THE SCL NO. 9

• Decision Date: 24 September 1940
• Docket Number: No. 7289,No. 7303.,7290,7289,7303.
• Citation: 114 F.2d 964
• Parties: THE S. C. L. NO. 9. LAVINO SHIPPING CO. v. S. C. LOVELAND CO., Inc. SAME v. GENERAL CHEMICAL CO. GENERAL CHEMICAL CO. v. S. C. LOVELAND CO., Inc.
• Court: U.S. Court of Appeals — Third Circuit

114 F.2d 964 (1940)

THE S. C. L. NO. 9.

LAVINO SHIPPING CO. v. S. C. LOVELAND CO., Inc.

SAME v. GENERAL CHEMICAL CO. GENERAL CHEMICAL CO. v. S. C. LOVELAND CO., Inc.

Nos. 7289, 7290, No. 7303.

Circuit Court of Appeals, Third Circuit.

September 24, 1940.

Lewis, Wolff, Gourlay & Hemphill and Otto Wolff, Jr., all of Philadelphia, Pa., for Lavino Shipping Co.

Howard M. Long, Rawle & Henderson, and Thomas Mount, all of Philadelphia, Pa., for Loveland Co.

Thomas H. Middleton, of New York City, Dechert, Smith & Clark, of Philadelphia, Pa., and Hill, Rivkins & Middleton, of New York City, for General Chemical Co.

Before BIGGS, JONES, and GOODRICH, Circuit Judges.

JONES, Circuit Judge.

Shortly after a lighter belonging to S. C. Loveland Company, Inc., had been loaded by Lavino Shipping Company with a cargo of sulphur which was the property of General Chemical Company, the lighter careened and capsized, dumping the sulphur into the water and damaging the lighter. Three separate actions in admiralty ensued, viz., (1) a petition by Loveland to limit its liability, in which proceeding General Chemical appeared as a damage claimant, and (2) a libel by Loveland and (3) a libel by General Chemical, each against Lavino Shipping Company, in personam, for the damages occasioned the lighter and the cargo by the capsizing. In the action by Loveland to limit its liability, the seaworthiness of the lighter was directly in issue, while, in the separate actions by Loveland and General Chemical against Lavino, the issues involved were the seaworthiness of the lighter and Lavino's alleged negligence in loading the lighter, which, as the libellants each averred, caused the capsizing.

The three cases were tried together. The trial court entered a final decree in favor of Loveland in the proceeding to limit its liability. From that decree, General Chemical Company, the damage claimant, has appealed at No. 7303. The court also entered an interlocutory decree in favor of Loveland and a like decree in favor of General Chemical in their respective actions against Lavino. From the latter decrees, Lavino has appealed at Nos. 7289 and 7290. Sec. 129 of the Judicial Code, as amended, 44 Stat. 233, 28 U.S.C. A. § 227. The trial court made separate findings and conclusions in each of the cases but filed one opinion covering all three. We shall, therefore, dispose of the three appeals, which were argued together, in this opinion.

The appeals severally raise the question of liability for the damages resulting from the capsizing of the lighter. The answer to this question depends upon the correctness of the findings of the trial court with respect to the seaworthiness of the lighter and Lavino's alleged negligence. No contention is made that the court below misapplied the law to the facts as found. We have, therefore, for review the findings of the trial court that the capsizing of the lighter was due solely to the negligence and carelessness of Lavino in improperly loading the lighter and that the lighter was seaworthy.

It is well settled that an appeal in admiralty partakes of a trial de novo and serves to vacate the decree of the district court. Irvine v. The Hesper, 122 U. S. 256, 266, 7 S.Ct. 1177, 30 L.Ed. 1175; Reid v. Fargo, 241 U.S. 544, 548, 36 S.Ct. 712, 60 L.Ed. 1156; Watts, Watts & Co., Ltd. v. Unione Austriaca di Navigazione, 248 U.S. 9, 21, 39 S.Ct. 1, 63 L.Ed. 100, 3 A.L.R. 323; T. M. Duche & Sons, Ltd. v. The John Twohy et al., 255 U.S. 77, 79, 41 S.Ct. 251, 65 L.Ed. 511; Standard Oil Co. of New Jersey v. Southern Pac. Co. et al., 268 U.S. 146, 155, 45 S.Ct. 465, 69 L. Ed. 890; Langnes v. Green, 282 U.S. 531, 535, 536, 51 S.Ct. 243, 75 L.Ed. 520. But, it is also settled that the findings of the trial court, when supported by competent evidence, are entitled to great weight. Lillig v. Union Sulphur Co., 9 Cir., 87 F.2d 277, 278; The Piankatank, 4 Cir., 87 F.2d 806, 808; The Mabel, 9 Cir., 61 F.2d 537, 540; Lewis v. Jones, 4 Cir., 27 F.2d 72, 74. Such findings should, therefore, not be set aside on appeal except upon a showing that they are clearly wrong. The Calvert, 4 Cir., 51 F.2d 494, 495; Chesapeake Lighterage & Towing Co., Inc. v. Baltimore Copper Smelting & Rolling Co., 4 Cir., 40 F.2d 394, 395; Merchants' & Miners' Transportation Co. v. Nova Scotia S. S. Corp., 1 Cir., 40 F.2d 167, 168; Lewis v. Jones, supra; Philadelphia & Gulf S. S. Co. v. McCauldin, 3 Cir., 202 F. 735, 737. This rule appropriately recognizes that the trial judge has a peculiar opportunity for appraising the worth of oral testimony by observing the witness' demeanor which the cold print of a record fails to disclose. The Mabel, supra; Malston Co. v. Atlantic Transport Co. et al., 4 Cir., 37 F.2d 570, 571; Lewis v. Jones, supra.

The trial court's finding that the lighter was seaworthy is fully supported by the evidence. Of the witnesses called by Loveland, six testified that the lighter was seaworthy. While some of these witnesses were interested in the outcome of the litigation, one in particular, Cox, who appeared to be disinterested, was well informed concerning barges and lighters. His qualifications as an expert were admitted. Cox had had this particular lighter under charter for the lighterage of a valuable and heavy cargo only a few months before the capsizing, and he had made a survey of the lighter in dry dock only two months before. Cox testified unqualifiedly that the lighter was seaworthy at the time of the accident. His testimony had probative force and the trial court accepted it accordingly. To controvert the testimony offered by Loveland, Lavino produced one witness (Schaumburg), who qualified as an expert. Schaumburg, also, was interested. The survey from which he testified with respect to the lighter's condition was made by him as the employee of Lavino's underwriter. Moreover, his testimony was seriously impaired on cross-examination. Schaumburg had made his first inspection of the lighter after she was in dry dock for repairs following the accident. He admitted that the capsizing of a boat and its remaining in the water bottom upward for several days would tend to loosen the caulking; that he had observed a twist in the boat which would also serve to loosen the caulking; that floating bottom upward would exert heavy pressure on the boat, inside and out, which would blow out the caulking; and that he knew that the experience that the lighter had had in the accident was bound to damage her caulking severely and extensively. Yet, he acknowledged that when he had testified in direct examination with respect to the condition of the lighter's caulking, he had not taken these adverse conditions into consideration. Obviously, Schaumburg's testimony as to the lighter's condition bore little competent relation to her condition prior to the capsizing in so far as the important matter of her caulking was concerned. It was, therefore, not error for the trial court to reject Schaumburg's testimony that the lighter was unseaworthy; and, without that testimony, her seaworthiness was clearly established. For us now to find to the contrary would be no more than an arbitrary exercise of power. But in any event, "The test of seaworthiness is obviously elastic, and it is idle for us to speculate on the written evidence, whatever we might have thought had we seen all the witnesses." Louis-Dreyfus et al. v. Paterson Steamships, Ltd., 2 Cir., 43 F.2d 824, 828, 72 A.L.R. 242.

The evidence, likewise, supports the trial court's finding that the capsizing was due solely to Lavino's negligence. While there is a direct conflict in the testimony with respect to the manner in which the cargo was loaded and the effect which the loading had upon the equilibrium of the lighter, the trial court accepted as credible...