Toledo S. S. Co. v. Zenith Transp. Co.

• Decision Date: 27 January 1911
• Docket Number: 2,058.
• Citation: 184 F. 391
• Parties: TOLEDO S.S. CO. v. ZENITH TRANSP. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

184 F. 391

TOLEDO S.S. CO. v. ZENITH TRANSP. CO.

No. 2,058.

United States Court of Appeals, Sixth Circuit.

January 27, 1911

The appellant, Toledo Steamship Company, filed a libel in the District Court of the United States for the Western District of Michigan, against the steamer Saxona, and appurtenances in a cause, civil and maritime, alleging a collision between the steamer Saxona and the steamer Eugene Zimmerman upon the waters of the St. Mary's river, whereby the steamer Eugene Zimmerman was so damaged that she immediately sank setting forth also the various particulars in which the steamer Saxona was at fault, the cost of repairing the Eugene Zimmerman, and the loss of her use, and praying that process might issue against the Saxona and her appurtenances, that the court would be pleased to pronounce for libelant's demand, and that the Saxona might be condemned and sold to pay the same.

Zenith Steamship Company, a corporation, owner of the Saxona, filed its answer denying, among other things, liability, and setting forth matters in bar. It is these and their effect which are called into controversy; the case being heard on exceptions thereto. They are, quoting from the answer:

'(3) And your respondent says that on or about the 16th day of April, 1906, in the St. Mary's river, the said steamers Eugene Zimmerman and Saxona were in collision, as a result of which both of said steamers were damaged; that the damage to said steamer Saxona and to this respondent as her owner amounted to the sum of $34,051.56; that the said steamer Eugene Zimmerman was also damaged. And respondent says that the said libelant and this respondent did on the 26th day of October, 1906, for themselves as owners, for the insurers on their respective vessels and all parties interested through the said parties, enter into an agreement in writing by which they agreed to submit to the arbitration of Hermon A. Kelley and Harvey D. Goulder of Cleveland, Ohio, and William B. Cady, of Detroit, Mich the question of fault for the collision referred to in said libel to be first determined, and also to determine the amount of damage as the case might require under their finding as to fault for said collision, said arbitration to proceed under the course and practice of such causes in admiralty, with right to apply the principle of division of damages obtaining in such courts in case of mutual fault, and further providing that all questions as to the time and place for hearing and the manner of taking proof and any and all questions of procedure not in said agreement specifically defined should be determined by said board of arbitrators, and the decision of any two thereof on any point of procedure or other matter arising was to be final and binding upon the parties, and the decision and determination as to fault and of the amount of damages due, as the case might require, was to be made in writing in quintuplicate, two copies thereof to be served upon the Toledo Steamship Company in care of Messrs. Hoyt, Dustin & Kelley of Cleveland, Ohio; and two copies upon the Zenith Steamship Company in care of Messrs. Goulder, Holding & Masten, of Cleveland, Ohio. A copy of said agreement is hereto attached marked 'Exhibit A.'

'This respondent says that in pursuance of said agreement the said board of arbitrators met, and on request of the parties as to the procedure to be followed said board by unanimous action, and in accordance with said agreement, determined that in conformity with the procedure and practice in admiralty they should first hear, try, and determine the question of fault and liability, and, if counsel for the parties should not agree upon the items and amount of bills, this board would thereafter, in accordance with the procedure in admiralty and their agreement as to procedure so made, take such statements and testimony as might be necessary regarding the same and make such finding as to the amount of damages as the case might require, all which procedure and course was agreed to by the parties. And said board did, after such determination and agreement as to procedure and course, fully consider all of the testimony given by the parties and arguments of counsel for the respective parties and the briefs filed by counsel for the parties, and found and determined and awarded that the libelant's steamer, the Eugene Zimmerman, was solely at fault for said collision and resulting damage, and two of said arbitrators, to wit, William B. Cady and Harvey D. Goulder, did on the 16th day of March, 1908, communicate said finding and award in writing to the parties in the manner provided by said agreement and heretofore set out. A copy of said award of fault and liability for said collision is hereto attached marked 'Exhibit B.'

'Thereafter, to wit, on the 15th of April, 1908, after said award of fault and liability for said collision had been so determined and communicated in accordance with said agreement, the said the Toledo Steamship Company, libelant herein, served upon said arbitrators and respondent herein notice that it revoked the submission to arbitration of the controversy between that company, libelant, and respondent herein, arising out of the collision between the steamers Saxona and Zimmerman, which occurred in St. Mary's river April 16, 1906, and 'requested' that the arbitrators take no further action and hear no further evidence and make no award in the matter as said company, libelant herein, withdrew from further participation in the submission or hearing and declined to have anything more to do with it; a copy of said notice being hereto attached marked 'Exhibit C.'

'And respondent says that the insurers of said company's steamer Eugene Zimmerman who had the largest interest in said claim did not join in or authorize said alleged notice of revocation, and have and do repudiate the same and abide by and accept the award made under said agreement as aforesaid.

'Respondent says that said arbitrators having theretofore, under said agreement of arbitration and in pursuance of the procedure adopted by said board of arbitrators as authorized by said agreement of arbitration and the further agreement of said parties thereto at the time of submission, and in accord with the course and procedure obtaining in the admiralty in causes of collision, heard, considered, and determined the issue of fault and liability for the damage resulting from said collision submitted to them, and having communicated the award in writing to the parties, and counsel for the parties having failed to agree upon the amount of damage sustained by this respondent, for which libelant herein was answerable under the award as to liability theretofore made, by reason of the refusal of counsel for libelant to act further in the matter on account of said notice, two of said board, the third declining to act further by reason of said notice, did on July 1, 1908, after due notice to the parties and to the other arbitrator, and hearing and examination and consideration of proof offered, determine that the damages to this respondent for which libelant was answerable under the award on question of fault theretofore made and communicated, amounted to the sum of $34,051.56, which sum, with interest at the rate of 6 per cent. (6 per cent.) per annum from June 1, 1906, to the date of said award, to wit, July 1, 1908, amounting at said date to $38,307.80, on which interest was allowed from July 1, 1908, until the same should be paid, and did further fix and allow to this respondent, in accordance with the terms of said agreement, its costs, taxed as in courts of admiralty under said agreement, in the sum of $397.90; and did fix and determine the fees of the arbitrators at $3,000 and apportioned the same $1,500 to Mr. Cady and $750 each to the other arbitrators, together with their expenses. * * * A copy of said determination is hereto attached, marked 'Exhibit D.'

'And respondent says that the insurers on said steamer Eugene Zimmerman who had the greatest interest in the damage claim asserted by her owner, and were solely responsible for the damages sustained by this respondent, accepted said award and abide by the same.

'And your respondent says that said libelant by said agreement, the procedure therein authorized, duly adopted and acted upon, and by the finding and award as to fault under said agreement and the procedure adopted as therein authorized and agreed to by the parties, is estopped and concluded on the question of fault and liability for damages resulting from said collision, and by the finding and award as to the amount of damages, as aforesaid, is concluded and estopped as to the amount of damages due this respondent as a result of said collision, and is estopped and debarred from further proceedings on account of said collision or the damages resulting therefrom, and from maintaining this action.

'(4) Your respondent, on information and belief, says that at the time of said collision the said steamer Eugene Zimmerman was insured for the sum of $225,000 on an insurance valuation of $225,000 against the ordinary risks covered by maritime insurance and including liability for collision damage done to other vessels; that such insurance was intended to and did cover all and every part of the damage sustained by this respondent as owner of the steamer Saxona and all the damages sustained by said steamer Eugene Zimmerman and the owner thereof, excepting the item of loss of use claimed to be about $38,000, and have paid to libelant its said damages excepting said claim for loss of use, and thereby became subrogated to all the balance of said claim embraced in said agreement and award and set up in the libel herein; that, in making said agreement of arbitration referred to, the...