117 F. 807 | 6th Cir. | 1902
These cases were heard together, and originated in a cause in admiralty in the district court of the United States for the Eastern district of Michigan. In No. 1,028 an appeal was taken by Chisholm and others, in whose favor the court had decided upon the merits of the case. ' The libel was filed in the first case (No. 983) by E. Hall against the owners of- the steamer J. H. Wade, and was dismissed upon final hearing. The case was heard in March, 1899. The district judge stated his intention to dismiss the libel, but did not make or sign any order or decree. The clerk of the court, however, supposing the order to have been finally made, entered the same upon the journal of .that day. Counsel for the libelant gave notice at the time of their intention to appeal, and, the testimony being voluminous, negotiations were entered into between counsel for the-purpose of reducing the expense of printing the record, and stipulations were agreed upon as to printing the testimony in the case. Pending these negotiations, the time for appeal had expired, and it was then disclosed for the first time that the clerk had entered the decree as of March 4th. Thereupon the libel-ant filed a petition for leave to file a bill of review containing the statements outlined above, the sixth paragraph thereof being as follows :
“Tour petitioner further represents that he was absolutely without knowledge of the entering of said order dismissing said libel, as were his proctors, as he is informed and believes, and as appears from the affidavit of Timothy E. Tarsney, hereto attached, as aforesaid; and that he was not, or were his proctors, as he was informed and believes, apprised or notified by any direction of the said court to the clerk thereof to enter or cause to be entered the alleged order or decree dismissing the libel; and that the said alleged order or decree was entered without notice to, or knowledge of, the proctors for the respondents therein, as appears from the copies of correspondence attached to the affidavit of the said Tarsney, ás aforesaid; that the journal of said court for the said day of March 4, A. D. 1899,’ was not signed by the judge thereof, as your petitioner is informed and believes, contrary to the usual custom; and your petitioner is informed and believes that said order or - decree was entered upon the journal of said court by the clerk thereof inadvertently, while the said clerk was laboring under a misapprehension, to wit, that the court had pronounced a final decree in said cause, when, as a matter of fact, no such final pronouncement was made, but, as your petitioner is informed and believes, it was orally announced by said court that he, said court, would dismiss said libel, implying an intention to dismiss it at some future time, not giving expression to a judicial act to take immediate effect as of said date, with a direction to said clerk to enter the same upon the journal of said court.”
“But upon the most careful reflection I have been able to bestow upon it, the result to which I have brought my mind is that, if the district court has a right to entertain a libel of review in any case, it must be limited to very special eases, and either where no appeal by law lies, because the matter is less in value than is required by law to justify an appeal, or the proper time for appeal is passed, and the decree remains unexecuted, or where there is clear error in matter at law, or, if not, where the decree has been obtained by fraud, or where new facts, changing the entire merits, have been discovered since the decree was passed.”
Betts’ Adm., quoted by Judge Thomas in the case of The Columbia, supra, states the rule as follows:
“The power, however, will only be exercised by the court when no relief by appeal can be had; and the declaration of the court of last resort upon the subject imports that in this country courts of admiralty cannot, in any case, sustain such bill filed subsequent to the term in which the decision is rendered.”
In the case of The New England, supra, Judge Story quotes with approval the language of Dord Stowell to the effect that mere negligence or oversight would not be sufficient, but a direct case of fraud, or something equivalent to it, must be made out. This view was reached by Mr. Justice Davis while upon the circuit. Car Co. v. Hopkins, 4 Biss. 51, Fed. Cas. No. 10,334. In the circuit court of appeals, Ninth circuit, Munks v. Jackson, 13 C. C. A. 641, 66 Fed. 571, relief was granted by bill of review. Although the case did not show actual fraud, yet the facts were held to warrant the relief sought by bill of review, within the sound discretion of the court, and under
We think the reasoning of these authorities establishes that a court of admiralty may entertain a libel of review to correct its decree after the expiration of the term, where the petitioner is shown to be free from fraud or negligence in the matter, and the entering of the decree shows such fraud, or its equivalent, in effect, upon the rights of the petitioner, as to require the remedial action of the court upon principles of justice. In the present case the law gives to the libelant the right to have his case reviewed by appellate proceedings, seasonably taken after the entering of the decree. It was not understood by the judge who heard the case, or by the counsel, that any final decision had been reached or that any entry would be made on March 4th. Counsel were not aware for some time that the clerk inadvertently entered the decree upon the journal. Upon discovering this fact, the libel in review was promptly filed. While there is no claim of actual' fraud in this matter, to permit it to conclude the privilege of the party to appeal would have the same effect upon his rights as would the entry of a decree from improper motives. The record was voluminous, and the parties were proceeding to settle it with a view to reducing the cost of printing, when, unknown to them, the entry was made by the clerk. No laches could be charged to the libelant. Under such circumstances, we think the court, exercising a sound discretion, and in the interests of justice, many entertain a libel in review after the term, with a view to setting aside the decree inadvertently entered, and re-enter the same in the manner and at the time directed by the court.
We find no error in the action of the district court in this regard.
Case No. 983 presents the case upon its merits. The libel was filed by the owner of a certain raft of logs for damages alleged to have been sustained by the improper handling of the steamer J. H. Wade, resulting in a collision with the raft, and thereby damaging the same, and causing the loss of a large number of logs. The collision occurred about 6 o’clock in the morning of June 18, 1895, at a point in the St. Clair river where.the river makes a sharp bend. The raft was a large one, being at the widest point perhaps 250 feet wide, and being some 2,000 feet long. The raft was in charge of three tugs; the Protector, the largest tug, was ahead, to tow and guide the raft, having out some 200 feet of line. The Parker, a smaller tug, was astern, to swing that end of the raft, being headed up stream, the tow being headed down stream. The Boynton, a third tug, at the time of the collision was on the American side of the river, with her bow against the raft, pushing toward the Canadian shore. The Wade, bound down, sighted the raft, and there was an interchange of signals, about which there is a conflict in the testimony. There is no dispute, however, that when the Wade attempted to pass the raft on the American shore there was ample space to justify her in coming down abreast of the raft, and the witnesses for the libelant do not seem to complain so much of the Wade for coming down, as for her failure to check her speed sufficiently to have the vessel under control before she ran into the raft. The testimony shows that when the
On the other hand, we are not satisfied that the navigators of the raft were free from negligence in the management of the tow. The taking of such rafts through such places as this bend in the St. Clair river requires a good deal of skill ánd management. In turning the bend, the raft appeared to the witness on the shore to make a wedge-like appearance from his point of view. Undoubtedly the end of the raft was very near to the American shore, and the testimony discloses that the Wade, coming down and attempting to pass, made it the duty of the master of the Protector to do all that could be done to get the head of the raft away from the American shore, so as to permit the passage of the Wade. Maines, engineer on the Kitty Haight, which had come alongside the Protector, for the purpose of obtaining employment, to assist in the handling of the tow, testified that he asked the pilot of the Protector “to go ahead, and let the Wade out,” and he answered that he “guessed it was all right; he would go slow, and let the raft drift around with the current.” Another witness (the master of the Kitty Haight) testified that the Protector was right ahead of the raft, and not making any particular effort to get the head of the raft around. From this view of the situation, and from other facts shown in the record, we cannot exonerate the managers of the raft from blame in failing to swing the head of the raft out of the way of the Wade, or at least in attempting so to do. We regard this negligence as directly contributing to the injury. We reach the conclusion that the collision was the result of the negligence of both. parties in the manner pointed out, and that the damages should be equally, divided between them.
The district judge dismissed the libel without filing an opinion, from which we are left to infer that he regarded the managers of the raft solely to blame for the collision. Reaching the conclusion that both parties were at fault, the decree below will be modified, and the damages and costs equally divided between the parties.
On Petition for Rehearing.
(October 7, 1902.)
We have carefully examined the grounds alleged for a rehearing in the petition and brief filed by the learned counsel for the appellees. The petition is based largely upon the proposition that the court found with the appellees as to the allegations of the libel concerning the steamer Wade’s rate of speed at and before the collision. We reached the conclusion upon the hearing that, while the Wade was not running at a high and unchecked rate of speed to the extent averred
“This court has repeatedly held the fault, and even the gross fault, of one vessel does not absolve the other from the use of such precautions as good judgment and accomplished seamanship require.”
It is strenuously urged that when she took the sheer the Wade was in extremis; and, it being the fault of the tugs towing the raft that placed her in that situation, no fault can be imputed to her master for not acting differently than he did at the time. Counsel say: “The Wade, unable to withdraw, was proceeding at the lowest speed either permissible or possible. Her master, who died before the trial, was in extremis by every definition and intendment of that doctrine,”—citing authorities. The rule is well settled that a master act
It is also argued that the case was decided upon issues not made in the pleadings in the court below. We cannot assent to this view. The libel was ample to warrant the finding that the Wade was running at too high rate of speed at and before the time of the collision. Pending the trial, a' motion was made to amend the libel so as to aver that the Wade should have stopped before the collision. It is true, the appellees objected to this amendment. Nevertheless it was granted, as it was within the discretionary power of the trial judge to do. But we do not put the case on the absolute necessity of stopping the Wade. What we hold is that, when it became apparent that the danger of collision was imminent, even though the situation was brought about by the negligence of the navigators of the raft, it became the duty of those in charge of the Wade to abate her speed to such a degree as would prevent the danger of collision, instead of going ahead at such a rate of speed as to send the Wade at the time of the sheer against the raft with a good deal of force. We cannot avoid the conclusion reached at the hearing that, notwithstanding the negligence of the tugs, the Wade, by the exercise of due diligence, might have avoided this injury after the risk of collision became apparent.
Finding both parties at fault, we think the decree dividing the damages equally between the two vessels was just, and the rehearing will be denied.
1. See Admiralty, vol. 1, Cent. Dig. §§ 677, 681.