THE VENEZUELA.
873
INSURANCE
Co.
of NORTH
AMERICA V. THE VENEZUELA el VENEZUELA
aI.
MERRITTel
at. t1. THE
etal.
(Circuit Court of Appeals, Second Circuit. October 4,
Nos. 64, 68. ADJQRALTY ApPEALS"7NIlIW EVIl>IlINOE-RULES OFCOUR'l'.
Rule 7 oftheadmirMty rules promulgated by the circuit court of appeals for the second oircuit, to t"ke efl'ect Joly 2, 1892, authorizes the taking of new proofs only on,sumol(lnt oaus.eshown to the court or a judge thereof purslj.ant to an application made Wi,thiIi'15 days after the filing of the apostles, aod upon 4 days' notice to the adverse party. .Held; that this: rule will not be enforced as against a party case :W:l!oS,.tried in the district court prior thereto, in reliance upon the right to mtroduce!i®1i new testimony on an appeal as was permissible under the then e:l\:isting rtilelland practice of the oircuit; and in soch a case the court will, as under the old new evidence which was not intentionally held 'in the diiitrict court. The new rule is' not an Inllovation iIi admiralty prac-
.
Appeal from the Circuit Court, of the United States for the Southern District of New York. In Admiralty. Separate libels filed· by' the Insurance Company' of North America and the Atlantic & Gulf Wrecking Company, on the one hand, and by brael J. Merritt and Israel J. Merritt, Jr., on the other, against the steamship Venezuela, her tackle, etc., and her cargo;' (John Dallett and others, constituting the firm of Bailton, Bliss & Dallett, being claimants,) to recover for salvage services. The case9 were' heard together in the district court, which awarded $6,500 to the fltstnamed libelants and 833,500 to the Merritt Wrecking Company. See, 50 Fed. Rep. 607. An appeal was taken by the first-named libelants' in the one case and by the claimants in the other, the appeals being numbered 64 and 68, respectively, on the docket of this court. The case is now heard on the motion of the appellees to suppress certain depositions filed in this court by the appellants, and containing new evidence not offered below. Robert D. Benedict. for the motion. George A. Black, opposed. Before WALLACE,' LACOMBE, and SHIPMAN, Circuit Judges. WALLACE, Circuit Judge. We think the facts stated in the opposing affidavits should excuse the appellant for not making the application for leave to fake neW proofs required by rule 7, Appeal Rules in Admiralty, promUlgated by this court May 20,1892, to take effect July 1, 1892. It would be unjust to a party whose case has been tried in the district court'in,reHat:lce upon the right to introduce such new testimony' I1pon an appeal as was· permissible under existing rules to preclude him
I
from doing so because of limitations imposed by rules of court subsequently made. The not require a retroactive are disposed to treat the motion to supeffect to be given to it, and press appellant as, thQl.lgh.,tbe RJ?pellee were showing cause, pursuant to the' old (No. 130,fwhythf' appellant should not p,roofs., ,the ,adoption of the new rule, it was not the practice 'hi this chcuitto allow parties upon an appeal in an cause from the district,QOurt to introdllce as new evidence that which 'was available at the in the district court, and had been deliberately withheld. TheiSaundlr8, 23 Fed. Rep. 303; The William H. Payne, 25 Fed. Rep. 621; SinglehurBt v. La Compagnie, decided App. 126,1 C. C. A. 487, SO;,]ii.d.Rep. 104.);ilt had not: been definitely decided, however, that Shb1.ng n'lete1tbecaus,elt had beenaeg1igently ollwlted,at the 'hearing in the district court; and, by of perhaps' of tQyj1.1dges, it new evidence might, be' offered ,which witbheliiat the trial beis to reform what had become a mislow.' ", The purpose' oHbe new chievous practice in this circuit, and to require the exercise of a sound dis01fetion b1Jthe 6fthis'oourbin'refrising to allow parties to offer testimony which ought to have been produced, but was not produced, in, the;eourtof original! , The 'rule is not II new departure {l'om the recognized practice of courts ofradmiralty genendlyt, but conforms to it. In The Gener0U8, 2 L. R. Sil'nOBERT:PSIJ,LIMOREsaid: ! court will gOOd reasUI1;te> be shown evidence not prodUqetl ,beforethll court below should,b1;l introduced, in this court, and will exto the of case. 01} th is subject: principles, wllich IUe too obvious De dis,eretionshould be' exerclsed ,with reserve'an,deautloJ).;" , " , ,
we
'In TMMooresly,l Asp.,411,
1872, the same judge to two who had,oot been,examioed in it did p.otappear that. there was any surprise owing to the absence ofthe witnesses. In The William, 7 Ir. Jur. 354, the reporter's note is as follows:, . "This COl11't will admit additional evidence upon appeal. if it th$'party or ill the court below to tender it at the original hearing; tlJ.e witnesses being nautical men, whose attendance not always available." :) .: ".-:. ,: :' .'. ", ':'
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Ifimel"10 r.flee, at the evidellce. given to sQ(:jw that
in this country is ROBev. Mr,. J JOHNSON in the supl'emecourt the question whether qew depel)(l upon the qatureof apq thasufficiency of the reasons jna:bility of: the clailllantto suchevi-
. I.; .
' :
,
875 deI1ceat the timeo! the trial was' not: attributable to his own laches, The next c8.sewasG>.ffin v. Jenki1isHrStory, 108, 120, which arose on thllquestion ofamendment of an answer,invol'ving new proofs to support it. In refusing to Allow the amendment, Judge STORY said: " "The matter of defense must have been well known when the cauSe was in the court below, and ought then. if ever, to have been insisted on, as, if well fOllnded. it disposed of the whole suit. This court ought in all cases to be very cautious in admitting any new matters, either of allegation or of defense. to be introduced here, when the facts on which they rest are not new or newly discovered, but were perfectly kno\Vn at or before the hearing in the district court. We should otherwise constantly have appeals here entertained upon matters never brought to the notice of the district court. and might virtually exercise an entb'ely original jurisdiction, ao/appellate Jurisdiction;" ', , In The, Schooner Boston, 1 Sum. 331, the same learned judge used the following language: "It being clearly established that a knowledge of the circumstances had not been brought home to the claimants until after the decree of the district court, this court had no difficulty, at a former hearing, in allowing the cla11nants to tile a supplementary. an8wer aud defense on this !Joint." ",; " .
Upon the general propQ!lition that, although appellate courts in ,admiralty treat 'an appeal as a new trial, and exerci,se much liberality in permitting new proofs and new pleadings in ftlrtherance of justice, they are by any arbitrary rules to receive testimony :which ought tohava been produced, but was not produced, in the court of original jurisdiction; the following judgments may be, cited: .1he Osiris, 1 Hagg. Adm. l35;The General Palmer, ld. 323; The Glenmanna, 2 Lush. 122; The Flying Fish. Brown. & L. 436; The Samuel,l Wheat. 9; The Mary, 8Cranch, 388; The Grey Jacket, 5 Wall. 342;' The.M,4bp,y, 10 Wall. Metropolis, 12 Wall. 389; The Juniata, 91U. S. 366. The present case illustrates very well the necessity of adhedng to the restrictions provided hy the new rule. The new depo:oitions taken by the appellant are all of them of witnesses whose testimony might have been procured readily by the. exercise of reasonable diligence. . The controversy is one as to the value of salvage services rendered to the steamship Venezuela by the steamer North America and the tug Buckley. The appellant now offer!l the depositions ofQhambers. who was m.Rster of the Venezuela at the time of the salvage, and of Hopkins. a former master of the Venezuela, who was on board her at the time of the salvage service; of Skillings, mate of the Venezuela, on board her at the time; of McEllwie, of the tug Buckley, on board at the time of the service; and of Dallas, a witness for the appellant who was examined at the trial in the district court. If these witnesses had been produced, as they might have been, and examined, in the district court, very likely the controversy would have ended there, and the delay and expense of this appeal been dispensed with; but, in any event, this court would have had the benefit of the judgment of the district court upon
the ,valueot their testimony.Wevertheless we cannot find that the testimony of tht;t new witnElSses was iQtentionally withheld, or that the faill,ue to them was attribu.taple to gross laohes, and, adhering to the prevailing practice at the time the cause was tried and the appeal was taken, the only deposition which we feel justified in suppressing is .that of the witness Dallas.
THE MATTANO.
MARINE RAILROAD, SHIPBUILDINU
&
COAL
t1.
THE MATTANO
et al,
(circuit oowrt oj ,Appea£8; Jiourth Oircmit. October 11, 1892.)
In an case, in which .anlappeal W a circu.tcourt was taken prior to July I, 1891, its decrees are reviewable, under Act March 8, 1891, § 6t in the circuit court of whose jurisdiction w!J.s not. suspended or limited 1U rany way by "tbejoirlt'1;Csolutlon of the same date,'wllich merely preserved the.right of the cir,. cult cour,tB to he,ar appeals in cases,theu, pending, and in proceedings to review Buch cases taken out I, 1891. S. CONTRAOT-AOTION-BURDEN OF PBOOJ'. , ' . . On a libel bt rem for mOney due on a dontract for repairs, where it is admitted ,thatthelaboll"and materials set forth lnthe bill of particUlars were furnished. and thllot the job was well done, the ageJ;lt oUhe owner I:!aving signed certificates as to the correctness of each day's state\:p.ent, and its conformity with the contract, the ·:burden ,of proof is on the owner to show any errors in the bill of particll' .irs. , S. SAKB-REPAIBING VESSEL-DELAT-EvIDENCE.
...... O()t1Jlil',·OI'
ApPIIUS-J'URISDIOTION IN PENDING CUBS.
On a UbeHn rem for repairs to a vessl'll' a reduction of charge for expenses incurred by 'the owner because of unreasopable delay should not be allowed, when he has not tietrayed auy marked impatience during the work, and his agent has each day certified, to the daily statement of the work done, without making any coIilplaint therein, although the owner did grumble a little, to burry the libelants up. , A claim fOl'reduction in the cbargesfor profits which the owner might have made but·for unnecessary delay should .not be allowed, when it rests upon mere conjecture by the master and owner, it being in their power to give certain testimony by reference to the books' of the vessel. REfRESENTATIONS-KNOWLBDGE BT BO'l'IIPARTIES. '
·· SAME-DAMAGES FOR DELAY-PROFITII I'REVEST)lD-EVIDENClil.
,An assertion by the agents of tbe.li\lelants that the, shipyard was as well prepared as any: they knew of to do the work, as far as machinery was concerned. even if an exaggeration, in view of the fact ,that they had no band saws, was not such a 'warranty as ",ould authorize a redqction of charges fOr waste of lumber in cutting by hand, When the owner was in the shigyard, and might have seen whether they baud ,., ' 5.SAlII1!h-O,!,ljiROHAR(iES,
1,' ·SAME-EVI:PENCB.
':'The owner offered ,to furnish the lumber, but the lIbelallt replied that it was not i: n.ecessarf,and that the prices therefor should be made satisfactory. The owner's agent forlumber in, the first daily abstracts, but, On told that the price would be made satisfactory in the settlemept, signed them. HeId,. that the owner was misled .btthe statements of the libelant, and was entitled -', ' , .to ,a, pf charges head. ' .".,
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..' ':Aolaim of overcharge for lumber used in scaffolding, not supported by any evi· .denCIl as to how much was so used, should be disallowed. ' ).. .
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