Verbeeck v. Black Diamond Steamship Corp.

MOORE, Circuit Judge. Upon the request of the proctor for Black Diamond Steamship Corporation for clarification of the opinion filed herein on November 4, 1959 and after hearing proctors for respective parties hereto, the said opinion of November 4 is vacated and withdrawn and this opinion is now filed as the opinion on the petition of Skibs A/S Jolund for a rehearing. This court’s decision in the first appeal, Petition of Skibs A/S Jolund, 250 F.2d 777, at 788, noted that “because of its findings that there was lack of proof of causation of the fire, the trial court considered it unnecessary to make a specific finding as to whether Capt. Svendsen was an executive officer, manager or agent.” We then stated as a matter of law that if the trial court should find that the Captain was not “a general agent or managing officer, then the owner will be entitled to exoneration as against the cargo owners.” After remand the district court, again believing such a finding unnecessary, did not determine whether Captain Svendsen was a general agent or managing officer of the owner, but premised its decision upon a general conclusion that no liability had been established against charterer or owner of the vessel. In our original decision on the second appeal, by disagreeing with that conclusion, we have changed the situation. Although we adopted a rather radical position in drawing our own conclusions as to negligence on the part of the charterer, I am content with that part of the majority decision, but an entirely different situation exists when we attempt to make [63] findings as to Captain Svendsen’s authority to bind the owner, after remanding for the very purpose of having the district court make the necessary findings. Finding 70 does not cure this defect because it only established Captain Svendsen’s knowledge, not his authority to bind the owner. Finding 70 was before this court in the previous appeal. Had it had the effect of binding the owner, the court could not have taken the position expressed by Judge Pope, as mentioned above. I now believe that a majority of the court was wrong in saying that a specific finding as to Svend-sen’s position is unnecessary because, once negligence has been shown, the burden of proof of coming within the exemption of the Fire Statute is upon the owner. This situation, namely, the establishment of negligence, did not exist until we established it. Hence the owner has not had the opportunity of obtaining the finding which Judge Pope’s opinion indicated was necessary. Nothing is more important than that litigants have an opportunity to know the issues they must meet and then have an equal opportunity to meet them. I believe that the shipowner by the action of the court in the first appeal and by our action in the present appeal has been deprived of this right. Although this case has been pending a long time, further delay is comparatively unimportant in contrast to a decision which may be erroneous on the law and the facts. Accordingly, the owner’s petition for rehearing is granted but only so far as concerns the claims of the cargo owners; and the limitation proceeding instituted by Skibs A/S Jolund, the owner of the “Black Gull,” is remanded as to claims of cargo owners for findings as to the personal negligence of the vessel owner in general, including findings as to Captain Svendsen’s authority to bind the owner and as to the negligence or lack of it of Captain Wellton or any other representative of the vessel owner of such status that his negligence would be personal to the owner within the meaning of the Fire Statute, 46 U.S.C.A. § 182. Pursuant to the opinion herein filed on June 18, 1959, the actions were remanded to the district court to fix the extent of liability. No further direction is necessary because in determining liability, if any, of the vessel owner to the cargo owners the determination will depend upon the findings of fact and the conclusions of law to bo made by the trial judge on the remand for this specific purpose as herein directed. In all other respects liability has been determined in our opinion of June 18, 1959.