Cuyamel Fruit Co. v. Nedland

• Decision Date: 20 May 1927
• Docket Number: No. 4953.,4953.
• Citation: 19 F.2d 489
• Parties: CUYAMEL FRUIT CO. et al. v. NEDLAND et al. THE OMOA.
• Court: U.S. Court of Appeals — Fifth Circuit

19 F.2d 489 (1927)

CUYAMEL FRUIT CO. et al. v. NEDLAND et al. THE OMOA.

No. 4953.

Circuit Court of Appeals, Fifth Circuit.

May 20, 1927.

Geo. H. Terriberry and Walter Carroll, both of New Orleans, La. (Terriberry, Young, Rault & Carroll, of New Orleans, La., on the brief), for appellants.

John D. Grace, M. A. Grace, Edwin H. Grace, and Edouard F. Henriques, Sp. Asst. in Admiralty to U. S. Atty., all of New Orleans, La., for appellees.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

About 2:30 o'clock in the morning of April 13, 1922, the steamship Kewanee, owned by the United States of America, and then loaded to capacity, anchored in the Mississippi river below Algiers Point, about 400 feet from the west bank, opposite New Orleans, being, when she straightened out on her anchor, about 75 to 100 feet upstream from the steamship Omoa, which had no cargo aboard, and had been anchored where she then was since February 14, 1922. About 3 o'clock that morning another vessel, the Chicago Maru, came up and anchored between 200 and 250 feet outside the Kewanee, the stern of the Chicago Maru when she was anchored being about amidship of the Kewanee. A few minutes after the Chicago Maru anchored, the Kewanee sheered, dragged her anchor, and drifted until she collided with the Omoa, breaking loose the latter's anchor chain and setting her adrift, with the result that the Omoa collided with the steamship Stavangaren, which was anchored a short distance downstream, and after such collision continued to drift downstream until she was taken in tow by tugs and brought back up the river to a wharf at New Orleans.

The master of the Stavangaren libeled the Omoa for recovery of damages to the former. The owner of the Omoa answered the libel, denying liability, and impleaded the United States of America as owner of the Kewanee. The impleading petition charged that the drifting of the Omoa and damage thereto, and the Omoa's collision with the Stavangaren and the resulting damage to the last-named vessel, were due wholly to alleged faults chargeable against the Kewanee, and prayed an award in favor of the owner of the Omoa against the owner of the Kewanee for damages sustained by the Omoa, and that, in the event of the court decreeing anything to be due to the original libelant by the Omoa or her owner, the same amount be decreed in favor of the owner of the Omoa against the United States. The owner of the Omoa, by its answer to the original libel, put in issue the allegations as to damages sustained by the Stavangaren, and the owner of the Kewanee by its answer to the impleading petition put in issue the allegations as to damages sustained by the Omoa and the Stavangaren.

After evidence for all parties had been adduced before a commissioner and submitted to the presiding judge, he delivered an opinion on October 1, 1924, and a decree signed by him was filed on the same date. That opinion expressed the conclusions that the Omoa was chargeable with fault in being anchored with only one anchor when the river was at flood stage, and at a point where all vessels arriving at night were required to stop and remain until daylight, and in being left at night with no one aboard, except two Jamaican negroes, who were incapable of handling her when necessity arose; that the Kewanee was at fault in putting out only one anchor, when the high stage of the river, the swift current, and the local restrictions on her movements showed that additional precautions were required; and that the Stavangaren should recover her damages against the Omoa, and that those claimed by the Omoa of the Kewanee, or the United States, should be denied. The decree mentioned, after a recital of the submission of the cause, continued and concluded as follows:

"Whereupon, and on consideration thereof and for the reasons assigned in the written opinion of the court on file, the court finds that in this case the Stavangaren should recover her damages against the Omoa and those claimed by the latter of the Kewanee, or the United States, should be denied, and it is so ordered.

"It is further ordered that this matter be now referred to Reginald H. Carter, Esq., as commissioner, who is directed to ascertain the amount of damages suffered by the Stavangaren and to report the same back to this court in due season, all according to law and the usual forms and practices of this court."

Following the making of a report by the commissioner named in the above-mentioned decree, the court, on August 18, 1926, rendered a decree which awarded in favor of the original libelant and against the Omoa and her sureties damages, which included an award for demurrage for 9½ days on the basis of $5,000 per month, less expenses. The owner of the Omoa appealed from that decree on the day it was rendered. In behalf of the appellant it was contended that the Omoa was not chargeable with fault; that the Kewanee was solely at fault, and liable for the damages both to the Stavangaren and the Omoa; that, if the Omoa was chargeable with fault, the Kewanee being also chargeable with fault which was a contributing cause of the injury to the Stavangaren, the damages should be divided between the Kewanee and the Omoa; and that the Stavangaren's claim for demurrage should be rejected.

The owner of the Kewanee moved to dismiss the appeal. In its behalf it was contended that the above-mentioned decree of July 1, 1924, was final so far as the case concerned the Kewanee or her owner, and that the right to review the court's ruling on the question of the asserted liability of the Kewanee was lost by the failure to appeal from that decree within the time allowed. The language of that decree shows that it was not final, but interlocutory only. Obviously it did not dispose of the whole case, or even all the issues between the owner of the Omoa and the owner of the Kewanee. It did not dispose of the...