France & Canada S.S. Co. v. French Republic

• Decision Date: 06 November 1922
• Docket Number: 32.
• Citation: 285 F. 290
• Parties: FRANCE & CANADA S.S. CO. v. FRENCH REPUBLIC. [1]
• Court: U.S. Court of Appeals — Second Circuit

285 F. 290

FRANCE & CANADA S.S. CO. v. FRENCH REPUBLIC. ^[1]

No. 32.

United States Court of Appeals, Second Circuit.

November 6, 1922

Patterson Eagle, Greenough & Day, of New York City (J. Culbert Palmer and C. D. Francis, both of New York City, of counsel), for appellant.

Kirlin Woolsey, Campbell, Hickox & Keating, of New York City (W. H McGrann, of New York City, of counsel), for appellee.

Before ROGERS and MANTON, Circuit Judges, and AUGUSTUS N. HAND District Judge.

ROGERS Circuit Judge.

This suit was brought by the French Republic in admiralty against the schooner Jane Palmer in rem and against the schooner Singleton Palmer in rem in September, 1920, for recovery of damages to the cargo owned by the French Republic and carried by the schooners on voyages from New York to France. It was claimed that the cargo carried by the Jane Palmer had been damaged to the amount of $54,482.02, and that the cargo carried by the Singleton Palmer had been damaged to the amount of $48,581.22. The vessels sailed from the port of New York in the spring of 1917.

The France & Canada Steamship Company, which is a corporation organized under the laws of the state of New York and having its principal place of business in the city of New York, filed claims and stipulations of value in each suit. And on November 12, 1920, it filed its answers to the original libels and also filed cross-libels against the French Republic, demanding payment of the sum of $133,972.93 for the alleged breach of the contracts of affreightment including the bills of lading therein specified. It alleged that in and by the said contracts the French Republic had agreed to furnish to be transported from a United States port to a French port a total quantity of 100,000 tons of a specified cargo which the libelant agreed to carry. It alleged that in order to induce the libelant to carry the cargo upon the terms and conditions and at the rates specified in the contracts the French Republic agreed to pay libelant 'for all damages caused by detainments, restraints, arrests, destruction, damage and capture of libelant's vessels engaged in transporting the 100,000 tons of cargo therein specified, by kings, princes and peoples in the prosecution of the war then going on between France and her allies and Germany and her allies, in words, to wit:

'The War Administration (respondent) agrees to assume the war risk on vessels engaged in the transportation of this merchandise by the France & Canada Steamship Corporation. The value of vessels will be calculated at the rate of . . . 10-0-0 (sterling) per ton deadweight.'

And it is alleged that the French Republic, the respondent, in the prosecution of the war detained and compelled said vessels to remain at the French ports for the periods specified, waiting for respondent's war vessels to convoy them out to sea and protect them from damage, destruction, or capture by Germany and her allies, to libelant's damage in an amount aggregating $133,972.93. The damages resulting from the alleged detention of the Jane Palmer amounted to $11,277.18 and those arising from the detention of the Singleton Palmer amounted to $22,469.95. The balance of the amount claimed in the cross- libels arose from the detention of four other vessels belonging to the libelant, which had been engaged in transporting merchandise to France under the same contract and which had been similarly detained in French ports by the French Republic.

The libelant moved to stay proceedings on both libels until the French Republic should appear and give proper security in the cross-suit. Thereupon the French Republic appeared specially for the purpose of opposing the motion, and also for excepting to the cross-libel and the answers to the libel, and moved to dismiss the cross-libels. The court below, the matter being twice argued before it, 270 F. 609 and 275 F. 719, entered a final decree sustaining the exceptions to the cross-libels and dismissing them. It is from this order that this appeal is taken.

The first question to be considered is whether the order entered dismissing the cross-libels is a final decree in the sense that an appeal lies therefrom to this court before the determination of the original libels has been made. Counsel for the French Republic, the appellee herein, has urged in the argument in this court that the appeal is premature; that as the order made did not determine wholly the controversy between the parties now pending in the District Court, it cannot be regarded as a final order from which an appeal can be taken.

The Judiciary Act of 1789 (1 Stat. 73) confined the appellate jurisdiction to final judgments and decrees in the cases specified. As was said by Mr. Justice Lamar in McLish v. Roff, 141 U.S. 661, 665, 12 Sup.Ct. 118, 35 L.Ed. 893, the object and policy of Congress in relation to appeals and writs of error from the beginning of our judicial system has been to save the expense and delays of repeated appeals in the same suit, and to have the whole case and every matter in controversy in it decided in a single appeal.

At common law no writ of error could be brought except on a final judgment. Bacon's Abr. Error, A, 2. In 2 Tidd's Practice, 1162, it is said that, 'if the writ of error be returnable before judgment is given, it may be quashed on motion. ' And in Metcalf's Case, 6 Coke, 68, decided in the reign of King James I, it was held that a writ of error would not lie till the whole matter had been determined, and that 'the whole record ought to be either in the Common Pleas or in the King's Bench,' and 'cannot be there and here likewise.'

In the federal courts in actions at law a writ of error only lies from final judgments which dispose of the entire case. Thus in Holcombe v. McKusick, 20 How. 552, 554 (15 L.Ed. 1020), Mr. Justice Nelson, speaking for the court, said:

'It is the settled practice of this court, and the same in the King's Bench in England, that the writ (of error) will not lie until the whole of the matters in controversy in the suit below are disposed of. * * * The cause is not to be sent up in fragments.'

And this court has held that if two causes of action are alleged in one complaint, and a demurrer is sustained to one cause of action, no writ of error lies until the determination of the issues on the second cause of action. Even if one cause of action is separate from the other, both are in one suit, and it is necessary to dispose of both before a writ of error lies. The case cannot be in this court and in the District Court at the same time. It cannot be 'there and likewise here.' Sheppy v. Stevens, 200 F. 946, 948. And see United States v. Beatty, 232 U.S. 463, 34 Sup.Ct. 392, 58 L.Ed. 686.

In equity the same principle is applied and an appeal only lies from a final decree which disposes of the whole cause. Dainese v. Kendall, 119 U.S. 54, 7 Sup.Ct. 65, 30 L.Ed. 305; Talley v. Curtain, 58 F. 4, 7 C.C.A. 1; Desvergers v. Parsons, 60 F. 143, 8 C.C.A. 526; Marden v. Printing Press Co., 67 F....