Hadjipateras v. PACIFICA, SA

• Decision Date: 15 May 1961
• Docket Number: No. 18921.,18921.
• Parties: Costas HADJIPATERAS, Nicholas Hadjipateras and Dimitri Dracos, Appellants, v. PACIFICA, S. A., and George Tsakalotos, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

290 F.2d 697 (1961)

Costas HADJIPATERAS, Nicholas Hadjipateras and Dimitri Dracos, Appellants, v. PACIFICA, S. A., and George Tsakalotos, Appellee.

No. 18921.

United States Court of Appeals Fifth Circuit.

May 15, 1961.

COPYRIGHT MATERIAL OMITTED

Charles Kohlmeyer, Jr., New Orleans, La., for appellants.

John G. Poles, New York City, Donald A. Lindquist, New Orleans, La., W. J. Sheridan, Jr., Balboa Heights, Canal Zone, for appellee.

Before RIVES, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The substantive question in this interlocutory appeal is whether a libel in personam with writ of foreign attachment was a claim within the admiralty jurisdiction of the District Court. If not, the writ of attachment pursuant to which the SS Pan-Agiotis D. now remains in the Marshal's custody should be vacated since the respondents assert an inability to post a satisfactory release of attachment bond. A question of our own jurisdiction under the Interlocutory Appeals Act, 28 U.S.C.A. § 1292(b), is presented at the threshold. Both matters are better understood if we outline briefly just what occurred here and below.

On March 24, 1961 a libel in personam was filed in the District Court for the Canal Zone. It was brought by the owners¹ of the SS Athenoula (formerly the SS Ketty D.) against four named respondents.² In the traditional form, 2 Benedict, Admiralty § 291 at 355, Form No. 155, the libel prayed that if none of the respondents could be found within the District, a writ of attachment be issued pursuant to the Admiralty Rules.³ Writ of attachment issued against the SS Panagiotis D., alleged to be the property of the respondents. The SS Panagiotis D., then transiting the Canal, was seized and remains in the custody of the Marshal because of the asserted inability of the respondents to file the necessary security for her release.⁴

The libel alleged that Pacifica, S.A., as owner of the SS Ketty D., had entered into a contract with respondent Jason Shipping Company for the management and operation of that vessel for a stated period of time. Under this contract the managing agent was to operate the vessel, obtain freight or freight engagements, collect the freight monies and, after deducting all operating expenses, remit the balance to the owners. But, so the libel and supporting papers continued, after performing the contract for a time and collecting freights there remained $250,000 which belonged to the owners which the managing agent and the other respondents wrongfully appropriated in breach of the contract. The libel sought a decree "against all of the respondents herein for the amount aforesaid $250,000, together with interest and costs * * *" with, of course, the usual catchall "and that the libelants may have such other further and different relief as may be just." See 2 Benedict, Admiralty § 263 at 108, form 52.

The respondents on April 4, 1961, filed a motion to dismiss the libel and thereby vacate the attachment on the ground that this was a suit for accounting and was therefore beyond the admiralty jurisdiction. After briefs and arguments, the District Court denied the motions to dismiss on April 7, 1961. On the same day Proctors for respondents moved for an order allowing an appeal, and such an order was entered, also on April 7.⁵ On April 17, and within ten days of the District Court's order declining to dismiss for want of jurisdiction, appellants-respondents filed with the Clerk and presented to a Judge of this Court an application with supporting affidavit. This was an application for an "immediate hearing" on the appeal and an order to show cause why the order of April 7 "denying the motion for dismissal * * * and vacating the foreign attachment should not be reversed and the libel dismissed and the foreign attachment * * * vacated."⁶

Following this ex parte presentation, this Court entered its formal show cause order of April 17 fixing April 27 as the time of hearing on this application for an immediate hearing of the appeal and the request for reversal and vacation of the attachment. Thereafter, on April 19, libelants-appellees filed their motion to dismiss the appeal because the order was neither a final one under § 1291 nor an interlocutory admiralty decree "determining the rights and liabilities of the parties" under § 1292(a) (3). A show cause order was issued for hearing along with the prior motions. Up to this time no formal certification by the District Judge for an interlocutory appeal under § 1292 (b) had been sought, obtained, or filed here together with an application for allowance of such an appeal.

On April 26 respondents filed a motion with the District Court requesting reconsideration of the order of April 7 denying the motion to dismiss the libel for want of jurisdiction and a certification under § 1292(b). This was done on April 26 by a formal order entered nunc pro tunc.⁷ During argument on April 27 this Court received a cabled copy of the order from the District Court.

We think that there has been a substantial compliance with § 1292(b) so that this appeal is properly before us as an interlocutory order. If timely made and certified, there can be no question that it presents a matter that "may materially advance the ultimate termination of the litigation." Indeed, if appellants-respondents are correct on the lack of admiralty jurisdiction, the whole case ends once and for all. Neither the Court nor the parties should be put to the expense in time for a trial of such a possible congenital deficiency.

On several theories the application is timely and the desirability of an appeal sufficiently certified. Since it is positive that the order was not a final judgment appealable under § 1291 and it seems almost as positive that it was not an interlocutory admiralty order under § 1292(a) (3), Pannizzo v. Lauro, 2 Cir., 1955, 228 F.2d 222, the District Court retained sufficient control of the case. Ex parte Watkins, 5 Cir., 1958, 260 F. 2d 548. Consequently, the amended order of April 26 can stand alone. It contains an adequate certificate, and presented to us as it was on argument on April 27, it was presented within the 10-day period following its entry the day before. Ordinarily the application to the Court of Appeals would be a formal one in writing, but § 1292(b) does not so prescribe.⁸ The statute imposes no time limit on the Court of Appeals. Consequently, our actions now, and at the argument, constitute allowance of the interlocutory appeal.

More than that, we think that the interlocutory appeal is properly before us by considering the order of April 26 as a nunc pro tunc amendment to the order of April 7. As our show cause order of April 17 reflects, the appellants-respondents presented to us their request for reversal and vacation of the attachment on April 17, a date within ten days of the order (April 7) appealed from. § 1292(b). In the meantime the District Court on April 7 entered an order allowing an appeal — an order now superfluous (see note 5, supra) apart from the new procedure of § 1292(b). On many prior occasions, in momentarily denying applications for mandamus, prohibition or the like under the all writs statute, 28 U.S. C.A. § 1651, or in dismissing appeals as improvidently taken, we have, where the 10-day period has long since expired, formally suggested that the matter be resubmitted to the trial court for redetermination and a possible § 1292(b) certification by it. Ex parte Deepwater Exploration Co., 5 Cir., 1958, 260 F.2d 546, on remand, Deepwater Exploration Co. v. Andrew Weir Ins. Co., D.C., 167 F. Supp. 185; Ex parte Watkins, 5 Cir., 1958, 260 F.2d 548, certification held inadequate, 5 Cir., 271 F.2d 771, 772; Jewell v. Grain Dealers Mutual Ins. Co., 5 Cir., 1959, 273 F.2d 422; Ex parte Underwriters at Lloyds London (Gulf Shipside Storage Corp. v. Underwriters at Lloyds London), 5 Cir., 1960, 276 F.2d 209, 210, reversing, Schwabach & Co. v. Gulf Shipside Storage Co., D.C.E.D.La., 1959, 173 F.Supp. 105. Since the only possible relief open to appellants-respondents by way of an appeal on the date of application (April 17) for reversal and vacation of the attachment was under § 1292(b), we think it entirely proper for the formal, technical imperfections of that timely action to be corrected by the nunc pro tunc amendment of April 26.

Of course we must find our jurisdiction to hear a matter in a statute or authoritative rule. But this Court has invariably approached this in a way that avoids hypercritical technicalities in the construction and application of such statutes. We see this, for example, in our decisions concerning the time and character of a notice of appeal. Roth v. Bird, 5 Cir., 1956, 239 F.2d 257, 259; Des Isles v. Evans, 5 Cir., 1955, 225 F.2d 235, 236; Crump v. Hill, 5 Cir., 1939, 104 F.2d 36, 38; Carter v. Campbell, 5 Cir., 1960, 285 F.2d 68, 70-71.⁹ We have followed this pattern as we seek to utilize this new remedy of an interlocutory appeal. Thus, while a literal application of § 1292(b) would confine it to a "civil action" in keeping with the secondary meaning now attributed to that term by the Federal Rules of Civil Procedure, we held in Continental Grain Co. v. Federal Barge Lines, 5 Cir., 1959, 268 F.2d 240, 241-42, 1959 A.M.C. 2158, that it extended to admiralty cases as well. The Supreme Court by its affirmance agreed, 1961, 361 U.S. 811, 80 S.Ct. 79, 4 L.Ed.2d 59, 1961 A.M.C. 1.

Likewise, we have thus far resisted the temptation to chart out the types of cases or the circumstances in which this new type of an appeal should be allowed. The statute was framed in broad language and the term "controlling question of law as to which there is substantial ground for difference of opinion * * *" which "may materially advance * * * termination of the litigation * * *" avoids casting it in the unyielding molds of prior terms of procedural art. United States v. Woodbury, 9 Cir., 1959, 263 F.2d 784, 787.¹⁰

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