Gardner v. Dantzler Lumber & Export Co., 8641.
| Citation | 98 F.2d 478 |
| Decision Date | 09 August 1938 |
| Docket Number | No. 8641.,8641. |
| Parties | GARDNER et al. v. DANTZLER LUMBER & EXPORT CO., Inc. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Harry F. Stiles, Jr., of New Orleans, La., and W. F. Hobbs, of Tampa, Fla., for appellants.
Joseph P. Lieb, Morris E. White, and E. C. Johnson, all of Tampa, Fla., for appellee.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
Appellee, Dantzler Lumber & Export Co., Inc., filed a libel in personam, against L. C. Gardner, to recover damages of $2,929.46, for loss of a cargo of 101,800 feet of pine lumber shipped from Mobile, Alabama, to Nuevitas, Cuba, on the schooner J. Edwin Kerwin, which vessel foundered at sea with a total loss of cargo and vessel. The libel alleged that the vessel was unseaworthy at the inception of the voyage. Later an amended libel was filed naming R. C. Gardner as the owner of the Kerwin. L. C. Gardner answered, admitting ownership of the vessel, the contract of affreightment and total loss of the vessel and cargo, but denying unseaworthiness. He also filed a cross libel to recover $1,063.57, a general average award against the cargo, and also filed a petition in limitation of liability. R. C. Gardner filed an answer alleging ownership of the schooner to be in L. C. Gardner and denying ownership in himself. A decree was entered in favor of libellant in the sum of $2,929.46 against both R. C. Gardner and L. C. Gardner, and dismissing the cross libel and the petition in limitation of liability. This appeal followed.
The district court found as facts that R. C. Gardner and L. C. Gardner were the owners and operators of the schooner, J. Edwin Kerwin; that at the inception of the voyage she was unseaworthy and her owners failed to use due diligence to make her seaworthy.
It is unnecessary to review the evidence extensively or cite authorities in support of the district court's conclusions of law. The vessel was an old wooden schooner of about 138 gross tons. She was bought by R. C. Gardner at a marshal's sale on February 15, 1934, and paid for by him in cash. On February 20, 1934, he executed an act of sale of the vessel to his brother, L. C. Gardner, and she was registered in his name. L. C. Gardner was insolvent, had no knowledge of ships and saw the schooner only once after he was supposed to have acquired her. B. D. Gainey got in touch with L. C. Gardner for the purpose of chartering the schooner for libellant. He testified as follows. He was told by L. C....
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