THE DIAMOND CEMENT
| Decision Date | 04 April 1938 |
| Docket Number | No. 8467.,8467. |
| Citation | 95 F.2d 738 |
| Parties | THE DIAMOND CEMENT. PARTOS v. PACIFIC COAST S. S. CO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Grosscup, Morrow & Ambler and Owen P. Hughes, all of Seattle, Wash., for appellant.
Stratton, Leader, Little & Stratton, of Seattle, Wash., for appellees.
Before DENMAN, STEPHENS, and HEALY, Circuit Judges.
This is an appeal from a decree on a libel for damages for injury to the sailor libelant claimed to be due to the unseaworthiness of the vessel on which he was employed and, in any event, for his maintenance and cure.
Motion was made to dismiss the appeal on the ground that the record does not show a petition and allowance by the District Court of an appeal.
The record in this case shows no formal petition for or allowance of appeal, but such petition and allowance may be inferred from the evidence of the acts of the lower court and counsel with reference to matters occurring subsequent to such petition and allowance. In the following cases the petition and allowance of the appeal were proved by showing the action of the court in approving of a bond on appeal or in the approval of the bond and the signing of the citation. Sage v. Central Railroad Company, 1877, 96 U.S. 712, 24 L.Ed. 641; Brandies v. Cochrane, 1881, 105 U.S. 262, 26 L.Ed. 989; Weinstein v. Black Diamond S. S. Corporation et al., 1929, 2 Cir., 31 F. 2d 519.
We have held the approval of the bond sufficient even where it recited that the appellants "were about to take an appeal." Crescent Wharf & Warehouse Co. v. Pillsbury, 9 Cir., 93 F.2d 761, decided January 4, 1938.
Since in all these cases, except the last, the only evidence of the jurisdictional step of petitioning for and allowing the appeal is in acts by the judge of the District Court subsequent to such allowance, from which the inference was drawn establishing the prior act of allowance, we are required to examine the record in this case for evidence of such subsequent action by the court. The record shows the following acts to have occurred:
On the 2d day of February, 1937, a written stipulation between the respective parties, providing what the apostles on appeal should contain and include, was filed with the clerk of the United States District Court for the Western District of Washington. This stipulation provided in part as follows:
"It is hereby stipulated by and between Grosscup, Morrow & Ambler, proctors for libelant, and Stratton, Leader, Little & Stratton, proctors for claimant, that on the appeal of the above entitled cause to the United States Circuit Court of Appeals for the Ninth Circuit, the apostles shall contain and include the following papers, proceedings and evidence, to-wit." (Italics supplied.)
On the 2d day of February, 1937, and on the same day the above stipulation was filed with the clerk, the District Court upon application duly made in open court entered an order transmitting and certifying exhibits to the Circuit Court of Appeals. In addition to an itemization of the exhibits to be certified and transmitted to the Circuit Court, the order provided as follows:
On the 17th day of March, 1937, a stipulation between the parties was filed providing that supplemental apostles might be filed in the United States Circuit Court of Appeals which should include the transcript of the oral decision of the District Court rendered on the 18th day of December, 1936. Before the District Court's oral decision, which was transcribed to writing, was certified and transmitted to the Circuit Court in pursuance to the above-mentioned stipulation as to the contents of the supplemental apostles on appeal, the oral decision as transcribed was submitted to the District Court for examination and the District Court made certain corrections in the transcription of its oral decision and these corrections were initialed by the lower court.
The above constitutes as satisfactory evidence of the allowance of an appeal as the subsequent action of the court in approving the bond. The motion to dismiss is denied.
The evidence in this case is by depositions so far as concerns the responsibility of the ship for the accident and is to be considered here with a presumption in favor of the findings of the trial court in its lightest weight. The Ernest H. Meyer, The Eureka, 9 Cir., 84 F.2d 496, 501; Silver Line v. United States, 9 Cir., 94 F.2d 754, January 31, 1938.
The testimony establishes that it was part of the sailor's duty, to which he had been assigned by the engineer over him, to take certain floor mats from the engine room into the bunker space forward and clean them. The bunker floor was on the same level as the engine room floor and the space was lighted by an open hatch above sufficiently for him to walk forward on the starboard side of the vessel to the neighborhood of another open and unprotected hatch in the bunker floor leading to other bunkers below.
At the time of the accident there was sufficient visibility for the sailor to carry the mats to a place where he intended to beat them, but on arriving there in the dim light, and hampered by the mats, he failed to notice and slipped on a small, loose piece of piping and fell through the opening into the bunker below, receiving an injury to his leg.
The customary place of storage of the ship's spare piping appliances was on the right-hand side of this route of the sailor to the point where he beat out the mats. It had always been there on prior voyages, and for the voyage in question additional piping had been loaded into the bunker space and piled with the existing ship's supply. The testimony is unquestioned that this method of storage of the ship's spare piping rendered it likely to be rolled loose from the pile in the movement of the vessel on the voyage, and the chief and assistant engineers testified that they kept a daily inspection, sometimes ten times a day, to see that the floor was clear of...
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