232 F2d 238 Lago Oil and Transport Company Ltd v. United States

232 F.2d 238

LAGO OIL AND TRANSPORT COMPANY, LTD., a Canadian

corporation, as Owner of THE Diesel Tug CAPTAIN RODGER, in

its own behalf and in behalf of the Master, Mate and Crew of

said Tug, and of Charles E. LANNING, Attorney-in-fact for

said corporation, Libelants-Appellants,

v.

UNITED STATES of America, as Owner and Operator of THE S.S.

FISHER'S HILL, Respondent-Appellee.

No. 232, Docket 23838.

United States Court of Appeals Second Circuit.

Argued Feb. 15, 1956.

Decided March 9, 1956.

Rehearing Denied April 25, 1956.

Kirlin, Campbell & Keating, Edwin S. Murphy, Paul F. McGuire, New York City, of counsel, proctors for libelants-appellants.

Warren E. Burger, Asst. Atty. Gen., Paul W. Williams, U.S. Atty., Martin J. Norris, Atty., Dept. of Justice, New York City, for respondent-appellee.

Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.

FRANK, Circuit Judge.

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1

The United States, on its cross-appeal, contends that the trial judge erred in awarding anything to Lago. We cannot agree. Our previous opinion and the evidence amply justified the judge in making an award.

2

Lago, on its appeal, contends that the award should have approximated the value of its lost tug plus large additional compensation. We think such a decree would have ignored what we said on the previous appeal.

3

We think, however, that $12,500 was inadequate. Although we did not explicitly reject the judge's finding that the tug's captain had taken an unnecessary risk, we pretty clearly indicated that, considering all the circumstances at the time of the salvage and disregarding hindsight, the value of the lost tug should be taken into account. The judge apparently did so to some extent. But we think he was too much affected by the fact that we had not directed an increase of the award he had made to the crew members. Perhaps we should have. Indeed, the writer of this opinion thinks that we ought now add substantially to the crew's award.1 At any rate, we think the judge 'abused' his discretion. A stingy award to a salvor contravenes good public policy. Accordingly, we reverse and remand with directions to award Lago $25,000.2

4

Reversed and remanded on Lago's appeal; affirmed on the cross-appeal of the United States.

5

On Petition for Rehearing and Motion for Clarification of Opinion.

6

Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.

7

FRANK, Circuit Judge.

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8

The petition for rehearing is denied.

9

Libelants move for a clarification of our opinion concerning the salvage award to the captain and crew. The opinion said, 'Indeed, the writer of this opinion thinks that we ought now add substantially to the crew's award.' This was not a statement by the court. Moreover, libelants did not request such an additional award. However, the attorneys for the captain and crew now ask that we increase their award. We grant their request.

10

We therefore direct the district court to increase the award to the captain and crew from $2,217.02 to $4,434.04.

11

In addition, we point out an error in the recitation of facts in our former opinion. We said, 'The United States, on its cross-appeal, contends that the trial judge erred in awarding anything to Lago.' In fact, the Government asked only for a reduction of the award from $12,500 to $6,000.

1 We still have power to do so. See 28 U.S.C.A. § 452 which provides:

'The continued existence or expiration of a term of court in no way affects the power of the court to do any act or take any proceeding.'

2 The we may increase an award for 'abuse' of discretion, see, e.g., Petition of Atlantic Gulf & West Indies S.S. Lines, 2 Cir., 49 F.2d 263.