Pride Shipping Corp. v. Tafu Lumber Co.

• Decision Date: 19 March 1990
• Docket Number: No. 88-4273,88-4273
• Citation: 898 F.2d 1404
• Parties: PRIDE SHIPPING CORPORATION, Plaintiff-Appellant, v. TAFU LUMBER COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1404

898 F.2d 1404

1990 A.M.C. 1256

PRIDE SHIPPING CORPORATION, Plaintiff-Appellant, v. TAFU LUMBER COMPANY, Defendant-Appellee.

No. 88-4273.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 7, 1989.

Decided March 19, 1990.

Robert N. Windes, LeGros, Buchanan, Paul & Whitehead, Seattle, Wash., for plaintiff-appellant.

Stephen C. Smith, Lane Powell Moss & Miller, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before CANBY, WIGGINS and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Pride Shipping Corp. ("Pride") filed this action in admiralty against Tafu Lumber Company ("Tafu"). The action was based upon a claim that Tafu had, among other things, improperly allowed a ship owned by Pride to sustain damage after it was chartered to Tafu. Pride obtained an attachment of the bunkers of another ship chartered by Tafu, which it found within the Western District of Washington. It did so for the purported purpose of obtaining jurisdiction over Tafu in that district. At a post-attachment hearing the district court ordered release of the attachment, because Tafu claimed to be within the district, agreed to accept service, and agreed to make a general appearance. Pride did not obtain a stay of that order, but filed this appeal from it.

We dismiss the appeal on grounds that the issue is now moot, even though we otherwise have jurisdiction.

BACKGROUND FACTS

Pride is a Greek corporation which owns the M/V Oinoussian Pride. It chartered that to Tafu. Tafu is a Hong Kong corporation. It claims that it has operated through TAT USA, Inc. in Everett, Washington since 1983. Tafu is in the business of exporting wood products and lumber from the United States to countries in East Asia. It negotiates charters for vessels, while TAT USA, Inc. negotiates the purchase and sale of cargo.

While the M/V Oinoussian Pride was under charter to Tafu, it encountered Typhoon Agnes and sustained damage. It was repaired, whereupon Pride demanded that Tafu post a $1,000,000 bond to cover the damage to the vessel. Tafu refused and, pursuant to the provisions of the charter, demanded arbitration in London, England. For its part, Pride filed an action in the English High Court of Justice. Arbitration was instituted in London. Pride also filed an action in the Southern District of Alabama and seized the bunkers of another vessel.

Not being content with these actions, Pride learned that Tafu owned bunkers on the M/V Nova Eagle which was at the Port of Olympia, Washington. That is within the territory covered by the United States District Court for the Western District of Washington. Purporting to have exercised due diligence, Pride claimed it could not locate Tafu within that district. It thereupon applied for and obtained a writ of attachment of those bunkers pursuant to Federal Rule of Civil Procedure Supplemental Rules for Certain Admiralty and Maritime Claims B(1) ("Rule B(1)").

The attachment was levied on October 6, 1988, and on October 7, 1988 Tafu moved to vacate that attachment. The district court heard the motion that day, and ordered the vacation. In so doing, the district court found that even if Pride had exercised due diligence (a fact to which Tafu stipulated for the purposes of that hearing only), since Tafu was either located within the district or could be served once counsel and a Tafu representative had agreed to accept service of process, the attachment should be dissolved. Pride then asked if the district court would certify the issue for appeal, and the district court said, among other things, that it would not. The court said, "There are some specific requirements to get a stay that have to be met. I can't recite them off the top of my head, but they are in the Rules." The court then declared that its order was effective forthwith.

The M/V Nova Eagle departed two days later, along with its bunkers, which have been used up by now. On October 14, 1988, Pride finally got around to asking for an order granting a stay. That was denied. The court noted that Pride did not even request the setting of a supersedeas bond at that time. In the meantime, Tafu had accepted personal service and had entered its general appearance in the action. That was on October 11, 1988. This appeal was noticed on October 14, 1988.

Tafu claims that Pride has attempted to appeal from a unappealable order, and that this court, therefore, does not have jurisdiction. It also claims that the attachment issue is now moot.

STANDARD OF REVIEW AND CONSIDERATION OF JURISDICTIONAL AND

MOOTNESS ISSUES

We review findings of fact made by the district court for clear error. United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). To the extent that the district court made factual determinations regarding the presence of Tafu within the district, the clearly erroneous standard applies. Oregon v. Tug GO GETTER, 398 F.2d 873, 874 (9th Cir.1968).

We review questions of law de novo. United States v. McConney, 728 F.2d at 1201.

Questions of our own jurisdiction on appeal are issues on which we exercise our own independent judgment. See Stevedoring Servs. of Am. v. Ancora Transport., N.V., 884 F.2d 1250, 1252 (9th Cir.1989).

APPELLATE JURISDICTION ¹

In general, we do not have jurisdiction to consider a decision of the district court when no final judgment has been entered and the district court has refused to certify the issue to us. See 28 U.S.C. Sec. 1291 and 28 U.S.C. Sec. 1292(b). See also Fed.R.Civ.P. 54(b). This salutary rule fosters the principle that piecemeal appeals are inappropriate, since they can add delay and expense to proceedings, while calling upon appeals courts to decide issues that ultimately need not have been decided at all. See generally 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Secs. 3905-3919 (1976).

An exception to this rule is the collateral order doctrine, which was outlined by the Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). Under that doctrine, an order may be reviewed if it "appears to fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546, 69 S.Ct. at 1225-26. As the Court stated in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) (citations omitted), in order to come within that small class, "the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment."

We must determine whether orders vacating Rule B(1) attachments fall within that small class, when personal jurisdiction is later obtained through a general appearance. ² The Supreme Court went a long way toward answering this question when it decided Swift & Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1950). In Swift, the plaintiff filed a libel in personam and obtained quasi in rem jurisdiction over the defendants by attaching a vessel which the defendants, or one of them, owned. One defendant, Transmaritima, had purported to transfer the vessel to the other defendant, Del Caribe, and plaintiffs alleged that the transfer was in fraud of creditors. After the attachment was levied, Transmaritima made an appearance, as did Del Caribe. They raised issues regarding the merits of the claim. Transmaritima also asked for a limitation of its liability, and Del Caribe claimed that the transfer was not fraudulent. See Swift & Co. Packers v. Compania Colombiana Del Caribe, 175 F.2d 513, 515 (5th Cir.1949), rev'd, 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1950). While the matter is not entirely clear, the courts do not seem to have treated these appearances as being general appearances. Upon motion of the defendants, the district court issued an order vacating the attachment. The court of appeals affirmed. The Supreme Court granted review and first considered the question of its own jurisdiction over the appeal of the order, since a final judgment had not yet issued in the case. It declared that the order on the motion was squarely within the reasoning of Cohen. As the Court noted:

Appellate review of the order dissolving the attachment at a later date would be an empty rite after the vessel had been released and the restoration of the attachment only theoretically possible.... Under these circumstances the provision for appeals only from final decisions in 28 U.S.C. Sec. 1291 should not be construed so as to deny effective review of a claim fairly severable from the context of a larger litigious process....

Swift, 339 U.S. at 689, 70 S.Ct. at 865 (citations omitted).

We have taken the same position. See Stevedoring Servs. of Am. v. Ancora Transp., N.V., 884 F.2d at 1252; Polar Shipping Ltd. v. Oriental Shipping Corp., 680 F.2d 627, 630 (9th Cir.1982). See also Interpool Ltd. v. Char Yigh Marine (Panama), S.A., 890 F.2d 1453, 1457-58 (9th Cir.1989). These cases may, at first blush, seem to dispose of the issue, but Tafu asserts that they dealt with situations where jurisdiction was, and continued to be, quasi in rem, so that release of the attachment would moot the whole case. Thus, so the argument goes, appealability was proper since the district court order was fatal in those cases, but a different result should obtain when a general appearance has been made. We disagree.

It is certainly clear enough that both Stevedoring Servs. of Am. and Polar Shipping Ltd. were quasi in rem cases, and it is probable that Swift...