Opinion
No. 199, Docket 20499.
March 27, 1947.
Appeal from the District Court of the United States for the Southern District of New York.
Action under the Merchant Marine Act, 1936, § 225, 46 U.S.C.A. § 1128d, by Maria Sorensen, named beneficiary of a marine and war risk insurance policy written upon the life of a seaman who was killed as a result of enemy action on June 5, 1944, against the United States of America. From an order, 69 F. Supp. 660, allowing intervention by persons claiming to be the lawful widow and children of the deceased seaman, the libelant appeals.
Appeal dismissed.
Rolnick Asofsky, of New York City, for appellant.
Alfred J. Bedard, of New York City (Julian A. Ronan, of counsel), for appellees.
Before SWAN, CHASE and FRANK, Circuit Judges.
The appellant opposed the appellees' petition for intervention on the ground that their claim to the proceeds of the insurance was barred by the applicable statute of limitation. On appeal she argues that the court erred in overruling this defense. But before reaching that question we must determine whether the order is appealable. Obviously it is not a final order. See Rutherford v. Fisher, 4 Dall., Pa., 22, 1 L.Ed. 724 (overruling a plea of limitations). As an interlocutory order in admiralty it is appealable only if it determines "the rights and liabilities of the parties." 28 U.S.C.A. § 227; Schoenamsgruber v. Hamburg American Line, 294 U.S. 454, 458, 55 S.Ct. 475, 79 L.Ed. 989; Barbarino v. Stanhope S.S. Co., 2 Cir., 151 F.2d 553, 555. The order on appeal determined nothing as to the rights of the appellant; she may win the case when it comes to trial. Under some circumstances an order denying intervention may finally determine the petitioner's rights and may therefore be appealable by him. See United States v. Radice, 2 Cir., 40 F.2d 445; In re Dolcater, 2 Cir., 106 F.2d 30, 32. But neither principle nor authority supports the appellant's contention that she may appeal from an order which merely allows another claimant to intervene. The appeal is dismissed for lack of jurisdiction.