Miskiewicz v. Goodman

• Decision Date: 02 February 1965
• Docket Number: No. 9426.,9426.
• Parties: Edward J. MISKIEWICZ, t/a Maryland Marina, George P. Kopack, George Matthews and Lee O. Akers, Appellees, v. Ronald H. GOODMAN, Claimant of YACHT #MD 1539 BB, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

341 F.2d 828 (1965)

Edward J. MISKIEWICZ, t/a Maryland Marina, George P. Kopack, George Matthews and Lee O. Akers, Appellees, v. Ronald H. GOODMAN, Claimant of YACHT #MD 1539 BB, Appellant.

No. 9426.

United States Court of Appeals Fourth Circuit.

Argued November 19, 1964.

Decided February 2, 1965.

Ronald H. Goodman, Baltimore, Md., pro se (Friedman & Goodman, Alvin E. Friedman and J. Frederick Smitzel, Jr., Baltimore, Md., on brief).

Samuel H. Guth, for appellees.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

PER CURIAM.

This is an appeal from an order of the United States District Court for the District of Maryland sitting in Admiralty. Appellant Goodman purchased a yacht and as a condition of sale the seller was to make substantial repairs to the vessel which were to be paid for by the seller from the proceeds of sale. Prior to the sale appellee, Miskiewicz, who had possession of the yacht, had libeled and caused it to be attached for money allegedly due him from the seller. When Goodman purchased the yacht he was unaware, even after inquiry, of the existence of the libel and attachment.

To do the work on the yacht as specified in the contract of sale, the seller employed Miskiewicz and the latter asked Kopack, Akers and Matthews to assist. The seller, apparently financially irresponsible, did not pay for this repair work and Miskiewicz demanded payment from Goodman. When Goodman refused to pay, Miskiewicz informed him of the earlier libel which Goodman then satisfied and took possession of the yacht. Soon thereafter Miskiewicz filed a libel for the cost of the repairs which he had performed under the contract with the seller. Kopack, Akers and Matthews filed intervening libels to cover their claims for repair work and the yacht was again attached. Goodman posted security and the boat was released to him.

Goodman filed a motion to dismiss the libels for lack of admiralty jurisdiction and for other reasons. The court treated the motion as one for summary judgment and in a memorandum filed July 10, 1963, denied the motion. Thereafter, additional pleadings were filed in the proceeding among which were in personam cross-libels by Goodman against Miskiewicz, Kopack, Akers and Matthews. The cross-libels in essence alleged that the repair work was improperly and negligently performed and in each instance claimed money damages in excess of the claims of Miskiewicz and the intervenors asserted in their libels.

Miskiewicz and Kopack filed exceptions to the cross-libels on the ground that the cross-libels were not cognizable in admiralty. By order of February 7, 1964, the court sustained the exceptions filed by Miskiewicz and Kopack, dismissed the cross-libels against them because of the lack of admiralty jurisdiction, denied Goodman's request for permission to amend the cross-libels and, on its own motion, dismissed the cross-libels against Akers and Matthews.¹ The court denied also the motions of Goodman to require Miskiewicz, Kopack, Akers and Matthews to provide security pursuant to General Admiralty Rule 50. Goodman filed notice of appeal from the order of February 7, 1964.²

We are met at the outset with a question raised as to our jurisdiction to entertain the appeal as it is contended that the order of February 7, 1964, is interlocutory and not appealable. Goodman contends that this court has jurisdiction to entertain this appeal by virtue of 28 U.S.C.A. § 1292(a) (3), which provides:

"(a) The courts of appeals shall have jurisdiction of appeals from:

* * * * * *

"(3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed;"

Not every interlocutory order is appealable under this provision, but only those which determine the "rights and liabilities" of the parties. Ore Navigation Corp. v. Thomsen, 256 F.2d 447 (4 Cir. 1958); South Carolina State Highway Dept. v. The Fort Fetterman, 236 F.2d 221 (4 Cir. 1956). It is contended by appellees that the order dismissing the cross-libels for lack of admiralty jurisdiction does not fall within the limited class of interlocutory orders appealable under this subsection. We agree.

We have found no case, and none has been called to our attention, which has considered the appealability of an order dismissing a cross-libel since the statute allowing interlocutory appeals was enacted in 1926. In Koch-Ellis Marine Contractors, Inc. v. Phillips Petroleum Co., 219 F.2d 520 (5 Cir. 1955), a cross-libel was dismissed because it was non-maritime, but the interlocutory order was not appealed. On appeal from the final order the court stated in a footnote:

"The allegations in the cross-libel come nearer to pleading a contract, but no effective appeal was, or could have been, taken from the action of the court in dismissing this claim of the cross-libel." (Footnote 5 at page 523; emphasis added).

No reasons were given for the statement and we do not deem it persuasive authority for the disposition of the present appeal. In Bowker v. United States, 186 U.S. 135, 22 S.Ct. 802, 46 L.Ed. 1090 (1902), decided before the statute allowing interlocutory appeals in admiralty was enacted, the Court held that an order dismissing a cross-libel was not final and therefore not appealable.

The appealability of numerous types of interlocutory orders in admiralty has been considered by the courts. An examination of these decisions shows that courts have construed the phrase, "determining the rights and liabilities of the parties," to mean the determination of substantive rights. As stated by the court in Rogers v. Alaska S. S. Co., 249 F.2d 646 (9 Cir. 1957), at page 649:

"The `rights and liabilities\' referred to in the above subsection are substantive in nature — not adjective, tactical, or procedural. * * *."

This principle has been applied in the following cases where appeals have been allowed: Ryan Stevedoring Co. v. United States, 175 F.2d 490 (2 Cir. 1949); Rice Growers Ass'n of Cal. v. Rederiaktiebolaget Frode, 171 F.2d 662 (9 Cir. 1948); Benevento v. United States, 160 F.2d 487 (2 Cir. 1947); Barbarino v. Stanhope S. S. Co., 151 F.2d 553 (2 Cir. 1945). Other courts have interpreted the phrase, "determining the rights and liabilities of the parties," to mean a decision of the merits of the controversy between the parties. Allen N. Spooner & Son, Inc. v. Connecticut Fire Ins. Co., 297 F.2d 609 (2 Cir. 1962); Eagle of Gloucester, Inc. v. Consolidated Fisheries, Inc., 268 F.2d 555 (1 Cir. 1959); St. Louis Shipbuilding & Steel Co. v. Petroleum Barge Co., 249 F.2d 905 (8 Cir. 1957); Rogers v. Alaska S. S. Co., 249 F.2d 646 (9 Cir. 1957); In re Wills Lines, 227 F.2d 509 (2 Cir. 1955); Emerick v. Lambert, 187 F.2d 786 (6 Cir. 1951). The decisions in Medomsley Steam Shipping Co. v. Elizabeth River Terminals, Inc., 317 F.2d 741 (4 Cir. 1963), and South Carolina State Highway Dept. v. The Fort Fetterman, 236 F.2d 221 (4 Cir. 1956), indicate this court's acceptance of such interpretation. The position 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 ...