UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 91-3982
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NEWPARK SHIPBUILDING & REPAIR, INC.,
Plaintiff-Appellee,
VERSUS
M/V TRINTON BRUTE, a/k/a
M/V GLENN W. MCKINNEY, ETC., ET AL.,
Defendants-Appellants.
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Appeal from the United States District Court
For the Middle District of Louisiana
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(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
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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