In re World Tradeways Shipping, Ltd.
Opinion of the Court
In October 1965, the Tradeways II, owned by appellant World Tradeways Shipping, Ltd., sank in strong winds and heavy seas, resulting in the death of
Appellant finds jurisdiction for this appeal in 28 U.S.C. § 1292(a) (1), alleging that Judge Bonsai’s order of April 22, 1966, was an injunction, and Judge MacMahon’s order modified it. As support, appellant cites Curtis Bay Towing Co. v. Tug Kevin Moran, Inc., 159 F.2d 273 (2d Cir. 1947), and W. E. Hedger Transp. Corp. v. Gallotta, 145 F.2d 870 (2d Cir. 1944). Appellant contends that the provision of the April 22 order setting a deadline for the filing of claims was as much an element of injunction as the portions of the orders involved in Curtis Buy and Hedger. Both Midland and Nimpex argue that enlarging time to file a claim affects no injunctive provision and hence that this court is without jurisdiction. They point out that appellant first asked Judge MacMahon to certify the appeal as one from an interlocutory order “not otherwise appealable” under section 1292,
In Hedger, a longshoreman sued a barge owner in a state court. The barge owner petitioned for limitation of liability, and the federal district court enjoined all other suits. The longshoreman filed a consent to the limitation of liability and the federal court thereupon vacated the stay of the longshoreman’s state court action. Thereafter, the longshoreman joined a charterer of the barge as a defendant in his state action; the charterer answered and filed a cross-claim against the barge owner. The owner then moved in the federal court to reinstate the stay of the state court action on the ground that the charterer’s cross-claim was a second claim against it. The federal court denied the motion with respect to the longshoreman’s suit, but declared that the charterer could assert its cross-claim for indemnity only in the federal limitation proceeding. This court allowed both the barge owner and the charterer to appeal. It is clear that the subject of the appeals was the district court’s order permitting the prosecution of one claim (by the longshoreman) in a state forum and its refusal to allow prosecution there of another claim (charterer against barge owner). Similarly, in the Curtis Buy case, a claimant in a limitation proceeding in the Southern District of New York moved to vacate that court’s order barring other suits so that it might prosecute a claim in a Pennsylvania federal district court. This court held denial of that motion appealable.
If it were, every order allowing an additional party to intervene over objection may be treated as a refusal to grant an injunction. Such a doctrine would extend rights to appeal beyond all reasonable limits.
Again, in Sorensen v. United States, 160 F.2d 938 (2d Cir. 1947) (per curiam,), we dismissed an appeal for lack of jurisdiction, holding:
[N] either principle nor authority supports the appellant’s contention that she may appeal from an order which merely allows another claimant to intervene.
It has long been the settled policy of federal law to discourage piecemeal appeals, and we must interpret 28 U.S.C. § 1292 (a) (1) in the light of that policy. Switzerland Cheese Ass’n, Inc. v. E. Horne’s Market, Inc., 385 U.S. 23, 87 S.Ct. 23, 17 L.Ed. 23 (1966). Accordingly, we hold that an order extending the time for the filing of claims in a limitation proceeding is not appealable.
Appellees have requested imposition of damages and double costs under 28 U.S.C. § 1912. Although appellant is wrong on the issue of appealability, since we feel that its appeal was taken in good faith and not for the purpose of delay, we will allow appellees to recover only ordinary costs. Appeal dismissed with costs.
. The death claims and those of the surviving crew members were settled before the limitation proceeding began.
. Midland’s claim is for indemnity over against appellant should Midland be held liable to Nimpex for the cargo’s loss.
. The judge denied this request as “frivolous,” apparently in the belief that there was not that “substantial ground for difference of opinion” required for certification under 28 U.S.C. § 1292(b).
. Equally distinguishable are Blackler v. E. Jacobus Transp. Co., 243 F.2d 733 (2d Cir. 1957) (per curiam); George J. Waldie Towing Co. v. Ricca, 227 F.2d 900 (2d Cir. 1955); A. C. Dodge, Inc. v. J. M. Carras, Inc., 218 F.2d 911 (2d Cir. 1955).
. An order denying intervention is, of course, another matter. See Levin v. Ruby Trading Corp., 333 F.2d 592, 594 (2d Cir. 1964).
Reference
- Full Case Name
- Petition of WORLD TRADEWAYS SHIPPING, LTD., as owner of the STEAMSHIP TRADEWAYS II in a cause of exoneration from or limitation of liability for damages arising out of the sinking of the Tradeways II on or about October 24, 1965 NIMPEX INTERNATIONAL, INC. and Midland Overseas Shipping Corp., Claimants-Appellees
- Cited By
- 4 cases
- Status
- Published