Welcome to a series of comments on practice and procedure of admiralty law, also known as the general maritime law.

           One of the reasons that admiralty law (28 U.S.C. §1333), as practiced in the federal courts, we find fascinating is the distinct treatment of procedural and substantive law as compared to most state law and even as to most federal question civil cases (28 U.S.C., §1331). These differences are too many to approach in a single blog of “readable” length. Thus, this approach to serial commentary.

           Interlocutory appeals are a statutory device that allows the parties and the District Court

 a pathway to review of issues, “When a district judge, in making in a civil action an order not otherwise appealable . . . shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, [the Judge] shall so state in writing in such order.” 28 U.S.C.S. § 1292(b). However, the Court of Appeals does not have to accept the matter for appellate review. In short, the right to appeal only exists when all of the case at the trial court level has been reduced to judgment. Typically, When a trial court grants a motion for summary judgment that does not dispose of the entire case, one has to wait for final judgment. Quite often, such circumstances lead to a settlement of the entire action, eliminating the need to appeal.

           Admiralty law procedure was and remains different. Before the folding of admiralty courts into the federal general civil court system, the Admiralty court had a pragmatic approach to conserving resources. The approach was to try liability first, then to refer to a commissioner to try damage if the plaintiff prevailed. This approach was procedurally facilitated by Admiralty actions having no right to the right to jury trial granted under Amendment VII of the United States Constitution. “[W]hen the seventh amendment was made as it is now, is conclusive that it was done with reference to suits at common law alone.” Waring v. Clarke, 46 U.S. (5 How.) 441, 460 (1847); United States v. La Vengeance, 3 U.S. (3 Dall.) 297 (1796)[Admiralty action had no right to jury]. Interim judgments at the trial court level became appealable in Admiralty practice, before proceeding to try damage.

"It was a common practice for the admiralty court to determine first the issue of liability and, if it found liability, to refer the parties to a commissioner for the determination of damages. The purpose of sec. 1292(a)(3) was to permit a party found liable to take an immediate appeal from that finding and thereby possibly avoid an oftentimes costly and protracted trial of the damages issue." 9 Moore's Federal Practice par. 110.19[3], at 209-210 (1985).

Seattle-First National Bank v. Bluewater Partnership, 1986 AMC 1296, 1300, 772 F.2d 565 (9th Cir. Wash. September 24, 1985).

           Currently, federal civil procedure preserves the right to immediate appeal of a District Court’s granting of partial judgments that do not dispose of all of the case.  “ Interlocutory decrees of such district courts . . .determining the rights and liabilities of the parties to admiralty cases . . .” 28 U.S.C.S., §1292(a)(3). When a District Court, sitting in admiralty  recently issued partial summary judgments that would have eliminated two of the three parties our clients had  sued for damages for negligent infliction of emotional distress (NIED) and wrongful death action, we appealed, on our clients’ instruction,  pursuant to 28 U.S., §1292(a)(3) because we felt that lower court had erred, in part, when applying  the substantive law in question (bareboat charters, joint venture partnership masquerading as a vessel broker agreement, and the interpretation of physical injury and zone of damager under Consolidated Rail Corporation v. Gottshall, 512 U.S. 532 (1994)). We felt that not only was it important to obtaining justice for our clients, the appeal would be important to the maritime industry generally since some issues had seldom been decided in the United States Court of Appeals or by the Supreme Court. 

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.