Cummings v. Redeeriaktieb Transatlantic
| Decision Date | 12 March 1957 |
| Docket Number | No. 12007.,12007. |
| Citation | 242 F.2d 275 |
| Parties | Eugene CUMMINGS v. REDEERIAKTIEB TRANSATLANTIC, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Eugene H. Lippman, Philadelphia, Pa. (T. E. Byrne, Jr., Krusen, Evans & Shaw, Philadelphia, Pa., on the brief), for appellant.
Martin J. Vigderman, Philadelphia, Pa. (Joseph Weiner, Freedman, Landy & Lorry, Philadelphia, Pa., on the brief), for appellee.
Before GOODRICH, KALODNER and HASTIE, Circuit Judges.
Decided Sur Petition For Rehearing March 12, 1957.
The appellee, Cummings, has petitioned for rehearing following the filing of our opinion on January 23, 1957. Our judgment reversed the trial court which in turn had refused to dismiss the part of a libel based upon a claim of unseaworthiness.
The appellee now suggests, with apologies for raising the question now for the first time, that the court had no jurisdiction. He need not apologize; the jurisdictional point is always open and the court should be alert to it whether counsel notes it or not.
We are constrained to agree that there is no jurisdiction in this case. The statute involved is 28 U.S.C. § 1292 (3). This provides for an appeal from an interlocutory decree in admiralty "determining the rights and liabilities of the parties * * *." The purpose of this amendment 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:
Both courts and text writers agree that this is correct. The Maria, 2 Cir., 1933, 67 F.2d 571; In re Wills Lines, Inc., 2 Cir., 1955, 227 F.2d 509; South Carolina State Highway Department v. The Fort Fetterman, 4 Cir., 1956, 236 F.2d 221; 4 Benedict, Admiralty § 555 (6th ed. 1940); 6 Moore, Federal Practice ¶ 54.065 (2d ed. 1953).
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United States v. New York, New Haven & Hartford R. Co.
...129 F.2d 227, 236-237, 148 A.L.R. 841, certiorari denied, 1942, 317 U.S. 672, 63 S.Ct. 76, 87 L.Ed. 539; Cummings v. Redeeriaktieb Transatlantic, 3 Cir., 1957, 242 F.2d 275, 276. Here, however, the question was not raised until after a petition for rehearing had been denied and our judgment......
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COMPLAINT OF NAUTILUS MOTOR TANKER CO., LTD.
...appeal under 28 U.S.C. § 1292(a)(3). See Kingstate Oil v. M/V Green Star, 815 F.2d 918, 921 (3d Cir.1987), Cummings v. Redeeriaktieb Transatlantic, 242 F.2d 275, 276 (3d Cir. 1957). The purpose of § 1292 is to permit immediate appeal once a determination of liability has been made, in order......
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Kingstate Oil v. M/V Green Star, KUK-JE
...nor of appellant's defenses has been determined by the Order from which th[e] appeal is taken." See also Cummings v. Redeeriaktieb Transatlantic, 242 F.2d 275, 276 (3d Cir.1957); United States v. The Lake George, 224 F.2d 117, 119 (3d As noted above, appellants concede that the district cou......
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Miskiewicz v. Goodman
...of the Third Circuit appears to us to be in accord. In re Bave's Petition, 314 F.2d 335 (3 Cir. 1963); Cummings v. Redeeriaktieb Transatlantic, 242 F.2d 275 (3 Cir. 1957); United States v. The Lake George, 224 F.2d 117 (3 Cir. 1955). Some decisions appear to turn on the view that Section 12......