American Export Lines v. Revel, 7787.

• Decision Date: 11 December 1958
• Docket Number: No. 7787.,7787.
• Citation: 262 F.2d 122
• Parties: AMERICAN EXPORT LINES, Inc., Appellant, v. John REVEL, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

262 F.2d 122 (1958)

AMERICAN EXPORT LINES, Inc., Appellant, v. John REVEL, Appellee.

No. 7787.

United States Court of Appeals Fourth Circuit.

Argued November 11, 1958.

Decided December 11, 1958.

Sidney H. Kelsey, Norfolk, Va., in support of motion.

John W. Winston, Norfolk, Va. (Seawell, Johnston, McCoy & Winston, Norfolk, Va., on brief), in opposition to motion.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

SOBELOFF, Chief Judge.

The issue here is the timeliness of an appeal by a shipowner from a judgment obtained against it by an injured dock-worker. It is a case in which the United States, having been impleaded by the shipowner, actively participated as a third-party defendant. On this basis the appellant maintains that its appeal was timely because noted within sixty days after judgment. The appellee here, who was plaintiff below, contends that the shipowner's time limit was thirty days, and he moves to docket and dismiss the appeal as too late. The parties agree that the answer depends upon the proper interpretation of Title 28 U.S.C.A. § 2107, and Rule 73, Federal Rules of Civil Procedure.¹

For an understanding of the issue, it is necessary to trace the rather complicated course of this litigation in the District Court.

John Revel, the longshoreman plaintiff, was injured while working on a dock in Norfolk. His employer, Whitehall Terminal Corporation, had entered into a contract with the United States to load one of the American Export Line's ships, the S.S. Executor, which was under space charter to the government. After accepting compensation benefits from his employer under the Virginia Workmen's Compensation Act, Code 1950, § 65-1 et seq., Revel sued Export, attributing his injuries to negligence for which it is responsible and to the ship's unseaworthiness. Export's answer made a general denial and pleaded as a separate defense that Revel had accepted compensation.

Export also then impleaded, as third-party defendants, the United States and Whitehall. The theory of Export's third party action was that the third-party defendants had breached their implied agreement with it to load the cargo properly or had been negligent in handling the cargo, thereby precipitating Revel's suit against it. Full indemnification was sought under the implied agreement, or at least contribution from the third-party defendants as joint tort-feasors.

Whitehall answered both the third-party complaint and the original complaint. It also moved to dismiss the third-party action on the asserted ground that the plaintiff, being limited to an award under the Virginia Workmen's Compensation Act, could not maintain suit for damages against Export and that, hence, Whitehall could have no liability.

The United States likewise filed its answer to the third-party complaint and, in addition, cross-claimed against Whitehall to recover any amount that the United States might be called upon to pay Export.

Before trial Revel amended his original complaint to include Whitehall as a principal defendant along with Export. Both Export and Whitehall then moved for summary judgment, asserting that Revel's remedy was exclusively under the Virginia Workmen's Compensation Act and that this statute precluded any suit at law against either Whitehall or Export. The United States filed no separate answer to plaintiff's amended claim, but it did present a memorandum in support of Export's motion for summary judgment and participated fully in the argument on this motion before the District Court.

The Court dismissed Whitehall as a defendant in the plaintiff's amended complaint but refused to grant its motion to dismiss it from the third-party complaint. After the denial of Export's motion for summary judgment, the case proceeded to trial, with Export as the principal defendant and the United States and Whitehall as third-party defendants. At the trial, the United States, as well as Export and Whitehall fully and completely participated, noting objections to testimony, cross-examining witnesses, and presenting evidence. Throughout the proceedings the United States, as part of its defense, combatted the plaintiff's right to recover against Export. Obviously, since the liability of the United States to Export depended on the latter's liability to Revel, it was in the interest of the United States to help Export defeat Revel's claim.

The jury brought in a verdict of $37,500 for the plaintiff against Export. This was the only branch of the case that was tried to the jury. Certain interrogatories bearing on the negligence of Whitehall were submitted to the jury for advisory verdicts only, but the judge reserved to himself the determination of any rights which Export might have against the United States and Whitehall and which the United States might have against Whitehall. Final judgments were entered on June 25, 1958, for Revel against Export, for Export against the United States and, in turn, for the United States against Whitehall.

No notice of appeal having been filed during the following thirty days, the Clerk of the District Court, on July 30, upon the plaintiff's instructions, issued an execution on the plaintiff's judgment against Export. Stay of execution was sought by Export until after the expiration of the period in which it claimed to be entitled to enter an appeal, namely, sixty days after judgment. Conceding that normally thirty days is the time allowed by law, it contended that because the United States was a party, all parties to the case had sixty days to appeal. The District Court, being of the opinion that Export was bound by the thirty-day appeal period even though the United States had been impleaded as a third-party defendant, overruled Export's motion for stay of execution on the judgment.

As Export indicated its desire to appeal from this ruling of the District Court, as well as from the judgment against it, the Court signed an order August 1, allowing such an appeal upon Export's filing of a supersedeas bond in the penalty of $40,000, specifying, however, that this order was in no way to affect or prejudice Revel's right to contest the timeliness of the appeal. On August 15, Whitehall filed notice of appeal from the final judgment against it, and the United States filed similar notice of appeal on August 22, fifty-eight days after the final judgments. A few hours later on the same day, Export filed its notice of appeal from both the final judgment against it and from the order overruling its motion to stay execution. It also cross-appealed from all orders, rulings, findings, and conclusions adverse to it and favorable to either of the third-party defendants, the United States, or Whitehall.

Export's contention that it had sixty days in which to appeal rests upon the premise that the United States was a party to the proceedings within the meaning of Section 2107 of Title 28 U.S. C.A., and Rule 73 of the Federal Rules of Civil Procedure. To this the plaintiff replies that the United States was not a party to the original action of the plaintiff against Export and was involved only in the third-party action allowed by Rule 14(a)² of the Federal Rules of Civil Procedure.

The purpose of third-party procedure is to prevent circuity of action by drawing into one proceeding all parties who may become ultimately liable, so that they may therein assert and have a determination of their various claims inter sese. This is intended to save the time and cost of duplicating evidence and to obtain consistent results from identical or similar evidence, as well as to avoid the serious handicap of a time lag between a judgment against the original defendant and a judgment in his favor against the third-party defendant. 1 Barron and Holtzoff, Federal Practice and Procedure (1950 Ed.), Sec. 422, p. 838.

The benefits to be derived from third-party practice are not restricted to the district court level; they are equally desirable and available on appeal. Therefore, unless the statutes and rules governing appeals inexorably require it, a court should not favor a situation where several parties have sixty days in which to appeal, while other parties with interdependent or related rights and obligations must appeal within thirty days. Such a difference could have the effect of splitting the case on appeal, thereby restoring the undesirable conditions which third-party practice was intended to cure or ameliorate.

The essence of appellee's argument is that the third-party action, while ancillary, is still distinct from the original suit, and that therefore, the time in which the original defendant, Export, could appeal was not enlarged by the presence of the United States in the case as a third-party defendant. In support of this position, he cites Mangone v. Moore-McCormack Lines, D.C.E.D.N.Y. 1957, 152 F.Supp. 848, in which, after a civil action had been brought against a shipowner by a longshoreman, and the United States was impleaded under the Court's admiralty jurisdiction, the Court granted the Government's motion to dismiss the third-party complaint. In its opinion, the Court discusses the nature of the third-party action, in general, and the distinction between admiralty and civil actions.³

The appellee argues that the reasoning of the Court in Mangone in regard to the relationship of the third-party action to...