Todd Engineering, Dry Dock & Repair Co. v. United States
| Decision Date | 24 May 1929 |
| Docket Number | No. 5393.,5393. |
| Citation | 32 F.2d 734 |
| Parties | TODD ENGINEERING, DRY DOCK & REPAIR CO., Inc., v. UNITED STATES. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Geo. H. Terriberry, Jos. M. Rault, and Walter Carroll, all of New Orleans, La. (Terriberry, Young, Rault & Carroll, of New Orleans, La., on the brief), for appellant.
Edouard F. Henriques, Sp. Asst. in Admiralty to U. S. Atty., W. I. Connelly, Atty. U. S. Shipping Board, and W. B. Spencer, Jr., Asst. U. S. Atty., all of New Orleans, La., for the United States.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
The United States, owner of the steamship West Ira, filed a petition in the District Court in which it was alleged that a fire occurred in the fire room of the ship while the Todd Engineering, Dry Dock & Repair Company was engaged in the performance of a contract to do certain repair work upon the boilers and boiler doors; that the workmen of the Todd Company, upon discovering the fire, left the ship without removing the acetylene gas tanks and torches, and other tools and equipment, which they had been using in making the repairs; that, in an effort to extinguish the fire, the fire room, engine room, and other parts of the ship were flooded with water which had not since been pumped out; that as soon as the water in the ship should be removed petitioner desired to ascertain the condition and location of the tools and equipment in order to determine whether it could maintain a suit against the Todd Company for the damages sustained as a result of the fire based upon the negligence of that company's workmen. The petition prayed for the appointment of a commissioner to make an examination of the fire room and engine room, and to make a report of the result of such examination, which report, by order of the court, should be perpetuated as "uncontrovertible and authentic evidence." Upon the filing of this petition, the court appointed as commissioner to make the survey and report prayed for John G. Lanman, who at that time was actively in charge of the ship as representative of the United States, the owner. The Todd Company was not made a party to or notified of these proceedings, but was permitted by the commissioner to have its representatives present when the survey was made. The decree was entered upon the report which the commissioner submitted. That decree approves and perpetuates the commissioner's report, and provides that it may be received as evidence in any pending or future suit growing out of the fire; fixes the compensation of the commissioner and his assistants at $550; and provides that the compensation so fixed shall be taxed and recoverable as costs in any such pending or future suit.
A motion is submitted on behalf of the United States to dismiss the...
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Mosseller v. United States
...and see also The West Ira, D.C.E.D.La., 24 F.2d 858, reversed for errors in procedure only sub nom., Todd Engineering, Dry Dock & Repair Co. v. United States, 5 Cir., 32 F.2d 734; 3 Benedict on Admiralty, 6th Ed., § 401, p. 103. Moreover, the entire statute (covering also depositions under ......
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