*1 testimony repeated symptoms doctor’s he re- dressing, and required arm that had ferred appellee other witness- had and plaster casts had arm in had the es does necessarily error. had cure the doctors, had who treated “Any one familiar trial of with the cases was he still care, that and their him under knows that the history patient, testi- that at arm from the drainage having the physician, frequently fied to much at not united had time that bones and impressive history more giv- arm, than the that same and the fractured area en on plaintiff the stand himself.” of motion point there was still small Nickle, United States at which occurred bones from the fractured page appellee’s 374. Whether view short- deformed and that arm was concerning subjective his testimony symp- had stated he He er than arm. the other reception toms chest, of this evidence over over his pain left half of over the appellant’s objection, ap- no error had he He told me had left ribs. lower pearing, require reversal, ribs, we need he his some fractures of not decide. evidence inadmissi- back lower complained pain over his ble, joint and in the event of a trial the new call lumbosacral region me is entitled have it He told excluded. part the back. the lower he still that he headaches and had had Reversed remanded with directions headaches, that had he having some grant new trial. spell, dizzy that he an occasional scar over deformity from a healed face; he had been un- side of his left he hurt.
able to work since do have the answer
“Mr. Rietz: ask Honor, grounds out Your
stricken hearsay.” incompetent it is The motion denied. GLOBE SOLVENTS CO. v. THE on his ex- Later the doctor testified CALIFORNIA. objec- appellee found no amination he No. 9221. appellee symptoms suf- showing Appeals, Circuit Third region pain in the lower of his back fered or that from headaches or he suffered Argued 18, Feb. 1947. gave opinion spells. But as his dizzy he Reargued 17, Dec. appellee pain his if suffered if claimed suffer and he back which he April 21, Decided dizzy headaches suffered from the spells, injury he had to his .received a severe concussion of the brain. back and did not clear doctor
Since it appellee purpose examine injury but a cure of his effecting witness,
qualify himself a favorable the history
doctor’s appellee given him .inadmis- hearsay. United States
sible because 372, 374; Nickle, Cir., 60 London Woelfle, & Accident Co. v.
Guarantee 325, 335; Meaney Cir., 83 United
States, 538, A.L.R.
973, referred to in the Annota- 977; page Strommen v. Prudential tion Co., 381, Minn. Insurance N.W. ,189 632, Bliss Swift Minn. N.W. fact that the *2 Krusen, Byrne, Jr., Thomas E. Pa., Philadelphia, for Shaw, all of
Evans appellant. Fried- Edwyn Silberberg, Albert H. H. Philadelphia, Zion,
man P. and Peter all of Pa., appellee. GOODRICH, BIGGS, Mc-
Before
LAUGHLIN, O’CONNELL,
KALOD
FOLLMER,
NER,
Judges,
Circuit
Judge.
District
FOLLMER,
Judge.
District
Appellee
Rem the
instituted a
Libel
seeking
to recover for dam-
below
ages
lacquer
shipped
solvent
Philadelphia, Pennsylvania,
to San
ship-
portion of
Diego,
California.
involved1
ment here
consisted of seven
cases,
containing
each
hundred seven
Appellee shipped
gallon cans.
the sev-
five
solvent, having
en hundred
first
thereto a
Label” thus
attached
“Red
automatically classifying
as in-
the same
Receipt
same
flammable. The Dock
shows
shipment
Label”
as a “Red
received
Appellee
arrange-
cargo.2
special
made no
specific
concerning,
no
and exacted
ments
requirements
shipment.
It was
unquestionably
cargo.3
a deck
non-negotiable
issued a
provision
containing
bill of
on Deck
of Damage
“Loaded
Owners Risk
O’CONNELL,
Judge,
dissenting.
Loss.”
concedes that “the
shipment
fifty-one
“Dangerous
1 The
also included
com-
include such
acids, highly
drums
similar nature not
in
here
modities'as
inflam-
corrosive
testimony involving
substances,
as the
volved
and other materials
mable
might damage
method of
entire
vessel and
refers thereto.
if stowed underdeck. Articles of
requirements
description
to the use of
must
carried on
‘Regulations
“Red Label”
containers of inflammable
listed in
deck are
Govern-
liquids
Sup
Transportation,
Storage,
set
forth
Cumulative
Reg.
Stowage
plement
Explosive
Danger-
Code of
Fed.
U.
or Other
(1).
S.,
(g)
Vessels,’
Title
146.05-15
Articles on
See.
Board
ous
issued
3 Leeming
Ship Stowage”
Inspection
the Bureau of Marine
Dept.
Commerce), Page 131,
(U.
Navigation.”
S.
says:
heavy weather
ship
ran into some
accordance
placing
cargo on deck was
Te-
Gulf of
Carribbean and
and was
regulations.”4
Federal
with
huantepec
shipped
Moreover,
considerable
by at-
per
negligent act
se.
on deck to
of two to seven
no
making
“Red Label” and
taching the
*3
its be-
special
arrangements it assented
great
a
Upon delivery
that
was
it
found
so carried.
ing
“pin-
leaking
many
due to
of the
were
cans
was
This
holing”
corrosion.
and
high on both
from rust
three
The
were stowed
cases
tier.
bottom
and not
to cans
confined
the drums
of
between
the deck
sides
of the cases
that some
There was evidence
midship house on
of the
bulkhead
expres-
Appellee’s surveyor
layers
were
of one
stained.
dunnage consisting of three
due to
layer
opinion
staining
of
was
first
sed
dunnage
The
inch
boards.
spaced
shipment,
athwartships,
dunnage
wetting.
was laid
the total
salt
Of
there
apart
about ten
so that in
plus
inches
can or
eight
cans)
one
(sixteen
off.5 The
would run
was water there it
eighty-five gallons
a
were
total of
layers
dunnage were
second and third
of
ninety-eight cases
hundred
sound. Six
the en
It covered
laid fore and aft solid.
eighty gallons)
(six thousand nine hundred
stowed.
tire
the cases Were
area
plus
required
to new cans.
one can
transfer
protected by
The
was
outboard side
transferring to
leakage
The
loss
end,
high,
planks, on
three
by twelve inch
thirty-two and
six
was
hundred
new cans
supported
and shored
by four
four’s
salvaged gallonage
one-half gallons with
one
On
inboard side
gunwale
bars.
thirty-seven
hundred
of six thousand four
cribbing
used. This
inch boards were
appear
gallons;
it
not
and one-half
does
protective
formed
wall “from the deck
leakage
distributed
how
loss was
*At
high
as the cases.”6
or transfer.
stowed,
Philadelphia,
this was cov
findings
certain
below made
tarpaulins
good
all over with
with
ered
pertinent
is “23. Re-
of which the most
layer
of
the en
across them and
spondent
voyage,
the course of the
during
securely
tire
with chains.
lashed
knowledge
despite
that the seas washed
Norfolk,
days
upon arriving
Two
later
cargo,
neglected
provide dun-
failed and
precaution,
as an additional
chains
height
nage
sufficient to raise
removed,
top dunnage
twelve
of
were
rolls
depth
of the sea wash.” On
above the
procured
.paper
tar
laid over the
trial
of this
court con-
basis
tarpaulin,
layer
top of the
“first
’thwart-
consisting
cluded that there was
ships
layer
and the second
laid fore and
provide
the carrier
failure of
of the
aft,”
layers
three
boards
adequate dunnage
circumstanc-
under the
paper
over
tar
entire
was
negligence upon
sole
es.9 This
was
again securely lashed
chains.
with
judgment
pred-
was
which the
also
Master
testified he had found this “the
The court referred to the fact that
icated.
cargo,
protection
any
best
either
ship,
vessel,
“deep
deck
was
flush
cargo holds
on deck.”
or
dix
the U.
John
dix
nersen,
California
sea to wash water
the S. S. California
6 Deposition
“20. The
5 Deposition
“19.
For
Deposition
Some
27a,
27a;
Supplement
Meissnersen, Appendix
S.,
It would not
pertinent
Appendix
Title
Master
deposition
pertinent
Chief
regulations
Captain
Captain
59a.
Sec. 146.21-4-5-100.
Code of Fed.
require
of 2-7
Mate
knowledge
findings
Peters, Appen-
Chief Mate
Peters,
of Chief Mate
56a.
of -the S. S.
see Cumula
John
much of a
Reg.
Appen
are:
Meiss-
lant
would
spondent
washings.
unforeseen
inches.
S.
dinary
expected.”
“21. The
“22.
S.
vessel
get
California
not take
could
In the course
violent
water on deck
being
storms
on deck
correctly found that
subjected
much
action
deep
transported
reasonably
or
owned
to a
subject
sea to
its
proper.
frequent
depth
travel
elements
extraor-
of 2-7
Libel-
load-
been
over
Re-
any
loaded,”
Carriage
that ditions
nothing
but there
to show
does state
improper.10
to be
Sea
be deemed
“shall
incorporated
provides
It
herein.”
further
ports
shipment being
This
between
shall be
“nothing herein contained
and,
have al
United
States.11
deemed a surrender
the Carrier of
indicated,
deck,12
ready
being properly on
rights
its
or
immunities
an in-
U.S.
of Goods
Sea
responsibilities
crease of
its
seq.,
reasons,
C.A.
et
for both
specifi-
liabilities under
It also
said Act.”
ordinarily
apply.
appeal
briefs
cally
provides
where the
parties
Only
both
considered it.13
govern,
“before the
shall
include
printed
side of the bill
*4
discharged
they
loaded
are
are
after
on
appendix
Appellant’s
in the
the
brief.14
the
extent
in-
from
vessel” and to that
Appellant’s
Because of a
brief
statement
in
coverage
this Act17
cludes under
the
of
Carriage
indicating
incorporation
of the
been within
what would have otherwise
by
by
lading
of Goods
Sea Act in
bill
the
of
Harter Act.18 How-
provisions
the
reference,15
agreed
it
at
the time of
incorporated
ever,
in the bill of
the Act as
portion
the
remaining
the
of
hearing
ship-
submitted,
specifically excepts on deck
lading
might
the
which has
exhibit
be
Furthermore,
of1
the
printed
ments.19
Clause
been done. Clause 1 of the
con-
loss
lieve the
using
for
full
gence
into
or
be described as
ly
cause
Harter
it would
of the
proofs
tract
ed
gence
tions; but,
alia:
tions
visions
supra, Page 77, says:
the term
riage
Appellant’s
13Appellee’s brief, Page 5, states, inter
“
11 46 U.S.C.A. 1300.
“Respondent
“The
“
10 Leeming
load more
constructed
Lading
loss’)
on deck at owners’ risk
*
**
statement,
12 46
scantling
“Exhibit —Bill an extended discussion
Skipsea,
of
to relieve a
of Goods
spar, awning,
* *
is void as
of
U.S.C.A.
in the
legend
Act,
even
Libellant which
the
damage arising
be
*
‘flush
parties
referred to above did
their
incorporated
liable
in
Full-scantling steamers,
type described,
deeply
though
Respondent.
care
vessels without
on
brief,
case,
vessels,
the
stowed
U.S.C.A. 190.”
admits at the outset
deck’
a flush-deck vessel.
§
§
strength,
the bill
for
strictly
1301(c).
may
Sea
ship
excepted
against
absence
than other more
or
caused
is
Page
from its
Lading,”
providing
oh deck. A con
from
applicable
shelter deck
printed
§
were,
of
from its
technical
Ship Stowage,”
are
Without
public
of
lading (‘load
from its
by
a vessel
liability
reference.”
of
deck erec-
deck erec-
clear that
permitted
Appendix
contained
form
terms
duty
damage
policy.
sense,
goods
negli
negli-
light-
going
Car-
hav-
pro-
may
Bill
for
be-
re
of
govern
whatsoever,
sel and
be
in,
merchandise,
deemed
goods
Waterman
stated
bilities under said Act. The
Sea
period
fect
sions shall
“The term
Sea
pacity
stated as
deck between
ery
to the
rier.”
crease
“The
charged
States
carried.”
shall
ed
their bill of
riage
otherwise
States, approved
or
“1. This
Sec,
Sec.
of
in the actual
subject
Act,
Carrier shall not
be
term
they
of
goods occurring
are
whatsoever for
of
from the
in
before the
on to
misdelivery,
its
Of course the
ing.
also found that
carriage
the court
“It
losses from
on deck
But
risk
require much' of a sea to
proper would
wash
only
they
far
occurred
not
under
water,
deck
on
stowage. This is an element of seaworthi
26
inches,”30
theory thereby
2-7
proper dunnage
on
an element
ness
negligence
stowage.27
Idefjord,
adopted would
In The
have
wool,
have
particularly
less
than would
bales of
have had
cargo
might
damage by
above
susceptible
wetting,
raised the
sea water
expected to wash the deck
placed
above
deck
be
reasonably
three feet
tion
Mass.
671,
765, 771.
114 F.2d
192.
Supp. -559, 562, affirming Cir.,
(2) (c);
(The
20
[22]
23
[21]
Sea Act of
A.
Harter
Davidson et
Sec.
184 Mass.
reversed
Carriso),
certiorari
157,
J.
The
Idefjord, D.C.,
4(2)
80
Tower Co. v.
Wildwood,
Lafcomo, D.C.N.Y.,
N.E. 809.
on other
(c)
472,
9
Pioneer
1936,
al.
denied
Cir.,
Sec.
v. Flood
69
30
46 U.S.C.A.
3,
N.E.
Import Corpora
9
grounds,
Black Diamond
F.2d
46
Southern Pac.
Cir.,
F.Supp.
348, Id.,
Bros.,
U.S.C.A.
279.
133
49 F.
et aL
1304
667,
195
§
U.S.O.A.
Barber, D.C., 124 F.
Lafcomo, Cir.,
Calmar
Florinda, D.C., 22 F.2d
Lines v.
U.S.
Cir.,
pez, 2
28
27
26
30 Appendix
25 Appellant’s
F.Supp.
The
The
Pioneer
See also
700,
S. S.
Pioneer
Indien,
64 S.Ct.
Otho,
2
F.
192, Harter
203,
Import
534;
Thomas
Corporation, D.C.E.D.Pa.,
F.
brief, Page
1944 A.M.C.
138
9
Import Corporation,
523,
Cir.,
The
F.2d 907.
Corporation
Assuming that the lower court’s
findings fact cause of evidence, supported
were not can
we dismiss cause without a stowage during Philadelphia
voyage from Norfolk circumstances, in the
sufficient under
light of the action taken carrier at port? latter prepared say a matter of am
fact negli- the carrier was free
gence cargo prior of this Norfolk,
its arrival at nor a matter necessary
law that the deemed not, under the cir- court below
cumstances, efficiently prevented
damage which the sustained.1 *7 the judgment reversal of majority below this court it unnecessary rendered consider question by appellant,
the second raised
whether was to award interest to
appellee. however, state, I do wish to allegations appellant’s concerning
question would have warranted attention.
A delay years bring- of more than three trial, which delay the libel to was at point dismiss, the basis motion to
is alleged solely to have been attributable appellee. granting While the or denial admiralty normally interest
rests within the sound discretion court, trial the aforementioned circum- give
stances reason for doubt whether such wisely exercised
discretion was in the case
at bar. stated,
For the reasons that the believe below,
judgment of exclusive interest,
the award of should affirmed.. perfect shape, layer top the same The chief mate of cases asserted that “the put them on.”