Appellant Asoma Corporation (“Asoma”) appeals from a finding of admiralty in rem jurisdiction by the United States District Court for the Southern District of New York (Robert P. Patterson, Judge) certified to this court under 28 U.S.C. § 1292(b). Plaintiffs Thypin Steel Company (“Thypin”) and Donbakraft Ltd. (“Don-bakraft”) cross-appeal from the District Court’s order dismissing Metall und Roh-stoff A.G. (“Metall”) for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) and dismissing the conversion and tortious interference with contract claims against Asoma for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons that follow, we hold that the District Court properly found admiralty jurisdiction based on a maritime contract and dismiss the cross-appeal for lack of appellate jurisdiction.
BACKGROUND
By a verified admiralty complaint dated March 25, 1996, Thypin, a corporation organized and existing under the laws of the State of New York, brought an in rem action in district court claiming ownership of a bill of lading
The cargo of steel that is the focus of this action was shipped under a bill of lading that was dated January 25, 1996, and issued by the master of the M/V GER-OI PANFILOVSKY, the vessel that was chartered by Metall to transport the goods overseas. This bill of lading designates “Ukranian-Swiss JV Fistag Victory” (“Fis-tag”) as the shipper and Metall as consignee “to order of Donbakraft, Ltd.” The bill of lading was not endorsed by Donbakraft, the party to whose order the bill of lading
On March 26, 1996, the District- Court issued an ex parte order authorizing the issuance of a warrant for the arrest of the bill of lading. On March 28, 1996, the District Court held a post-arrest hearing pursuant to Rule E of the Supplemental Rules for Certain Admiralty and Maritime Claims, and received additional evidence on April 4 and 11,1996.
In an opinion and order dated May 1, 1996, the District Court found admiralty jurisdiction based on Thypiris allegations of conversion of goods which “took place when the steel was transported from the shore onto the vessel and the Bill of Lading evidencing a change of title was issued by the carrier.” Thypin Steel Co. v. Certain Bills of Lading, No. 96 CIV 2166(RPP),
On May 3, 1996, the District Court conducted a hearing to determine the amount that Asoma would post as a bond to secure the release of the bill of lading; this sum was determined to be $700,000. Asoma posted this bond on May 21, 1996, and the bih of lading was released. In late May 1996, the vessel MV GEROI PANFILOV-SKY arrived in Houston and discharged the cargo of steel.
On August 2, 1996, the District Court granted Asoma’s motion pursuant to 28 U.S.C. § 1292 for certification of immediate appeal of the May 1, 1996 order. On April 29, 1997, this Court issued a Mandate remanding the issue of jurisdiction to permit Thypin to amend its pleading to assert its new bases for jurisdiction and to enable the District Court to rule on all available bases of jurisdiction prior to appellate review.
Thypin filed an amended complaint on May 30, 1997, adding Donbakraft as a plaintiff and Metall, Ulrich Boenzli (“Boenzli”), and John Farkas (“Farkas”)
In an opinion and order dated March 1, 1999, the District Court denied plaintiffs’ motion for reconsideration of those aspects of its opinion and order dated December 30, 1998, which (1) dismissed plaintiffs’ claims against defendant Metall for lack of personal jurisdiction; (2) granted defendants’ motion to quash discovery on the personal jurisdiction issue pending appeal; (3)dismissed plaintiffs’ conversion and tor-tious interference with contract claims against defendant Asoma; and (4) granted a certificate of immediate appeal on the issue of whether the District Court properly exercised admiralty jurisdiction over plaintiffs’ in rem claim. See Thypin Steel Co. & Donbakraft Ltd. v. Certain Bills of Lading, No. 96CIV2166 (RPP),
This timely appeal followed.
DISCUSSION
I. Admiralty Jurisdiction
The District Court found that admiralty jurisdiction existed based on the bill of lading, a maritime contract between Donbakraft (which assigned its rights to Thypin) and J.V. Fistag-Vietoriya. See Thypin Steel Co.,
“The boundaries of admiralty jurisdiction over contracts — as opposed to torts or crimes — being conceptual rather than spatial, have always been difficult to draw.” Kossick v. United Fruit Co.,
On appeal, Asoma argues that this matter is merely a non-maritime dispute between two New York merchants over the title to cargo, a shipment of steel, based on a purchase agreement which does not involve the operation, navigation, or management of a ship. We disagree.
A bill of lading for ocean carriage is a maritime contract. See Leather’s Best, Inc. v. S.S. MORMACLYNX,
• In this case, Metall, the consignee, contracted with J.V. Fistag-Victoriya, the shipper, to deliver goods via the vessel M/V GEROI PANFILOVSKY to the order of Donbakraft, the designated recipient specified in the bill of lading, for discharge in Houston. It is evident from the bill of lading that the shipper and the consignee contracted to ship the steel plates by vessel over navigable waters to the Houston City Docks, North Side. Accordingly, the bill of lading that is at the center of the current dispute is not merely a non-maritime purchase agreement between merchants for the purchase of maritime cargo, as Asoma contends, but, rather, is a maritime contract that involves the transportation of goods over navigable waters.
While it is true that the mere handling or forwarding of a bill of lading does not convert a simple contract claim into an admiralty claim, see, e.g., United States v. M/V SANTA CLARA I,
In short, it is the bill of lading, a maritime contract, not the cargo, that is the res which confers admiralty jurisdiction upon this court, and it is the alleged misappropriation of this bill by both Asoma and Metall and the effort to obtain delivery from the vessel by the unauthorized presentation of the bill which relates to maritime commerce. While we recognize that the procedural posture of this case may be unusual in some respects — the traditional course of action, as Thypin acknowledged at oral argument, would have been to seize the cargo in Houston — -the bill of lading whose ownership is at issue here provides for the transport of the cargo overseas and we find that this connection to maritime commerce is sufficient to justify the exer
The rationale for federal admiralty jurisdiction provides further support for a finding of admiralty jurisdiction in this case. “[T]he question of whether a dispute falls within admiralty jurisdiction cannot be divorced from the purposes for which admiralty and maritime jurisdiction was granted.” Id. at 199 (internal quotation marks omitted). “[T]he protection of maritime commerce” is the “primary focus of admiralty jurisdiction.” Foremost Ins. Co. v. Richardson,
II. Cross-Appeal
In their cross-appeal, Thypin and Don-bakraft seek to appeal the District Court’s interlocutory order dismissing Metall for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2) and dismissing the conversion and tortious interference with contract claims against Asoma for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Asoma and Metall argue that this cross-appeal should be dismissed for lack of appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(3). For the reasons that follow, we agree.
A. Standard Under 28 U.S.C. § 1292(a)(3)
Title 28, section 1292(a)(3) of the United States Code provides, in pertinent part, thát appeals may be taken from “[i]n-terloeutory decrees ... determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.” Section 1292(a) is an exception to the general rule of finality stated in § 1291 and, as such, should be construed narrowly. See Roco Carriers, Ltd. v. M/V NURNBERG EXPRESS,
A narrow construction of this exception is consistent with the view shared by several of our sister circuits that appellate jurisdiction under § 1292(a)(3) should only be exercised where the order at issue conclusively determines the parties’ substantive rights and obligations. In this regard, courts have declined to hear appeals from orders striking a claim for damages for loss of use of a plaintiffs vessel, see, e.g., Central State Transit & Leasing Corp. v. Jones Boat Yard, Inc.,
Some courts certainly have expanded § 1292(a)(3)’s application and found that an order determines the rights and liabilities of the parties so long as it resolves a fairly separable claim or all matters involving a single party, see e.g., Aparicio v. Swan Lake,
It is our view, however, that a narrow construction of § 1292(a)(3) better comports with the historical origin of the exception and this Circuit’s precedent. Moreover, as a noted commentator has suggested, “arguments for expansive interpretation of § 1292(a)(3) are offset by the availability of [Federal] Rule [of Civil Procedure] 54(b) and the more recent adoption of 1292(b), which allows interlocutory appeals on permission of the trial court and appellate court in admiralty cases as well as in other cases.” 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3927 (2d ed.1996). Guided by these principles, we now turn to the order from which Thypin and Donbakraft cross-appeal, and address Asoma’s and Metall’s jurisdictional challenge.
B. Dismissal of Metall for Lack of Personal Jurisdiction
Thypin and Donbakraft first seek to appeal the portion of the District Court’s interlocutory order dismissing Me-tall for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). They argue for the exercise of appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(3) on the
While this Circuit has not had occasion to address this precise issue, that is, whether this Court can exercise jurisdiction pursuant to 28 U.S.C. § 1292(a)(3) over an order dismissing one party for lack of personal jurisdiction, the Fifth Circuit’s decisions in Seahorse Boat & Barge Corp. v. Jacksonville Shipyards, Inc.,
In Seahorse, the Fifth Circuit found that the dismissal for lack of personal jurisdiction did not “fall within the limited class of interlocutory appeals authorized by 28 U.S.C. § 1292(a)(3) relating to the rights and liabilities of parties in admiralty.”
We see no reason to reach a different result here. Although it may be true that the dismissal of Metall from the suit effectively resolved all of the plaintiffs’ claims against Metall in the federal admiralty suit, cf. Bradford Marine, Inc.,
In short, our review of the plain language of § 1292(a)(3), its historical origin, this Circuit’s narrow construction of the exception, and pertinent case law compels the conclusion that the portion of the District Court’s order dismissing Metall as a defendant for lack of personal jurisdiction is nonappealable.
C. Dismissal of Conversion and Tor-tious Interference with Contract Claims against Asoma for Failure to State a Claim.
Thypin and Donbakraft also seek to appeal the portion of the District Court’s order dismissing the conversion and tortious interference with contract claims against Asoma for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). We reject Thypin’s and Donbakraft’s arguments in support of exercising appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(3) with respect to the dismissal of these claims as well.
Although the interlocutory order from which Thypin and Donbakraft now seek to appeal dismissed all the in personam claims against Asoma, the essential question of liability regarding the ownership of the title of the bill of lading (with plaintiffs and Asoma as adverse claimants) remains to be determined. In Bergeron,
In sum, because the cross-appeal is from a nonappealable order that does not determine the parties’ substantive rights and obligations, this Court does not have jurisdiction under § 1292(a)(3) to entertain it. Accordingly, the cross-appeal is dismissed.
III. Supplemental Rules for Certain Admiralty and Maritime Claims
On appeal, Asoma challenges Thy-pin’s and Donbakraft’s arrest of the bill of lading pursuant to Supplemental Rule D for Certain Admiralty and Maritime Claims. Thypin and Donbakraft maintain that Supplemental Rule D,
Supplemental Rule D explicitly applies to an in rem action to acquire title to maritime property. See Fed.R.Civ. P.Supp.R.D. Plaintiffs’ in rem action is a possessory suit to recover the bill of lading and, likewise, the cargo, based on a maritime contract. See Dluhos v. Floating & Abandoned Vessel,
CONCLUSION
We hold that the District Court properly found admiralty jurisdiction based on a maritime contract. We dismiss the cross-appeal for lack of appellate jurisdiction pursuant to 28 U.S.C. § 1292(a)(3). Aso-ma shall bear the costs on its appeal; Thypin and Donbakraft shall bear the costs on their cross-appeal.
Notes
. "In cases of common carriage, a bill of lading has a threefold purpose: It is a receipt for the cargo, it is the contract of carriage, and, when it is in negotiable form, it is an indicia of title to the cargo.’■ 2A Benedict on Admiralty § 31, at 4-1 (7th ed.1999) (citing Pollard v. Vinton,
. In an F.O.B. ("free on board”) contract, the seller must deliver the goods to the vessel named and has the risk of loss until the goods reach that location. Black's Law Dictionary 676 (7th ed.1999).
. Ulrich Boenzli, a citizen of Switzerland who was responsible for processing and shipping orders of steel and pig iron to companies across Europe, Asia, and the United States during the time period in question, acted for Metall in connection with the purchase of the steel cargo at issue in this matter. John Far-kas is a citizen of New Jersey who was Senior Vice President of the steel division at Asoma at all relevant times.
. Because we conclude that a maritime contract confers admiralty jurisdiction in this case, we need not address the plaintiffs' alternate bases for admiralty jurisdiction predicated on a maritime tort and the Admiralty Extension Act, 46 U.S.C. § 740.
. In Isbrandtsen Tankers, Inc. v. President of India,
. Supplemental Rule D provides in pertinent part:
In all actions for possession, partition, and to try title maintainable according to the course of the admiralty practice with respect to a vessel, in all actions so maintainable with respect to the possession of cargo or other maritime property ... the process shall be by a warrant of arrest of the vessel, cargo, or other property....
Fed.R.Civ.P. Supp. R. D.
. “Petitory suits are suits in which it is sought to try the title to a ship independently of any possession of the vessel” [while] “possessory actions are actions to recover vessels or other property to which an owner, seaman or lienor is of right entitled." 1 Benedict on Admiralty § 201, at 13-1 to -2; see also Cary Marine v. Motorvessel Papillon,
. Supplemental Rule C provides in pertinent part:
(1) An action in rem may be brought: (a) To enforce any maritime lien; (b) Whenever a statute of the United States provides for a maritime action in rem or a proceeding analogous thereto....
Fed.R.Civ.P. Supp. R. C.