Texaco, Inc. v. American Trading Transp. Co., Inc.

• Decision Date: 14 May 1981
• Docket Number: No. 80-3388,80-3388
• Citation: 644 F.2d 1152
• Parties: TEXACO, INC., Plaintiff-Appellee, v. AMERICAN TRADING TRANSPORTATION COMPANY, INC., etc., Defendant-Appellant. Summary Calendar. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1152

644 F.2d 1152

TEXACO, INC., Plaintiff-Appellee, v. AMERICAN TRADING TRANSPORTATION COMPANY, INC., etc.,

Defendant-Appellant.

No. 80-3388

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A

May 14, 1981.

Andrew T. Martinez, Robert J. Barbier, New Orleans, La., for defendant-appellant.

Robert B. Acomb, Jr., Grady S. Hurley, New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, POLITZ and TATE, Circuit Judges.

POLITZ, Circuit Judge:

American Trading Transportation Company, Inc. (American), appeals a judgment in favor of Texaco, Inc., staying arbitration pending the outcome of the instant litigation and denying a stay of the litigation pending the arbitration. ¹ We affirm the stay of the arbitration and dismiss the appeal of the order denying the stay of litigation.

In this litigation (and the pending arbitration) Texaco asserts claims for damages to its dock following a collision between the S/S BALTIMORE TRADER and the M/V THEODOHOS. It is alleged that the BALTIMORE TRADER, a vessel owned by American and under a time charter to Texaco, while departing its mooring at the Texaco dock on the Mississippi River near the "Sunshine" Bridge at Convent, Louisiana, failed to complete a port-hand turnabout and collided with the THEODOHOS which was also moored at the dock. This collision allegedly caused the THEODOHOS to strike the dock resulting in extensive damage to the structure.

Texaco filed suit in admiralty against the vessels and their owners/operators. American answered the complaint asserting a defense under Clause 55 of the Tanker Time Charter Party denominated "Arbitration." ² Texaco moved to stay the arbitration pending the litigation; American moved to stay the litigation pending the arbitration. As noted, the district judge entered an order staying the arbitration between Texaco and American and declined to stay the litigation. American appeals; Texaco moved to dismiss the appeal. A panel of this court ordered Texaco's motion carried with the case.

Appealable Order

Before addressing American's assignments of error, we first consider the question of appellate jurisdiction. Although the order appealed is entitled Final Judgment, it is interlocutory. It is not the type of final decision envisioned by 28 U.S.C. § 1291 which ordains: "The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts." Appellate jurisdiction over interlocutory orders is prescribed by 28 U.S.C. § 1292. Subsection (a)(1) of that statute provides that courts of appeals shall have jurisdiction of appeals involving interlocutory orders of the district courts "granting, continuing, modifying, refusing or dissolving injunctions."

In support of its contention that the district court order is non-appealable, Texaco invites our attention to decisions by our colleagues of the Second Circuit which hold that orders staying arbitration pending the outcome of litigation are not within the intendment of 28 U.S.C. § 1292(a)(1). See Diematic Mfg. Corp. v. Packaging Industries, Inc., 516 F.2d 975 (2d Cir.), cert. denied, 423 U.S. 913, 96 S.Ct. 217, 46 L.Ed.2d 141 (1975); AAACON Auto Transport, Inc. v. Ninfo, 490 F.2d 83 (2d Cir. 1974). We previously have dealt with one dimension of this question. In Firestone Tire & Rubber Co. v. International Union, Etc., 476 F.2d 603 (5th Cir. 1973), we found appealable an order denying a stay of litigation pending arbitration which enjoined a party from any proceedings, including arbitration, pending litigation. Firestone stands for the proposition that a stay order which enjoins other proceedings is an appealable interlocutory order. We recognize a lack of uniformity among the circuits on this point. See 9 Moore's Federal Practice § 110.20(4.-1).

Although we have not previously resolved the identical inquiry posited, there have been precedential harbingers. In Eastern Marine Corporation v. Fukaya Trading Co., 364 F.2d 80 (5th Cir.), cert. denied, 385 U.S. 971, 87 S.Ct. 508, 17 L.Ed.2d 435 (1966), presumptively we found appellate jurisdiction before deciding whether a stay of arbitration was providently granted. Subsequently in Wickes Corporation v. Industrial Financial Corporation, 493 F.2d 1173 (5th Cir. 1974), we held appealable, and then reversed, an order denying a motion to stay arbitration. We now hold that an order granting a stay of arbitration pending outcome of litigation is an appealable interlocutory order under 28 U.S.C. § 1292(a)(1). Texaco's motion to dismiss the appeal is denied.

Arbitration The Why & Where

American asserts that the order staying arbitration was erroneously entered for two reasons: (1) the dispute is one arising out of the Charter and thus must be arbitrated, and (2) the Charter provides that the arbitration is to take place in London or New York, and because arbitration has been initiated in New York, only a court in New York has jurisdiction to stay the arbitration. We find both assertions unpersuasive.

The Charter provides for arbitration of "(a)ny and all differences and disputes ... arising out of this Charter." The complaint at bar is not the result of a difference or dispute arising out of the Charter. Texaco asserts a delictual claim for damages to its dock. Texaco alleges that the collisions between the vessels and its dock were caused by the fault and negligence of defendants and unseaworthiness of the vessels in enumerated particulars. The existence vel non of the Charter is not dispositive of this claim for delictual damages; the claim as alleged...