Bancroft Nav. Co. v. Chadade Steamship Co., 448

• Decision Date: 29 July 1965
• Docket Number: Dockets 29388,449,No. 448,29389.,448
• Citation: 349 F.2d 527
• Parties: BANCROFT NAVIGATION COMPANY, Ltd., Libelant-Cross Respondent-Appellee, v. CHADADE STEAMSHIP CO., Inc. and the S.S. YARMOUTH CASTLE, her engines, etc., Respondents-Cross Libelant-Appellant, v. CARIBBEAN CRUISE LINES, INC., John E. Smith, Jr. and Passage Monies of the S.S. Yarmouth Castle, Respondents.
• Court: U.S. Court of Appeals — Second Circuit

349 F.2d 527 (1965)

BANCROFT NAVIGATION COMPANY, Ltd., Libelant-Cross Respondent-Appellee, v. CHADADE STEAMSHIP CO., Inc. and the S.S. YARMOUTH CASTLE, her engines, etc., Respondents-Cross Libelant-Appellant, v. CARIBBEAN CRUISE LINES, INC., John E. Smith, Jr. and Passage Monies of the S.S. Yarmouth Castle, Respondents.

Nos. 448, 449, Dockets 29388, 29389.

United States Court of Appeals Second Circuit.

Argued April 30, 1965.

Decided July 29, 1965.

Morton Zuckerman, New York City (Dunn & Zuckerman, New York City, on the brief), for libelant-cross respondent-appellee.

William E. Fuller, New York City (Downing & Fuller, New York City, on the brief), for respondents-cross libelant-appellant.

Before LUMBARD, Chief Judge, and FRIENDLY and MARSHALL, Circuit Judges.

LUMBARD, Chief Judge:

Chadade Steamship Co. appeals from orders of the Southern District of New York relating to the posting of security on a cross-libel. We find that the decisions on the motions are not appealable and, therefore, we dismiss Chadade's appeal.

On July 30, 1964, Bancroft Navigation Co. filed a libel against Chadade for an alleged breach of a charter party for Chadade's ship, the S.S. Yarmouth Castle and attached the ship by process of foreign attachment. Chadade secured the release of the vessel by substituting a $100,000 bond.

Thereafter, Chadade filed a cross-libel against Bancroft alleging breach of the same charter party.¹ Pursuant to Admiralty Rule 50,² Chadade moved that Bancroft be required to post cross-security in the amount of the claim against it, $300,000, and, pending the posting of the bond, that either the proceeding be stayed or Chadade's security be cancelled. In defense, Bancroft pleaded that it was insolvent. After oral argument and the submission of affidavits, Judge Tenney decided, in an order entered September 14, 1964, that Bancroft should post security in the amount of $50,000, and that failing to post such a bond, Chadade's security would be reduced from $100,000 to $50,000. When Bancroft failed to post the cross-security on September 23, 1964, he ordered that Chadade's security be reduced to $50,000, pursuant to Admiralty Rule 8, with leave granted to Chadade to apply a further reduction or cancellation of said security for due cause shown. Such an application to cancel security was made on October 23 and denied on October 29.

Chadade filed a notice of appeal on November 9, 1964, seeking review of the orders entered on "September 23, 1964 and October 29, 1964." Omitted, apparently through inadvertence, was the order of September 14, 1964. However, the order of September 23 did specifically refer to the order of September 14.

The appeal from the order of September 23, which reduced Chadade's security pursuant to the order of September 14, does not raise the issue Chadade asks this court to consider, namely the propriety of Judge Tenney's failure to order cancellation of Chadade's entire bond in the event that Bancroft did not post a bond to secure the full amount of Chadade's cross-libel. Whether or not the October 29 order raises that question is at least dubious; one may doubt that Judge Tenney's leave to renew preserved for future consideration the central issue decided on September 14, absent new proof or changed circumstances.

However, we will not narrowly construe the notice of appeal so as to preclude a review of the September 14 order.

The requirement of Rule 73 (b) of the Federal Rules of Civil Procedure³ that the notice of appeal "shall designate the judgment or part thereof appealed from" serves as "a means of identification, and not as a step in appellate pleading." Franks v. United States Lines Co., 324 F.2d 126, 127 n. 1 (2 Cir. 1963); Val Marine Corp. v. Costas, 256 F.2d 911, 916 (2 Cir. 1958). Under the circumstances specification of the September 23 order in the notice of appeal could hardly have conveyed anything to Bancroft other than Chadade's unwillingness to accept the underlying September 14 decision. Bancroft was not misled by the notice of appeal, and, in fact, was put on notice of the issues to be raised by Chadade. See Holz v. Smullan, 277 F.2d 58, 61 (7 Cir. 1960). Furthermore, the notice of appeal, filed on November 10, 1964, was filed within ninety days of the September 14 order as required by 28 U.S.C. § 2107.⁴ Compare Gunther v. E. I. Du Pont De Nemours & Co., 255 F.2d 710 (4 Cir. 1958).

We turn now to Bancroft's alternative argument, that the decisions of the district court do not constitute "final decisions" and hence are not appealable under 28 U.S.C. § 1291. We agree.

In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949), the Supreme Court held that a review of the order relating to security would come too late if it awaited termination of the litigation in the district court, as it would be

"Too late effectively to review the present order and the rights conferred by the statute providing for security, if applicable, will have been lost, probably irreparably. * * * This decision appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated."

The order was held appealable. See also, Swift & Co. Packers v. Compania Del Caribe, 339 U.S. 684, 688-689, 70 S.Ct. 861, 94 L.Ed. 1206 (1950).

After its discussion of the "collateral order" doctrine, the Court in Cohen went on to point out that not

"every order fixing security is subject to appeal. Here it is the right to security that presents a serious and unsettled question. If the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to reconsideration from time to time, appealability would present a different question." 337 U.S. at 547, 69 S.Ct. at 1226.

The security cases considered on appeal by the Supreme Court before final decision on the merits have revolved about issues concerning the power of the district court to render its decision, as distinct from the propriety of its exercise of discretion. For example, in Cohen the substantive issue was whether the New Jersey statute requiring security of certain stockholders bringing a derivative action, was to be applied in a federal court, under the Erie doctrine. In Washington-Southern Nav. Co. v. Baltimore & Philadelphia Steamboat Co., 263 U.S. 629, 44 S.Ct. 220, 68 L.Ed. 480 (1924), the issue was the proper interpretation of amended Admiralty Rule 50 as to when a stay could be granted on the failure of a libelant to post security in response to a counterclaim in an in personam action. In Swift & Co. Packers, supra, the issue was whether the district court had the power to determine whether the transfer of the vessel attached was fraudulent and hence whether the attachment was properly vacated.⁵

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