Calmaquip Engineering West Hemisphere Corp. v. West Coast Carriers Ltd., Nos. 79-2926

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore KRAVITCH and THOMAS A. CLARK; THOMAS A. CLARK
Citation650 F.2d 633
PartiesCALMAQUIP ENGINEERING WEST HEMISPHERE CORPORATION, Plaintiff-Appellee, v. WEST COAST CARRIERS LTD., Farovi Shipping Corp., and the M/V "Fortune Carrier", her engineer, tackle, Etc., Defendants, West Coast Carriers, Ltd., Defendant-Appellant. . Unit B
Decision Date13 July 1981
Docket NumberNos. 79-2926,79-3248

Page 633

650 F.2d 633
1984 A.M.C. 839
CALMAQUIP ENGINEERING WEST HEMISPHERE CORPORATION, Plaintiff-Appellee,
v.
WEST COAST CARRIERS LTD., Farovi Shipping Corp., and the M/V
"Fortune Carrier", her engineer, tackle, Etc., Defendants,
West Coast Carriers, Ltd., Defendant-Appellant.
Nos. 79-2926, 79-3248.
United States Court of Appeals,
Fifth Circuit.
Unit B
July 13, 1981.

Page 634

Richard F. Ralph, Miami, Fla., for defendant-appellant.

Smathers & Thompson, Rodney Earl Walton, Miami, Fla., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Florida.

Before KRAVITCH and THOMAS A. CLARK, Circuit Judges, and LYNNE *, District Judge.

THOMAS A. CLARK, Circuit Judge:

This is a consolidated appeal from the grant of summary judgment in favor of

Page 635

plaintiff below, Calmaquip Engineering West Hemisphere Corp. (the "shipper"), in an admiralty action for cargo damage brought under the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1300 et seq. Appellant, West Coast Carriers Ltd. (the "carrier"), objects to the $40,917.07 awarded to Calmaquip for cargo damage sustained during carriage from the port of Miami to the Panamanian port of Las Minas and the inland destination of Tocumen. We affirm.

In January, 1977, West Coast Carriers agreed to transport seven airport loading bridges, disassembled into fifty parts, pursuant to a bill of lading that directed delivery to a new international airport at Tocumen, Panama. 1 Calmaquip delivered the cargo to the carrier's stevedore at Dodge Island, Florida, between February 8 and February 15, 1977, specifically directing the carrier's agent to ship the cargo below deck. The bill of lading also specified below deck storage.

The bridges had been prepared for shipment by the manufacturer, Wollard Aircraft, and sprayed with an oil base coating designed to protect against salt air and salt water damage. The open sections of the bridges were capped with plywood and caulked, and lifting eyes had been attached to the plywood caps in order to facilitate unloading. The airport loading tunnels had been cut into forty-foot modules in order to fit inside the ship's hold. The carrier received the cargo without exception and issued dock receipts for fifty pieces of cargo.

During carriage the carrier stored the bridges both above and below deck, and when the cargo was discharged at Las Minas on February 21, 1977, exceptions were noted by a person not identified by the parties, indicating that the cargo had been damaged. 2 On March 24, 1977, the cargo arrived at its inland destination of Tocumen. In addition to the carriage charges between Florida and Las Minas, the shipper paid West Coast Carriers $10,000 for the inland carriage. At Tocumen, engineer Antonio Oyarzun, project manager for the installation of the bridges, examined the cargo and determined that forty-three of the fifty pieces were damaged. He calculated that their repair would cost $40,917.07.

I.

Before turning to the merits of this appeal, it must be noted that this court technically has two consolidated cases before it on appeal. However, the two appeals are both taken from the same single district court case. Below, the district court granted summary judgment for the plaintiff-shipper on July 6, 1979. Summary judgment was entered in an order labeled "Order Granting Motion for Summary Judgment." For reasons that are not entirely clear from the record, the district court did not enter a separate judgment as required by Rule 58 of the Federal Rules of Civil Procedure until August 27, 1979. 3 However, before the final judgment was entered, the appellant, on August 3, 1979, noticed an appeal from the July 6 order that had granted summary judgment for the plaintiff-appellee. That "appeal" was docketed in this court as appeal No. 79-2926.

After the district court complied with Rule 58, the appellant, on September 14, 1979, filed a second notice of appeal which was docketed in this court as appeal No. 79-3248. The appellee, Calmaquip Engineering, has moved to dismiss the appellant's first appeal in this case, No. 79-2926. We agree that the first appeal must be dismissed.

This court has held previously that a ruling which grants a motion for summary judgment by itself is not an appealable order. Nunez v. Superior Oil Co., 535 F.2d 324 (5th Cir. 1976). There must also be strict mechanical compliance with the requirement

Page 636

of Rule 58 that the judgment be set forth on a separate document. United States v. Indrelunas, 411 U.S. 216, 93 S.Ct. 1562, 36 L.Ed.2d 202 (1973); Taylor v. Sterrett, 527 F.2d 856 (5th Cir. 1976); State National Bank of El Paso v. United States, 488 F.2d 890 (5th Cir. 1974). Here, at the time of the appellant's first notice of appeal, the district court had not yet entered its "Final Summary Judgment," the separate document required under Rule 58. Therefore, the appellant's appeal No. 79-2926 was premature and is hereby dismissed.

The premature first appeal did not, as the appellant suggests, divest the district court of its jurisdiction to enter the final judgment. As this court has held, "(t)he requirements of Rule 58 may be satisfied by the district court after an appeal is docketed." Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166, 1169 (5th Cir. 1980).

We emphasize, however, that by dismissing the appeal in No. 79-2926 the appellant suffers no prejudice as both appeals were taken from the same summary judgment order. Apparently, once the appellant realized that its first notice of appeal might be premature, it wisely chose to perfect another appeal after the entry of final judgment, heeding this court's advice in Markham v. Holt, 369 F.2d 940, 943 (5th Cir. 1966). The notice of the second appeal was filed within the appropriate time period after the final judgment was entered. We now turn to a consideration of the merits of that appeal.

II.

On appeal from the award of summary judgment in favor of the shipper, our inquiry must focus on whether the trial court erred in concluding that there were no contested issues of material fact. We find no error. Pursuant to local rule, plaintiff below filed a statement of material facts in support of its motion for summary judgment. Local Rule 10(J)(2) states:

Motions for summary judgment shall be accompanied by a memorandum of law, necessary affidavits, stamped addressed envelopes for notice, and a concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. The papers opposing a motion for summary judgment shall include a memorandum of law, necessary affidavits, and a concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried. All material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the opposing party's statement (emphasis added).

The plaintiff submitted a list consisting of ten material facts. The carrier contested only fact number four regarding the clarity of directions specifying below deck storage. Furthermore, the defendant submitted no alternative statement of facts.

The failure to contest Calmaquip's statement of facts prohibits appellant from contesting these facts for the first time on appeal. According to local rule 10(J)(2), any facts set forth on a motion for summary judgment are deemed admitted unless controverted by the opposing party's own statement of facts. The requirements of rule 10(J)(2) are mandatory and may not be waived. In United States v. Warren, 601 F.2d 471 (9th Cir. 1979), the Court of Appeals for the Ninth Circuit upheld a local rule providing that a failure to file a brief in opposition to a motion constituted a consent of the party failing to file. In so holding the court concluded that "(i)t is undisputed that district courts have the authority to 'prescribe rules for the conduct of their business' in any manner not inconsistent with the federal rules or Acts of Congress." 601 F.2d at 473 (citations omitted). 4

Page 637

In the instant case, because the carrier failed to contest the shipper's facts, we give no consideration to the carrier's contention that the deposition of Antonio Oyarzun lacks credibility. The sole basis for this contention is that Oyarzun stated that forty-three of the fifty pieces of cargo were damaged, whereas the carrier claims that only forth-nine pieces of cargo were shipped. West Coast's uncontested fact number six states that "dock receipts for 50 packages were issued"; consequently, that fact is deemed to have been admitted.

Neither can we seriously consider the defenses which the carrier raises involving "insufficiency of packaging" and "latent defects" in the cargo. See 46 U.S.C. § 1304(2)(n). The facts in the shipper's rule 10(J)(2) statement directly contradict these defenses, and furthermore the carrier failed to raise these defenses in its pleadings, its pre-trial order, or its memorandum in response to the shipper's motion for summary judgment. We will not take note of error raised for the first...

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58 practice notes
  • RR Village Ass'n, Inc. v. Denver Sewer Corp., No. 803
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 26, 1987
    ...of dismissal did not satisfy separate-document requirement); Calmaquip Engineering West Hemisphere Corp. v. West Coast Carriers Ltd., 650 F.2d 633, 635-36 (5th Cir.1981) (opinion entitled "Order Granting Motion for Summary Judgment" did not satisfy requirement); Caperton v. Beatri......
  • Meadowbriar Home for Children, Inc. v. Gunn, No. 94-20695
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 11, 1996
    ...for summary judgment by itself is not an appealable order." Calmaquip Eng'g West Hemisphere Corp. v. West Coast Carriers, Ltd., 650 F.2d 633, 635 (5th In the district court's second order of November 17, 1993, the district court does not make a finding of liability, nor does it award d......
  • Fortenberry v. Foxworth Corp., Civ. A. No. H90-0116(W).
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • June 9, 1993
    ...actions than fraud actions. Jensen v. Snellings, 841 F.2d 600, 606 (5th Cir.1988) (applied Louisiana blue sky law); White v. Sanders, 650 F.2d at 633 (applied Alabama blue sky law); Dupuy 825 F. Supp. 1284 v. Dupuy, 551 F.2d at 1023 n. 31 (applied Louisiana blue sky law). Additionally, in F......
  • In re World Access, Inc., Bankruptcy No. 01 B 14633.
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Illinois
    • April 22, 2005
    ...because party failed to raise them in compliance with the pre-trial order.); Calmaquip Eng. West Hemisphere Corp. v. West Coast Carriers, 650 F.2d 633, 637 (5th Cir.1981) (declining to consider defenses to summary judgment not raised in pleadings, pre-trial order, or memorandum in response ......
  • Request a trial to view additional results
58 cases
  • RR Village Ass'n, Inc. v. Denver Sewer Corp., No. 803
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • August 26, 1987
    ...of dismissal did not satisfy separate-document requirement); Calmaquip Engineering West Hemisphere Corp. v. West Coast Carriers Ltd., 650 F.2d 633, 635-36 (5th Cir.1981) (opinion entitled "Order Granting Motion for Summary Judgment" did not satisfy requirement); Caperton v. Beatri......
  • Meadowbriar Home for Children, Inc. v. Gunn, No. 94-20695
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • April 11, 1996
    ...for summary judgment by itself is not an appealable order." Calmaquip Eng'g West Hemisphere Corp. v. West Coast Carriers, Ltd., 650 F.2d 633, 635 (5th In the district court's second order of November 17, 1993, the district court does not make a finding of liability, nor does it award d......
  • Fortenberry v. Foxworth Corp., Civ. A. No. H90-0116(W).
    • United States
    • United States District Courts. 5th Circuit. Southern District of Mississippi
    • June 9, 1993
    ...actions than fraud actions. Jensen v. Snellings, 841 F.2d 600, 606 (5th Cir.1988) (applied Louisiana blue sky law); White v. Sanders, 650 F.2d at 633 (applied Alabama blue sky law); Dupuy 825 F. Supp. 1284 v. Dupuy, 551 F.2d at 1023 n. 31 (applied Louisiana blue sky law). Additionally, in F......
  • In re World Access, Inc., Bankruptcy No. 01 B 14633.
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Northern District of Illinois
    • April 22, 2005
    ...because party failed to raise them in compliance with the pre-trial order.); Calmaquip Eng. West Hemisphere Corp. v. West Coast Carriers, 650 F.2d 633, 637 (5th Cir.1981) (declining to consider defenses to summary judgment not raised in pleadings, pre-trial order, or memorandum in response ......
  • Request a trial to view additional results

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