From Casetext: Smarter Legal Research

Benton v. United Towing Co.

United States Court of Appeals, Ninth Circuit
Jul 14, 1955
224 F.2d 558 (9th Cir. 1955)

Opinion

No. 14507.

July 14, 1955.

George H. Hauerken, John B. Brethauer, Hauerken, St. Clair Viadro, San Francisco, Cal., for appellant.

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

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


Benton, 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.

Benton 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."

The 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."

We 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.

Decree affirmed.


Summaries of

Benton v. United Towing Co.

United States Court of Appeals, Ninth Circuit
Jul 14, 1955
224 F.2d 558 (9th Cir. 1955)
Case details for

Benton v. United Towing Co.

Case Details

Full title:Robert K. BENTON, Appellant, v. UNITED TOWING CO., a corporation, Appellee

Court:United States Court of Appeals, Ninth Circuit

Date published: Jul 14, 1955

Citations

224 F.2d 558 (9th Cir. 1955)

Citing Cases

Vaughan v. Atkinson

Actual earnings during a period prior to maximum cure have been allowed as an offset against maintenance…

United States v. Staples

McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20. See Utility Service Corporation v.…