241 F. 836 | 1st Cir. | 1917
Kazarian, the appellee, filed his libel February 1, 1913, against this barge, to recover for personal injuries alleged to have been received on December 26, 1912, while at work on board her as one of a number of stevedores engaged in discharging a cargo of coal at Wilkesbarre Pier, in East Providence, R. I. He alleged that through the breaking or giving way of a spike or handhold, forming part of a stanchion ladder whereon he was descending into the barge’s hold, he fell about 15 feet, struck the keelson, and was “severely and permanently injured in his back, spine, and nervous system.” He alleged that the spike or handhold was defective and insufficient, and that its condition was due to the owner’s negligence.
The libel alleged $10,000 as the amount of his damages. The usual warrant and monition issued on the same day, but by a stipulation, also that day filed, actual arrest of the barge was waived on the libelant’s behalf, provided her owner filed “a claim and stipulation in the sum o f $6,000.”
On the owner’s behalf the claim was filed February 5, 1913, and on February 18, 1913, two stipulations, with surety, one for costs in the sum of $250, the other in the sum of $6,000, entitled “stipulation for value,” and reciting that the issue of the process had been waived in consideration of the filing, besides the above claim, of—
"stipulations for costs and value, the latter in the sum of $6,000, the agreed value thereof” (i. e., said barge).
The condition expressed in the latter stipulation was that the claim ant and surety should abide by all orders and decrees of the court and pay the amount awarded by final decree. Upon the stipulation appeared the following, signed by the libelant’s proctor, and dated February 18, 1913:
“Tho value of said barge is hereby fixed for the purpose of bonding in this suit at the sum of $6,000, and the foregoing stipulation is approved as to form, amount, and sufficiency of surety.”
An answer to the libel having been filed May 31, 1913, the District Court, after a hearing upon the pleadings and evidence from both sides, on June 25, 1914, determined the question of liability in the libel-ant’s favor, and ordered the case to stand for further hearing upon the amount of damages. Such further hearing was had before the
On May 17, 1915, the libelant filed a petition asking that the claimant be ordered to furnish additional security to the amount of $14,000, and for the arrest of the barge unless such security was furnished. On November 22, 1915, the court ordered the barge arrested and held until the claimant should file a stipulation with sureties in $10,000, or until her value should be determined and her release ordered. A warrant and monition issued accordingly, and the barge was arrested by the marshal.- On December 3, 1915, the claimant filed another stipulation, also entitled “Stipulation for Value,” in the sum of $10,000, conditioned upon the payment by the claimant or surety of such amount as should be awarded by final decree, not exceeding $10,000.
The claimant had previously moved, November 20, 1915, to reopen the hearing on damages for further evidence. This motion was denied February 26, 1916, on which day the court also entered its final decree fixing the libelant’s damages at $8,000, ordering that he recover that sum, with costs, and further ordering the issue of execution against the stipulators for value on behalf of said barge, unless an appeal should be taken within 10 days, or said stipulators for value should cause the engagement of their stipulation to be performed. From said decree the claimant took this appeal.
The appellant contends that the evidence did not justify the above conclusions or any finding that the libelant’s fall and injury were due to negligence on his part as owner of the barge. We are unable, how
The claimant contends that the award of $8,000 was excessive. Regarding the libelant’s actual condition and the extent to which recovery of his capacity to work might be expected, there was conflicting expert evidence before the court. There was also evidence tending to .show that he had actually done things which, according to the opinions at the hearing of certain experts called on his behalf, he would never be able to do. The libelant, however, testified in person before the court, as did all the witnesses at the hearing on damages. Under the circumstances, nothing which the claimant has urged against the award 'would justify us in pronouncing it clearly excessive. Whether or not to reopen the hearing for further evidence, upon an application first made six months after the hearing had been closed, was clearly discretionary with the court, and its action cannot be reviewed here by assignment of error.
That the barge was within the Rhode Island district when the stipulations of 1913 were given, and also within said district when her arrest was ordered 2'A, years later, in 1915, is not disputed. Since her regular employment appears to have been in making successive trips from coal ports to the same wharf in Providence, it may be assumed
There is no suggestion that during said interval there had been any change in the barge’s ownership, or in the claimant’s position with regard to her, or that any intervening rights in favor of third parties had meanwhile accrued against her, such as might have made her arrest in 1915 involve inequitable or unjust results. The question as to the court’s right or power then to order her arrest arises, therefore, between the libelant and the barge’s owner alone; and it involves only the same considerations, and no others, w'hich would have been involved, had the question been raised by application for her arrest on the same grounds within a week or a month after the stipulations of 1913 had been given.
Though called a “stipulation for value,” the stipulation in $6,000 then given can be regarded as such only as between the parties, and because of their agreement that it might be so treated “for the purpose of bonding.” The suit was not one involving the possession or condemnation of the entire vessel, nor does the recovery sought appear to have exceeded her value. There is no suggestion that her value either in 1913 or 1915 was less than the amount of recovery allowed by the final decree. There has never been any application to have her actual value fixed by the court.
The general rule, no doubt, is that, after the release upon stipulation of a vessel arrested in an admiralty suit in rem, she cannot again be arrested in the same suit or Upon the same cause of action. Although this rule has been sometimes stated as if it admitted of no exception, that it does not absolutely preclude the court from ordering such rearrest when necessary to secure complete justice between the parties, and when no substantial right of the claimant is thereby prejudiced, seems to us sufficiently recognized. The authorities which hold “that in case of misrepresentation or fraud, or in case the order'of release was improvidently given without any appraisement or any proper knowledge of the real value of the property, it may be recalled before judgment where the ends of justice require the matter to be recon-° sidered,” appear to have been regarded by the Supreme Court as having the better reason in U. S. v. Ames, 99 U. S. 35, 42, 25 L. Ed. 295. See, also, The Wanata, 95 U. S. 600, 611, 24 L. Ed. 461; The Haytian Republic, 154 U. S. 118, 126, 14 Sup. Ct. 992, 38 L. Ed. 930; The Three Eriends, 166 U. S. 1, 68, 17 Sup. Ct. 495, 41 L. Ed. 897 (in which an order for the release on stipulation of a vessel libeled for violation of the neutrality laws was disapproved and its recall directed). We are of opinion that, under the circumstances of this case above stated, the court had discretionary power to order the arrest, or rearrest, in order to relieve the libelant against an inadvertent and mistaken agreement purporting to fix the amount of the security without an appraisal; there being no claim that the increased stipulation ordered exceeded the vessel’s value. In The Iris, 100 Fed. 104, 114, 115, 40 C. C. A. 301, this court has held it within the power of the District Court to order reduction in amount of an admiralty stipulation given to release a vessel from arrest, without appraisal, if satisfied that it was mistakenly given in an amount exceeding her true value.
We find no assignment of error, not in effect disposed of by what is said above, requiring special comment.
The decree of the District Court is affirmed, with interest, and the appellee recovers his costs of appeal.