American Dredging Co. v. Gulf Oil Corp.

282 F.2d 73, 1960 A.M.C. 1802

• Court: Court of Appeals for the Third Circuit
• Decided: April 21, 1960
• Docket: No. 13070
• Status: Published

Opinions

PER CURIAM.

While appellant’s flotilla of a tug and two scows was proceeding down the Schuylkill River, Pennsylvania, the river surface in the vicinity became ignited. As a result two of libellant’s seamen lost, their lives, two others were injured and the tug was damaged. In suits based on the deaths, appellant was held responsible. Thereafter it filed this libel against: certain landowners along the river in the-fire area, alleging their responsibility for the fire and seeking indemnity for-its losses resulting therefrom

The district court on exceptions to the libel dismissed it. In an exhaustive opinion, carefully following the law as it at present stands in this circuit,¹ the court could find no relational basis or legal justification for imposing an indemnitor’s liability on the respondents in the circumstances of this case. We must agree.

Sur Petition for Rehearing

The argument in this case on exceptions to the libel covered just the deaths and personal injuries arising out of the accident above described and for which appellant had been held responsible. There was no attempted distinction suggested between the personal injury phase and the damage to appellant’s tug. Indeed the latter was not even mentioned.

It is true that in the libel filed January 6, 1959 (the accident involved occurred November 18, 1952) there is an allegation in the same paragraphs which assert the personal injury situation, of damage to the tug and loss of its use. However, the whole force of the presentation to the district court centered on the death claims which had been reduced to judgment and the personal injury claims which appellant had settled and paid. As a result the court decided only the controversy which had been argued to it.

Appellant, on its petition for rehearing to this court, contends that the district court dealt with its property damage claim “only sub silentio” and asserts that the property damage cause of action rests on grounds other than those upon which it based its suit for contribution or indemnification with respect to its alleged damages arising out of the personal injury and death claims.

As we read the district court opinion we think it clear that, because of the manner in which the exceptions to the libel were argued, the questions in connection with the property damage to the tug and loss of its use were never fairly presented to the trial court and never passed upon.

The judgment of the district court will be affirmed as to its denial of contribution or indemnity to appellant by appellees arising out of the death and personal injury claims in this matter. As to the property damage to the tug and loss of its use claims, the judgment of the district court will be vacated and that part of the case remanded for proceedings as may be indicated, not inconsistent with this opinion.

The petition for rehearing will be denied.

1 . King v. Waterman SS Corporation, 3 Cir., 1959, 272 E.2d 823, certiorari granted 80 S.Ct. 754.