534 F.2d 1115 (5th Cir. 1976), 75-3339, Lewis v. S. S. Baune

Docket Nº:75-3339.
Citation:534 F.2d 1115
Party Name:Veronica LEWIS, Individually etc., et al., Naomi Barry Pottinger, Individually, etc., et al., Vincent Lewis et al., Daisy Llewellyn et al., and Margaret Clark, Individually, etc., et al., Plaintiffs-Appellees, v. S. S. BAUNE et al., Defendants-Appellants. In the Matter of SKIBS A/S BAUMARE and Torvald Klaveness, as Owner andManaging Owner of the S/
Case Date:July 06, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1115

534 F.2d 1115 (5th Cir. 1976)

Veronica LEWIS, Individually etc., et al., Naomi Barry

Pottinger, Individually, etc., et al., Vincent Lewis et al.,

Daisy Llewellyn et al., and Margaret Clark, Individually,

etc., et al., Plaintiffs-Appellees,


S. S. BAUNE et al., Defendants-Appellants.

In the Matter of SKIBS A/S BAUMARE and Torvald Klaveness, as

Owner andManaging Owner of the S/S BAUNE,

Petitioning for Exoneration from or

Limitationof Liability,



Phyllis HOYT et al., Claimants-Appellees.

No. 75-3339.

United States Court of Appeals, Fifth Circuit

July 6, 1976

Page 1116

[Copyrighted Material Omitted]

Page 1117

Benjamin W. Yancey, William E. Wright, New Orleans, La., for defendants-appellants.

Paul H. Due, Baton Rouge, La., Benton Musslewhite, Houston, Tex., for plaintiffs-appellees.

Thomas H. Leach, New Orleans, La., for Shell Oil.

Warren M. Faris, New Orleans, La., for Keystone.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before COLEMAN, RONEY and TJOFLAT, Circuit Judges.

COLEMAN, Circuit Judge.

This is an appeal from a permanent injunction and a conviction of contempt for violating an earlier temporary restraining order issued by the District Court. We reverse. 1

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The genesis of this case was a ship collision between the Norwegian Steamship BAUNE and the American Steamship KEY TRADER in the Mississippi River on January 18, 1974, in which several Jamaican seamen were killed. In Jamaica, four days after the collision, various family members and alleged dependents of the deceased seamen signed contingency fee employment contracts 2 with the Baton Rouge law firm of Due and Dodson.

On January 30, 1974, Due and Dodson filed five suits in the district court in New Orleans, naming as defendants the owners of both vessels and their alleged insurers. The suits were for damages in admiralty under the general maritime law, for unseaworthiness, for damages under the Jones Act and for loss of wages.

Various representatives for the Norwegian ship, S.S. BAUNE, on which the Jamaican seamen had served, contacted the Jamaican claimants and attempted, unsuccessfully, to negotiate a settlement of the claims. Upon learning of this, Due and Dodson wrote the shipowners and their Norwegian attorney, Oystein Ore, then in Jamaica, informing them of their contracts with the Jamaican claimants and requesting that the defendants not communicate with their clients. The same information was also conveyed by telegram. Ore testified that he received the telegram on January 30, 1974, and thereafter never discussed settlement with any persons named in the telegram. Due and Dodson, however, were informed that certain agents of the BAUNE were still attempting to contact their clients so, on February 7, they filed a motion in the pending admiralty suit for injunctive relief. On March 6, 1974, the District Court held a brief hearing on the motion and decided to grant the temporary restraining order. The order of the District Court reads as follows:

IT IS ORDERED that a temporary restraining order issue herein, . . . directed to S.S. Baune, Torvald Klaveness, Skibstieselskapet Baumare (SKIBS A/S BAUMARE), their agents, attorneys, representatives and all other persons acting or purporting to act on their behalf, restraining, enjoining and prohibiting them from contacting, communicating, or in any way interfering with the attorney-client relationship of the above named plaintiffs and their attorneys, Due and Dodson, and from discussing, directly or indirectly, settlement of said matters with the plaintiffs.

The TRO was extended by consent of the parties ten times and was in full force and effect when on March 7, 1975, the Jamaican claimants together with their attorneys, Due and Dodson, "in proper person", filed a motion for contempt, ordering the defendants to show cause why they should not be adjudged in contempt of court for disobeying the TRO.

On April 10, 1975, the District Court held a hearing on plaintiffs' motion for a preliminary and permanent injunction and on their motion for contempt, all of which were granted. The District Court found that persons, acting as agents for the Norwegian shipping company, on seven occasions during the life of the restraining order, did unilaterally and directly contact various claimants who were clients of Due and Dodson in contravention of the outstanding

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temporary restraining order. 3 The Court awarded to attorneys Due and Dodson expenses in the sum of $10,966.71 and attorney fees in the amount of $9,100. The Court then awarded to the plaintiffs and their counsel "punitive damages" in the sum of $50,000. 4 The permanent injunction issued by the Court utilized the same language contained in the temporary restraining order.

The appellants challenge the validity of the TRO, with a broadside attack on the District Court's jurisdiction and the propriety of the order.

Preliminary Considerations

Of course, parties, generally, should always obey court orders regardless of whether they think the orders are correct. The proper method of challenging such an order is by appeal, not by disobedience, Maness v. Meyers, 1975, 419 U.S. 449, 458, 95 S.Ct. 584, 591, 42 L.Ed.2d 574. By violating a court order, even one later set aside as incorrect, a person runs the risk of being held in criminal contempt, Maness v. Meyers, supra; United States v. Dickinson, 5 Cir. 1972, 465 F.2d 496, on remand, 349 F.Supp. 227, affirmed on second appeal, 5 Cir., 476 F.2d 373, cert. denied, 414 U.S. 979, 94 S.Ct. 270, 38 L.Ed.2d 223.

When a person is adjudged in contempt of court, the first essential is to determine the nature of the proceeding, i. e., whether the contempt is civil or criminal. Proceedings by way of criminal contempt are to punish defiance of judicial authority, whereas civil contempt serves to compel obedience of the court order or to compensate the litigant for injuries suffered because of the disobedience, Norman Bridge Drug Company v. Banner, 5 Cir. 1976, 529 F.2d 822, 827; 7 Moore's Fed. Practice P 65.02(4). So, if a person is held in criminal contempt for violating a restraining order, the fact that the order is later set aside as incorrect will not effect the judgment of contempt; the purpose there is vindication of the court's authority, United States v. United Mine Workers, 1947, 330 U.S. 258, 294, 67 S.Ct. 677, 91 L.Ed. 884. A judgment of civil contempt, being remedial in nature, stands or falls with the validity or invalidity of the order, and the opposing party should be compensated only if he was entitled to the order, United States v. United Mine Workers, supra, 330 U.S. at 295, 67 S.Ct. at 696; Norman Bridge Drug Company v. Banner, supra, 529 F.2d at 828.

In the case at bar, the trial court, in its conclusions of law, denominated the proceedings as civil contempt. A court's characterization of its proceedings is a factor to be considered in determining the character of a contempt, although it is not conclusive, Southern Railway Company v. Lanham, 5 Cir. 1968, 403 F.2d 119, 124. The contempt case was initiated and prosecuted by the Jamaican claimants and their attorneys; the government as a representative of the court was not a party. The "punitive damages" assessed against the appellants were awarded to the appellees as "some compensation for the ordeal and anxiety through which they were put," and were not payable to the Court. Were we unable to determine whether this judgment of contempt was of a civil or criminal nature, we would have to reverse...

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