389 U.S. 852 (1967)

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U.S. Supreme Court


389 U.S. 852


Supreme Court of the United States

October 9, 1967

William P. Kain, Jr., and Thomas F. Molanphy, for petitioner.

Herbert Brownell, for respondent.

Petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.


Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.

This contractual controversy is bound in the end to be resolved either by arbitration or by a judicial trial, but the court below has required the parties to go through the inconvenience and expense of arbitration before they can obtain a binding decision that the arbitration forum is in fact the proper one. Since this gross waste of time and effort is neither required by the applicable statutes nor consistent with fair and efficient judicial procedure, I would grant certiorari and reverse. The dispute over which tribunal should determine the merits of this case arises in this way. Cunard, the respondent, chartered a ship owned by petitioner and also acted as stevedore in unloading the ship when it reached New York. A longshoreman employee of Cunard was injured during Cunard's stevedoring operation and sued petitioner, the ship's owner. Petitioner owner then claimed that Cunard was liable to indemnify it for any damages it might have to pay Cunard's employee. If the claim of indemnity is considered to be a dispute arising under the charter contract, that contract governs and the controversy must be arbitrated in London. If, however, the controversy arises not under the Charter but under the stevedore's warranty of workmanlike service implied by law, Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124 (1956), then the case must be tried by the District Court in New York. The District Judge decided that the dispute arose under the Charter and stayed the judicial proceedings pending

Page 389 U.S. 852 , 853

arbitration. The Court of Appeals, while expressing considerable doubt as to whether arbitration was in fact proper, nevertheless followed what it considered to be the requirements of Schoenamsgruber v. Hamburg Line, 294 U.S. 454 (1935), and ruled that the District Judge's order was not yet appealable. I think decent and expeditious judicial procedure requires that the principles governing appealability announced in Schoenamsgruber be repudiated and that the Court of Appeals be held obligated to determine the proper tribunal now, either on the ground that the order is a 'final' judgment and appealable as such, 28 U.S. C. 1291, or on the ground that it is an interlocutory decision amounting in all substance and effect to an 'injunction' and therefore appealable under 28 U.S.C. 1292(a)(1).

Section 1292(a)(1) permits appeals from 'Interlocutory orders ... granting, continuing, modifying, refusing or dissolving injunctions ....' An order should be appealable within the meaning of this statute if in substantial effect it is equivalent to an injunction, and as a matter of fact we have so held. Ettelson v. Metropolitan Insurance Co., 317 U.S. 188 (1942). It is true that some doubt has been cast on the Ettelson test by City of Morgantown v. Royal Insurance Co., 337 U.S. 254 (1949), and Baltimore Contractors v. Bodinger, 348 U.S. 176 (1955). But these more recent cases have introduced confusion and technicality into the law, requiring resolution of this statutory question in terms of the fiction of separate law, equity, and admiralty 'sides' of the United States District Court. I think the time has come to abandon this outmoded fiction about 'sides of the Court' and return to the sound principles announced in Ettelson, supra. Here as in Ettelson plaintiffs are 'in no different position than if a state equity court had restrained them from proceeding in [a] law action.' Ettelson, supra, 317 U.S., at 192, 63 S.Ct. at 164. Since the stay entered [389 U.S. 852 , 854]

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