Petition for Writ of Certiorari — Aunt Mid, Inc. v. Fjell-Oranje Lines
Supreme Court brief1972
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FILED
No JUL 18 1872
MICBAEL RODAK, JR..SLERK |
E Iu the
United FP Supreme Court of the United States
Courts 6) Tur, 1972
tion of esis @ 2 ~ y | 0 2
wre not
rs AUNT MID, INC,
Petitioner,
VSB.
i FJELL-ORANJE LINES, et al,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
ZEAMORE A. ADER, ESQ.
DAVID LINCOLN ADER, ESQ.
ADER & ADER
11 South LaSalle Street
Chicago, Illinois 60603
312-726-6611
Attorneys for Petitioner
DAVID LINCOLN ADER
Of Counsel
UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581
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heavier than on other aprpellante appear.
ing before three jude courts, and therely cansed A
judicial violation of the equal protection Cause of
the Fourteenth Amendment to the United States
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Windinga of tack Aeattod attar rim Wy the prerméing
party ate, according to the decisions of the Second,
Third and Moweth Cironita, not entitled to the
“deatly erroneous’ protection afforded findings
made by the Trial Judge WithBOlE oc cee
is
err rer reer rerrrrrrres
C,
Findings of fact relating to negligence, seaworthiness,
shipper’s fault and deviation are all mixed questions
of law and fact and as such are reviewable as a
question of law and this has been recognized by the
Seventh Cinevit in eerilier opinions as well as the
Appellate Courts in the Seoond and Fifth Canowte
gut thus the Seventh Cxeatt. enreh jp tiie case op
sutoning he RY PIR AE! FRE a
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Sue Gave. Core ven the procter A the
haned Bian Soywrame Cowl mad commited ww
Aedes of the Whale Cheat Wy retawmng to hold
the Prateiee Comte Andinwe Menely arronaone wher
id early innpliod in ita opinion Fhat the Aindinge wore
internally inconmiatent md MACOHFMEE coc 16
iv
VI.
PAGE
The Court of Appeals clearly disregarded the an-
thority of the United States Supreme Court in
Schnell v. The Vallescura, 293 U.S. 296 (1934) and
Missouri & Pacific R.R. Co. v. Elmore & Stahl, 377
U.S. 134 (1964) when, although specifically noting
that defendants did not undertake their burden to
prove due care and seaworthiness, it did not re-
verse the District Court and find defendants liable,
and the Court of Appeals was in conflict with the
aforesaid authority of the United States Supreme
Court by not reversing the District Court which
entered findings of fact and conclusions of law there-
on finding defendants free of negligence and their
vessel seaworthy, when defendants neither should-
ered their burden of proof nor proved due care and
seaworthiness, and such findings were against the
manifest weight of the evidence 22.2... 18
Conclusion ........----c-cecereeeresrncesnseeeernee 93
APPeENdix .........--cececceensensnsensserenencsnssssnensssesnesesseesee App. 1 et seq.
CITATIONS
Cases
Allen v. Johnson, 391 F.2d 527 (5th Cir. 1968) ......... 6, 8, 10
Barbier v. Connolly, 113 U.S. 27 (1885) 2.0... 9
Chandler v. U. S., 226 F.2d 403 (7th Cir. 1955) .......... 16
Chicopee Mfg. Corp. v. Kendall Co., 288 F.2d 719
(4th Cir. 1961) . : YQ |
Ernest H. Meyer, 84 F.2d 496, 501 (9th Cir. 1936) ...... 15
Fargo Glass & Paint Co. v. Globe American Corp., 201
F.2d 534 (7th Cir. 1953) .........-.-----+ 15
Vv
PAGE
Featherstone v. Barash, 345 F.2d 246 (10th Cir. 1965) 12
Freightways, Inc. v. Stafford, 217 F.2d 831 (8th Cir.
1966) ---------- a
Great Atlantic & Pacific Tea Co. v. Brasileiro, 159 F.
9d 661 (2nd Cir. 1947) ...... 16
Hayes V. Missouri, 120 U.S. 68 (1887) PRP OER Pee OR 9
Lemelson v. Kellogg Co., 440 F.2d 986 (2nd Cir. 1971) 12
Manning v. M/V Sea Road, 417 F.2d 603 (5th Cir.
1969) 16
Missouri & Pacific R.R. Co. v. Elmore & Stahl, 377
U.S, 184 (1964) -......------- — 18, 19, 22
Moran v. Dillingham, 174 U.S. 153 (1899) _ ..........-...-- 7,8
Olah v. The 8.S. Jaladurga, 343 F.2d 457 (4th Cir.
1965) cnessccssssosssnssessenssnssnsennsensnssnnes rns tnenne : 16
Platt v. U. S., 163 F.2d 165 (10th Cir. 1947). ............ 12
Red Star Towing and Transportation Company v
The Hudson, 219 F.2d 307 (2nd Cir. 1955) ...........--.-- 14
Roberts v. Ross, 344 F.2d 747 (8rd Cir. 1959). ............ 11, 14
San Pedro Compania Armadoras v. Yannacopoulos,
357 F.2d 737 (5th Cir. 1966) ......... ia 15
Schnell v. The Vallescura, 293 U.S. 296 (1934) ....18, 19, 22
Seagrave Corp. v. Mount, 212 F.2d 389 (6th Cir.
OER Drak ae SNe Ro octet va te an 15
Severance, 152 F.2d 916 (4th Cir. 1945) 0.0.2... 14
Skibs A/S Dalfonn v. S/T Alabama, 373 F.2d 107 (2nd
Cir, 1967) .cncescncnsoceosoennecsnesnensensnseasenserenensecessncocesene satin 16
vi
PAGE
Smith v. Dental Products Co., 168 F.2d 516 (7th Cir,
1948) monpapiget HH
U.S. v. Singer Mfg. Co., 374 U.S. 174 (1962) _... 7
William Cramp & Sons Ship & Engine Building Com.
pany v. International Curtiss Marine Turbine Com.
pamy, BBB UB. COD (URI) caccccericcireceetii 7,8
Other Authorities
Otis, Improvements in Statement of Findings of Fact
~‘and Conclusions of Law, 1 F.R.D. 83 (1940) 12
Statutes
Vol. 7, p. 7431, Title 28 U.S.C., Ch. 3, §46(a)(b)(d) .... 6,8
9-10, App. 22
Vol. 7, p. 7562, Title 28 U.S.C. Ch. 83, §1291 App. 23
Vol. 7, p. 7560, Title 28 U.S.C., Ch. 81, $1254(1) ....2, App. 2
Vol. 7, p. 7636, Title 28 U.S.C., Ch. 133, §2101(c) ....App. 2
Vol. 7, p. 7568, Title 28 U.S.C., Ch. 85, §1333 ........ 3, App. 23
Vol. 7, p. 7702, Rules of Appellate Procedure ....... App. 4
Vol. 7, p. 7814, Rules of Civil Procedure, Rule
52(a) 11, App. 25
Vol. 7, p. 11619, Title 46 U.S.C., Ch. 28, §1302 .......... App. 25
Vol. 7, p. 11619, Title 46 U.S.C., Ch. 28, §1308 .......... App. 26
Vol. 7, p. 11620, Title 46 U.S.C., Ch. 28, §1304 ....19, App. 27
Constitution
DAI, TERY sisttnrscetwitninininacenesibiinissaintnceiaeciale 2, 8, App. 28
Iu the
Supreme Court of the United States
Octroser Term, 1972
Petitioner,
FJELL-ORANJE LINES, et al.,
Respondents.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
All Italics ours; (App.) means Appendix to this Peti-
tion; (R. App.) means Appendix from Court of Appeals.
Petitioner Aunt Mid, Inc., an Illinois Corporation, prays
that a writ of certiorari issue to review the judgment of
the United States Court of Appeals for the Seventh Cir-
cuit entered in this cause on February 8, 1972, (App. 1);
petitioner filed petition for rehearing which was denied by
the order entered on April 19, 1972, on which date the judg-
ment became final.
2
THE OPINION BELOW
The opinion of the United States Court of Appeals fo,
the Seventh Circuit is reported at 458 F.2d 712 ang ap.
pended to this petition. (App. et seq.)
JURISDICTION
The judgment of the United States Court of Appeals for
the Seventh Circuit was entered on February 8, 1972, ani
became final April 19, 1972, by denial of Plaintiff’s peti.
tion for rehearing (App. 21).
The jurisdiction of this Court is invoked under the pro-
visions of Section 1254 of the Judicial Code, (28 U.s¢.
Sec. 1254). (App. 23).
STATUTES INVOLVED
The various statutes involved are listed in the index and
set forth in the appendix.
QUESTIONS PRESENTED
1. Was the decision of the Court of Appeals invalid
because the division of the Court was comprised of two
qualified and active judges, only, not three as required
by 28 U.S.C. §46 (b), and therefore not legally constituted!
2. Did the determination of Appellant’s appeal by a
two judge court impose a discriminatory burden on Appel-
lant heavier than on other appellants appearing before
United States Courts of Appeals of three judge divisions,
because Appellant was required to obtain a unanimous vote
of the two judges for reversal while Appellants before
three judge divisions need only obtain a majority vote, and
did this make a judicial violation of the equal protection
clause of the Fourteenth Amendment to the United States
Constitution?
i
a: ee
3. Were the findings of fact entered by the trial court a
nullity because they were not drafted by the Court in
accordance with Rule 52(a), F.R.C.P. but were drafted
by counsel for the prevailing party and perfunctorily ac-
cepted by the Court verbatim; and was this an unconstitu-
tional delegation of the judicial function?
4, Did the Court of Appeals err in imposing the strict
“elearly erroneous’? rule in this case?
5. Did the Court of Appeals err in affirming findings of
fact which were internally inconsistent and inaccurate and
which findings were recognized by the Court of Appeals in
its opinion to be internally inconsistent and inaccurate?
6. Did the Court of Appeals disregard the decisions of
the United States Supreme Court in affirming the district
court which failed to impose on defendants its burden to
prove that they, the carriers, had exercised due care in
carrying and protecting the cargo and to provide a sea-
worthy ship?
STATEMENT OF THE CASE
This appeal arises from two admiralty and maritime ac-
tions brought in the United States District Court for the
Northern District of Illinois under 28 U.S.C. § 1333 (App.
23) by Petitioner Aunt Mid, Inc., against defendant com-
panies and their vessels M/V Sirefjell and M/V Pra River
for damage to cargoes of cabbages shipped from Rotter-
dam, Holland, to the Port of Chicago, on these vessels. The
cabbages in question were shipped from Holland in April
and were unloaded 24 to 26 days later. The cabbages were
placed on board the vessels in apparent good order and
condition (Pl. Ex. 2, 6, R. App. 220-1) and were out-turned
in a completely deteriorated state (R. App. 102, 103, 105,
121, 123). The cabbages were booked to be carried in ven-
ENN RRR LD ENRMMO NTR AR ME RPO RIA IL REIN RD
y hh am rarely re
4
tilated stowage on both ships (Pl. Ex. 2, 6). Testimony of
the only two witnesses with personal knowledge of t,
loading, care and handling of the cargo on board the ship,
was introduced at the trial by deposition (R. App. 171, «
seq., 219 et seq.). One deposition was given by the Super.
cargo who loaded defendant vessel Pra River. He tex.
fied that he did not know the character of the cargo whid
he was stowing and that he stowed it in accordance with
its destination and net im accordance with its nature ani
requirements. (R. App 221, 222). He further testified thy
this cargo of pertshabbe «dite cabbages was stowed x
ordinary general carge ehert ¢ befimetion excludes edibles
(R. App. 219, 230) Hie amv’ «at be stowed the cabbage:
(R. App. 222), that some: .« catages were stowed adjs
cent to the engime-reem sited (RR App. 149, 2223. Pi
Ex. 33), where the temgeretere © approximately 2;
higher than that im the rest of the ship (R. App. 142); that
he did not inspect the ventilation in that hold (R. App. 221),
nor did he allow for circulation around the cabbages, but
stowed the hold full (R. App. 222), and flush up against
plywood sheets (R. App. 222-3). He stowed the cabbages
over baler twine which itself gives off heat. (PI. Ex. 33, B.
App. 142.)
The handling and care of the cabbages aboard the other
ship, the Sirefjell, was recounted by the Chief Mate in
charge of stowage who testified that the cabbages were
placed in a refrigerator compartment without refrigeration
until spoiled. (R. App. 175, 182, 187). He testified that the
refrigerator compartment did not have the required foreed
air ventilation (R. App. 181, 189, 191-2), although forced
air is necessary if ventilated cargo is to be stowed inside
(R. App. 156). The refrigerator compartment was packed
full to the roof (R. App. 189) with the cabbages and textiles
for Montreal and Cleveland (Pl. Ex. 35) in such a way
that the Chief Mate was unable to inspect the cargo until
—_ =— a fo
<— ont ai _~ _
5
arrival at the Port of Cleveland (R. App. 177, 188), and
although the Chief Mate became aware that the cabbages
were having difficulty outside of Montreal (R. App. 182),
he made no effort to see them until the ship arrived at
the Port of Chieago (R. App. 175).
Other than the depositions of these two eye witnesses
and participants in the loading, handling and care of the
cabbages, the only other evidenee introduced concerning
shat occurred on board the ships was by answers to inter-
rogatories, answers to notice to admit and by such other
documents as the ship’s plan, and stowage plans (R. App.
1928, et seq. Pl. Ex. 33, ete.).
At the conclusion of the trial, although no knowledgable
competent witness and no documentary proof was intro-
duced to contradict the deposed testimony of the two ship’s
crew members and ship’s documents, the court mechanical-
ly entered without change the findings of fact drafted by
counsel for the prevailing party which stated that the ves-
sels were seaworthy and there was no negligence (R. App.
32-42).
Petitioner appealed to the United States Court of Ap-
peals for the Seventh Cireuit, but at the time the decision
was made in this cause by the division hearing the case,
it was comprised of only two active and qualified judges,
the third, Judge Otto Kerner having, at his request, been
relieved of all duties in the division and the Court by Chief
Judge Swygert, before decision or opinion in this case
(App. 22), due to Judge Kerner being under federal in-
dictment.
6
REASONS FOR GRANTING THE WRIT
I.
THE DECISION OF THE APPELLATE COURT was
INVALID BECAUSE THE APPELLATE DIVISI0K
COMPRISING ONLY TWO QUALIFIED AND ACTIVE
JUDGES WAS NOT LEGALLY CONSTITUTED (3
U.S.C. $46(b)).
AND
THE COURT OF APPFALS FOR THE SEVENTH Cr.
CUIT IN USING A DIVISION OF TWO JUDGEs
INSTEAD OF THE THREE JUDGES REQUIRED By
LAW IS IN CONFLICT NOT ONLY WITH THE Ap.
PLICABLE RULINGS OF THIS COURT BUT ALSO Is
IN CONFLICT WITH THE RULINGS OF THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT.
The United States Code provides: ‘‘In each circuit the
court may authorize a hearing and determination of cases
and controversies by separate divisions each consisting of
three judges.’’ 28 U.S.C. 46(b). (Emphasis added). For
a division to be legally constituted, there must be three
active end qualified judges at all relevant times. A divi-
sion with a membership of less than three judges is not
empowered to make decisions. As was said in Allen v.
Johnson, 391 F.2d 527, 531 (5th Cir. 1968): ‘This fits
neatly into the underlying basic structure of the Court of
Appeals. Their work is ordinarily to be—and today must
be—done by three judge panels.’’ (Emphasis added).
Although the opinion of the United States Court of
Appeals for the Seventh Circuit rendered in this case
states that ‘‘Judge Kerner heard oral argument, but did
not participate in adoption of this opinion,’’ Judge Otto
Kerner was at his own request and after his indictment
(App. 22), relieved from active service by Chief Judge
Luther M. Swygert of this Cireuit, both in this division
and from the Court in general, prior to decision in this
case. Therefore, at the time that the decision was made
and the opinion adopted, the division lacked the requisite
three judges and was not duly constituted according to
law, The division could not validly decide the instant
case while illegally constituted, and the opinion is void.
This Court has repeatedly enforced this principle.
In Moran vy. Dillingham, 174 U.S. 153 (1899), this Court
held a judge incompetent to sit on an appeal due to the
provisions of the Act of March 3, 1891, C. 517, §6 and §3,
hecause he had participated in the case below. This Court
held that it was not for the judiciary to disregard or fritter
away the intention of the legislature, and continued:
83 od ot Ee
The necessary conclusion is that Judge Pardee was
incompetent to sit on the appeal in question, and the
decree in which he participated was not made by a
court constituted as required by law; and therefore
this court, without considering whether that decree
was or was not erroneous in other respects, orders
- the Decree of the Circuit Court of Appeals to be set
aside and quashed, and the case remanded to the court
“a to be there heard and determined according to law by a
hot bench of competent judges. Id. at 158.
e In William Cramp & Sons Ship & Engine Building Com-
its pany v. International Curtiss Marine Turbine Company,
of 998 U.S. 645 (1913), a case wherein it was manifest on a
- Petition for Certiorari that the judgment set to be re-
viewed was rendered by a court improperly constituted,
of the Court held:
Ase As the considerations just stated demonstrate that the
did case was tried and disposed of below, by a court or-
ganized, not in conformity to law, but in violation of
the express prohibitions of the statute, we think it
beet c's
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8
plainly results that an error of so grave a characte;
and involving considerations of such public impor.
tance was committed as to cause it to be our duty to
allow the writ of certiorari, without at all considering
for the purpose of such allowance the questions urge
concerning the merits of the cause. Id. at 650.
Thus, in the case at bar, the decision of the Circuit Court
of Appeals was not rendered by a duly constituted pand
of three judges as required by 28 U.S.C. 46(b), there being
a division of two judges only, and the decision conflicts
not only with the applicable rulings of this Court (Moran
v. Dillingham, 174 U.S. 153 (1899) ; William Cramp & Sons
Ship & Engine Building Company v. International Curtiss
Marine Turbine Company, 228 U.S. 645 (1913) ), but also is
in conflict with the ruling of the United States Court of Ap.
peals for the Fifth Circuit (Allen v. Johnson, 391 F.2d
527 (5th Cir. 1968)). Also the need to avoid confusion in
the law on this point, is of national need and importance
and calls for the supervision of this Court.
II.
THE DETERMINATION OF APPELLANT'S APPEAL
BY A TWO JUDGE COURT IMPOSED A DISCRIM.
NATORY BURDEN ON APPELLANTS HEAVIER
THAN ON OTHER APPELLANTS APPEARING BE.
FORE THREE JUDGF COURTS
AND
THEREBY CAUSED A JUDICIAL VIOLATION OF
THE EQUAL PROTECTION CLAUSE OF THE FOUR.
TEENTH AMENDMENT TO THE UNITED STATES
CONSTITUTION.
Appellant appealed to reverse the decision of the United
States District Court. Only two judges of the Court of
Appeals participated in making the decision on appeal,
since the third judge at his own request was relieved of
9
his duties both from the division and from the entire court
prior to a decision in the cause. Since only two judges
participated in reaching a decision on appeal (and a judg-
ment is affirmed unless there are more votes for reversal
than for affirmance), appellant was compelled to obtain a
qnanimous vote to be successful, while other appellants
pefore three judge courts need obtain only a majority of
yotes to secure reversal.
So - +
Had a third judge participated in the deliberation prior
to the decision, he might have convinced one of the other
judges to join with him in reversal, or he may have
joined another judge in voting for reversal. However, with
only two judges participating, if one desired to reverse
and the other did not, the district court would still be
affirmed by this split vote.
A unanimous vote is a far higher and more difficult stan-
dard to meet than a majority vote, and it placed the Ap-
pellant in a far more rigorous situation than any other
appellant. Equal protection of the law requires that all
persons subject to the law be treated like others in the
same circumstances, both-as to privileges and liabilities
imposed. Hayes v. Missouri, 120 U.S. 68, 71-2 (1887 ), and
commands like access to justice in the courts as between
people similarly situated, with no greater burden on one
than on others. Barbier v. Connolly, 113 U.S. 27, 31 (1885).
Appellant in this case was treated differently from appel-
lants in other cases. He was subjected to a standard of
judicial unanimity as opposed to a simple majority re-
quired in other appeals, a clear violation of equal pro-
tection. f:
v,lUhhmrhOrwhCUmThC<C RS”
Even if it were assumed arguendo, and contrary to the
facts of this case, that the Seventh Circuit panel was law-
fully constituted, the statutory authorization of 28 U.S.C.
10
§46(d) that a majority of three judges constitutes a quo.
rum—and a quorum can only act on behalf of a lawfully
constituted whole—must be interpreted as referring only
to administrative duties, since the unique function of d&.
ciding to affirm or reverse must be made with full inter.
action and participation of at least three active an
qualified judges. Allen v. Johnson, 391 F.2d 527 (5th Cir,
1968). To do otherwise would put some appellants under
the higher standard of judicial unanimity while others
need convince only two out of three judges, a clear viola.
tion of equal protection. Furthermore, this situation is
clearly distinguished from occasions when judges have
died or retired having expressed themselves and partici.
pated in the decision-making process but prior to pub-
lication of the opinion. In this case only two judges par-
ticipated in the decision-making process, the third judge
having left active service on the court before the court
reached its decision.
One of the prime duties and obligations of this Court is
to ensure to each individual the equal protection of the
laws guaranteed by the Constitution. This is particularly
important in the case at bar because the Appellant seeks
protection against an inequality created by the federal
judicial system itself, which this Court is charged with
supervising.
ITI.
THE FINDINGS OF FACT ENTERED BY THE TRIAL
COURT BELOW WERE A NULLITY BECAUSE THEY
WERE NOT DRAFTED BY THE COURT BUT BY
COUNSEL FOR THE PREVAILING PARTY IN AN
UNCONSTITUTIONAL DELEGATION OF THE JUDI-
CIAL FUNCTION,
AND
2 —— ——— alr
11
THE DECISION OF THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT CONFLICTS
WITH THE RULINGS OF THE UNITED STATES
COURT OF APPEALS FOR THE THIRD, FOURTH AND
TENTH CIRCUITS, AND ANNULS 28 U.S.C. F.R.C.P.
§2(a).
The trial judge requested the prevailing counsel to com-
pose findings of fact and conclusions of law to support a
decision in their clients’ favor, and the judge immediately
signed and entered the said findings of fact and conelu-
sions of law verbatim, without change, as drawn by the
prevailing counsel. Plaintiff’s constitutional right to due
process of law was thereby violated. The rules of federal
procedure command that the trial court shall find the facts.
98 U.S.C. F.R.C.P. 52(a) (App. 25) In this rule it is the
court which is commanded to make findings of fact. The
command is unequivocal: ‘‘The court shall find,’’ not ‘‘the
prevailing parties shall find’’ the facts. Roberts v. Ross,
44 F.2d 747, 751-2 (3rd Cir. 1965). Furthermore, the
United States Constitution charges the judge with the per-
formance of the judicial function.
The United States Supreme Court is charged with both
the protection and vindication of constitutional rights un-
der the United States Constitution and with the adminis-
tration of justice in the federal courts. The importance of
prohibiting the delegation of the judicial function is of
major importance to the nation as a whole. As the Seventh
Circuit Court of Appeals stated in Smith v. Dental Prod-
ucts Co., 168 F.2d 516, 519 (7th Cir. 1948), regarding the
requirement that the court make the findings of fact un-
der Federal Rule of Civil Procedure 52(a) :
The reason for the rule is applicable here; the decid-
ing officer, whether administrative in character or ju-
dicial, has a real function to perform in due process.
The defect is one going to the right of the parties to
have a decision from the agency having jurisdiction
KP MO Si ee
12
upon the merits; upon testimony submitted by wit
nesses whom the trial tribunal has seen and hean
Id, at 519.
The Court of Appeals for the Tenth Circuit has statej
in Featherstone v. Barash, 345 F.2d 246, 249 (10th Cir,
1965), that one of the important purposes of the rule that
the court find the facts is to evoke care on the part of the
trial judge in considering and adjudicating the facts in
dispute. The Tenth Circuit points out that the trial court
is a most important agency of the judicial branch precisely
because it bears the responsibility of ascertaining the facts,
Accord: Lemelson vy. Kellogg Co., 440 F.2d 986, 988 (2nd
Cir. 1971). This purpose of the rule is certainly not served
if the judge delegates the fact finding function and Places
it with the prevailing counsel: The Constitution charges
the judge with the performance of the judicial function,
It seems to me that the statement of findings and
conclusions is of the very essence of the judicial fune.
tion and that it should not be surrendered by the judge
to counsel, however able. Every part of the judicial
function should be impartially discharged. It is im.
possible for counsel in a case in which they are en-
gaged to do anything impartially.
I have discovered that my thought in this connection
is not novel. Several of the supreme courts of the
states have said the same thing better than I have
said it. Otis, Improvements in Statement of Findings
of Fact and Conclusions of Law, 1 F.R.D. 83, 8
(1940).
In Platt v. U.S., 163 F.2d 165, 168 (10th Cir. 1947), the
Tenth Circuit held that the parties could not stipulate to
the findings of fact between themselves. If the parties
may not jointly relieve the court of its judicial function
a fortiori one party alone may not do so. Chicopee Mfg.
Corp. v. Kendall Co., 288 F.2d 719, 724-5 (4th Cir. 1961). .
13
The trial judge in this case did not make independent
fndings of facts of his own but, after the trial, delegated
the complete function of making the findings of facts to
counsel for the prevailing party and entered them of
record immediately, mechanically and verbatim as drawn
by counsel. A new trial should be held in which the judge
shall find the facts.
IV.
gINCE THE MOST SIGNIFICANT EVIDENCE BE-
FORE THE TRIAL JUDGE WAS BY DEPOSITION
AND DOCUMENTATION, AND SINCE THE FINDINGS
OF FACT WERE DRAFTED BY COUNSEL FOR THE
| PREVAILING PARTY AFTER THE TRIAL, AND
' . SINCE QUESTIONS RAISED ON APPEAL WERE
MIXED QUESTIONS OF LAW AND FACT, THE
COURT OF APPEALS ERRED IN ADHERING TO
THE “CLEARLY ERRONEOUS” RULE AND IN DOING
s0 PUT ITS DECISION IN CONFLICT WITH DECI-
SIONS OF UNITED STATES COURTS OF APPEALS
FOR THE SECOND, THIRD, FOURTH, FIFTH, SIXTH
AND NINTH CIRCUITS, AND WITH ITS OWN EARLI-
ER DECISIONS.
A.
FINDINGS OF FACT DRAFTED AFTER TRIAL BY
THE PREVAILING PARTY ARE, ACCORDING TO
THE DECISIONS OF THE SECOND, THIRD AND
FOURTH CIRCUITS, NOT ENTITLED TO THE
“CLEARLY ERRONEOUS” PROTECTION AFFORD-
ED FINDINGS MADE BY THE TRIAL JUDGE HIM-
SELF.
Findings of fact are normally protected by the clearly
erroneous rule because they manifest the thinking and
analysis of the judge, the inferences raised from the evi-
dence, his view of the credibility of witnesses appearing
. before him, and the care, understanding and appreciation
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14
which the judge took of the matter before him. However,
when counsel for the prevailing party drafts the findings
of fact and they are entered mechanically and verbatim
by the trial judge as in the case at bar, they are only a
cold recounting of the proceedings and in reality nothing
more than an apology and justification for winning counsel,
While the Seventh Circuit has adhered to the clearly er.
roneous rule in these circumstances, the Second, Third
and Fourth Circuits have held that a lower standard jg
proper, that the findings may be more easily rebutted,
and that the Court of Appeals can more readily substitute
its judgment for that of the trial court. Red Star Towing
and Transportation Company v. The Hudson, 219 F.2d 307,
309 (2nd Cir. 1955); Roberts v. Ross, 344 F.2d 747, 759
(8rd Cir. 1965); The Severance, 152 F.2d 916, 918 (4th
Cir, 1945).
THE COURT OF APPEALS IS AS ABLE TO DETER.
MINE THE EVIDENCE HERE AS THE TRIAL JUDGE
WHEN, AS IN THIS CASE, THE CRUCIAL EVIDENCE
AND/OR SUBSTANTIALLY ALL OF THE CREDIBLE
EVIDENCE IS BY DEPOSITIONS AND DOCUMENTS,
ACCORDING TO THE DECISIONS OF THE FIFTH,
SIXTH AND NINTH CIRCUITS, WHICH ARE ALL IN
CONFLICT WITH THE SEVENTH CIRCUIT ON THIS
POINT.
The clearly erroneous standard does not apply where
the significant part of the testimony and evidence is by
transcript of testimony and depositions and written docn-
ments placed in evidence as exhibits. The findings are not
protected by the clearly erroneous rule in this case be-
cause the trial judge below was faced with written docv-
ments and depositions which gave him no opportunity to
view those witnesses giving that testimony. Viewing of
15
witnesses where the significant testimony is by deposition
is no more open to judgment on credibility by the trial
judge than the appellate court. As the Court of Appeals
for the Ninth Circuit said in The Ernest H. Meyer, 84 F.
oq 496, 501 (9th Cir. 1936) :
It is obvious that, where the testimony is in part in
deposition and in part heard by the court, and the con-
flict is between the heard and unheard witnesses, there
cannot be a balancing of credibility between the two.
In such a case, and where... substantially all of the
evidence pertinent to the finding is given by deposi-
tion, the presumption is of lesser weight and more
easily may be rebutted.
Accord: San Pedro Compania Armadoras, S. A. Vv. Yanna-
copoulos, 357 F.2d 737 (5th Cir. 1966) ; Seagrave Corp. Vv.
Mount, 212 F.2d 389 (6th Cir, 1954). Even the Seventh
Cireuit in earlier decisions recognized the correctness of
this position. Fargo Glass & Paint Co. v. Globe American
Corp., 201 F.2d 534 (7th Cir. 1953). Thus the standard
applied by the Court of Appeals in this case was contrary
to its prior decisions and in conflict with the Fifth, Sixth
and Ninth Circuits.
0.
FINDINGS OF FACT RELATING TO NEGLIGENCE,
SEAWORTHINESS, SHIPPER’S FAULT AND DEVIA-
TION ARE ALL MIXED QUESTIONS OF LAW AND
FACT AND AS SUCH ARE REVIEWABLE AS A QUES-
TION OF LAW AND THIS HAS BEEN RECOGNIZED
BY THE SEVENTH CIRCUIT IN EARLIER OPINIONS
AS WELL AS THE APPELLATE COURTS IN THE
SECOND AND FIFTH CIRCUITS AND THUS THE
SEVENTH CIRCUIT ERRED IN THIS CASE IN MAIN-
TAINING CLEARLY ERRONEOUS RULE.
Negligence, seaworthiness, shipper’s fault and deviation
are all questions which are answered by applying facts
against a legal standard. All of these questions are of
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16
mixed law and fact and the clearly erroneous rule does
not apply. Manning v. M/V Sea Road, 417 F.2d 603, 607
(5th Cir. 1969); Chandler v. U.S., 226 F.2d 403 (7th Cir,
1955). This principle was clearly stated by the Appellate
Court for the Second Circuit in the Great Atlantic ang
Pacific Tea Co. v. Brasileiro, 159 F.2d 661, 665 (2nd Cir
1947) as follows:
[A] finding of negligence is not a finding of fact which
must be ‘‘clearly erroneous’’ to be subject to review.
... [T]he decision involves a comparison of the con.
trasted values; the necessary precautions and the
stake; and that in turn demands the setting of a stan.
dard, a norm, an imperative, which is the usual hall-
mark of a jural act. Certainly such a decision is not
like a decision of fact uncolored by an element of
choice of fiat. We are therefore free to exercise our
own judgment. ...
V.
THE SEVENTH CIRCUIT VIOLATED THE PRECE-
The Court of Appeals for the Seventh Circuit stated in
its opinion:
Aunt Mid contends that the district court’s conclusion
is inconsistent with its findings and with the expert
testimony at trial. We cannot deny that there was
some confusion and confliction. . . . The conflicts illus-
trate the necessity for resolution thereof on a credi-
bility basis by the district court. (App. 10.)
17
Where the court is in conflict with itself by adopting in-
ternally inconsistent findings, and where the findings con-
fict with its own conclusion, the credibility of witnesses
play no part. The findings display the court’s confusion
and inconsistency and are therefore undoubtedly clearly
erroneous.
The Court of Appeals for the Seventh Circuit further
states in its opinion:
Even if, as Aunt Mid urges, the district court’s find-
ings are not completely internally consistent and do
contain a few inaccurate summaries of the testimony,
we conclude that they sufficiently inform us of the
evidentiary basis for the district court’s decision.
(App. 11.)
These inaccuracies and inconsistencies concern facts which
are crucial and pivotal to the determination of the major
issues in this case.
Logie dictates that findings which are internally incon-
sistent and conflict with each other cannot all be right;
some are clearly erroneous. ‘‘Inaccurate summaries’’ of
the testimony are by definition clearly erroneous. The trial
court’s decision must stand or fall on its findings. In
US. v. Singer Mfg. Co., 374 U.S. 174, 192, 194-5, n.9 (1962)
this Court said: ‘‘the trial court’s findings, as we have
noted, are inconsistent in some respects . . .’’ and held
that only one set of the inconsistent facts could be true
and that those conflicting therewith were clearly errone-
ous. There are internal inconsistencies in the findings in
the ease at bar and a new trial is therefore required.
Freightways, Inc. v. Stafford, 217 F.2d 831, 835 (8th Cir.
1955).
The Seventh Cireuit violated the decision of the United
States Supreme Court and decided contrary to decisions
in the Eighth Cireuit by not referring this case for a new
|
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18
trial due to the inconsistent findings of fact which made
these findings clearly erroneous by definition. To Vindieate
its own decision and guarantee appellants a decision sup.
ported by the evidence in accordance with due Process, the
United States Supreme Court should take jurisdiction o
this matter and review it for possible reversal and re-trial
THE COURT OF APPEALS WAS IN CONFLICT WITH
TEE AFORESAID AUTHORITY oF THE UNITED
THE DISTRICT COURT WHICH ENTERED FINDINGS
OF FACT AND CONCLUSIONS OF LAW THEREON
FINDING DEFENDANTS FREE OF NEGLIGENCE
The district court’s decision on the question of the ships’
negligence contravened the United States Supreme Court
decision in Schnell v. The Vallescura, 293 U.S. 296 (1934).
In Schnell v. The Vallescura, the Court held:
19
In general, the burden rests upon the carrier of goods
by sea to bring himself within any exception relieving
him from the liability which the law otherwise im-
on him. * * * Similarly, the carrier must bear
the entire loss where it appears that the injury to
eargo is due either to sea peril or negligent stowage,
or both, and he fails to show what damage is at-
tributable to sea peril. * * * The carrier is charged
with the responsibility for a loss which, in fact, may
not be due to his fault, merely because the law, in
ce of a wise policy, casts on him the burden
of showing facts relieving him from liability. Id. at
303, 306, 307.
The United States Supreme Court reiterated this prin-
ciple in Missowrt Pacific R.R. Co. v. Elmore & Stahl, 377
US. 134 (1964), which was founded on a statute containing
the same language as the relevant provisions of the Car-
riage of Goods by Sea Act, 46 U.S.C. §1304(2). It held
that the ‘‘burden of proof is upon the carrier to show both
that it was free from negligence and that the damage to
the eargo was due to one of the excepted causes relieving
the carrier of liability.’’ Jd. at 138 (emphasis added).
Schnell v. The Vallescura, 293 U.S. 296, 304, is cited as
authority in that decision. Jd. at 144. In the case at bar
the district court did not make defendants carry this
burden. Even the Court of Appeals stated in its opinion:
Aunt Mid has urged that the defendant could not rest
with the affirmative defenses. They assertedly also
bore the burden of proving their freedom from negli-
gence. The defendants have maintained that their
showing that the damage resulted from an excepted
cause eliminated the need for them to prove their free-
dom from negligence. In any event, the district court
did consider the question of the carriers’ negligence
and the vessels’ alleged unseaworthiness. It concluded
20
that the cabbages were properly and unnegligently
stowed and that the vessels were seaworthy. (Qp, ai
5) (App. 5-6) (Emphasis added).
The findings of fact and conclusions of law drafted by
defendants’ counsel and entered verbatim by the court
stated that defendants’ vessels were seaworthy and defen.
dants had not been negligent, although defendants never
attempted to carry their burden of proof to show that
they were not negligent. Not only did defendants not
carry their burden, but the findings and conclusions of law
were directly contrary to the uncontradicted evidence as
the following table shows:
A. Uncontradicted statements of the Chief Mate of the
Sirefjell, who was still employed by defendants at the
time he testified and who was in charge of the stowage
of cargo on board the ship on the voyage in question,
established negligence by his testimony against interest as
follows:
(a) Cabbages booked ventilated were stowed
io an unrefrigerated, airtight compart-
ment which lacked essential forced air
ventilation equipment. (R. App. 48, 175,
181, 183, 189, 191-2, 156) (Capt. Sognnes
who did not board the vessel until docked
in Chicago testified that he thought he
felt fresh air but no knowledge or other
basis for this assumption was shown.)
(Tr. 586) Found proper and
not negligent.
(b) The perishable cabbages were stowed
out of sight and inaccessible for in-
spection or viewing by any member
of the crew in a closed hold. (R. App.
177, 188) Found proper and
not negligent.
21
(c) Although the cabbage was known to be
having difficulty after 7 days at sea the
Chief Mate made no attempt to view or
to gain access to the cabbage during
the remaining 20 days of the voyage.
(R. App. 182, 175) Found proper and
not negligent.
B. The Supercargo who loaded the M.V. Pra River and
who was still employed by defendants at the time he gave
evidence testified against his self-interest and the self-
interest of his employer without contradiction establishing
negligence on the part of the M.V. Pra River and other
defendants.
(a) The Supereargo (crew member in charge
of stowage) who stowed the vessel tes-
tified that he was ignorant of the
characteristics and requirements of the
cabbage cargo. (R. App. 222) Found proper and
not negligent.
Because the Supereargo was ignorant of
the propensities and requirements of the
cargo, he placed the cabbages in a closed
hold fully loaded (R. App. 222) (on top
of baler twine which creates heat). (R.
App. 142.) Found proper and
not negligent.
(c) Because of his said ignorance, he stowed
(d
—
part of the cabbages flush against the
warm engine-room bulkhead. (R. App.
222-3, 149) Found proper and
not negligent.
The cabbages were stacked on top of
and flush against plywood sides, cutting
off air circulation from much of the
eargo. (R. App. 222-3, 128-9, 149-60) Found proper and
not negligent.
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22
(e) The Supereargo stowed the edible and
perishable cabbages as general cargo,
which by his definition, excludes edibles.
(R. App. 219, 220) Found proper ang
not negligent.
(f) The Supereargo in stowing cabbages
which were booked for ventilated space
never attempted to inspect the ventila-
tion in the hold into which he ordered
the cabbages placed. (Pl. Ex. 6, R. App.
221) Found proper and
not negligent
(g) The Supereargo stowed these perishable
cabbages not according to their nature
and requirements but solely four the
convenience of the vessel and only on
account of destination. (R. App. 221) Found proper and
not negligent.
C. The documents without contradiction establish that
the cabbages on the Pra River were booked for a 21-day
voyage but the voyage took 24-days and the cabbages on
board the Sirefjell were likewise booked for a 21-day
voyage and the ship took 26 days to reach Chicago.
Found proper and not negligent.
The district court, in entering findings and conclusions
‘favorable to defendants on the issues of negligence and
seaworthiness when the manifest weight of the evidence
clearly and ancontradictedly establishes negligence on the
part of the carriers, was clearly wrong. In order to re-
quire uniform acceptance of the decisions of this Court
(Schell v. The Vallescura, 293 U.S. 296; Missouri & Pacific
R.R. Co. v. Elmore € Stahl, 377 U.S. 134), and to correct
the confusion in the law now created by the decision of
23
the Court of Appeals for the Seventh Circuit in the case
at bar, and for due process and equal operation of the
law, we respectfully request the supervision and correct-
ing authority of this Court by issuing the Writ of Cer-
tiorari, and that the decision of the Court of Appeals and
District Court be reversed and liability placed upon de-
fendants for the damages.
CONCLUSION
In view of the foregoing, we respectfully submit that the
Court of Appeals opinion below is in conflict with the rul-
ings of this Court and other circuit courts of appeals on im-
portant questions of federal law and practice; that the
effect of the decision is to cause confusion and uncertainty
in the law with resulting loss of substantial justice to
citizens of the United States and will increase rather. than
decrease litigation in United States courts of review, un-
less the supervision and correcting authority of this Court
is brought into use by granting the writ of certiorari.
Petitioners pray that the writ of certiorari to the Court
of Appeals of the United States for the Seventh Circuit be
allowed in this case, and that, on such review by this
Court, the judgment of the United States Court of Appeals
for the Seventh Circuit be reversed in its entirety or re-
versed and remanded with appropriate directions.
Respectfully submitted,
ZEAMORE A. ADER,
Attorney for Petitioners.
Davip Lincoutn ADER,
Of Counsel
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APPENDIX
In the
Yuited States Court of Appeals
For the Seventh Circuit
SepremBeR TERM, 1971 SepremBer Session, 1971
No. 18891
Aunt Mn, Inc.,
Plaintiff-Appellant,
vs.
Fyett-OranJe Lives, et al.,
Defendants-A ppellees.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 68 C 1796 & 68 C 1797
Ricuarp B. Austin, Judge.
Fesruary 8, 1972
Before Knocu, Senior Circuit Judge, and Kerner and
Pety, Circuit Judges.
Peit, Circuit Judge. Although the sea was clearly less
than boiling hot, the defendants’ ships equally clearly
delivered cabbages far less than fit for kings.? Therefrom
arose this lawsuit.
1 Judge Kerner heard oral argument, but did not participate in the
adoption of this opinion.
*With appropriate respect to the memorable dissertation anent
many things by Lewis Carroil’s vocal walrus.
App. 2
Plaintiff Aunt Mid, Inc. appeals from the judgmen;
of the district court holding the defendants not liable for
the spoilage of two cargoes of Danish cabbage carried
from Rotterdam, The N etherlands, to Chicago, Illinois,
aboard ships charted by the defendants, the Ghanaian
Motor Vessel Pra River and the Norwegian Motor Vessel
Strefjell. Plaintiff sought recovery of $10,500 for the dam.
age to the cabbages on the Pra River, and $6,000 for the
cabbages on the Sirefjell.
The Carriage of Goods by Sea Act (COGSA), 46 U.s.c.
§ $1300-1315, governs these consolidated actions. Annt
Mid contends that it delivered the cabbage to the vessels in
good condition and that as a result of the defendants’
negligent stowage and carriage the cabbages were rotten
upon arrival in Chicago. It further claims that the Prq
River and the Sirefjell were unseaworthy.
Aunt Mid, Ine. makes cole slaw and tossed salads for
retail sale. In 1966, the president of Aunt Mid, Russell
LaMantia, entered into a joint venture on behalf of his
company with Suffolk Farms Packing Company of Massa-
chusetts to purchase Danish cabbage from Holland. Arnold
Wolf of Suffolk Farms represented the joint venture in
the purchase and inspection of the cabbage in Holland,
The two firms jointly purchased 500 tons of cabbage
in Holland in late October or early November 1966, All
500 tons came from two sources: a cabbage dealer from
whom 350 tons were purchased and a farmer from whom
150 tons were purchased. Aunt Mid’s share of the joint
purchase was 100 tons. The testimony was vague as to
whether Aunt Mid’s cabbages came from both the farmer
and the dealer. Plaintiff asserts that the cabbages from
the two sources were intermixed in shipment. This, no
App. 3
doubt, is true as to the total 500 ton shipment which was
spread through approximateley sixteen ships; however, it
is far from clear that the specific cabbages involved in
this case, which were carried on two ships only, came
from both sources. Further, as to the 350 tons from the
dealer, there is a paucity of evidence on such significant
matters as to how many farmers may have produced these
cabbages and as to the care they may have received prior
to their being loaded aboard the vessels.
Wolf first inspected the 150 tons of cabbage in the farm-
er’s holding house in the latter part of November or
early December 1966. The farmer had grown all his own
ecabbages and had stowed them in the holding house, where-
in they were the only cabbages. Wolf testified that he
found the farmer’s cabbage to be good, solid cabbage
and properly handled. Accompanied by LaMantia, he re-
visited the holding house in February 1967. The cabbages
were again found to be good and professionally handled.
The cabbages purchased from the produce dealer were
never personally observed by either Wolf or LaMantia
prior to shipment. As indicated hereinabove, there was
no evidence as to how they were stored and cared for
after harvesting or what their pre-voyage condition was.
We find no reason for qualifying this observation be-
cause of Aunt Mid’s assertion that there was such evi-
dence in the form of certain governmental certificates
and bills of lading. We discuss the probative value of these
items hereinafter.
The cabbages bound for Aunt Mid’s in Chicago were
packed in 50 pound mesh bags a few days prior to being
shipped and were carried to the port in closed trucks,
where they were placed on four vessels, the voyages of
App. 4
only two of which are the subject of this action.* LaMantis
requested that all the cabbages be shipped in Ventilated
stowage. The bills of lading issued by the vessels recited
that the goods were to go ‘‘Hold Stowage.”’
The Pra River cabbages were stowed on board on April
15, 1967, as ordinary or general cargo, not as perishable
cargo. The trip from Rotterdam to Chicago took 24 days
and the ship encountered temperatures ranging from ap.
proximately 32° to 52°F., the latter while on the Gulf
Stream. On arrival at Chicago, the cabbages were decayed,
gave off a strong rotting odor and were disclored black.
A surveyor from the Department of Agriculture found
that the cabbages suffered from bacterial soft rot. Before
leaving Holland, the cabbages had received certification
from the Phytosanitary Service (Plant Protection Service)
of The Netherlands and the Export Control Bureau, Also,
the vessel had issued a bill of lading stating that the
cabbages were in ‘‘apparent good order and condition.”
The cabbages to be shipped on the M. V. Sirefjell were
taken on board on April 22, 1967, and were placed in 4
reefer compartment (but without the refrigeration turned
on) as general cargo. Seven days at sea, the Chief Mate
smelled the cabbages and ordered the refrigeration to be
activated. The trip to Chicago took 26 days, during which
time the ship encountered temperatures again ranging from
32° to about 52°. The cabbages on arrival were dis-
colored black, were wet and running in part and had a
rotting odor. The Department of Agriculture inspector
found that the cabbages suffered from both bacterial soft
* Of the shipments bound for Aunt Mid, Inc. at Chicago, the
first contained 900 bags, the second, on the M.V. Pra River, con-
tained 1800 bags, the third, on the M. V. Sirefjell, contained 900
bags, and the fourth contained 900 bags.
ta
ed
ed
Sse res aC eA KrRL ERS | Ee
adie Me oe oe ee OU Oe
App. 5
rot and watery soft rot.* As in the case of the Pre River
cabbages, the Sirefjell cabbages had received certificates
from two Dutch agencies and a ‘‘clean’’ bill of lading from
the vessel.
The rot in both shipments was general throughout. Be-
cause the cabbages were deemed unfit for consumption,
the United States Bureau of Customs destroyed them.
The defendants contend that under the applicable law,
a shipper, as a condition precedent to recovery, must
establish the good order and condition of the goods
shipped. He must prove, in the case of perishables such
as cabbages, that the goods will survive the voyage booked.
The district court below found that Aunt Mid failed to
carry this initial burden.
The defendants also pleaded two affirmative defenses,
either of which, they claim, would absolve them from
liability: (1) that the damage resulted from an ‘‘act or
omission’’ of the shipper (46 U.S.C. §1304(2)(i)) and (2)
that the damage resulted from an ‘‘inherent vice’’ of the
goods (46 U.S.C. $1304(2)(m)). The ‘‘act or omission’’
was the decision of Aunt Mid’s president to ship the
eabbages in hold stowage rather than under refrigeration
to save freight costs. The ‘‘inherent vice’’ alleged was
the presence of various bacteria, spores and fungi—which
were invisible to the human eye—on the cabbages at the
time of loading. These bacteria allegedly multiplied and
caused the cabbage to decay. The district court held that
the defendants had proved both the affirmative defenses.
Aunt Mid has urged that the defendants could not rest
with the affirmative defenses. They assertedly also bore
*One the defendants’ expert witnesses stated that, on the basis of
black and white. photographs of the cabbages that he was shown, the
cabbages also suffered from the disease of alternaria.
App. 6
the burden of proving their freedom from negligence, The
defendants have maintained that their showing that th
damage resulted from an excepted cause eliminated the
need for them to prove their freedom from negligence, Jy
any event, the district court did consider the questig,
of the carriers’ negligence and the vessels’ alleged unses
worthiness. It concluded that the cabbages were
and unnegligently stowed and that the vessels Were seq.
worthy.
Preliminarily, we note that this court is bound by the
“‘elearly erroneous’’ test of Fed.R.Civ.P. 52(a). Our deci.
sion here reflects use of that test. Rules 1, 81(a), Fed
R.Civ.P. See also McAllister v. United States, 48 US.
19, 20 (1954), modif. denied, 348 U.S. 957 (1955).
We cannot agree with the plaintiff’s argument, advanced
in its reply brief, that the ‘‘elearly erroneous” rule is
inapplicable to this ease because there was little conflicting
testimony and, therefore, there would be no need to rely
on the trial judge’s ability to view the witnesses and to
make the ordinary determinations based on credibility ©
factors.
We need not address ourselves to the somewhat di-
vergent views on the scope of appellate review where
the findings are based solely on documentary evidenee
or undisputed facts (see 2B-W. Barron and A. Hoitzoff,
Federal Practice and Procedure § $1132, 1134 (Wright ed
1961 and Supp. 1970)). Here there was conflicting oral
testimony, and the district court obviously did not find
all witnesses equally credible. We reject the plaintiff’s
suggestion, the effect of which would be for this court
to try the case de novo.
We also are constrained to remark upon the mannet
in which Aunt Mid challenged the district court’s findings
POP Serre
wee
— oS 8 & 4
wee mereom as «s FT
App.7
of fact. It did not help to clarify the issues for us in a
dose and complex case. The plaintiff discussed specific
fndings only in its reply brief, thus allowing the defen-
dants no opportunity via brief to answer those challenges
point by point. Such a deferring procedure increases the
difieulty of an appellate court’s reviewing task.
The parties agree that bacteria ‘‘caused’’ the cabbages
a rot. Their experts seem to agree that certain conditions
must be present for the bacteria to multiply to such an
extent that they endanger the wholesomeness of the ve-
However, the parties disagree as to who is to
pear the fault for the cabbages’ deterioration. By their
afirmative defense based on 46 U.S.C. §1304(2)(i), the
defendants are basically maintaining that the growth of
the bacteria resulted from Aunt Mid’s failure to ship
the goods under refrigeration. The plaintiff insists that
the defendants’ negligence brought about the ‘‘immediate
cause’’—that is, the disastrous multiplication of destructive
bacteria—or, at least, contributed to its occurring.
With regard to the defendant’s affirmative defense of
act or omission of the shipper,® the defendants reply pri-
marily on an exchange of letters between Arnold Wolf
of Suffolk Farms and Russel LaMantia of Aunt Mid.
The following language in a March 27, 1967, message from
Wolf and LaMantia is crucial for the defense:
“Wolf & Wolf [the Dutch firm with which Wolf
was also associated] is of the opinion that cabbage to
the Great Lakes with a voyage of three weeks should
be shipped under refrigeration.
‘As we mentioned above, the defendants also pleaded the
. afirmative defense of “inherent vice,” 46 US.C. §1304(2)(m).
To decide the case before us, we find it ummecessary to reach
that issue.
App. 8
**[YJou should bear in mind that there is & certaiy
risk involved, while under refrigeration you will pre.
tically have no risk. The decision and responsibilit;
is of course entirely yours.”’
The district court considered this language to be of sh
stantial significance as reflected in the following part oj
the fourth conclusion of law:
‘(T]he evidence shows that the plaintiff compare!
the freight rates applicable to ventilated hold and
refrigerated stowage; then, against the advice of its
agent, Mr. Wolf, and contrary to the usual and
customary industry practice, it elected to take the
risk of shipping the goods in ventilated hold 5
in order to save $1,560.00 in freight rates. The plain.
tiff represented to the vessel’s [sic] agent that the
goods would carry in ventilated space for a period
of twenty-one days; that they would not was evident
from the condition of the goods at discharge. Had
the plaintiff elected to ship the goods under refrigera-
tion at approximately, but not lower than, 32 degrees,
the loss would not have occurred. . . .
**The plaintiff gambled when he shipped the cabbages
in a ventilated hold rather than under refrigeration
This act, together with the tendency of the goods
to spoil at temperatures in excess of 40 degrees,
caused the loss... .’’
The plaintiff calls to our attention another sentence
in the March 27th letter: ‘‘Salvi is inclined to agree with
you to ship it in ventilated space.” [Emphasis supplied]
According to LaMantia, ‘‘Salvia’’ referred to Salvi De
touche, who performed the same function for Suffolk
Farms that LaMantia performed for Aunt Mid, that is,
buying and selling fresh vegetables and supervising the
packaging of them. LaMantia further stated that he highly
valued Detouche’s opinion.
App. 9
Wolf was called as a witness by the plaintiff. It was
Aunt Mid who stressed Wolf’s qualifications: he was a
veteran importer-exporter of vegetables, and he knew
a great deal about cabbages. The district court had the
opportunity to observe Wolf’s demeanor and to evaluate
his credibility. We will respect the court’s reliance on
Wolf’s expert opinion.
In a further attempt to minimize the effect of Wolf’s
opinion expressed in the March 27th letter, Aunt Mid
refers to testimony by Wolf that, until the advent of
containerization, he usually shipped goods from Holland
to the United States in ventilated stowage. The plaintiff
also points out that Wolf recalled instances where cab-
bages had been successfully carried to the United States
by ship in ventilated stowage as late as July of the year
following harvest.
On cross-examination, the defendants elicited from Wolf
that his above remarks had reference to voyages from
Holland to the east coast (New York, Boston) of the
United States, voyages which take approximately nine
days. In light of his findings, we infer that the trial judge
decided that the difference in time between trips from
Holland to the east coast and from Holland to Chicago
greatly limited the applicability of Wolf’s remarks. We
fnd no clear error in the court’s apparent conclusion
that Wolf’s testimony did not prove that the use of
ventilated stowage was customary and usual for voyages
from Holland to Chicago.
The defendants put in evidence a handbook written
by their witness, Dr. Ramsey, a pathologist. That book
states that ‘‘[s]hipments to distant markets should be
_ refrigerated at 40 to 45 degrees Fahrenheit during
transit.’ In its findings of fact, the district court found
+ ® E-
FPPARRARE PRS RraR Se Ss = 2 &
Fer &
a ee ee
App. 10
that refrigeration to at least 40 to 45 degrees was th
usual and customary industry practice for shipments t
-distant markets. As previously noted, in its fourth cong.
sion of law, the court stated, ‘‘had the plaintiff elect
to ship the goods under refrigeration at approximately
but not lower than, 32 degrees, the loss would not haye
occurred. ”’
Aunt Mid contends that the district court’s conclusion
is inconsistent with its findings and with the expert testi.
mony at trial. We cannot deny that there was som
confusion and confliction as to exactly what was a safe
temperature and at what thermal points the spoiling pro.
pensities of cabbages would be almost completely con.
trolled merely retarded or vigorously accelerated.
The conflicts illustrate the necessity for resolution
thereof on a credibility basis by the district court. Further,
we do not find the inconsistencies more than apparent
inasmuch as there was supporting evidence that the dis.
eases would not be undtly deleterious at the 40 to 4
degree range.
While primary attention seems to have been directed
during the trial to temperatures at various times and
places, there was also testimony indicating that high
humidity would provide the setting for the rapid growth
of the destructive organisms. Exactly what the relative
humidity was at the time of the shipments here involved
is not clear in the record.
Other argumentative contentions are advanced by Aunt
Mid of similar ilk to these previously mentioned, all of
which are directed at the conflicting testimony, with the
apparent underlying premise that the opinions advanced
by plaintiff’s witnesses are inherently more believable.
If, arguendo, and as a matter of first impression, this
were unseaworthy.
App. 11
were so, we are not on appellate review ‘“‘left with the
‘te and firm conviction that a mistake has been com-
mitted.’? United States v. United States Gypsum Co., 333
US. 364, 395 (1948). No purpose is served, other than
unduly lengthening this opinion, by a further detailed
analysis of each claimed factor affecting or not affecting
the ocean voyage of these particular cabbages. Sufficient
has been set forth herein to demonstrate the necessitous
and determinative applicability of the clearly erroneous
rule.
Even if, as Aunt Mid urges, the district court’s findings
are not completely internally consistent and do contain
afew inaccurate summaries of the testimony, we conclude
that they sufficiently inform us of the evidentiary bases
for the district court’s decision. Hence, in light of the
evidence discussed above, we are unpersuaded that the
district court erred in determining that the plaintiff
gambled in using ventilated stowage rather than refrigera-
tion and that it should bear the loss resulting from the
election.
As the court stated in Commodity Service Corp. v.
Boston Ins. Co., 1964 A.M.C. 926, 939 (S.D.N.Y. 1964),
af’d sub nom. Commodity Service Corp. v. Hamburg-
American Line, 354 F.2d 234 (2d Cir. 1965), ‘‘The tempera-
tures to which the fatbacks were exposed while on the 4
carrier’s pier and in the course of ocean transit must be
deemed the risk of the shipper since the plaintiff elected
not to contract for specially cooled treatment either at the
pier or in transit.”’ .
What we have said with regard to the issue of ‘‘act or
omission’ is equally applicable to the other principal
issues raised by Aunt Mid, i.e., whether the defendants
were negligent, which negligence was an efficient cause
of the deterioration, and whether the vessels in question
:
FT ee AO: Bee UD ae NT SPE OE ae ee
Fa na Ld Do
COE Pep ay FASE ARON at te TE eGR BI
App. 12
Piercing through the weltering contentions—that then
was inadequate ventilating equipment, that cabbages wer
stowed so as not to be readily accessible for i i
that outside fresh air could not be introduced but only
stale air was recirculated, that one hold was e i
warm because near the engine room, that Proper step,
were not taken to investigate the deterioration, that 80m
cabbages were stowed on top of heat-generating mercha,
dise, and variations of the foregoing —we even
find ourselves with the conviction that irrespective of
how we might have decided the issues on the conflicting
testimony relating thereto, we are unable to say that the
findings of fact are clearly erroneous or that the coneln.
sions of law based thereon require a reversal.
Upon analysis it appears that plaintiff Aunt Mid Was
really seeking a trial de novo on this appeal. However,
“‘[t]his Court, upon review, will not retry issues of faet
or substitute its judgment with respect to such issues for
that of the trial court.... In determining whether there
is a sufficient evidentiary basis for the court’s findings
of fact, we must take that view of the evidence and the
inferences deducible therefrom which is most favorable
to the .. . [party prevailing below].”” Cleo Syrup Corp,
v. Coca-Cola Co., 139 F.2d 416, 417-18 (8th Cir. 1943),
cert. denied, 321 U.S. 781 (1944). Accord: Shapiro y.
Rugens, 166 F.2d 659, 665, 666 (7th Cir. 1948).
The position which we have reached on the issues here-
inbefore discussed is well stated in the language of Judge
Hastings in Prince v. Parker Mfg. Co., 419 F.2d 34, 38
(7th Cir. 1969), as follows:
“In sum, since it is left to the trial court to weigh
the evidence, resolve any conflicts, draw inferences,
determine the credibility of witnesses and declare the
result, we hold there is substantial evidence in the
FSnmaAaa Fst BSS Se 8
BPBeraeuwae ti SOs
i ¢F
—
—-
x
h
s,
e
e
App.13
record as a whole to support the challenged findings.
Further, not having a firm and definite conviction
that a mistake has been committed, we hold that the
findings of fact and conclusions of law based thereon
are not clearly erroneous.’’
Aunt Mid also claims reversible error arising from cer-
tain of the district court’s rulings excluding proffered
evidence. In directing our attention to these matters we
do so in the light of the fact that this was a bench trial.
The exclusion of evidence which should properly have
been admitted is much more susceptible to having a dis-
astrous effect upon the litigant’s cause where a jury is
involved as contrasted to the bench trial, where the finder
of fact has heard the evidence in dispute in the form of a
proffer and may well have decided that no weight what-
soever would be accorded to it even if technically admitted.
Cf. United States v. Compania Cubana de Aviacion, 8.A.,
994 F.2d 811, 822 (5th Cir. 1955).
The first ruling challenged pertains to the phytosanitary
certificates issued by the Plant Protection Service of The
Netherlands, an official department of the Dutch Govern-
ment. Their authenticity and genuineness were not ques-
tioned, but the court permitted them in evidence only for
the fact that they had been issued. The court would not
admit them for the truth of their statements, which were
to the effect that the cabbages were ‘‘thoroughly examined
_,. and were found ... to be substantially free of in-
jurious diseases and pests.’? Aunt Mid relies on 28 U.S.C.
_ §§1782(a) and 1741.
While the admission of this evidence would seem to be
directed in part at least to the inherent vice issue which
we have not deemed necessary to consider, we are of the
opinion that the district court’s ruling was correct in any
event.
App. 14
This was not a situation where a certificate recorde|
a purely factual matter, such as the number of bags oj
cabbage, whether there were any objective visual eVidenees
of bruising or other damage to the cabbages, or ey
that the shipment was in apparent good condition, Her
the ‘‘truth’’ which Aunt Mid wanted in evidence was a
opinion that the cabbages were free of injurious diseases
In view of the testimony of the nature of the particular
diseases attacking the cabbages, it appears clear thy;
something more than a mere routine visual examination
or inspection would have been required to support the
opinion. The district court correctly pointed out that th
piece of paper could not be cross-examined, and the jp.
spector could not be.
As this court stated in United States v. Bohle, 445 F.4
04, 65 (7th Cir. 1971), ‘‘. . . the party to be confronted
by such an opinion should have the full opportunity of
cross-examination. We must also keep in mind that CTOss-
examination deals not only with the basis and content
of an opinion but with the professional qualification of
the person rendering the opinion.’’
The distinctions that this court made in Bohle, supra,
are applicable here.
We have no particular doubt on the evidence in this
case that the cabbages were in apparent good condition!
or at least were substantially so, at the time of embarka-
tion; but that is not, in view of the particular disease
or diseases here involved, the crucial question.
® Indeed, during the course of the trial when ruling upon an ob-
jection to a hypothetical question, the district court observed, “[n]o-
body ever tested it to see how good the condition was. Nobody
could see, based on what witnesses have been here, what the con-
dition was except apparently it was in good condition.” [Emphasis
supplied. |
258 85 ¢
2 ERE
App. 15
Aunt Mid’s next contention of error on evidentiary rul-
ings was the striking from the testimony of evidence con-
| cerning the fact that several other shiploads of cabbages
from the same sources, bagged the same way, shipped in
ventilated stowage from Rotterdam to the United States
in the same period of time and held for the same length
| of time were found to be in excellent condition.
At the outset it must be noted that 12 of the shipments
; went only to the east coast of the United States and not
| to Chicago via the St. Lawrence and Great Lakes. The
east coast voyage was considerably shorter, and we have
no difficulty in affirming the district court’s exclusion of
' this particular evidence. The evidence here with regard
to the other two ships going to Chicago presents a closer
question. However, upon analysis, despite continued efforts
on the part of the plaintiff during the trial to show
similarity of conditions and circumstances, we do not find
that those efforts were crowned with sufficient success
to make this evidence necessarily admissible. It appears
clear from an overall view of the evidence and the findings
of fact that the district court would have given no weight
to this particular evidence which was proffered.
Looking at the evidence we are unable to state why
cabbages on two ships arrived in Chicago in satisfactory
condition and cabbages on two other ships did not. Like-
wise, we are unable to state why one bowl of fruit on a
dining room table will appear to be blessed with relative
immunity to natural decay when the following week a bow]
of similar fruit in the same dining room will succumb
rapidly to the ravages of time or disease. We are primarily
concerned here with the two ships which delivered the
damaged cargo. The district court having found that the
ecabbages were not negligently stowed, that the vessels
were not unseaworthy and that the difficulty arose from
App. 16
an act or omission of the plaintiff, all of which we have
found not to be clearly erroneous, we cannot Say tha
the exclusion of the particular evidence Was prejudicia|
to the plaintiff.
As we have already noted, it was not clear that the ty
shiploads in question necessarily came from the same
source as the other shipments to the United States. This
is an initial stumbling block which plaintiff did aot gy.
mount in attempting to show sufficient Similarity of eon.
ditions or circumstances so as to make the evidence ad.
missible.
Looking at the matter from another point of View, if
the evidence had been admitted without more proof of
similarity of conditions and circumstances than was here
brought forth and the eventual judgment had been for
the plaintiff, the defendant would have been in a position
justifiably to have attacked the judgment founded in part |
on such evidence,
Finally, and in any event, this evidence is offered solely .
on the issue of the inherent vice, which issue we have |
not found it necessary to reach in deciding this case.
Aunt Mid next contends that the court committed re.
versible error in not permitting its refuttal witness, plant
pathologist Maleolm C. Shurtleff, to answer the following
question:
‘“‘In your opinion, as an expert, Doctor, as a prac.
tical matter, would it be reasonably safe to ship cab-
bages from mid-April to mid-May from Holland, across
the Atlantic, down the St. Lawrence to the Port of
Chicago in well-ventilated stowage when the tempera-
tures on the Atlantic ranged between 32 degrees and
54 degrees???
> cr Hm @® &S © DS
hRhRHh &? OO} ss ab «ft S&S
ise PEST AD 504 Mota “ll Bad Billets le Moa Mh PO
App. 17
The offer of proof indicated that the witness would have
answered ‘‘Under well-ventilated stowage, yes.”’
Plaintiff complains, probably justifiably, that the dis-
trict court sustained a general objection which specified
no grounds and, when asked as to the grounds of the
' gustaining of the motion, the court merely replied that
«the record discloses the grounds.’’
Notwithstanding that the matter now under considera-
tion occurred near the close of a five day bench trial,
which the court rather obviously was trying to bring to
a terminal status and during which all of the matters
encompassed in the particular question and the expected
answer had been thoroughly ventilated for the court, nev-
ertheless, in the particular situation here involved it would
seem it might have been better practice for the court
to have satisfied counsel’s request and to have stated
the grounds on which the objection was sustained.
Aunt Mid refers te the question as being a hypothetical
question and contends that if the objection had been sus-
tained on the ground that some elements had been left out
of the question, a specification of the ground for the
ruling would have enabled counsel to have corrected the
question. While the question does not strike us, in form,
as a typical hypothetical question, nevertheless, there is
some validity in the contention and without the record
showing the basis for the sustaining of the objection, it
is necessary for us to look at the record to which the court
referred to see if there was any prejuidice to plaintiff by
the exclusion. We are of the opinion that there was none.
The question is a close one and was not made any less
so by the fact that an expert pathologist called by the
defendants had been permitted to testify over an objection
that he had an opinion that the ordinary prudent shipper
ENA P NTI ROR aN —
Ry PTT CUOMO BPG GAS BEM
ere ge
mnreigtt?
ret,
ONSET destpg eens
——
App. 18
of cabbages would be taking a big gamble to ship cabbag
which had been in ventilated storage in Holland for
period of approximately 4 and ™% months on aD oe
voyage expected to take approximately 21 days in up
frigerated stowage. Indeed, the district court placed ;
liance on this particular testimony in the Conclusions ,
law.
However, it becomes so obvious as to be beyond arg
ment that even if there had been a technical admissic
of the proffered answer to the question the district coy
would have been of the opinion that the prudent shipp.
would not have taken the gamble. There was evidence
already before the court during the five days of trial ths
some shipperes thought it was safe to ship cabbages j
non-refrigerated stowage and some did not. The distric
court was aware of the difference of opinions held b
the experts, and we cannot say the court was wrong j
finding the elements of a gamble in this very difference:
Further, the particular proposed answer would mere)
have had a cumulative summary effect, as Dr. Shurtle
had already testified in detail about the impact of variow
conditions and their influence upon the development o
the disease, the clear import of which was that prope!
ventilation on the ship would have substantially prevente
the condition’s developing. The proposed question and an.
swer really added nothing more.
Finally, after extended colloquy on additional hypothet
ical questions, the court suggested that defendants dis
continue objections, let the witness answer, and then the
defendants could deal with him on cross-examination, Dr.
Shurtleff was then permitted tc testify in response to a
hypothetical question that he thought the ventilation on the
defendants’ ships was inadequate. This was the crucial
App. 19
part of his testimony, and we cannot find that the technical
exclusion of the summation answer to the opinion question
was such as to constitute reversible error.
In sum, it was fully before the district court that there
yere differences of opinion as to the practical safety of
shipping cabbages as they were here shipped, and we
are not convinced that there would have been any change
in the finding of fact by the mere act of admitting the
somewhat vague opinion, which we do not deem as having
any additional probative value.
We have considered other claimed errors and do not
find cause for reversal.
For the reasons hereinbefore set out, the judgment of
the district court is affirmed.
AFFIRMED.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit.
App. 20
UNITED STATES COURT OF APPEALS
For The Seventh Ciricuit
Chicago, Illinois 60604
bad
> =
I, Kenneth J. Carrick, Clerk of the United States Cour
of Appeals for the Seventh Circuit, do hereby certify thy
the foregoing pages contain a true Copy oi
1. Joint Abbreviated Appendix filed April 19, 197),
Cause No. 18891
AUNT MID, INC.,
Plaintiff-A ppellax,
vs.
FJELL-ORANJE LINES, et al.,
Defendants-A ppellees
as the same remains upon the files and records of the
United States Court of Appeals for the Seventh Cirenit
IN TESTIMONY WHEREOF I hereunto
subscribe my name and affix the seal of §
said United States Court of Appeals for §
the Seventh Circuit, at the City of §
Chicago, this 12th day of July A.D. 1972 |
William H. Pittman
William H. Pittman
Deputy Clerk of the United State
Court of Appeals for the Seventh
Circuit.
~ «©
reas as
> eB
App. 21
UNITED STATES COURT OF APPEALS
For The Seventh Circuit
Chicago, Illinois 60604
I, Kenneth J. Carrick, Clerk of the United States Court
of Appeals for the Seventh Cireuit, do hereby certify that
the foregoing pages contain a true copy of
1. Opinion filed February 8, 1972.
9, Judgment entered February 8, 1972.
3. Appellant’s Petition For Rehearing filed March 13,
1971.
4. Order entered April 19, 1972 denying Petition For
Rehearing.
Cause No. 18891
AUNT MID, INC.,
Plaintiff-A ppellant,
vs.
FJELL-ORANJE LINES, et al,
Defendants-A ppellees.
as the same remains upon the files and records of the
United States Court of Appeals for the Seventh Circuit.
IN TESTIMONY WHEREOF I hereunto
subscribe my name and affix the seal of
said United States Court of Appeals for
the Seventh Cireuit, at the City of Chi-
cago, this 12th day of July A.D. 1972.
William H. Pittman
William H. Pittman
Deputy Clerk of the United States
Court of Appeals for the Seventh
Circuit.
o~
—. s =
App. 22
UNITED STATES COURT OF APPEALS
Seventh Circuit
December 15, 1971
I have been informed that an indictment has been rp.
turned against Judge Kerner.
Judge Kerner promptly asked the court to relieve hin
of all participation in any activity of the court pending the
final disposition of the indictment against him. The cour
has accepted his request and Judge Kerner will not par.
ticipate in any court matter during the pendency of the
case arising from the indictment.
Luther M. Swygert
I, Luther M. Swygert, Chief J udge of the United States
Court of Appeals for the Seventh Cireuit, do hereby certi.
fy that the above memorandum, dated December 15, 1971,
was publicly announced on said date.
Luther M. Swygert
Chief Judge, United States Court of
Appeals for the Seventh Cireuit
(Seal)
Title 28, United States Code, Judiciary and Judicial Pro-
cedure,
Vol. 7, p. 7431, Ch. 3—Courts of Appeals
§ 46. Assignment of judges; divisions ; hearings; quo-
rum.
(a) Cireuit judges shall sit on the court and its di-
visions in such order and at such times as the court di-
rects.
(b) In each circuit the court may authorize the
hearing and determination of cases and controversies
by separate divisions, each consisting of three judges.
Such divisions shall sit at the times and places and
hear the cases and controversies assigned as the court
directs. 2
App. 23
(d) A majority of the number of judges author-
ized to constitute a court or division thereof, as pro-
vided in paragraph (c), shall constitute a quorum.
(June 25, 1948, ch. 646, 62 Stat. 871; Nov. 13, 1963,
Pub. L. 88-176, § 1(b), 77 Stat. 331.)
Vol. 7, p. 7562, Ch. 83—Courts of Appeals -
§ 1291. Final decisions of district courts.
The courts of appeals shall have jurisdiction of
appeals from all final decisions of the district courts
of the United States.
Vol. 7, p. 7560, Ch. 81—Supreme Court
Sec. 1254. Courts of appeals; certiorari; appeal;
certified questions.
Cases in the courts of appeals may be reviewed by
the Supreme Court by the following methods:
(1) By writ of certiorari granted upon the petition
of any party to any civil or criminal case, before or
after rendition of judgment or decree;
Vol. 7, p. 7636, Ch. 133—Review—Miscellaneous Provisions
Sec. 2101. Supreme Court; time for appeal or cer-
tiorari; docketing; stay.
(c) Any other appeal or any writ of certiorari in-
tended to bring any judgment or decree in a civil ac-
tion, suit or proceeding before the Supreme Court for
review shall be taken or applied for within ninety
days after the entry of such judgment or decree. A
justice of the Supreme Court, for good cause shown,
may extend the time for applying for a writ of certi-
orari for a period not exceeding sixty days.
Vol. 7, p. 7568, Ch. 85—§1333, Admiralty, maritime and
prize cases
The district courts shall have original jurisdiction,
exclusive of the courts of the States, of:
App. 24
(1) Any civil case of admiralty or maritiny
jurisdiction, saving to suitors in all cases all oth
remedies to which they are otherwise entitled,
Title 28, United States Code, Appendix—Rules of 4p
pellate Procedure.
Vol. 7, p. 7702, Rule—Appeal as of Right—When Taka
(a) Appeals in Civil Cases.
In a civil case (including a civil action which jp.
volves an admiralty or maritime claim and a Proceed.
ing in bankruptey or a controversy arising therejn)
in which an appeal is permitted by law as of Tight
from a district court to a court of appeals the notig
of appeal required by Rule 3 shall be filed with the
clerk of the district court within 30 days of the dat
of entry of the judgment or order appealed from; but
if the United States or an officer or agency thereof is,
party, the notice of appeal may be filed by any party
within 60 days of such entry. If a timely notice of
appeal is filed by a party, any other party may file
a notice of appeal within 14 days of the date on which
the first notice of appeal was filed, or within the time
otherwise prescribed by this subdivision, whichever
period last expires.
The running of the time for filing a notice of appeal
is terminated as to all parties by a timely motion filed
in the district court by any party pursuant to the Fed.
eral Rules of Civil Procedure hereafter enumerated in
this sentence, and the full time for appeal fixed by
this subdivision commences to run and is to be com- f
puted from the entry of any of the following orders
made upon a timely motion under such rules: (1)
granting or denying a motion for judgment under Buk
50(b); (2) granting or denying a motion under Buk
52(b) to amend or make additional findings of fact,
whether or not an alteration of the judgment would be
required if the motion is granted; (3) granting or
denying a motion under Rule 59 to alter or amend the
App. 25
time judgment; (4) denying a motion for a new trial under
ther Rule 59. A judgment or order is entered within the
L
bp
meaning of this subdivision when it is entered in the
civil docket.
Title 28, Appendix—Federal Rules of Civil Procedure.
Vol. 7, p. 7814—Bule 52—Findings by the Court.
aken
(a) Effect.
i. In all actions tried upon the facts without a jury
eed. or with an advisory jury, the court shall find the facts
in) specially and state separately its conclusions of law
ight therein, and judgment shall be entered pursuant to
tige Rule 58; and in granting or refusing interlocutory in-
the junctions the court shall similiarly set forth the find-
late ings of fact and conclusions of law which constitute
but the grounds of its action. Requests for findings are not
ea necessary. for purposes of review. Finding of fact
rty shall not be set aside unless clearly erroneous, and due
of regard shall be given to the opportunity of the trial
file court to judge of the credibility of the witnesses. The
ich findings of a master, to the extent that the court adopts
ime § them, shall be considered as the findings of the court.
ver If an opinion or memorandum of decision is filed, it
will be sufficient if the findings of fact and conclusions
of law appear therein. Findings of fact and conclu-
eal sions of law are unnecessary on decisions of motions
led under Rules 12 or 56 or any other motion except as
4 provided in Rule 41(b).
in
by F Title 46, United States Code, Shipping.
Vol. 7, p. 11619, § 1302. Duties and rights of carrier.
a er 4
~—>
Subject to the provisions of section 1306 of this title,
under every contract of carriage of goods by sea,
the carrier in relation to the loading, handling, stow-
eS SSE =
—
App. 26
age, carriage, custody, care, and discharge of su
goods, shall be subject to the responsibilities and li
bilities and entitled to the rights and immunities 8
forth in sections 1303 and 1304 of this title. (Apr. 1
1936, ch. 229, § 2, 49 Stat. 1208.)
Section Referred to in Other Sections
This section is referred to in section 1313 of th
title.
§ 1303. Responsibilities and liabilities of carrier an
ship.
(1) Seaworthiness.
The carrier shall be bound, before and at the begin
ning of the voyage, to exercise due diligence to—
(a) Make the ship seaworthy;
(b) Properly man, equip, and supply the ship;
(c) Make the holds, refrigerating and cooling char
bers, and all other parts of the ship in which goods ar
carried, fit and safe for their reception, carriage, ar
preservation.
(2) Cargo.
The carrier shall properly and carefully load, har
dle, stow, carry, keep, care for, and discharge the good
carried.
(4) Bull as prima facie evidence.
Such a bill of lading shall be prima facie evidence o
the receipt by the carrier of the goods as therein &
scribed in accordance with paragraphs (3) (a), (b)
and (c), of this section: Provided, That nothing in thi
chapter shall be construed as repealing or limiting th
application of any part of sections 81 to 124 of Title 4
Bans oo. Te ee ee
App. 27
Vol. 7, P- 11620, §1304—Rights and immunities of carrier
and ship.
(i) U nseaworthiness.
Neither the carrier nor ihe ship shall be liable for
loss or damage arising or resulting from unseaworthi-
ness unless caused by want of due diligence on the part
of the carrier to make the ship seaworthy, and to se-
cure that the ship is properly manned, equipped, and
supplied, and to make the holds, refrigerating and cool
chambers, and all other parts of the ship in which
goods are carried fit and safe for their reception, car-
riage, and preservation in accordance with the pro-
visions of paragraph (1) of section 1303 of this title.
Whenever loss or damage has resulted from unsea-
worthiness, the burden of proving the exercise of due
diligence shall be on the carrier or other persons claim-
ing exemption under this section.
(2) Uncontrollable causes of loss.
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;
(b) Fire, unless caused by the actual fault or
privity of the carrier; .
(ec) Perils, dangers, and accidents of the sea or
otherwise navigable waters;
(d) Act of God;
(e) Act of war;
(f) Act of public enemies ;
(g) Arrest or restraint of princes, rulers, or peo-
ple, or seizure under legal process;
(h) Quarantine restrictions ;
App. 28
(i) Act or omission of the shipper or owner of ¢ ;
goods, his agent or representative ; ee,
(j) Strikes or lockouts or stoppage or restraint at
labor from whatever cause, whether partial or gener).
Provided, That nothing herein contained shall be Con.
strued to relieve a carrier from responsibility for th,
carrier’s own acts;
(k) Riots and civil commotions;
(1) Saving or attempting to save life or Property
at sea;
(m) Wastage in bulk or weight or any Other logs
or damage arising from inherent defect, quality, or vie
of the goods;
(n) Insufficiency of packing ;
(c) Insufficiency or inadequacy of marks;
(p) Latent defects not discoverable by due dili.
gence; and
(q) Any other cause arising without the actual
fault and privity of the carrier and without the fault
or neglect of the agents or servants of the carrier, but
the burden of proof shall be in the person claiming the
benefit of this exception to show that neither the actual
fault or privity of the carrier nor the fault or neglect
of the agents or servants of the carrier contributed tp
the loss or damage,
Fourteenth Amendment, United States Constitution
Section 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside,
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.