McDonough Marine Service, Inc. v. M/V Royal Street, 79-1839
| Decision Date | 13 December 1979 |
| Docket Number | No. 79-1839,79-1839 |
| Parties | McDONOUGH MARINE SERVICE, INC., etc., Plaintiff-Third Party Defendant-Appellant, v. The M/V ROYAL STREET, her engines, tackles etc., In Rem and Schieffler Brothers Marine, Inc., In Personam, Defendants-Third Party Plaintiffs. MORTON CHEMICAL COMPANY, etc., Plaintiff-Third Party Defendant-Appellee, v. The M/V ROYAL STREET, her engines, tackles, etc., In Rem and Schieffler Brothers Marine, Inc., In Personam, Defendants-Third Party Plaintiffs. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
John J. Broders, Robert B. Bieck, Jr., New Orleans, La., for plaintiff-third party defendant-appellant.
John Poitevent, New Orleans, La., for plaintiff-third party defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before AINSWORTH, FAY and RANDALL, Circuit Judges.
Appellant McDonough Marine Service, Inc. seeks reversal of the district court's award of $17,725 against it in favor of Morton Chemical Company. The award represents the return of charter hire for a barge owned by McDonough and chartered by Morton for the period following the sinking of the barge. McDonough and Morton brought separate suits against the tugboat M/V Royal Street and its owner, Schieffler Brothers Marine, Inc., to recover damages for the sinking of the barge. The two actions were subsequently consolidated. Morton did not cross-claim against McDonough for return of the charter hire for the period following the barge's sinking, as provided for in the charter party, but the court granted this relief on the premise that the issue was tried by the implied consent of the parties. Fed.R.Civ.P. 15(b). McDonough contends that "the District Court Judge abused his discretion by amending the pleadings sua sponte after trial to add and grant judgment on an unpleaded cross-claim" against it in favor of Morton.
It is clear that under Fed.R.Civ.P. 15(b) the trial court could find implied consent of the parties to the trial of the unpleaded issue of refunding a portion of the charter hire. 6 Wright & Miller, Federal Practice and Procedure, § 1493; 3 Moore's Federal Practice, § 15.13(2). Thus, the trial judge can only be reversed if we conclude that his finding of fact ( No. 41), upon which the court concludes there was implied consent, was clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954).
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