John Marshall Harlan II

“ Petitioner sought to recover in this action upon two theories: negligence under the Jones Act and unseaworthiness under the general maritime law. The District Court dismissed the unseaworthiness claim in the complaint, and petitioner appealed. Although petitioner seemed to recognize that the order was not appealable, [1] the Court of Appeals, overruling respondent's motion to dismiss for lack of jurisdiction, affirmed on the merits and this Court granted certiorari over respondent's showing that the Court of Appeals should not have entertained the appeal. ”

“ The fact that Congress has provided some flexibility in the final judgment rule hardly lends support to the Court's attempt to obviate jurisdictional restrictions whenever a court of appeals erroneously entertains a nonappealable order and hardship may result if the substantive questions are not then decided here. ”

“ Conversely, her claim would have been preserved for appeal had she lost on her Jones Act claim. Surely the assertion that petitioner is entitled to submit her unseaworthiness theory to the jury is not collateral to rights asserted in her action, so as to enitle her to an appeal before trial.
3. Finally, the Court's suggestion that 'it seems clear now that the case is before us that the eventual costs, as all the parties recognize, will certainly be less if we now pass on the questions presented here rather than send the case back with those issues undecided,' ante, p. ”