No. 18-266

In the

Supreme Court of the United States ___________________________

FRANCIS & MARY MARION, CHARLES & MARY PINCKNEY,

JOHN & ELIZABETH RUTLEDGE, JAMES S. THURMOND, AND ESSIE MAE WASHINGTON-WILLIAMS,

Petitioners,

v.

SALLY’S SEAFOOD SHACK, INC.,

Respondent.

___________________________

On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

___________________________

BRIEF FOR RESPONDENT ___________________________

Team G Counsel for Respondent

ii

QUESTIONS PRESENTED

I. Whether the United States District Court for the District of South Carolina correctly

found, relying on this Court’s decision in Richardson, that the Limitation Act, 46 U.S.C.

§§ 30501-12, provided an independent basis for admiralty jurisdiction which allowed the

Respondent to limit their liability for a non-maritime tort?

II. Whether the United States Court of Appeals for the Fourth Circuit properly dismissed the

case upon finding that they did not have appellate jurisdiction under 28 U.S.C. §

1292(a)(3) because the parties’ rights and liabilities had not yet been determined by the

district court?

iii

TABLE OF CONTENTS

Questions Presented ........................................................................................................................ii

Table of Authorities ........................................................................................................................v

Opinions Below ..............................................................................................................................2

Jurisdictional Statement ..................................................................................................................2

Constitutional and Statutory Provisions .........................................................................................3

Statement of the Case .....................................................................................................................4

Summary of the Argument .............................................................................................................7

Argument ........................................................................................................................................8 I. STANDARDS OF REVIEW ............................................................................................8

II. THE LIMITATION ACT, 46 U.S.C. §§ 30501-12, HISTORICALLY PROVIDES AN INDEPENDENT BASIS FOR ADMIRALTY JURISDICTION ..........................8

1. There is no traditional maritime jurisdiction under the Grubart test in this case ...................................................................................................................9

2. This Court has previously held that admiralty jurisdiction may be conferred upon a petition to limit liability for a non-maritime tort ................................................10

A. Policy behind the Limitation Act supports the application of the Richardson holding in this case ...............................................................12

B. The footnote in the Sisson opinion implying the Court’s dissonance with Richardson does not abrogate the vitality of the Richardson decision ...14

3. The doctrine of stare decisis should be upheld in the Court’s treatment of the Richardson holding ...............................................................................................16

4. Conflicting circuit court decisions do not affect the application of the Limitation Act in the present case ..........................................................................................17

III. THE FOURTH CIRCUIT COURT OF APPEAL CORRECTLY DETERMINED IT LACKED JURISDICTION AND PROPERLY DISMISSED THIS CASE.........19

1. The prerequisites for invoking jurisdiction under § 1292(a)(3) are not met .........20 A. § 1292(a)(3) should be construed narrowly, in line with historical

precedent and Congressional intent .........................................................21 B. A determination of rights and liabilities has not been made on the

Petitioner’s claim .....................................................................................22

iv

2. In the alternative, the appellate standard of review supports the Fourth Circuit’s dismissal of the case ............................................................................................26

A. The policy argument in favor of jurisdiction in this case is offset by Fed. R. Civ. Proc. 54(B) and 28 U.S.C. § 1292(b) ........................................27

B. Appellate review in this case would be impractical, because the parties’ rights and liabilities have not been determined ......................................30

Conclusion ....................................................................................................................................31

v

TABLE OF AUTHORITIES CASES PAGE(S) U.S. Supreme Court Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed. 2d 391 ............................................................ 17 Foremost Ins. Co., v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982) ................................................... 14 Hartford Accident & Indemnity Co., v. Southern Pacific Co., 273 U.S. 207 (1927) ....................................................................................................... 10 Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 1995 AMC 913 (1995) ............................................................................. 5, 9 Just v. Chambers, 312 U.S. 383 (1941) ........................................................................................................ 10 Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001) ........................................................................................................ 11 Lozman v. City of Riviera Beach, 568 U.S. 115, 2013 AMC 1 (2013) ................................................................................. 11 Norwich & N.Y. Transp. Co. v. Wright, 80 U.S. (13 Wall.) 104, 20 L. Ed. 585 (1871) .................................................................9,10, 13 Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541 (1988) ............................................................................. 8 Richardson v. Harmon, 222 U.S. 96, 2001 AMC 1207 (1911) .............................................................................passim Sisson v. Ruby, 497 U.S. 358, 1990 AMC 1801 (1990) ........................................................................... 16 Stewart v. Dutra Const. Co., 543 U.S. 481, 125 S. Ct. 1118 (2005) ............................................................................. 14 The Daniel Ball, 77 U.S. (10 Wall.) 557, 2000 AMC 2106 (1870) ........................................................... 9 The Main v. Williams, 152 U.S. 122, 14 S. Ct. 486, 38 L.Ed. 381 (1894) .......................................................... 13 U.S. Courts of Appeal Bates v. Bankers Life & Cas. Co., 848 F.3d 1236 (9th Cir. 2017) ........................................................................................ 29 Becker v. Poling Transp. Corp., 356 F.3d 381 (2d Cir. 2006) ............................................................................................ 21 Beluga Holding, Ltd. v. Commerce Capital Corp., 212 F.3d 1199 (11th Cir. 2000) ...................................................................................... 27 Bucher-Guyer AG v. M/V Incotrans Spirit, 868 F.2d 734 (5th Cir. 1989) .......................................................................................... 23, 30 Burgbacher v. Univ. of Pittsburgh, 860 F.2d 87 (3d Cir. 1988) .............................................................................................. 23

vi

Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871 F.2d 897 (9th Cir. 1989) .......................................................................................... 25 David Wright Charter Serv., Inc. v. Wright, 925 F.2d 783 (4th Cir. 1991) ........................................................................................... 18 Estate of Hager v. Laurelton Welding Serv., 124 F. App'x 104 (3d Cir. 2005) ...................................................................................... 21, 22 Evergreen Int’l. (USA) Corp. v. Standard Warehouse, 33 F.3d 420, 1995 AMC 635 (4th Cir. 1994) .................................................................. 22, 23 Farrell Lines Inc. v. Ceres Terminals Inc., 161 F.3d 115 (2d Cir.1998) ............................................................................................... 25 Fisons Ltd. v. United States, 458 F.2d 1241 (7th.Cir. 1972), cert denied, 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 581 (1972) ................................ 29 Farbenfabriken Bayer, A.G. v. United States Dep’t. of Treasury, 294 U.S. App. D.C. 44, 956 F. 2d 330 (1992), cert denied, 393 U.S. 959, 89 S.Ct. 397, 21 L.Ed.2d 373 (1968) ................................... 30 Gen. Acquisition, Inc. v. GenCorp., Inc., 23 F.3d 1022 (6th Cir. 1994) .......................................................................................... 28 Heller & Co. v. O/S Sonny V., 595 F.2d 968 (5th Cir. 1979) .......................................................................................... 22 Hollywood Marine, Inc. v. M/V Artie James, 755 F.2d 414 (5th Cir.1985) ........................................................................................... 22 In re Bave, 314 F.2d 335 (3d Cir. 1963) ............................................................................................ 22 In re Complaint of Sisson, 867 F.2d 341, 1989 AMC 609 (7th Cir. 1989), rev’d on other grounds, Sisson v. Ruby, 497 U.S. 358, 1990 AMC 1801 (1990) .......... 15 In re Ingram Towing v. Adnac, Inc., 59 F.3d 513 (5th Cir. 1995) ............................................................................................ 29 In re Sally’s Seafood Shack, Inc., 890 F.3d 1384, 2018 AMC 3333 (4th Cir. 2018) ................................................................... 2, 5 In re Wills Lines, Inc., 227 F.2d 509 (2d Cir. 1955) ............................................................................................ 20, 22 In re Young, 872 F.2d 176 (6th Cir. 1989) cert. denied, 497 U.S. 1024, 110 S.Ct. 1370, 111 L.Ed.2d 780 (1990) ........................... 8, 14 Keys Jet Ski, Inc. v. Kays, 893 F. 2d 1225 (11th Cir. 1990) ..................................................................................... 10, 14 Kingstate Oil v. M/V Green Star, 815 F.2d 918 (3d Cir. 1987) ............................................................................................ 22 Lewis Charters v. Hutchins Yacht Corp., 871 F.2d 1046 (11th Cir. 1989) ...................................................................................... 15, 18 Lowry & Co. v. S.S. LE MOYNE D'IBERVILLE, 372 F.2d 123 (2d Cir.1967) ............................................................................................. 25, 30 Matter of Intercontinental Properties Management, S.A., 604 F.2d 254 (4th Cir. 1979) .......................................................................................... 24

vii

Matter of Guglielmo, 897 F.2d 58 (2d Cir. 1990) .............................................................................................. 8, 14 M/V Sea Lion v. Reyes, 23 F.3d 345 (11th Cir. 1994) .......................................................................................... 18 Nat’l. Foreign Trade Council v. Natsios, 181 F.3d 38 (1st Cir. 1999) ............................................................................................. 17 O’Donnell v. Lantham, 525 F. 2d 650, 21 Fed. R. Serv. 2d 222 (5th Cir. 1976) ................................................. 22 Seattle First Nat. Bank v. Bluewater Partnership, 772 F.2d 565 (9th Cir. 1985) .......................................................................................... 25 Seven Resorts, Inc., v. Cantlen, 57 F.3d 771 (9th Cir. 1995) ............................................................................................ 12, 15, 17 Slatton v. Martin K. Eby Const. Co., Inc., 491 F.2d 707 (8th Cir. 1974) .......................................................................................... 23 Southwest Marine, Inc. v. Danzig, 217 F.3d 1128, 2000 AMC 2088 (9th Cir. 2000) ............................................................20 Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775 (8th Cir. 1990) .......................................................................................... 15 Thypin Steel Co. v. Asoma Corp. 215 F.3d 273, 2000 AMC 2041 (2d Cir. 2000) .............................................................. 20, 21, 29 United States v. The Lake George, 224 F.2d 117 (3d Cir. 1955) ............................................................................................ 22 Vision Air Flight Service, Inc. v. M/V National Pride, 155 F.3d 1165 (9th Cir. 1998) ........................................................................................ 25 Wallis ex rel. Wallis v. Princess Cruises, Inc., 306 F.3d 827 (9th Cir. 2002) .......................................................................................... 22 U.S. District Court Abadi v. Garvey, 2008 WL 2980030 (S.D.N.Y. 2008) ............................................................................... 14 In re Bernstein, 817 F. Supp. 2d 176 (D. Mass. 1999) ............................................................................. 12, 16 In re Sally’s Seafood Shack, Inc., 243 F. Supp. 3d 702 (D.S.C. 2017) ................................................................................. 2, 5, 27 Johnson v. Anderson (In re Johnson), No. 3:06cv782 (WWE), 2007 U.S. Dist. LEXIS 20467, 2007 AMC 1119 (D. Conn. 2007) .................................................................................. 13 STATUTES Constitution U.S. Const. art. III, § 2 .......................................................................................................... 2, 3

viii

Federal Statutes 1 U.S.C. § 3 ........................................................................................................................... 10 28 U.S.C. § 1254 ................................................................................................................................ 2 28 U.S.C. § 1292(a)(3) ...........................................................................................................passim 28 U.S.C. § 1292(b) ..............................................................................................................20, 28, 29, 30 46 U.S.C. § 740 ..................................................................................................................... 17 46 U.S.C. § 30502 .................................................................................................................. 8,9 46 U.S.C. § 30504 ................................................................................................................. 12 46 U.S.C. § 30505 ................................................................................................................. 5, 10 46 U.S.C. §§ 30501-12 .........................................................................................................passim Procedural Rules Fed. R. App. Proc. 35 ............................................................................................................ 27 Fed. R. Civ. Proc. 52(a) ........................................................................................................ 26 Fed. R. Civ. Proc. 54(b) ........................................................................................................passim SECONDARY SOURCES Scholarly Articles Amie L. Medley, A Sea of Confusion: The Shipowner’s Limitation of Liability Act as an Independent Basis for Admiralty Jurisdiction, 108 MICH. L. REV. 229 (2009) ........................................................................................passim S. Shawn Stephens, Just Can’t Wait? Mechanisms for Interlocutory Review in Federal Court, 41 THE HOUSTON LAWYER 10 (2003) .............................................................................. 29 Arthur A. Crais, Jr., The Limitation of Shipowner’s Liability Act as an Independent Basis for Federal Jurisdiction, 17 LOY. MAR. L.J. 206 (2018) ......................................................................................... 13 Books and Treatises 23 Fed. Proc. L. ED. § 53:147 (2018) .................................................................................... 21 29 MOORE’S FEDERAL PRACTICE - Civil § 710.05 (3rd ed. 2018) ........................................ 25 Benjamin N. Cardozo, THE NATURE OF THE JUDICIAL PROCESS (6th ed. 1928) ................... 17 Charles Allen Wright, Arthur R. Miller, & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE, (2012 & supp. 2018) ........................................................................................passim David G. Knibb, FEDERAL COURT OF APPEALS MANUAL (6th ed. 2018) ............................. 27, 28 Frank L. Maraist, ADMIRALTY IN A NUTSHELL (7th ed. 2017) ............................................. 12 Maraist, Frank L.; Galligan, Thomas C. Jr.; Maraist, Catherine M.; and Sutherland, Dean A.; CASES AND MATERIALS ON MARITIME LAW (3rd ed. 2016) ............................................ 8, 12 Maraist, Galligan, Maraist, ADMIRALTY IN A NUTSHELL (6th ed. 2010) ............................... 26

1

No. 18-266

In the

Supreme Court of the United States ___________________________

FRANCIS & MARY MARION, CHARLES & MARY PINCKNEY,

JOHN & ELIZABETH RUTLEDGE, JAMES S. THURMOND, AND ESSIE MAE WASHINGTON-WILLIAMS,

Petitioners,

v.

SALLY’S SEAFOOD SHACK, INC.,

Respondent.

___________________________

On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

___________________________

BRIEF FOR RESPONDENT ___________________________

TO THE HONORABLE SUPREME COURT OF THE UNITED STATES:

Respondent, Sally’s Seafood Shack, Inc., by counsel, respectfully submits this brief supporting their request that this Court find Sally’s Seafood Shack entitled to a limitation of liability because (1) the district court correctly held that there is an independent basis for admiralty jurisdiction in this case under the Limitation Act, 46 U.S.C. §§ 30501-12, and (2) the appellate court correctly dismissed Petitioner’s appeal due to a lack of jurisdiction, pursuant to 28 U.S.C. § 1292(a)(3), because the parties’ rights and liabilities had not yet been determined by the district court. Respondent asks this Court to affirm the judgement of the Court of Appeals for the Fourth Circuit.

2

OPINIONS BELOW The opinion of the United States District Court for the District of South Carolina, dated

March 13, 2017, is reported and appears as In re Sally’s Seafood Shack, Inc., 243 F. Supp. 3d 702

(D.S.C. 2017). See the Appendix to the Petition for Certiorari, p. 9a.

The opinion of the United States Court of Appeals for the Fourth Circuit, dated May 7,

2018, is reported and appears as In re Sally’s Seafood Shack, Inc., 890 F.3d 1384, 2018 AMC 3333

(4th Cir. 2018). See the Appendix to the Petition for Certiorari, p. 1a.

The order of the United States Court of Appeals for the Fourth Circuit, dated June 26, 2018,

denying rehearing can be found in the Appendix to the Petition for Certiorari, p. 7a.

JURISDICTIONAL STATEMENT

The jurisdiction of this Court stems from 28 U.S.C. § 1254(1), which provides that “cases

in the courts of appeals may be reviewed by the Supreme Court . . . [b]y writ of certiorari granted

upon the petition of any party to any civil or criminal case, before or after rendition of judgment

or decree . . . .” On September 4, 2018, Petitioners filed a petition for certiorari which this Court

granted on December 3, 2018. This is an admiralty case and appellate jurisdiction is proper

pursuant to the United States Constitution, art. III, § 2.

3

CONSTITUTIONAL AND STATUTORY PROVISIONS The following Constitutional and statutory provisions are pertinent in assessing whether

(1) the Limitation Act provides an independent basis for admiralty jurisdiction, allowing the

Respondent to limit their liability and (2) whether the appellate court properly dismissed the

Petitioner’s appeal due to a lack of jurisdiction, pursuant to 28 U.S.C. § 1292(a)(3), because the

parties’ rights and liabilities had not yet been determined and therefore appeal was not allowed.

The Admiralty Clause, U.S. Const. art. III, § 2: “The judicial power shall extend . . . to all cases

of admiralty and maritime jurisdiction.”

The Limitation Act, 46 U.S.C. §§ 30501-12.

28 U.S.C. § 1292(a)(3) which provides “(a) Except as provided in subsections (c) and (d) of this

section, the courts of appeals shall have jurisdiction of appeals from: (3) Interlocutory 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.”

Fed. R. Civ. Proc. 54(b):

When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

4

STATEMENT OF THE CASE I. Statement of the Facts

Respondent, Sally’s Seafood Shack, Inc., is a South Carolina corporation that, until

recently, operated a floating seafood restaurant known as Sally’s Seafood Shack. R. 9a. The

restaurant was located in a converted fishing vessel called the F/V Flamingo. R. 9a. The

Flamingo was purchased and converted into a restaurant in 2008, but for twenty years prior had

been operated as a fishing vessel and made hundreds of ocean voyages in the North Atlantic

during that time. R. 10a. At the time of the incident, the Flamingo had been indefinitely moored

on the bank of the Cooper River, surrounded by a cofferdam, in Charleston, South Carolina. R.

10a.

On July 17, 2015, there was an explosion in the galley of the Flamingo, which ripped a

hole in the hull beneath the waterline and the vessel quickly sank at its anchorage. R. 10a. John

Calhoun, who worked primarily in the galley and was responsible for washing dishes, cleaning,

and assisting the chef as needed, was not in the galley at the time of the explosion. R. 10a. On the

night of the explosion, John Calhoun had been instructed to light the gas range, and had turned

on the gas, but had not yet lit the flame when he received a telephone call on his mobile phone.

R. 14a. He subsequently stepped out of the galley and while he was talking the gas accumulated

until something – most likely the pilot light on the other range – triggered the explosion. R. 14a.

Mr. Calhoun was adequately trained in how to properly light the gas range and the vessel was

adequately equipped to enable him to carry out the task. R. 14a.

Petitioners Francis and Mary Marion, Charles and Mary Pickney, John and Elizabeth

Rutlege, James S. Thurmond, and Essie Mae Washington-Williams all allege that they were

injured on July 17, 2015 when the explosion on the F/V Flamingo occurred. R. 10a. For purposes

5

of 46 U.S.C. § 30505(a), the “value of the vessel and pending freight” is less than $1,000.00. R.

10a.

II. Statement of Proceedings

In July and August of 2015, Petitioners filed various tort actions against Sally’s Seafood

Shack, Inc., in state court. R. 1b. On November 5, 2015, Sally’s Seafood Shack, Inc., filed a

petition in federal district court to limit its liability pursuant to the Limitation Act, 46 U.S.C. §§

30501-12. R. 1b. That same month, Petitioners filed claims in the limitation proceeding that

mirrored their state-court tort actions against Sally’s Seafood Shack, Inc. R. 1b. The District

Court then held Phase One of a bifurcated trial to determine Respondent’s entitlement to

limitation. R. 1b. On March 13, 2017, the district court issued an opinion reported as In re Sally’s

Seafood Shack, Inc., 243 F. Supp. 3d 702 (D.S.C. 2017). See Appendix to the Petition for

Certiorari, p. 9a.

The district court reasoned that while the court did not have admiralty jurisdiction under

Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock, Co., 513 U.S. 527, 1995 AMC 913

(1995), there was jurisdiction under the Limitation Act, 46 U.S.C. §§ 30501-12, which provided

an independent basis for admiralty jurisdiction. R. 11a. While the statue itself does not address

jurisdiction, the district court concluded that recognizing jurisdiction in this case was more

consisted with Supreme Court precedent and first principles. R. 12a. The district court granted a

Respondent’s request for limitation of liability due to the Flamingo’s status as a vessel and the

fact that the Respondent was in no way responsible for the incident at issue. R. 12a.

On March 22, 2017, the Petitioners filed a notice of appeal. R. 1b. On May 7, 2018, the

court of appeals rendered an opinion, reported as In re Sally’s Seafood Shack, Inc., 890 F.3d

1384, 2018 AMC 3333 (4th Cir. 2018). See Appendix to the Petition for Certiorari, p. 1a. The

6

court of appeals dismissed the Petitioners appeal due to a lack of jurisdiction because the district

court had not yet determined the rights and liabilities of the parties when it determined that

Respondents were entitled to a limitation of their liability. R. 6a.

On May 14, 2018, Petitioners filed a petition for rehearing, but the petition was denied on

June 26, 2018. R. 1b. Subsequently, Petitioners filed a petition for certiorari on September 4,

2018, citing two issues: (1) whether the Limitation Act, 46 U.S.C. §§ 30501-12, provides an

independent basis for admiralty jurisdiction, and (2) whether the court of appeals had appellate

jurisdiction under 28 U.S.C. § 1292(a)(3). R. 1b. This Court granted Petitioners’ petition for

certiorari on December 3, 2018. R. 1b.

7

SUMMARY OF THE ARGUMENT

I. Independent Basis for Admiralty Jurisdiction

The District Court correctly held that the Limitation Act, 46 U.S.C. §§ 30501-12, under

this Court’s holding in Richardson v. Harmon, 222. U.S. 96, 2001 AMC 1207 (1911), provides

an independent basis for admiralty jurisdiction. The District Court properly classified the

Respondent’s vessel as such, looking to its physical characteristics and history making hundreds

of voyages in the Atlantic. Because the vessel was procured at the Respondent’s expense and

Respondents had no knowledge or privity in the negligence that led to the incident onboard the

Flamingo, they are entitled to a limitation of liability. While there is uncertainty among circuit

courts as to Richardson’s continued vitality, upholding the doctrine of stare decisis in this case

provides for uniformity and continued support of maritime commerce, allowing investors

security in their investments without fear of unlimited liability.

II. Lack of Appellate Jurisdiction

The Fourth Circuit Court of Appeals correctly dismissed the Petitioner’s appeal due the

lack of jurisdiction. When the district court ruled that the Respondent was entitled to a limitation

of their liability, they did not determine the rights and liabilities of the parties, and therefore,

pursuant to 28 U.S.C. § 1292(a)(3), there is no appellate jurisdiction. Bringing an appeal under §

1292(a) is an exception to the final judgement rule, and as such, should be interpreted narrowly.

Interpreting § 1292(a)(3) narrowly is consistent with historical precedent and Congressional

intent and is more practical than an expansive reading of an exception which is already addressed

by the Federal Rules of Civil Procedure.

8

ARGUMENT I. STANDARD OF REVIEW

There are two issues at issue in this case: (1) whether the district court had maritime

jurisdiction due to the Limitation Act, 46 U.S.C. §§ 30501-12, and (2) whether the district court

issued a final decree which would allow an interlocutory appeal under 28 U.S.C. § 1292(a)(3).

Traditionally, decisions on “questions of law” are “reviewable de novo,” decisions on “questions

of fact” are “reviewable for clear error,” and decisions on “matters of discretion” are “reviewable

for ‘abuse of discretion.’” Pierce v. Underwood, 487 U.S. 552, 558, 108 S. Ct. 2541 (1988). In

this case, both issues are questions of law and are therefore reviewed de novo.

II. THE LIMITATION ACT, 46 U.S.C. §§ 30501-12, HISTORICALLY PROVIDES

AN INDEPENDENT BASIS FOR ADMIRALTY JURISDICTION The Fourth Circuit of Appeals correctly held that The Limitation of Liability Act, 46

U.S.C. §§ 30501-12, (“Limitation Act”), provides an independent basis for admiralty jurisdiction

for the Respondent’s claim to limit liability.

Enacted in 1851, the Limitation Act serves to limit the liability of any owner of a vessel

who “navigates a vessel at the [owner]’s own expense . . . or procurement.” 46 U.S.C. §§ 30501-

12. While the Act applies to “seagoing vessels and vessels used on lakes or rivers or in inland

navigation, including canal boats, barges, and lighters,” 46 U.S.C. § 30502, courts have generally

expanded the Act to also include “pleasure boats.” Maraist, Frank L; Galligan, Thomas C. Jr.;

Maraist, Catherine M; and Sutherland, Dean A., CASES AND MATERIALS ON MARITIME LAW, 865

(3rd ed. 2016). citing Matter of Guglielmo, 897 F.2d 58 (2d Cir. 1990); In re Young, 872 F.2d

176 (6th Cir. 1989), cert denied sub nom., 497 U.S. 1024, 110 S. Ct. 3270, 111 L.Ed. 780 (1990).

In doing so, the Act allows the owner of a vessel to limit his liability to the value of the

vessel and its cargo if he is able to show he had no knowledge or privity in the negligent act that

resulted in the loss. Amie L. Medley, A Sea of Confusion: The Shipowner’s Limitation of

9

Liability Act as an Independent Basis for Admiralty Jurisdiction, 108 MICH. L. REV. 229, 238

(2009). Through the Act, Congress intended to encourage ship-building and to induce capitalists

to invest money in the field of maritime commerce, thereby allowing a potential owner to reduce

his risk in investment. Norwich & N.Y. Transp. Co. v. Wright, 80 U.S. (13 Wall.) 104, 20 L. Ed.

585 (1871).

1. There is no traditional maritime jurisdiction under the Grubart test in this case. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 1995 AMC

913 (1995) requires two elements for maritime jurisdiction: (1) locality and a (2) connection

between the wrong and traditional maritime activity. See 513 U.S. at 534; 539-543. Locality is

satisfied if an accident occurs on navigable waters, or those “used or susceptible of being used, in

their ordinary condition, as highways for commerce.” The Daniel Ball, 77 U.S. (10 Wall.) 557,

563, 2000 AMC 2106, 2109 (1870). To determine whether an incident has a substantial or

significant connection to traditional maritime activity, many courts look at whether the incident

has the potential to disrupt maritime commerce. See 513 U.S. at 538-9. In this case, the district

court correctly found that although the topic of salvage does have a “salty flavor,” the incident

does not have “[a] potentially disruptive impact on maritime commerce” or “a substantial

relationship to traditional maritime activity,” as the Flamingo was moored at the time of the fire

within a cofferdam and the operation of a restaurant is not substantially related to traditional

maritime activity. R.11a. See 513 U.S. at 538-539, 1995 AMC at 921-922.

While Respondents are correct that admiralty tort jurisdiction has not been satisfied under

the factors of Grubart, “[t]he fact that the Limitation Act only applies to ‘seagoing vessels and

vessels used on lakes or rivers or in inland navigation,’ already suggests that limitation is a

sufficiently maritime subject.” 46 U.S.C. § 30502; R. 12a. As a result,Respondents shall be

afforded the protections of the Limitation Act under the holding of Richardson v. Harmon

10

regardless of this absence of admiralty tort jurisdiction, as the holding of Richardson bespeaks to

these very circumstances. See Richardson v. Harmon, 222 U.S. 96, 2001 AMC 1207 (1911)

(holding that the Limitation of Liability Act, previously “section 18 of the Shipping Act of 1884,

23 Stat. 57 – codified at 46 U.S.C app. § 189 until the 2006 recodification of title 46 and now

incorporated into 46 U.S.C. § 30505,” R. 14a, provides an independent basis of admiralty

jurisdiction).

2. The Supreme Court has previously held that admiralty jurisdiction may be conferred upon a petition to limit liability for a non-maritime tort.

In Richardson v. Harmon, this Court held that the Limitation Act, serves as an

independent basis of jurisdiction regardless of whether liability arises from a maritime or non-

maritime tort. 222 U.S. at 106. Courts have subsequently followed this holding to confer

jurisdiction in the event the disputed incident involves a non-maritime accident. See Medley,

supra at 240 (noting that Richardson was seemingly affirmed in the later Supreme Court cases of

Hartford Accident & Indemnity Co. v. Southern Pacific Co., 273 U.S. 207, 216 (1927) and later

Just v. Chambers, 312 U.S. 383, 386 (1941)).

The Limitation Act provides owners with a sense of safety and confidence in their

investments, as otherwise they could be subject to damages and losses “to an indefinite amount,”

when exposing their property. Keys Jet Ski, Inc. v. Kays, 893 F. 2d 1225 (11th Cir. 1990)

(quoting Norwich & N.Y. Transp. Co. v. Wright, 80 U.S. (13 Wall.) 104, 20 L. Ed. 585 (1871)).

However, this protection only encompasses vessels. The term “‘vessel’ includes every

description of watercraft or other artificial contrivance used, or capable of being used, as a means

of transportation on water.” 1 U.S.C. § 3. While Petitioners argue that the Flamingo lost its

vessel status when it became a restaurant and was subsequently moored, this Court has

11

previously found the owner’s subjective intent not to sail again irrelevant to the vessel status.

Lozman v. City of Riviera Beach, 568 U.S. 115, 128, 2013 AMC 1, 11 (2013); see also R. 13a.

The proper test to apply is “whether a reasonable observer, looking to the [Flamingo’s]

physical characteristics and activities, would . . . consider it to be designed to any practical

degree for carrying people or things on water.” 568 U.S. at 118, 2013 AMC at 2. The Flamingo

was operated as a fishing vessel that made hundreds of voyages within the North Atlantic for

twenty years before becoming a restaurant. R. 10a. Furthermore, it is reasonable to presume that

the Flamingo retained its outermost characteristics of a vessel when converted into a restaurant,

as it was able to remain in a cofferdam. R. 10a. Hence, as evidenced by the facts, the Flamingo

qualifies as a vessel that is falls within the realm of protections encompassed by the Act. R. 13a.

In Richardson, the steam barge Crete collided with a railway drawbridge when

proceeding up the Muamee River. 222 U.S. 96, 2001 AMC 1207 (1911). Owners of the barge

subsequently filed claims in federal court, under the Limitation Act, to limit their liability after

the bridge owners sued for damages in state court. This Court held that the Limitation Act

provided an independent basis for admiralty jurisdiction regardless of the fact the disputed

incident concerned a non-maritime tort. Id. at 104. In its holding, this Court reasoned that

expanding the act in such a manner would comport with Congress’s intent to protect investment

interests. Richardson, 222 U.S. at 104. The Court’s precedent remained unquestioned for

decades to follow, and as one commenter noted, was recently acknowledged by this Court in

Justice O’Connor’s opinion in Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 452 (2001).

Medley, supra at 242 (noting that Justice O’Connor stated, “The Limitation Act granted the

federal court jurisdiction over that action.”). Emphasis added.

12

Pursuant to Richardson, the Fourth Circuit was correct to allow Respondent’s claim to

limit liability under the provisions of the Limitation Act. The Richardson court’s concern

resonates in this case because the accident aboard the Flamingo is one this Court aimed to

protect. The incident aboard the Flamingo did not concern a maritime tort, but rather, was due to

the negligence of a worker in the restaurant. R. 14a. Mr. Calhoun, the employee at fault, was

properly trained and the vessel was adequately equipped to enable him to carry out the task of

lighting the gas range, had he not become distracted by a phone call. R. 14a. Pursuant to the

Limitation Act, the owner of the Flamingo had no “privity or knowledge” of the incident, as

there was no “personal participation in the negligence or fault that caused the damage.” Frank L.

Maraist, ADMIRALTY IN A NUTSHELL 389 (7th ed. 2017). See also 46 U.S.C. § 30504. Hence,

Respondents are entitled to limitation of their liability for the explosion on the Flamingo because

of the Flamingo’s vessel status and Respondent’s lack of privity. R. 10a; R.14a.

A. Policy behind the Limitation Act supports the application of the Richardson decision in this case

In light of developments within maritime law, circuit courts have been unable to

consistently apply Richardson. See e.g., Seven Resorts, Inc. v. Cantlen, 57 F.3d 771 (9th Cir.

1995); but see also In re Bernstein, 81 F.Supp.2d 176 (D. Mass. 1999). However, arguments

demeaning the significance of policy behind the Limitation Act fail to adequately consider the

value of ensuring investors protection against liability in maritime commerce. See generally

Amie L. Medley, A Sea of Confusion: The Shipowner’s Limitation of Liability Act as an

Independent Basis for Admiralty Jurisdiction, 108 MICH. L. REV. 229. Consensus within the field

has held the Limitation Act was originally enacted “to promote investment in maritime shipping

and commerce,” by assuring businessmen they would not be wholly liable for the risk of actions

taken by the crew. Maraist, Frank L; Galligan, Thomas C. Jr.; Maraist, Catherine M; and

13

Sutherland, Dean A., CASES AND MATERIALS ON MARITIME LAW, 861 (3rd. ed. 2016); Medley,

supra at 230. In addition, the Act purported to place American shipping at the same level of

other nations with strong maritime industries, and ultimately improve “the competitive posture of

American shipping.” The Main v. Williams, 152 U.S. 122, 128, 14 S. Ct. 486, 38 L.Ed. 381

(1894); Johnson v. Anderson (In re Johnson), No. 3:06cv782 (WWE), 2007 U.S. Dist. LEXIS

20467, 2007 WL 735777, at *3-4, 2007 AMC 1119 (D. Conn. 2007) (citing Richardson, 222

U.S. at 101-02).

In expanding the Limitation Act to provide an independent basis of jurisdiction under

these circumstances, this Court would act in accordance with that of Richardson by encouraging

other investors in the restaurant industry to participate in maritime opportunities without fear of

facing full liability for incidents they had no participation in. By allowing Respondents to protect

themselves from the negligence of a worker in the galley, with whom who was not within the

course and scope of his employment when taking a private phone-call, capitalists would not be

discouraged from financing similar opportunities. Norwich & N.Y. Transp. Co. v. Wright, 80

U.S. (13 Wall.) 104, 20 L. Ed. 585 (1871). However, if the protections of the Act are lessened

through a narrow application, investors may be hesitant to finance recreational businesses on

waterways. Consequently, this reaction would weaken the maritime industry’s economy.

While it is accepted that the Act served to strengthen the economy of maritime

commerce, it has been argued that this reasoning is not applicable in conferring jurisdiction over

recreational vessels, as it does not advance the original purpose. Arthur A. Crais, Jr., The

Limitation of Shipowner’s Liability Act as an Independent Basis for Federal Jurisdiction, 17

LOY. MAR. L.J. 206, 235 (2018). However, proponents of this argument fail to recognize the

14

financial opportunities that arise from vessels that typically would not be deemed to fall under

the Act’s scope of protection.

There remains a substantial amount of money to be made within the recreational vessel

industry, while businesses residing on the banks of rivers have also become a profitable market.

By allowing the Act to include “pleasure” vessels, investors would remain encouraged to invest

in these markets without fear of indefinite loss. Recognizing the value of this reasoning, courts

have generally acknowledged that the Limitation Act does apply to “pleasure boats.” See, e.g.,

Matter of Guglielmo, 897 F.2d 58 (2d Cir. 1990); In re Young, 872 F.2d 176 (6th Cir. 1989),

cert. denied sub nom., 497 U.S. 1024, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990); Abadi v. Garvey,

2008 WL 2980030 (S.D.N.Y. 2008); Stewart v. Dutra Const. Co., 543 U.S. 481, 125 S. Ct. 1118

(2005).

In Keys Jet Ski, Inc. v. Kays, the Eleventh Circuit pointed to this Court’s own definition

in Foremost Ins. Co. v. Richardson to find that it is irrelevant as to whether a jet-ski is defined as

a pleasure or commercial vessel for purposes of limitation. 893 F.2d 1225 (11th Cir. 1990) citing

Foremost Ins. Co. v. Richardson, 457 U.S. 668, 676, 102 S.Ct. 2654, 2659, 73 L.Ed.2d 300

(1982) (this Court stated that the term “vessel” includes “all types of waterborne vessels, without

regard to whether they engage in commercial activity”). Operation of a restaurant aboard the

Flamingo parallels with this line of reasoning, as there remains viable opportunities to invest in

vessels for purposes of activities that would not be deemed, under Grubart, to have a substantial

relationship to maritime commerce. Such investment opportunities include the operation of a

restaurant aboard converted vessels, as done by the owners of the Flamingo.

B. The footnote in the Sisson opinion implying the Court’s dissonance with the Richardson decision does not abrogate the vitality of the Richardson decision.

15

Following Richardson, this Court, in Sisson v. Ruby, stated in a footnote that it would not

address the current status of Richardson and ultimately, the Limitation Act’s current reach of

jurisdiction. In re Sisson, 867 F.2d 341, 348-350, 1989 AMC 609, 621-625 (7th Cir. 1989),

rev’d on other grounds sub nom. Sisson v. Ruby, 497 U.S. 358, 1990 AMC 1801 (1990). Various

Courts of Appeal subsequently took this statement to mean “the Act’s continued vitality as a

jurisdictional basis was an open question.” See, e.g., Seven Resorts, Inc. v. Cantlen, 57 F.3d 771

(9th Cir. 1995); Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775 (8th Cir.

1990); Lewis Charters v. Hutchins Yacht Corp., 871 F.2d 1046 (11th Cir. 1989). However, the

precedent of Richardson remains controlling, as this Court has not chosen to overrule its prior

decision. Thus, the doctrine of stare decisis shall apply.

Regardless of this Court’s grant of writ in Sisson v. Ruby, the holding of Richardson

remains controlling in this Court’s decision that the Limitation Act confers an independent basis

of jurisdiction. 867 F.2d at 348-350. In Sisson, the complainant’s vessel was docked at a marina

on Lake Michigan. After a washer and dryer malfunctioned and caught fire, the vessel was

severely damaged while surrounding vessels and marina were also damaged. Id. The Supreme

Court granted writ for an appeal from the Seventh Circuit asking the Court to reconsider its

holding in Richardson. Id. However, the Court reversed the appeal on other grounds and chose

not to address the current applicability of Richardson in a modern context. In doing so, this Court

explicitly stated in a footnote that it would not address the issue of possibly overruling

Richardson. Conflict among the circuits subsequently arose as to whether Sisson abrogated the

applicability of the Richardson decision and left the prior holding open to interpretation.

While various circuit courts have argued that the Sisson opinion abrogates the vitality of

this Court’s prior holding, this Court has yet to speak to this issue directly to actually overrule

16

Richardson. See Sisson v. Ruby, 497 U.S. 358, 359, 1990 AMC 1801, 1802 (1990). Under the

doctrine of stare decisis, Richardson remains controlling, thereby Respondents are entitled to

limitation of liability. Furthermore, the circuit court decisions that have found the holding of

Richardson no longer applicable do not coincide with the current facts of this case nor bind this

Court to their decisions. The presence of Sisson does not invalidate the assertion of Respondent’s

claim to limit their liability under the provisions of the Limitation Act, as the disputed incident

remains within the parameters of the original holding.

3. The doctrine of stare decisis should be upheld in the Court’s treatment of the Richardson holding

Regardless of the recent questioning of Richardson, the doctrine of stare decisis should

be upheld in this Court’s treatment of the Richardson holding. In re Bernstein, 817 F. Supp. 2d

176, 181 (D. Mass. 1999); See also generally, Medley, A Sea of Confusion: The Shipowner’s

Limitation of Liability Act as an Independent Basis for Admiralty Jurisdiction, 108 MICH. L.

REV. 229. While there is no ignoring the dissonance that surrounds the Limitation Act, there has

been no Supreme Court decision effectively overruling the precedent of Richardson.

Specifically, the presence of a footnote in the Sisson decision does not control the vitality of the

Court’s prior holding, whereas if this Court had seen fit to overrule the application of Richardson

through the Sisson decision, they would have explicitly done so.

It is incorrect to redefine the application of Richardson under present times by guessing

what would be this Court’s stance would be. In re Bernstein, 817 F.Supp.2d 176 (D. Mass.

1999). Writing for the District Court of Massachusetts in In re Bernstein, Judge Young wrote a

particularly scathing opinion of courts choosing to ignore binding precedent, emphasizing that “it

is the duty of the lower federal courts to follow [the] analysis without regard to arguably changed

conditions. Id. at 181. The court looked to the First Circuit to further note circuit courts must

17

“leave to [Supreme] Court the prerogative of overruling its own decisions.” Id. at 181 (citing

National Foreign Trade Council v. Natsios, 181 F. 3d 38, 59 (1st. Cir. 1999). As this Court has

previously held that the Limitation Act does provide for an independent basis of jurisdiction,

various circuits questioning the vitality of the holding shall be bound to follow the Court’s

“directly applicable precedent,” irrespective if that precedent appears weakened by the current

state of maritime commerce. 181 F.3d at 59 (quoting Agostini v. Felton, 521 U.S. 203, 237, 117

S.Ct. 1997, 138 L.Ed. 2d 391).

Thus, the various circuit courts questioning the applicability of the Richardson decision

are incorrectly considering the changed conditions within the maritime field and shall be bound

to apply the proper precedent. The District Court correctly found that Respondents may limit

their liability under the provisions of the Act, as there is direct precedent that bespeaks to the

very facts of this case. If the court had been persuaded by the Petitioners incorrect argument, the

court would be inadvertently “undercut[ting] the ability of the Supreme Court clearly to teach the

law.” Id. citing Benjamin N. Cardozo, THE NATURE OF THE JUDICIAL PROCESS, 149-150 (1921).

While the Sisson footnote may indicate discontent with this prior holding, Richardson remains as

controlling precedent until explicitly overruled.

4. Conflicting circuit court decisions do not affect the application of the Limitation Act in the present case

The decisions of the Seventh, Eleventh, and Ninth are not applicable under the current set

of facts because decisions of the circuit court are not binding on this Court. In particular, the

Seventh Circuit in Seven Resorts v. Cantlen, denied usage of the Limitation Act as a basis for

jurisdiction when a chartered house boat injured a nearby swimmer. 57 F.3d. 771 (9th Cir. 1995).

The court thoughtlessly overruled Supreme Court precedent because it deemed the Extension of

Admiralty Jurisdiction Act, 46 U.S.C. §740, conferred jurisdiction where Richardson intended.

18

Id. at 773. However, as one commentator notes, the holding of Richardson “cannot be dismissed

by the simple explanation that the Admiralty Extension Act undermined [Richardson], for it is

clear that the policy basis of that decision was to interpret the Act broadly to extend the benefit

of limitation to vessel owners to all torts.” Moreover, if the policy rationale behind the Act’s

expansion sought to strengthen the maritime time field as it was at the time, it remains relevant

that the current state of the maritime field is shifting into a more commercial/recreational market.

Furthermore, the Fourth Circuit decision in David Wright Charter Service, Inc. v. Wright,

is distinguishable to the current case at hand. 925 F.2d 783 (4th Cir. 1991). As indicated by the

facts of David Wright Charter Service Inc., the case concerned exoneration from liability as a

result of damages arising from a fire and explosion on the ship High Hopes. Id. at 784. The

incident occurred while the vessel was undergoing repairs on blocks approximately 75 feet from

the water. Id. In its decision, the Fourth Circuit simply cited other circuits that found that the

Limitation Act did not confer an independent basis for jurisdiction. Id. In doing so, the court

found that the Limitation Act may not extend to torts on vessels undergoing repairs outside of

water. Id.; see generally M/V Sea Lion v. Reyes, 23 F.3d 345, 351 (11th Cir. 1994) (citing Lewis

Charters, Inc. v. Hutchins Yacht Corp., 871 F.2d 1046, 1053 (11th Cir. 1991). Pursuant to the

current set of facts, the reasoning of David Wright Charters does not apply. While it is not

disputed that the Flamingo remained in non-navigable water, Respondents kept the vessel within

the cofferdam. R.10a. As a result, the explosion aboard the vessel did not occur on land, but on

the water.

The circuits supporting the questioning by Sisson have promulgated their own

parameters of the Limitation Act that is an inappropriate interpretation of a Supreme Court

footnote. While there remains value in the Court’s subtle nuances within the footnote of Sisson,

19

circuit court decisions effectively overruling prior holdings of the Supreme Court remain

unbinding to the current issue at hand. As such, the district court was correct to confer admiralty

jurisdiction upon this case under the Limitation Act and this Court should affirm the United

States District Court for the District of South Carolina’s decision.

III. THE FOURTH CIRCUIT COURT OF APPEAL CORRECTLY DETERMINED IT LACKED JURISDICTION AND PROPERLY DISMISSED THIS CASE. Appellate jurisdiction exists under 28 U.S.C. § 1292(a)(3) over interlocutory decrees of

district courts or the judges thereof when (1) the underlying case is an admiralty case (2) the

appeal is from an interlocutory order or decree of the district court in which appeals from final

decrees are allowed; and (3) the order or decree determined the rights and liabilities of the

parties.

In the present case, the first two prerequisites to invoke § 1292(a)(3) jurisdiction were

established as the District Court of the United States for the District of the South had admiralty

jurisdiction under the Limitation Act and appeals from final decrees are allowed. (R.4a).

However, the language of §1292(a)(3) indicates such a decree is only appealable after a

determination of the rights and liabilities of the parties. 28 U.S.C. § 1292(a)(3). Thus, when the

district court determined the Respondent’s entitlement to the Limitation Act, the third

prerequisite to invoke § 1292(a)(3) jurisdiction was not met. R. 9a, 13a. Accordingly, the Fourth

Circuit Court of Appeals correctly dismissed the Petitioner’s appeal because it was not from a

decree arising after a determination of liability and therefore, did not comport with the language

of § 1292(a)(3). R. 1a.

In addition to failing to meet the requirements set out by the statutory provision, as a

matter of policy, it would be improper to allow appellate jurisdiction pursuant to §1292(a)(3)

under this case. As a temporary order issued during pending litigation, bringing an appeal under

20

§ 1292(a) will serve as an exception to the final judgement rule. 6 Charles Alan Wright, Arthur

R. Miller, & Edward H. Cooper, FEDERAL PRACTICE & PROCEDURE, 3927 (2012 & supp. 2018).

This includes § 1292(a)(3). It is well established that exceptions to general rules should be

construed narrowly. In re Wills Lines, Inc., 227 F.2d 509, 510 (2d Cir. 1955). Thus, as an

exception, 1292(a)(3) should be interpreted narrowly on its face, requiring a strict construction of

the phrase “determining rights and liabilities.” Southwest Marine, Inc. v. Danzig, 217 F.3d 1128,

2000 AMC 2088 (9th Cir. 2000). In this case, the Fourth Circuit correctly interpreted

§1292(a)(3) narrowly and in keeping with this interpretation, correctly dismissed the appeal for

lack of jurisdiction. R.1a; 6a.

While circuit courts remain split on this issue, a narrow interpretation and therefore

dismissal for lack of appellate jurisdiction, is befitting to the historical origin and facial language

of §1292(a)(3) in this case. Thypin Steel Co. v. Asoma Corp. 215 F.3d 273, 2000 A.M.C. 2041

(2000). Moreover, arguments for an expansive interpretation of § 1292(a)(3) are impractical and

already anticipated by both Federal Rule of Civil Procedure 54(b) and 28 U.S.C. § 1292(b). Id.;

see generally Wright, Miller & Cooper, supra. Therefore, because a liability determination has

not been made on any claim in this case, this Court should affirm the Fourth Circuit’s decision

and find appellate jurisdiction was not established.

1. The prerequisites for invoking jurisdiction under 1292(a)(3) are not met.

Under §1292(a), parties are provided with entitled interlocutory decrees, which serve as

temporary orders during pending litigation. See Wright, Miller &. Cooper, supra. In order for a

claim to fall within the statutory provision for an interlocutory decree appeal in the third

subsection of § 1292(a), it must be (1) an admiralty case, (2) from a district court in which finals

decrees are allowed (3) wherein the district court determined the rights and liabilities of the

21

parties. Becker v. Poling Transp. Corp., 356 F.3d 381, 387 (2d Cir. 2006) (quoting Thypin Steel

Co., 215 F.3d at 280). In keeping with the face of the statute, this Court should find the Fourth

Circuit properly dismissed the Petitioner’s appeal for lack of jurisdiction because the district

court's order entitling the Respondent to limit its liability does not determine the rights and

liabilities of the parties.

A. § 1292(a)(3) should be construed narrowly, in line with historical precedent

and Congressional intent.

In general, all appeals are subject to the final judgement rule, which allows appellate

courts to only hear appeals from a district court’s final judgement in a case. Wright Miller &

Cooper, supra. However, interlocutory appeals are not subject to the final judgement rule. Id.

“It is common in admiralty courts to tr[y] liability first and then, if liability [i]s

determined, tr[y] damages in a separate proceeding.” Id. The bifurcation of trials in admiralty

proceedings triggered a reaction from Congress and serves as the primary purpose behind

§1292(a)’s enactment. Id.

§1292(a)’s enactment allowed for the party found liable in the first trial to take an

immediate appeal without submitting to a prolonged, second trial regarding damages. 23 Fed.

Proc., L. ED. § 53:147 (2018). While §1292(a)(3) does not require a final judgment in order for

a claim to fall within the statutory provision, it must arise from an admiralty claim wherein a

final decree is allowed, after a determination of rights and liabilities has been made. As

exceptions, interlocutory appeals are not favored, and therefore historically, the statutes

permitting them have been strictly construed. This includes §1292(a)(3). Wright Miller &

Cooper, supra.

The court in Estate of Hager v. Laurelton Welding Serv., 124 F. App'x 104, 106 (3d Cir.

22

2005) specified that “[b]ecause it is an exception to the final judgment rule, § 1292(a)(3) has

traditionally been narrowly construed to allow interlocutory appeals only after liability has been

determined, but before the damages phase.” See United States v. The Lake George, 224 F.2d 117,

119 (3d Cir. 1955); In re Bave, 314 F.2d 335, 336 (3d Cir. 1963). Even in their most expansive

exercise of appellate jurisdiction under § 1292(a)(3), the Third Circuit has insisted the district

court order "conclusively determine" the appellant's claim. 124 F. App'x at 106; see also

Kingstate Oil v. M/V Green Star, 815 F.2d 918, 922 (3d Cir. 1987).

B. A determination of rights and liabilities has not been made on the Petitioner’s

claim.

Whether the district court’s judgement has determined the rights and liabilities of the

parties is the crucial inquiry for purposes of establishing jurisdiction under §1292(a)(3). In re

Wills Lines Inc., 227 F.2d 509, 510 (2d Cir. 1955). As a general rule, whenever an order from a

district court in an admiralty case dismisses a claim for relief on the merits, a court of appeal will

permit interlocutory appeals under 1292(a)(3). See O’Donnell v. Lantham, 525 F. 2d 650, 21

Fed. R. Serv. 2d 222 (5th Cir. 1976). However, discrepancy in the phrase “determined rights and

liabilities” arises in situations where a district court’s judgment differs from the general rule. As

a result, there is a circuit split. (Compare Evergreen Int'l (USA) Corp. v. Standard Warehouse, 33

F.3d 420, 424 (4th Cir. 1994) and Hollywood Marine, Inc. v. M/V Artie James, 755 F.2d 414,

416 (5th Cir.1985) with Heller & Co. v. O/S Sonny V., 595 F.2d 968, 971 (5th Cir. 1979), and

Wallis ex rel. Wallis v. Princess Cruises, Inc., 306 F.3d 827, 834 (9th Cir. 2002)).

While the federal jurisprudence regarding § 1292(a)(3) is chaotic, there are a number of

cases in which courts have dismissed for lack of jurisdiction when a decree is appealed. See

Burgbacher v. Univ. of Pittsburgh, 860 F.2d 87, 88 (3d Cir. 1988); see also Evergreen Int'l

23

(USA) Corp. v. Standard Warehouse, 33 F.3d 420, 424; Bucher-Guyer AG v. M/V Incotrans

Spirit, 868 F.2d 734, 735 (5th Cir. 1989), Slatton v. Martin K. Eby Const. Co., Inc., 491 F.2d

707, 708 (8th Cir. 1974).

In Burgbacher v. Univ. of Pittsburgh, the Third Circuit dismissed an appeal for lack of

jurisdiction under §1292(a)(3) because the district court’s determination that its state worker’s

compensation law did not bar the plaintiff’s claim under its state survival act did not comport

with §1292(a)(3). 860 F.2d at 88. The Third Circuit discerned that if it were to treat the district

court’s ruling that the plaintiff’s claim was not barred, as a ruling which comports with the

statute, a sweeping number of rulings in admiralty proceedings would become immediately

appealable even though the question of liability remains undetermined. Id. Likewise in

Evergreen Int'l (USA) Corp. v. Standard Warehouse, the Fourth Circuit dismissed the plaintiff

shipper’s interlocutory appeal. 33 F.3d at 424, reasoning it did not have §1292(a)(3) jurisdiction

over an appeal from a district court’s order granting summary judgement in favor of the

defendants. Id. at 422. The court in Evergreen opined that §1292(a)’s ambiguity called for a

narrow interpretation, limiting the statue’s, “special treatment to the special circumstances that

justified,” its enactment. Id. at 424. In Bucher-Guyer AG v. M/V Incotrans Spirit, the Fifth

Circuit also dismissed for lack of jurisdiction under §1292(a)(3), reasoning that when a district

court determined a $500 limitation on damages applied to a set of facts, a district court was not

determining the rights and liabilities of the parties within the meaning of the statue. 868 F.2d at

735. Similarly, in Slatton v. Martin K. Eby Const. Co. Inc., the Eighth Circuit concluded a

district court’s order granting a new trial solely on the issues of the amount of damages was not

appealable under §1292(a)(3), and therefore also dismissed the appeal. 491 F.2d at 708.

In the aforementioned case law, the Third, Fourth, Fifth, and Eighth Circuits’ construed

24

§1292(a)(3) narrowly. Id. In not taking an expansive view of the phrase “determined rights and

liabilities,” these circuits have conformed with the historical concepts behind interpreting the

statute which only permitted an appeal after a determination of liability and before the

assessment of damages. With this in mind, this Court should find the Fourth Circuit correctly

interpreted §1292(a)(3) narrowly and in keeping with this interpretation, properly dismissed the

appeal for lack of jurisdiction.

In the present suit, the district court bifurcated the trial and heard evidence regarding the

Respondent’s entitlement to limitation of liability in the first phase, postponing issues of liability

and damages until the second phase. R.9a. The district court’s analysis regarded the

Respondent's petition to either exonerate its liability or limit its liability. R.7a. Based on a series

of facts in view of the cause of the accident, the district court concluded that the Respondent

could only limit its liability, denying the Respondent’s entitlement to exonerate its liability. R.

13a. In reaching its conclusion to grant entitlement to the Limitation Act, the district court briefly

noted a third party’s negligence caused the accident, however did not expand on the issue of

liability any further. R.14a.

Comparably, the Fourth Circuit, in the case, Matter of Intercontinental Properties

Management, S.A., concluded appellate jurisdiction could be established under §1292(a)(3),

when a district court determined a defendant was exonerated from liability. 604 F.2d 254, 258

n.2 (4th Cir. 1979). In light of this distinction, it wouldn’t be farfetched to adduce the different

outcome in the present case to the fact that if the Respondent were definitively and completely

free from liability and the district court had come to that decision, then exoneration from liability

would have been granted. Yet, notably the district court did not exonerate the Respondent from

liability and the Fourth Circuit determined the language of §1292(a)(3) did not provide appellate

25

jurisdiction on the present facts because when the district court only granted the Respondent the

right to the Limitation Act, it did not determine the rights and liabilities of the parties. R. 3a; 4a.

The presence of the phrase “admiralty cases” in 1292(a)(3) appears to sweep any claim

presented in a case in which admiralty jurisdiction has been invoked. Id. However, using the

inclusiveness of “admiralty cases” to necessitate an expansive reading of the phrase “determined

rights and liabilities” is incorrect. See Carman Tool & Abrasives, Inc. v. Evergreen Lines, 871

F.2d 897 (9th Cir. 1989) (where the 9th Circuit determined the district court’s ruling that the

defendant’s liability was properly limited pursuant to the Carriage of Goods by Seas Act fell

within a broad interpretation of 1292(a)(3); see also Vision Air Flight Service, Inc. v. M/V

National Pride, 155 F.3d 1165 (9th Cir. 1998) (where the 9th Circuit determined it had

jurisdiction to hear this interlocutory appeal under §1292(a)(3) to review the district court’s

partial grant of summary judgment). To view §1292 in its entirety is perhaps the most helpful

mechanism in sifting through the chaos of national case law on the subject.

In looking at §1292 as a whole, the present case is not the situation anticipated by

Congress in their enactment of the statute. 29 MOORE'S FEDERAL PRACTICE - CIVIL § 710.05 (3d

ed. 2010), see also Farrell Lines Inc. v. Ceres Terminals Inc.,161 F.3d 115 (2d Cir.1998) and

Lowry & Co. v. S.S. LE MOYNE D'IBERVILLE, 372 F.2d 123, 124 (2d Cir.1967). Congress

intended appeals of interlocutory orders to be strictly limited to the particular situations

expressed in the statute’s language. Seattle First Nat. Bank v. Bluewater Partnership, 772 F.2d

565, 568–569 (9th Cir. 1985), citing Wright, Miller & Cooper, supra. In other words, only for

appeals on matters determining the rights and liabilities of the parties.

Therefore, even though the jurisprudence has expanded the construction of the statute in

some respects, it does not apply here because the district court did not determine liability of the

26

Respondent within the meaning of the statute.

2. In the alternative, the appellate standard of review supports the Fourth Circuit’s

dismissal of the case.

Appellate courts are not permitted to make advisory opinions. Wright, Miller & Cooper,

supra. The standard of review in admiralty cases on appeal is the same as provided by all bench

trials by Fed. R. Civ. Proc. 52(a): “[f]indings of fact shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of the trial court to judge . . . the

credibility of the witnesses. See also, Maraist, Galligan, Maraist, ADMIRALTY IN A NUTSHELL,

(6th ed. 2010). Meaning, in the present matter the Fourth Circuit’s duty encompassed advising

on the interpretation of § 1292(a)(3), a question of law. This duty does not include an analysis as

to whether the Respondent is, in fact, liable, and if so, to what degree. 33 F.3d at 423. In other

words, the question of liability is one of fact, therefore it must be answered by the district court.

Id.

However, in this case the district court did not make a factual finding as to whether

Respondent is liable, and as a factual matter, the Fourth Circuit Court of Appeal did not have the

power to assign and calculate the Respondent’s fault. Therefore, it would be incorrect to argue

appellate jurisdiction was properly established because the Fourth Circuit speculated the district

court determined the Respondent would “not bear any real liability for the claimant’s injuries” in

its opinion. R.5a. Moreover, to utilize the Fourth Circuit’s speculation as a basis to prove the

district court resolved both the issue of the Respondent’s liability and the computation of

damages would run counter to the policy underlying 1292(a)(3)’s enactment, which was to afford

parties the opportunity to appeal a determination of liability before the calculation of damages.

Beluga Holding, Ltd. v. Commerce Capital Corp., 212 F.3d 1199, 1203 (11th Cir. 2000).

27

In addition to the matters permissible in appellate review, deference should be given to an

appellate court’s power to hear a case en banc. In this case, the Court of Appeal’s dismissal of

the Petitioner’s appeal is indicative of its mindset on that matter. Fed. R. App. Proc. 35. This is

because while an appellant court is not at liberty to depart from a panel precedent, the Fourth

Circuit was not precluded from hearing the case en banc in an effort to overturn a binding

authority. Id. However, the Fourth Circuit did not utilize this mechanism and as a result made the

decision to consciously abide by the same approach as their previous decisions and its sister

circuits in reading § 1292(a)(3) narrowly. R.6a. In doing so, the Fourth Circuit conformed with

the approach that it is better to hold § 1292(a)(3) to hew closely to the procedural posture that

justified its enactment, and therefore correctly dismissed the case. 33 F.3d at 424.

A. Additionally, the policy argument in favor of appellate jurisdiction in this case

is offset by Fed. Civ. P. R. 54(B) and 28 USC § 1292(b).

Recent policy has allowed for appellate jurisdiction in cases where 1292(a)(3) is not

explicitly met, and more recently courts have liberally permitted interlocutory appeals based on

the indicia of practicality. In re Sally’s Seafood Shack, Inc., 243 F. Supp. 3d 702 (D.S.C. 2017);

see also David G. Knibb, FEDERAL COURT OF APPEALS MANUAL 162 (6th ed. 2018). The

underlying argument for cases not comporting with the language of 1292(a)(3) is premised in an

attempt to make the adversarial system more efficient and less costly. See generally Wright,

Miller & Cooper, supra. An expansive reading of the statute is rationalized by claims of

eliminating costs and time wasted on delayed trial proceedings which was ultimately the purpose

behind 1292(a)’s enactment. Id. However, the basis of arguments for an expansive interpretation

of § 1292(a)(3) is already anticipated by the availability of the Fed. R. Civ. Proc. 54(b) and 28

U.S.C. § 1292(b), which gives appellate courts discretion to hear interlocutory appeals raising

28

controlling questions of law. FED. CT. APP. MANUAL § 4:6 (6th ed).

Rule 54(b) provides that when, “[a]n action presents more than one claim for relief or

when multiple parties are involved,” a district court, “may direct entry of a final judgment as to

one of the claims only if the court expressly determines that there is no just reason for delay.”

Fed. R. Civ. P. 54(b). Rule 54(b) casts the district court judge “in the role of dispatcher,” to

eliminate undue delay in the process of appellate review. Gen. Acquisition, Inc. v. GenCorp.,

Inc., 23 F.3d 1022, 1026 (6th Cir. 1994). To allow an appeal under Rule 54(b) “requires two

independent findings,” the second of which requires the trial judge to determine that there is no

just reason for delaying appellate review by balancing “the needs of the parties against the

interests of efficient case management.” Id. at 1027. By giving district courts the discretionary

function to balance the needs of individual parties and the efficiency of the adversarial system.

Rule 54(b) allows an appeal of multiparty claims by partial final disposition. See generally

Wright, Miller & Cooper.

The explicit function of Rule 54(b) undermines the necessity of reading 1292(a)(3)

broadly when an indicium of practicality is the rationale behind such an interpretation. Id. A

certification under Rule 54(b) can come by a party's request or by the district court's sua

sponte order and in essence, this availability means § 1292(a)(3) is not the exclusive method for

interlocutory appeals in admiralty law. FED. CT. APP. MANUAL § 4:6 (6th ed. 2018). Rule 54(b)

can be used to satisfy case-specific needs for an unjust delayed appeal through discretionary

means of a trial judge. Wright, Miller & Cooper, supra. Furthermore, this justifies the need for

courts to adhere to strict-construction of § 1292(a)(3). Id. In consideration of Rule 54(b)’s

adoption, which was 12 years after § 1292(a)(3), it is difficult to find any justifiable reason why

admiralty appeals should be set free from the constraints deliberately incorporated in Civil Rule

29

54(b). 215 F.3d 273, 2000 A.M.C. 2041; see also Wright, Miller & Cooper.

Along with Rule 54(b), the adoption of the permissive interlocutory appeal provision of §

1292(b) extends another reason for narrow construction of §1292(a)(3). Thypin Steel Co. v.

Asoma Corp., 215 F.3d at 279–280. 28 USC § 1292(b) provides “[a]n interlocutory order

deciding a critical legal issue is reviewable if the order has been certified for appeal by the

district court and the appellate court has, in its discretion, accepted jurisdiction.” Contrary to

Rule 54(b), a trial judge’s certification under §1292(b) applies to non-final orders that decide

important legal issues. See Bates v. Bankers Life & Cas. Co., 848 F.3d 1236, 1238 (9th Cir.

2017). Under § 1292(b), an appeal from an interlocutory order-that would not otherwise be

appealable- is permissible, if district court states “the case involved a controlling question of law

as to which there is substantial ground for difference of opinion and that an immediate appeal

from the order may materially advance the ultimate termination of the litigation.” S. Shawn

Stephens, Just Can't Wait? Mechanisms for Interlocutory Review in Federal Court, 41 THE

HOUSTON LAWYER 10, 13-15 (2003) (quoting In re Ingram Towing v. Adnac, Inc., 59 F.3d 513,

515 (5th Cir. 1995)).

In the present case, the question of law, regarding §1292(a)(3)’s provision, “determined

rights and liabilities” has undoubtedly caused much disarray between circuits. See Wright, Miller

& Cooper. This ambiguity existing §1292(a)(3) seemingly falls within the purpose of an

interlocutory appeal under §1292(b) and notably, important legal issues that have been presented

to courts of appeals under §1292(b) have involved threshold procedural issues similar to the one

in the present case. See Fisons Ltd. v. United States, 458 F.2d 1241 (7th Cir. 1972), cert.

denied, 405 U.S. 1041, 92 S.Ct. 1312, 31 L.Ed.2d 581 (1972) (service of

process); Farbenfabriken Bayer, A. G. v. United States Dep’t. of Treasury, 294 U.S. App. D.C.

30

44, 956 F. 2d 330 (1992), cert. denied, 393 U.S. 959, 89 S.Ct. 397, 21 L.Ed.2d 373 (1968) (quasi

in rem jurisdiction).

B. Appellate review in this case would be impractical, since the parties’ rights and

liabilities have not been determined.

The Petitioner’s appeal raises an important question of federal appellate jurisdiction and

has subsequently developed conflict among all circuits, indicating §1292(a)(3) is not the sole

method of obtaining appellate jurisdiction in this matter and augments the justifications behind a

strict interpretation of §1292(a)(3), which have grown with the enactment of §1292(b).

Furthermore, appellate review would be impractical in this case. A decision whether the

limitation on damages applies in this case is not a decision determining the rights and liabilities

of the parties “because even if a court were to deem the limitation applies, it would still have to

remand the case for a decision on whether the defendants were liable.” 868 F.2d at 735. A more

pragmatic approach would align with the belief that adversaries and the legal system as a whole

are better served by avoiding the piecemeal review, as this would ultimately result in hearing

appeals from judgements not determining the rights and liabilities of parties. 372 F.2d at 124. A

narrow perception of § 1292(a)(3) would also have the beneficial effect of moving admiralty

practice closer to the mainstream of civil litigation. Id.

The seeming tension between circuits illustrates a relentless conflict between the policies

of the final-judgment rule and the drive to speed justice and compensate the injured in individual

cases. Nonetheless, in light of 1292(a)(3)’s historical origin, the congressional intent behind its

enactment, and the unnecessary need for appellate review in this case, this court should affirm

the United States Court of Appeals for the Fourth Circuit’s decision to dismiss the case for lack

of jurisdiction under § 1292(a)(3).

31

CONCLUSION For the aforementioned reasons, Respondent respectfully asks this Court to affirm the

rulings of both the District Court for the District of South Carolina and the United States Court

of Appeals for the Fourth Circuit.

Respectfully submitted, Team G Counsel for Respondent