La Bourgogne

Decision Date22 February 1906
Docket Number6.
Citation144 F. 781
PartiesLA BOURGOGNE.
CourtU.S. Court of Appeals — Second Circuit

The principle questions, relating to the right of the petitioner to limit its liability, were decided by this court in June 1905. La Bourgogne (C.C.A.) 139 F. 433.

A commissioner was appointed by the District Court to take testimony as to the amounts due the various claimants who had filed claims, other than those for loss of life, and report the same to the court. The commissioner made the following awards: To Pauline Henuy, as administratrix of Juliette Cicot, deceased, $2,802, for loss of money and personal effects. To Henry Hyer Knowles, as administrator of Gertrude Lalla Rookh Knowles, deceased, $2,000 for loss of personal effects. To William C. Perry, as administrator of Kate M Perry, deceased, $5,277.50 for loss of money and personal effects. To William C. Perry, as administrator of Florence Perry, deceased, $1,050 for loss of money and personal effects. To William C. Perry, as administrator of Sadie Perry, deceased, $1,050 for loss of money and personal effects. To John Perry, as next-of-kin of Katherine Perry and Albert Perry, deceased, $350 for loss of personal effects. To Lewis Delfonti, $432 for loss of personal effects, and as damages for personal injuries. To Henri Cirri, $1,018 for loss of personal effects, and as damages for personal injuries. To George Deslions $25,000 for loss of property.

Exceptions were duly filed to this report but the same were overruled by the court and the report of the commissioner was confirmed. The action of the District Court in overruling these exceptions is now assigned as error. With the assent of the court the consideration of this part of the petitioner's appeal was postponed until after the main question was decided, and, by an order of the court made in August, 1905 was directed to be heard at the present term. Upon the law, as declared in the former decision of this court the petitioner, La Compagnie Generale Transatlantique, has no pecuniary interest in this appeal, as the claims, including those for loss of life, are far in excess of the fund in court. The claimants have no controversy among themselves. Were it not, therefore, for the possible contingency that the law may be changed by subsequent proceedings the questions now argued would be wholly academic.

Edward K. Jones and Charles Haldane, for the petitioner-appellant.

Robert D. Benedict for Deslions, claimant-appellee.

A Gordon Murray for Perry, Henuy, Knowles, Cirri, and Delfonti, claimants-appellees.

E. M. Bullowa for Cirri and Delfonti, claimants-appellees.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

COXE Circuit Judge (after stating the facts.

) As the law now stands the petitioner-appellant, has no substantial pecuniary interest in the disallowance or reduction of the claims in controversy. Nevertheless as there may be a contingent interest we have felt constrained to consider and pass upon all the questions presented.

The Deslions claim is the largest in amount and was the one most strenuously opposed in the District Court. It may, therefore, be appropriately considered first. The claim was for $50,000, the value placed by the owner Deslions, upon a collection of Indian curios. The commissioner allowed $25,000, and, after careful consideration of the testimony, we do not feel justified in disturbing his conclusion.

It must be admitted that Deslions does not appear well on paper; he is involved in numerous contradictions and divagations; professing ignorance of matters which should be within his knowledge and failing to remember facts which it seems incredible he should have forgotten. Indeed, portions of his testimony evince such recklessness and are so obviously prejudicial to the success of his claim that it seems as if his conduct must be attributable to other causes than those suggested by the petitioner-- possibly to an excitable French temperament or to ignorance of our methods of procedure. Many of his lapses of memory and flippant answers were given when being interrogated regarding matters so clearly collateral that he could have answered fully and truthfully without in the least endangering his claim. His failure to do so seems hardly compatible with a deep laid scheme of perjury. May it not rather by attributable to some form of mental aberration not easy to characterize from a mere perusal of the printed record? It is possible that if the examination were had before the court we might be inclined to discredit his testimony, but the commissioner who saw and heard him during the 169 folios of direct and 541 folios of searching cross-examination evidently did not think him a perjurer. On the contrary the commissioner gave credence to the salient facts testified to by him and differed with him only as to the value of the property lost, believing, as we do, that an exaggerated value had been placed upon the collection. The fault of the claimant in making this valuation was, perhaps, a venial one considering the character of the curios, the fact that many of them were rare and impossible of duplication and that he had spent years in collecting them. Regarding many of the articles he was corroborated as to their rarity and value by experts having extensive knowledge of the subject and whose character and ability give additional weight to their opinions.

The question is not what the conclusion of this court should be on the testimony but whether the commissioner's report, sustained as it was, after full argument, by the District Court, was so clearly erroneous as to warrant us in setting it aside. The powers conferred upon a commissioner in admiralty causes are analagous to those of masters in chancery and his findings upon questions of fact depending upon conflicting testimony or upon the credibility of witnesses should not be disturbed unless clearly erroneous. Davis v. Schwartz, 155 U.S. 631, 636, 15 Sup.Ct. 237, 39 L.Ed. 289; Tilghman v. Proctor, 125 U.S. 136, 150, 8 Sup.Ct. 894, 31 L.Ed. 664; Kimberly v. Arms, 129 U.S. 512, 524, 9 Sup.Ct. 355, 32 L.Ed. 764; The Elton, 83 F. 519, 31 C.C.A. 496; The Cayuga, 59 F. 483, 8 C.C.A. 188, Panama R. Co. v. Napier Co., 61 F. 408, 9 C.C.A. 553. We are not satisfied that the report is so clearly against the weight of evidence as to justify us in disturbing it.

The bulk of Deslions' property had no market value in the usually accepted sense; its salableness depended upon finding a purchaser of means interested in Indian curiosities. No part of it was ever in Havre; it was sunk in mid ocean. From the nature of the case expert opinion could only be obtained in this country and under the rule established in The Umbria, 59 F. 489, 8 C.C.A. 194, the value in New York, the place of shipment, was properly shown as the measure of damages. There is no doubt whatever that eight boxes belonging to the claimant and aggregating 2,380 pounds in weight were placed on the Bourgogne the morning she sailed from New York and that he paid about $40 for their transportation to Havre as extra baggage. The testimony of the claimant and the petitioner's agent, who was at the pier on the morning in question, leaves little room for doubt as to the nature of the agreement. There was nothing unusual in taking on large quantities of extra baggage; it was frequently done for additional compensation. That the petitioner's agent knew all the important facts regarding the boxes, except the nature and value of their contents, is shown by his own testimony. It is not pretended that the boxes were shipped as freight; they could not have been so shipped under the company's rules and no bill of lading was issued.

These being the facts proved by the testimony and found by the commissioner we do not think the claimant should be defeated by the application of the strict rules of common law pleading. If necessary an amendment should be made conforming the pleading to the proof. Knowing precisely what the transaction was it should be dealt with on that basis irrespective of the fact that the claimant may have stated the claim incorrectly in the informal preliminary statement filed by him.

The commissioner finds that the boxes in question went aboard the ship as a part of the baggage of the claimant's wife and that he is entitled to recover the value thereof. The claimant's wife was a passenger having a third-class ticket. It is objected that the loss of the baggage must be limited to the amount stipulated in the 'conditions of passage' printed on the ticket. It is sufficient at present to say that no third-class ticket is in evidence and it is obvious that the court cannot construe the conditions of an agreement without knowing what those conditions are. So far as the Deslions' claim is concerned it is enough to say: First. That there is no evidence, except the oral testimony of one witness, as to the conditions of third-class tickets in July, 1898. Second. Assuming that the conditions referred to by M. De Bocande were printed on the third-class ticket in question they do not and cannot apply to extra baggage taken under a subsequent agreement, the price charged for transportation having been duly paid. Third. If the limitation, as stated by de Bocande, was $30 it was grossly inadequate. To limit the liability for the loss of 2,360 pounds of baggage, for the transportation of which the company had received $40, to the sum of $30 is so obviously unreasonable that further comment is unnecessary.

Before proceeding to the examination of the remaining claims it is wise to consider some of the contentions which are applicable to all. The first-class passage ticket tendered by the petitioner as...

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