# Petitioners Brief — Tm Duche & Sons, Limited v. American Schooner &C. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0423%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1921 - **Citation:** 255 U.S. 77 ## Text IN THE Supreme Court of the United States. In the Matter of the Petition of T. M. Duché & Sons (Buenos Aires), Limited, for a Writ of Certiorari Directed to the Circuit Court of Appeals for the Third Cirewt to Bring Before the Supreme Court the Case of T. M. DUCHE & SONS (Bvenos Arres), LIMITED, Libellant and Appellee, AGAINST THe American Scuooner “JOHN TWOHY,”’ Her Tack.Le, Erc., Responpent, ALBERT D. CUM- MINS anv HOWARD COMPTON, Claimants and Appellants, OR in the Alternative for a Writ of Mandamus Directing the Circuit Court of Appeals of the United States for the Third Circuit to Dismiss the Motion Filed Therein by the Appellants, for Leave to Withdraw Their Appeal and Requiring Said Circuit Court of Appeals to Hear and Determine Said Cause on Its Merits. BRIEF IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI ORIN THE ALTERNATIVE FOR A WRIT OF MANDAMUS. THE FACTS. The facts in this case are as follows: The schooner ‘‘John Twohy,’’ warranted to be “tight, staunch, strong and in every way fitted for the 2 intended voyage,’’ was chartered by the claimants to the libellant to carry a full and complete cargo of bones from Buenos Aires to Philadelphia. The ‘‘Twohy”’ was a reclaimed wreck. When she sailed from Philadelphia for South America to enter on the performance of this charter she had just under- gone repairs after having lain in a badly wrecked con- dition for fifteen months. In the course of her out- ward voyage, it appeared that she was leaking, the extent of the leak and other conditions attending her outward voyage being unobtainable because of the de- struction of her log by claimants after this suit was brought, but before hearing. On October 21, 1915, having loaded a full cargo, the ‘‘Twohy”’ sailed from Buenos Aires bound for Philadelphia, where she arrived December 28, 1915, and discharged her cargo, a large part of which was found to be wet and damaged. In addition to deliver- ing a part of the cargo in a damaged condition, the ship wholly failed to deliver 149,069 pounds of the bones called for by the bill of lading, which admitted without any qualification whatsoever, the receipt of 1,210,000 kilos, equivalent to 2,670,345 pounds. The libel in this case set forth two claims: One for short delivery and the other for injury to part of the deliver cargo, both arising out of the unsea- worthy condition of the ship. It appeared that when the vessel was only about nile days out from Buenos Aires she encountered weather which was slightly rough, but not more severe than was to be expected at that time and place. Dur- ing this rough weather she began to leak badly and can- tinued to do so for the rest of the voyage, the leakage being at the rate of about six inches of water an hour, necessitating pumping every two hours, there being at one time as much as five feet of water in the hold. The libellant contended that the loss and damage SANS ANT Ee Oe hy DH AORIE 7 EVLA LIN YN ; aN aa fs 5: : = 3 was due to the unseaworthiness of the vessel, the claim ants, defending, that it was due to perils of the sea within the exceptions of the charter party and bill of lading. The Court below found the vessel unseaworthy and awarded libellant damages for the injury to the part of the cargo delivered, but on the ground that libel. lant’s proof did not sufficiently demonstrate the amount of the short delivery, refused to award libellant any damages on account of that claim. A final decree was entered on April 16, 1918, and on April 27, 1918, an appeal was taken by the claimants to the Circuit Court of Appeals of the Third Cireuit. This appeal came on for argument in October and November, 1918, and on each occasion was continued at the request of the appellants. It again came on in De- cember, 1918, when the appellants, apparently con- vineed that no further continuances would be granted, moved for leave to withdraw their appeal. This motion was opposed by the petitioner here, but on February 10, 1919, the Cireuit Court of Appeals over the protest and without the consent of the peti- tioner, in an opinion by Judge Buffington (Ree. p. —_), granted the motion, provided the appellant paid the amount of the decree of the District Court with inter- est and costs within thirty days, which payment the ap- pellant below—the respondent here—is apparently willing, and has offered, to make. Following this opinion the present petition was filed praying for a writ of certiorari. THE QUESTIONS OF LAW. The questions of law presented by the situation in the court below and upon this petition are: I. Where a libellant in admiralty recovers a part of his claim in the District Court, and is denied the bal- ance thereof, and the respondent appeals to the Circuit — crepe 4 Court of Appeals, can the respondent-appellant there- after, and after the expiration of the time limited for an appeal by the libellant, withdraw his appeal over the protest and without the consent of the libellant- appellee? II. Under such facts is it within the legal discretion of the Circuit Court of Appeals to permit the appellant to withdraw its appeal over the appellee’s objection and without its consent? ARGUMENT. Your petitioner submits that the writ prayed for should be granted for the reasons that the questions in- volved in the Cireuit Court of Appeals were novel ones, of great importance in the Admiralty practice, not heretofore decided by this Court or any other Federal Court; that the decision of the Circuit Court of Ap- peals in this case js erroneous, tends to complicate the Admiralty practice, is contrary to and to a large ex- tent nullifies important decisions of this Court of such long standing as to have become settled iaw, and if allowed to stand unreviewed and uncorrected by this Court will, in many cases, as it has in this, work the greatest injustice to suitors who act in reliance upon the decisions of this Court for the protection of their rights and the conduct of their litigation. To fully realize the scope and effect of the ruling by the Cireuit Court of Appeals in this case and to ap- preciate its practical application, it is necessary to consider the facts and issues presented in this case on the appeal to the Cireuit Court of Appeals, Two issues were raised in the District Court— First, the seaworthiness of the “‘John Twohy,’’ and, second, the amount of the loss. The second issue had two branches: (a) Loss arising from damage to part of a = —— Oe - — the cargo delivered; (b) loss arising from short deliv- ery a The District Court found the vessel unseaworthy and awarded damages for injury to the eargo deliv- ered, but denied recovery for the short delivery. These issues were all so closely interwoven that it is necessary to consider them together. With regard to the issue of seaworthiness in this case, four points must be borne in mind: First.—The provision in the charter party that the vessel is ‘‘tight, staunch, strong and in every way fitted for the intended voyage’’ is an absolute warranty of seaworthiness even against latent defects. The Edwin L. Morrison, 153 U.S. 199; The Lockport, 197 Fed. 213; The Caledonian, 42 Fed. 681. Second.—The Harter Act, which is not mentioned in the charter, does not operate to relieve the owner or the vessel from liability for the consequences of un- seaworthiness, even where it is proved that the owner exercised due diligence to make the vessel seaworthy. It is incumbent on the owner to provide a seaworthy vessel, unless by contract he limits his obligation to the exercise of due diligence to make her so. The Carib Prince, 170 U.S. 655; The Sandfield, 92 Fed. 663; Farr & Bailey Co. v. International Naviga- tion Co., 98 Fed. 636; The Ninfa, 156 Fed, Rep. 512; The Indrapura, 190 Fed. Rep. 711. Third.—There is no provision in the charter party limiting the obligation of the owners to provide a sea- a ” ned 6 worthy vessel or reducing their obligations in that con. nection to the exercise of due diligence to make the vessel seaworthy. Fourth—The burden of affirmatively proving the seaworthiness of the vessel at the time of loading the cargo, and at the commencement of the voyage, rests upon the ship owner. International Navigation Co. v. Farr & Bailey Co., 181 U.S, 218; The Wildcroft, 201 U.S. 378; Bradley v. Lehigh Valley Co., 153 Fed. 350. The ‘‘John Twohy” is an old schooner, which, when built in 1891, was not properly fastened and became badly hogged ( Cummins, p. 145). In Novem. ber, 1913, she was wrecked, and from that time until February, 1915. was lying in a wrecked condition at Southport, North Carolina, and at Philadelphia (Ree- ord, p. 27). Between February and June, 1915, the ““Twohy”’ was repaired and strengthened, and on June 18, 1915, sailed from Philadelphia for Rosario on the River Plate, where she. arrived the early part of September (Record, p. 30). On her outward voyage she was found to be leaking, and at the conclusion thereof, the captain removed a turnbuckle rod which had been placed athwartships near her bow and plugged the holes, after ; which she proceeded to Buenos Aires to load the cargo of bones here involved (Record, p, 28). Of the details of the outward voyage we have no information owing to the loss or destruction of the log of the vessel during the pendeney of this action (Rec- ord, pp. 103, 148, 149). The claimant produced a number of witnesses, all of whom swore that the turnbuckle rod was entirely un- — necessary, added nothing to the strength of the vessel, and had no effect on her strength whatsoever; the claimant himself passes off the presence of the turn- buckle rod as a ‘‘whim of mine’’ (Record, p. 143). But after the discharge at Philadelphia of the cargo here in question—the turnbuckle rod that had been taken out was, by order of the claimant, put back im the vessel again, at exactly the same place from which it had been taken (Record, p. 148). This fact alone is sufficient to impeach, if not ut- terly to discredit, the testimony that the turnbuckle rod was useless and unnecessary. The true function which this rod did perform, and was in the vessel to perform, was to hold her together and strengthen her and the effect of taking it out was to let her settle back and loosen her seams ( Mowatt, pp. 98, 99), all of which were recaulked and recemented after she discharged her cargo at Philadelphia (Ree- ord, p. 134). The vessel left Buenos Aires for Philadelphia on October 21, 1915. On October 30th, the weather became a little heavy and continued so for a day and a half. This, however, was ordinary bad weather, nothing ex- traordinary or unexpected. The master stated that this voyage was ‘‘About the usual thing’’—‘You ex- pect those things, vou look for them.”’ The voyage consumed altogether sixty-nine days, out of which there were six days of bad weather—less than ten per cent. bad—whereas the master states (Forsyth, p. 157), that on the average voyage between Buenos Aires and Philadelphia at that season of the year the average weather would be about twenty per cent. bad—and (Forsyth, pp. 164-165, 167, 168), the bad weather experienced was nothing unusual—‘‘ just about the usual thing,’’ ‘‘what you would expect’’— **just what you look for.’’ — The whole truth is that this vessel had an excep- teonally good veytge, and had unusually good weather. It is most important to notice that in the very first bad weather that this vessel encountered she be- gan to leak very badly. The bad weather encountered after the first day therefore cannot be taken into con- sideration. such as was to be expected, anticipated and looked for—furnishes the most satisfactory evidence that she On this point the present case is squarely ruled by Benner Line v. Pendleton, 210 Fed. 67 (D. C., So. D. N. Y., 1913), affirmed in this particular, in the Cireuit Court of Appeals of the Second Cireuit, 217 Federal 497, which was in turn affirmed, on certiorari, by the Supreme Court, 246 U. 8. 353 (1918), where the question of seaworthiness was disposed of by Mr. Justice Holmes, who said: that question may be laid on one side.’’ In that case an action was brought against the owners of the schooner “* Edith Oleott,’’ which three or four days after leaving port sank with all her cargo. The owners of the vessel proved that she was carefully inspected, overhauled and put in order by a ther-nehly competent man before the voyage. One of tv *xperts who examined her reported that she was “in the pink of condition.” Witnesses testified that they ZZ 9 found her seams and butts in first-class order, as were her rigging, decks, waterways and chain plates; that she was ‘‘in first-class condition,”’ ‘‘one of the finest vessels’’ the witness had ever seen, and ‘‘fit to go around Cape Hern in.”’ The superintendent of the Dry Dock Company testified that she was tight, staunch and strong. The inspector of the American Bureau of Shipping testi- fied that the vessel was ‘‘first class,’ that she had been thoroughly examined for reclassification in 1905, and was given an Al rating for six years—a rating which would have expired one year after she was lost. He stated that the ** Edith Oleott’’ was “‘exceptionally well built, exceptionally well cared for, and an excep- tionally good vessel at the time she was lost,” and that she had the highest rating ever given to a vessel of her age—having been built in 1890. The evidence given by other inspectors was to the same effect. Clearly the evidence offered in that case as to the seaworthiness of the vessel was much stronger both in quantity and degree than that offered in this case. Yet the Court found in the case cited: ‘But admittedly the weather was not heavy until the night before the leak, and although from that time until the ship was abandoned there was heavy weather, there was nothing so i about it that a ship in proper condition to make an ocean voyage should not have been in condition to undergo the strain. . . . I have no doubt that her owners believed her to be seaworthy. But facts in such a case speak louder than words, and the fact that she sprang so bad a leak on the first night of heavy weather that oceurred upen the voyage, and that there is no adequate explanation given of it, is, in my opinion, not consistent with her be- ing seaworthy at the beginning of the voyage.’’ This decision of Judge Holt was affirmed on ap- peal, where Judge Rogers said: s2F83¢6 Le the i i GR dl ih fy ats ists in iis Th falin eit HH: THEE HERE ie epee 2 Ui S Hee z is si Ri per 9 . H : : th : HELE -2 2 2 it ik s 3a: AE THis bh ira i ale HEPA paenied barf _—_aoaoa Compagnie Maritime Francaise 0. Meyer, 248 Ped. 881 (CC. A. 9th Cine. 1998); The Edwin L. Morrison, 153 U. &. 199; The Babin Chevage, 208 Fed, 966 (1913) ; The Aagi, % Ved, 454; The Orcadian, 116 Fed, 990. Under these decisions the unseaworthiness of the schooner was clearly established in this case, and for the damages resulting therefrom the libellant was clearly entitled to recover. The loss arising out ot the damage to part of the earge delivered was allowed by the District Court and need not be further considered in connection with this petition. The loss arixine from the shert delivery, however, is in question, and the facts and contentions im connection therewith are as follows: The intake weight of the cargo was prima facie established by the bill of lading, which acknowledged, without qualification, receipt of a fall cargo of hones weighing 1,210,000 K iles equivalent te 2,670,345 pounds avoirdupwis. The correctness of the intake weight as set forth in the bill of lading was farther supported by addi- thonal strong evidence. The claimants at the trial offered ne evidence suffi- cient to rebut even the prima facie proof made by the bill of lading. The out-tarn weight of 2.521.276 pounds, while a little more invelved, is clearly established and has at he pomt in the case heen questioned. Deducting from the intake weight of 2.670.349 pounds the out-tarn weight of 2.521.276 pounds, leaves 4 net shortage of 149,099 pounds. The value of this quantity of dene at the time and place of delivery is undisputed and was $27 per net ton of 2000 pounds, less freight at the rate of #6 per gross ton of 2240 ae — es “1210000 kilos bones. In this ity i included 12,474 kilos in 287 bags” "NY 15 And in James v. Standard Oil Co., 10 Fed, 719 (D.C. Se. D. N. Y.), the Court, holding that the vessel had conclusively established the delivery of all the caser received on board, beld that the presumption arising from the statement of quantity in the bill of lading was overcome. Holt, J., said ** This is the number stated in the bill of lad- the statement im the bill of lading of the: ing, and saber of cases reevived is strong prima facie evidence of such reecipt, bat it is not conclusive.’ (im Appeal the decision was affirmed, 191 Ped. 827 (CC. A. Ind Cive.), Judge Ward saving, page #25: **The bill of lading in respect to the quantity received is a receipt and, though entithed to great weight as an admission by the ship, it ie net con- casive. The barden lice apon the sup of thor- oughly satisfying the Court that she actually has delivered all the cargo she has received, and that the Lill of lading ia erroneous.” Under these authorities and the circumstences of this case, the Will of lading weight mmet stand as cor- rect unless the ship, in the words of Judge Ward, “thoroughly satisfies the Court that she actually has delivered all the carae she has reevived, and that the bil! of lading ia erroncous.”” We submit that the ship dees not sustain this bar- den so long as she leaves open and ananewered a reasonable explanation of the shortage, wpperted by and consistent with all the facts of the case. and under which she would be liable. In other words, the ship does not sustain the burden antil she has conclusively established that there was no loss, and consequently the bill of lading weight was wrong, or else conclu- sively demonstrates that the loss was due to a cause for which the ship was not responsible. ee — ee 14 In this case there are four possible explanations of the shortage: First.—Mistake in the intake or bill of lading weight. Second.—Mistake in the out-turn or delivered weight. Third.—Natural shrinkage. Fourth—That the part of the cargo not delivered was pumped out on the voyage. If the shortage was due to either of the first, see- ond or third causes, the vessel would be excused from liability; if to the fourth cause, it would have to re- spond in damages. There has been no dispute as to the out-turn weight. The claimants have contended that the short- age was due to a mistake in the bill of lading or intake weight, to natural shrinkage or to a combination of the two. The petitioner consistently maintained that the undelivered cargo was pumped overboard, and that the bill of lading weight was correct, The unqualified statement of the weight of the cargo in the bill of lading is very strong prima facie evidence of its correctness, which in this case is sup- ported by the other evidence in the ease. i Captain Forsyth, master of the schooner, testified _ that libellants’ men weighed the bones as they were _ put aboard and ‘Record, p. 162) described the method used, which seems to be careful and exact. He said: ‘They have a little trolley track lying in the yard, and they have a little flat trolley and the men will fill those baskets. This little trolley car is weighed in the morning with so many empty baskets. Then they will fill those empty baskets and put them on the trolley car, and run them down and put them on the scales, and each man will take a basket and carry it across the street and dump it down the hold.”’ & a at a a 15 In its essential particulars this system of weighing is the same as that used when the vessel was dis- charged, and which gave such satisfactory results. The captain was so satisfied with the weighing at Buenos Aires that he was content to sign a clean bill of lading without inserting any of the customary quali- fying phrases, such as ‘‘shipper’s weight,’’ ‘‘said to weigh,”’ ‘‘weight unknown,”’ ete., and presumably paid the stevedore on the basis of the weight shown. The shipper had no incentive to overstate the weights inasmuch as the cargo was sold on the deliv- ered weight. The stevedore, the only person interested in over- stating the weight, had, as the master testified (Record, pp. 162-163), nothing to do with the weighing. All these matters most strongly support the cor- rectness of the bill of lading weight, and give it an evi- dential value much greater than its mere presence in the bill of lading. Against these facts there is no controlling evi- dence worthy of consideration. The captain testified that he delivered all the eargo he received. This is a mere statement of a conclusion, and if it were to be given controlling weight, shippers and consignees would be placed entirely at the merey of unscrupulous masters. The other evidence does not support the captain’s averment which was predicated, on the fact that when the loading was completed, the hatches were closed and battened down, and were not again opened until the vessel berthed at Philadelphia. These facts are entirely consistent with that which we contend is the true theory—namely that the missing part of the cargo was pumped overboard with the water which leaked into the vessel. In this connection it is to be noted that the cap- tain qualified his statement that he had delivered all the cargo he received, when on cross-examination he 16 admitted (Record, p, 171), that the fine particles of bone might have been pumped overboard. The only other evidence which it could be argued might tend to impeach the correctness of the bill of lading weight is that referred to by the District Court where it calls attention to the fact that although the bill of lading calls for 287 bags of an average weight of 98 pounds apiece, the out-turn shows the delivery of 241 bags, averaging in weight about 8414, pounds each. A further examination of the evidence, however, discloses that there is no basis to support the presump- tion sought to be raised. In addition to the 241 bags counted, a very con- siderable number of bags were broken, and were heaved up on deck, together with the bones they had contained. No one counted the broken bags, and when the master was asked by the Court whether he thought as many as forty-six bags were broken, replied, ‘‘They must have been’’ (Record, p. 161). The presumption that there was a shortage in the number of bags in the out-turn is purely speculative as there is no evidence whatsoever as to the actual number of bags delivered. So, too, with any argument based on the difference between the average intake and out-turn weights of the bags. These bags were of all sizes, and in no way uniform in weight or otherwise. It is exceedingly doubtful whether they were tightly sewed, and it is most likely that a great quantity of the contents could have fallen out, even from the bags that were discharged with bones still in them. The method of loading was exceedingly likely to break the bags, as was also the working of the cargo on the voyage from Buenos Aires to Philadelphia, and under the conditions attending the loading and ear- riage of this cargo, and the rough handling to which ee ee, Oe 7* - —_— 17 it was subjected, the bags most likely to break would be the ones most heavily filled. Any argument based on the difference between the average intake and out-turn weights of the bags is therefore entirely speculative. It is thus apparent that to argue from the differ- ence in count and average weight of the bags of bones, is to pile speculation upon speculation to reach a result so wholly speculative as to be impossible of belief. The existence of the shortage is equally consistent with any explanation that may be made of it, and con- sequently cannot be urged as impeaching the correct- ness of the bill of lading weight. The out-turn weight has not been, and we assume will not be, questioned in this case, and therefore must be taken as conclusively established. The claimants argue that there is generally a shortage in bone cargoes. This may in fact be admit- ted. The only testimony as to the extent of such a usual shortage, however, is that of the witness, Bur- richter, who testified that the customary shortage is from one to two per cent. as a fair average; that three per cent. or four per cent. would be very unusual. In the present case, the shortage is approximately five and six-tenths per cent., far in excess of ever what would be considered very unusual, The facts exclude the possibility of the existence in this case of the causes of such shrinkage on the or- dinary voyage. The only explanation that can be given of the or- dinary shortage is that bones dry out during the vovage (Record, p. 158). It also appears that bones when soaked in water act like sponges, and become saturated, and when exposed to dampness will absorb moisture from it (Record, pp. 77 and 78). Under these conditions, not only was there in this case no opportunity for any drying out of the cargo, 18 but on the contrary, under the conditions surrounding the transportation of this cargo there should be an accretion in weight. For a period of upwards of two months there was constantly a considerable quantity of water in the hold. At times this water was five feet deep and during this period the vessel was leaking at the rate of six inches an hour. The hatches were tightly battened down and covered. A great quantity of the bones was constantly soak- ing in the water in the hold, and, coming up through the tropies, it is clear that the atmosphere in the space in the hold of the vessel above the water must have been very moist. These facts rendered it impossible for the bones in this cargo to dry out on the voyage and exclude the possibility of such an explanation of the shortage. From the foregoing discussion, it is manifest that the three possible explanations of the shortage which would free the ship from liability are not supported by the evidence in this case, and it remains to consider the fourth possible explanation, namely, that the missing part of the cargo was pumped overboard during the voyage in the form.of ammonia and phosphoric acid in solution, and in the form of fine particles of bone. When chemically analyzed after being discharged at Philadelphia a large part of the bones were found to be deficient in certain of their soluble constituents—in the ammonia to the extent of *4 per cent. ; in phosphoric acid to the extent of 6% per cent., or, in all, to the extent of 23,795 pounds. It is obvious that to this extent the shortage is accounted for by the pumping overboard of this quantity of ammonia and phosphoric acid in solution. As to the remainder of the shortage the evidence clearly sustains the theory that it was pumped over- us OI Me RRL ta - 19 board in the form of fine particles of bone—bone dust. The master, it is true, first testified that the bone could not have gotten into the pumps, but when cross-exam- ined he excluded from his statement the fine bone parti- cles and admitted that these might have been pumped overboard (Forsyth, p. 144). A very large part of the cargo when loaded was in the form of this fine machine-crushed bone—the process of loading and the motion and working of the cargo during the voyage, all would operate to reduce still more of it to this condition. These finer particles would all sift to the bottom of the hold, thence through the ceiling into the pumps and through the pumps overboard, There is nothing in the facts shown or attempted to be shown at the trial which is inconsistent with this last explanation of the shortage, as there is with the others; on the contrary, the evidence and the facets clearly point to the last explanation as the true man- ner in which the shortage oecurred. The foregoing explanations of the shortage are the only ones possible. (an it be held that the ship has sustained the bur- den of proving the incorrectness of the bill of lading weight by ‘‘thoroughly satisfying the Court that she actually has delivered all the cargo she has received and that the bill of lading weight is erroneous’’ when she in no way has excluded the explanation of the loss which is demonstrated by the overwhelming weight of the evidence to have been the true explanation and under which the ship is liable? We submit that the evidence most clearly estab- lishes the vessel’s liability and that the District Court erred in failing to award to libellant its full claim. It remains to note a suggestion found in the opin- ion of the trial Judge, who (Record, p. 190), said: 20 **At the same time, the part of the ex which had been dissolved by the action of the sait water and thus lost to the shipper woald be in- cluded in any claim for damage made because of the cargo having become wet. It is, therefore, um- portant to keep clear the distinction between the shortage in the cargo as such and a loss in bulk or weight of the cargo due to the damage from salt water, lest the two claims be permitted to overlap, and in this way there be a double allowance of the damage claim.’’ The trial Judge felt that if the libellant’s claim were allowed in full, there would be an overlap and double damages awarded. This thought was based on the fact that in showing the nature of the damage to the cargo, libellant showed that the damaged bones were deficient in some of their soluble constituents, and from this the Court reasoned that the allowance of the libellants’ claim for damage would also reimburse libellant for the shortage up to the amount of the dis. solved and lost constituents of the damaged pone. This is most clearly and demonstrably wrong. The damage claim is purely and simply the difference be- tween the contract price and the actual market value in its damaged condition of the net delivered weight of the injured portion of the cargo, and is not in any way base of Ses 7S oaese , , ORAS ER SEROUN URTEQr] 0} SSO"] [eEMIOY ¢ ze ese 9 “eee “SG Orrz 44 OOS | SQ OZT'ITS'T UO WyBIesy ssa] 6 POL ee ro ope Treen eeeeeesererssressss* “SQi QO? 42d OF izg BD sq) zor'sze se iz9 ez$ © taco 9 te * Sq) GOO7 4°¢ OO LTS ™ SQL PZI POI }9A19992 PIP Peeayep Alrenjoe OBse> ey UO yuRTeqry 7 Oz 7si Zz yr esses ense ‘S4| Op77 494 QO OS owes uo WB rs | ® oF0 os """* “Sq Q007 4°¢ GO'Z7S BD Sq, oee'ozo'z sponyooas Suny pinom weIeqrT “posdAep w2eq pey Supe] Jo IItq Ou) 49 20) Poles tence oon HE AT “t | SHOVNVG PIENOd GNV dVTNRAO OL SV LUNOD LOINLSIG 40 AMOGHL SHL OL YEMSNV | The District Court thus denied recovery to your petitioner for short delivery upon what was clearly an entirely erroneous conception of the law and of the legal sufficiency of evidence, and in no way involved any question of credibility of witnesses, The claimants in the District Court appealed and when the appeal was finally called for argument, after the expiration of the time limited for the present peti- tioner to appeal had expired, the claimants moved to withdraw their appeal. This motion the Circuit Court of Appeals, without passing upon the merits of the case, has granted, to the denied in the District Court, passed upon de novo in the Cireuit Court of Appeals, a right upon which, under the decisions of this court, it was entitled to rely. Tue Action oF rae Cincerr ( ‘ourt or Aprrats Is Lwcon- sistent Wirn tHe Rviiwes or Tuts Covrr uw Ia. vine v. ‘Tue Hesren”’ axp Rew v. Tae Amenicay Express Co. axp Neuiries rue Reve Tuar ow aw Arreat 1x Apsyrauty rae Case Is Tarep DE =OVO LW THe Crrcerr Cover or Apreats. Under the decisions of this Court in Irvine v. “The Hesper,”’ 122 U. 8. 256, and the many cases following that decision, particularly the recent emphatic ap- prova! of its doctrine by his Honor, the present Chief Justice, in Reid wv. American Express Company, 241 U.S. 544, an appeal in Admiralty vacates the decree As stated by Mr. Justice Blatehford in Irvine v. “The Hesper”’ (supra), at page 266: “It is well settled, however, that an appeal in admiralty from the District Court to the Circuit Court vacates altogether the decree of the District Court, and that the ease is tried de nove in the Cir- cuit Court. Yeaton v. United States, 5 Cranech 281 - Anonymous, 1 Gallison 22; ‘The Roarer,’ 1 Blatchford 1; ‘The Saratoga’ v. 438 Bales of Cot- ton, 1 Woods 75; ‘The Lucille,’ 19 Wall, 73: ‘The Charles Morgan,’ 115 U. 8. 9, 75. We do not think that the fact that the claimants did not ap- peal from the decree of the District Court alters the rule, When the libellants appealed, they did so im view of the rule and took the risk of the result of a trial of the case de novo, The whole case was opened by their appeal, as much as it would have been if both parties had appealed, or if the appeal had been taken only by the caimants.”” (Italies ours.) This holding was reaffirmed in Reid ¢. The Ameri- can Express Co. (supra), where his Honor, the present Chief Justice, said: a es map — cree “It is not denied that in the Second Cirenit the right to a de nove trial was considered as set- tled by Munson 8S. S. Line v. Miramar 8. 8. Co. Limited, 167 Fed. Rep. 960, and that a well-estab- lished practice to that effect obtained, but it is msisted that a general review of the adjudged eases on the sabject will show the want of founda- tion for the rule and practice. But we think this contention is plainly without merit and that the right to a de nove trial in the court below authori- tatively resulted from the ruling in Irvine v. ‘The Hesper,’ 122 U. S. 256, a conclusion which is plainly demonstrated by the opinion in that case and the authorities there cited and the long con- tinued practice which has obtained since that ease was decided and the full and convineing review of the authorities on the subject contained in the opinion in the Miramar Case. Entertaining this view, we do not stop to consider the various argu- ments which are here pressed upon our attention tian: GPiE LTE 43}, i HF i 3 iif Mi ae i is a. be i itil Hn ii gH istpE i court. Court of A The decision of the Circuit far-reaching effect. This point here raised is thie case has a most garded in this case asa trial appelice in admiralty, « part of whose claim was denied m™ this case that to refuse the motion and hold the ap- pellant wot entitled to withdraw his appeal will work In the words of Mr. Justice Matehford in Irvine r. ** The Heoper,”’ The appellant, therefore, is confronted by ne hardship—he acts with his eyes open. thereem aud these plainly and clearly support the rule for which we here contend. for a trial de nove, an appellee, a part of whose claim has been denied in the District Court, has a right to de nove, as a court of first instance. This right ic « valuable and substantial one, of which the appellee should not be deprived without his consent, and we submit that it is no more within the legal discretion of the appellate court in such a case to deprive the appellee of this right, than it is within the diseretion of any other trial court at the defendant's request and over the plaintiff's objection to refuse to hear and determine on its merits a cause in which the parties and the euljectenatior ase pouperty within ite this case most surely one for the exercise by this Court of its supervisory and corrective powers. CONCLUSION. We, therefore, submit that on the foregoing rea- sons this Honorable (Court should exercise the power vested in it to issue the writ of certiorari prayed for and have this cause brought before it for review and final determination o7 in the alternative that this Hon- orable Court should exercise the power vested in it to iseue a writ of mandamus directed to the (ireuit Court cf Appeals of the Third Circuit and directing said Cir- cuit Court of Appeals to diemiss the motion filed by ————— 28 the appellants therein for leave to withdraw the appeal and requiring said Circuit Court of hear and determine the said cause ir said Appeals to upon its merits. Respectfully submitted, CONLEN, BRINTON & ACKER, HARRINGTON, BIGHAM & ENGLAR, Proctors for Petitioner. WituaM J. Conen, Advocate. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0423%3A3. Public record. Not legal advice.