# Austerberry v. United States

> Court of Appeals for the Sixth Circuit · August 16, 1948 · 169 F.2d 583

URL: https://www.frixlaw.com/law-library/cases/9636940

## Case

- **Full name:** AUSTERBERRY Et Al. v. UNITED STATES
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** August 16, 1948
- **Citations:** 169 F.2d 583; 1948 A.M.C. 1682; 1948 U.S. App. LEXIS 3262
- **Precedential status:** Published
- **Opinion:** Dissent by Miller
- **Judges:** Simons, McAllister, Miller
- **Cited by:** 29 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9636940

## Opinion text

MILLER, Circuit Judge
(dissenting).
I am of the opinion that the judgment of the District Court should be affirmed.
The rule is well settled that while an appeal in Admiralty is a trial de novo, the findings of the district court will be accepted unless clearly against the preponderance of evidence. Johnson v. Kosmos Portland Cement Co., 6 Cir., 64 F.2d 193 , and cases therein cited. The credibility of witnesses is primarily a matter for the District Judge. The Eleanore, 6 Cir., 248 F. 472 ; The Knoxville City, 9 Cir., 112 F.2d 223 . The District Judge, in dismissing the claims of the appellants, found that there was no credible evidence that leaks existed in the gasoline tank prior to the explosion; that there was no proof except by inference that the gasoline fuel line contained any quantity of gasoline after the removal of the engine; that there was a total lack of any *595 testimony of gasoline leakage, gasoline spillage, or gasoline drippings in the hold of the vessel; and that the claimants’ theory of the Government’s negligence was based upon surmise, conjecture and speculation. These findings appear to me to be fully supported by the evidence. The doctrine of res ipsa loquitur does not avoid the requirement that upon the whole case the claimant must prove negligence by the preponderance of evidence. Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U.S. 104, 113 , 62 S. Ct. 156 , 86 L.Ed. 89 .
I am also of the opinion that the appellee, even if liability existed, would be entitled to the limitation of liability provided by Section 183, Title 46 U.S.C.A., in that such liability would be “without the privity or knowledge” of the owner of the vessel. The negligence of. a subordinate is not imputed to an owner, in the case of an individual owner, nor to the supervising officer or manager of a corporation, in the case of a corporate owner, so as to place the individual owner or corporation in privity within the meaning of the statute, where there is no personal participation on the part of the owner or corporate officer in the negligent acts of the subordinate. Coryell v. Phipps, 317 U.S. 406 , 63 S.Ct. 291 , 87 L.Ed. 363 . The District Judge found that the duty of supervising the laying up of the vessel was the direct responsibility of Priebe and Dahlka; that both of them were experienced in handling small vessels on the Great Lakes for many years; that the ship was inspected many times arid was always found to be clean including its bilges, which were cleaned with trisodium and were pumped every day; and that the lay-up of the vessel was a routine operational function performed in accordance with such routine and the customary operational procedure. As stated by the Court in the Coryell case: “One who selects competent men to store and inspect a vessel and who is not on notice as to the existence of any defect in it cannot be denied the benefit of the limitation as respects a loss incurred by an explosion during the period of storage, unless ‘privity’ or ‘knowledge’ are to become empty words.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9636940. Public record. Not legal advice.