Kalodner, Freedman and Seitz, Circuit Judges.
This unfortunately protracted lawsuit comes to this court for the third time. Appellant, as administratrix for a deceased longshoreman, filed a libel in admiralty in 1959 seeking damages from appellee, United States (Government), under both the Pennsylvania Death and Survival Acts.*fn1 The longshoreman was killed while employed aboard the USNS Marine Fiddler in the Port of Philadelphia on May 1, 1959.
Shortly after the libel was filed, a district court judge entered a pre-trial order determining that under the admitted facts the Government was liable to appellant and reserving the damage issue for trial. The court did not state whether the basis for its decision was negligence or unseaworthiness on the part of the Government, or both. The damage issue was tried extensively before a second district judge without a jury. Counsel for both parties explicitly agreed that they would present oral argument at the conclusion of the testimony and that the court would fix the amount of damages without filing any findings of fact or conclusions of law. The judge fixed damages at $124,000, and a judgment in that amount was entered.
The Government appealed on several grounds, but this court's opinion shows that the decision was reversed solely on the ground that since there were material facts in dispute the district court committed error in entering the pretrial order of liability against the Government. Mascuilli v. United States, 313 F.2d 764 (3rd Cir. 1963). On remand to the district court a third judge conducted a final hearing on the liability issue. At that hearing appellant's counsel contended that if liability was found the court was bound by the prior damage determination. The court disagreed and ruled that it would try both the liability and damages issues.
The district court thereafter determined that the Government was not liable because the ship was not unseaworthy and the Government was not negligent. It found that the negligence of other longshoremen caused the fatal accident and did not charge the Government with their negligence. Judgment was accordingly entered for the Government. However, in its findings of fact the court recited that "in the event that this court would have found for the libellant, it would have assessed damages in libellant's favor" in the amount of $60,438.30. Mascuilli v. United States, 241 F. Supp. 354 (E.D.Pa.1965).
Appellant appealed from the judgment in favor of the Government, contending that liability existed. She argued that liability was the only issue on appeal and that the district court's reassessment of damages was a nullity because the district court was bound by the original determination as to damages ($124,000). This court affirmed the district court's determination that there was no liability and stated that there was no need to pass upon the appellant's contention with respect to damages. 358 F.2d 133 (3rd Cir. 1966). The United States Supreme Court reversed this decision in a per curiam opinion and remanded the action to the district court for further proceedings in conformity with its opinion. Mascuilli v. United States, 387 U.S. 237, 87 S. Ct. 1705, 18 L. Ed. 2d 743 (1967). It is clear from a reading of the cases cited in the Supreme Court opinion that it found liability on the basis of unseaworthiness even though the unseaworthiness did not flow from any negligence of the Government. Its decision, in our view, did not affect the validity of the district court's determination that the Government was not chargeable with negligence.*fn2
After the Supreme Court remand, the appellant filed a motion in the district court requesting the entry of judgment in the amount of $124,000, as found in the first damage trial. The Government filed a motion for entry of judgment in the amount of $60,438.30, the amount the district judge previously found he would have assessed had he found liability. Each side filed an answer resisting the other's motion. Thereafter the motions came before the judge who had presided at the second damage trial. He denied appellant's motion, granted the Government's motion and entered judgment for appellant in the sum of $60,438.30. It is this order which is now appealed.
Appellant contends initially that the first damage award of $124,000 was never impugned by the subsequent appeal proceedings and thus the district court committed error in not incorporating that amount in the order presently on appeal. However, the language of our opinion and judgment entered thereon specifically vacating the $124,000 judgment makes it abundantly clear that the original monetary judgment was not to be binding on remand. Thus, the district court did not commit error in denying appellant's motion on the ground advanced by her.
We next consider the appellant's contention that the district court erroneously granted the Government's motion.
In its opinion granting the motion the district court justified the readoption of its prior assessment of damages in the following language:
"In conclusion we have my Brother, The Honorable John W. Lord, Jr.'s judgment of $124,000.00 which was reversed and vacated. In no opinion or order was this award reinstated or affirmed; so it is therefore null and void. All that remains is my Finding of Fact No. 36, supra [calculation of damages of second trial], that was not disturbed, changed, altered or vacated by either the Circuit Court of Appeals or the Supreme Court, for only the question of liability was reversed by the Supreme Court."
We think the district court erred when it assumed that its prior finding on damages was conclusive. The fact is that this court specifically noted on the second appeal that it was not ruling on the damage issue because of its affirmance of the noliability determination. It is equally clear that the Supreme Court reversed solely on the liability issue, as the cases cited in its per curiam opinion indicate. Thus, the $60,438.30 damage finding, which the district court reaffirmed, was not free from scrutiny, and ...