Filed: Jul. 29, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 7-29-2004 Petroleos Mexicanos v. MT King A Precedential or Non-Precedential: Precedential Docket No. 03-2541 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Petroleos Mexicanos v. MT King A" (2004). 2004 Decisions. Paper 426. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/426 This decision is brought to you for free and open access by
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 7-29-2004 Petroleos Mexicanos v. MT King A Precedential or Non-Precedential: Precedential Docket No. 03-2541 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Petroleos Mexicanos v. MT King A" (2004). 2004 Decisions. Paper 426. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/426 This decision is brought to you for free and open access by ..
More
Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-29-2004
Petroleos Mexicanos v. MT King A
Precedential or Non-Precedential: Precedential
Docket No. 03-2541
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Petroleos Mexicanos v. MT King A" (2004). 2004 Decisions. Paper 426.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/426
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL
TERRY L. STOLTZ, ESQ. (ARGUED)
IN THE UNITED STATES COURT OF Nicoletti, Hornig, Campise, Sweeney &
APPEALS Paige
FOR THE THIRD CIRCUIT 88 Pine Street
_________________________ 7 th Floor
New York, NY 10005
NO. 03-2541
__________________________ ANDREW J. GOLDSTEIN, ESQ.
Goldstein, Lem & Isaacson
PETROLEOS MEXICANOS 100 Morris Avenue
REFINACION, 3rd Floor
Springfield, NJ 07081
v.
Attorneys for Appellee
M/T KING A (EX-TBILISI), her
engines, boilers, etc.,
in rem by KING DAVID SHIPPING
CO., LTD.
________________________
Appellant
_______________________________ OPINION OF THE COURT
On Appeal from the United States ________________________
District Court for
The District of New Jersey
BECKER, Circuit Judge.
(D.C. No. 02-cv-01215)
District Judge: Honorable Dennis M. This case presents important questions
Cavanaugh about the scope of our appellate
_______________________________ jurisdiction over the order of a district
Argued June 15, 2004 court sitting in admiralty denying a motion
to dismiss a suit and to vacate a warrant of
Before: ALITO, SMITH and BECKER, arrest in an in rem proceeding. Here,
Circuit Judges appellee Petroleos Mexicanos Refinacion
(Filed: July 29, 2004) (“Pemex”), the Mexican state-owned oil
company, brought an action in rem against
JEREMY J.O. HARWOOD, ESQ. the King A, an oil tanker over which it
(ARGUED) claims to hold a maritime lien. The
Healy & Baillie District Court granted a warrant of arrest
61 Broadway for seizure of the res (the vessel). King
New York, NY 10006 David Shipping Co. Ltd. (“King David”)
claims ownership of the King A and
Attorney for Appellant responded on its behalf, moving under
Supplemental Rule E(4)(f) of the Federal I. Facts and Procedural History
Rules of Civil Procedure to dismiss
A. Background Facts
Pemex’s suit—and to vacate the warrant of
arrest for the King A—on subject matter In late 1992, Pemex chartered a tanker,
jurisdiction and statute of limitations the Tbilisi (which has since been renamed
grounds. The District Court denied the the King A), from Tbilisi Shipping Co.
motion, and King David appeals on behalf (“Tbilisi Shipping”). In a voyage in
of the King A.1 December 1992, a defect in the ship
somehow caused the two types of
We conclude that we lack appellate
petroleum carried by the ship—diesel and
jurisdiction over the District Court’s order
unleaded gasoline—to cross-contaminate.
under 28 U.S.C. § 1291 or the cognate
This allegedly tortious event arguably
collateral order doctrine of Cohen v.
gives rise to a maritime lien on the ship in
Beneficial Industrial Loan Corp., 337 U.S.
favor of Pemex. As security for the
541 (1949). We similarly conclude that
damages, Pemex also withheld some
we do not have appellate jurisdiction under
$530,320 of charter hire that it otherwise
the provisions for appellate review of
owed to Tbilisi Shipping.
certain interlocutory orders found in 28
U.S.C. § 1292(a)(1) and (3). We therefore Tbilisi Shipping conceded liability (but
do not reach the merits of the appeal, not the amount of damages). In 1993,
which we will dismiss for lack of appellate however, Tbilisi Shipping commenced an
jurisdiction. arbitration under the charter to recover the
withheld hire. Tbilisi Shipping’s P&I
club2 issued a Letter of Undertaking
(“LOU”) (for our purposes here, a bond) to
secure any arbitral award in favor of
1
Because this is an in rem action, the Pemex (including costs and fees awarded
King A itself is the defendant with King by the arbitration panel). In return, Pemex
David merely acting on its behalf. promised to pay the withheld hire and
“American courts, by and large, adopted refrain from arresting the Tbilisi.
a ‘personification’ theory in which the
As the parties confirmed at oral
vessel itself is a party and judgments are
argument, the arbitration has been
entered against her without the necessity
of securing jurisdiction over the owner.”
Salazar v. Atlantic Sun, 881 F.2d 73, 76
2
(3d Cir. 1989). We will dispense with “P&I” stands for “Protection and
the linguistic formality in the opinion, Indemnity.” P&I is insurance against
however, and refer simply to King third party liabilities and expenses arising
David’s actions, arguments, etc., while from owning ships or operating ships as
recognizing that it appears only on behalf principals. A P&I club issues such
of the King A. insurance.
2
protracted for reasons not at all relevant The application was in substance a motion
here, and it continues to this day. At some to dismiss the complaint, and (as the
point, the Tbilisi was renamed the King A, logical consequence thereof) to vacate the
and it is now owned by King David. warrant of arrest and discharge King
Pemex, wanting additional security for its David’s P&I club’s LOU.
claim (in case the LOU from Tbilisi
The District Court ruled on three issues
Shipping’s P&I club proves insufficient to
in denying the Rule E(4)(f) application.
cover any arbitral award) sought to arrest
First, it held that Pemex has standing to
the King A, on the theory that the tortious
pursue the in rem action, over King
event created a maritime lien on the ship,
David’s objection that Pemex had been
irrespective of its owner.
paid in full for its loss by its insurers, and
B. Proceedings Before the District Court so had no lien on the ship, and hence no
standing to sue. Second, the District Court
Pemex applied in mid-March 2002 to
held that there was a valid maritime lien
the United States District Court for the
against the ship, and so the warrant of
District of New Jersey for, and was
arrest was proper, over King David’s
granted, a warrant of arrest for the King A,
objection that Pemex failed to properly
which was scheduled to call at Port
plead the existence of a maritime lien in its
Newark. 3 A few days later, King David’s
complaint. Third, the District Court held
P&I club issued a LOU to secure any in
that there was no statute of limitations bar
rem award, so the warrant of arrest was
to Pemex’s claim, over King David’s
withdrawn and was not actually served on
objection that this action was subject to a
the King A.
one-year limitations period that had not
In September 2002, King David been tolled, and had thus long ago expired.
submitted an application under Fed. R. Thus, the District Court denied King
Civ. P. Supp. Rule E(4)(f), which David’s motion to dismiss, and refused to
provides: “Whenever property is arrested vacate the warrant of arrest for the King A.
or attached, any person claiming an
C. This Appeal
interest in it shall be entitled to a prompt
hearing at which the plaintiff shall be King David argues on appeal that the
required to show why the arrest or District Court’s holdings on subject matter
attachment should not be vacated or other jurisdiction, the existence of a maritime
relief granted consistent with these rules.” lien, and the statute of limitations were
incorrect. Viewing these matters as
immaterial here, Pemex moved this Court
3
This is the normal course to begin an to dismiss the appeal for lack of appellate
in rem admiralty proceeding—a jurisdiction. In response, King David
complaint is filed, and a warrant of arrest moved for a summary remand to the
is issued for the res. See Fed. R. Civ. P. District Court with instructions to dismiss
Supp. Rule C.
3
the complaint. These motions were interlocutory orders of district courts
referred to the merits panel. See Third sitting in admiralty; and fourth, 28 U.S.C.
Circuit IOP 10.3.5, 10.6. § 1 2 9 2 ( a ) (1 ) , w h i c h autho riz e s
interlocutory appeals from orders granting
or refusing certain forms of interim or
II. Appellate Jurisdiction provisional relief. We address each
jurisdictional provision in turn.4
A Rule E(4)(f) motion (“Actions in
Rem and Quasi in Rem: General A. 28 U.S.C. § 1291
Provisions – Procedure for Release From
With the exception of the Cohen
Arrest or Attachment”) is similar (at least
collateral order doctrine, see infra Part
here) to a motion under Fed. R. Civ. P.
II.B, an appeal under 28 U.S.C. § 1291 lies
12(b)(6) for failure to state a claim upon
only from a “final decision[].” As the
which relief can be granted; in the case of
Supreme Court has repeatedly emphasized,
Pemex’s alleged lack of standing, it is
similar to a motion under Fed. R. Civ. P.
12(b)(1) to dismiss for lack of subject
4
matter jurisdiction. However, in view of Relying on the principle that subject
its practical effect here, the Rule E(4)(f) matter jurisdiction may be raised at any
motion belongs to the class of motions time, King David has zealously argued
touching upon interim measures or that the Court of Appeals has an
provisional relief, such as motions to obligation to consider the jurisdiction of
attach property or release an attachment, or the court whose ruling is under appeal.
motions for temporary restraining orders This is abstractly true, but not the full
or preliminary injunctions. As such, in the story, as even the authorities quoted by
discussion that follows, we are constrained King David demonstrate. For example:
to look at it both as a motion to dismiss “On every writ of error or appeal, the
and as an order similar to those touching first and fundamental question is that of
upon interim measures or provisional jurisdiction, first, of this court, and then
relief. of the court from which the record
comes.” Steel Co. v. Citizens for a Better
Four possible sources of appellate
Env’t, 523 U.S. 83, 94 (1998) (quoting
jurisdiction command our attention: First,
Great S. Fire Proof Hotel Co. v. Jones,
the familiar appeal-from-final-judgment
177 U.S. 449, 453 (1900)) (emphasis
provision of 28 U.S.C. § 1291; second, the
added). As this quotation aptly
collateral order doctrine of Cohen v.
demonstrates, the question of this Court’s
Beneficial Industrial Loan Corp., 337 U.S.
jurisdiction (i.e., our appellate
541 (1949), which allows appeals under §
jurisdiction) is antecedent to all other
1291 from certain collaterally final orders;
questions, including the question of the
third, 28 U.S.C. § 1292(a)(3), which
subject matter jurisdiction of the District
expressly allows appeals from certain
Court.
4
“a decision is not final, ordinarily, unless Sub-Freights, Charter Hire, 558 F.2d
it ‘“ends the litigation on the merits and 1050, 1051 (2d Cir. 1977). We agree: 28
leaves nothing for the court to do but U.S.C. § 1291 in its ordinary sense does
execute the judgment.”’” Cunningham v. not confer jurisdiction on this Court in this
Hamilton County, 527 U.S. 198, 204 appeal.
(1999) (quoting Van Cauwenberghe v.
B. Collateral Order Doctrine
Biard, 486 U.S. 517, 521-22 (1988)
(quoting Catlin v. United States, 324 U.S. We recently had occasion to discuss the
229, 233 (1945))); see also Gov’t of V.I. v. collateral order doctrine in Gov’t of V.I. v.
Rivera,
333 F.3d 143, 150 (3d Cir. 2003) Hodge,
359 F.3d 312, 319 (3d Cir. 2004):
(quoting
Catlin, 324 U.S. at 233). “The
This Court’s recent definitive
denial of a motion to dismiss does not end
treatment of the collateral order
the litigation and ordinarily is not a final
doctrine is In re Ford Motor Co.,
order for § 1291 purposes.” Bell
110 F.3d 954 (3d Cir. 1997). There
Atlantic-Pa., Inc. v. Pa. Pub. Util.
we explained:
Comm’n, 273 F.3d 337, 343 (3d Cir. 2001)
(citing 15A Wright, Miller & Cooper, The colla te r a l o rd e r
Federal Practice and Procedure § 3914.6 doctrine, first enunciated by
at 526 (“Orders refusing to dismiss an the Supreme Court in Cohen
action almost always are not final.”)). The v. Beneficial Indus. Loan
District Court’s decision denying King Corp.,
337 U.S. 541 (1949),
David’s motion to dismiss plainly does not provides a narrow exception
meet the Catlin finality standard: But for t o t h e g e n e r a l r u le
this appeal, litigation on the merits would permitting appellate review
have continued, and there was no only of final orders. An
judgment to execute. appeal of a nonfinal order
will lie if (1) the order from
Likewise, the status of the warrant of
which the appellant appeals
arrest has no bearing on the merits, and
conclusively determines the
wh ile the arre st of th e ship
disputed question; (2) the
(metamorphosed into the LOU) may in the
order resolves an important
future be used to satisfy a judgment, the
issue that is completely
arrest itself is not the immediate precursor
separate from the merits of
to execution of a judgment. The Court of
the dispute; and (3) the
Appeals for the Second Circuit has
o r d e r i s e f f e ct i v e ly
cataloged a “long and distinguished line of
unreviewable on appeal
authority” that “an order denying a motion
from a final judgment. See
to vacate an attachment” is not “a final
Rhone-Poulenc Rorer Inc. v.
order within the meaning of 28 U.S.C. §
Home Indem. Co., 32 F.3d
1291.” Drys Shipping Corp. v. Freights,
851, 860 (3d Cir. 1994).
5
Id. at 958. As the Cohen Court district court lacked subject matter
explained, 28 U.S.C. § 1291 has jurisdiction. See, e.g., State Farm Mut.
been given a “practical rather than Auto. Ins. Co. v. Powell,
87 F.3d 93 (3d
a technical construction.” 337 U.S. Cir. 1996). Likewise, there are cases
at 546. To this end, as a doctrinal (though fewer of them) addressing Rule
matter, orders that meet the three 17(a) issues on appeal from final
prongs described above are deemed judgments in favor of plaintiffs. See, e.g.,
to be “final decisions” within the Borror v. Sharon Steel Corp., 327 F.2d
meaning of the statute. 165 (3d Cir. 1964).
We need not consider the first or second Moreover, we recently reaffirmed the
prongs of the Cohen test, for nothing in the principle that interlocutory orders finding
District Court’s order satisfies the third subject matter jurisdiction are ordinarily
prong, that the issue be “effectively not appealable under the collateral order
unreviewable on appeal from a final doctrine. “‘[N]on-immunity based
judgment.” In assessing “effective motions to dismiss for want of subject
unreviewability” we address individually matter jurisdiction are not ordinarily
each of the issues determined by the entitled to interlocutory review.’” Hodge,
District Court (standing, existence of
a 359 F.3d at 321 (quoting Merritt v. Shuttle,
lien, and statute of limitations) as well as Inc.,
187 F.3d 263, 268 (2d Cir. 1999)
its overall refusal to vacate the warrant of (citing
Catlin, 324 U.S. at 236)). There is
arrest. no reason to depart from this general rule
in this case. There are countless cases
Standing is a question of subject matter
where a district court rejects a defendant’s
jurisdiction. E.B. v. Verniero, 119 F.3d
challenge to the plaintiff’s standing; in that
1077, 1092 n.12 (3d Cir. 1997) (quoting
posture, defendants simply may not seek
Page v. Schweiker, 786 F.2d 150, 153 (3d
immediate review in the court of appeals.
Cir. 1986)). What the parties here speak
of as standing may also, as the District The statute of limitations and maritime
Court recognized, really be a question of lien validity issues are likewise reviewable
compliance with Fed. R. Civ. P. 17(a), on appeal after final judgment. See, e.g.,
which requires that civil actions be Bell Atlantic-Pa., 273 F.3d at 345 (“The
brought by the “real parties in interest.” statute of limitations defense fails the third
Whether Article III, Rule 17(a), or both are prong of the Cohen standard because it is
at issue, there is no reason to suspect that not effectively unreviewable on appeal
King David will be unable to obtain from final judgment.”); Bermuda Express,
effective review of its arguments on appeal N.V. v. M/V Litsa (Ex. Laurie U), 872 F.2d
from a final judgment. Cases abound 554 (3d Cir. 1989) (reviewing validity of
where a victorious plaintiff’s judgment maritime lien on appeal from final
evaporates on appeal after final judgment judgment in favor of lienor stevedores).
when the court of appeals holds that the Should Pemex ultimately prevail before
6
the District Court, King David may take attachment has Cohen-type finality.
precisely the course charted by the Swift & Co. Packers v. Compania
defendants in the cases we cite. Colombiana del Caribe, 339 U.S.
684 (1950). Appellate review of
The legal issues considered above
such an order at a later date “would
(jurisdiction, maritime lien, and statute of
be an empty rite after the vessel had
limitations) have no immediate effect
been released and the restoration of
(aside from continuing the litigation). The
the attachment only theoretically
refusal to vacate the warrant of arrest is
possible.” 339 U.S. at 689.
different to the extent that it has the
immediate effect of compelling King “The situation is quite different
David to maintain its P&I club’s LOU. where an attachment is upheld
We have not had occasion to consider pending determination of the
whether this is a distinction with a principal claim,” the Court said in
difference. The Court of Appeals for the Swift & Company Packers, citing
Fifth Circuit has held that it is not. See Cushing v. Laird,
107 U.S. 69
Astarte Shipping Co. v. Allied Steel & (1883). “In such a situation the
Export Service,
767 F.2d 86, 88 (5th Cir. rights of all the parties can be
1985); Constructora Subacuatica Diavaz, adequately protected while the
S.A. v. M/V Hiryu,
718 F.2d 690, 692 (5th litigation on the main claim
Cir. 1983); accord Seguros Banvenez S.A.
proceeds.” 339 U.S. at 689.
v. S/S Oliver Drescher,
715 F.2d 54, 57 Although dictum, the Court’s
(2d Cir. 1983) (Mansfield, J., concurring). statement is persuasive, illustrating
as it does the rationale underlying
The logic of all these cases is that the
the application of Cohen.
refusal to vacate a warrant of arrest is not
effectively unreviewable after final Constructora Subacuatica Diavaz, 718
judgment. If King David should prevail, it F.2d at 692.
could seek compensation for the expense
We are in complete agreement, and our
of maintaining the LOU during the
long-established precedent from an
pendency of the litigation. This is in stark
analogous area—nonmaritim e
contrast to the case where a warrant of
prejudgment attachments—confirms our
arrest is vacated and the plaintiff appeals;
view. In United States v. Estate of Pearce,
there, with the res unattached, and literally
498 F.2d 847 (3d Cir. 1974) (en banc), we
sailing away, the plaintiff would be unable
held that we were without jurisdiction to
to execute on a judgment if it were
review an order denying a motion to quash
ultimately victorious on the merits. The
a sequestration order under Delaware law.
Fifth Circuit put the contrast well:
We observed that sequestration under
The Supreme Court has held Delaware law is an equitable device
that an order vacating an “analogous to foreign attachment at law,”
7
id. at 849 (citing Delaware cases), and appeals in admiralty establishes that
noted that “[o]rders granting or denying the language of § 1292(a)(3)
attachment are ordinarily interlocutory and regarding a final determination of
non-appealable,”
id. (citing 9 Moore’s rights and liabilities applies to
Federal Practice ¶ 110.13[5]). Then, situations such as the dismissal of
citing Swift & Co. Packers, we concluded parties from the litigation, grants of
that, while an order denying or dissolving summary judgment (even if not to
an attachment may be appealable under the all parties), and other cases where a
collateral order doctrine, orders upholding claim has somehow been
attachments are not, and we therefore terminated. “[T]he order appealed
dismissed the appeal. See
id. at 849-50. from must conclusively determine
At least with respect to the collateral order the merits of a claim or defense.”
doctrine, we see no meaningful distinction Kingstate Oil v. M/V Green Star,
between the order appealed from in
815 F.2d 918, 921 (3d Cir. 1987).
Pearce’s Estate and the order appealed For example, in Jones & Laughlin
from here. Thus we conclude that Cohen Steel, Inc. v. Mon River Towing,
provides no basis for immediately Inc.,
772 F.2d 62, 64 & n.1 (3d Cir.
appealing the denial of a motion to vacate 1985), we allowed an interlocutory
a warrant of arrest. appeal in admiralty after one of the
defendants was dismissed from the
C. 28 U.S.C. § 1292(a)(3)
action for lack of subject matter
We next consider whether the District jurisdiction. In [In re Complaint
Court’s order is appealable under the of] Nautilus Motor [Tanker Co.], 85
admiralty-specific provision of 28 U.S.C. F.3d [105,] 109-10 [(3d Cir.
§ 1292(a)(3), which confers jurisdiction on 1996)], we granted an appeal
the courts of appeals over appeals from following the grant of judgment for
“[i]nterlocutory decrees of such district the counterclaim, even though the
courts or the judges thereof determining principal claim had not been
the rights and liabilities of the parties to conclusively decided. As we have
admiralty cases in which appeals from previously stated, interlocutory
final decrees are allowed.” We have appeals in admiralty apply “to any
focused on the “rights and liabilities” order which finally determines the
language to limit the scope of appealable liability of a party even if the order
interlocutory orders. In In re Complaint of leaves unresolved an issue which
PMD Enterprises, Inc., 301 F.3d 147, 149- may ultimately preclude recovery
50 (3d Cir. 2002), we recounted some by a particular plaintiff.” Bankers
cases where we have found § 1292(a)(3) to Trust Co. v. Bethlehem Steel Corp.,
apply:
761 F.2d 943, 945 n.1 (3d Cir.
1985) (emphasis in original).
Our case law on interlocutory
8
A prototypical application of § refers to the conclusive determination in
1292(a)(3) is the appeal of a ruling on favor of the defendant of a defense, such
liability prior to a trial on damages. See, that the plaintiff will not succeed on its
e.g., United States v. The Lake George, claim, and may take an immediate appeal.
224 F.2d 117, 118-19 (3d Cir. 1955) S ym m etr ica lly, a d ef e nd a nt m ay
(“[T]he statute permits an appeal in immediately appeal the conclusive
avoidance of the expense and delay of determination in favor of the plaintiff of a
finding damages which may not be claim. To use the language from PMD
recovered. It is settled, however, that the Enterprises, § 1292(a)(3) authorizes
statute does not cover all interlocutory appeals only when “a claim has somehow
orders, but only such as ‘determine the been
terminated.” 301 F.3d at 149
rights and liabilities of the parties’, and it (emphasis added). Section 1292(a)(3) may
was not intended to allow repeated allow more interlocutory appeals than are
appeals.” (citations omitted)). generally permitted in civil litigation, but
it does not permit litigants to parade
Therefore, the question in this case is
piecemeal appeals before the court of
whether any of Pemex’s or the defendant’s
appeals. If we had jurisdiction under §
“rights” or “liabilities” have been finally
1292(a)(3) to consider a District Court’s
decided. They have not: The District
rejection of a statute of limitations
Court’s ruling on standing resolves the
defense, we could think of few orders that
question in favor of finding jurisdiction,
would not be subject to immediate appeal.
which is the archetypal ruling not about
rights or liabilities. Finding the existence The District Court’s refusal to vacate
of a maritime lien is a step on the road to the warrant of arrest again presents a
finding liability, but it is only a step, and slightly different question. We have not
we do not understand King David to have previously held whether interlocutory
conceded that the King A is liable to orders denying motions to vacate maritime
Pemex. attachments (i.e., warrants of arrest) are
appealable under § 1292(a)(3). It seems
The ruling on the statute of limitations
clear that they are not, for whether or not a
likewise does not have the effect of finally
vessel is subject to arrest says nothing
determining whether one party is liable to
about the “rights and liabilities” of the
another. The District Court does appear to
parties; it is merely a procedural matter.
have conclusively ruled that the statute of
See Astarte Shipping, 767 F.2d at 88. In
limitations defense is unavailable in this
sum, 28 U.S.C. § 1292(a)(3) is of no aid to
case, but that is not the end of the case,
the appellants.
and it is not, at all events, the sort of
“conclusive[] determin[ation of] the merits D. 28 U.S.C. § 1292(a)(1)
of a . . . defense” spoken of in Kingstate
The final possible source of appellate
Oil v. M/V Green Star, 815 F.2d 918, 921
jurisdiction is the statute authorizing
(3d Cir. 1987). Rather, this language
9
review in the courts of appeals of orders (1988) (holding that a district court’s
“granting, continuing, modifying, refusing refusal to abstain under Colorado River
or dissolving injunctions, or refusing to Water Conservation Dist. v. United States,
dissolve or modify injunctions.” 28 U.S.C. 424 U.S. 800 (1976), was not appealable
§ 1292(a)(1).5 This subsection plainly under 28 U.S.C. § 1292(a)(1)). We
does not apply to the District Court’s therefore conclude that the District Court’s
decisions on jurisdiction, the maritime order in this case is not appealable under §
lien, or the statute of limitations; the only 1292(a)(1).
question is whether the refusal to vacate a
warrant of arrest is, for purposes of §
1292(a)(1), the refusal to dissolve an III. Conclusion
injunction. We hold that it is not. The
For the foregoing reasons, we lack
warrant of arrest is not, like an injunction,
appellate jurisdiction in this case. That
a form of substantive relief; rather, it is a
said, we of course express no view on the
component of the conduct of the litigation
merits of the decision that King David
in an admiralty proceeding in rem. See
appeals, and this opinion is without
supra note 3. “An order by a federal court
prejudice to King David’s right to take an
that relates only to the conduct or progress
appeal from an appropriate final order or
of litigation before that court ordinarily is
appealable interlocutory order presenting
not considered an injunction and therefore
the same issues it now appeals.
is not appealable under § 1292(a)(1).”
G u l f s tr e a m A e r o s p ace C o rp . v . The appeal will be dismissed.
Mayacamas Corp., 485 U.S. 271, 279
5
There is nothing in § 1292(a) or
elsewhere to indicate that subsection (3)
is the exclusive provision for
interlocutory review of orders in
admiralty, and we see no logical reason
that subsection (1) is not also available.
See Treasure Salvors, Inc. v.
Unidentified Wrecked & Abandoned
Sailing Vessel, 640 F.2d 560, 564 (5th
Cir. 1981); see also R.M.S. Titanic, Inc.
v. Wrecked & Abandoned Vessel,
286
F.3d 194 (4th Cir. 2002) (finding
jurisdiction under 28 U.S.C. § 1292(a)(1)
over an interlocutory appeal from district
court sitting in admiralty).
10
