857 F2d 1478 Manufacturing Corporation v. The M/v Woodbine Ftc

857 F.2d 1478

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

K MANUFACTURING CORPORATION, a corporation,
Plaintiff/Counterdefendant/Appellee,
v.
THE M/V WOODBINE, her engines, machinery, tackle, furniture
and apparel, etc., in rem, Defendant/Appellant,
and
FTC Fish Company, Inc., a partnership,
Defendant/Counterclaimant/Appellant.

No. 87-2515.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 15, 1988.
Decided Sept. 2, 1988.

Before FARRIS, WIGGINS, and TROTT, Circuit Judges.

1

MEMORANDUM*

2

This is the second appeal in this case. Presently, we must determine whether the district court's new findings, conclusions and judgment are consistent with our previous mandate. We conclude they are and affirm.

3

FTC Fish Company (FTC) is in the business of processing anadromous fish. The processing takes place largely in Alaskan waters. For this purpose, FTC acquired the M/V Woodbine, a former Coast Guard vessel. FTC then entered into a contract with K Manufacturing Corporation (K Mfg.) whereby K Mfg. was to convert the Woodbine into a floating refrigerated fish processor capable of processing 72,000 pounds of fish per day and one million pounds per year. Between February and June, 1983, K Mfg. performed the alterations. This included installing freezer boxes and other refrigeration components.

4

When FTC failed to pay the amount owing on the contract, K Mfg. brought an action in rem against the Woodbine and in personam against FTC for the amount due. FTC counterclaimed for additional repair costs and lost profits, claiming that the processing system was defective and failed to perform according to contract specifications. After trial, the district court entered findings of fact and conclusions of law finding FTC had expended $11,959.00 in additional repair costs on the processing system. It also found K Mfg. was entitled to $68,683.06 for balance owing on the contract, for a new judgment of $56,724.06 in favor of K Mfg. FTC's claim for lost profits was denied.

5

FTC appealed, arguing K Mfg. had not substantially performed the contract. Because of the alleged failure to perform, FTC claimed the finding of a $68,683.06 balance owing on the contract and the denial of lost profits were both in error. We vacated the judgment of the district court and remanded the case to resolve apparent inconsistencies in the findings of fact. M/V Woodbine, and FTC Fish Co. v. K Manufacturing Co., No. 85-2716 (9th Cir. March 4, 1987) (memorandum decision at 3-4).

6

On remand, the district court, as ordered, entered new findings and conclusions clarifying and explaining its earlier judgment. The new findings eliminated the previous finding that the processing plant's "defrost system did not function properly," replacing it with a finding that "the system was adequate and functional." However, the court also found that "as originally designed and operated, the chilled seawater system and the freezer boxes could not both achieve maximum cooling capacity at the same time," but concluded that once repaired, the "systems performed properly." Accordingly, with the clarified findings, which included a finding that no act of K Mfg. caused the system to fall short of its expected capability under the contract, the district court reinstated the original judgment.

7

FTC appeals the new findings and reinstatement of the judgment. It argues the new findings are contrary to our prior decision and outside the scope of our previous mandate. We disagree.

8

Our prior decision stated, "[i]t is by now established that the system as originally delivered did not perform up to [the contracted] specifications. Because the $11,959 expenditure did not correct the problems with the defrost system, it would seem that additional sums were due to FTC." (Memorandum decision at 4). This dicta is not inconsistent with the district court's new findings. Our prior decision stated it would "seem" additional sums were due to FTC. We also indicated it "appear[ed]" the findings were inconsistent. Id. This language is tentative. Our prior mandate was not conclusive in establishing that FTC was due an additional amount because the system malfunctioned. Nor could our mandate have been conclusive on K Mfg.'s additional liability since we did not review the findings for sufficiency in the record to support them under the clear error standard. See Fed.R.Civ.P. 52(a); LaDuke v. Nelson, 762 F.2d 1318, 1321 (9th Cir.1985).

9

The language in our prior decision was tentative for good reason. We were perplexed by the ambiguity in the district court's findings. We therefore chose inconclusive language to indicate what we perceived to be an ambiguity. The mandate was limited to the holding that the findings were inconsistent. The remand was for clarification purposes only, not to require the district court to find additional recovery for FTC where none was appropriate.

10

The new findings are consistent with our prior mandate. They are also internally consistent and no longer ambiguous. Neither are they irreconcilable with the first set of findings. K Mfg. was found to have substantially performed the contract. The record supports this finding. It follows that K Mfg. was entitled to the balance owing on the contract, FTC was not entitled to lost profits, and FTC was not entitled to recover additional sums for the cost of repair.

11

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. Rule 36-3