176 F.2d 709 | 2d Cir. | 1949
While in tow of the tug Tracy on February 2, 1943, the coal barge Mavis sustained damage when swells were encountered which caused the tug to surge and roll against the barge. The owner of the Mavis libelled the tug, alleging negligence in the handling of its tow. The claimant of the tug impleaded the city of New York, alleging that the swells were caused by the negligence of the city’s ferryboat, American Legion. After a trial the district court entered on June 17, 1944. an interlocutory decree awarding the libellant recovery against the city of New .York and dismissing its libel without costs as against the tug Tracy. On appeal by the city we reversed the decree against the city and refused to consider that part of the decree dismissing the libel against the tug because the libellant had assigned no error.
The first question is whether the issue of the tug’s liability is open for consideration on this appeal. The appellee argues that the interlocutory decree of June 17, 1944 was a final decree with respect to the non-liability of the tug, and that the time for appealing therefrom had expired prior to the taking of the present appeal. This contention -is not supportable. 942; Western States Mach. Co. v. S. S. Hepworth Co., 2 Cir., 152 F.2d 79, 80. Plainly the decree of June 17th was interlocutory.
We hold that the libellant is not foreclosed by the prior appeal. The applicable principles are well expounded in A. & R. Realty Co. v. Northwestern Mut. Life Ins. Co., 8 Cir., 95 F.2d 703, 707. After referring to the holding in Bissell Carpet-Sweeper Co. v. Goshen Sweeper Co., 6 Cir., 72 F. 545, 555 that if, upon an appeal from an interlocutory order, the appellate court is required to pass upon the merits of the case, a second appeal from the final decree, which challenges the same interlocutory order, can involve only matters affecting such order subsequent to its entry, since the appellate court cannot be required to review the same order twice on the same grounds. Judge Sanborn’s opinion continues: “The converse of this ruling would 'be that where no appeal had been taken from the interlocutory order or where, if taken, the appellate court was not required to and did not pass upon the merits of the controversy in deciding the appeal, a subsequent appeal from the final decree could properly challenge the validity of the interlocutory order and invoke a decision upon the merits.”
To similar effect is the decision of our own court in Western States Mach. Co. v. S. S. Hepworth Co., 152 F.2d 79, 81 where Judge Chase said: “But errors in the interlocutory decree not passed upon in this court and not embraced in our mandate were not made immutable; and the district court was not required to carry into the final decree errors which had lurked unnoticed by this court in the interlocutory decree.” See also Mutual Life Ins. Co. v. Hill, 193 U.S. 551, 24 S.Ct. 538, 48 L.Ed. 788, holding that a judgment of reversal is not necessarily an adjudication of any other than the questions in terms discussed and decided, and that on a second review all questions appearing on the record which have not already been decided are open for consideration. In the case at bar, on the previous appeal we expressly refused to consider the findings and conclusions of the district court that the tug was free from fault.
The appellee, however, vigorously contends that by failing to file cross-assignments of error as required by the Rules of this court the libellant has waived its right to question dismissal of the libel against the tug.
The trial judge made detailed findings of fact which were set forth in full in our previous opinion, 147 F.2d 393, and need be here repeated only in summary. The swells set up by the ferryboat caused the tug and coal 'barge to surge and roll, and while rolliríg; the Tracy struck against thé port side of the' Mavis, thereby causing the damage complained' of. The judge found that the ferryboat’s speed was “excessive.under the. circumstances.” We set aside this finding and exonerated the ferryboat because her distance from the tug and tow was such that her navigatpr was not chargeable with a duty to foresee that the swells were likely to strike the barge before they ran out" sufficiently to make them harmless. The appellee urges that if the navigator of the ferryboat was not chargeable with foreseeing the danger, neither was the navigator of the tug. But the question as to the tug is not the same. As to her the question is whether her navigation was proper after she did see the swells. On .this subject - the facts were as follows: The tug had the barge on her .starboard side, made fast in the usual and customary manner. When the master of the tug observed the swells he stópped the tug’s engines and ordered one deckhand to take a position near the bow bitts and the other near the stern bitts. When it was seen that the swells would cause the tow to ride and surge more than usual, the lines between the tug and the barge were slackened. The district judge was of the opinion (Finding 10) that those in charge of the tug “did all that could reasonably have been done, to avoid damage from the swells caused by the American Legion.” With. this conclusion we are unable to agree. According to the expert testimony of Captain Oakes, two courses of action were .open to the tug: either she should keep her lines taut so that the tug and tow will bob up and down together while heading directly into the swells, or she should slack her lines in time for the barge to drift free of the tug before the swells hit, for otherwise the vessels will bang together and cause damage. . The master of the Tracy followed neither of these courses. He testified that he headed directly into the swells, stopped his engines a minute or two before the swells reached him but did not slacken his lines until after thq first swell hit.. The deck-hand corroborated this, and also testified that the contact between the tug and barge occurred after the lines were slacked off. He gave it as his opinion that if the lines had not been slacked they would either have broken “or the boat would have made lots more damage than it did.” But a deck-hand’s opinion should hardly outweigh that of so experienced a tug-boat master as Captain Oakes. The district judge made no reference in his oral opinion to either, the testimony of Captain
City of New York v. McLain Lines, 2 Cir., 147 F.2d 393, 396:
“As libellant assigned no error with respect thereto, we can consider neither the findings and conclusions that the tug. acted properly nor that part of the decree dismissing the libel against the tug.”
See note 1 supra.
Rule 38(3) of the Rules in effect when tlio aj)peal from the interlocutory decree was taken (Rule 33 of the presently effective Rules, see Benedict, Admiralty, 6th ed. Vol. 5, p. 37) provided that “If the appellee desires other or further relief than that granted by the decree, he must, within ten days after the appellant has served his Notice of Appeal, file with the clerk of the district court and serve on the proctor for the appellant, an assignment of errors.”