In re Great Lakes Transit Corporation

• Decision Date: 07 February 1936
• Docket Number: No. 7168.,7168.
• Citation: 81 F.2d 441
• Parties: In re GREAT LAKES TRANSIT CORPORATION, Limited, et al. GREAT LAKES TRANSIT CORPORATION, Limited, et al. v. HEUSSLER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

81 F.2d 441 (1936)

In re GREAT LAKES TRANSIT CORPORATION, Limited, et al.

GREAT LAKES TRANSIT CORPORATION, Limited, et al. v. HEUSSLER et al.

No. 7168.

Circuit Court of Appeals, Sixth Circuit.

February 7, 1936.

F. L. Leckie and A. E. Petersilge, both of Cleveland, Ohio (Duncan, Leckie, McCreary, Schlitz & Hinslea, of Cleveland, Ohio, on the brief), for appellants.

Henry N. Longley, of New York City (George William Cottrell and Carl A. Schipfer, both of Cleveland, Ohio, Ezra G. Benedict Fox and Bigham, Englar, Jones & Houston, all of New York City, and McKeehan, Merrick, Arter & Stewart and George William Cottrell, all of Cleveland, Ohio, on the brief), for appellees.

Before MOORMAN, SIMONS, and ALLEN, Circuit Judges.

MOORMAN, Circuit Judge.

On remand of this cause the appellees, assignees of the claim of the cargo owner, Quaker Oats Company, filed answer, as authorized by the opinion 63 F.(2d) 849, denying the petitioners' right to immunity from or limitation of liability, and asserting claim against the petitioners for damages to the cargo. Hearings were had on the claim, findings of facts made, conclusions of law stated, and a decree entered dismissing the petition and adjudging the appellees damages against Playfair in an amount to be ascertained on reference to a commissioner.

The decree in damages was based on a finding that Playfair was the owner of the Glenbogie at all times material to the litigation. Error is assigned to that finding. Since its verity is pertinent to the determination of other questions upon which decision depends, we consider it first. Evidence was introduced by appellants to show that the Great Lakes Transit Corporation owned the Glenbogie and two other vessels. This evidence consisted of a statement to that effect by Playfair, with the testimony of an officer of the Transit Corporation that the income from and expenses of operating the vessels were credited to and debited against the corporation. All three of the vessels were registered, however, in Playfair's name. He testified that the registering of them in his name was a mistake. It was proved, though, that they were registered at different times, and further that when claim was filed by the appellees against Playfair, the ownership records of the Glenbogie were transferred to the Transit Corporation, though the record titles to the other two vessels were not transferred. Playfair and his family owned more than 90 per cent. of the stock in the Transit Corporation. He was president of that corporation and had control of it. On the blanks that were filled out for registering the three vessels there appeared the heading, "Statement of Ownership by Individuals," and Playfair was stated to be the individual owner of each of them. He was also designated as the owner on the records of the American Bureau of Shipping. Playfair himself made arrangement for the carriage of the grain. Notwithstanding his testimony that the Glenbogie belonged to the Transit Corporation, we are of opinion, from the evidence as a whole, that he was the owner, and that the liability for damage to the cargo, if any there is, is his liability.

Immunity from liability is claimed under section 6 of the Canadian Water Carriage of Goods Act (Revised Statutes of Canada 1927, vol. 4, c. 207). This statute provides that if a shipowner exercises due diligence to make the ship in all respects seaworthy and properly manned, equipped, and supplied, neither the ship nor the owner shall become or be held responsible for loss or damage resulting from faults or errors in navigation or in the management of the ship, or from latent defects. It is contended by the appellants that under a recent decision of the Canadian courts construing this act (Paterson Steamships, Ltd., v. Canadian Cooperative Wheat Producers, Ltd., 40 Com.Cas. 95) the immunity therein given is made to depend not upon the seaworthiness of the ship, but upon the exercise by the owner of due diligence to make her seaworthy. We accept the due diligence test rather than that of the fact of seaworthiness, though we note in that connection that the trial court found not only that the Glenbogie was not seaworthy, but also that due diligence had not been exercised by the owner to make her seaworthy. This finding was made on evidence given by the witnesses in open court, and it is the established rule that a finding based on such evidence is presumptively correct and places upon the party attacking it a heavier burden than would otherwise rest upon him. Shepard v. Reed, 26 F.(2d) 19 (C.C.A.6); The William A. Paine, 39 F.(2d) 586 (C.C.A.6).

The evidence shows that in laying up the barge at Midland for the winter, water was left in one of the sea cocks, with the result that ice formed in the sea cock and broke it, letting outside water into the afterpeak, from which it passed to the engine room and thence to the cargo space. It further shows that while the barge was on her way to Port Arthur to receive the cargo, she brushed against the anchor of another barge and damaged the frame of her port gangway door; that the bottom of the door extended to within five or six inches of the water level as the barge was thereafter laden to perform the contract of carriage; that after arriving at Port Arthur the door was repaired by heating the plates of the ship on the outside with a blow torch and then jacking them out from the inside. A witness for appellants testified that after this was done water from a hose was played against the outside of the door, and no leakage was shown. He did not know whether the water was played on the point where the damage had been done, nor was any other evidence offered to show that the test was a thorough one. The men using the hose did not testify. After the barge had sunk it was found that...