384 F.2d 589 (5th Cir. 1967), 24010, Caradelis v. Refineria Panama, S. A.
|Citation:||384 F.2d 589|
|Party Name:||Ricardo Fotys CARADELIS, Appellant, v. REFINERIA PANAMA, S.A., Appellee.|
|Case Date:||August 28, 1967|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Rehearing Denied Oct. 4, 1967.
Woodrow deCastro, Balboa, Canal Zone, for appellant.
D. A. Lindquist, New Orleans, La., for appellee.
Before TUTTLE, THORNBERRY and GODBOLD, Circuit Judges.
GODBOLD, Circuit Judge:
Ricardo Fotys Caradelis, owner of the M/V Corsario, appeals from dismissal of his libel against Refineria Panama, S.A., owner of the tug Payardi and the barge Oilbar III, and judgment in favor of Panama on its cross libel. Both claims arose out of a collision between the Carsario and the barge, which was being towed by the Payardi; the Corsario sank while being towed to shore and attempts to raise her have been unsuccessful.
An in personam libel was filed by Caradelis against Panama alleging that the cause of the collision was the negligence of the master of the Payardi and the failure of the Payardi to show proper towing lights. Damages of $105,746.62 were asked for loss of the Corsario, expense of unsuccessful attempts to raise the ship and loss of profits from her operation for one year. Panama answered denying liability and filed a cross libel alleging that the cause of the collision was negligent operation of the Corsario and asking $1,100 for damage to the towing gear of the Payardi and temporary loss of services of the tug and her tow.
After trial, the District Court (on January 31, 1966) entered findings of fact and conclusions of law. 249 F.Supp. 317 (D.Canal Zone, 1966). On February 2, 1966, an order titled 'Interlocutory Decree' was entered which dismissed Caradelis' libel and ordered that Panama recover of Caradelis on its cross libel; the cause was continued for determination of
damages. On May 19, 1966, an order titled 'Final Decree' was entered directing that Panama recover from Caradelis stipulated damages of $1,083.97 plus interest and costs. Caradelis filed notice of appeal on May 26, 1966.
We are met with an asserted limitation of our jurisdiction. Panama contends that since the February 2 order dismissed Caradelis' libel and decreed that Panama recover on its cross libel, that order, insofar as it related to these issues, was a 'final decision' within the meaning of 28 U.S.C.A. § 1291. Since no notice of appeal was filed within the ninety-day period specified by 28 U.S.C.A. § 2107 no appeal from the District Court's determination of liability lies, and our jurisdiction on appeal is limited to a review of the award of damages by the May 16 order.
But the February 2 decree specifically continued the cause 'for further orders relative to the taking of proof for determination of Cross Libellant's damages.' It cannot be regarded as a final disposition of the cross libel; only when nothing save ministerial tasks relating to computation of damages remains can a mere determination of liability be construed as a 'final decision.' Chace v. Vasquez, 11 Wheat. 429, 24 U.S. 429, 6 L.Ed. 511 (1826); McGourkey v. Toledo & Ohio Central Railway Co.,146 U.S. 536, 13 S.Ct. 170, 36 L.Ed. 1079 (1892); Guarantee Co. of North America v. Mechanics' Saving Bank & Trust Co., 173 U.S. 582, 19 S.Ct. 551, 43 L.Ed. 818 (1899). 1 The question presented is whether an order dismissing a libel but not finally disposing of a cross libel may be a 'final decision.' We conclude that it is not. Fed.R.Civ.P. 54(b) requires that when each party asserts a claim for relief against the other, no appeal may be taken from final disposition of less than all the claims in the absence of action by the district court to authorize such an appeal. The rule is a recognition of the 'judicial unit' principle under which no appeal lies until final disposition of all matters within the 'judicial unit' constituting an action. Ayres v. Carver, 58 U.S. (17 How.) 591, 15 L.Ed. 179 (1854). See generally 6 Moore, Federal Practice Par. 54.19 (2nd Ed., 1966). This principle is as applicable to admiralty as to other proceedings. Bowker v. United States,186 U.S. 135, 22 S.Ct. 802, 46 L.Ed. 1090 (1902); France & Canada S.S. Co. v. French Republic, 285 F. 290 (2nd Cir. 1902), cert. denied, 261 U.S. 615, 43 S.Ct. 361, 67 L.Ed. 828 (1923); 4 Benedict, Admiralty 554 (6th Ed., 1940). Since the cross libel arose out of the same transaction as gave rise to the libel there can be no doubt that the 'judicial unit' includes both claims. 2 We conclude, therefore, that until final disposition of Panama's
cross libel no 'final decision' of Caradelis' action was made, and we are free to consider Caradelis' challenge to the District Court's determination of liability.
The parties agree that the situation was governed by the International Regulations for Preventing Collisions at Sea, 33 U.S.C.A. § 1051 et seq. Rule 18, 33 U.S.C.A. § 1080, directs that when two power-driven vessels are meeting head-on, so as to involve risk of collision, a 'meeting' situation exists and each must alter course to starboard so as to effect a safe port-to-port passing. By its express language the rule is inapplicable to two approaching vessels which, if each maintains its course, will safely pass clear of each other (whether port-to-port or starboard-to-starboard). By night the rule applies only when each vessel is in a position to see both sidelights of the other. If approaching vessels are not meeting head-on or nearly so but their anticipated courses cross so as to involve risk of collision, a 'crossing' situation exists, 3 and Rule 19 (33 U.S.C.A. § 1081) requires the vessel which has the other on her starboard (the 'burdened' vessel) to keep out of the way of the other; the burdened vessel must take early action to comply with this obligation (Rule 22, 33 U.S.C.A. § 1084), avoid, if possible, crossing in front of the other (Rule 22) and, if necessary, slacken her speed...
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