S. P. Shotter Co. v. Larsen

134 F. 705, 67 C.C.A. 259, 1905 U.S. App. LEXIS 4265

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 17, 1905
• Docket: No. 1,391
• Status: Published

Opinion

PARDEE, Circuit Judge,

after stating the facts, delivered the opinion of the court.

We are not advised of any precedent or authority warranting the consolidation of suits pending in different courts of different jurisdictions ; but, assuming for this case that an effective consolidation might have been ordered by the court and agreed to by the parties, the case shows that, up to and including the entry of the final judgment in the common-law case in the Circuit Court and the entry of the final decree on the libel in the District Court, there was, by the record, no consolidation of the two cases. The statements of counsel at the commencement of the hearing before Judge Speer amount to no more than an agreement to try the cases together. It appears that the judge inquired: “Are the cases consolidated?” The answer of counsel was: “We have agreed to try them both. By consent both cases are to be tried together, because the testimony is the same in both cases.” The finding of the court in the order of appeal as follows: “It is adjudged that the said causes were consolidated into the admiralty case of ‘S. P. Shorter Company v. Ship Hercules, Her Tackle, Etc., and J. A. Rarsen et al., Claimants/ and that any appeal which may be taken proceed in said name” — and the judicial admissions of the parties in their briefs and at the bar seem to be ineffective and insufficient to work out a nunc pro tunc consolidation. It is to be noticed that by none of these was the judgment of the Circuit Court rescinded or made in any way the decree of the admiralty court, so as to be reviewed therewith.

From this it appears that the only questions we have before us on this appeal are those which arise in the admiralty case. From the pleadings and evidence therein, we find that there was a deviation in the voyage outlined in the charter party for the ship Hercules, and an unreasonable delay in reporting said ship to the libelant for cargo under the charter party. The evidence further shows that even if the ship was compelled, through strikes at Hamburg, to deviate and go to Porsgrund for repairs, she was there detained longer than was necessary to make the repairs resulting from her injuries at Tybee Bar, and that the occasion was taken advantage of to re-metal, caulk, re-treenail, and otherwise improve and rehabilitate the ship to meet the demands of the Norwegian authorities and retain her A 1 classification, all of which resulted in delay, to the injury of the libelant. It follows that, when the Hercules did report, the libelant had a right to refuse to accept her, treat the contract as broken, and recover the damages suffered by the owners’ breach of the charter party. As to these damages, it appears by the record that, so far as proved, they were, through the acquiescence, if not the consent, of the libelant, allowed toward compensation of the judgment for the owners’ damages allowed in the case at law. It does not seem that these damages should be twice allowed, and therefore it follows that, so far as the case before us is concerned, the libelant was not entitled to recover damages, but was entitled to his costs, and the only logical decree for this court to render is to affirm the decree appealed from and award costs in both courts to the libelant; and it is so ordered.