The Folmina

173 F. 615, 97 C.C.A. 557, 1909 U.S. App. LEXIS 5099

• Court: Court of Appeals for the Second Circuit
• Decided: July 21, 1909
• Docket: No. 281
• Status: Published

Opinion

NOYES, Circuit Judge

(after stating the facts as above). The Supreme Court has ruled that the unexplained admission of sea water into an apparently seaworthy ship is not of itself a sea peril within the meaning of the exceptions in the bill of lading. Upon the facts stated to the Supreme Court, therefore, it necessarily follows that the Folmina is liable. The cargo of rice was injured while in her custody as a .carrier through the action of sea water. It was not shown that the sea water came in through the action of external causes. The only exemption in the bill of lading claimed to cover damages so caused, was that relating to perils of the sea. If, then, this court is to base its decision upon the statement of facts which it has already made, the only course is to reverse the decree appealed from. The appellee, however, contends that upon this rehearing this court should re-examine the question whether sea water in fact caused the damage. It urges with much force that the damage was caused by sweat and not by sea water. And if the question were an open one, it may well be doubted whether a majority of the court, as at present constituted, would find that sea water did cause the damage.

But we cannot regard the question as now an open one. This court has found as a fact that sea water caused the damage, and upon thatj finding has applied for and obtained the instructions of the Supreme Court. We do not now determine whether in a case where it clearly appears that a statement of fact accompanying a question certified to the Supreme Court was made through mistake or inadvertence, or in a case where new evidence has been received subsequently to the making of such statement, this court would have power to change the facts so found after the Supreme Court has answered the question, and render its decision upon the basis of the altered facts. That which we do now hold is that, where facts have been found and stated to the Supreme Court as the basis for asking its instructions, this court will not, after such instructions have been obtained, re-examine upon the identical evidence already considered controverted questions of fact which have been advisedly determined. And, applying this rule to the present case, this court must decline to accede to the contention of the appellee that it reconsider the question, upon the same record as before, whether sea water caused the damage.

The decree of the District Court is reversed, with costs, and the cause remanded, with instructions to enter a decree for the libelants for their damages, interest, and costs.