LA NACIONAL PLATANERA, v. North American F. & SS Corp.

• Decision Date: 27 August 1936
• Docket Number: No. 8034.,8034.
• Citation: 84 F.2d 881
• Parties: LA NACIONAL PLATANERA, S. C. L., v. NORTH AMERICAN FRUIT & STEAMSHIP CORPORATION.
• Court: U.S. Court of Appeals — Fifth Circuit

84 F.2d 881 (1936)

LA NACIONAL PLATANERA, S. C. L., v. NORTH AMERICAN FRUIT & STEAMSHIP CORPORATION.

No. 8034.

Circuit Court of Appeals, Fifth Circuit.

July 23, 1936.

Rehearing Denied August 27, 1936.

Harry H. Smith, of Mobile, Ala., and Chas. T. Madison, of New Orleans, La., for appellant.

C. C. Inge, of Mobile, Ala., and Selim B. Lemle, of New Orleans, La., for appellee.

Before FOSTER, SIBLEY, and HOLMES, Circuit Judges.

FOSTER, Circuit Judge.

This is an appeal from a decree entered on the petition of appellant, plaintiff below, filed in a pending suit, praying for an order directing the parties to proceed according to a clause in the contract declared on, providing for arbitration and to stay the cause pending the result of the arbitration.

The record is unsatisfactory, but the following sufficiently appears: The action is at law to recover damages of some $20,000 for breach of a charter party, by which plaintiff hired the steamship Venator from appellee, defendant below. We will hereafter refer to the parties as they appeared in the District Court. The declaration in three counts discloses a cause of action as follows:

The vessel was represented as having a carrying capacity of approximately 20,000 bunches of bananas. Relying on that, plaintiff assembled a cargo of 14,900 bunches of bananas at Port of Mexico, on December 1, 1931, but the ship could take only 9,675, and the rest of the cargo was left on the dock, rotted, and became a total loss. The charterer had appointed an incompetent master. After the vessel was loaded he declined to put to sea promptly, without justifiable cause, with the result that the delay caused the cargo to become worthless and a total loss.

The suit was begun promptly by filing an affidavit in a state court of Alabama for an attachment, on the ground of nonresidence of the defendant, on December 26, 1931, but thereafter proceeded in a very leisurely manner. The complaint was not filed until March 17, 1932. On April 15, 1932, the suit was removed to the federal court by defendant. On June 10, 1932, demurrers to the complaint were filed, raising purely technical questions, none touching arbitration, and, so far as the record discloses, there has been no action on the demurrers and no further pleadings were filed by defendant. Nearly three months thereafter, on September 2, 1932, plaintiff moved to remand the cause to the state court. Apparently no action was taken on this motion until it was argued and submitted on May 27, 1935, nearly three years later. The motion was denied on June 5, 1935. Five months later, on November 5, 1935, plaintiff for the first time asked that the dispute be submitted to arbitration, under the provisions of a clause in the charter party which, so far as necessary to quote, is as follows: "That should any dispute arise between Owners and Charterers, the matters in dispute shall be referred to three persons in New Orleans, one to be appointed by each of the parties hereto, and the third by the two so chosen; their decision, or that of any two of them, shall be final and for the purpose of enforcing any award, this agreement may be made a rule of Court."

On December 3, 1935, the following order was entered by the District Court: "It is ordered and adjudged by the court that the prayer for the appointment of arbitrators as prayed for be, and the same is, overruled."

We are not advised by anything in the record as to the reasons of the court for entering the order.

It is suggested by defendant that there was neither a final judgment in the District Court nor an appealable interlocutory order; therefore, this court is without jurisdiction to entertain the appeal.

The case is...