Ellis
De La Rama S. S. Co. v. Ellis
Opinion
Dissenting Opinion
Garrecht, J.
(dissenting)-
The question here as resolved by the lower court and the majority -opinion is whether the appellant company exercised reasonable judgment in loading the glassware after receipt of the news of the Pearl Harbor attack. The lower court found that the appellant after the knowledge it had received of the attack on Pearl Harbor did not have reasonable grounds for believing it could proceed with the voyage. The majority opinion does not agree with this finding.
Such findings have the, same force and effect as the verdict of a jury, the same conclusiveness, especially in cases where the important testimony is oral and where the trial judge had the opportunity to observe the witnesses and judge their veracity. Findings of fact will not be disturbed by the appellate court unless they are so clearly contrary to the evidence as to produce in the mind of the reviewers a conviction amounting to a reasonable certainty that they are wrong.
In the lower court’s finding that the appellant acted in an unreasonable manner in loading the cargo after the knowledge of the attack on Pearl Harbor, I fail to find clear error. The decision of the lower court should be affirmed.
Lead Opinion
Healy, J.
Appellee sued in a California court to recover possession of certain glassware and for damages for its detention. Upon removal of the cause appellant asserted a counterclaim on account of earned freight in the sum of $3,772. The trial eventuated in a judgment in appellee’s favor for the recovery of the glassware or its value.
Appellee, whose headquarters are at San Francisco, is an exporter and importer of merchandise to and from the Philippine Islands and other places in the Far East. Appellant is a Philippine corporation with its main office at New York City. It owned, among other vessels, the Philippine motor ship Dona Aniceta. In November of 1941 an oral engagement was made between the parties for the shipment on the Dona Aniceta of the glassware from the port of New York to far eastern ports, more particularly to Manila, Cebu, and Hong Kong.
Since 1937 appellee had been a member of the Far East Conference group of carriers, agreeing, by the provisions of the Conference regulations, to ship all his exports by member lines. Appellant was also a member of the Conference. The conference agreement incorporated the carriers’ regular form of bill of lading. About the middle of…