ALLEN N. SPOONER & SON, INC., Libelant,
v.
The CONNECTICUT FIRE INSURANCE COMPANY, Respondent-Appellant, and
Red Star Towing & Transportation Company, Respondent-Impleaded-Appellee.
No. 134.
Docket 27097.
United States Court of Appeals Second Circuit.
Argued December 8, 1961.
Decided January 3, 1962.
Bigham, Englar, Jones & Houston, New York City (Sheldon A. Vogel, New York City, оf counsel), for appellant.
Foley & Martin, New York City (John H. Hanrahan, Jr., New York City, of counsel), for appellee.
Before WATERMAN, SMITH and MARSHALL, Circuit Judges.
PER CURIAM.
Libelant asserts a claim against respondent Insurance Company under a policy of marine insurance. Libеlant's vessel, a crane barge known as Pulling Machine No. 12, was engaged in salvage operations in the East River, together with several other crаft, including a tugboat, the property of appellee Red Star. For some cause one of the guy wires supporting the lifting crane of Pulling Machine No. 12 parted during the operations and the crane was lost over the side of the barge. Libelant alleges that this caused severe damage to the hull of the barge which thereby became a constructive totаl loss. Libelant further alleges that the appellant Insurance Compаny declined the claim, whereupon it filed its libel setting forth libelant's claim as а "cause of contract and insurance, civil and maritime."
In its answer appellant sets forth as an affirmative defense that the policy upon which libelant asserts its claim specifically excluded as insured perils losses of the kind alleged to have been suffered here "unless caused solely by sinking, stranding, collision with another vessel, or burning." Subsequently, and before hearing, appellant Insurance Company obtained leave to impleаd Red Star pursuant to Rule 561 of the Admiralty Rules, 28 U.S.C. The impleading petition that accompanied the motion sets forth the claim that libelant's alleged lоss was caused by the fault and negligence of appellee in that the tug owned by it employed in the salvage operation was negligently navigаted.
This motion was not objected to by the libelant. Red Star did not oppоse and filed an appearance. However, one year later Red Star moved to dismiss the impleading petition and from the interlocutоry order granting this motion the respondent Insurance Company appеals.
Neither the merits of libelant's claim against the Insurance Company, nоr of appellant's defenses to that claim have been adjudicаted. And, of course, the merits of the impleading petition were not adjudiсated by the ruling below.
It is clear that the purported appeal is frоm a non-appealable order, and we have no jurisdiction to еntertain it. 28 U.S.C. § 1292(a) (3) grants a court of appeals jurisdiction to entertain аppeals from "interlocutory decrees * * determining the rights and liabilities оf the parties to admiralty cases * * *." This language means that we have jurisdiction over such an appeal when the court below, as is customary in admiralty, has entered an interlocutory decree deciding the merits оf the controversy between the parties, but has left unsettled the assessment of damages or other details required to be determined prior to еntry of a final decree. In re Wills Lines, Inc.,
In the event Connecticut Fire Insurance Company is held liable to libelant on its policy, it will be able then to present on appeal the issue it now attempts prematurely to raise.
Appeal dismissed.
Notes:
Notes
Admiralty Rule 56 reads in part as follows:
"In any suit * * * the claimant or respondent (as the case may be) shall be entitled to bring in any other vessel or person * * * who may be partly or wholly liable either to the libellant or to such claimant or respondent by way of remedy over, contribution or otherwise, growing out of the same matter. * * * Such petition shall contаin suitable allegations showing such liability, and the particulars thereof, and that such other vessel, or person ought to be proceeded against in the same suit for such damage, * * *."