American International Insurance Co., Plaintiff, Appellant, v. the Vessel Ss Fortaleza, Her Engines, Her Boilers, Etc.,puerto Rico Maritime Shipping Authority,defendants, Appellees, 585 F.2d 22 (1st Cir. 1978)

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US Court of Appeals for the First Circuit - 585 F.2d 22 (1st Cir. 1978)

Submitted Sept. 7, 1978. Decided Oct. 5, 1978

Rafael A. Villa Carrion, Santurce, P. R., and Charles A. Cordero, San Juan, P. R., on brief for appellant.

Jose Antonio Fuste, Jimenez & Fuste and Sara E. de Jesus Kellogg, Hato Rey, P. R., on brief for appellees.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.


Appellant appeals from the unopposed entry of summary judgment. On the papers before it when it acted, the district court was plainly warranted in concluding that there was no triable issue of fact. To be sure, we emphasized in Mack v. Cape Elizabeth School Board, 553 F.2d 720 (1st Cir. 1977), that if the moving party fails to make a sufficient showing that there is no genuine issue of material fact, summary judgment should be denied even though opposing affidavits are not filed. Here, however, movant's affidavit was adequate to support the granting of summary judgment in the absence of a counteraffidavit setting forth facts impugning those asserted by movant. That the vessel might, in the exercise of due care, have been able to avoid the storm, or taken special precautions for the cargo, are sheer speculations.

With respect to the contention that the court should have allowed discovery, the simple answer is that appellant should have made a request for discovery before, not after, the court had ruled on the motion. We find no abuse of discretion in the court's denial of the motion requesting relief from the judgment.

Future appeals of this character will invite double costs.

Affirmed. Costs for appellee.