09-0642-cv
Primera Maritime v. Jiangsu Eastern

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUMMARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY THIS COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE
32.1. IN A BRIEF OR OTHER PAPER IN WHICH A LITIGANT CITES A SUMMARY ORDER,
IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST ONE CITATION MUST
EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
“(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF
THAT SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY
ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY COUNSEL UNLESS THE
SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS PUBLICLY
ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH
THE ORDER WAS ENTERED.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 4th day of
December, two thousand nine.

Present:
            WILFRED FEINBERG,
            JOHN M. WALKER,
            ROBERT A. KATZMANN,
                        Circuit Judges,
________________________________________________

PRIMERA MARITIME LIMITED, ASTRA FINANCE INC. and COMET FINANCE INC.

              Plaintiffs-Appellants,

                      v.                                   No. 09-0642-cv

JIANGSU EASTERN HEAVY INDUSTRY CO. LTD and NINGBO NINGSHING
INTERNATIONAL INC.,

              Defendants-Appellees.

________________________________________________
For Plaintiffs-Appellants:    JACK A. GREENBAUM , Blank Rome LLP, New York, NY



        Appeal from the United States District Court for the Southern District of New York
(Koeltl, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the District Court be and hereby is AFFIRMED.

       Plaintiffs-Appellants (“Primera”) appeal from a Memorandum Opinion and Order, dated

January 30, 2009, of the District Court for the Southern District of New York (Koeltl, J.),

dismissing their complaint for lack of subject matter jurisdiction. We assume the parties’

familiarity with the underlying facts and procedural history of the case.

       For a century and a half it has been the Supreme Court’s rule that a dispute arising from a

contract to build a ship does not fall within the federal courts’ admiralty jurisdiction. Thames

Towboat Co. v. Francis McDonald, 254 U.S. 242, 244 (1920); People’s Ferry Co. v. Beers, 61

U.S. 393, 402 (1857). This Court has long held the same. CTI-Container Leasing Corp. v.

Oceanic Operations Corp., 682 F.2d 377, 380 n.4 (2d Cir. 1982); The Ada, 250 F. 194, 198 (2d

Cir. 1918) (Rogers, J., concurring).

       Primera argues that this rule has been implicitly overruled by recent decisions of both the

Supreme Court and this Court. See Norfolk S. Ry. Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14

(2004); Folksamerica Reinsurance Co. v. Clean Water of New York, Inc., 413 F.3d 307 (2d Cir.

2005). Primera is correct to point out that the conceptual approach taken in those cases suggests

that modern principles disfavor per se admiralty rules based on the site of a contract’s formation

or performance. See Norfolk S. Ry. Co., 543 U.S. at 24; Folksamerica, 413 F.3d at 314-15.



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       Such arguments, however, do not relieve this Court of its obligation to apply the

well-established rule that directly controls the outcome of this case. See Rodriguez de Quijas v.

Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989); United States v. Gomez, 580 F.3d 94,

104 (2d Cir. 2009). Until the Supreme Court declares that contracts for ship construction are

maritime in nature, disputes arising from such contracts will not give rise to the federal courts’

admiralty jurisdiction. Accordingly, we AFFIRM the judgment of the District Court.



                                                       FOR THE COURT:
                                                       CATHERINE O’HAGAN WOLFE, CLERK

                                                       By:_________________________________




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