Before BIGGS, Chief Judge, and MARIS, GOODRICH, McLAUGHLIN, KALODNER, STALEY and HASTIE, Circuit Judges.
In this proceeding the United States of America and Sudden & Christenson, Inc. seek writs of mandamus and prohibition to be directed to the chief judge and judges of the United States District Court for the Eastern District of Pennsylvania and to a commissioner appointed by them. From the petition and answer the following facts appear.
In 1949 Samuel Spivak, a seaman, instituted a suit in admiralty for salvage against the petitioners in personam in the United States District Court for the Eastern District of Pennsylvania. The suit was brought without prepayment of costs pursuant to 28 U.S.C.A. § 1916 and is presently pending awaiting trial.
It appears that there are a large number of admiralty cases on the docket of the district court awaiting trial. Many of these have been at issue more than one year and some of them as many as three years, the total number representing about one-fourth of all the cases awaiting trial in the district court. In an effort to relieve this congested condition of the court's docket the chief judge of the court held a series of conferences with several groups of proctors engaged in admiralty practice before it. At these conferences the chief judge made it clear that unless some satisfactory means were agreed upon for the prompt disposition of admiralty cases other than by the regular process of listing and trial, it would be necessary to appoint commissioners with advisory powers to assist the court in disposing of those cases. No other acceptable plan having been suggested as a result of these conferences the district court on June 29, 1950, without any formal motion or notice, entered an order in the Spivak case referring the cause "to John V. Lovitt, Esquire, Commissioner to forthwith hear the testimony offered by the parties hereto and to submit to the Court an advisory report as to his conclusions on the issues of law and fact involved." A petition by the present petitioners for reconsideration of this order was denied by the district court. The petitioners then filed in this court the petition for writs of mandamus and prohibition which is now before us and by which they seek to have the order of reference in the Spivak case vacated by the district court and the commissioner prohibited from acting as such therein.
It further appears that the reference of the Spivak suit to a commissioner which is here involved was made pursuant to a plan under which the district court contemplates references of pending admiralty cases to a limited number of commissioners known to the judges for their integrity and ability who will accept such references as being in aid of the court and who are willing to be compensated on an over-all basis covering cases in which awards are made and those in which there are no awards. It will thus be seen that the reference of the Spivak case to a commissioner was made solely pursuant to a plan for the trial of admiralty cases generally by commissioners in order to relieve the congested docket of the court and not because anything in the Spivak case itself rendered it so exceptional as to justify its reference without regard to the other cases pending in the district.
We are fully aware that there is a serious congestion of cases awaiting trial in the district court. We are also aware that this condition is not confined to the admiralty docket but involves the civil actions pending in the court as well. We commend the district court for seeking by positive action to meet the situation.But we find ourselves unable to agree that it is within the power of that court to dispose of its pending admiralty cases by referring them generally to commissioners for hearing in the manner proposed in the Spivak case.
It will be observed that the reference to the commissioner in the Spivak case was for an "advisory report" only. The court evidently did not intend that the commissioner should himself decide the issues in the case or make definitive findings of fact and conclusions of law thereon. This is understandable in view of the decision of the Supreme Court in Kimberly v. Arms, 1889, 129 U.S. 512, 524, 9 S. Ct. 355, 359, 32 L. Ed. 764, that it is not within the general province of a master or commissioner to pass upon all the issues in a case "nor is it competent for the court to refer the entire decision of a case to him, without the consent of the parties. It cannot, of its own motion, or upon the request of one party, abdicate its duty to determine by its own judgment the controversy presented, and devolve that duty upon any of its officers."
Prior to September 1, 1932, when Admiralty Rule 43 1/2 and Equity Rule 61 1/2, 28 U.S.C.A. came into force, it was within the power of a district court under appropriate circumstances to make a reference to a commissioner or master for a report in an admiralty or equity case which would be merely advisory to the court and which it might "accept and act upon, or disregard in whole or in part, according to its own judgment as to the weight of the evidence." Kimberly v. Arms, supra, 129 U.S. at page 523, 9 S. Ct. at page 359, 32 L. Ed. 764.And this included the power, under appropriate circumstances, to refer all the issues in an admiralty case to a commissioner for such an advisory report. The P.R.R. No. 35, 2 Cir., 1931, 48 F.2d 122, certiorari denied Pennsylvania R. Co. v. Shamrock Towing Co., 284 U.S. 636, 52 S. Ct. 19, 76 L. Ed. 541. Indeed in the case just cited, 48 F.2d at page 124, Judge Learned Hand distinguished and avoided on this very ground the rule laid down in Kimberly v. Arms against making a general reference of the merits of a case to a master or commissioner.
In making the order of reference here under attack the district court relied upon The P.R.R. No. 35, supra. In that case the Court of Appeals for the Second Circuit had before it a situation substantially similar to the one which is now before us. The case involved a reference by the United States District Court for the Southern District of New York of all the issues in an admiralty cause to a commissioner with directions to file an advisory report. The reference was in pursuance of a plan to reduce the serious congestion in the admiralty docket of the court by making such references in a group of pending admiralty cases. The court of appeals held that Admiralty Rules 43 and 46 permitted such a reference under the circumstances. The effect of those rules will be discussed later. We think, however, that the adoption by the Supreme Court of Admiralty Rule 43 1/2 on May 31, 1932, 286 U.S. 572, a little more than a year after the decision in The P.R.R. No. 35, eliminated the basis for the decision in that case and that it is, therefore, no longer authority for the practice which it approved. Admiralty Rule 43 1/2 is as follows:
"Rule 43 1/2. Report of commissioners - presumption as to correctness - review
"In all references to commissioners or assessors, by consent or otherwise, whether the reference be of all issues of law and fact, or only particular issues either of law or fact or both, the report of the commissioners or assessors shall be treated as presumptively correct, but shall be subject to review by the court, and the court may adopt the same, or may modify or reject the same in whole or in part when the court in the exercise of its judgment is fully satisfied that error has been committed. Provided, That when a case or any issue is referred by consent and the intention is plainly expressed in the consent order that the submission is to the commissioners or assessors as arbitrators, the court may review the same only in accordance with the principles governing a review of an award and decision by an arbitrator."
It will be observed that Admiralty Rule 43 1/2 provides that in all references to commissioners the commissioner's report shall be treated as presumptively correct and may be modified or rejected by the district court on review only when that court "is fully satisfied that error has been committed". It is thus plain that Admiralty Rule 43 1/2, and Equity Rule 61 1/2 which was adopted at the same time and was in similar terms, abolished the practice of making references to commissioners and masters for purely advisory reports. The rules thus eliminated the distinction referred to in Kimberly v. Arms, supra, between a consent reference in which the commissioner or master decided the case, subject to review only for clear error, and a compulsory reference in which the commissioner's or master's report was advisory only. Roosevelt v. Missouri State Life Ins. Co., 8 Cir. 1934, 70 F.2d 939, 944, 945; The Mauretania, 2 Cir. 1935, 80 F.2d 225, 229. One would expect, therefore, that after the rules had abolished advisory references, the compulsory reference of cases, as distinguished from reference by consent, would be permissible only in the most exceptional circumstances. This, as we shall see, is the case.
Ever since September 1, 1932, the effective date of Admiralty Rule 43 1/2, in every reference in admiralty without exceptions the commissioner is required to pass upon the merits of the issues referred to him and to make definitive findings and conclusions thereon, the findings of fact so made being subject to modification and rejection by the district court only if it is fully satisfied that error has been committed. It is settled that the criterion under Admiralty Rule 43 1/2 is the same as that now laid down in civil cases by Civil Procedure Rule 53(e)(2), 28 U.S.C.A., the successor of Equity Rule 61 1/2, namely, that "the court shall accept the master's findings of fact unless clearly erroneous." Todd Erie Basin Dry Docks v. The Penelopi, 2 Cir. 1945, 148 F.2d 884, 886; Pioneer Import Corporation v. The Lafcomo, 2 Cir. 1947, 159 F.2d 654, 656, certiorari denied Black Diamond Lines v. Pioneer Import Co., 331 U.S. 821, 67 S. Ct. 1310, 91 L. Ed. 1838; Ozanic v. United States, 2 Cir. 1948, 165 F.2d 738, 742; Zeller Marine Corporation v. Nessa Corporation, 2 Cir. 1948, 166 F.2d 32. The effect of Admiralty Rule 43 1/2, therefore, is that in the ordinary case a finding of fact by a commissioner based upon conflicting testimony and a determination of the credibility of the witnesses before him is final in the sense that the district court on review ...