# Mississippi Shipping Co., Inc., Claimant-Appellant v. Zander and Company, Inc., Libellants-Appellees

> Court of Appeals for the Fifth Circuit · November 23, 1959 · 270 F.2d 345

URL: https://www.frixlaw.com/law-library/cases/9446990

## Case

- **Full name:** MISSISSIPPI SHIPPING CO., Inc., Claimant-Appellant, v. ZANDER AND COMPANY, Inc., Et Al., Libellants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** November 23, 1959
- **Citations:** 270 F.2d 345
- **Precedential status:** Published
- **Opinion:** Dissent by Hutcheson
- **Judges:** Hutcheson, Tuttle, Brown
- **Cited by:** 15 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Vacated by J. Aron & Co. v. Mississippi Shipping Co., 361 U.S. 115 (1959).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9446990

## Opinion text

HUTCHESON, Circuit Judge
(dissenting) .
A careful consideration, in the light of the pleadings, the opening statements of counsel, and the evidence which was substantially not in dispute, of the majority’s sweeping out of hand rejection of the district judge’s clearly, precisely, and, I think, correctly stated findings and conclusions, has left me with the firm conviction that it is not the district judge who has been misled by able and earnest briefing, suggestion, and argumentation, but the majority, and that, on this record, it is this court’s clear duty not to reverse but to affirm the judgment.
Fully realizing that, except as my reasons for making my choice commend themselves to reasonable and informed minds, my statement that I agree with the district judge adds nothing to his discredited and rejected findings, subtracts nothing from those of the majority, which in turn I reject as unwarranted and ill-advised in law, I shall, as briefly and succinctly as I can, and with as few weasel words as may be, state my reasons for my fear, indeed my firm belief, that the opinion of the majority is based on such a “highly artificial approach” to the construction of the Carriage of Goods by Sea Act as to violate with respect to it the basic principles of statutory construction, nowhere better stated than in Heydon’s case. 1
*354 It is, therefore, impossible for me to accept the conclusion of the majority that the findings and conclusions of the district judge must be rejected out of hand as clearly erroneous, and that this court, entirely uninfluenced by them, can subject the record to a substantially de novo consideration and analysis, and based thereon, make contrary findings of its own.
It seems plain to me, on the contrary, that the facts as facts are by and large undisputed, and that, where they are not, they fully support the findings of the district judge. It is clear, too, I think, that where the findings are in part concerned with inferences from facts, there is a sufficient, indeed a very strong case for the fact findings and conclusions of the district judge, that there was negligence in handling the ship in connection with the undocking (l) in not making an entry in the log of the occurrence of striking the dock with great and unusual force and (2) in not instituting an inquiry before departure from the port as to its effect, upon the seaworthiness of the vessel, and the care and protection of the cargo.
I must confess that when I come to consider what I regard as the crux of the ease, the legal situation at Santos, under the Carriage of Goods by Seas Act, 46 U.S.C.A. §§ 1300-1315 , and to state what I believe to be the law of the case, I find the situation most unsatisfactory. This is not because I have difficulty in concluding on principle what the decision should be. It is because, and only because, the controlling factor here is the correct construction of the applicable statute and there is no controlling decision precisely in point with the facts of the case. In short, neither the counsel, the district judge, nor the majority has been able to point to a single authoritative decision on facts like these, and I have found none for myself. The district judge, having found and held, upon the undisputed evidence, that the ship was rendered unseaworthy by the collision with the dock, and, with ample support in the evidence that the carrier had not exercised due diligence to make it seaworthy, disposed of the case with confidence as a case of liability under Sections-3 and 4(1) of the Act, while the majority, of the view that, once maneuvering to depart the port had begun, what occurred thereafter to render the ship unseaworthy and what was done about it was of no moment because, by Sec. 4(2) (a), 2 carrier and ship were as completely exempted from liability as though the injury to the ship had occurred at sea.
For myself, I think it clear that the case may not be decided by how many lines had or had not been cast off but only by determining which in principle is the dominating portion of the statute here, the general or enabling provisions of Sections 3 and 4, imposing the duty of diligence to make the ship seaworthy, that the carrier shall be bound to exercise due diligence to make the ship seaworthy “before and at the beginning of the voyage”, that is before it leaves the port, or the exceptive or limiting provision of Sec. 4(2) (a), that neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from “(a) Act, neglect, or default of the master, mariner, pilot or the servants of the carrier in the navigation or in the management of the ship.” In my opinion, the majority, in paramounting Section 4(2) (a), has set sail on the wrong course, while the district judge, in paramounting Section 3, has taken the right one. Instead,. *355 therefore, as the majority seems to think of the district judge’s position representing a “highly artificial approach”, I think the shoe is on the other foot and that it is the position of the majority which is the “highly artificial” one.
While it is true that maneuvering was well underway and most of the lines had been cast off, it is also true that some had not been, and, if the question of line casting is at all controlling, and I definitely think it is not, it seems to me that, unless all lines are off, it is the same for our purpose as if none were. In short, if the ship is to prevail under the line casting theory, which the majority seems to espouse, the proof must show that the act making the ship unseaworthy occurred at least after all the lines were cast off, while for cargo to prevail, it is sufficient if at least one remains uncast.
I, however, do not subscribe to either of these views. I think the question of what lines were or were not made fast, what were loose, is wholly artificial and immaterial. As I see it, the real question is, had the ship left the port of loading, in the legal sense that the voyage had actually begun, the ship was no longer in port, and its fate was no longer in the hands, and under the control, of the shore personnel, but under the control and in the hands of the master.
Looked at, as I see it, this is the law of this case. The determining questions are (1) not how many lines had been cast off and whether the ship had or had not begun the maneuver of getting away from the dock, but whether the evidence supports the finding and conclusion of the district judge, that something occurred to make the ship unseaworthy while it was still in port and, therefore, within the potential control of the shore personnel, and (2) whether the circumstances were such as to constitute it negligence not to make or cause to be made an inspection before leaving the port to determine whether the ship was seaworthy. In short is the case controlled by Sections 3 and 4(1) of the Act or by Sec. 4(2) (a).
In my opinion, the questions admit of only one answer, that given by the district judge. The view of the majority, that the injury was caused by an error in navigation and management, from the consequences of which the vessel was completely exonerated, is, I think upon the record in this case, completely erroneous, and I deprecate and dissent from the judgment of reversal.
Rehearing denied; HUTCHESON, Circuit Judge, dissenting.
. “In Heydon’s Case in 1584, after all the barons of the Exchequer had argued in open court, it was unanimously resolved by Sir Roger Manwood, Chief, Baron, and the other Barons of the Exchequer:
“ ‘That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered. 1. What was the common law before the making of the Act? 2. What was the mischief and defect for which the common law did not provide? 3. What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth? And 4. The true reason of the remedy? and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the *354 remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the act, pro bono publico.’ 3 Co. 7a.” A Case for Three Judges, Harvard Law Review, March, 1934. p. 798.
. “(2) Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—
“(a) Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship; * * * 46 U.S.C.A. § 1304 .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9446990. Public record. Not legal advice.