The John Twohy Duche Sons v. the John Twohy Cummins

• Decision Date: 28 February 1921
• Docket Number: No. 84,84
• Citation: 255 U.S. 77,65 L.Ed. 511,41 S.Ct. 251
• Parties: THE JOHN TWOHY. T. M. DUCHE & SONS, Limited, v. THE JOHN TWOHY (CUMMINS et al., Claimants)
• Court: U.S. Supreme Court

255 U.S. 77

41 S.Ct. 251

65 L.Ed. 511

THE JOHN TWOHY. T. M. DUCHE & SONS, Limited,

v THE JOHN TWOHY (CUMMINS et al., Claimants).

No. 84.

Argued Nov. 9, 1920.

Decided Feb. 28, 1921.

Mr. William J. Conlen, of Philadelphia, Pa., for petitioner.

Mr. Howard M. Long, of Philadelphia, Pa., for respondents.

Mr. Chief Justice WHITE delivered the opinion of the Court.

Consequent on the allowance of a writ of certiorari, the case is here to review the action of the court below in granting, in an admiralty case there pending, a motion for leave to withdraw an appeal made by the respondents, who were there appellants. 256 Fed. 224, 167 C. C. A. 440. The situation thus arose: The schooner John Twohy was chartered to carry a cargo of bones from Buenos Aires to Philadelphia. The voyage was made, and, following the discharge of the cargo, the charterers, who are the petitioners libeled the vessel, asserting claims (1) for failure to deliver part of the cargo which, as evidenced by the intake weights recited in the bill of lading, had been loaded on the vessel at Buenos Aires; and (2) for damage by sea water to part of the delivered cargo in consequence of leakage alleged to be due to the unseaworthiness of the vessel.

Holding that the recital in the bill of lading of the intake weights was but prima facie evidence, and that the proof showed the delivery of all cargo received on board, the court dismissed the libel as to the first claim. As to the second, however, it found that the damage from leakage had resulted from unseaworthiness, and sustained that claim.

The claimants alone appealed, and, after having twice obtained a continuance, moved for leave to withdraw the appeal. Opposing this notion, the libelants asserted that under the practice in admiralty in that circuit an appeal opened up the whole case for reconsideration in the appellate court; that, relying upon that practice, they had refrained from themselves taking an appeal from the ruling of the trial court denying their claim for nondelivery of cargo; that, owing to the continuances allowed the appellants, the time within which the libelants might have taken an appeal had expired, and if the appellants prevailed in their motion the libelants would be without means of obtaining a review of the adverse action of the trial court.

Coming to consider these contentions, the court held them to be without merit, first, because the libelants, by themselves taking an appeal, could have required the appellate court to proceed and decide the same; second, because, having failed to adopt that course they could not complain if the court, in the exercise of its discretion, declined to grant them as a legal right that which they might have made such, had they availed themselves of the appropriate procedure; and, third, because the court conceived that the allowance of the withdrawal of the appeal would be in furtherance of the due administration of the admiralty in that it would tend to put an end to litigation, would afford appellants time within which to exercise a cooler judgment, would forewarn all persons to themselves appeal if they desired to insure a review of unfavorable decisions, and would prevent the hardship...