UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 94-30485

IN RE: IN THE MATTER OF THE COMPLAINT OF INGRAM TOWING COMPANY

AND INGRAM BARGE COMPANY, AS OWNER AND OWNER PRO HAC VICE

RESPECTIVELY, OF THE M/V DAVE BRASELL AND THE IB-2629,

PETITIONING FOR EXONERATION FROM OR LIMITATION OF LIABILITY:

INGRAM TOWING COMPANY, as owner and owner pro hac vice,

respectively of the M/V Dave Brasell and the IB-2629, and INGRAM

BARGE COMPANY, as owner and owner pro hac vice, respectively, of

the M/V Dave Brasell and the IB-2629,

Appellees,

VERSUS

ADNAC INC., ET AL., the owner and/or operator of the Destrehan

Elevator in Destrehan, LA,

Claimants,

ROSE WASHINGTON, ET AL.,

Claimants-Appellants

Appeal from the United States District Court

for the Eastern District of Louisiana

(July 13, 1995)

Before SMITH, WIENER, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge: 

This is an interlocutory appeal from the district court's

order interpreting and enforcing its previous injunction. Finding

that we do not have appellate jurisdiction to hear this

interlocutory appeal, we DISMISS the appeal. 
2

BACKGROUND

This case concerns an allision between the M/V DAVE BRASELL

and its tow with the Sunshine Bridge near Donaldsonville, Louisiana

on April 9, 1993. The allision caused the spill of fuel oil into

the Mississippi River. The M/V DAVE BRASELL and its tow were owned

and operated by Ingram Towing Company and Ingram Barge Company

(collectively "Ingram").

Several months after the allision, Ingram began receiving

notices from individuals alleging they had upset stomachs, diarrhea

and similar symptoms due to drinking and breathing the spilled fuel

oil. In September 1993, Ingram was served with a petition,

purported to be a class action, brought on behalf of Rose

Washington and all others similarly situated ("Rose Washington

Claimants"), alleging injuries from the spilled fuel oil.

In October 1993, Ingram filed an action seeking exoneration

from or limitation of liability pursuant to Rule F of the

Supplemental Rules for Certain Admiralty and Maritime Claims,

Federal Rules of Civil Procedure and 46 U.S.C. §§ 181-189. The

District Court then entered a restraining order ("October 1993

Order") prohibiting "the commencement and/or further prosecution of

any action or proceeding against the petitioners and/or their

underwriters . . . arising out of or connected in any way with" the

allision.

In January 1994, the federal district court remanded to state

court that part of the original class action that concerned claims

against defendants other than Ingram and allowed those claims to
3

proceed ("January 1994 Order").

In March 1994, the Rose Washington Claimants amended their

state court suit and added Tennessee Insurance Company ("TIC"),

Ingram's insurer, as a defendant. The Rose Washington Claimants

sued TIC for, inter alia, breach of its duty of good faith and fair

dealing due to its categorical denial of all personal injury claims

relating to the fuel oil spill.

In May 1994, Ingram sought to enforce the stay in the District

Court and stop the proceedings against TIC. In its August 1994

order ("August 1994 Order"), the district court said that its

October 1993 Order prohibited suits against TIC. The district

court also found that the January 1994 Order did not allow suits

against TIC, but rather, only against certain local officials.

Therefore, the district court held that its October order was still

in effect and that it prohibited suits by the Rose Washington

Claimants against TIC. The district court stayed the state

proceedings against TIC.

The Rose Washington Claimants filed a timely interlocutory

appeal of this order.

JURISDICTION

Congress vests the courts of appeals with jurisdiction over

appeals from "all final decisions of the district courts of the

United States . . . except where a direct review may be had in the

Supreme Court." 28 U.S.C. § 1291. "[A]n order is final only when

it 'ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment.'" United States v. Garner,
 

1The statute reads, in relevant part:

(a) [T]he courts of appeals shall have jurisdiction of

appeals from:

(1) Interlocutory orders of the district courts of the

United States . . . granting, continuing, modifying,

refusing or dissolving injunctions, or refusing to

dissolve or modify injunctions . . . ;

. . . .

(3) Interlocutory decrees of such district courts or

the judges thereof determining the rights and

liabilities of the parties to admiralty cases in which

appeals from final decrees are allowed.

28 U.S.C. § 1292 (a)(1) & (3).

4

749 F.2d 281, 285 (5th Cir. 1985) (quoting Firestone Tire & Rubber

Co. v. Risjord, 449 U.S. 368, 373 (1981)). "The purpose behind

[the final judgment rule] is to avoid piecemeal appeals, which in

turn conserves 'judicial energy' and may help eliminate delay."

Sherri A.D. v. Kirby, 975 F.2d 193, 201 (5th Cir. 1992); see

Flanagan v. United States, 104 S.Ct. 1051, 1054 (1984); Firestone,

449 U.S. at 374. The Rose Washington Claimants' appeal is not from

a final judgment and is, therefore, interlocutory.

Interlocutory appellate jurisdiction is the exception rather

than the rule. Garner, 749 F.2d at 285. Congress has given the

courts of appeals jurisdiction over interlocutory appeals only in

certain, limited circumstances. Dardar v. Lafourche Realty Co.,

Inc., 849 F.2d 955, 957 (5th Cir. 1988). The Rose Washington

Claimants raise two exceptions to the general limitation on

appellate jurisdiction over interlocutory appeals; the exceptions

are found at 28 U.S.C. § 1292(a)(1) and (3)1. These exceptions

allow interlocutory appeals from certain injunctions and admiralty

claims. Because this appeal fits neither of the exceptions we find

that this Court lacks jurisdiction to hear the appeal. 
 

2The cases that the Rose Washington Claimants cite are all

inapposite, in that they concern the issue of whether an order

that continues or modifies an injunction is interlocutorily

appealable. The cases do not concern whether this order

continued or modified an injunction, nor do they concern whether

an order interpreting an injunction should be treated as

continuing or modifying an injunction. 

5

Interlocutory appeals are not favored and the statutes

allowing them must be strictly construed. Sierra Club v. Marsh,

907 F.2d 210, 214 (1st Cir. 1990); see E.E.O.C. v. Kerrville Bus

Co., Inc., 925 F.2d 129, 139 (5th Cir. 1991). "We must 'approach

this statute somewhat gingerly lest a floodgate be opened that

brings into the exception many pretrial orders.'" Switzerland

Cheese Ass'n., Inc. v. E. Hornes Market, Inc., 385 U.S. 23, 24

(1966).

Section 1292(a)(1)--Injunctions

Section 1292(a)(1) allows interlocutory appeals when a court

grants, continues, modifies, refuses or dissolves an injunction, or

when it refuses to modify or dissolve an injunction. However,

interlocutory appeals are not allowed when a court merely enforces

or interprets a previous injunction2. Mikel v. Gourley, 951 F.2d

166, 168 (8th Cir. 1991) ("A mere clarification of an injunction is

not an appealable order); Motorola, Inc. v. Computer Displays

Intern., 739 F.2d 1149, 1155 (7th Cir. 1984) ("Orders that merely

interpret or clarify an injunction are not appealable under §

1292(a)(1)."); Major v. Orthopedic Equipment Co., 561 F.2d 1112,

1115 (4th Cir. 1975) ("[The order] is simply an interpretation, not

appealable under 28 U.S.C. § 1292(a)(1)."); Int'l Assoc. of Mach.

& Aerospace Workers v. Eastern Airlines, Inc., 849 F.2d 1481, 1485
 

3Both the October 1993 Order and the January 1994 Order were

interlocutorily appealable, as they granted and modified

injunctions. However, under Federal Rule of Appellate Procedure

4(a), the Rose Washington Claimants had thirty days from the date

of the order in which to appeal. They did not file their notice

of appeal until August 25, 1994. Therefore, appeals from the

October 1993 Order and the January 1994 Order would be untimely. 

Of course, the appeal from the August 1994 Order is timely.

 

4The August 1994 order, from which the Rose Washington

Claimants appeal, reads in relevant part:

The Rose Washington [Claimants] further allege that the

January 10, 1994 order of this court which stated,"[W]hen

remanded, the state court action will be stayed as to Ingram

Barge Company and the vessel regarding claims subject to

limitation but may proceed against the other defendants[,]"

allows them to proceed against a new defendant, TIC. The

[Rose Washington Claimants] have misinterpreted the order. 

The "other defendants" were the St. James Parish officials

already parties to the state claim and not subject to the

limitation proceeding. As stated above, the claim against

TIC is "subject to limitation."

Emphasis in original.

6

(D.C. Cir. 1988) (distinguishing between orders that are "mere

interpretation[s]" and orders that modify injunctions). 9 MOORE'S

FEDERAL PRACTICE § 110.20[2] n.3 (1995). 

The district court's August 1994 Order did not grant,

continue, modify, refuse or dissolve an injunction3. Instead, the

district court merely explained that the Rose Washington Claimants

had misinterpreted the January 1994 Order. The district court made

clear that the October 1993 Order was still in effect and suits

against Ingram's insurers were still enjoined4.

Because the order does not fall under § 1292(a)(1), we do not

have jurisdiction under that exception to hear an interlocutory

appeal from the order. We will now consider whether we have

jurisdiction under § 1292(a)(3). 

Section 1292(a)(3)--Admiralty
7

Section 1292(a)(3) allows interlocutory appeals from orders in

admiralty cases which "determin[e] the rights and liabilities of

the parties." This section

was designed to apply in circumstances distinctive to

admiralty where it is not uncommon for a court to enter an

order finally determining the issues of liability between the

parties and then to refer the case to a master for a

determination of damages. Courts have tended to construe this

provision rather narrowly and it has not been read to permit

interlocutory appeals in admiralty except where the order,

regardless of the label affixed to it had the effect of

determining the rights and obligations of the parties. 

Treasure Salvors v. Unidentified Wrecked and Abandoned Sailing

Vessel, 640 F.2d 560, 564 (1981). See Hollywood Marine, Inc. v.

M/V ARTIE JAMES, 755 F.2d 414, 416 (5th Cir. 1985); Francis v.

Forest Oil Corp., 798 F.2d 147, 149 (5th Cir. 1986).

"Orders which do not determine parties' substantive rights or

liabilities, however, are not appealable under section 1292(a)(3)

even if those orders have important procedural consequences."

Francis, 798 F.2d at 150; 9 MOORE'S FEDERAL PRACTICE § 110.19[3] n.27.

The August 1994 Order did not determine the rights and

liabilities of the parties. The order only stayed the state court

suit against TIC until the federal limitation of liability

proceeding was finished. The district court did not determine that

TIC was not liable to the Rose Washington Claimants, nor did it

determine the claimants could never sue TIC. All the district
g:\opin\94-30485.opn

wdg 8

court did was determine when the claimants could sue TIC. The

district court did not determine the rights and liabilities of the

parties, it "merely settled how and where the rights and

liabilities would be determined." State Establishment v. M/V

WESERMUNDE, 770 F.2d 987, 990 (11th Cir. 1985).

Because the August 1994 Order did not determine the rights and

liabilities of the parties, it is not appealable under the

admiralty interlocutory appeal exception. 28 U.S.C. § 1292(a)(3).

CONCLUSION

The Rose Washington Claimants' appeal from the August 1994

Order is interlocutory. This Court generally only has appellate

jurisdiction over appeals from final orders and thus interlocutory

appeals must fall under one of the exceptions to the final judgment

rule. The Rose Washington Claimants allege that we have appellate

jurisdiction under two exceptions, 28 U.S.C. § 1292(a)(1) and (3).

However, for the above stated reasons, we determine that their

appeal does not fall under either of these exceptions and,

therefore, their appeal is DISMISSED for lack of appellate

jurisdiction.