Austracan, (U.S.A.) Inc. v. M/V Lemoncore, 73-2561

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before TUTTLE, COLEMAN and AINSWORTH; COLEMAN
• Citation: 500 F.2d 237
• Parties: AUSTRACAN, (U.S.A.) INC., et al., Plaintiffs-Appellants, v. M/V LEMONCORE, etc., and Maritime Fruit Carriers et al., Defendants. REFRIGERATED EXPRESS LINE, (A/ASIA) PTY. LTD., etc., et al., Defendants-Third-Party Plaintiffs-Appellants, v. CENTRAL COLD STORAGE, INC., and Harrington & Company, Inc., Third-Party Defendants-Appellees (two cases). BAJALAD & COMPANY, Plaintiff-Appellant, v. MARITIME FRUIT CARRIERS et al., Defendants.
• Docket Number: No. 73-2561,73-2561
• Decision Date: 30 August 1974

Page 237

500 F.2d 237 AUSTRACAN, (U.S.A.) INC., et al., Plaintiffs-Appellants,
v.
M/V LEMONCORE, etc., and Maritime Fruit Carriers et al., Defendants.
REFRIGERATED EXPRESS LINE, (A/ASIA) PTY. LTD., etc., et al.,
Defendants-Third-Party Plaintiffs-Appellants,
v.
CENTRAL COLD STORAGE, INC., and Harrington & Company, Inc.,
Third-Party Defendants-Appellees (two cases).
BAJALAD & COMPANY, Plaintiff-Appellant,
v.
MARITIME FRUIT CARRIERS et al., Defendants. No. 73-2561. United States Court of Appeals, Fifth Circuit. Aug. 30, 1974.

Page 238

Harry Zuckerman, Miami, Fla., for Austracan (U.S.A.) et al.

Frank J. Marston, Miami, Fla., for Refrigerated Express Line.

A. Dan Killian, Jr., Miami, Fla., for Central Cold Storage, Inc.

John H. Schulte, Miami, Fla., for Harrington & Co., Inc.

Myers, Kaplan, Porter, Levinson & Kenin, Miami, Fla., for Nat. Cold Storage.

Dixon, Dixon, Lane & Mitchell, Miami, Fla., for Maritime Fruit Carriers.

Reginald M. Hayden, Jr., Miami, Fla., for John Thallon & Co. et al.

Pallot, Poppell, Goodman & Shapo, Miami, Fla., for Borthwick & Sons.

Pozen, Pestcoe, Gold, Gold & Minsker, Miami, Fla., Watkins & Daniells, Atlanta, Ga., for Refrigerated Transport.

Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.

COLEMAN, Circuit Judge.

Finality is a condition of federal appellate review, so written into the first Judiciary Act. It has been departed from only when its observance would practically defeat the right to any review at all. From the very beginning, piecemeal disposition of what, for practical purposes, is a single controversy has been forbidden. See Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1939); 28 U.S.C. 1291 and 1292; F.R.Civ.P., Rule 54.

In recent years the decisions of this Court indicate a growing neglect of these principles among those who attempt to prosecute appeals from non-final district court action. We cite a few of the cases: Cook v. Eizenman, 5 Cir., 1963, 312 F.2d 134; Bailey v. Rowan Drilling Company, 5 Cir., 1971, 441 F.2d 57; International Harvester Credit Corporation v. Belding, 5 Cir., 1972, 462 F.2d 624; Foret v. McDermott, 5 Cir., 1973, 484 F.2d 992; State National Bank of El Paso v. United States, 5 Cir., 1974, 488 F.2d 890; Anderson v. Robinson, 5 Cir., 1974, 494 F.2d 45.

Premature appeals not only subject counsel to fruitless burdens but it has the same effect upon courts, with their crowded calendars and the duty to decide the many appeals of which it does have jurisdiction. Nor does this practice assist the client, who needs, and is entitled to, a final decision as speedily as reasonably possible.

For lack of finality, and for lack of a Rule 54(b) certificate, these appeals, brought by the various appellants, must be dismissed.

This appeal involves six different cases in the United States District Court for the Southern District of Florida. The record on appeal consists of six volumes. In each of the six cases the plaintiffs are allegedly the consigness of cargo carried on board the M/V 'LEMONCORE' from Australia and discharged in a non-designated port in Florida.

In each case the defendant-third party plaintiff, Refrigerated Express Line (REL), was the time charterer of the vessel. In each case Central Cold Storage (CCS), a Florida corporation, is named as one of several defendants. In

Page 239

five of the six cases Harrington, a Florida corporation engaged in stevedoring, is named as one of several defendants.

In each case plaintiffs allege a contract of carriage with REL and a deviation by REL in discharging the plaintiffs' cargo at ports not designated in the bill of lading, resulting in damage to plaintiffs by the cargo becoming lost, stolen, strayed, or otherwise damaged. None of the acts complained of by any of the plaintiffs are alleged to have occurred on navigable waters.

In four of the six cases the amended complaints were filed with leave to the plaintiffs to file second amended complaints and in each of them the plaintiffs abandoned their complaints against CCS and Harrington (Vols. I, III, IV, V). In the remaining two cases, the plaintiff Borthwick (Vol. VI) filed a second amended complaint against Harrington and CCS which was dismissed with prejudice (Vol. VI, pp. 58-59). No appeal was taken by Borthwick from that dismissal.

In Bajalad a second amended complaint was filed (Vol. II), which defendants CCS and Harrington moved to dismiss for failure to state a claim upon which relief could be granted. The District Court granted this motion, dismissing Bajalad's complaint as to two but not all the parties.

In each of the six volumes involved, defendant REL filed third party complaints against Harrington and CCS. REL's appeal is based on the District Court's order of dismissal with prejudice of REL's third party complaints against Harrington and CCS (Vol. I, p. 106).

As to plaintiff-appellant Austracan, the...