Cramp Shipbuilding Co. v. Luckenbach SS Co., 10117.

• Decision Date: 16 May 1950
• Docket Number: No. 10117.,10117.
• Citation: 181 F.2d 939
• Parties: CRAMP SHIPBUILDING CO. v. LUCKENBACH S. S. CO., Inc. et al. The J. L. LUCKENBACH.
• Court: U.S. Court of Appeals — Third Circuit

181 F.2d 939 (1950)

CRAMP SHIPBUILDING CO. v. LUCKENBACH S. S. CO., Inc. et al. The J. L. LUCKENBACH.

No. 10117.

United States Court of Appeals Third Circuit.

Argued April 6, 1950.

Decided May 16, 1950.

Lewis H. Van Dusen, Jr., Philadelphia, Pa. (Henry S. Drinker, Drinker, Biddle & Reath, Philadelphia, Pa., Samuel B. Fortenbaugh, Jr., Philadelphia, Pa., on the brief), for appellant.

John C. Donovan, Washington, D. C. (Gerald A. Gleeson, United States Attorney, Philadelphia, Pa., J. Frank Staley, Special Assistant to the Attorney General, James P. McCormick, Assistant United States Attorney, Philadelphia, Pa., John T. Casey, Washington, D. C., on the brief), for appellee United States.

Thomas E. Byrne, Jr., Philadelphia, Pa. (Krusen, Evans & Shaw, Philadelphia, Pa., on the brief), for Luckenbach S. S. Co., Inc.

Before BIGGS, Chief Judge and GOODRICH and HASTIE, Circuit Judges.

GOODRICH, Circuit Judge.

This appeal in admiralty raises the question of the responsibility of the Luckenbach Steamship Company or the United States, or both, for paying $13,878 to the libellant, Cramp Shipbuilding Company. The charge is for the repair of 3,965 rivet holes and the price is agreed to be reasonable. It is agreed likewise that the work has been done and done satisfactorily. The question is who shall bear the costs.

The ship, "J. L. Luckenbach," was taken over by the United States and used during World War II. The agreement between the owner and the United States was that the ship was to be returned to the owner in at least the same condition as it was when taken, less ordinary wear and tear. When the war was over and the ship was to be returned to its owner the vessel was drydocked in Brooklyn. The owner's representative went over the vessel and made up a long list of items for repair in preparation for the return of the vessel to the owner in accordance with the contract. The owner was also permitted to include in the list of repairs to be made certain things which it desired in addition to that which the United States was obligated to do. These were paid for separately by the owner and do not concern us here. While the vessel was in Brooklyn representatives of the companies seeking to bid for the repair job were privileged to inspect it. Cramp did not do so but could have done so had it desired.

Cramp was the successful bidder. The ship was brought to the Cramp yards in Philadelphia and was worked upon in both the wet- and the drydock. Cramp has been paid $78,000 by the United States and $18,000 by Luckenbach for work done. All that is now out of the picture. The only thing subject to dispute at this point is the $13,878 item for the repair of rivet holes already mentioned.

The trial court denied recovery. This is an admiralty case and, of course, we are not as closely bound to the trial court's determination as we are in litigation governed by the Federal Rules of Civil Procedure, especially Rule 52(a), 28 U.S.C. A. Nevertheless, where the question is one of determining the probabilities among conflicting lines of testimony, the trial court's determination is to be given considerable weight, especially when witnesses appeared in court.¹

Under the contract, Cramp was to remove certain damaged metal plates from the hull of the vessel. Some of these were to be "faired in place and reriveted" and others were to be "renewed." The distinction obviously is due to the fact that some plates were damaged more seriously than others. It appears from the testimony that the "Luckenbach" had suffered two collisions in a tidal wave while in Manila Harbor during the war. The injured plates were caused by these misfortunes.

When the plates were removed in accordance with the contract it was discovered that rivet holes in adjoining plates, which were overlapped by the plates removed, were elongated. It was necessary that these elongated rivet holes be puddled in and the plates rereamed to receive new rivets in order that the ship would qualify for its class rating. This was done.

The record is full of contradictory testimony concerning the cause of the elongation of these rivet holes. One witness laid it to the original construction of the ship, a theory which none of the parties care to sponsor. The respondents urge that the elongation was due to the negligence of Cramp's employees in removing the rivets...