Newpark Shipbuilding & Repair, Inc. v. M/V Trinton Brute

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

___________________________

No. 91-3982
___________________________

NEWPARK SHIPBUILDING & REPAIR, INC.,

Plaintiff-Appellee,

VERSUS

M/V TRINTON BRUTE, a/k/a
M/V GLENN W. MCKINNEY, ETC., ET AL.,

Defendants-Appellants.

___________________________________________________

Appeal from the United States District Court
For the Middle District of Louisiana
____________________________________________________
(September 13, 1993)

Before DAVIS, DUHÉ, and WIENER, Circuit Judges.

BY THE COURT:

Appellee Newpark Shipbuilding & Repair, Inc. ("Newpark") seeks

dismissal of the appeal of vessel owner McKinney Harbor Towing,

Inc. ("McKinney") from an in rem judgment in favor of Newpark. We

dismiss McKinney's appeal for lack of jurisdiction.

I.

Newpark brought an in rem action against the M/V TRINTON

BRUTE, owned by McKinney and bareboat chartered to Trinton Marine

Transportation, Inc. New Park's action sought to recover for past

due repairs it had performed on the vessel. McKinney entered a

restricted appearance pursuant to Supplemental Admiralty Rule E(8)

to defend the vessel from the in rem claim.
 The district court entered judgment in favor of Newpark and

ordered the TRINTON BRUTE sold at a marshal's sale. Newpark was

the successful bidder at the sale and substituted its judgment in

lieu of payment for the vessel. McKinney filed a motion to stay

disbursement of the sale proceeds, which the district court denied.

Newpark took title to the partially scrapped vessel and

subsequently resold it to McKinney. McKinney noticed its appeal of

the district court's judgment in favor of Newpark. Newpark has

moved to dismiss McKinney's appeal for lack of jurisdiction.

II.

McKinney argues that this court has jurisdiction of this

appeal under the teaching of the recent Supreme Court decision in

Republic National Bank of Miami v. United States, ___ U.S. ___, 121

L.Ed.2d 474 (1992). In Republic, the government seized a house

that had been purchased with the proceeds of narcotics trafficking.

After a trial on the merits, the district court ordered the

proceeds of the sale of the house forfeited to the government,

which deposited the funds in the U.S. Treasury. Republic National

Bank claimed a lien on the funds and appealed. The court of

appeals held that it had no jurisdiction over the Bank's appeal,

because the transfer of the res (the sale proceeds) from the

court's territorial jurisdiction destroyed in rem jurisdiction over

the case.

The Supreme Court reversed, holding that "in an in rem

forfeiture action, the Court of Appeals is not divested of

jurisdiction by the prevailing party's transfer of the res from the

District." 121 L.Ed.2d at 484. The Court rejected the

2
government's argument that the Court's continued control of the res

in admiralty cases is necessary to preserve the court's in rem

maritime jurisdiction. The Court concluded that such a rule

thus does not exist, and we see no reason why it should.
The fictions of in rem forfeiture were developed
primarily to expand the reach of the courts and to
furnish remedies for aggrieved parties, . . . not to
provide a prevailing party with a means of defeating its
adversary's claim for redress.

Id. at 483-84. Thus, the Court concluded that the court of appeals

did not lose jurisdiction of the case when the funds were

transferred to the U.S. Treasury.

The Court identified an exception to appellate jurisdiction in

cases where the absence of the res would render the judgment

useless. A judgment would be "useless" if "'the thing could

neither be delivered to the libellants, nor restored to the

claimants.'. . . [T]his exception 'will not apply to any case where

the judgment will have any effect whatever.'" Id. at 482 (quoting

United States v. The Little Charles, 26 F. Cas. 979, 982 (C.C. Va.

1818). The "useless judgment exception" did not apply in Republic,

because the government had possession of the specific "substitute

res"-- the sale proceeds-- and an appropriations statute

"authoriz[ed] the payment of funds in the event petitioner were to

prevail in the underlying forfeiture action." Id. at 489.

In this case, by contrast, there never was a substitute res.

Newpark used its judgment to purchase the TRINTON BRUTE; no money

changed hands as a result of the marshal's sale. Moreover, the

vessel is no longer the res; a marshal's sale discharges all liens

against the ship and grants the purchaser title free and clear of

liens. Grant Gilmore and Charles L. Black, Jr., The Law of

3
Admiralty § 9-85 (1975). Unlike the situation in Republic, we

cannot trace the res or its proceeds to a particular fund in

Newpark's possession.

A judgment in favor of appellant in this case would be

effectively unenforceable. Appellant McKinney has possession of

the TRINTON BRUTE; there is nothing in Newpark's possession that

could be regarded as the res. For McKinney to be able to recover

from Newpark, we would effectively have to convert the judgment

from one in rem to a judgment in personam. We decline to so extend

the holding in Republic. Therefore, we conclude that this case

falls within Republic's "useless judgment" exception to appellate

in rem jurisdiction and we dismiss McKinney's appeal.1

APPEAL DISMISSED.

1
McKinney attempts to analogize this case to our decision
in Elliott v. M/V LOIS B., 980 F.2d 1001 (5th Cir. 1993). In
Elliott, the judgment awarding Lancon superior title was not
useless, because Lancon could use that judgment in likely
litigation with a subsequent purchaser of the vessel.

4