Partenweederei, MS Belgrano v. Weigel
| Decision Date | 11 December 1962 |
| Docket Number | No. 17178.,17178. |
| Citation | 313 F.2d 423 |
| Parties | PARTENWEEDEREI, MS BELGRANO, and Rudolph A. Oetker, Appellants, v. George WEIGEL, Appellee. BRADY-HAMILTON STEVEDORE COMPANY, Appellant, v. PARTENWEEDEREI, MS BELGRANO, and Rudolph A. Oetker, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wood, Wood, Tatum, Mosser & Brooke, and Erskine B. Wood, Portland, Or., for appellants-appellees Partenweederei, MS Belgrano, and Rudolph A. Oetker.
Gray, Fredrickson & Heath, and Nathan J. Heath, Portland, Or., for appellant Brady-Hamilton Stevedore Co.
Pozzi, Levin & Wilson, and Philip A. Levin, Portland, Or., for appellee George Weigel.
Before JERTBERG, KOELSCH and DUNIWAY, Circuit Judges.
Following our decision in this matter (Partenweederei, MS Belgrano v. Weigel, 299 F.2d 897, February 8, 1962), Shipowners petitioned for a rehearing, on the ground that they were entitled to judgment against Stevedore for indemnity for the expenses incurred, both here and in the District Court, in successfully defending the libel. We granted the petition for rehearing and thereafter vacated the portion of our judgment reversing the decree of indemnity, and the submission of the matter on rehearing, pending final disposition of libelant Weigel's petition to the Supreme Court for certiorari. (Partenweederei, MS Belgrano v. Weigel, 302 F.2d 730, May 21, 1962). The Supreme Court denied certiorari on October 8, 1962 (371 U.S. 830, 83 S.Ct. 49, 9 L.Ed.2d 67), and on November 13, 1962, 371 U.S. 906, 83 S.Ct. 205, 9 L.Ed.2d 168, denied a rehearing. We treat this denial as an affirmance within the meaning of paragraph 3 of our order of May 21, 1962, supra.
As is there stated, the question now before us is whether Stevedore must indemnify Shipowners for their costs of defending the action of Weigel against them in the trial court and in this court, "Costs" as here used means "expenses," not merely taxable costs.
Stevedore contends that the answer to the question is "no," for two reasons: (1) that such relief was never asked, and the question was never raised, until the filing of the petition for rehearing, and (2) that in any event, the expenses of a successful defense are not recoverable by the Shipowner under the implied warranty of workmanlike service to which Stevedore, by flat of the Supreme Court, is subject.
(1) It is the fact that the relief which Shipowners now claim was never requested in the trial court or here, until the petition for rehearing was filed. They point to the "such other and further relief" language in the prayer of their petition impleading Stevedore, but the pre-trial order contains no claim for this relief; it states their position to be that they are entitled to indemnity "if * * * (Shipowners) herein should be held liable in this case to libelant."
Ordinarily, claims for relief or other new matter cannot be first asserted on petition for rehearing. Higa v. Transocean Airlines, 9 Cir., 1956, 230 F.2d 780, 786, petition for cert. dismissed, 1956, 352 U.S. 802, 77 S.Ct. 20, 1 L.Ed.2d 37; General Ins. Co. of America v. Pathfinder...
To continue reading
Request your trial
-
White v. McGinnis
...before this Court a claim which he deliberately chose, for reasons of strategy, not to assert below." Partenweederei, MS Belgrano v. Weigel, 313 F.2d 423, 425 (9th Cir.1962) (per curiam) (emphasis The majority has rejected appellee's argument that, under the law of this circuit, an issue ma......
-
Royce v. Hahn
...for rehearing will not be considered); Stephens v. Arrow Lumber Co., 354 F.2d 732, 734 (9th Cir.1966) (citing Partenweederei MS Belgrano v. Weigel, 313 F.2d 423, 425 (9th Cir.1962) ("It is sound policy to require that all claims be presented to the trial court, and not raised for the first ......
-
U.S. v. Whitten
...determinations, contributing to finality in criminal litigation, and conserving social resources. Cf. Partenweederei, MS Belgrano v. Weigel, 313 F.2d 423, 425 (9th Cir.1963).5 Because we hold that the telephone warrant was overbroad, we do not reach the questions raised by appellant concern......
-
Escobar Ruiz v. I.N.S.
...not consider for the first time on rehearing issues not presented by the parties in their briefs on appeal. Partenweederei, MS Belgrano v. Weigel, 313 F.2d 423, 425 (9th Cir.1962). A case must involve "extraordinary circumstances [to] justify our considering on petition for rehearing, issue......