192 F2d 304 International Bureau v. Bethlehem Steel Co

192 F.2d 304




No. 73.

Docket 22103.

United States Court of Appeals Second Circuit.

Argued October 10, 1951.

Decided November 5, 1951.

The appellant is a New York corporation which purchased the steamship Oddvar II and then sold it for a fixed price. One of the terms of sale was that before delivery the ship would be reconditioned at the expense of the appellant so as to secure a classification by the British Corporation Registry of 100-A-1 for four years. On November 12, 1946, while the vessel was at Prall's Island, N. Y., it was partially surveyed by the appellee to determine the initial repairs necessary. The appellant let the contract for making stipulated repairs to the appellee for $49,800.00, it being understood that additional repairs would be required and would be made by the appellee after the American Bureau of Shipping, as the representative of the British Corporation, had determined what was needed on the basis of survey's to be made as the ship was opened up. The repairs were to be completed before February 28, 1947, the appellant's delivery date. On November 18, 1946 the ship was towed to the appellee's yard at Staten Island, N. Y. where work on the repairs originally contracted for was begun. On December 12, 1946 there was another survey of the ship, as had been originally contemplated by the parties, and additional repairs then found necessary to obtain the required classification for the vessel were stated. The appellee estimated that they would cost approximately $100,000.00 and so informed the appellant which paid, during November and December 1946, $37,950.00 on account of all the repairs to be made. The repairs progressed under the supervision of the appellant's engineer, Torgersen, who approved and authorized all work orders before the work was begun. Thereafter, as the ship continued to be opened up, the American Bureau of Shipping found still more repairs to be necessary. On December 30, 1946, the appellee wrote to the appellant, in part, as follows:

"The reconditioning of this vessel has given us a great deal of concern and this office has been continuously in touch with your superintendent engineer, Mr. Torgersen. The repairs, as you know, far exceed the amount of work originally anticipated and we are very much concerned in the entire repairs, as we are indeed anxious to keep the cost down as low as possible. However, I guess you and your associates understand clearly that no repairs are being performed on the vessel except those demanded by the American Bureau of Shipping, the classification society under whose directions the repairs are being carried out.

"* * * Up to the present time, however, the amount of repairs has been climbing at an astonishing rate and the writer was personally in touch with your superintendent engineer in an endeavor to have the classification society be more lenient so that the total cost of repairs would not be too far beyond the anticipated cost."

Nevertheless the appellant allowed the repair work to be continued and, although it was advised by the appellee on January 3, 1947 that the cost to that date had reached approximately $175,000.00, told the appellee to continue making them. The repairs were all completed by February 14, 1947.

On February 14, 1947, the appellee made out its bill for the entire work which appellant's superintending engineer approved as to the amount of work done but not as to the price charged since he did not consider cost approval to be within his authority to act for the appellant. He did not, however, question the over-all price charged, which was $202,265.00, or believe it to be unreasonable.

The appellant refused to pay the balance due on the bill, claiming that the appellee had made a firm contract to do all the required work at a price not to exceed $149,800.00; the price of the repairs covered by the first survey, $49,800.00 plus the estimate for additional repairs, $100,000.00, minus an allowance for the elimination of part of the first survey requirements. The appellee thereupon libelled the ship and to secure its release the appellant's purchaser, with the consent of the appellant, paid the balance the appellee claimed due on its bill less $6,575.00 which it was agreed the appellee would forego to obtain the settlement.

On November 28, 1947 this suit was brought in the Supreme Court for the State of New York to recover the profit the appellant claimed to have lost on the sale of the vessel because of the alleged failure of the appellee to make the repairs at a cost not to exceed the amount above mentioned. The appellee removed the suit and it was tried by the court without a jury. Findings were filed to the effect above outlined but before judgment was entered the appellant moved to reopen the case to show that its superintending engineer, and witness, Torgersen, had previously executed an affidavit, which had been filed in the above mentioned libel, containing some statements inconsistent with his testimony in this case. In the alternative, the appellant moved for a new trial. The motion was denied on the ground that the other evidence in the case supported the findings made, so that even if the appellant were allowed to impeach its own witness it would not change the result.

Jay Nicholas Long, New York City, for plaintiff-appellant.

Mendes & Mount, New York City, for defendant-appellee; Frank A. Bull and Daniel Huttenbrauck, New York City, of counsel.

Before AUGUSTUS N. HAND, CHASE and WOODBURY, Circuit Judges.

CHASE, Circuit Judge.

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This appeal raises but two issues: (1) Whether the findings are supported by the evidence; and (2) whether it was error to deny the above mentioned motion.


It is a familiar principle that on appeal in cases tried by the court without a jury findings of fact will be given effect unless shown to be clearly erroneous. Kilgust v. United States, 2 Cir., 191 F.2d 69; Reynolds v. Goodwin-Hill Corp., 2 Cir., 154 F.2d 553; Syracuse Engineering Co. v. Haight, 2 Cir., 110 F.2d 468. And, indeed, that principle, together with the correlative one that due regard be given to the opportunity of a trial judge in a non-jury case to determine the credibility of witnesses who appear and testify before him, is firmly embodied in Rule 52(a), F.R.C.P., 28 U.S.C.A. We have no hesitation in reaching the conclusion that this record does not show the findings to be clearly erroneous and consequently we accept them.


In both of its aspects, the motion was addressed to the discretion of the court. It is not disputed that counsel for the appellant had Torgersen's affidavit when he examined him during the trial although it is asserted that he did not then realize its import. Moreover, as the trial judge said in passing upon the motion, there was evidence, apart from Torgersen's testimony, to support the findings. Even if counsel's reason for failure to interrogate the witness about the affidavit when he had the opportunity during the trial be considered sufficient, it was not an abuse of discretion to deny the motion unless it was reasonable to believe that the granting of it would be likely to change the result of the trial. See, Rule 61, F.R.C.P., 28 U.S.C.A. The opinion of the trial judge makes it clear that he relied on other evidence than Torgersen's testimony in making the findings and, with such other evidence in the case, his ruling was clearly right. Nor has it been shown that it was error to refuse to grant a new trial. The same considerations applied to that phase of the motion and required the same decision Only when an abuse of discretion is shown will we reverse the denial of a motion for a new trial. Campbell v. American Foreign S. S. Corp., 2 Cir., 116 F.2d 926, certiorari denied, 313 U.S. 573, 61 S.Ct. 959, 85 L.Ed. 1530; Flint v. Youngstown Sheet & Tube Co., 2 Cir., 143 F.2d 923.


Judgment affirmed.