On Petition for Rehearing.
The main reliance of the petition for rehearing is upon a case not previously cited to us, Galveston Wharf Co. v. Galveston, H. & S.A.R.R., 285 U.S. 127, 52 S. Ct. 342, 344, 76 L. Ed. 659. But we fail to see how that controls here. There the Supreme Court affirmed the highest court of Texas in granting recovery to a shipper against a Wharf Company; it exonerated no one. It expressly accepted the facts found by the lower courts (as we have done); those included a finding of delivery to the Wharf Company. "The wharf company did not dispute that it was a common carrier. As such, it had facilities and rendered service. It is also manifest that it received the goods for transportation to the connection with the railway company that was to take them to destination." There is a reference to the fact that the Wharf Company owned not only the pier where the goods were when destroyed by fire, but also railroad trackage from its piers to connections with railroads runnings out of Galveston, including a Southern Pacific line which was named in the bill of lading as the delivering carrier. In other words, the actual circumstances were such as to call for railroad transportation by the Wharf Company, and the Supreme Court's company was thus in fact and in law a connecting carrier" seems apposite to the circumstances there existing - and not to those found by the district court herein.
That we have correctly interpreted the Supreme Court's view of the case seems clear from its statements in the same opinion distinguishing Missouri P.R.R. v. Reynolds-Davis Grocery Co., 268 U.S. 366, 45 S. Ct. 516, 69 L. Ed. 1000, urged upon it as showing that the Wharf company was only the agent of the main carrier. The Court said that in the cited case the Missouri Pacific "had employed the St. Louis-San Francisco to perform a switching service in making the required delivery at the place of destination," and that there the Missouri Pacific was held to be the delivering carrier and "could not defeat that liability by the employment of an agent for service at the terminal." The finding which we have accepted and which we consider amply justified on the evidence makes the earlier precedent the governing one here. As we said in the main opinion, whethr lighters carrying cargo to a main carrier are acting on behalf of the main carrier, so that he receives the goods when they do, is always a question of fact. We believe that question has been resolved correctly.
Except for certain objections of form, other grounds relied upon in the petition were discussed in the former opinion, to all of which we adhere except the third paragraph of Section 2, which will read as follows:
here libelants without doubt could have obtained permission to amend their libel after exceptions to it had been sustained. Admiralty Rule 23, 28 U.S.C.A. following section 723; Hughes v. Roosevelt, 2 Cir., 107 F.2d 901. They did not seek to amend as to Barber-Wilhelmsen, and allowed final judgment to go against them in favor of that respondent. They did, however, proceed to trial against the present respondent; at the trial the missing facts were proved, and a cause of action was made out. In this state of the record, an amendment of the pleladings to conform to the proof was, of course, permissible. The Roslyn, 2 Cir., 93 F.2d 278; cf. Rule 15(b), F.R.C.P., 28 U.S.C.A. following section 723c. So far as concerns Pan-Atlantic, libelants may therefore be deemed to have amended their libel and to have stated a sufficient cause of action in their libel as amended. It is regrettable if one of two joint principals may have succeeded in escaping a share of a liability while the other is justly ensnared, but such are the fortunes of law.
Petition for rehearing denied.