226 F2d 215 Hildebrand v. United States

226 F.2d 215

Walter HILDEBRAND, Libelant-Appellant-Appellee,

v.

UNITED STATES of America, Respondent-Appellee-Appellant.

No. 242.

Docket 23367.

United States Court of Appeals, Second Circuit.

Argued April 20, 1955.

Decided July 27, 1955.

Sterling & Schwartz, New York City, for libelant-appellant-appellee; Marvin Schwartz, New York City, of counsel.

J. Edward Lumbard, Jr., U. S. Atty., New York City, for respondent-appellee-appellant; Tompkins, Boal & Tompkins, Arthur M. Boal, New York City, of counsel.

Before FRANK, MEDINA and HINCKS, Circuit Judges.

PER CURIAM.

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1

As to the issues of unseaworthiness and contributory negligence, raised by the respondent's cross-appeal, we affirm on Judge Dawson's findings and opinion. 134 F.Supp. 514. The findings which the respondent attacks are not clearly erroneous. And under our recent holding in Poignant v. United States, 225 F.2d 595, it is of no moment that the unseaworthy condition causing the harm may have arisen after the voyage commenced.

2

Both libelant and respondent, by appeal and cross-appeal, complain of the trial judge's award of damages. But the findings on the issue of damages are also ones of fact, Lukmanis v. United States, 2 Cir., 208 F.2d 260, which we cannot disregard unless we are satisfied that they are clearly erroneous, Pedersen v. United States, 2 Cir., 224 F.2d 212 (decided June 9, 1955). Quite clearly, the award here may not be so characterized.

3

Affirmed as to both appeals.