Waterman Steamship Corporation v. Shipowners & Merchants Towboat Co.

200 F.2d 563 WATERMAN STEAMSHIP CORPORATION, a corporation, Appellant, v. SHIPOWNERS & MERCHANTS TOWBOAT CO., Limited, a corporation, and Tug Sea Fox, Inc., a corporation, on their own behalf and on behalf of the Master, Officers and Crew of the Tug Sea Fox, Appellees. THE SEA FOX, Inc. No. 13135. United States Court of Appeals Ninth Circuit. Dec. 22, 1952. On petition for rehearing. Rehearing denied. For former opinion see 199 F.2d 600 . Before HEALY, BONE and POPE, Circuit Judges. 1 Rehearing denied. 2 POPE, Circuit Judge (dissenting). 3 The opinion of the court is to the effect that if the rule of The Pennsylvania, 19 Wall. 125 , 86 U.S. 125 , 22 L.Ed. 148 , is applicable here, the burden of proof required by that rule has been met, and that the trial court has so found. 4 I think this is manifest error, as was the statement of the trial court: 'The burden of proof has been carried because the evidence clearly shows that the Herald was set adrift and carried into a position of danger solely by the violence of the storm.' (Emphasis added.) In view of the fact that the unlicensed master, disregarding storm warnings, set out from a place of safety in Drake's Bay with a broken…