Hydrospace-Challenger, Inc. v. Tracor/Mas, Inc., HYDROSPACE-CHALLENGE

• Decision Date: 08 October 1975
• Docket Number: HYDROSPACE-CHALLENGE,No. 74-2182,INC,74-2182
• Citation: 520 F.2d 1030
• Parties: , Plaintiff-Appellee, v. TRACOR/MAS, INC., Defendant-Appellant-Cross Appellee, v. The WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY, Defendant-Appellee-Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1030

520 F.2d 1030

HYDROSPACE-CHALLENGER, INC., Plaintiff-Appellee, v. TRACOR/MAS, INC., Defendant-Appellant-Cross Appellee, v. The WILLIAM J. BURNS INTERNATIONAL DETECTIVE AGENCY,

Defendant-Appellee-Cross Appellant.

No. 74-2182.

United States Court of Appeals Fifth Circuit.

Oct. 8, 1975.

Wicker, Smith, Pyszka, Blomzvist, Davant, McMath, Tutan & O'Hara, Ft. Lauderdale, Fla., Jose R. Garcia-Pedrosa, Richard A. Sherman, Miami, Fla., for Tracor/Mas.

Reginald M. Hayden, Jr., Miami, Fla., for Hydro. Challenger.

James D. Acosta, Victor H. Womack, Miami, Fla., for Burns Det. Agency.

Appeals from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, and GODBOLD and CLARK, Circuit Judges.

CLARK, Circuit Judge:

This is an admiralty case. It comes to us after trial to the court without a jury. At the conclusion of the trial the court read into the record its informal findings of fact and conclusions of law, from which the following summary is taken.

I

A. SUMMARY OF FACTS

On September 28, 1971, plaintiff Hydrospace Challenger, Inc., (HCI), brought its research vessel, the DANIEL HARRIS, III, into the shipyard operated by defendant Tracor/MAS, Inc., for repairs and refitting. A few days thereafter, it was hauled on the syncrolift dry dock and its crew sent ashore. On Saturday, October 1, 1971, at the request of Tracor/MAS and with the consent of the HARRIS' captain, the HARRIS was put back in the water after a cursory joint inspection by a shipyard employee and a crew member. ¹ About one and one-half hours later, the captain and three or four crew members, who had returned for the refloating, left the HARRIS again. The vessel was locked and the key turned over to the defendant The William J. Burns Detective Agency. At this point, shore power was being supplied to the HARRIS.

On Monday morning, October 4, 1971, the HARRIS was discovered to be considerably down at the stern and listing to starboard. It was established that the cause of the list was water leakage through valves that had been opened and left unblanked or uncapped by the shipyard in the course of performing work on the HARRIS while the vessel was dry-docked. It was further established that at some time during the weekend, the shore power to the HARRIS had been cut off, preventing the operation of an electric bilge control warning system. Considerable water damage was done to the engine room and fittings of the HARRIS by the flooding.

Subsequently, HCI ordered Tracor/MAS to pump out the HARRIS and to make partial repairs. Tracor/MAS complied, at an expense of 5,734.32 dollars. Additional parts and labor were required to complete the repairs. HCI purchased the parts and performed the labor itself, at an alleged expense of 11,161.66 dollars. ²

B. THE PLEADINGS

HCI sued Tracor/MAS and Burns jointly for the 11,161.66 dollars. It alleged that Tracor/MAS breached its contract by failing to perform the repair work for which the HARRIS was originally drydocked in accordance with good marine practice and that the shipyard's conduct breached implied warranties of workmanlike performance. The complaint charged Burns with negligence in the performance of a duty Burns owed to HCI by virtue of Burns' contract to provide guard services to Tracor/MAS' shipyard. Tracor/MAS counterclaimed for the 5,734.32 dollar preliminary repair expense it incurred for HCI's account. HCI admitted that the work had been performed and that it had received bills and refused payment. It denied legal liability for the counterclaimed sum on the ground that Tracor/MAS' own breaches of contract had necessitated the repairs. Tracor/MAS filed a cross-claim against its codefendant, Burns, alleging that the detective agency had breached its contract with Tracor/MAS by failing to provide adequate guard services and that any and all damages the court might find were owed to HCI by Tracor/MAS were the natural and direct result of this breach. Burns denied the allegation and answered with a cross-claim of its own against Tracor/MAS. Burns' cross-claim alleged that watching the water lines of ships in the yard was not covered by any express term in the contract between Tracor/MAS and Burns. Therefore Burns claimed such work was covered by Paragraph 6 of that agreement which provided that whenever additional services not specified in the Agreement or Burns' Guard Manual were desired, the purchaser would assume responsibility for any consequences resulting from failure to perform them adequately.

C. THE TRIAL AND ITS RESULTS

The case went to trial February 19, 1974. After hearing the evidence, the district court announced its findings of fact and conclusions of law from the bench. After finding the facts we have set out above, the district judge continued as follows. (All emphasis has been added.)

"The Court further finds that the cause for the vessel's settling was the fact that valves were open in principally the starboard stern tube flushing valve and both port and starboard sea chest valves, so that the water crossed over in the salt water line and came through the piping which the shipyard had left unblanked or uncapped.

"The Court finds that it was the responsibility of the shipyard under the terms of the contract, under Item 13 of the contract, and under the further terms of good marine practices be followed, the shipyard should have plugged the piping and not left it uncapped or unblanked.

"Now, what happens at that point is a little murky and peculiar. The log of the security guards employed by Burns is just mystifying. (The reports of the night guards, one of whom was 75 years old, were unsatisfactory.) I am puzzled that the guards who were there during daylight were not called as witnesses. I will live with my lack of knowledge on that score.

"There was one of those guards who kept (the log) fairly complete, certainly by comparison, (to the guard) who had the 4:00 to midnight watch both Saturday and Sunday. I am unable to draw anything conclusive out of that. . . . Never once does he mention DANIEL HARRIS. It is almost as if the HARRIS wasn't there during his watch. And it is rather easy to speculate that there were no lights there that he could check. He mentioned everything else that happened: about the tide going out; barge that was caught under a dock. I won't speculate on that basis.

"The Court does further find that there was no shore power for whatever reason there was no shore power aboard this vessel by Monday morning and that the electric bilge warning horn did not go off because of that. . . .

"The Court finds that the vessel is entitled to recover from the defendant Tracor/MAS and the defendant Burns the following sum:

"Parts for the clutches in the amount of $6,328.45; cleanup labor of $880.52.

"The Court will award half of the labor expense on repairing the starboard and port clutches which amounts to total damages in favor of the plaintiff in the amount of $9,185.29.

"The Court finds that the percentage of negligence proportioned amongst the parties is three-fourths to the shipyard, one-fourth to the Burns Detective Agency. The Court finds that the guards, although they made some effort to notify personnel, either were not checking in the watches that were not testified about or made inadequate efforts to call when they did recognize the condition.

"The major responsibility belongs on the part of the shipyard. It is their negligence and failure to live up to the contract that created the possibility for a loss, and the major burden of the loss should remain upon them.

"The Court rules in favor of the plaintiff on the counterclaim of Tracor/MAS.

"That leaves what?

(COUNSEL FOR TRACOR/MAS AS TO CROSSCLAIM): Crossclaim of Burns against Tracor/MAS based on the security service's agreement.

"THE COURT: I am going to leave Tracor/MAS and Burns where you are and each claimant rule against the cross-claim.

(COUNSEL FOR TRACOR/MAS): I am sorry. Clarify that, Your Honor.

"THE COURT: Pardon?

(COUNSEL FOR TRACOR/MAS): I don't understand who you meant to leave

"THE COURT: I have apportioned it so that the judgment of $9,185.29 shall be against both defendants, and I think they bear responsibility in a ratio of three-fourths to one-fourth; three-fourths against Tracor and one-fourth against Burns.

"I am going to ask Mr. Hayden to prepare a judgment and incorporate those findings and those conclusions of law.

(COUNSEL FOR TRACOR/MAS): Would you also rule on the contract count by Tracor against Burns on the crossclaim?

"THE COURT: I rule against both crossclaims.

"Is it going to pose any problems, Mr. Hayden?"

(COUNSEL FOR HCI): No, sir.

"THE COURT: I think those findings of fact and conclusions of law will be an adequate basis for any appeal. I won't go ahead and enter any formal separate findings or conclusions.

"If anybody feels that they are not adequate you can make a motion to enter them."

D. THE APPEAL

On this appeal, Tracor/MAS challenges: (i) the apportionment of damages, asserting that the proper result should have been a finding of joint and several liability on the part of both co-defendants; (ii) the denial of its counterclaim against HCI; and (iii) the denial of its cross-claim against Burns. In the alternative, Tracor/MAS alleges that Burns should be held liable for 25% of the total damages done to the HARRIS, including the 5,734.32 dollars repaired by Tracor/MAS before HCI took the ship out of the yard. Burns defends the apportionment and alternatively appeals the denial of its cross-claim against Tracor/MAS.

II

The Federal Rules of Civil Procedure provide that in cases tried to the court without a jury, the court "shall find the facts specially and state separately its conclusions of law thereon . . . ." Rule 52(a), Fed.R.Civ.P. Of course, the law and the facts can never be entirely separated, and all the policies underlying Rule 52 may be advanced without time-consuming and frequently...