352 F2d 58 Wright v. J Barrilleaux Lykes Bros Steamship Co

352 F.2d 58

Madison B. WRIGHT, d/b/a Wright Towing Company, Appellant,
v.
Morris J. BARRILLEAUX, Appellee.
LYKES BROS. STEAMSHIP CO., Inc., Appellant,
v.
Morris J. BARRILLEAUX, Appellee.

No. 21679.

United States Court of Appeals Fifth Circuit.

Oct. 26, 1965.

Louis H. Beard, Wells, Duncan & Beard, Beaumont, Tex., for Morris J. Barrilleaux.

L. J. Benckenstein, Beaumont, Tex., Benckenstein & Benckenstein, Beaumont, Tex., of counsel, for appellant Madison B. Wright.

Gus A. Schill, Jr., Royston, Rayzor & Cook, Houston, Tex., for Lykes Bros. S.S. Co.

Before RIVES, WISDOM and GEWIN, Circuit Judges.

PER CURIAM.

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1

This case involves a collision between the King Cole, a workboat owned by the Libelant, Morris J. Barrilleaux, the turning propeller of the TILLIE LYKES, a steamship owned by Lykes Bros. Steamship Co., Inc., and some barges owned by the Respondent Madison B. Wright, d/b/a Wright Towing Company. Upon full findings of fact and conclusions of law, the district court entered an interlocutory decree that Libelant Morris J. Barrilleaux recover one-half of his damages from Respondent Madison B. Wright, d/b/a Wright Towing Company. As to this and other parts of the interlocutory decree adjudging the rights and liabilities between Barrilleaux and Wright, we hold that the district court's findings of fact are not clearly erroneous and that its conclusions of law are sound. Indeed, no error appears in any of the findings of fact or conclusions of law. However, Barrilleaux and Lykes Bros. are in agreement that the following part of the interlocutory decree is erroneous:

2

'ORDERED, ADJUDGED and DECREED that as to the matters and things set forth in the Cross-Libel of cross-libelant, Lykes Bros. Steamship Co., Inc., against cross-respondent, Morris J. Barilleaux, the said cross-libelant have and recover nothing and that the Cross-Libel be, and the same hereby is dismissed * * *.'

3

That part of the decree is therefore vacated, and in lieu thereof the following is substituted:

4

Ordered, adjudged and decreed that the Cross-Libelant, Lykes Bros. Steamship Co., Inc., have and recover its damages sustained by reason of the matters and things set forth in its Cross-Libel against Cross-Respondent, Morris J. Barrilleaux, together with interest from the date of the collision; and further that, upon remand, Morris J. Barrilleaux may seek a decree over against Madison B. Wright, d/b/a Wright Towing Company for one-half of such damages and interest.

5

Accordingly, the interlocutory decree is so modified, and, as modified, said decree is affirmed and the cause is remanded to the district court for further proceedings.

6

Modified, affirmed and remanded.