244 F. 95 | 6th Cir. | 1917
The steamer Benjamin Noble and her entire crew and cargo were lost on Lake Superior in April, 1914. The Cambria Steel Company, as owner of the cargo, filed two libels in personam against the owner of the Noble, the Capitol Transportation Company, one in the District Court of the United States for the Eastern District of Pennsylvania, and the other in the District Court of the United States for the Northern District of Illinois, to recover the value of the cargo' so lost. Later the Capitol Transportation Company, appellant herein, filed libel and petition in the court below, praying limitation of liability, and claiming under admiralty rule 56 (29 Sup. Ct. xlvi) the right to contest its liability to any extent whatever. Appellant, in lieu of appraisal and bond, elected to transfer all that was recovered from the Noble, to wit, a lifeboat and spare wheel, and its interest in the wreck if the same should be salved. v Monition having issued, the Cambria Steel Company, appellee herein, filed its claim •against appellant for loss of cargo, consisting of 2,9518‘40/2240 tons, of steel rails there stated to be of the value of $96,418.85. On the same •day appellee filed answer setting up among other things: Specific denial that appellant is entitled, to limitation of liability; a contract whereby appellant agreed to transport and carry for appellee in one shipment a cargo of 3,000 tons of steel rails from the port of Conneaut, Ohio, to the port of Superior, Wis., at 80 cents per gross ton, the dangers of navigation, fire and collision excepted; and allegations to the effect that appellant with knowledge of the load the steamship could safely carry, but without any knowledge in that behalf on the part of appellee, offered to furnish the steamer Noble for the service in
We see no sufficient reason to disturb this finding unless as counsel claim it was reached through erroneous application of the law. We cannot think it necessary to refer to all the criticisms of counsel; but we may, for illustration, refer to some:
“To permit the stipulations of tliis bill of lading to cut down tUq statutory requirements of section 2 of the Harter Act would be to allow the parties to enforce a contract in violation of the positive terms of the statute.”
It is, however, urged that the Noble was not a common carrier, but a private carrier, since the whole cargo belonged to appellee and the boat was not running on regular routes nor held out" as a common carrier ; and consequently that she was not subj ect to the rule pointed out touching the burden of proof. Conceding, though it is not necessary to decide, that the Noble was a private carrier, the position of appellant is not changed; for, as we have seen, the burden of proof was not cast upon appellant. Furthermore, we see no reason for distinction between a private carrier and a common carrier as respects the question or the proofs as to seaworthiness, since the obligation of each to
“The Mills Transportation Company, being a coloration, could act only through some agency. MoMorran was the manager, and was vested with authority to make such contracts as this in behalf of the owner of the vessel, and the contract was the personal contract of the corporation, not in consequence of any principle peculiar to the maritime law, hut by virtue of the common-law rules of agency.”
It is insisted, however, that even this is not enough to justify denial of limitation. Admittedly this view is opposed to the decision of this court in the Great Lakes Towing Case. This is true also of the decision in The Republic, 61 Fed. 109, 113, 9 C. C. A. 386 (C. C. A. 2); in The Annie Faxton, 75 Fed. 312, 313, 21 C. C. A. 366 (C. C. A. 9); in Benner Line v. Pendleton, 217 Fed. 497, 506, 133 C. C. A. 349 (C. C. A. 2); and in The Julia Luckenbach, 235 Fed. 388, 397, 148 C. C. A. 650 (C. C. A. 2), reversing decision below; also in Gokey v. Fort (D. C.) 44 Fed. 364, 365; Rudolf v. Brown (D. C.) 137 Fed. 106, 108, 109; and the same rule is recognized, though perhaps this was not necessary, in the decision of Richardson v. Harmon, 222 U. S. 96, 103 to 106, 32 Sup. Ct. 27, 56 L. Ed. 110, and in Butler v. Boston Steamship Co., 130 U. S. 527, 553, et seq., 9 Sup. Ct. 612, 32 L. Ed. 1017. It is said that these decisions arei erroneous as regards the question of limitation, and consequently that the decision in tire Great Lakes Towing Case should be reconsidered. The theory of this feature of the argument is that section 18 of Act June 26, 1884, c. 121, 23 Stat. 57 (Comp. St. 1916, § 8028), operated to.repeal and supplant section 3 of Act March 3, 1851, c. 43, limiting the liability of shipowners (9 Stat. 635; Rev. Stat. § 4283 [Comp. St. 1916, § 8021]); in other words, that the purpose of section 18 was at least to eliminate from old section 3 the “privity or knowledge” clause. The same contention was made in this court in support of a petition for rehearing in the Great Lakes Towing Case and upon substantially the same argument as the one presented here; but rehearing was denied. It is stated that this question is pending in the Supreme Court in the case of Ben-ner Line v. Pendleton, supra; but we are disposed to follow the decision in the Great Lakes Towing Case.
(4) Strenuous objection is made to the trial judge’s estimate of the weight that should be accorded to some of the evidence concerning the overloading of the Noble, and of the credibility of some of the witnesses upon that subject and upon still other matters involved in the-controversy. We need not recount all the objections. Counsel on both sides were alert and persistent in bringing out all facts ánd circumstances of seeming relevancy to the issues, and the court indulged counsel in this course to a liberal degree. At the close of the trial and when the demeanor of the witnesses and their testimony were fresh in mind, the judge delivered an oral opinion which shows that he had a full appreciation of the testimony. This opinion was subsequently reduced to writing and, apart from the introduction of citations, without change of any importance. In our view of the evidence we cannot accept the claims of appellant that some of the conclusions of fact reached by the trial judge are unsupported by the testimony, much less that they are opposed to the testimony. This would be to accept part of the testi
The decree must be affirmed.