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    Rederi A/b Disa v. Cunard Steamship Company, LTD, 389 U.S. 852 (1967)

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    1) The petitioner sought a writ of certiorari from the Supreme Court to review a decision by the Court of Appeals requiring the parties to arbitrate a contractual dispute in London before determining whether the dispute should be resolved through arbitration or litigation. 2) Justice Black dissented from the denial of certiorari, arguing that requiring the parties to go through arbitration before determining the proper forum would result in unnecessary inconvenience and expense. 3) Justice Black believed the order staying the litigation and requiring arbitration was equivalent to an injunction and should be appealable under the relevant statute, or that it constituted a final decision on a separable claim and was therefore appealable. He would have granted review and reversed the lower court's

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    Rederi A/b Disa v. Cunard Steamship Company, LTD, 389 U.S. 852 (1967)

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    1) The petitioner sought a writ of certiorari from the Supreme Court to review a decision by the Court of Appeals requiring the parties to arbitrate a contractual dispute in London before determining whether the dispute should be resolved through arbitration or litigation. 2) Justice Black dissented from the denial of certiorari, arguing that requiring the parties to go through arbitration before determining the proper forum would result in unnecessary inconvenience and expense. 3) Justice Black believed the order staying the litigation and requiring arbitration was equivalent to an injunction and should be appealable under the relevant statute, or that it constituted a final decision on a separable claim and was therefore appealable. He would have granted review and reversed the lower court's

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    Filed: 1967-10-09 Precedential Status: Precedential Citations: 389 U.S. 852 Docket: 302

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    Rederi A/b Disa v. Cunard Steamship Company, Ltd, 389 U.S. 852 (1967)

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    1) The petitioner sought a writ of certiorari from the Supreme Court to review a decision by the Court of Appeals requiring the parties to arbitrate a contractual dispute in London before determining whether the dispute should be resolved through arbitration or litigation. 2) Justice Black dissented from the denial of certiorari, arguing that requiring the parties to go through arbitration before determining the proper forum would result in unnecessary inconvenience and expense. 3) Justice Black believed the order staying the litigation and requiring arbitration was equivalent to an injunction and should be appealable under the relevant statute, or that it constituted a final decision on a separable claim and was therefore appealable. He would have granted review and reversed the lower court's

    Copyright:

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    Download as COURT, PDF, TXT or read online from Scribd
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    51 views4 pages

    Rederi A/b Disa v. Cunard Steamship Company, LTD, 389 U.S. 852 (1967)

    Uploaded by

    Scribd Government Docs
    1) The petitioner sought a writ of certiorari from the Supreme Court to review a decision by the Court of Appeals requiring the parties to arbitrate a contractual dispute in London before determining whether the dispute should be resolved through arbitration or litigation. 2) Justice Black dissented from the denial of certiorari, arguing that requiring the parties to go through arbitration before determining the proper forum would result in unnecessary inconvenience and expense. 3) Justice Black believed the order staying the litigation and requiring arbitration was equivalent to an injunction and should be appealable under the relevant statute, or that it constituted a final decision on a separable claim and was therefore appealable. He would have granted review and reversed the lower court's

    Copyright:

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    of 4

    389 U.S.

    852
    88 S.Ct. 78
    19 L.Ed.2d 122
    19 L.Ed.2d 676

    REDERI A/B DISA, petitioner,


    v.
    CUNARD STEAMSHIP COMPANY, LTD.
    No. 302.

    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.

    Denied.

    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, 76
    S.Ct. 232, 100 L.Ed. 133 (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 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, 55 S.Ct. 475, 79 L.Ed. 989
    (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).
    5

    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, 63 S.Ct. 163, 87 L.Ed. 176
    (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, 69 S.Ct. 1067, 93 L.Ed.
    1347 (1949), and Baltimore Contractors v. Bodinger, 348 U.S. 176, 75 S.Ct.
    249, 99 L.Ed. 233 (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 in this case was an injunction in every practical sense, I would hold that
    it was an injunction in the statutory sense and allow the present appeal.

    I also think this order was 'final' within the meaning of 28 U.S.C. 1291. Our

    cases dealing with the meaning of finality have provided no satisfactory


    definition of this term, as this Court has itself repeatedly recognized.
    McGourkey v. Toledo & Ohio Railway, 146 U.S. 536, 13 S.Ct. 170, 36 L.Ed.
    1079 (1892); Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 70 S.Ct.
    322, 94 L.Ed. 299 (1950). Certainly we have time and again departed from the
    statement in Catlin v. United States, 324 U.S. 229, 239, 65 S.Ct. 631, 636, 89
    L.Ed. 911 (1945), that the decision to be final and appealable must be one
    which 'leaves nothing for the court to do but execute the judgment,' and we
    have held numerous orders final and appealable which had left open major
    questions in litigation but were nevertheless '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.' Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct.
    1221, 1225, 93 L.Ed. 1528 (1949). See also Roberts v. United States District
    Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950); Brown Shoe Co. v.
    United States, 370 U.S. 294, 82 S.Ct. 1502, 8 L.Ed.2d 510 (1962). The same
    practical test of finality has been applied to determine whether the judgment of
    a state court is 'final' within the meaning of 28 U.S.C. 1257. Local No. 438,
    Construction & Laborers' etc. v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d
    514 (1963); Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520,
    9 L.Ed.2d 523 (1963).
    7

    Accordingly, I do not regard as conclusive the fact that in cases of this kind
    '[t]he parties are still before the court and further proceedings may be moved
    after the arbitrators have acted.' Compare Lowry & Co. v. S. S. Le Moyne
    D'Iberville, 372 F.2d 123, 124 (C.A.2d Cir. 1967). The order in the present case
    stayed the judicial proceedings petitioner had commenced in New York and
    required the parties to go to London and conduct an arbitration that may prove
    costly and time consuming. Under these circumstances the question whether
    petitioner had a right to prompt determination of his claim in a judicial forum is
    '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.' Cohen, supra. The court below was correct, of course, in noting
    that if the arbitration award proves satisfactory to petitioner, the question of
    arbitrability will then be moot, but in that event petitioner's rightif it has one
    to avoid the costs and inconveniences incident to a foreign arbitration will have
    been irretrievably lost. It was this very danger that was the controlling
    consideration in Cohen, supra, 337 U.S., at 546, 69 S.Ct. at 1225.

    It is also true that postponing review will prove to have been the more efficient
    approach if the District Judge's ruling is ultimately affirmed. But the

    probability of such an outcome can never be assessed from the present vantage
    point. There is at least a strong possibility that when review is finally had, the
    ruling will be found erroneous by the United States courts. In that case it will
    be necessary to proceed at long last to trial. At the moment all we can say is
    that we must risk either an unnecessary appeal or an unnecessary arbitration.
    The former may be somewhat bothersome for the appellate courts, but the
    latter will be such a serious burden for both the parties that I would
    unhesitatingly choose to avoid it. I would grant the writ, reverse the judgment
    below, and require a ruling now on the only controversy between the parties
    that is ripe for decision at this timeshould the case be arbitrated or tried in
    court?

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