Case Resources
Search this Case
in Google Scholar
on the Web
Google Web Search
MSN Web Search
Yahoo! Web Search
in the News
Google News Search
Google News Archive Search
Yahoo! News Search
in the Blogs
BlawgSearch.com Search
Google Blog Search
Technorati Blog Search
in other Databases
Google Book Search
Justia Research Resources
Justia.com
Supreme Court Center
US Regulation Tracker
US District Court Opinions
Federal District Court Civil Case Filings
Legal Blog Search
Legal Podcast Search
USA Constitution Annotated
Online Research Resources
Cornell LII
Cornell Wex Dictionary & Encyclopedia
LLRX.com - Legal Research
Expert Witness Directory
Nolo Consumer & Business
US Court Forms
WashLaw Directory
World LII
Cases Provided By
Creative Commons
public.resource.org
Mcdonough Marine Service, Inc., Etc., Plaintiff-third Partydefendant-appellant, v. the M/v Royal Street, Her Engines, Tackles Etc., in Rem Andschieffler Brothers Marine, Inc., in Personam,defendants-third Party Plaintiffs.morton Chemical Company, Etc., Plaintiff-third Partydefendant-appellee, v. the M/v Royal Street, Her Engines, Tackles, Etc., in Rem Andschieffler Brothers Marine, Inc., in Personam,defendants-third Party Plaintiffs
- 608 F.2d 203
John J. Broders, Robert B. Bieck, Jr., New Orleans, La., for plaintiff-third party defendant-appellant.
John Poitevent, New Orleans, La., for plaintiff-third party defendant-appellee.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before AINSWORTH, FAY and RANDALL, Circuit Judges.
PER CURIAM:
Appellant McDonough Marine Service, Inc. seeks reversal of the district court's award of $17,725 against it in favor of Morton Chemical Company. The award represents the return of charter hire for a barge owned by McDonough and chartered by Morton for the period following the sinking of the barge. McDonough and Morton brought separate suits against the tugboat M/V Royal Street and its owner, Schieffler Brothers Marine, Inc., to recover damages for the sinking of the barge. The two actions were subsequently consolidated. Morton did not cross-claim against McDonough for return of the charter hire for the period following the barge's sinking, as provided for in the charter party, but the court granted this relief on the premise that the issue was tried by the implied consent of the parties. Fed.R.Civ.P. 15(b). McDonough contends that "the District Court Judge abused his discretion by amending the pleadings sua sponte after trial to add and grant judgment on an unpleaded cross-claim" against it in favor of Morton.
It is clear that under Fed.R.Civ.P. 15(b) the trial court could find implied consent of the parties to the trial of the unpleaded issue of refunding a portion of the charter hire. 6 Wright & Miller, Federal Practice and Procedure, § 1493; 3 Moore's Federal Practice, § 15.13(2). Thus, the trial judge can only be reversed if we conclude that his finding of fact (Finding No. 41), upon which the court concludes there was implied consent, was clearly erroneous. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954).
Appellant designated as the record on appeal only the pleadings, pretrial orders, and the findings of fact and conclusions of law of the trial court. Counsel failed, however, to provide a transcript of the testimony in the trial court. Thus, the court is without the record required by Fed.R.App.P. 10(b) which is essential to the determination of this appeal. In the absence of a transcript of the trial testimony, this court has no alternative but to affirm the decision of the district court. United States v. Bob Lawrence Realty, Inc., 5 Cir., 474 F.2d 115, 126, Cert. denied, 414 U.S. 826, 94 S.Ct. 131, 38 L.Ed.2d 59 (1973).
AFFIRMED.