O'Donnell Transp. Co. v. City of New York

• Decision Date: 06 July 1954
• Docket Number: No. 243,Docket 23020.,243
• Parties: O'DONNELL TRANSP. CO., Inc. v. CITY OF NEW YORK. THE KOSCIUSKO. THE DON. THE ANNA F. O'DONNELL.
• Court: U.S. Court of Appeals — Second Circuit

215 F.2d 92 (1954)

O'DONNELL TRANSP. CO., Inc. v. CITY OF NEW YORK THE KOSCIUSKO THE DON THE ANNA F. O'DONNELL.

No. 243, Docket 23020.

United States Court of Appeals, Second Circuit.

Argued May 11, 1954.

Decided July 6, 1954.

Purdy, Lamb & Catoggio, New York City (Edmund F. Lamb and Thomas J. Irving, New York City, of counsel), for libellant-appellant.

Adrian P. Burke, Corporation Counsel, New York City (Anthony Curreri, Advocate, Seymour B. Quel and Barbara Carroll, New York City, on the brief), for respondent-appellee.

Before CHASE, Chief Judge, and HINCKS and HARLAN, Circuit Judges.

HARLAN, Circuit Judge.

This appeal challenges the propriety of so much of a final decree in admiralty as failed to allow interest on the amount of libellant's recovery.

The libellant, as charterer in possession of the barges "Kosciusko," "Don" and "Anna F. O'Donnell," instituted this action on February 28, 1948, in the District Court for the Eastern District of New York to recover damages for injuries allegedly inflicted upon those barges by reason of respondent's negligence on various dates between February 7 and April 22, 1946. Thereafter, respondent propounded certain interrogatories to be answered by libellant, among which were the following:

"11. State precisely what items of the alleged damages were actually repaired."

"12. State when and at what shipyard such repairs were made."

Exceptions to interrogatories 11 and 12, inter alia, were sustained by Judge Byers on September 11, 1948. Following a trial of the issues on April 18 and 21, 1952, Judge Abruzzo, on May 15, 1952, entered an interlocutory decree, together with findings of fact and conclusions of law, allowing recovery of damages sustained by the "Kosciusko" on February 27-28, 1946, and by the "Don" on March 27-28 and on April 20-22, 1946, with interest, and referring the matter to a Commissioner to take proof as to the amount of damages sustained and to report thereon to the Court.

At the hearing before the Commissioner the respondent first learned that at least one of the barges, the "Don," had not been repaired and had remained in operation until February 1950. From letters subsequently addressed to the District Court by the respondent, which are referred to hereafter, it appears that the same was true with respect to the "Kosciusko." On September 8, 1953, the Commissioner submitted his report recommending an award of $7,830.00, together with interest. No exceptions were taken to the Commissioner's report. Both parties thereafter submitted proposed decrees, that of the libellant including an award of interest and that of respondent omitting any such award. Prior to entry of the final decree, the attorneys for the respondent addressed two letters to the District Judge (sending copies to the attorneys for the libellant) in which they urged the Judge in his discretion to disallow interest on the award for the following reasons: (1) libellant had delayed institution of suit for two years after the injury complained of; (2) the barges were not repaired; and (3) the barges were continued in operation after the injuries.

On October 13, 1953, Judge Abruzzo issued a final decree which did not provide for interest on the award. Libellant, on October 23, 1953, moved for an order resettling and correcting the final decree so as to provide for interest. On November 4, 1953, the Court denied the motion as follows:

"The decision In re Hibbard, 2 Cir., 27 F.2d 686 leaves it discretionary with this Court. I do not see why interest should be allowed where not yet expended."

Libellant attacks the disallowance of interest by the District Court on essentially two grounds. The first is in effect that the Court was without power to recede from its allowance of interest in the interlocutory decree and from a similar recommendation contained in the Commissioner's report, to which no exceptions were taken. No authority is cited, nor are we aware of any, which would require a court, in framing a final decree, to adhere woodenly to the exact terms of a previous interlocutory decree where facts unknown to the court at the date of the interlocutory decree are thereafter brought to its attention. Indeed, the desire to afford opportunity for correction of error by the trial court itself underlies, in some measure, the rule ordinarily forbidding appeals from interlocutory orders. Nor can failure to object to the allowance of interest in the interlocutory decree be treated as a waiver of the right thereafter to raise the question where, as here, the respondent, despite previous efforts in that direction, was unable to ascertain the facts upon which its ultimate challenge rested until after reference of the matter to the Commissioner.

We likewise find no substance in the libellant's assertion that the respondent's failure to take exception to the Commissioner's report, which recommended allowance of interest, constituted a waiver of the objection under Admiralty Rule 25(d) U.S.Di...