Isbell Enterprises, Inc. v. Citizens Casualty Co. of NY, 29278 Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JOHN R. BROWN
• Citation: 431 F.2d 409
• Parties: ISBELL ENTERPRISES, INC., Plaintiff, v. CITIZENS CASUALTY CO. OF NEW YORK, Defendant-Third Party Plaintiff-Appellant, v. MARINE MART, INC., Third Party Defendant-Appellee.
• Docket Number: No. 29278 Summary Calendar.,29278 Summary Calendar.
• Decision Date: 14 August 1970

431 F.2d 409 (1970)

ISBELL ENTERPRISES, INC., Plaintiff,
v.
CITIZENS CASUALTY CO. OF NEW YORK, Defendant-Third Party Plaintiff-Appellant,
v.
MARINE MART, INC., Third Party Defendant-Appellee.

No. 29278 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

August 14, 1970.

Gordon L. Briscoe, Harlingen, Tex., for appellant.

Eduardo R. Rodriguez, Benjamin S. Hardy, Brownsville, Tex., for Marine Mart, Inc.

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Before JOHN R. BROWN, Chief Judge, and MORGAN and INGRAHAM, Circuit Judges.

JOHN R. BROWN, Chief Judge:

"Touching the Adventures and Perils which we, the said Underwriters, are contented to bear and take upon us, they are of the Seas, Men-of-War, Fire, Lightning, Earthquake, Enemies, Pirates, Rovers, Assailing Thieves, Jettisons, Letters of Mart and Counter-Mart, Surprisals, Takings at Sea, Arrests, Restraints, and Detainments of all Kings, Princes and Peoples, of what nation, condition or quality soever, Barratry of the Master and Mariners and of all other like Perils, Losses and Misfortunes that have or shall come to the Hurt, Detriment or Damage of the said Vessel, &c., or any part thereof * * *." So goes the Marine Hull Insurance Policy. So goes also — really went — this case which began as a maritime action by Shipowner¹ against the Underwriter² for the constructive total loss of the fishing vessel Captain Cracker arising from actions by a crew member who, without authority, single-handedly took her to sea from under the very eyes of three Shipyard³ people. With all of the romance that the quaint language of a Hull Policy conjures up, it looked fairly certain that in this latter day we would have to determine whether a crew member, obviously under mental aberrations, whose condition was diagnosed as a schizophrenic reaction of the acute undifferentiated type, and whose pre-Odyssey behavior was characterized by a psychiatrist witness as a psychotic state, could have, as the District Court held, the "willfulness" associated with barratry of master or crew and if, strictly speaking, he did not, then whether such taking was within the coverage for "all other like perils, losses, and misfortunes".⁴

But this was not to be. For the Underwriter for its own good and sufficient reasons capitulated, paid off Shipowner's claim, to concentrate its attack on the District Judge's denial of recovery against Shipyard, impleaded as a defendant, F.R. Civ.P. 14,⁵ on the theory that as bailee, it had failed to redeliver or in any event was negligent. We affirm.

I.

Before getting to the merits we think it appropriate to update, perhaps for the last time,⁶ the Court's experience in judicial screening of cases which includes as a major element the disposition of a case as a class Summary II on the briefs without oral argument.⁷ The system was instituted on December 13, 1968. Thus our experience covers nearly two years and full statistical data is available for the 18 months comprising the last half of FY 1969⁸ and all of FY 1970.

The system and its operation are fully outlined in Murphy and Huth (see note

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6, supra). The procedure continues to work with increasing judicial efficiency. As the figures reflect there has been a substantial increase in the number and percentage of cases classed as Summary II for disposition without oral argument. From 32.7% for FY 1969 this has increased to 38.1% for the full FY 1970. There has likewise been a slight percentage increase of 3% in class III (limited argument) with a sharp decline of 8% in Class IV.⁹

As the classification undoubtedly is affected to some extent by the nature of the cases making up our docket from time to time, it is interesting to see some rather marked changes in a relatively short space of time. Although the percentage of direct criminal appeals has decreased in relation to the overall docket (see notes 10 and 12, infra) there has been a percentage increase in relation to the overall docket of 5.5% in habeas and § 2255 cases with a slight decrease of 1.7% in the civil cases.¹⁰ Of course, there is a spectacular numerical increase in the total docket year after year. See note 15.

Of great importance is the internal make-up by general type of the cases which were classed as Summary II and which comprised 32.7% and 38.1% respectively (see note 9, supra). Of the cases classed Summary II, direct criminal appeals have run from 26.8% to 29.0%. There has been an expected increase in the number of Summary II habeas corpus and § 2255 cases, but there has been a decrease of some 7.7% in Summary II civil cases for causes not readily identifiable.¹¹ But the percentage

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of the general types of cases making up the docket (see note 9, supra) or the percentage of particular types of cases (civil, criminal, etc.) classed as Summary II (see note 11, supra) does not tell the whole story about what is being accomplished. Thus of the 270 direct criminal appeals in FY 1970 (see notes 10 and 12, infra) 131 were classed Summary II (48.5%) in contrast to that of the first period, FY 1969, when, out of 177 cases (see note 12, infra only 31.6% were classed Summary II. This means that approximately half of the direct criminal appeals are now being disposed of with no delay. As we pointed out in Huth (note 6, supra, 417 F.2d 529), shortening the time between conviction and final disposition in criminal cases is a matter of great public concern. And in this area the screening process accomplishes much since all delay between the last brief and the submission to a panel is avoided

Another area of great public concern is that of post-conviction cases. Although this category comprises but approximately 18% of the whole docket (see note 10, supra) out of the 216 habeas and § 2255 cases 141, nearly 66% were classed Summary II (see note 12, infra). But expedited disposition is not limited to such cases. For example in the civil cases over 24% of private civil, 27% of tax, 37% admiralty, and 30% U. S. civil cases were classed Summary II (see note 12, infra).

Although, as indicated, there are shifts in the internal make-up of the docket and in the nature of cases classed Summary II, this system continues to operate with an across-the-board-even-handedness over the full spectrum of the Court's docket. This includes civil cases of all kinds along with direct criminal appeals and post-conviction habeas corpus and § 2255 matters.¹²

And for a like period this has accounted for a substantial number of

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opinions approximately a fourth of which are signed.¹³

Of course the need to explore all procedures with inventive judicial resourcefulness continues. As reflected in NLRB v. Amalgamated Clothing Workers of America, 5 Cir., 1970, 430 F.2d 966 Part I, outlining the Court's reasons for adopting Rule 21 for affirmance without opinion, the volume of new cases already exceeds even very recent projections¹⁴ so that for the Fifth Circuit¹⁵ and many of the other Courts of Appeals¹⁶ the outlook is portentous.

Our own experience has borne out our hopes and convictions that judicial screening would be a workable, fair method which would markedly increase our output and enable us to at least keep abreast of this flood tide.¹⁷ The system has so far successfully passed muster on review in cases directly attacking the procedure of classification and disposition as Summary II on briefs without oral argument.¹⁸

Because of its widespread use — in numbers of cases, numbers of opinions and percentages covering the full spectrum

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of this Court's business — we do not think there will be any need further to alert the Bar and others to the existence or operation of the system and its results

With the continuance of standardized editorial headnotes in the published reports indicating for both civil and criminal cases that the summary calendar classification is a judicial determination that oral argument is not required,¹⁹ we do not think it is any longer necessary for each Summary II opinion, either in the text or by footnote, to contain the statement long employed,²⁰ or shortened variations of it.

For the future we will follow a simplified procedure by which the published opinion will simply bear the caption "Summary Calendar".²¹ Without more — by note or text — this will amount to a shorthand incorporation of the statements, reasons and explanatory comments found in Murphy, Huth and this case for the use of Summary II disposition.

Part II

On January 11, 1968 Shipowner delivered F/V Captain Cracker to Shipyard for some small repairs which could be done afloat. She was moored outside of, and made fast by two lines to, M/V Barto II, with a spring line running across M/V Barto II onto the dock. On arrival, the shifting crew and all others then aboard left F/V Captain Cracker except Estrada, a crew member serving as a shrimp header. He was allowed, but not required, to stay aboard. While aboard he was expected only to pump the vessel as needed and "guard" it since no watchman was at the yard. He had no authority to navigate or move the vessel. Shipyard permitted crew members to remain aboard but Zimmerman (note 3, supra) had no knowledge of Estrada's presence.

By evening of January 11 the inside welding being done by the Hurtados, Padre y hijo, was completed. With the expectation of returning next morning to weld the patches on the outside of the hull, the Hurtados left their welding tools, cables, etc. inside the lazeret of the vessel with electric cables, lines etc. running out through ports across the deck of F/V Captain Cracker, and M/V Barto II to a welding machine on the dock. During that afternoon, Hurtados Sr. observed Estrada pacing about the deck, and both father and son testified they thought that Estrada was acting "deranged".

431 F.2d 415

During...