167 F. 960 (2nd Cir. 1909), 102, Munson S.S. Line v. Miramar S.S. Co.

Docket Nº:102.
Citation:167 F. 960
Party Name:MUNSON S.S. LINE v. MIRAMAR S.S. CO., Limited.
Case Date:February 23, 1909
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 960

167 F. 960 (2nd Cir. 1909)



MIRAMAR S.S. CO., Limited.

No. 102.

United States Court of Appeals, Second Circuit.

February 23, 1909

Charles Haight, for the motion.

C. R. Hickox, opposed.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

WARD, Circuit Judge.

In this case we lately affirmed (166 F. 722) the decree of the court below, saying at the same time that, although the District Judge did not allow the libelant, appellee, as much as he was entitled to receive, he could not complain because he had not appealed. He now moves that we modify this decision on the ground that, an appeal in admiralty being a new trial, it makes no difference that he did not appeal. Irvine v. Hesper, 122 U.S. 256, 7 Sup.Ct. 1177, 30 L.Ed. 1175. In that case the District Court awarded $8,000 salvage to the libelants, who appealed to the Circuit Court. Though the claimant did not appeal, that court reduced the award to $4,200. The libelants then appealed to the Supreme Court, which affirmed this decree; Mr. Justice Blatchford saying at page 266 of 122 U.S., at page 1181 of 7 Sup.Ct. (30 L.Ed. 1175):

'The claimants not having appealed to the Circuit Court, it is suggested that they are liable for at least the amount awarded by the District Court, and that the Circuit Court could not reduce that amount, but had jurisdiction, on the actual appeal, only to increase it. It is well settled, however, that an

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appeal in admiralty from the District Court to the Circuit Court vacates altogether the decree of the District Court, and that the case is tried de novo in the Circuit Court. Yeaton v. United States, 5 Cranch, 281, 3 L.Ed. 101; Anonymous, 1 Gall. 22, Fed. Cas. No. 444; The Roarer, 1 Blatchf. 1, Fed. Cas. No. 11,876; The Saratoga v. 438 Bales of Cotton, 1 Woods, 75, Fed. Cas. No. 12,356; The Lucille, 19 Wall. 73, 22 L.Ed. 64; The Charles Morgan, 115 U.S. 69, 75, 5 Sup.Ct. 1172, 29 L.Ed. 316. We do not think that the fact that the claimants did not appeal from the decree of the District Court alters the rule. When the libelants appealed, they did so in view of the rule, and took the risk 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 claimants.'

A very interesting and difficult question is to be determined, upon which the decisions even of the same courts are not harmonious.

From 1789 to 1891 decrees of the District Court in admiralty were reviewed by appeal to the Circuit Court. Section 631, Rev. St. U.S. Such appeals were trials de novo. The libelant opened and closed the case in the Circuit Court, just as he had in the District Court. Either party could take new proofs in the Circuit Court at will (Supreme Court Admiralty Rules 49 and 50) and could put in new pleadings (The Charles Morgan, 115 U.S. 69, 75, 76, 5 Sup.Ct. 1172, 29 L.Ed. 316). The Circuit Court entered its own decree and executed it. The Lucille, 19 Wall. 73, 22 L.Ed. 64; The Saratoga, 1 Woods, 75, Fed. Cas. No. 12,356. In the former case Mr. Justice Miller said:

'An appeal in admiralty has the effect to supersede and vacate the decree from which it is taken. A new trial, completely and entirely new, with other testimony and other pleadings, if necessary, or if asked for, is contemplated--a trial in which the judgment of the court below is regarded as though it had never been rendered. A new decree is to be made in the Circuit Court. This decree is to be enforced by the order of that court, and the record remains there. The case is not sent back to the District Court for executing the decree, or for any other proceeding whatever, and that court has nothing further to do with it.'

In this circuit, however, proofs taken in the Circuit Court which could have been taken in the District Court might be suppressed. The Saunders (C.C.) 23 F. 303; The Stonington (C.C.) 25 F. 621. This is quite consistent with the trial being de novo.

But the matter of reviewing decrees in admiralty causes of the Circuit Court in the Supreme Court has been the subject of great changes in legislation. From 1789 to 1803 the review was by writ of error, and the Supreme Court had, as in actions at common law, the power to consider questions of law only. This was the result of the construction given by the majority of the court in the case of Wiscart v. D'Auchy, 3 Dall. 321, 1 L.Ed. 619, to sections 21 and 22 of the judiciary act of 1789 (Act Sept. 24, 1789, c. 20, 1 Stat. 83, 84). Subsequently Act March 3, 1803, c. 40, 2 Stat. 244 (sec. 692, Rev. St. U.S.), gave the Supreme Court the right to review admiralty causes by appeal, and from that time down to 1875 the court was authorized to pass upon the facts as well as the law. Unlike the Circuit Court, however, it did not enter or execute its own decree, but remanded the cause for further proceedings to the Circuit Court. Rev. St. U.S. Sec. 701. New evidence might be taken in admiralty and prize causes, though not in equity causes. Rev. St. U.S. Sec. 698 (U.S. Comp. St.

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1901, p. 568). This is strong evidence that admiralty appeals were to be new trials. Otherwise new proofs would be useless. In 1817 a rule was adopted (2 Wheat. vii) whereby new evidence could only be taken by leave of the court. Supreme Court Rule 12; 1 The Mabey, 10 Wall. 419, 19 L.Ed. 963. Notwithstanding these regulations the appeal in the Supreme Court remained a new trial.

As Judge Wallace, speaking for this court, said in The Havilah, 48 F. 684, 1 C.C.A. 77:

'Prior to the act of February 16, 1875 (18 Stat. 315, c. 77 (U.S. Comp. St. 1901, p. 525)), 'to facilitate the disposition of cases in the Supreme Court and for other purposes,' neither special findings of facts nor exceptions were a necessary part of the record upon an appeal in an admiralty cause, and the hearing in the Supreme Court and in the Circuit Court was a trial de novo.'

In the case of Yeaton v. United States (1809) 5 Cranch, 281, 3 L.Ed. 101, the General Pinkney was condemned in the District Court for the violation of an act of Congress passed February 28, 1806. On appeal to the Circuit Court this decree was affirmed November 7, 1807. On appeal to the Supreme Court the case came on for hearing March 7, 1809; the act of Congress in question having expired April 26, 1808. Chief Justice Marshall said:

'The majority of the court is clearly of opinion that in admiralty cases an appeal suspends the sentence altogether, and that it is not res adjudicata until the final sentence of the appellate court be pronounced. The cause in the appellate court is to be heard de novo, as if no sentence had been passed. * * * The court is therefore of opinion that this cause is to be considered as if no sentence had been pronounced; and, if no sentence had been pronounced, it has been long settled, on general principles, that after the expiration or repeal of a law no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.'

In Hobart v. Drogan (1836) 10 Pet. 108, 119, 9 L.Ed. 363, Mr. Justice Story said:

'No objection has been made to the amount of...

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