IN RE COMPANHIA DE NAVEGACAO LLOYD BRASILEIRO, 17429.

• Decision Date: 01 July 1925
• Docket Number: No. 17429.,17429.
• Parties: In re COMPANHIA DE NAVEGACAO LLOYD BRASILEIRO. THE PELOTAS.
• Court: U.S. District Court — Eastern District of Louisiana

7 F.2d 238 (1925)

In re COMPANHIA DE NAVEGACAO LLOYD BRASILEIRO.

THE PELOTAS.

No. 17429.

District Court, E. D. Louisiana, New Orleans Division.

July 1, 1925.

Henry P. Dart, Jr., of New Orleans, La., and Henry N. Longley, of New York City, for the motion.

J. D. & M. A. Grace, of New Orleans, La., opposed.

BEATTIE, District Judge.

Long after answers had been filed by the cargo owners as claimants to the petition for limitation of liability, and long after much testimony had been taken on behalf of petitioner, and after the claimants had applied for a commission dedimus potestatem to examine witnesses in Vera Cruz, Mexico, and after strenuous objection by petitioner to the granting of said dedimus potestatem except with the privilege of oral examination of said witnesses by the petitioner, and after the ruling of this court on that question and said dedimus potestatem was ordered to be executed on written interrogatories and cross-interrogatories, the petitioner filed an exception to the answers of the claimant, and for cause of said exception complained that, although claimants deny petitioner's specific allegations of seaworthiness, etc., and petitioner's allegations that the officers and crew of the vessel were free from fault, yet the claimants in their answer fail to set up any specific condition of unseaworthiness, and fail to set up any act or omission as a fault on the part of the officers and crew of said steamship, and that said denials by the claimants of the allegations of the petition are not sufficient to permit the taking of evidence intended to show negligence on the part of the officers and crew, or to show unseaworthiness of the steamship in any respect, and that the pleadings of the claimants are insufficient to afford them any ground to dispute petitioner's right to complete exoneration of all liability except on the sole ground specifically set up by them, of alleged deviation.

In article 6 of its petition, petitioner alleges that the loss, damage, etc., referred to in said petition was occasioned, done, and incurred without fault or privity of petitioner, and without knowledge, on the petitioner's part, of any kind, contributing to said loss and damage, and without fault of any of its officers, agents, or servants, but was solely due to perils of the sea.

After alleging its desire to claim complete exemption from liability and also to claim the benefit of the limitation of liability, petitioner, alleges, in article 8, among the facts by reason of which it claims exemption from liability: That "said steamship Pelotas was in all respects sound, staunch and seaworthy, and properly manned and equipped, and provided for the voyage in which she was engaged, and under command of proper and suitable officers. That said accident occurred through no fault or negligence on the part of the persons on board of, or having charge of the navigation of, said vessel, but was solely due to the perils of the seas."

Claimants in their answers specifically deny the truth of all the allegations contained in the sixth article of the petition, wherein, as above stated, it appears that the petitioner alleged that the damage and loss occurred without its fault or privity, etc. Claimants also deny specifically the above-mentioned allegations, in article 8 of the petition, that the steamship was sound, staunch, and seaworthy, etc., and that the accident occurred through no fault or negligence of the persons having charge of her navigation, but was solely due to the perils of the sea.

The question now presented for consideration is whether, under these pleadings, the claimants have a right to propound, to the witnesses in Vera Cruz, the proposed interrogatories, or whether, in order to justify them in doing so, they are required to set up any specific grounds of unseaworthiness, etc., if any, upon which they rely, and which they intend to prove.

The question is also presented by the exception whether, after this great length of time since the answers were filed, and after the various proceedings had since that time, the answer should be held to be insufficient because of the failure to allege any specific grounds of unseaworthiness and any specific faults of the officers and crew, which the claimants may wish to rely upon.

There are several District Court decisions, to wit, In re Davidson Steamship Co. 133 F. 411, The Murrell, 188 F. 727, Pere Marquette, 203 F. 127, the first and the last of which were in the same district, but by different judges, holding that a specific denial by claimant of petitioner's averments of lack of privity or knowledge, and that the vessel was seaworthy and properly manned and equipped indicated or assumed a knowledge on the part of the claimant of some specific knowledge of petitioner's privity and of lack of seaworthiness and of proper equipment, and that, while the claimant might rely upon lack of his knowledge and demand full proof of petitioner's lack of privity and that the vessel was seaworthy and properly equipped, yet, if the claimant specifically denied same, he should state the specific grounds for this denial. In one of these cases (The Pere Marquette), in addition to the denial that the disaster occurred without the fault and privity of the owner, there was an affirmative allegation that it occurred through neglect, etc.

On the other hand, there have been cited the following cases: The Rambler (C. C. A.) 290 F. 791, A. M. C. 1923, 618; The Hewitt (D. C.) 284 F. 911, A. M. C. 1923, 89; The Starin, 191 F. 800, 112 C. C. A. 286.

In The Hewitt, the District Court held that in undertaking to prove that the loss did not occur with his privity, the owner must necessarily show either just how the loss did occur, or if he cannot, he must exhaust all the possibilities and show that as to each he was without privity, and that this might be shown by showing that to his knowledge the ship was well found, properly manned, and staunch, tight, and adequately equipped, and that in such a case the owner undertakes to prove that whatever the cause of loss, he was ignorant of it, and that he undertakes this burden with all the possibilities which it may involve, and that all the respondents or claimants need do is to break down the case made by the petitioner, in which event they will win. The court in this case stated the above to be the rule in spite of the new admiralty rule No. 53, which was thought not to be applicable.

In The Rambler, the Court of Appeals held that, after the liability of the vessel was fixed, it remained for petitioner to show his right to a limitation of liability, and that in that case the owner, having made out a prima facie case of such a right, "it then remained for the claimant respondents to upset the petitioner's case as made and to prove facts which would enable the court to find that the loss and damage complained of had occurred with the privity or knowledge of the petitioner owner. Not burden of proof, but the burden of evidence, was shifted when the petitioner gave evidence bringing itself within the case last cited."

In The Starin (District Court decisions relative to which will be found in 173 F. 721 and 175 F. 527), the Court of Appeals, in reversing the District Court, which required specific allegations of particular grounds of unseaworthiness, held: "We think the court erred in refusing to allow cargo owners to cross-examine defendant's witnesses as to the seaworthiness of the vessel, and to put in themselves such evidence as such cross-examination might indicate would properly supplement it. They were under no obligation to set up any particular unseaworthiness or negligence in their answer, and should not be prejudiced by the circumstances that, after having set it up, they withdrew such allegations. Note. — These allegations were withdrawn because of the ruling of the District Court requiring more particulars which they were unable to give. That they had claims would be sufficiently established by showing nondelivery of the goods they had intrusted to the carrier. If the shipowner undertook to excuse such nondelivery by showing loss or damage by perils of the sea, he opened the question of seaworthiness to meet such perils himself, and on that question the cargo owner had a right to offer proof."

Though in that case Judge Ward dissented from the majority opinion above quoted, he was in partial agreement with the majority, for in his dissenting opinion (page 802 112 C. C. A. 288) he said: "Upon the issue as to the petitioner's knowledge or privity they claimants were respondents, and needed only to deny his allegations and meet his proofs."

Again, on page 802 (112 C. C. A. 288) Judge Ward said: "But the court District Court was wrong in refusing to permit the claimants to extract such proof, if they could, from the petitioner's witnesses at the trial by cross-examination. If, then, anything developed indicating that there was other evidence of negligence not before known, the court would have had the discretion of permitting both parties to take further proofs."

I am inclined to follow the latter decisions, not only because two of them were rendered by the Court of Appeals, but because they, to me, are more persuasive.

In petitioner's exception to the claimants' answer, no exception is made to that answer (consisting simply of a denial) to article 6 of the petition, wherein for the purpose of a limitation of liability, it is alleged that the loss, damage, etc., was occasioned and incurred without fault or privity of the petitioner, and without knowledge on petitioner's part of any kind contributing to said loss and damage, and without fault of any of its officers, agents, or servants, but was solely due to perils of the sea.

Petitioner's exception is directed at the claimant's answer (consisting simply of a denial) to article 8 of the petition, wherein exemption (and not merely limitation) of liability is claimed.

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