ST. LOUIS SHIPBUILD. & STEEL CO. v. Petroleum Barge Co.

• Decision Date: 16 January 1958
• Docket Number: No. 15825.,15825.
• Parties: ST. LOUIS SHIPBUILDING & STEEL COMPANY, Appellant, v. PETROLEUM BARGE COMPANY, Inc., and R. V. Warner, D/B/A R. V. Warner Transportation Company, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

249 F.2d 905 (1957)

ST. LOUIS SHIPBUILDING & STEEL COMPANY, Appellant, v. PETROLEUM BARGE COMPANY, Inc., and R. V. Warner, D/B/A R. V. Warner Transportation Company, Appellees.

No. 15825.

United States Court of Appeals Eighth Circuit.

December 16, 1957.

Rehearing Denied January 16, 1958.

Wilder Lucas, St. Louis, Mo. (Ralph T. Finley and Joseph A. Murphy, St. Louis, Mo., on the brief), for appellant.

John O. Hichew, St. Louis, Mo. (Thompson, Mitchell, Thompson & Douglas, Charles M. Spence, and Richard P. Conerly, St. Louis, Mo., on the brief), for appellees.

Before GARDNER, Chief Judge, and VOGEL and VAN OOSTERHOUT, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

St. Louis Shipbuilding & Steel Company, respondent below, seeks to appeal from an order of the District Court, sitting in admiralty, overruling respondent's motion to join Standard Fire Insurance Company of Hartford, Connecticut, hereinafter called Standard, as a party litigant. Respondent's right to appeal from such order is challenged.

This action was brought in admiralty by libelants, Petroleum Barge Company, Inc. and R. V. Warner, against respondent to recover damages sustained by the tank barge "Mississippi", owned by Petroleum Barge Company, as a result of an explosion, and for damages inflicted by such explosion upon the tug owned by Warner which was towing the barge, and for damages for death and injuries to crew members of the tug. Respondent had built the barge for the Petroleum Barge Company. Libelants asserted the barge was negligently constructed and inadequately inspected by the respondent, and that the explosion was caused by defects in construction and was not due to any negligence on the part of libelants.

The respondent filed a motion to join Standard as a party litigant, stating that respondent had financed $52,638 of the cost of the barge, secured by mortgage upon the barge; that as part of the financing agreement Petroleum Barge Company agreed to obtain forthwith $75,000 marine, hull and collision insurance and a like amount of marine protection and indemnity insurance, both including coverage for loss or damage as a result of fire or explosion; that said agreement also provided that respondent was to be named co-assured in the policies; that prior to the explosion Petroleum Barge Company placed the insurance as aforesaid with Standard, with directions to name respondent co-assured, but that no policies were issued until after the explosion; and that the policies subsequently issued failed to name respondent co-assured, contrary to the agreement entered into between Petroleum Barge Company and Standard that respondent be named co-assured.

Said motion also states that Standard has, under its policy issued to Petroleum Barge Company, paid the losses suffered by the libelants, and as a result of such payments Standard became subrogated to the rights of the libelants. The motion continues: "Standard Fire Insurance Company breached its contract aforesaid and is now endeavoring to recover from respondent moneys which, under the contract as entered into with Petroleum Barge Company, Inc., it was and is not entitled to recover, as respondent was supposed to be a co-assured under the marine hull and marine protection and indemnity insurance to be afforded by the real party in interest herein, namely, Standard Fire Insurance Company; that in order to enable respondent to effectively assert this defense against Standard Fire Insurance Company, Standard Fire Insurance Company, as a real party in interest in these proceedings, should be made a party libelant or a party respondent under Rule 56, or as the Court may otherwise direct."

Respondent prays that Standard be made a party to this action, that proper citation issue, and that respondent be granted such other and further relief as to the Court may seem just.

The record discloses no response or resistance to the motion. The court overruled respondent's motion by order entered May 16, 1957, reading:

"The Court having before it the Respondent\'s motion to join Standard Fire Insurance Company of Hartford, Connecticut, as party litigant in the above-entitled cause, and having examined said motion, heard the argument of counsel, studied the briefs of the parties, and being fully advised in the premises, Doth Order that said motion be and the same is hereby overruled. Warner v. The Gas Boat Bear, D.C.Alaska, 1955, 126 F.Supp. 529."

Our threshold consideration is whether an appeal lies from the order just quoted. Respondent bases its right to appeal on 28 U.S.C.A. § 1292(3), which gives courts of appeal jurisdiction of appeals from "interlocutory decrees * * * determining the rights and liabilities of the parties to admiralty cases."

In Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 55 S.Ct. 475, 79 L.Ed. 989, the Court had occasion to consider the foregoing statute. There, the attempted appeal was from an order in admiralty directing the parties to proceed to arbitration, staying proceedings pending arbitration, and retaining jurisdiction. Such order was held not to be appealable. In discussing section 1292 (3) the Court states (294 U.S. at page 458, 55 S.Ct. at page 477):

"* * * This specification, taken in connection with the other parts of the section, indicates that Congress did not intend to make appealable any other interlocutory decrees in admiralty. Moreover, there is nothing to indicate that Congress intended to allow repeated appeals in the class of cases to which these belong. That would be contrary to its long-established policy. * * *"

In In re Wills Lines, Inc., 2 Cir., 227 F.2d 509, the attemped appeal was from an order denying a default decree because of petitioner's failure to post additional security as ordered, as well as from a number of other interlocutory orders. The appeal was dismissed for want of jurisdiction, the court stating (at page 510):

"When, by amendment in 1926, certain interlocutory appeals were permitted in admiralty cases, it was not contemplated that the dockets of appellate courts in the federal system should be burdened with all the odds and ends of interlocutory orders, most or all of which would in any event be reviewable on an appeal by an aggrieved party from a final decree. It has been repeatedly held, in this Circuit and elsewhere, that interlocutory decrees `determining the rights and liabilities of the parties to admiralty cases\' means deciding `the merits of the controversies between them\'. * * *"

In Cummings v. Redeeriaktieb Transatlantic, 3 Cir., 242 F.2d 275, an admiralty action, the appeal was from an order refusing to dismiss the libel. In dismissing the appeal the court said (at page 276):

"* * * The purpose of this amendment 28 U.S.C.A. § 1292(3) to the judicial code is stated by Judge Foster in Stark v. Texas Co., 5 Cir., 1937, 88 F.2d 182, 183. He points out that these appeals are allowed only when the interlocutory decree determines rights and liabilities of the parties. The purpose of this allowance, he states, as follows:

"`* * * It has always been the practice in courts of admiralty, in certain cases, to first determine the liabilities of the parties to the suit and then refer the case to a

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