                                                                                                                           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Precedential or Non-Precedential: Precedential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




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                     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).

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