Opinion
No. 382.
August 23, 1932.
Appeal from the District Court of the United States for the Southern District of New York.
Suits by Randall McAllister, as owner of the cargo of coal on board the barge Maple Hill, against the Goodwin-Gallagher Sand Gravel Corporation and three steamtugs, in which respondent impleaded the steamtug William G. Howard, the barge Maple Hill and Thomas J. Howard, suit by Randall McAllister, as owner of the cargo of coal on board the barge Maple Hill, against Thomas J. Howard and the William G. Howard, and suit by Thomas J. Howard, as owner of the Maple Hill, against the Goodwin-Gallagher Sand Gravel Corporation, which suits were consolidated. From a final decree in admiralty, entitled in the first two suits, that the libelant, Randall McAllister, as owner of the cargo of coal on board the barge Maple Hill recover against the steamtug Goodwin-Gallagher No. 14, and Goodwin-Gallagher Sand Gravel Corporation, the owner thereof, and the steamtug William G. Howard and Thomas J. Howard, the owner thereof, $20,009, and that the said sum be paid to the libelant in equal parts by Goodwin-Gallagher Sand Gravel Corporation, respondent and claimant of the tug Goodwin-Gallagher No. 14, and by Thomas J. Howard, respondent and claimant of the tug William G. Howard, the said Thomas J. Howard appeals.
Affirmed.
On December 10, 1926, there was a collision between the barge Maple Hill in tow of the tug Howard, each belonging to Thomas J. Howard, and the barge Marion J., one of a flotilla in tow of several tugs belonging to Goodwin-Gallagher Sand Gravel Corporation. The Maple Hill was lost, together with her cargo of coal owned by Randall McAllister. Thereupon the following suits in admiralty were brought:
(1) Randall McAllister, owner of the coal on board the Maple Hill, filed a libel in the Eastern district of New York, against Goodwin-Gallagher and its three tugs. The libel alleged negligence on the part of the Goodwin-Gallagher tugs. Goodwin-Gallagher impleaded the tug Howard, the barge Maple Hill, and their common owner Thomas J. Howard, asserting that the collision was due to their fault. Howard in his answer to the libel and petition pleaded the Harter Act as a defense.
(2) Randall McAllister, owner of the coal on board the Maple Hill also filed a libel in the Eastern district against the tug Howard, and her owner Thomas J. Howard, alleging unseaworthiness of the barge Maple Hill, as well as negligence of the tug. No process was issued under this libel and no stipulation or answer was filed.
(3) Thomas J. Howard, as owner of the Maple Hill, filed a libel in the Eastern district against Goodwin-Gallagher.
(4) Jacobus Transportation Company, owner of the barge Marion J., filed a libel in the Southern district of New York against both Goodwin-Gallagher and the tug Howard, wherein Thomas J. Howard appeared as claimant.
The first three suits above-named were consolidated by order of the District Court for the Eastern district and later, upon a stipulation, were transferred to the Southern district "to be tried along with" the suit of Jacobus Transportation Company which was there pending.
Thereafter the Jacobus suit came on for trial before Judge Goddard. Proctors for the parties involved in the three other cases, including proctors for Randall McAllister, who was not a party to the Jacobus suit, entered into a stipulation "that the case of Randall-McAllister against the Goodwin-Gallagher Sand Gravel Corporation and the William G. Howard; and the case of Thomas J. Howard, as owner of the Maple Hill against Goodwin-Gallagher and the tugs shall abide the decision of the case now on trial." The suit before Judge Goddard in which the stipulation was made was entitled: "F. Jacobus Transportation Company, Inc., owner of the scow Marion J. v. Goodwin-Gallagher Sand Gravel Corporation, and three other cases." Counsel for Thomas J. Howard and for Randall McAllister examined witnesses during the trial of the Jacobus suit and "rested" their respective cases.
After the conclusion of the trial, Judge Goddard filed an opinion under the caption of the Jacobus suit "and three other cases" in which he found that the tugs of Goodwin-Gallagher and Howard were both at fault, held that it was a case for half damages, and that libelant was entitled to enter a decree against the Goodwin-Gallagher Sand Gravel Corporation and the steam tug William G. Howard. Thereupon there was entered in the Jacobus suit only a decree that Jacobus recover one-half damages from Goodwin-Gallagher and one-half damages from the tug Howard; any balance uncollectible from either party to be paid by the other. Upon the argument of an appeal from this decree, all parties, both in the Jacobus and in the three other cases, appeared and filed briefs, and the decree was affirmed. F. Jacobus Transp. Co. v. Goodwin-Gallagher Sand Gravel Corporation (C.C.A.) 42 F.2d 659.
Thereafter all proctors in the consolidated case agreed upon the amount of damages suffered by Randall McAllister as owners of the cargo on the Maple Hill, and proctors for Randall McAllister moved for the entry of a decree (entitled in the two Randall McAllister suits) for full damages against Goodwin-Gallagher with right of recoupment by Goodwin-Gallagher from Howard of one-half thereof; but proctors for Goodwin-Gallagher proposed a decree (which was in fact the one entered) in which Randall McAllister should recover against Goodwin-Gallagher and against the tug Howard and Thomas J. Howard the full damages, but, as between the Goodwin-Gallagher and Howard interests, one-half should be paid by Goodwin-Gallagher and one-half by Howard, and any balance uncollectible from one party should be paid by the other. This decree recited that the respective parties had stipulated that their liabilities should abide the decision in the Jacobus suit and that in that suit the court had found that the collision had resulted from the negligence of the tug Goodwin-Gallagher No. 14 and of the tug Howard which was towing the barge Maple Hill.
After the decree was entered, Thomas J. Howard changed his attorneys in the McAllister Cases and moved to modify it by eliminating the provisions adjudging Howard liable for any damages or by restoring it for trial so that Howard might prove the defense which he had pleaded under the Harter Act (46 USCA §§ 190-195). The affidavits submitted on the motion to modify the decree relied on the fact that no proof of any defense that Howard might have under the Harter Act had been submitted to Judge Goddard during the trial of the Jacobus suit and the three other cases and that Howard had never waived his right to do this. The motion was denied. Thereafter this appeal was taken, and a motion was made on behalf of Howard before this court for leave to take testimony in support of his plea of the Harter Act in which he filed the affidavit of his former proctor to the effect that one of the proctors for Randall McAllister had stated prior to the trial before Judge Goddard that no question would be raised by Randall McAllister of the right of Howard to invoke the provisions of section 3 of the Harter Act (46 USCA § 192). The motion to take additional evidence before this court was denied.
Burnham, Bigham, Gould Murphy, of Boston, Mass., and Kirlin, Campbell, Hickox, Keating McGrann, of New York City (Foye M. Murphy and Miles Wambaugh, both of Boston, Mass., of counsel), for Randall McAllister.
Macklin, Brown, Lenahan Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for Goodwin-Gallagher Sand Gravel Corporation.
Purdy Purdy, of New York City (Edmund F. Lamb, of New York City, of counsel), for Thomas J. Howard.
Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.
All parties had the opportunity of introducing such proof as they wished during the trial before Judge Goddard. They entered into the stipulation we have quoted and reserved no questions for future adjudication except as to the amount of damages. Under such circumstances we find no basis for Howard's contention that he was deprived of his defense under the Harter Act. Discussions or understandings between proctors cannot supplant the formal stipulation. Besides Howard was not deprived of any right under the Harter Act for, in the circumstances, that act was not available as a defense against the right of recovery given Randall McAllister by the decree of Judge Goddard. That doubtless was why the experienced proctor who first represented him offered no evidence in support of the defense.
At the trial of the Jacobus suit the court found that the Goodwin-Gallagher tug and the Howard tug were both at fault and were joint tort-feasors. By reason of the stipulation, this finding established their fault in the Randall-McAllister suit, now on appeal. In such a situation Randall-McAllister, as owner of the cargo on the Maple Hill had a right to collect full damages from Goodwin-Gallagher, the owner of the noncarrying vessel and Goodwin-Gallagher to obtain contribution from the tug Howard and her owner Thomas J. Howard, who were joint tort-feasors for half of the amount it had had to pay. The above follows from the decisions of the Supreme Court in The Chattahoochee, 173 U.S. 540, 19 S. Ct. 491, 43 L. Ed. 801, and Erie R.R. Co. v. Erie Transportation Co., 204 U.S. 220, 27 S. Ct. 246, 51 L. Ed. 450. In The Chattahoochee it was held to make no difference that allowance of contribution deprived the carrying vessel of the immunity from cargo damage claims granted such a vessel by section 3 of the Harter Act (46 USCA § 192), which provides that the owners of a seaworthy vessel "transporting merchandise" shall not be liable in any amount "for damage or loss resulting from faults or errors in navigation."
The Chattahoochee, an American steamer, collided with the Golden Rule, a schooner. The schooner with her cargo was sunk, but The Chattahoochee was uninjured. Both vessels were held in fault for immoderate speed in a dense fog. The libelants, as bailees of the cargo on the Golden Rule, were held entitled to recover from the steamer the entire value of the cargo, and the latter was allowed to recoup one-half of this amount from one-half of the damages suffered by the schooner. In the case at bar it was contended on behalf of the Howard that The Chattahoochee had recovered half of the damages to the cargo from the half damages due from her to the carrying vessel only by way of recoupment and that the rule of The Chattahoochee ought not to be extended to a situation like the present where no right of recoupment exists. There was no hull damage to the Howard, and so there was no fund from which Goodwin-Gallagher could recoup one-half of its liability to the cargo. Because of this distinction between the present suit and The Chattahoochee, it is argued that the Howard is immune from any claim by its cargo and can invoke full protection under the Harter Act.
But, if the doctrine of The Chattahoochee is to be logically applied, Goodwin-Gallagher may assert its claim against Howard for contribution affirmatively as it might have done by way of recoupment if Howard had had a claim against Goodwin-Gallagher for hull damage. The Supreme Court did this very thing in Erie R.R. Co. v. Erie Transportation Co., 204 U.S. at page 226, 27 S. Ct. 246, 247, 51 L. Ed. 450. Justice Holmes, who delivered the opinion, said that, where cargo suffers loss from a joint tort, the right of the wrongdoers to a division of damages "extends to what one of the parties pays to the owners of cargo on board the other. The Chattahoochee, 173 U.S. 540, 19 S. Ct. 491, 43 L. Ed. 801. The right * * * does not stand on subrogation but, arises directly from the tort." He added that the liability of the carrying vessel was not affected by any provisions in her bills of lading giving her the benefit of insurance and requiring notice of any claim for damages to be made within thirty days in writing; and he accordingly allowed an affirmative recovery by the noncarrying vessel against the carrying vessel for half the cargo damage. While a defense under the Harter Act was not involved in that suit, the clauses in the bills of lading issued by the carrying vessel which protected her from cargo claims and gave her the benefit of shipper's insurance were held to afford no defense to a suit by the noncarrying vessel based on the right to recover half damages by way of contribution.
In reason it can make no difference whether the noncarrying vessel recoups itself out of money due from the carrying vessel as was done in The Chattahoochee or recovers the amount of contribution affirmatively as in Erie R.R. Co. v. Erie Transportation Co. In either case the property of the noncarrying vessel is used to liquidate one-half the claim of the cargo, and by either mode of satisfying the claim the carrying vessel is subjected (whether directly or not) to liability for one-half the damages suffered by the cargo.
Nor can it make any difference whether the cargo recovers its full claim against the noncarrying vessel and she recovers half against the carrying vessel, or whether, as here, the court decrees that the cargo recover half damages against each vessel. The decree provided that any balance of half the amount of damages which the cargo might not be able to collect from either vessel it might collect against the other. To the extent that the carrying vessel might be compelled under this provision to pay more than half damages, this decree was inadvertent; but, as Goodwin-Gallagher is stated to have paid its one-half share, the point is moot.
The liability to contribute imposed under the rule of The Chattahoochee and further extended by Erie R.R. Co. v. Erie Transportation Co., originates in the law of torts as applied by the maritime law, and is not affected by the terms of the Harter Act. If it were not for The Chattahochee and subsequent decisions, the present issues might be doubtful, but, in view of those decisions, there seems to be no question about the correctness of Judge Goddard's disposition of the case.
A single decree might have been entered in the consolidated case after the trial, but that was unnecessary, and the separate decrees actually entered were within the discretion of the trial court. Toledo Railroad v. Continental Trust Co. (C.C.A.) 95 F. 497, at page 506. Cf. Mutual Life Insurance Co. v. Hillmon, 145 U.S. 285, 12 S. Ct. 909, 36 L. Ed. 706.
Decree affirmed, with costs to appellee.