Hines v. Sangstad S.S. Co.

• Decision Date: 02 July 1920
• Docket Number: 1465.
• Citation: 266 F. 502
• Parties: HINES, Agent, v. SANGSTAD S.S. CO. et al.
• Court: U.S. Court of Appeals — First Circuit

266 F. 502

HINES, Agent, v. SANGSTAD S.S. CO. et al.

No. 1465.

United States Court of Appeals, First Circuit.

July 2, 1920

Damon E. Hall, of Boston, Mass. (Henry F. Hurlburt, of Boston Mass., on the brief), for appellant.

Robert G. Dodge, of Boston, Mass. (Raymond S. Wilkins, of Boston Mass., on the brief), for appellees.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM Circuit Judge.

The libelants are the Sangstad Steamship Company and the United Fruit Company. The former was the owner and the latter the charterer of the steamer Sangstad, and they seek to recover damages which they sustained by reason of an accident to the steamer, due to the alleged negligence of the libelee. The libel was filed September 3, 1918. It was originally brought against James H. Hustis, receiver of the Boston & Maine Railroad. After the issuance of General Orders Nos. 50 and 50-- A of the railroad administration, Walker D. Hines Director General, was substituted as libelee. On March 29 1920, and before entry of final decree, federal control of the railroads having terminated, Walker D. Hines, Agent, under section 206 of the Transportation Act of February 28, 1920, was made libelee. March 29, 1920, a final decree was entered in the cause, adjudging that the Sangstad Steamship Company recover as damages the sum of $2,669.95, with interest, amounting to $321.72; that the United Fruit Company recover damages in the sum of $15,473.32, with interest, amounting to $1,972.85; and that the libelants recover costs, taxed at $596.95. From this decree the libelee appealed.

Three questions are raised by the appeal: (1) That the District Court was without jurisdiction in admiralty to hear and determine the libel; (2) that the libelants failed to prove that the damage occasioned the ship was due to the fault of the libelee; and (3) that the court erred in allowing as damages 8 1/2 days for loss of time consumed in repairs, instead of 3 days, as allowed by the assessor.

By an act of Congress of August 29, 1916 (39 Stat. 619, 645, c. 418 (Comp. St. Sec. 1974a)), the President was authorized to take over the management of the railroads, and on December 26, 1917, he issued a proclamation by which the railroads of the country, including the Boston & Maine System, were taken over on the 28th of December, 1917. In the proclamation the President designated a Director General of Railroads and provided that 'suits * * * (might) be brought by and against said carriers and judgments rendered as hitherto until and except so far as said director may, by general or special orders, otherwise determine,' but that 'no attachment by mesne process or on execution shall be levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers,' except with the prior written assent of said director.

The accident in question occurred February 14, 1918, but before this proceeding was instituted Congress passed the act of March 21, 1918 (40 Stat. 451, c. 25 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3115 3/4a-3115 3/4p)), known as the Federal Control Act, section 10 (section 3115 3/4j) of which provided:

'Carriers while under federal control shall be subject to all laws and liabilities as common carriers, whether arising under state or federal laws or at common law, except in so far as may be inconsistent with the provisions of this act or any other act applicable to such federal control or with any order of the President. Actions at law or suits in equity may be brought by and against such carriers and judgments rendered as now provided by law; and in any action at law or suit in equity against the carrier, no defense shall be made thereto upon the ground that the carrier is an instrumentality or agency of the federal government. * * * But no process, mesne or final, shall be levied against any property under such federal control.'

March 29, 1918, the President issued a further proclamation in which he authorized the Director General to exercise all the powers which the foregoing 'act, or any other act in relation to the subject hereof, the President is authorized to do and perform.' 40 Stat.Pt. 2, pp. 1763, 1764. October 28, 1918, the Director General issued General Order No. 50, the material portions of which, as amended by General Order No. 50-A, are as follows:

'It is therefore ordered, that actions at law, suits in equity, and proceedings in admiralty hereafter brought in any court based on contract, binding upon the Director General of Railroads, claim for death or injury to person, or for loss and damage to property, arising since December 31, 1917, and growing out of the possession, use, control, or operation of any railroad of system of transportation by the Director General of Railroads, which action, suit, or proceeding but for federal control might have been brought against the carrier company, shall be brought against the Director General of Railroads and not otherwise: Provided, however, that this order shall not apply to actions, suits or proceedings for the recovery of fines, penalties and forfeitures. * * *

'The pleadings in all such actions, suits in equity, or proceedings in admiralty, now pending against any carrier company for a cause of action arising since December 31, 1917, based upon a cause of action arising from or out of the operation of any railroad or other carrier, may on application be amended by substituting the Director General of Railroads for the carrier company as party defendant and dismissing the company therefrom.'

February 28, 1920, Congress enacted what is known as the 'Transportation Act,' whereby it terminated federal control on March 1, 1920. In section 206 of this act it is provided:

'(a) Actions at law, suits in equity and proceedings in admiralty based on causes of action arising out of the possession, use, or operation by the President of the railroad or system of transportation of any carrier (under the provisions of the Federal Control Act, or of the act of August 29, 1916) of such character as prior to federal control could have been brought against such carrier, may, after the termination of federal control, be brought against an agent designated by the President for such purpose. * * *

'(d) Actions, suits, proceedings * * * of the character above described pending at the termination of federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the agent designated by the President under subdivision (a).'

Although the libelants' cause of action arose during that period of federal control embraced within the first proclamation of the President, still, as the libel was not brought until after Congress had enacted the Federal Control Act of March 21, 1918, and in that act proceedings in admiralty were not specifically named among the actions that could be brought the libelee contends that there was no authority sanctioning the bringing of this proceeding in admiralty. In furtherance of this contention the libelee says that General Orders No. 50 and No. 50-A did not relieve the situation; that...