224 F.2d 558 - Benton v. United Towing Co. — 224 F.2d 558

How this case has been cited

Cited by 16 later decisions (1 by the Supreme Court) — most recently July 1980

13 federal appellate · 1 district ·

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1George H. Ha.uerken, John B. Breth-auer, Hauerken, St. Clair & Viadro, San Francisco, Cal., for appellant.

¶2John H. Black, Edward R. Kay, Alexis J. Perillat, Appel, Liebermann & Leonard, San Francisco, Cal., for appellees.

¶3Before DENMAN, Chief Judge, and BONE and ORR, Circuit Judges.

¶4PER CURIAM.

¶5Benton, libelant in an admiralty proceeding, appeals from a decree denying him relief for an injury received while he was employed by United Towing Company on its oil barge engaged in the delivery of oil in San Francisco Bay. The libel claimed that Benton’s injury was caused by (a) the unseaworthiness of the oil barge and (b) the negligence of the towing company in failing to maintain its seaworthiness. The court held the barge was seaworthy and that there was no negligence of the towing company.

¶6Benton contends that this court should try this proceeding de novo and this although all the testimony was by witnesses heard by the trial court. Whatever may have been the rule heretofore, the contention that an admiralty appeal requires a trial de novo has been finally disposed of by the Supreme Court’s holding in McAllister v. United States, 348 U.S. 19, at page 20, 75 S.Ct. 6, at page 8, stated as follows:

“No greater scope of review is exercised by the appellate tribunals in admiralty cases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure.”

¶7The pertinent portion of Fed.Rules Civ.Proc. rule 52(a), 28 U.S.C.A. is:

“Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”

¶8We agree with the holding of the district court on the two contentions urged in the appeal and adopt Judge Hamlin’s excellent opinion disposing of them as that of this Court-.

¶9Decree affirmed.