Papanikolaou v. Atlantic Freighters

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation232 F.2d 663
PartiesEvangelos PAPANIKOLAOU, Appellant, v. ATLANTIC FREIGHTERS, Ltd., and S. Livanos Shipbrokers, Ltd., both foreign corporations or associations, as owners and/or operators of the Liberian SS Atlantic Coast, Appellees.
Decision Date09 April 1956

232 F.2d 663 (1956)

Evangelos PAPANIKOLAOU, Appellant,
ATLANTIC FREIGHTERS, Ltd., and S. Livanos Shipbrokers, Ltd., both foreign corporations or associations, as owners and/or operators of the Liberian SS Atlantic Coast, Appellees.

No. ____.

United States Court of Appeals Fourth Circuit.

Argued March 20, 1956.

Decided April 9, 1956.

232 F.2d 664

Charles R. Dalton, Jr., Norfolk, Va., in support of motion.

J. L. Morewitz, Newport News, Va., in opposition.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

This case comes before us on a motion of the owner of the Liberian Steamship Atlantic Coast, to docket and dismiss the appeal of Evangelos Papanikolaou from a final order of the District Court whereby exceptions on jurisdictional grounds to a libel for personal injuries filed by him were sustained and the suit was dismissed. The motion to docket and dismiss the appeal is based on the ground that it was not taken within the statutory period of ninety days for an appeal in admiralty provided by the statute. 28 U.S.C. § 2107.

The hearing on the exceptions to the libel took place on July 27, 1954. It was shown that the libellant was a native of Greece who had taken employment on the ship in England and that the ship was a Liberian vessel owned by a Panamanian corporation; that the injury occurred on board at Antwerp, Belgium and that the libellant was subsequently put ashore in England and was not in the United States. The case was heard by Judge Wilkin who declined jurisdiction on the grounds that the suit was between foreigners; that it arose out of occurrences abroad and did not involve any laws of the United States; and that no showing was made that the libellant could not obtain justice abroad. These reasons were set out in a memorandum opinion prepared and signed by the judge and filed on August 27, 1954, D.C., 140 F.Supp. 367. It concluded with the following words: "The exceptions are, therefore, sustained, and the suit dismissed." Thereafter, on September 16, 1954, Judge Wilkin in a paper designated "final order"

232 F.2d 665
referred to his memorandum opinion and decreed that the suit be dismissed

On September 20, 1954 the libellant filed a motion for rehearing which stated that it was filed to afford the libellant an opportunity to file an amended and supplemental libel and to introduce evidence to show that the court should exercise jurisdiction and also to require the respondent to present any evidence that might have bearing on the matter.

This motion for rehearing came up at a pretrial conference in October, 1954 before Judge Hoffman who advised the attorneys that the motion should be heard by Judge Wilkin. Neither party took any steps to bring the matter to Judge Wilkin's attention for more than a year. On October 25, 1955 the attorneys for libellant propounded extensive interrogatories to the respondents and on November 3, 1955 Judge Hoffman ordered that this matter be referred to Judge Wilkin for such action as he might deem proper. On November 8, 1955 Judge Wilkin, without further hearing, ordered that the motion for rehearing filed by libellant on September 20, 1954 and the interrogatories filed by him on October 25, 1955, be stricken from the files "because of the order of August 27, 1954, sustaining the exceptions of respondents to the jurisdiction and dismissing the case."

The libellant gave notice of appeal on January 5, 1956, that is, within the period of ninety days prescribed for appeal if Judge Wilkin's order of November 8, 1955 may be considered the final disposition of the case. We think it should be so considered for the following reasons. We hold in the first place that the order to which the motion for rehearing was directed was the order signed by Judge Wilkin on September 16, 1954. It is true that the concluding words of the memorandum opinion filed by him on August 27, 1954 directed the dismissal of the libel and that the date was used by him in his order of November 8, 1955 refusing to open the case; but, on the other hand, the judge deemed it necessary or desirable to file a formal judgment of dismissal, denominated "final order", on September 16, 1954 and consequently the attorneys for the libellant were justified in regarding this as the final judgment disposing of the case.

The motion for rehearing of September 20, 1954 was therefore within the period of ten days prescribed by the rules of the District Court and the applicable statutes. It is provided by Rule 59(b) of the Federal Rules of Civil Procedure, 28 U.S.C., that a motion for a new trial shall be served not later than ten days after the entry of judgment. The Federal Rules of Civil Procedure do not apply to proceedings in admiralty. See Rule 81(a) and Georgia Lumber Co. v. Compania, 323 U.S....

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6 cases
  • Miner v. Atlass, 156
    • United States
    • United States Supreme Court
    • June 20, 1960
    ...for rehearing may be filed should not bar a District Court from fixing such a time limit. See Papanikolaou v. Atlantic Freighters, 4 Cir., 232 F.2d 663, 665. Similarly, the General Admiralty Rules provide no answer to the question whether one sued for a certain sum, who contests his liabili......
  • Ribaudo v. Citizens National Bank of Orlando, 17204.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 26, 1958
    ...7 Cir., 1955, 222 F.2d 352; Segundo v. United States, 9 Cir., 1955, 221 F.2d 296; Papanikolaou v. Atlantic Freighters, Inc., 4 Cir., 1956, 232 F.2d 663; McConville v. United States, 2 Cir., 1952, 197 F.2d 680; Calvin v. Calvin, 1954, 94 U.S.App.D.C. 42, 214 F.2d Whether anything is gained b......
  • United States v. Schaefer Brewing Co, 79
    • United States
    • United States Supreme Court
    • April 7, 1958 taken as disapproving our reasoning.' Id., 240 F.2d at page 518. The Fourth Circuit's opinion in Papanikolaou v. Atlantic Freighters, 232 F.2d 663, also appears, in result at least, to be in conflict with the Second Circuit's opinion in the instant case. 1. See Leonard v. Prince Line, Lt......
  • Compania De Vapores Insco, SA v. Missouri Pacific R. Co., 15770.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • May 28, 1956 the walls, rotted and decayed conditions, etc., in his opinion, were "representative of the condition of the wharf before the storm." 232 F.2d 663 Blessey testified that he had made a study of the structure and the design of the Westwego warehouses, with particular reference to their abi......
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