The Bronx

246 F. 809, 159 C.C.A. 111, 1917 U.S. App. LEXIS 1417

• Court: Court of Appeals for the Second Circuit
• Decided: November 13, 1917
• Docket: No. 20
• Status: Published

Opinion

HOUGH, Circuit Judge

(after stating the facts as above). In the one point advanced by appellant in the court below, and raised here by assignment of error, there is no legal merit.

[1] The answer asserted that Wolfe, an officer of alleged owner, agreed with' libelant that either he or the owner would pay for the supplies in question. From this Beebe seems to have inferred that, if Wolfe was not as good as his word, there was no lien. Such is not the law; the lien is. presumed on proof of due delivery on request of lawful supplies, until such presumption is destroyed by affirmative proof of agreement -that the promising party was to be exclusively liable for payment. The Havana, 64 Fed. 496, 12 C. C. A. 361; The Yankee, 233 Fed. 919, 147 C. C. A. 593; The Oceana (C. C. A. 2d, Oct. T., 1916) 244 Fed. 80, - C. C. A. -. In short, the answer tendered no issue, except the amount and' price of the supplies.

[2] But this answer was by Beebe as agent for owners; it necessarily followed the claim, and Beebe never appeared as charterer, nor intervened pro interesse suo. If he had no authority from the owners to claim, stipulate, and answer, his whole proceeding was a fraud. In the absence of proof, we assume authority; he therefore spoke for owners, in an answer on peremptory exception.

[3,4] The foregoing disposes of the only matter raised by assignment; but in this court for the first time appellant asserts that tire District Court was without jurisdiction to enter decree, because the trial was unlawful, in that it took place before a commissioner, and not-before the court. That there was jurisdiction over the res and the parties is plain, and whether an objection to procedure can be first made in the appellate court is a point on which we express no opinion, but the practice in this case requires criticism.

It is ancient custom, not yet everywhere abandoned, to adduce evidence in admiralty before commissioners or examiners, and references of special questions to specially qualified persons have been recognized (The City of Washington, 92 U. S. at 39, 23 L. Ed. 600); but an admiralty court cannot, without consent of parties, send the merits of a cause for trial before a commissioner, master, or referee. This has been specifically held as to equity (Kimberly v. Arms, 129 U. S. 512, 9 Sup. Ct. 355, 32 L. Ed. 764), and we hold that the same rule applies in admiralty. Therefore the reference herein to a commissioner “to hear and determine” was wrong in phrase; but the commissioner was right in treating the matter as a direction to compute or assess damages, pursuant to a practice firmlv settled since Shaw v. Collyer, 4 Blatch. 370, Fed. Cas. No. 12,718.

Since the answer tendered no issue, except as to items of recovery, there was still power to refer, when the court erroneously sent the matter back to the commissioner. Consequently the strange phrase, “to hear and determine,” borrowed from state practice, and used to the confusion of court and parties, did no harm; the.error was not jurisdictional, and, even if now properly raised, does not require reversal of a decree right in substance, though reached by methods not to be approved.

Decree affirmed, with costs, but without interest.