Albatross Shipping Corporation v. Robert R. Stewart, Libelant-Appellee

326 F.2d 208

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 20, 1964
• Docket: 20385
• Status: Published

Opinions

HUNTER, District Judge.

This is an action instituted in Admiralty by Libelant against Albatross Shipping Corporation. The libel is in three counts:

(1) For damages for personal injuries sustained aboard the SS RICHMOND;

(2) For maintenance and cure; and

(3) For damages for failure to pay maintenance and cure.

Proceedings under Rule 58(a) of the Admiralty Rules, Libelant moved for summary judgment before the District Court, payment of maintenance was commenced and it was stipulated that payment would continue until Libelant reached maximum cure or was found fit for duty by the United States Public Health Service Hospital. On the issue of damages, the District Court awarded summary judgment in favor of Libelant-Appellee in the amount of $300. It is from this award that Albatross appeals. At the outset we must determine the finality, and hence the appealability of this adjudication. The other counts are pending in the District Court.

Apparently aware that such a piecemeal appeal might be considered as interlocutory, Albatross sought and obtained from the District Judge an order certifying the award as dispositive under the Interlocutory Appeals Act, 28 U.S.C.A. § 1292(b).¹ This Court, exercising its statutory discretion, declined to accept the appeal. It was after this Court had so declined that Albatross proceeded with this appeal, presumably either under 28 U.S.C.A. § 1291 or § 1292(a) (3).²

This award of $300 for damages for failure to pay maintenance and cure was not a final judgment appealable under § 129L An order is final for purpose of appeal only when it terminates the litigation, leaving nothing to be done but to enforce the judgment. Admittedly, this is not the situation here. No rights will be foreclosed by this partial summary judgment and the correctness of the ruling of the district court can be challenged if and when the case comes before this court on an appeal from final judgment. King v. California Company, 5 C.A., rehearing refused 236 F.2d 413; 5 C.A., 224 F.2d 193; United States Sugar Corporation v. Atlantic Coastline Railroad Company, 5 C.A., 196 F.2d 1015, 1016. The District Court should stay its partial summary judgment decree until final determination of the case upon its merits.

We are equally convinced that this partial summary judgment is not such an interlocutory order as will serve as the basis of an appeal under 28 U.S. C.A. § 1292(a) (3). Admiralty Rule 58d ³ does provide for a partial summary judgment — that is, a summary judgment “not rendered upon the whole case” — but expressly provides the procedure for dealing with a judgment of this nature and indicates clearly that it is interlocutory in character. There is no authority for the trial court to render a final summary judgment on a part of the claim. Where, as here, issues remain which must be tried, the District Court should proceed (pursuant to Admiralty Rule 58(d)) with trial as to the facts which remain in dispute, and at the close of the trial should make findings of fact and conclusions of law on the whole case (Moore’s Federal Practice, 2nd Ed., Vol. 6, Section 56.20, et seq.; King v. California, 5 C.A., 224 F.2d 193).

The prime purpose of the summary judgment procedure is to secure the “just, speedy and inexpensive determination of any action.” Piecemeal appeals of partial summary judgments under Admiralty Rule 58(d) would completely frustrate the very purpose of the summary judgment rule.

The Interlocutory Appeal Statute (28 U.S.C.A. § 1292(b)) provides an expeditious and coherent means for review in the unusual cases where interlocutory review is desirable. That this is not such a case was decided when this Court declined to hear the appeal under that statute.⁴

Neither party has moved to dismiss this appeal but this Court must take note of its lack of jurisdiction. McManus v. Delta Fire & Casualty Compay, 5 C.A., 1958, 251 F.2d 496.

This appeal is premature. It is dismissed.

1 . This statute enacted by adding Paragraph (b) to former 28 U.S.C.A. § 1292 applies to an order certified as dispositive in an Admiralty cause (Continental Grain Co. v. Federal Barge Lines, Inc., 5 Cir., 268 F.2d 240, affirmed 361 U.S. 811, 80 S.Ct. 79, 4 L.Ed. 2nd 59).

2 . 28 U.S.C.A. § 1291. “Final decisions of district courts.”

“The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court. As amended Oct. 81, 1951, c. 655, § 48, 65 Stat. 726; July 7, 1958, Pub.L. 85-508, § 12(e), 72 Stat. 348.”

28 U.S.C.A. § 1292. “Interlocutoy decisions”

“(a) The courts of appeals shall have jurisdiction of appeals from:

* * *

(3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed; * * ff

3 . “Rule 58. Summary judgment # * sjs

“(d) Case not Fully Adjudicated on Motion. If on Motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”

4 . The application heretofore before this Court was disposed of unanimously and without opinion as follows :

“ALBATROSS SHIPPING CORPORATION, Appellant, versus ROBERT R. STEWART, Appellee.”

“On Application of Plaintiff for Leave to Appeal from an Interlocutory Order.”

“Before TUTTLE, Chief Judge, JONES, and BELL, Circuit Judges”

“BY THE COURT: — Leave to appeal from the interlocutory order of the District Court for the Eastern District of Louisiana entered on January 31, 1963 as amended by the order entered on February 15, 1963, in the above entitled cause is denied.”