Argued before Goodrich, Kalodner, and Ganey, Circuit Judges. Reargued before McLAUGHLIN, Kalodner and Ganey, Circuit Judges.
Did a district court judge err when, in a wrongful death action in admiralty which alleged unseaworthiness and negligence, he entered a Pre-Trial Order which resolved the issue of liability in favor of the libellant and directed that the trial of the cause be restricted exclusively to the issue of damages?
That question is presented on this appeal from a subsequent decree entering judgment in favor of the libellant and against the respondent in the amount of $124,000 following trial on the issue of damages.*fn1
The Government has premised its appeal on the grounds that the judge who entered the Pre-Trial Order erred (1) "in summarily holding the United States liable notwithstanding the existence of genuine issues of material fact" and (2) in imposing liability without making specific findings of fact and stating conclusions of law "as required by Admiralty Rule 46 1/2"; and on its contention that there can be no recovery for unseaworthiness under the Pennsylvania Wrongful Death Statute.
Albert Mascuilli, a longshoreman employed by Northern Metals Company, stevedoring firm, was fatally injured under circumstances later detailed while assisting in loading cargo aboard the USNS Marine Fiddler, a vessel owned and operated by the United States. The libellant, his widow and Administratrix of his estate, filed action in admiralty against the United States for wrongful death alleging unseaworthiness of the vessel and negligence of its employees.
The Government, in its Answer to the libel, denied generally the allegations of unseaworthiness and negligence and affirmatively alleged that Mascuilli's death was caused solely by the negligence of Northern which, it was averred, had exclusive custody, control and supervision over the entire cargo loading operation. It later filed its Answers to the Interrogatories which accompanied the libel. Thereafter, the libellant filed written Requests for Admissions of Facts, to which the Government made no reply.
There followed a pre-trial conference at which libellant moved for summary judgment on the grounds that the unanswered Requests for Admissions must be deemed admitted and that these Admissions were sufficient to support a finding of liability against the Government. She then withdrew*fn2 the Motion for Summary Judgment and moved instead for a finding of liability under Rule 44 1/2 of the Rules of Practice in Admiralty and Maritime Cases, "Pre-Trial Procedure; Formulating Issues". Following argument on this Motion the district court judge, on December 5, 1960, filed a "Memorandum", reported at 188 F.Supp. 754 (E.D.Pa.1960), in which he stated in part:
"We are convinced from an examination of the requests for admissions, which were not denied, that the liability of the respondent is established beyond question. * * * We conclude, therefore, that the Court has the authority in these particular circumstances, and in the light of Rule 44 1/2 of the Admiralty Rules, 28 U.S.C.A. to limit the issues to be tried to the question of damages."
In the Pre-Trial Order it was said in part:
"The liability issue is resolved by reason of the admitted facts and there is no issue as to liability now existing between the parties to this action; the admitted facts clearly establish liability of the respondent for the death of Albert Mascuilli on May 1, 1959; it will be unnecessary to adduce any further proofs relating to liability at the trial of this cause; the evidence at the trial shall be restricted exclusively to proof of the quantum of damages."
As was earlier stated, at the trial on the issue of damages only, the trial judge issued a Decree awarding $124,000 to the libellant.
These facts are undisputed:
On May 1, 1959, the Marine Fiddler, a military transport, was being loaded in part with a cargo of 61 1/4-ton Army tanks by the Northern Metals Company ("Northern") an independent stevedore, under a contract with the Government which gave Northern sole custody and control of the cargo areas of the vessel and its cargo handling ...