Petroleos Mexicanos v. MT King A

• Court: Court of Appeals for the Third Circuit
• Decided: July 29, 2004
• Docket: 03-2541
• Status: Published

Opinion

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Petroleos Mexicanos v. MT King A Precedential or Non-Precedential: Precedential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).