Galveston Dry Dock & Const. Co. v. Standard Dredg. Co.

• Decision Date: 07 April 1930
• Docket Number: No. 295.,295.
• Citation: 40 F.2d 442
• Parties: GALVESTON DRY DOCK & CONSTRUCTION CO. v. STANDARD DREDGING CO.
• Court: U.S. Court of Appeals — Second Circuit

40 F.2d 442 (1930)

GALVESTON DRY DOCK & CONSTRUCTION CO. v. STANDARD DREDGING CO.

No. 295.

Circuit Court of Appeals, Second Circuit.

April 7, 1930.

Bigham, Englar, Jones & Houston, of New York City (W. J. Nunnally, Jr., of New York City, of counsel), for appellant.

Burlingham, Veeder, Fearey, Clark & Hupper, of New York City (Ray Rood Allen and Adrian J. O'Kane, both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The libellant sued in personam for a bill of repairs done upon the respondent's dredge in the sum of $26,000. The respondent answered, admitting the execution of the contract, denying that the repairs required the time alleged to have been taken, but neither denying nor admitting that they were performed at all. It denied that twenty-six thousand dollars was due, but admitted that the libellant was entitled to a lien upon the dredge for seven thousand dollars, which was the difference between the amount demanded and the respondent's damages for delay in completing the repairs, and which it had unsuccessfully tendered to the libellant in satisfaction. As a set-off it pleaded that the libellant had negligently allowed the dredge to stick on the ways for over eleven days, the damages for this delay being the set-off. On motion by the libellant the court passed an order for a partial final decree for seven thousand dollars, and severed the cause of suit as to the balance. Such a final decree was then entered, but later amended so as to provide that it should be without prejudice to further prosecution of the libel. Thereafter the respondent paid the amount awarded, and filed a supplemental answer, alleging that the partial final decree was res judicata upon the whole claim, and the payment an accord and satisfaction. The cause came on for hearing and the libellant admitted that the dredge had stuck upon the ways, and had lost some time. It denied the rate per diem demanded by the respondent and the length of the delay. The court thereupon held that the answer stated no defense, and entered an interlocutory decree for a reference to compute damages. The respondent appealed.

Rule twenty-nine of the Admiralty Rules of the Southern District of New York, which has been in force since June 1, 1921, reads as follows:

"In case the respondent or claimant in his answer does not deny that the libellant is entitled to recover in respect of a part of the claim set forth in the libel and does not claim any recoupment, offset, or counterclaim in respect of said part admitted to be due, the Court may, upon motion, make an order of severance and enter a final decree for any sum so admitted to be due; all without prejudice to the further prosecution of the cause with respect to contested matters."

The rule is carelessly drawn, because it appears to treat as identical a failure to deny an allegation of the libel and its admission, as though the common-law doctrine applied to the admiralty. The Twenty-Ninth Admiralty Rule of the Supreme Court (28 USCA § 723) which has been in substance unchanged since 1844 (3 How. XV, Rule 30), does not so provide, but requires the libellant to except if the respondent does not answer fully, in which case the court compels a full answer, or takes such other steps as justice requires. Probably as under the earlier rule, the court may declare the allegations not denied to be taken pro confesso, but without some action of the court it appears to be still true that a failure to deny an allegation in a libel does not admit it (Clarke v. The Dodge Healey, Fed. Cas. No. 2849; The Dictator D. C. 30 F. 699). Our obiter statement to the contrary in The Hattie Thomas (C. C. A.) 262 F. 943, 945, was based upon a New York decision, which in such matters does not control. However, this defect in the pleadings need not trouble us, because the answer at bar expressly admitted the validity of a lien upon the dredge so far as the set-off did not meet it, which necessarily presupposed that the repairs were actually made. Thus the Twenty-Ninth Rule of the Southern District applies to the situation provided the phrase, "a part admitted to be due," allows the splitting of a single cause of suit. The respondent says that it does not; that at most it covers only a case where the libel joins two separable causes of suit, of which one is admitted and the other is denied, or is subject to a set-off or counterclaim. This is the main question raised.

While it is doubtful, because of the difference in language, that the rule was taken from Rule four of Order XIV of the Orders of the English Supreme Court of Judicature, the purpose was clearly the same, and it is reasonable to construe it as that rule has been construed, as well as Rule 114 of the Rules of the New York Supreme Court, which was taken from the English model without change of substance. So far as we can find in neither case has it been thought necessary that the severance must be of separate causes of action, recognized as such at common law. Dennis v. Seymour, L. R. 4 Ex Div. 80; Lazarus v. Smith, L. R., 1908 2 K. B. 266; Appelbaum v. Gross, 117 Misc. Rep. 140, 191 N. Y. S. 710, affirmed 202 App. Div. 727, 193 N. Y. S. 924; Reliable, etc., Co. v. Delgus, 223 App. Div. 94, 227 N. Y. S. 425; Little Falls Dairy Co. v. Berghorn, 130 Misc. Rep. 454, 224 N. Y. S. 34. Elsewhere similar statutes have had a like construction (Malloy v. Douglass, 113 S. C. 384, 101 S. E. 825; Stedman v. Poterie, 139 Pa. 100, 21 A. 219; Johnson v. Carver, 175 Pa. 200, 34 A. 627; Weaver v. Carnahan, 37 Ohio St. 363, 365, semble), and while for a short time the Court of Appeals of the District of Columbia thought the partial judgment a merger (Overland, etc., Co. v. Alexander, 43 App. D. C. 282), the ruling was in substance soon repudiated (Fidelity Mut. Ins. Co. v. Brown, 45 App. D. C. 579).

We can see no reason for importing such notions into a remediable...