BENZ et al. v. COMPANIA NAVIERA HIDALGO, S.A.; MacRAE et al. v. COMPANIA NAVIERA HIDALGO, S.A.; MORRISON et al. v. COMPANIA NAVIERA HIDALGO, S.A.
Nos. 13750 to 13752
United States Court of Appeals, Ninth Circuit
June 30, 1953
Rehearing Denied Aug. 1, 1953
205 F.2d 944
The contrast between the facts of this case and those of Long v. 500 Co., supra, is well stated in American Player Piano Co. v. American Pneumatic Action Co., 172 Iowa 139, 154 N.W. 389, 393 (1915), as follows: “The distinction between the cases in which a warranty is implied and where it is not implied is that in one case a person buys a distinct thing, an exact article, and gets the thing he bargained for. He cannot complain that it does not accomplish the purposes for which he purchased it, although he communicated that purpose to the seller. In such cases he takes his own risk as to the fitness of the thing for the intended purpose, and no warranty is implied. This rests upon the thought that no one can complain of another, or charge him with fault, who gives to him the exact thing which he bargained to give, although it is not fit for the purposes for which he bought it.” The same distinction was recognized in Long v. 500 Co., supra, where the court in explaining certain Washington cases applying the rule just quoted from the Iowa case, said, 212 P. at page 560: “These cases, it is true, sustain the general principle that, where a known, described and definite article is ordered of a dealer, who is not the manufacturer of the article, and an article of the known and described kind is delivered, there is no warranty that the article supplied is suitable for the purpose for which the buyer intends to use it, even though the buyer may have made known to the dealer, at the time he gave the order, the intended use“. We think that the record will not sustain a finding to support an implied warranty of the kind claimed here.
Since we are of the view that the appellees’ claim cannot be sustained upon the basis of either an express or implied warranty, the judgment must be reversed.
The case has one tag end. The court, in addition to awarding appellees damages for breach of warranty, awarded damages in the sum of $500 for wrongful detention of a lifeboat. No fault can be found with that part of the judgment and to that extent it must be affirmed.
The judgment is reversed and the cause remanded to the court below with directions to modify the judgment so that the same will award plaintiffs the sum of $500 only. Appellants shall recover their costs upon this appeal.
POPE, Circuit Judge.
These are appeals from interlocutory injunctions issued in three separate suits brought by the appellee, a Panamanian Corporation. It is the owner and operator of the S.S. Riviera, a vessel registered under the Liberian flag. The appellants, defendants in the several actions below, are citizens of the State of Oregon and of states or countries different from that of the plaintiff.
The Riviera arrived at the Port of Portland, Oregon, September 3, 1952. Her crew were all foreign nationals, chiefly Germans and British, who between March and August, 1952, signed British articles agreeing to work on the ship on a voyage from Bremen, Germany, for a period of two years, and agreeing that British maritime board conditions should apply to their wages, hours of employment and working conditions. About September 9, the crew entered upon a strike, in the nature of a sit-down strike, and withheld possession of the vessel from the owners until September 26, 1952, when they were required by an order and decree in admiralty issued out of the district court to leave the vessel. Following October 14, 1952, the Sailors’ Union of the Pacific picketed said vessel and the appellee, asserting that the effect of the picketing was to prevent the owner from fitting and equipping the vessel for a prospective trip, brought an action against the appellants in No. 13,750, naming them individually and as representatives of the Sailors’ Union of the Pacific, asking temporary and permanent injunctions against the picketing, and for damages. An interlocutory injunction, restraining those appellants during the pendency of the suit from picketing the vessel, was issued November 26, 1952. The appeal in No. 13,750 is from that injunction.
Two days after that injunction was issued, another picket line was established at the vessel by persons purporting to act for Local 90 of the National Organization of Masters, Mates and Pilots. On December 9, 1952, an interlocutory injunction was
After these several picketing operations had been thus restrained, the Riviera completed its repairs and sailed from Portland, Oregon, on December 23, 1952, with a cargo of wheat pursuant to a charter. It has since completed that charter voyage and unloaded its cargo of wheat at Bombay, India, and is now under charter to carry a cargo of ore from India to Europe via the Suez Canal. Upon conclusion of that voyage the articles under which the vessel has been sailing since March, 1952, will be terminated. The Riviera is a tramp freighter and presently has no charter or commitments for return to any port in the United States. The members of the crew who went on strike at Portland were discharged and all but one of them have left for other places, and their whereabouts is unknown.
Showing these facts by affidavit, the appellee has moved to dismiss these appeals on the ground that the interlocutory injunctions, and the appeals therefrom have become moot. It is said that because of the departure of the vessel nothing remains upon which the injunctions could have any impact, as continued picketing of the vessel is now impossible. We are asked to grant said motion without prejudice to and without passing upon the rights of the parties respecting matters involved in the actions aside from the interlocutory injunctions. The actions insofar as they seek recovery of damages have not been tried and are not affected by these appeals.
On behalf of appellants it is urged that the appeals present important questions, such as the question presented below that these were cases involving or growing out of a labor dispute, and that the court was without jurisdiction to issue an injunction here by reason of the Norris-La Guardia Acts prohibitions against injunctions in such cases. See
We are of the opinion that as respects the interlocutory injunctions here involved, such injunctions and these appeals have become moot and that therefore we have no right or occasion to pass upon the merits of these appeals. Newcomb v. United States, 9 Cir., 98 F.2d 25; O‘Brien v. Fackenthal, 6 Cir., 284 F. 850. Cf. United States v. Hamburg-American Co., 239 U.S. 466, 475 (1916); California v. San Pablo & T. R. Co., 149 U.S. 308, 314 (1893). In the Hamburg-American case, supra, it was argued, as here, that the conditions which had made the case moot probably would terminate in the future and that therefore the Court should proceed to decide the controversy and settle the future rights of the parties. The court said: 239 U.S. at page 475, “[I]t is urged, in view of the character of the questions and the possibility or probability that, on the cessation of war, the parties will resume or recreate their asserted illegal combination, we should now decide the controversies in order that by operation of the rule to be established any attempt at renewal of or creation of the combination in the future will be rendered impossible. But this merely upon a prophecy as to future conditions invokes the exercise of judicial power not to decide an
Again it is argued that since the appellee is still seeking damages in the court below, its right to recover damages is dependent upon the court having jurisdiction in equity. It is said that unless the equity jurisdiction necessary to support an injunction exists, the court cannot retain the case for the purpose of granting incidental relief by way of damages. We think that inasmuch as the appellee‘s claim for damages is one which it has the right to prosecute in the court below wholly apart from any claim for an injunction, and since an action for damages alone might have been maintained, appellant is not in a position to assert that we must retain this appeal for the purpose of passing upon the question whether the trial court had the claimed jurisdiction to grant an injunction.
We are therefore of the view that these appeals must be dismissed as moot. However, they became moot without any fault of the appellants, and we think that this fact should not operate to prejudice the appellants in their defense of the actions insofar as they relate to a claim for damages. That we may make an order here “most consonant with justice” in adjudging these injunctions moot, we carry that determination to its logical conclusion, namely, that what was determined by the court below in issuing such injunctions is without further force or effect, and cannot be relied upon as res judicata, as creating an estoppel, or as the law of the case, all to the end that the issues relating to the claim of damages may be tried by the parties as free from the effects of such injunctions, as if the same had not been issued.
The motion to dismiss said appeals as moot is granted.
On Petition for Rehearing.
Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.
PER CURIAM.
The appellants have petitioned for a rehearing and have included in their contentions the argument that the temporary injunctions and the appeals therefrom did not become moot inasmuch as there remains for determination the question of the appellants’ right to damages for the wrongful procuring of such injunctions. Appellants have called attention to that portion of the Norris-La Guardia Act contained in
This aspect of the case was not discussed in the opinion previously filed for the reason that this contention was not made by appellants in their briefs or at the oral argument. At the time of the argument the court made inquiry as to the possibility of the existence of such a claim for damages and was then informed that no bond or other security had been required or furnished in connection with the issuance of the temporary injunctions. Now that this point has been made for the first time upon petition for rehearing, we have again examined the record and we note that it is indeed the fact that no bond or undertaking was furnished at the time of the granting of the temporary injunctions. The trial court found and concluded that these were not cases involving or growing out of labor disputes and that the Norris-La Guardia Act did not apply.
Whether the court‘s conclusion in that regard was right or wrong was one of the
And since whether rightly or wrongly no bond or security was furnished, we must apply the rule which prevails in the federal courts. That rule is that in the absence of such a bond, there may be no recovery of damages for the issuance of a temporary injunction even although it may have been granted without just cause. Russell v. Farley, 105 U.S. 433, 437 (1881); Meyers v. Block, 120 U.S. 206, 211 (1887); Tenth Ward Road Dist. No. 11 v. Texas & P. R. Co., 5 Cir., 12 F.2d 245, 247 (1926); Campbell Soup Co. v. Martin, 3 Cir., 202 F.2d 398, 399 n. (1953). Cf. International Ladies Garment Workers’ Union v. Donnelly Garment Co., 8 Cir., 147 F.2d 246, 253 (1945).
The petition for rehearing is denied.
K. C. Tanner and Richard R. Carney, Portland, Or., for appellants.
Wood, Matthiessen, Wood & Tatum, John D. Mosser and Gunther F. Krause, Portland, Or., for appellee.