Petroleos Mexicanos Refinacion v. M/T KING AEX-TBILISI , her engines, boilers, etc., in rem by KING DAVID SHIPPING…

PRECEDENTIAL
IN THE UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
_________________________
NO. 03-2541
__________________________
PETROLEOS MEXICANOS
REFINACION,
v.
M/T KING A (EX-TBILISI), her
engines, boilers, etc.,
in rem by KING DAVID SHIPPING
CO., LTD.
Appellant
_______________________________
On Appeal from the United States
District Court for
The District of New Jersey
(D.C. No. 02-cv-01215)
District Judge: Honorable Dennis M.
Cavanaugh
_______________________________
Argued June 15, 2004
Before: ALITO, SMITH and BECKER,
Circuit Judges
(Filed: July 29, 2004)
JEREMY J.O. HARWOOD, ESQ.
(ARGUED)
Healy & Baillie
61 Broadway
New York, NY 10006
Attorney for Appellant
TERRY L. STOLTZ, ESQ. (ARGUED)
Nicoletti, Hornig, Campise, Sweeney &
Paige
88 Pine Street
7th Floor
New York, NY 10005
ANDREW J. GOLDSTEIN, ESQ.
Goldstein, Lem & Isaacson
100 Morris Avenue
3rd Floor
Springfield, NJ 07081
Attorneys for Appellee
________________________
OPINION OF THE COURT
________________________
BECKER, Circuit Judge.
This case presents important questions
about the scope of our appellate
jurisdiction over the order of a district
court sitting in admiralty denying a motion
to dismiss a suit and to vacate a warrant of
arrest in an in rem proceeding. Here,
appellee Petroleos Mexicanos Refinacion
(“Pemex”), the Mexican state-owned oil
company, brought an action in rem against
the King A, an oil tanker over which it
claims to hold a maritime lien. The
District Court granted a warrant of arrest
for seizure of the res (the vessel). King
David Shipping Co. Ltd. (“King David”)
claims ownership of the King A and
responded on its behalf, moving under

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Supplemental Rule E(4)(f) of the Federal
Rules of Civil Procedure to dismiss
Pemex’s suit—and to vacate the warrant of
arrest for the King A—on subject matter
jurisdiction and statute of limitations
grounds. The District Court denied the
motion, and King David appeals on behalf
of the King A.1
We conclude that we lack appellate
jurisdiction over the District Court’s order
under 28 U.S.C. § 1291 or the cognate
collateral order doctrine of Cohen v.
Beneficial Industrial Loan Corp., 337 U.S.
541 (1949). We similarly conclude that
we do not have appellate jurisdiction under
the provisions for appellate review of
certain interlocutory orders found in 28
U.S.C. § 1292(a)(1) and (3). We therefore
do not reach the merits of the appeal,
which we will dismiss for lack of appellate
jurisdiction.
I. Facts and Procedural History
A. Background Facts
In late 1992, Pemex chartered a tanker,
the Tbilisi (which has since been renamed
the King A), from Tbilisi Shipping Co.
(“Tbilisi Shipping”). In a voyage in
December 1992, a defect in the ship
somehow caused the two types of
petroleum carried by the ship—diesel and
unleaded gasoline—to cross-contaminate.
This allegedly tortious event arguably
gives rise to a maritime lien on the ship in
favor of Pemex. As security for the
damages, Pemex also withheld some
$530,320 of charter hire that it otherwise
owed to Tbilisi Shipping.
Tbilisi Shipping conceded liability (but
not the amount of damages). In 1993,
however, Tbilisi Shipping commenced an
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
Pemex (including costs and fees awarded
by the arbitration panel). In return, Pemex
promised to pay the withheld hire and
refrain from arresting the Tbilisi.
As the parties confirmed at oral
argument, the arbitration has been
1Because this is an in rem action, the
King A itself is the defendant with King
David merely acting on its behalf.
“American courts, by and large, adopted
a ‘personification’ theory in which the
vessel itself is a party and judgments are
entered against her without the necessity
of securing jurisdiction over the owner.”
Salazar v. Atlantic Sun, 881 F.2d 73, 76
(3d Cir. 1989). We will dispense with
the linguistic formality in the opinion,
however, and refer simply to King
David’s actions, arguments, etc., while
recognizing that it appears only on behalf
of the King A.
2“P&I” stands for “Protection and
Indemnity.” P&I is insurance against
third party liabilities and expenses arising
from owning ships or operating ships as
principals. A P&I club issues such
insurance.

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protracted for reasons not at all relevant
here, and it continues to this day. At some
point, the Tbilisi was renamed the King A,
and it is now owned by King David.
Pemex, wanting additional security for its
claim (in case the LOU from Tbilisi
Shipping’s P&I club proves insufficient to
cover any arbitral award) sought to arrest
the King A, on the theory that the tortious
event created a maritime lien on the ship,
irrespective of its owner.
B. Proceedings Before the District Court
Pemex applied in mid-March 2002 to
the United States District Court for the
District of New Jersey for, and was
granted, a warrant of arrest for the King A,
which was scheduled to call at Port
Newark.3 A few days later, King David’s
P&I club issued a LOU to secure any in
rem award, so the warrant of arrest was
withdrawn and was not actually served on
the King A.
In September 2002, King David
submitted an application under Fed. R.
Civ. P. Supp. Rule E(4)(f), which
provides: “Whenever property is arrested
or attached, any person claiming an
interest in it shall be entitled to a prompt
hearing at which the plaintiff shall be
required to show why the arrest or
attachment should not be vacated or other
relief granted consistent with these rules.”
The application was in substance a motion
to dismiss the complaint, and (as the
logical consequence thereof) to vacate the
warrant of arrest and discharge King
David’s P&I club’s LOU.
The District Court ruled on three issues
in denying the Rule E(4)(f) application.
First, it held that Pemex has standing to
pursue the in rem action, over King
David’s objection that Pemex had been
paid in full for its loss by its insurers, and
so had no lien on the ship, and hence no
standing to sue. Second, the District Court
held that there was a valid maritime lien
against the ship, and so the warrant of
arrest was proper, over King David’s
objection that Pemex failed to properly
plead the existence of a maritime lien in its
complaint. Third, the District Court held
that there was no statute of limitations bar
to Pemex’s claim, over King David’s
objection that this action was subject to a
one-year limitations period that had not
been tolled, and had thus long ago expired.
Thus, the District Court denied King
David’s motion to dismiss, and refused to
vacate the warrant of arrest for the King A.
C. This Appeal
King David argues on appeal that the
District Court’s holdings on subject matter
jurisdiction, the existence of a maritime
lien, and the statute of limitations were
incorrect. Viewing these matters as
immaterial here, Pemex moved this Court
to dismiss the appeal for lack of appellate
jurisdiction. In response, King David
moved for a summary remand to the
District Court with instructions to dismiss
3This is the normal course to begin an
in rem admiralty proceeding—a
complaint is filed, and a warrant of arrest
is issued for the res. See Fed. R. Civ. P.
Supp. Rule C.

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the complaint. These motions were
referred to the merits panel. See Third
Circuit IOP 10.3.5, 10.6.
II. Appellate Jurisdiction
A Rule E(4)(f) motion (“Actions in
Rem and Quasi in Rem: General
Provisions – Procedure for Release From
Arrest or Attachment”) is similar (at least
here) to a motion under Fed. R. Civ. P.
12(b)(6) for failure to state a claim upon
which relief can be granted; in the case of
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
matter jurisdiction. However, in view of
its practical effect here, the Rule E(4)(f)
motion belongs to the class of motions
touching upon interim measures or
provisional relief, such as motions to
attach property or release an attachment, or
motions for temporary restraining orders
or preliminary injunctions. As such, in the
discussion that follows, we are constrained
to look at it both as a motion to dismiss
and as an order similar to those touching
upon interim measures or provisional
relief.
Four possible sources of appellate
jurisdiction command our attention: First,
the familiar appeal-from-final-judgment
provision of 28 U.S.C. § 1291; second, the
collateral order doctrine of Cohen v.
Beneficial Industrial Loan Corp., 337 U.S.
541 (1949), which allows appeals under §
1291 from certain collaterally final orders;
third, 28 U.S.C. § 1292(a)(3), which
expressly allows appeals from certain
interlocutory orders of district courts
sitting in admiralty; and fourth, 28 U.S.C.
§ 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
provisional relief. We address each
jurisdictional provision in turn.4
A. 28 U.S.C. § 1291
With the exception of the Cohen
collateral order doctrine, see infra Part
II.B, an appeal under 28 U.S.C. § 1291 lies
only from a “final decision[].” As the
Supreme Court has repeatedly emphasized,
4Relying on the principle that subject
matter jurisdiction may be raised at any
time, King David has zealously argued
that the Court of Appeals has an
obligation to consider the jurisdiction of
the court whose ruling is under appeal.
This is abstractly true, but not the full
story, as even the authorities quoted by
King David demonstrate. For example:
“On every writ of error or appeal, the
first and fundamental question is that of
jurisdiction, first, of this court, and then
of the court from which the record
comes.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94 (1998) (quoting
Great S. Fire Proof Hotel Co. v. Jones,
177 U.S. 449, 453 (1900)) (emphasis
added). As this quotation aptly
demonstrates, the question of this Court’s
jurisdiction (i.e., our appellate
jurisdiction) is antecedent to all other
questions, including the question of the
subject matter jurisdiction of the District
Court.

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“a decision is not final, ordinarily, unless
it ‘“ends the litigation on the merits and
leaves nothing for the court to do but
execute the judgment.”’” Cunningham v.
Hamilton County, 527 U.S. 198, 204
(1999) (quoting Van Cauwenberghe v.
Biard, 486 U.S. 517, 521-22 (1988)
(quoting Catlin v. United States, 324 U.S.
229, 233 (1945))); see also Gov’t of V.I. v.
Rivera, 333 F.3d 143, 150 (3d Cir. 2003)
(quoting Catlin, 324 U.S. at 233). “The
denial of a motion to dismiss does not end
the litigation and ordinarily is not a final
order for § 1291 purposes.” Bell
Atlantic-Pa., Inc. v. Pa. Pub. Util.
Comm’n, 273 F.3d 337, 343 (3d Cir. 2001)
(citing 15A Wright, Miller & Cooper,
Federal Practice and Procedure § 3914.6
at 526 (“Orders refusing to dismiss an
action almost always are not final.”)). The
District Court’s decision denying King
David’s motion to dismiss plainly does not
meet the Catlin finality standard: But for
this appeal, litigation on the merits would
have continued, and there was no
judgment to execute.
Likewise, the status of the warrant of
arrest has no bearing on the merits, and
w h i l e t h e a r r e s t o f t h e s h i p
(metamorphosed into the LOU) may in the
future be used to satisfy a judgment, the
arrest itself is not the immediate precursor
to execution of a judgment. The Court of
Appeals for the Second Circuit has
cataloged a “long and distinguished line of
authority” that “an order denying a motion
to vacate an attachment” is not “a final
order within the meaning of 28 U.S.C. §
1291.” Drys Shipping Corp. v. Freights,
Sub-Freights, Charter Hire, 558 F.2d
1050, 1051 (2d Cir. 1977). We agree: 28
U.S.C. § 1291 in its ordinary sense does
not confer jurisdiction on this Court in this
appeal.
B. Collateral Order Doctrine
We recently had occasion to discuss the
collateral order doctrine in Gov’t of V.I. v.
Hodge, 359 F.3d 312, 319 (3d Cir. 2004):
This Court’s recent definitive
treatment of the collateral order
doctrine is In re Ford Motor Co.,
110 F.3d 954 (3d Cir. 1997). There
we explained:
T h e colla te r a l o rd e r
doctrine, first enunciated by
the Supreme Court in Cohen
v. Beneficial Indus. Loan
Corp., 337 U.S. 541 (1949),
provides a narrow exception
t o t h e g e n e r a l r u le
permitting appellate review
only of final orders. An
appeal of a nonfinal order
will lie if (1) the order from
which the appellant appeals
conclusively determines the
disputed question; (2) the
order resolves an important
issue that is completely
separate from the merits of
the dispute; and (3) the
o r d e r i s e f f e c t i v e ly
unreviewable on appeal
from a final judgment. See
Rhone-Poulenc Rorer Inc. v.
Home Indem. Co., 32 F.3d
851, 860 (3d Cir. 1994).

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Id. at 958. As the Cohen Court
explained, 28 U.S.C. § 1291 has
been given a “practical rather than
a technical construction.” 337 U.S.
at 546. To this end, as a doctrinal
matter, orders that meet the three
prongs described above are deemed
to be “final decisions” within the
meaning of the statute.
We need not consider the first or second
prongs of the Cohen test, for nothing in the
District Court’s order satisfies the third
prong, that the issue be “effectively
unreviewable on appeal from a final
judgment.” In assessing “effective
unreviewability” we address individually
each of the issues determined by the
District Court (standing, existence of a
lien, and statute of limitations) as well as
its overall refusal to vacate the warrant of
arrest.
Standing is a question of subject matter
jurisdiction. E.B. v. Verniero, 119 F.3d
1077, 1092 n.12 (3d Cir. 1997) (quoting
Page v. Schweiker, 786 F.2d 150, 153 (3d
Cir. 1986)). What the parties here speak
of as standing may also, as the District
Court recognized, really be a question of
compliance with Fed. R. Civ. P. 17(a),
which requires that civil actions be
brought by the “real parties in interest.”
Whether Article III, Rule 17(a), or both are
at issue, there is no reason to suspect that
King David will be unable to obtain
effective review of its arguments on appeal
from a final judgment. Cases abound
where a victorious plaintiff’s judgment
evaporates on appeal after final judgment
when the court of appeals holds that the
district court lacked subject matter
jurisdiction. See, e.g., State Farm Mut.
Auto. Ins. Co. v. Powell, 87 F.3d 93 (3d
Cir. 1996). Likewise, there are cases
(though fewer of them) addressing Rule
17(a) issues on appeal from final
judgments in favor of plaintiffs. See, e.g.,
Borror v. Sharon Steel Corp., 327 F.2d
165 (3d Cir. 1964).
Moreover, we recently reaffirmed the
principle that interlocutory orders finding
subject matter jurisdiction are ordinarily
not appealable under the collateral order
doctrine. “‘[N]on-immunity based
motions to dismiss for want of subject
matter jurisdiction are not ordinarily
entitled to interlocutory review.’” Hodge,
359 F.3d at 321 (quoting Merritt v. Shuttle,
Inc., 187 F.3d 263, 268 (2d Cir. 1999)
(citing Catlin, 324 U.S. at 236)). There is
no reason to depart from this general rule
in this case. There are countless cases
where a district court rejects a defendant’s
challenge to the plaintiff’s standing; in that
posture, defendants simply may not seek
immediate review in the court of appeals.
The statute of limitations and maritime
lien validity issues are likewise reviewable
on appeal after final judgment. See, e.g.,
Bell Atlantic-Pa., 273 F.3d at 345 (“The
statute of limitations defense fails the third
prong of the Cohen standard because it is
not effectively unreviewable on appeal
from final judgment.”); Bermuda Express,
N.V. v. M/V Litsa (Ex. Laurie U), 872 F.2d
554 (3d Cir. 1989) (reviewing validity of
maritime lien on appeal from final
judgment in favor of lienor stevedores).
Should Pemex ultimately prevail before

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the District Court, King David may take
precisely the course charted by the
defendants in the cases we cite.
The legal issues considered above
(jurisdiction, maritime lien, and statute of
limitations) have no immediate effect
(aside from continuing the litigation). The
refusal to vacate the warrant of arrest is
different to the extent that it has the
immediate effect of compelling King
David to maintain its P&I club’s LOU.
We have not had occasion to consider
whether this is a distinction with a
difference. The Court of Appeals for the
Fifth Circuit has held that it is not. See
Astarte Shipping Co. v. Allied Steel &
Export Service, 767 F.2d 86, 88 (5th Cir.
1985); Constructora Subacuatica Diavaz,
S.A. v. M/V Hiryu, 718 F.2d 690, 692 (5th
Cir. 1983); accord Seguros Banvenez S.A.
v. S/S Oliver Drescher, 715 F.2d 54, 57
(2d Cir. 1983) (Mansfield, J., concurring).
The logic of all these cases is that the
refusal to vacate a warrant of arrest is not
effectively unreviewable after final
judgment. If King David should prevail, it
could seek compensation for the expense
of maintaining the LOU during the
pendency of the litigation. This is in stark
contrast to the case where a warrant of
arrest is vacated and the plaintiff appeals;
there, with the res unattached, and literally
sailing away, the plaintiff would be unable
to execute on a judgment if it were
ultimately victorious on the merits. The
Fifth Circuit put the contrast well:
The Supreme Court has held
that an order vacating an
attachment has Cohen-type finality.
Swift & Co. Packers v. Compania
Colombiana del Caribe, 339 U.S.
684 (1950). Appellate review of
such an order at a later date “would
be an empty rite after the vessel had
been released and the restoration of
the attachment only theoretically
possible.” 339 U.S. at 689.
“The situation is quite different
where an attachment is upheld
pending determination of the
principal claim,” the Court said in
Swift & Company Packers, citing
Cushing v. Laird, 107 U.S. 69
(1883). “In such a situation the
rights of all the parties can be
adequately protected while the
litigation on the main claim
proceeds.” 339 U.S. at 689.
Although dictum, the Court’s
statement is persuasive, illustrating
as it does the rationale underlying
the application of Cohen.
Constructora Subacuatica Diavaz, 718
F.2d at 692.
We are in complete agreement, and our
long-established precedent from an
a n a l o g o u s a r e a — n o n m a r i t i m e
prejudgment attachments—confirms our
view. In United States v. Estate of Pearce,
498 F.2d 847 (3d Cir. 1974) (en banc), we
held that we were without jurisdiction to
review an order denying a motion to quash
a sequestration order under Delaware law.
We observed that sequestration under
Delaware law is an equitable device
“analogous to foreign attachment at law,”

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id. at 849 (citing Delaware cases), and
noted that “[o]rders granting or denying
attachment are ordinarily interlocutory and
non-appealable,” id. (citing 9 Moore’s
Federal Practice ¶ 110.13[5]). Then,
citing Swift & Co. Packers, we concluded
that, while an order denying or dissolving
an attachment may be appealable under the
collateral order doctrine, orders upholding
attachments are not, and we therefore
dismissed the appeal. See id. at 849-50.
At least with respect to the collateral order
doctrine, we see no meaningful distinction
between the order appealed from in
Pearce’s Estate and the order appealed
from here. Thus we conclude that Cohen
provides no basis for immediately
appealing the denial of a motion to vacate
a warrant of arrest.
C. 28 U.S.C. § 1292(a)(3)
We next consider whether the District
Court’s order is appealable under the
admiralty-specific provision of 28 U.S.C.
§ 1292(a)(3), which confers jurisdiction on
the courts of appeals over appeals from
“[i]nterlocutory decrees of such district
courts or the judges thereof determining
the rights and liabilities of the parties to
admiralty cases in which appeals from
final decrees are allowed.” We have
focused on the “rights and liabilities”
language to limit the scope of appealable
interlocutory orders. In In re Complaint of
PMD Enterprises, Inc., 301 F.3d 147, 149-
50 (3d Cir. 2002), we recounted some
cases where we have found § 1292(a)(3) to
apply:
Our case law on interlocutory
appeals in admiralty establishes that
the language of § 1292(a)(3)
regarding a final determination of
rights and liabilities applies to
situations such as the dismissal of
parties from the litigation, grants of
summary judgment (even if not to
all parties), and other cases where a
c l a i m h a s s o m e h o w b e e n
terminated. “[T]he order appealed
from must conclusively determine
the merits of a claim or defense.”
Kingstate Oil v. M/V Green Star,
815 F.2d 918, 921 (3d Cir. 1987).
For example, in Jones & Laughlin
Steel, Inc. v. Mon River Towing,
Inc., 772 F.2d 62, 64 & n.1 (3d Cir.
1985), we allowed an interlocutory
appeal in admiralty after one of the
defendants was dismissed from the
action for lack of subject matter
jurisdiction. In [In re Complaint
of] Nautilus Motor [Tanker Co.], 85
F.3d [105,] 109-10 [(3d Cir.
1996)], we granted an appeal
following the grant of judgment for
the counterclaim, even though the
principal claim had not been
conclusively decided. As we have
previously stated, interlocutory
appeals in admiralty apply “to any
order which finally determines the
liability of a party even if the order
leaves unresolved an issue which
may ultimately preclude recovery
by a particular plaintiff.” Bankers
Trust Co. v. Bethlehem Steel Corp.,
761 F.2d 943, 945 n.1 (3d Cir.
1985) (emphasis in original).

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A prototypical application of §
1292(a)(3) is the appeal of a ruling on
liability prior to a trial on damages. See,
e.g., United States v. The Lake George,
224 F.2d 117, 118-19 (3d Cir. 1955)
(“[T]he statute permits an appeal in
avoidance of the expense and delay of
finding damages which may not be
recovered. It is settled, however, that the
statute does not cover all interlocutory
orders, but only such as ‘determine the
rights and liabilities of the parties’, and it
was not intended to allow repeated
appeals.” (citations omitted)).
Therefore, the question in this case is
whether any of Pemex’s or the defendant’s
“rights” or “liabilities” have been finally
decided. They have not: The District
Court’s ruling on standing resolves the
question in favor of finding jurisdiction,
which is the archetypal ruling not about
rights or liabilities. Finding the existence
of a maritime lien is a step on the road to
finding liability, but it is only a step, and
we do not understand King David to have
conceded that the King A is liable to
Pemex.
The ruling on the statute of limitations
likewise does not have the effect of finally
determining whether one party is liable to
another. The District Court does appear to
have conclusively ruled that the statute of
limitations defense is unavailable in this
case, but that is not the end of the case,
and it is not, at all events, the sort of
“conclusive[] determin[ation of] the merits
of a . . . defense” spoken of in Kingstate
Oil v. M/V Green Star, 815 F.2d 918, 921
(3d Cir. 1987). Rather, this language
refers to the conclusive determination in
favor of the defendant of a defense, such
that the plaintiff will not succeed on its
claim, and may take an immediate appeal.
S ym m etr ica lly, a d ef e nd a nt m ay
immediately appeal the conclusive
determination in favor of the plaintiff of a
claim. To use the language from PMD
Enterprises, § 1292(a)(3) authorizes
appeals only when “a claim has somehow
been terminated.” 301 F.3d at 149
(emphasis added). Section 1292(a)(3) may
allow more interlocutory appeals than are
generally permitted in civil litigation, but
it does not permit litigants to parade
piecemeal appeals before the court of
appeals. If we had jurisdiction under §
1292(a)(3) to consider a District Court’s
rejection of a statute of limitations
defense, we could think of few orders that
would not be subject to immediate appeal.
The District Court’s refusal to vacate
the warrant of arrest again presents a
slightly different question. We have not
previously held whether interlocutory
orders denying motions to vacate maritime
attachments (i.e., warrants of arrest) are
appealable under § 1292(a)(3). It seems
clear that they are not, for whether or not a
vessel is subject to arrest says nothing
about the “rights and liabilities” of the
parties; it is merely a procedural matter.
See Astarte Shipping, 767 F.2d at 88. In
sum, 28 U.S.C. § 1292(a)(3) is of no aid to
the appellants.
D. 28 U.S.C. § 1292(a)(1)
The final possible source of appellate
jurisdiction is the statute authorizing

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review in the courts of appeals of orders
“granting, continuing, modifying, refusing
or dissolving injunctions, or refusing to
dissolve or modify injunctions.” 28 U.S.C.
§ 1292(a)(1).5 This subsection plainly
does not apply to the District Court’s
decisions on jurisdiction, the maritime
lien, or the statute of limitations; the only
question is whether the refusal to vacate a
warrant of arrest is, for purposes of §
1292(a)(1), the refusal to dissolve an
injunction. We hold that it is not. The
warrant of arrest is not, like an injunction,
a form of substantive relief; rather, it is a
component of the conduct of the litigation
in an admiralty proceeding in rem. See
supra note 3. “An order by a federal court
that relates only to the conduct or progress
of litigation before that court ordinarily is
not considered an injunction and therefore
is not appealable under § 1292(a)(1).”
G u l f s tr e a m A e r o s p ace Co rp. v .
Mayacamas Corp., 485 U.S. 271, 279
(1988) (holding that a district court’s
refusal to abstain under Colorado River
Water Conservation Dist. v. United States,
424 U.S. 800 (1976), was not appealable
under 28 U.S.C. § 1292(a)(1)). We
therefore conclude that the District Court’s
order in this case is not appealable under §
1292(a)(1).
III. Conclusion
For the foregoing reasons, we lack
appellate jurisdiction in this case. That
said, we of course express no view on the
merits of the decision that King David
appeals, and this opinion is without
prejudice to King David’s right to take an
appeal from an appropriate final order or
appealable interlocutory order presenting
the same issues it now appeals.
The appeal will be dismissed.
5There 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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