Williams v. Brasea, Inc., 72-3623

• Citation: 513 F.2d 301
• Decision Date: 23 May 1975
• Docket Number: No. 72-3623,72-3623
• Parties: Roy C. WILLIAMS, Plaintiff-Appellant Cross Appellee, v. BRASEA, INC., and VESSEL CIAPESCA I, her engines, etc., Defendant-Appellee Cross Appellant, Bender Welding & Machine Co., Inc., Defendant-Appellee Cross-Appellant, Construction Machinery Company, Defendant-Appellee Cross Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 301

513 F.2d 301

Roy C. WILLIAMS, Plaintiff-Appellant Cross Appellee, v. BRASEA, INC., and VESSEL CIAPESCA I, her engines, etc Defendant-Appellee Cross Appellant Bender Welding & Machine Co., Inc., Defendant-Appellee Cross-Appellant Construction Machinery Company, Defendant-Appellee Cross Appellant.

No. 72-3623.

United States Court of Appeals Fifth Circuit.

May 23, 1975.

M. W. Meridith, Jr., Corpus Christi, Tex., for Construction Machinery co.

John M. O'Quinn, Houston, Tex., for Texas Trial Lawyers Ass'n, amicus curiae, on rehearing en banc.

William K. Altman, Wichita Falls, Tex., amicus curiae, on rehearing en banc.

C. D. Kennedy, William M. Jensen, Houston, Tex., Jack G. Carinhas, Jr., Brownsville, Tex., for Brasea.

A. J. Watkins, Bill R. Bludworth, Houston, Tex., for Bender.

William R. Edwards, Corpus Christi, Tex., W. A. Cleveland, Jr., Jacksonville, Fla., for Williams.

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

ON PETITIONS FOR REHEARING AND PETITIONS FOR REHEARING EN BANC

(Opinion July 5, 1974, 5 Cir. 1974, 497 F.2d 67)

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

PER CURIAM:

The Petition for Rehearing filed on behalf of Roy C. Williams is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

The Petition for Rehearing filed on behalf of Brasea, Inc. is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.

We have given thorough consideration to the petitions for rehearing and for rehearing en banc, as well as to the several briefs, including briefs by amici curiae, received in support of or in opposition thereto, before reaching our decision to deny the petitions.

We direct two slight changes in the panel opinion, Williams v. Brasea, Inc., 5 Cir. 1974, 497 F.2d 67.

Perceiving that our disposition of the cross-appeals (1) of Bender, Part IV of the panel opinion, 497 F.2d at 77-79, and (2) of CMC, Part V of the panel opinion, 497 F.2d at 79 holding that neither of said parties could be held liable under a theory of products liability dissipated completely any basis for assessing damages in rem against the shrimp trawler CIAPESC I, we withdraw and recede from the following designated portions of the panel opinion:

(a) The statement appearing at page 75 of 497 F.2d:

"Finally, Williams alleges that the district court erred by failing to enter judgment in rem against CIAPESC I despite the fact that the vessel was found to be unseaworthy. The point is well taken. The lower court specifically found the CIAPESC I unseaworthy, App. at 1754, and that finding is not challenged on appeal by Brasea either on brief or at oral argument. The district court on remand should make the appropriate modification on its final order."

(b) That portion of the "VI CONCLUSION" section of the opinion, appearing at page 80 of 497 F.2d:

"(2) the district court is ordered to assess liability in rem as to the vessel CIAPESC I."

In lieu of (a) above the following language is substituted:

"Finally, Williams alleges that the district court erred by failing to enter judgment in rem against CIAPESC I despite the fact that the vessel was found to be unseaworthy. The point would be well taken if the underpinning for the finding of unseaworthiness was sustained against the cross-appeals of Bender and CMC, either or both. The basis for the unseaworthiness finding by the district court was in fact its findings ¹ that Bender and CMC provided the vessel CIAPESC I with equipment which was 'unreasonably dangerous', 'defective' and 'not reasonably suited for the purpose for which it was intended.' The district court's opinion further held 'The faults of Bender and CMC, as heretofore outlined, are the same faults which caused Defendant, Brasea, Inc., to afford to Plaintiff an unseaworthy vessel.' (App. p. 1760)

"Our disposition reversing the district court as to the cross-appeals of Bender and CMC, Parts IV and V of this opinion, infra, eliminates any basis for holding...