Crumady v. The Joachim Hendrik Fisser

• Decision Date: 21 September 1959
• Docket Number: Civ. A. No. 1-54.
• Citation: 176 F. Supp. 595
• Parties: John H. CRUMADY, Libellant, v. THE JOACHIM HENDRIK FISSER, Her Engines, Tackle, Apparel, etc., Respondent. HENDRIK FISSER AKTIEN GESSELSCHAFT, Claimant-Respondent, v. NACIREMA OPERATING CO., Inc., Impleaded-Respondent.
• Court: U.S. District Court — District of New Jersey

176 F. Supp. 595

John H. CRUMADY, Libellant, v. THE JOACHIM HENDRIK FISSER, Her Engines, Tackle, Apparel, etc., Respondent.

HENDRIK FISSER AKTIEN GESSELSCHAFT, Claimant-Respondent, v. NACIREMA OPERATING CO., Inc., Impleaded-Respondent.

Civ. A. No. 1-54.

United States District Court D. New Jersey.

September 21, 1959.

Brass & Brass, Sydney Brass, Newark, N. J., Freedman, Landy & Lorry, Abraham E. Freedman, Philadelphia, Pa., for and of counsel with libellant.

Charles N. Fiddler, Victor S. Cichanowicz, New York City, for claimant-respondent.

Stryker, Tams & Horner, John J. Monigan, Jr., Newark, N. J., for impleaded-respondent.

WORTENDYKE, District Judge.

As succinctly expressed by Mr. Justice Douglas, speaking for the majority of the Supreme Court of the United States in affirming the judgment of this Court, 358 U.S. 423, at page 424, 79 S.Ct. 445, at page 446, 3 L.Ed.2d 413:

"Crumady was an employee of a stevedoring company (Nacirema) engaged in transferring a cargo of lumber from the ship Joachim Hendrik Fisser * * * at Newark, New Jersey. While so engaged, he was injured and brought this admiralty suit by libel in rem against the vessel. The vessel impleaded the stevedore contractor."

Further factual details will be found in this Court's opinion, D.C., 142 F.Supp. 389.

The judgment entered on August 15, 1956 upon the opinion of this Court provided that "Crumady is awarded judgment and shall recover for himself of the respondent Joachim Hendrik Fisser, her engines, tackle, apparel, etc., and claimant Hendrik Fisser Aktien Gesselschaft, owner of respondent vessel, the sum of $55,527.15 together with his costs to be taxed, including the sum of $614.41 paid by the libellant to the court reporter for stenographic fees, and interest thereon from the date hereof until paid." The same order for judgment further provided that "a judgment in the sum of $55,527.15 and such interest as is paid thereon together with libellant's taxed costs, is awarded claimant, Hendrik Fisser Aktien Gesselschaft by way of indemnification of the aforesaid vessel against the respondent-impleaded, Nacirema Operating Co. Inc. and also claimant's taxed costs including the sum of $614.41 paid by the claimant to the court reporter for stenographic fees upon its petition impleading said respondent-impleaded." After the entry of these judgments, a hearing was held upon due notice by each of the parties, for the taxation of costs. No item for counsel fees was included in the suggested items embodied by the claimant-respondent in its notice of taxation of costs and the total amount taxed as costs in favor of said claimant-respondent was $2,240.96.

On November 13, 1956 the respondent-impleaded, Nacirema, filed its notice of appeal to the United States Court of Appeals for the Third Circuit "from so much of the final judgment * * * as awarded indemnification in favor of the claimant Hendrik Fisser A/G in the amount of $55,527.15, together with its costs and the costs allowed in favor of the libellant against it together with interest thereon." On the same date claimant-respondent Fisser filed its notice of cross-appeal to the same Court "from that part of the decree entered herein on August 15, 1956, which orders, adjudges and decrees that the libellant John H. Crumady is awarded judgment and shall recover for himself of the respondent Joachim Hendrik Fisser, her engines, tackle, apparel, etc. and claimant Hendrik Fisser Aktien Gesselschaft, owner of respondent vessel, the sum of $55,527.15 together with his costs to be taxed including the sum of $614.41 paid by the libellant to the court reporter for stenographic fees and interest thereon from the date hereof until paid, and * * * that the said claimant also appeals from the part of the decree which fails to order and adjudge that the claimant be awarded its counsel fees, expenses and other reimbursements by way of indemnification against respondent-impleaded in the defense of the libel herein." The latter notice of cross-appeal adds that it is "a protective appeal to be prosecuted in the event that the respondent-impleaded files and prosecutes a timely appeal from the award of indemnification contained in said decree." On November 16, 1956, Crumady, the libellant, filed his notice of appeal to the same Court from "so much of the decree for judgment and final judgment entered on August 15, 1956 which limits the amount" awarded to him against the claimant, Hendrik Fisser Aktien Gesselschaft as owner of respondent vessel, Joachim Hendrik Fisser, to the sum of $55,527.15 and * * * from the findings and opinion of the United States District Court, District of New Jersey, which are not in support of the judgment entered herein in favor of the libellant."

The Third Circuit Court of Appeals (249 F.2d 818, 821), reversed the judgment of this Court in favor of libellant upon the ground that this Court erred in concluding that the negligence of libellant's employer, Nacirema, "`brought into play the unseaworthy condition of the vessel.'" The Court of Appeals further held that "It was a proper finding (by this Court) that the negligence of the stevedores was `the sole active or primary cause' of the parting of the gear." And that "the gear was not proved to have been unseaworthy, neither was the setting of the cut off device established as a legal cause of the accident which occurred." The Court of Appeals concluded that the District Court should have denied the libellant recovery and therefore that the Court of Appeals did not "reach the substantial question raised by the impleaded respondent whether there would have been legal basis for making it an indemnitor, had the ship's liability been sustained." It is also obvious from the language of the appellate Court's opinion that its finding that the libellant was entitled to recover nothing by way of damages precluded the necessity and propriety of its consideration of the sufficiency of the award of damages made by the District Court.

Crumady was successful in obtaining a writ of certiorari from the Supreme Court of the United States to the Third Circuit Court of Appeals (357 U.S. 903, 78 S.Ct. 1150, 2 L.Ed.2d 1154). On return of the writ the Supreme Court, in a majority opinion, reversed the judgment of the Court of Appeals, which had reversed the judgment of the District Court, and "reinstated" the District Court's judgment. In its mandate, the Supreme Court directed that the cause (upon the two writs allowed, Nos. 61 and 62, October Term 1958) be remanded to the District Court "with instructions to that Court to reinstate its judgment." 358 U.S. 423, 79 S.Ct. 445, 448.

This Court is now confronted with the following motions in this protracted litigation:

1. By libellant, Crumady, for an increase in the award of damages made by this Court to him; and

2. By claimant-respondent, Fisser, for a rehearing of the question of its right to counsel fees and expenses and for a reversal by this Court of its previous determination denying such relief.

Libellant's Motion to Increase Damage Award.

Crumady concedes that he took no steps to test the sufficiency of the quantity of the award of damages to him until the notice of his present motion. It is obvious that the Third Circuit Court of Appeals was not called upon to consider the sufficiency of the award in favor of Crumady in view of its decision that no damages should have been awarded to him. Crumady argues that the mandate of the Supreme Court to the District Court supplants the judgment...