appeals are closely related, and they will be considered together.
1. The ground upon which the court below' put its refusal to make an order under Sup. Ct. Rule 53, in admiralty, requiring the respondents in the cross libel to give security and for a stay of the
2. The appeal in the suit upon the cross libel from the order refusing the application for security and slay did not operate to suspend the proceedings in the original suit, and the court committed no error in going on to final hearing therein.
3. The original libel was filed by bunch, Edye & Co., as trustees for the owners of the steamship Sophie Rickmers, upon a general average bond executed by the respondents (the appellants), who were cargo owners. With respect to the merits of (.he case, the only defense set up was that the vessel was unseaworthy. No evidence, however, was given on behalf of the respondents to sustain the allegation of unseaworthiness contained in their answer. The respondents took the position in the court below, and they insist: here, that the burden of proving seaworthiness was upon the libelants, and that they failed to sustain that burden. The court below held that the libelants’ proofs made out a.prima facie case for them; citing Railroad Co. v. Broadnax, 109 Pa. St. 432, 440, 1 Atl. 228. In the brief of the appellant’s counsel, it is admitted time that case was identical in proof with the present one. The supreme court of Pennsylvania there said:
“The execution of the bond was shown. The adjustment was jiro von to have been made in accordance with the laws and usages of the port of destination; and it cannot be doubled that the bond, with its recitals and the adjustment made pursuant thereto, constituted a prima facie case for the plaintiff. The court was right, we think, in refusing to charge the jury that the plaintiff was bound to prove the seaworthiness of the vessel, as a condition of his recovery.” " - -
It is contended by the appellants that the above-cited decision, and also the ruling of the court below in this case, are at variance with the views of the supreme court, of the United.States, as announced in the case of The Edwin I. Morrison, 153 U. S. 199, 14
We have to add, however, that the libelants’ case does not depend exclusively upon the presumption that the vessel was seaworthy when her voyage began. This record contains affirmative evidence that such was the fact. Among the exhibits found in tiie record is a copy of a report of survey of the vessel made immediately before she entered upon this voyage, which sets forth that “the ship was then tight and in seaworthy condition.” The appellants, indeed, in a supplemental brief furnished us since the oral argument, assert that this paper was inadmissible, and in fact was not in evidence in the court below, and that it ought not to be considered, here. But we are not at liberty to listen to this suggestion; for not only doeá rule 12 of this court forbid the allow-ance of the objection now made to the exhibit, but, by stipulation of counsel, this document was made part of the record' upon this appeal.
The ordel appealed from and the decree in favor of the libelants are affirmed.