Kalodner, Ganey and Van Dusen, Circuit Judges.
This is an appeal by the defendant C. F. Schwartz, Incorporated ("Schwartz") from the District Court's Order denying its motion for summary judgment against the plaintiff Aetna Insurance Company ("Aetna"), and entering summary judgment in favor of Aetna and against Schwartz.*fn1
We do not reach the merits of this appeal because we lack jurisdiction to entertain it inasmuch as the challenged Order is not, under the prevailing circumstances, a "final decision" in this case, and that being so, it is not appealable.*fn2
The critical facts adduced by the record may be stated as follows:
For some time prior to April 18, 1963, Schwartz and its co-defendant, Lester C. Newton Trucking Company ("Newton"),*fn3 common motor freight carriers, engaged in an interchange of trucks and drivers in hauling commodities between Salisbury, Maryland, and Pennsylvania, under an oral agreement, which provided that liability for damage to carried cargo was to be borne by the carrier who was in control of the shipment at the time. Schwartz held an ICC certificate to transport commodities from Salisbury to Wyoming, Delaware, and Newton held an ICC certificate to haul commodities from Wyoming to Pennsylvania. Under this agreement, shipments were transported from Salisbury to Pennsylvania in a truck furnished by Schwartz at Salisbury, and control of the truck and driver was taken over by Newton at Wyoming to completion of the haul to Pennsylvania. In transporting cargo from Pennsylvania to Salisbury, Newton furnished the truck, control of the truck and driver being taken over by Schwartz at Wyoming to completion of the haul to Salisbury.
On April 18, 1963, Schwartz and Newton executed, in Delaware, a written agreement designated as the "Master Interchange Agreement" which continued on a year to year basis their prior interchange operations. This written agreement, which provided that "it shall constitute the entire agreement between the parties", changed the liability for damage provision in the prior oral agreement.
It provided, in pertinent part in Paragraph 4(C) (2):
"The initial carrier shall:
"(2) indemnify and save harmless the receiving carrier against any claim by whomsoever filed arising from the operation of the motor vehicles and against any claim for loss or damage to any shipment or shipments being transported in said vehicle. * * *"
On July 7, 1963, Schwartz, at Salisbury, picked up a load of commodities owned by its customer, Campbell Soup Company, for delivery to a point in Pennsylvania. After it yielded control of its truck and cargo to Newton, at Wyoming, a failure in the truck's refrigeration equipment damaged the shipment. Newton then paid Campbell Soup Company $11,116.95 for its loss. It asked Schwartz; the latter's insurer, Continental Insurance Company ("Continental"); and Aetna, its own insurer, to make it whole but they all refused to do so.
On May 11, 1965, Aetna commenced the instant declaratory judgment proceeding against Newton, Schwartz and Continental in which it sought an adjudication that: (1) Schwartz was obligated to make Newton whole; (2) Continental was obligated to pay Schwartz' obligation to Newton; and (3) Aetna was not obligated under the policy it had issued to Newton to pay anything to Newton, Schwartz or Continental.
A veritable flood of Answers, Counterclaims, Cross-Claims, a Motion to Dismiss and Motions for ...