                                   United States Court of Appeals.

                                             Fifth Circuit.

                                      Nos. 96-60286, 96-60431.

 ATLANTIC FERTILIZER AND CHEMICAL CORPORATION, Plaintiff-Counter Defendant-
Appellee,

                                                   v.

                       ITALMARE, S.p.A., a corporation, et al., Defendants,

             Italmare, S.p.A., a corporation, Defendant-Counter Claimant-Appellant.

 ATLANTIC FERTILIZER AND CHEMICAL CORPORATION, Plaintiff-Counter Defendant-
Appellee,

                                                   v.

                       ITALMARE, S.p.A., a corporation, et al., Defendants,

             Italmare, S.p.A., a corporation, Defendant-Counter Claimant-Appellant.

                                            July 17, 1997.

Appeals from the United States District Court for the Southern District of Mississippi.

Before REAVLEY, JOLLY and BENAVIDES, Circuit Judges.

        E. GRADY JOLLY, Circuit Judge:

        In this admiralty case, Italmare Corporation appeals an interlocutory order denying it

counter-security in a dispute with Atlantic Fertilizer and Chemical Corporation. Before reaching the

merits, however, we must determine whether we have jurisdiction over the appeal from the

interlocutory order. We examine the district court's order and read it on its face to say that the

pending arbitration proceedings were an impediment to the court's consideration of Italmare's request

for counter-security. Because the court's conclusion is based on an alleged error of law—as opposed

to an exercise of its discretion—we have appellate jurisdiction to review the interlocutory order. We

hold that the court did err in failing fully to consider Italmare's request. We therefore remand to

allow the district court to exercise its discretion either to grant or to deny the request.

                                                   I

        Atlantic hired the M/V CAPRICORN I to transport bulk diammonium phosphate from
Pascagoula, Mississippi to India. Atlantic determined that the CAPRICORN was unseaworthy and

terminated the charter agreement. Atlantic then filed suit in Admiralty against Aquator Shipping (the

owner of the vessel), Italmare Corporation (the charterer of the vessel), and the CAPRICORN,

alleging multiple breaches of the underlying charter and of the maritime laws. The action sought in

rem arrest of the vessel and attachment of the vessel and her bunkers, or other property onboard the

vessel owned by either Aquator or Italmare. The order for arrest of t he vessel was issued by the

court on the day the action was filed.

        Aquator and Italmare later appeared in the matter and agreed to provide $350,000 as security

in favor of Atlantic. Security was posted,1 and all property was released by order of the court,

pursuant to the parties' agreement.

        In response to Atlantic's libel, Italmare answered and counterclaimed, alleging breach of the

charter. Italmare also filed a request for counter-security of $650,000. Italmare then sought a stay

of the action in favor of arbitration.

        The action was stayed pending arbitration. The magistrate judge denied Italmare's request

for counter-security, preserving Italmare's "right to refile upon the completion of arbitration." The

district court affirmed the order of the magistrate judge. Italmare appeals this order denying

counter-security.

                                                  II

                                                  A

        Before reaching the merits of this appeal, we must first examine whether jurisdiction is proper

in this court. The parties agree that the order denying Italmare's request for counter-security is not

a final order under the terms of 28 U.S.C. § 1291;2 however, Italmare contends that the "collateral

order doctrine" authorizes us to hear this appeal.


   1
   Aquator and Italmare each provided $175,000 in security to Atlantic. Aquator has not
appealed the denial of counter-security.
   2
    Section 1291 provides that circuit courts of appeal "have jurisdiction of appeals from all final
decisions of the district courts of the United States ... except where a direct review may be had in
the Supreme Court." 28 U.S.C. § 1291.
          The collateral order doctrine was established in Cohen v. Beneficial Industrial Loan

Corporation.3 There, the Supreme Court addressed whether a state statute requiring a plaintiff in a

shareholders' derivative action to post security to cover the potential costs and attorneys' fees of the

action applied to an action brought in federal court. The di strict court held that the statute was

inapplicable and refused to order security. Id. at 545, 69 S.Ct. at 1225. The court of appeals

reversed, and the Supreme Court granted certiorari. Id. Before it reached the merits of the appeal,

the Court addressed the appealability of the district court order. Id. The Court upheld appellate

jurisdiction under 28 U.S.C. § 1291, despite the interlocutory nature of the order. It reasoned that

the order was appealable because the "decision appears to fall in that small class which finally

determine claims of right separable from, and collateral to, rights asserted in the action, too important

to be denied review and too independent of the cause itself to require that appellate consideration be

deferred until the whole case is adjudicated." Id. at 546, 69 S.Ct. at 1226. Particularly relevant to

our case today, however, was the Court's careful definition of the perimeters of its holding:

          [W]e do not mean that every order fixing security is subject to appeal. Here it is the right to
          security that presents a serious and unsettled question. If the right were admitted or clear and
          the order involved only an exercise of discretion as to the amount of security ... appealability
          would present a different question.

Id. at 547, 69 S.Ct. at 1226.

          We have had few occasions to apply Cohen to security orders in admiralty cases. In Incas

& Monterey Printing and Packaging, Ltd. v. M/V SANG JIN, 747 F.2d 958 (5th Cir.1984), we found

that an order requiring the plaintiff to post counter-security within ten days or else lose the security

posted by the defendants was reviewable under Cohen.4 More recently, in Shakit v. M/V FORUM

TRADER, 14 F.3d 5 (5th Cir.1993), the court refused to exercise jurisdiction over an appeal from

an order setting security at an amount considered inadequate by the plaintiffs.

          Upon a close look, these cases comport with the distinction drawn in Cohen between orders


   3
       337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
   4
     Titan Navigation, Inc. v. Timsco, Inc., 808 F.2d 400 (5th Cir.1987), involved an order
essentially identical to the order appealed from in Incas & Monterey, and the court found that
jurisdiction existed, without discussion, merely by relying upon the Incas & Monterey decision.
that address a party's right to security and orders that merely reflect an exercise of discretion in

applying that right. See Cohen, 337 U.S. at 547, 69 S.Ct. at 1226. In both Incas & Monterey and

Titan Navigation, the appellant complained that the district court lacked the authority to order the

counter-security; in Shakit, however, the appellant merely complained that the amount of security

was inadequate.5

       Nevertheless, our court has never articulated the general rule that these cases reflect. We like

the way the Second Circuit said it in Donlon Industries v. Forte, 402 F.2d 935 (2d Cir.1968). There,

the Second Circuit observed that the "power-discretion dichotomy" was a reasonable means for

determining the appealability of orders concerning security and stated:

       [w]hether a co urt has power to require an undertaking is an issue of law, and an appellate
       decision will settle the matter not simply for the case in hand but for many others—as was
       notably true with the important issue in Cohen. In contrast, where the question is the
       propriety of an exercise of discretion in denying security, the factual variations are so
       numerous that a judgment on appeal can do little to establish meaningful standards.
       Furthermore, since review would be limited to "abuse" of discretion, the likelihood of reversal
       is too negligible to justify the delay and expense incident to an appeal and the consequent
       burden on hardpressed appellate courts.

Id. at 937. We now turn to apply this standard to the facts of this appeal.

                                                   B

                                                  (1)

        The district court order that is the basis of this appeal states, in relevant part:

       ... Having considered the record, memoranda, and applicable law, the Court finds as follows:

                                           * * * * * *

               This action was stayed pending arbitration, and the motion for counter-security was,
       therefore, denied with the right to refile same upon completion of arbitration. Accordingly,
       we are of the opinion that Italmare has not demonstrated circumstances which would establish
       that the Magistrate's decision is clearly erroneous or contrary to law.

   5
    In Incas & Monterey, the appellant contended, and this court agreed, that the counterclaims
advanced by the defendant were not of the type that could be the basis for an order of
counter-security under Rule E(7) and that, therefore, the district court erred by granting such
counter-security. Incas & Monterey, 747 F.2d at 963. Titan Navigation also involved a
challenge to the district court's authority to order counter-security because, the appellant
contended, the counterclaims advanced by the defendant were outside the scope of Rule E(7).
Titan Navigation, 808 F.2d at 402. On the other hand, Shakit involved a challenge, not to the
authority of the district court to grant security, but to the amount of security granted. Shakit, 14
F.3d at 5.
Italmare urges that the district court incorrect ly premised the denial of counter-security upon the

pending arbitration. In essence, Italmare's position is that the district court failed to exercise its

discretion because the court erroneously believed that the pending arbitration barred its consideration

of the matter.

          The record in this appeal provides little information to aid our determination of the basis of

the denial of counter-security. We only have the brief orders of the magistrate judge and the district

court. Even they provide little insight into the reasoning of the court.6 The express language of the

district court order, however, states "[t]his action was stayed pending arbitration, and the motion for

countersecurity was, therefore, denied." (Emphasis added). This language suggests that the court

believed that the pending arbitration proceedings stood as an impediment to its authority to order

counter-security. Moreover, the magistrate judge reserved Italmare's right to renew its request for

counter-security at the conclusion of arbitration.7 This language is some indication that the magistrate

judge believed that consideration of counter-security was inappropriate so long as the matter was

pending before the arbitrator.

          We have previously held that pending arbitration proceedings do not affect the power of the

district court to grant security. See Transportes Caribe, S.A. v. M/V FEDER TRADER, 860 F.2d

637, 638 (5th Cir.1988). Thus, if the district court indeed believed that it lacked the authority to

order counter-security then the denial reflects a clear legal error and, under the standard discussed

above, we are vested with jurisdiction over this appeal.

          We must conclude from the face of the respective orders that the district court denied

   6
    It was represented to this court at oral arguments that the magistrate judge had taken
evidence, had weighed the arguments of the parties and had, in fact, exercised his discretion.
However, we do not have a transcript of the hearing before the magistrate judge and thus look
only to the orders to determine the basis for the denial.
   7
       The order of the magistrate judge reads, in relevant part:

                  The Court has considered the aforementioned motions and the arguments of
                  counsel and determined that this matter should be stayed pursuant to the
                  arbitration clauses....

                  The motion[ ] of defendants' for countersecurity ... [is] denied with right to refile
                  upon the completion of arbitration.
Italmare's request for counter-security for reasons based on erroneous legal assumptions. Because

this appeal is from an order entered as the result of an erroneous application of the law, and not

simply as the result of an exercise of discretion based on correct assumptions of law, we find that

appellate jurisdiction is appropriate under the "collateral order doctrine."8

                                                  (2)

        Having concluded that we have appellate jurisdiction, the proper resolution of this appeal

becomes clear. Italmare was entitled to have the district court consider fully its request for

counter-security, weigh all competing concerns and exercise its discretion in deciding whether and

to what extent, if any, that its request should be granted. We therefore REMAND this case to the

district court to consider the request for counter-security in accordance with our precedent. The

ruling on the request should clearly state the reasons for the decision.

       REMANDED.

                                          * * * * * *




   8
   Because we conclude that we have jurisdiction under the doctrine announced in Cohen, we
need not address Italmare's alternative theory that jurisdiction exists under 28 U.S.C. §
1292(a)(3).
