Jack Neilson, Inc. v. Tug Peggy, Tug Margaret, Tug Carmen

428 F.2d 54

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 22, 1970
• Docket: 27823_1
• Status: Published

Opinions

PER CURIAM:

Apache Towing, Inc., contracted with Jack Neilson, Inc., to “lease” three vessels from Neilson for sixty months. Apache agreed to “buy” the vessels for a stipulated price at the end of this period. When Apache defaulted during the sixty months and returned the vessels, Neilson, sued in admiralty for damages. Apache moved to dismiss on the ground that the contract was one of purchase, not a charter hire, and that the district court therefore had no admiralty jurisdiction. The Ada, 2 Cir. 1918, 250 F. 194; Grand Banks Fishing Co. v. Styron, S.D.Me. 1953, 114 F.Supp. 1.

Neilson then amended its complaint to eliminate a claim for the purchase price and limited its request to damages under the “lease”. The district court denied the motion to dismiss, finding that the “lease” provisions of the contract were severable from the “purchase” provisions and that Neilson could therefore sue in admiralty on the former. The district court allowed an interlocutory appeal on this order, however, under 28 U.S.C. § 1292(b). Twelve days later Apache filed in this court its application to appeal, and this Court granted it.

We conclude that we have no jurisdiction of this interlocutory appeal. Fed.R.App.P. Rule 5(a) provides a ten-day period in which to file a petition for permission to appeal under § 1292(b). This Rule, as one of the Appellate Rules, supersedes 28 U.S.C. § 2107’s provision of fifteen days for interlocutory appeals in admiralty. 28 U.S.C. § 2072; see Hansen v. Trawler Snoopy, 1 Cir. 1967, 384 F.2d 131. And Rule 26(b) prohibits our enlarging the time for a petition for permission to appeal.

Nor do we find jurisdiction under 28 U.S.C. § 1292(a). Part (3) of that subsection allows an appeal only from those interlocutory decrees in admiralty that “determin[e] the rights and liabilities of the parties”. The district court’s denial of the motion to dismiss for lack of jurisdiction did not decide the parties’ rights and liabilities within the meaning of the statute. It did not go to the merits of the claim. See Miskiewicz v. Goodman, 4 Cir. 1965, 341 F.2d 828, 830-831; Upper Mississippi Towing Corp. v. West, 8 Cir. 1964, 338 F.2d 823, 825.

We therefore dismiss the appeal.