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Ionian Shipping Co. v. British Law Insurance Co.

decided: May 8, 1970.

IONIAN SHIPPING COMPANY, PLAINTIFF, AND ALLIED CHEMICAL CORPORATION, INTERVENOR-APPELLANT,
v.
BRITISH LAW INSURANCE CO., LTD., ET AL., DEFENDANTS-APPELLEES



Kaufman and Feinberg, Circuit Judges, and Timbers, District Judge.*fn*

Author: Kaufman

IRVING R. KAUFMAN, Circuit Judge:

Allied Chemical Corporation sought intervention as of right under Fed.R.Civ.P. 24(a) in Ionian Shipping Company's suit against British Law Insurance Co., Ltd., insurer of its vessel Sofia M. This appeal questions both the correctness and appealability of Judge Edelstein's order denying that petition for intervention.

In April 1968 Ionian Shipping, owner of the Sofia M, gave the Chase Manhattan Bank (National Association) a First Preferred Ship Mortgage. In order to protect its interest, Chase required Ionian to obtain and keep in force marine hull insurance. In May 1968, pursuant to that requirement, Ionian obtained a $500,000 policy from the defendant insurers for one year. The policy, in pertinent part, contained a "loss payable" clause requiring distribution of payments to Chase and Ionian "as their respective interest may appear."*fn1 It further required the insurer to give Chase ten days "notice of cancellation" of the policy.*fn2 The policy also contained standard "New York suable" and "service of suit" clauses, permitting suit in New York, under the law applicable as if the policy were delivered in New York.*fn3

On July 24, 1968, the Sofia M ran aground at Punta Gallinos, Columbia, and allegedly became a total loss. British Law Insurance, claiming that the grounding was intentional, refused to pay the insurance proceeds. In April 1969 Ionian sued on the insurance contract; a week later Chase assigned the mortgage to Allied (which had previously guaranteed Ionian's obligation under the mortgage). Allied now stands in Chase's place as mortgagee, and seeks to intervene of right in Ionian's suit against British Law Insurance in order to protect its rights under the insurance contract as a mortgagee.

I. Appealability

Before reaching the merits of the motion for intervention, however, we must deal with the perplexing issue of appealability. We have jurisdiction only to review "final" orders, 28 U.S.C. § 1291 (1964), except in the limited circumstances set out in 28 U.S.C. § 1292 (1964). It is settled that the grant of a motion to intervene is not appealable. Otten v. Baltimore & O.R. Co., et al., 205 F.2d 58 (2d Cir. 1953) (L. Hand, J.) ("Since the second order [granting intervention] is clearly unappealable we shall disregard it."). An order denying intervention, on the other hand, presents significantly more difficult problems. Supreme Court cases have established that if "appellant may intervene as of right, the order of the court denying intervention is appealable." Sam Fox Publishing Co. v. United States, 366 U.S. 683, 688, 81 S. Ct. 1309, 6 L. Ed. 2d 604 (1961); Sutphen Estates, Inc. v. United States, 342 U.S. 19, 20, 72 S. Ct. 14, 96 L. Ed. 19 (1951).

Sam Fox Publishing speaks of the party "entitled" to intervene of right; it does not deal with the case where the party seeking intervention as of right, is not, in fact "entitled" to it. In Levin v. Ruby Trading Corp., 333 F.2d 592 (2d Cir. 1964), we assumed that we did not have jurisdiction to hear such an appeal and that in effect appealability turned on the merits of the claim for intervention. The distinction "is not a very effective or useful limitation of appellate jurisdiction," since its only consequence is that if the application for intervention is not found meritorious, the reviewing court must dismiss the appeal rather than affirm the judgment below. See Levin v. Ruby Trading Corp., 333 F.2d 592, 594 (2d Cir. 1964). In a later case, however, we simply "assumed" that we had jurisdiction to hear a similar appeal,*fn4 and after considering the merits, affirmed a denial below of a motion for intervention as of right instead of dismissing it. Fox v. Glickman Corp., 355 F.2d 161, 163 n. 2, 165 (2d Cir. 1965), cert. denied, sub nom. Levy v. Glickman Corp., 384 U.S. 960, 86 S. Ct. 1585, 16 L. Ed. 2d 672 (1966). See also Farmland Irrigation Co. v. Dopplmaier, 220 F.2d 247, 248 (9th Cir. 1955) (denial of intervention appealable where sought as of right). But see Lipsett v. United States, 359 F.2d 956 (2d Cir. 1966) (appeal from denial of permissive intervention dismissed where no abuse of discretion); Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 524, 67 S. Ct. 1387, 91 L. Ed. 1646 (1947). ("Ordinarily, in the absence of an abuse of discretion, no appeal lies from an order denying leave to intervene where intervention is a permissive matter within the discretion of the court.")

Commentators seem to agree that requiring appealability of an order to turn on the merits serves no useful purpose. They would prefer to consider all denials of intervention final orders and therefore appealable, but would reverse only when a party is entitled to intervention as of right or the trial court abused its discretion in denying permissive intervention. See Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv.L.Rev. 720, 740-51 (1968); 3B J. W. Moore, Federal Practice para. 24.15 at 24-565 (1969).

This pragmatic formulation, which would permit the reviewing court to dispose of the merits without indulging in a pointless discussion of appealability in each instance, meets two objections. The Supreme Court, prior to the 1966 amendments to Rule 24(a), consistently indicated that the proper course was to dismiss when the appellate court was of the view that the order denying intervention (whether mandatory or permissive) was correct. See, e.g., Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R. Co., 331 U.S. 519, 524, 67 S. Ct. 1387, 91 L. Ed. 1646 (1947).

We recognize that, to follow this approach in each instance, will require the court to examine the merits of the motion for intervention before it can consider whether it has jurisdiction. See C. Wright, Handbook of the Law of Federal Courts 332 (2d ed. 1970). Given the aim of the 1966 amendments to the Federal Rules which substituted "a practical rather than a conceptual emphasis in questions of intervention," id., at 328, the proper and sensible course is to assume that an order denying intervention is final for the purposes of appeal, and to go directly to the merits. See Fox v. Glickman Corp., 355 F.2d 161, 163 n. 2, 165 (2d Cir. 1965), cert. denied, sub nom. Levy v. Glickman Corp., 384 U.S. 960, 86 S. Ct. 1585, 16 L. Ed. 2d 672 (1966). Hence we assume that we have jurisdiction to hear Allied's appeal from the order denying its motion for intervention.

II. Intervention

Allied moved in the district court only for intervention as of right. The motion was denied without opinion. To satisfy Rule 24(a) (2), governing intervention of right, Allied must show (1) that it claims an interest in the insurance proceeds; (2) that, as a practical matter, that may be impaired by this suit; and (3) that Ionian will not provide adequate representation.

British Law Insurance, stating that Allied's rights are "derivative and depend on whether Ionian can recover," seems to concede that the first two criteria are satisfied. Both it and Allied agree that the only issue is whether Ionian will provide Allied with adequate representation in the suit for the insurance proceeds. On the merits of that question, however, they differ. The nub of Allied's claim for intervention is that it has, or may have, ...


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