United States District Court, Southern District of New York
December 12, 1990
THE SHIPPING CORPORATION OF INDIA, LTD., PLAINTIFF,
THE AMERICAN BUREAU OF SHIPPING, DEFENDANT AND THIRD-PARTY PLAINTIFF, V. BRODOGRADILISTE I TVORNICA DIESEL MOTORA-SPLIT (A/K/A SHIPYARD "SPLIT"), A DIVISION OF THE SHIPBUILDING AND ENGINEERING INDUSTRY "SPLIT" AND A MEMBER OF THE ASSOCIATED SHIPBUILDING INDUSTRY "JADRANBROD" SHIPBUILDING GROUP, THIRD-PARTY DEFENDANT.
The opinion of the court was delivered by: Motley, District Judge.
MEMORANDUM OPINION REGARDING CERTIFICATION
Plaintiff has moved this court for certification of an
interlocutory appeal pursuant to 28 U.S.C. § 1292(b). This
court will not certify such an appeal for the reasons stated
Plaintiff Shipping Corporation of India (SCI), the purchaser
of several vessels, brought tort claims together with
contractual claims against American Bureau of Shipping, a
classification company. This court granted defendant's motion
for summary judgement as to the tort cause of action. This
court found that SCI's negligence claims were not cognizable in
maritime tort. See The Shipping Corporation of India v. The
American Bureau of Shipping, 744 F. Supp. 447 (S.D.N.Y. 1990).
This decision was based upon Supreme Court precedent as well as
precedent from the Fifth Circuit. East River S.S. Corp. v.
Transamerica Delaval, Inc., 476 U.S. 858, 106 S.Ct. 2295, 90
L.Ed.2d 865 (1986); Employers Insurance of Wausau v. Suwannee
River Spa Lines, Inc., 866 F.2d 752 (5th Cir. 1989).
Plaintiff now asks this court to certify for an interlocutory
appeal the question of whether a tort claim in negligence
exists for economic loss and damage to a vessel.
28 U.S.C. § 1292(b) provides a means of appealing orders
which would not otherwise be appealable. The statute provides:
When a district judge, in making in a civil action
an order not otherwise appealable under this
section, shall be of the opinion that such order
involves 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, he shall so state
in writing in such order.
Thus the statute provides for the above three-part test, each
prong of which the moving-party must meet. Herold v. Braun,
671 F. Supp. 936, 937 (E.D.N.Y. 1987); State Teachers Retirement
Board v. Fluor Corp., 84 F.R.D. 38, 39 (S.D.N.Y. 1979). See
e.g. Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21 (2d Cir.
1990). In addition "the power [to certify an interlocutory
appeal] must be strictly limited to the precise conditions
stated in the law," Gottesman v. General Motors Corp.,
268 F.2d 194
, 196 (2d Cir. 1959) and "only `exceptional circumstances
[will] justify a departure from the basic policy of postponing
appellate review until after the entry of a final judgment.'"
Id. (citing Coopers & Lybrand v. Livesay, 437 U.S. 463
, 475, 98
S.Ct. 2454, 2461, 57 L.Ed.2d 351 (1978). In this case,
plaintiff does not meet any of the prongs of the three prong
First, the issue of whether plaintiff could bring a tort
claim, in admiralty, for damage to property does not involve a
controlling question of law. A controlling question can be one
that substantially affects a large number of cases. See e.g.
Department of Economic Development v. Arthur Andersen & Co.,
683 F. Supp. 1463, 1486-87 (S.D.N.Y. 1988); Herold v. Braun,
671 F. Supp. 936, 938 (E.D.N.Y. 1987); Abortion Rights Mobilization,
Inc. v. Regan, 552 F. Supp. 364, 366 (S.D.N.Y. 1982). A
controlling question, however, can also be one which would
terminate the action if the district court's order was
reversed. Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21.
In this case, plaintiff has failed to persuade the court that
this issue either will have precedential value for a large
number of cases or that it is an issue that would terminate the
litigation if reversed. On the issue of precedential value,
plaintiff has made no showing that there are other cases in
this Circuit involving the same issue. Rather, it appears to
this court that the issue is somewhat unique. Plaintiff also
has argued that the issue should be deemed controlling because
they assert that it is one of first impression. The court
rejects this contention because, as previously stated, both the
Supreme Court and Fifth Circuit have clearly spoken on issues
that were substantially similar.
Finally, even if the appeal was heard and this court's
decision reversed, the case would not be terminated. In such a
situation, all that would occur is an additional theory of
liability would be added to the case. Unlike the recent case of
Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21 (2d Cir.
1990), the issue in question does not involve the possibility
of a party being dismissed from the case and therefore
terminating the litigation as to that party.
The second prong of the § 1292(b) test requires that there be
a substantial ground for difference of opinion regarding the
law. "The legislative history indicates that to satisfy this
prerequisite there must be `substantial doubt' that the
district court's order was correct." Moll v. US Life Title
Insurance Company of New York, 1987 WL 10026 (S.D.N.Y. 1987).
Once again plaintiff has failed to persuade the court that such
an issue exists in this case. Plaintiff has not advanced any
new argument that this court had not previously examined while
ruling on defendant's motion for summary judgment. Plaintiff
has also failed to demonstrate that there is any conflicting
legal authority which would persuade this court that there
could be a substantial doubt on this issue of law. See Moll v.
US Life Title Insurance Company of New York; von Bulow By
Auersperg v. von Bulow, 634 F. Supp. 1284, 1312 (S.D.N.Y. 1986).
Finally plaintiff has failed to meet the third prong of the
test which requires a showing that certification will
materially advance the ultimate termination of the litigation.
After years of preparation, the parties are very close to
having the issue of damages heard and determined by the special
master appointed by the court upon the cojoined request of the
parties. An interlocutory appeal would only serve to further
delay the ultimate resolution of the damages issue and would be
the epitome of a piecemeal appeal. Furthermore, since
plaintiff's damage claims will be heard by the special master,
the only issue that such an interlocutory appeal would involve
is upon what theory of liability such damage is predicated.
The court finds that an interlocutory appeal, in this case,
would not serve to avoid protracted or expensive litigation. In
taking the above considerations into account, it becomes clear
to this court that it would be inappropriate to add this case
to the already heavy docket of the Court of Appeals. See,
Herold v. Braun, 671 F. Supp. at 938; Abortion Rights
Mobilization, 552 F. Supp. at 366; State Teachers Retirement
Board, 84 F.R.D. at 38.
For the above stated reasons, plaintiff's motion for
certification of an interlocutory appeal is denied.
© 1992-2003 VersusLaw Inc.