PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 21-1562

GREAT LAKES INSURANCE SE

v.

RAIDERS RETREAT REALTY CO., LLC,

 Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-19-cv-04466)

District Judge: Honorable Eduardo C. Robreno

Argued on June 8, 2022

Before: CHAGARES, Chief Judge, AMBRO, and 

FUENTES, Circuit Judges

(Opinion Filed: August 30, 2022)
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Howard J. Bashman [Argued]

Law Offices of Howard J. Bashman

500 Office Center Drive, Suite 400

Fort Washington, PA 19034

Shawn M. Rodgers

Goldstein Law Partners

11 Church Road

Hatfield, PA 19440

Michael Yanoff

Goldstein Law Partners

610 Old York Road, Suite 340

Jenkintown, PA 19446

Counsel for Appellant Raiders Retreat Realty 

Co., LLC

Michael I. Goldman [Argued]

Goldman & Hellman

233 Harvard Street, Suite 211

Brookline, MA 02446

George R. Zacharkow

Deasey, Mahoney & Valentini

1601 Market Street, Suite 3400

Philadelphia, PA 19103

Counsel for Appellee Great Lakes Insurance SE
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OPINION

AMBRO, Circuit Judge

A yacht owned by Raiders Retreat Realty Co., LLC ran 

aground. Luckily (or so it believed), Raiders had insured the 

vessel with marine insurer Great Lakes Insurance SE (“GLI”). 

But after Raiders submitted a claim under its policy, GLI left 

it high and dry. The insurer’s reason for denying coverage: the 

yacht’s fire-extinguishing equipment had not been timely 

recertified or inspected notwithstanding that the vessel’s 

damage was not caused by fire. GLI sued first, seeking in 

federal court a declaratory judgment that Raiders’ alleged 

failure to recertify or inspect its fire-suppression equipment

rendered the policy void from its inception. 

Raiders responded with five counterclaims, including 

three extra-contractual counterclaims arising under 

Pennsylvania law for breach of fiduciary duty, insurance bad 

faith, and breach of Pennsylvania’s Unfair Trade Practices and 

Consumer Protection Law, 73 Pa. Stat. Ann. § 201-1, et seq.

(the “Unfair Trade Practices Law”), respectively. Concluding 

the policy’s choice-of-law provision mandated the application 

of New York law and thus precluded Raiders’ Pennsylvanialaw-based counterclaims, the District Court dismissed those 

claims. In so doing, the Court rejected Raiders’ argument that 

applying New York law would contravene Pennsylvania public 

policy, thereby making the choice-of-law provision 

unenforceable under The Bremen v. Zapata Off-Shore Co., 407 

U.S. 1, 15 (1972), which held that under federal admiralty law 
4

a forum-selection provision is unenforceable “if enforcement 

would contravene a strong public policy of the forum in which 

suit is brought.” The District Court held that The Bremen did 

not apply for the choice-of-law issue, such that it need not 

consider whether there is strong Pennsylvania public policy 

that precludes applying New York law. We think the answer 

may be otherwise. 

I. Background

Raiders, a Pennsylvania-based company, insured a 

yacht for up to $550,000 with GLI, a company headquartered 

in the United Kingdom. That yacht ran aground in June 2019, 

incurring at least $300,000 in damage. Raiders submitted a 

claim to GLI for loss of the vessel, but GLI rejected it, claiming

that the yacht’s fire-extinguishing equipment was not timely 

recertified or inspected contrary to Raiders’ prior statements

otherwise. Though the damage to the yacht was free of fire, 

GLI maintained Raiders misrepresented the vessel’s firesuppression system’s operating ability, thus making the policy 

void from inception. The insurer then filed an action for 

declaratory judgment in the U.S. District Court for the Eastern 

District of Pennsylvania to determine whether the policy was 

indeed void. 

As noted, Raiders contested GLI’s allegations and 

brought five counterclaims. It alleged breach of contract 

(Count I); breach of the implied covenant of good faith and fair 

dealing (Count II); breach of fiduciary duty (Count III); 

insurance bad faith, in violation of 42 Pa. Stat. and Cons. Stat. 

Ann. § 8371 (Count IV); and violation of Pennsylvania’s 

Unfair Trade Practices Law (Count V). Relying on the policy’s 

choice-of-law provision, GLI moved for judgment on the 

pleadings under Federal Rule of Civil Procedure 12(c) as to 
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Counts III through V, which sought relief available against 

insurance companies under Pennsylvania law (hence not based 

on the insurance contract and thereby referred to as extracontractual claims), on the ground that New York law, which 

precludes these claims, governs. The choice-of-law provision 

in the policy reads: 

It is hereby agreed that any dispute arising 

hereunder shall be adjudicated according to well 

established, entrenched principles and 

precedents of substantive United States Federal 

Admiralty law and practice[,] but where no such 

well established, entrenched precedent exists, 

this insuring agreement is subject to the 

substantive laws of the State of New York. 

App. at 113. The District Court concluded that New York law 

governed and barred Raiders’ Pennsylvania-law-based

counterclaims, thereby dismissing Counts III through V. The 

Court later denied Raiders’ motion to reconsider its judgment. 

Raiders now appeals.

II. Standard of Review

We give a fresh, or plenary, review of the District 

Court’s choice-of-law determination. See Berg Chilling Sys.,

Inc. v. Hull Corp., 435 F.3d 455, 462 (3d Cir. 2006). We 

likewise exercise plenary review of the Court’s construction of 

a written contract, see USX Corp. v. Prime Leasing Inc., 988 

F.2d 433, 437 (3d Cir. 1993), and apply the same standard to

its grant of a motion for judgment on the pleadings, 

“accept[ing] the nonmoving party’s factual allegations as true 

and constru[ing] all allegations in the light most favorable to 
6

that party,” Fed Cetera, LLC v. Nat’l Credit Servs., Inc., 938 

F.3d 466, 469 n.7 (3d Cir. 2019).

III. Discussion

A. Our jurisdiction over this interlocutory appeal.

Because this case concerns a maritime insurance 

contract, it fell within the District Court’s maritime 

jurisdiction. 28 U.S.C. § 1333(1); AGF Marine Aviation & 

Transp. v. Cassin, 544 F.3d 255, 260 (3d Cir. 2008). Our 

jurisdiction over the appeal is less clear. Though neither party 

contests it, before reaching the merits of this case we must first 

independently establish our authority to decide. In re Klaas, 

858 F.3d 820, 825 (3d Cir. 2017). We have, under 28 U.S.C. 

§ 1292(a)(3), jurisdiction over appeals from “[i]nterlocutory

decrees of such district courts or the judges thereof determining 

the rights and liabilities of the parties to admiralty cases in 

which appeals from final decrees are allowed.” For

interlocutory appeals in admiralty cases, our precedent makes

this language “appl[y] to situations such as the dismissal of 

parties from the litigation, grants of summary judgment (even 

if not to all parties), and other cases where a claim has 

somehow been terminated.” In re Complaint of PMD Enters., 

Inc., 301 F.3d 147, 149 (3d Cir. 2002). In short, “the order 

appealed from must conclusively determine the merits of a 

claim or defense.” Kingstate Oil v. M/V Green Star, 815 F.2d 

918, 921 (3d Cir. 1987). 

In practice, we have allowed interlocutory appeals in 

admiralty cases where parties’ claims against one of the 

defendants suffered dismissal for lack of subject matter 

jurisdiction, see Jones & Laughlin Steel, Inc. v. Mon River 
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Towing, Inc., 772 F.2d 62, 64 n.1 (3d Cir. 1985); the grant of 

judgment on a counterclaim where the principal claim was 

undecided, see In re Nautilus Motor Tanker Co., 85 F.3d 105, 

110 n.3 (3d Cir. 1996); and even in an appeal from an order 

determining the rights and liabilities of some but not all parties,

see Bankers Tr. Co. v. Bethlehem Steel Corp., 761 F.2d 943, 

945 n.1 (3d Cir. 1985). 

On the other hand, we refused to allow an interlocutory 

appeal in admiralty where the trial court dismissed one claim 

on which forfeiture of a vessel was based but three other 

grounds for that remedy remained. See United States v. The 

Lake George, 224 F.2d 117, 118–19 (3d Cir. 1955). We 

likewise rejected an interlocutory appeal in admiralty where 

the District Court denied a plaintiff’s motion for summary 

judgment on the defendant’s counterclaim because “no right or 

liability of the parties ha[d] been ‘conclusively determine[d].’” 

PMD, 301 F.3d at 151 (second alteration in original) (quoting 

Kingstate Oil, 815 F.2d at 921). We explained that “[h]ad the 

District Court denied [the defendant] the right to file the 

counterclaim or had it granted summary judgment to [the 

plaintiff] on [the defendant’s] counterclaim, the rights and 

liabilities of the parties may well have been conclusively 

determined, in which case the District Court’s decision would 

have been appealable.” Id. 

Because it foreclosed certain counterclaims, the 

District Court’s decision to dismiss Raiders’ extracontractual 

counterclaims is analogous to the hypothetical scenarios we 

outlined in PMD. As we explained, “the rights and liabilities 

of the parties may well have been conclusively determined” 

and so “would have been appealable.” Id. 
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Applying that logic here warrants interlocutory review. 

Further, while Raiders still maintains two remaining 

counterclaims (Counts I and II), the Pennsylvania-law-based 

counterclaims dismissed by the District Court seek forms of 

relief unavailable under the surviving counts. Cf. Lake 

George, 224 F.2d at 118–19 (foreclosing appeal in admiralty 

where remaining claims sought same relief as dismissed 

claim). Moreover, “[i]n maritime cases, [a] choice-of-law . . .

determination,” such as the one before us, is deemed a 

“determination on the merits and may be treated as the 

equivalent of a motion for summary judgment.” Vasquez v. 

Bridgestone/Firestone, Inc., 325 F.3d 665, 680 n.26 (5th Cir. 

2003). For these reasons, we hold that the District Court’s 

dismissal of Raiders’ extracontractual counterclaims 

“determin[ed] the rights and liabilities of the parties” under § 

1292(a)(3). Hence we have jurisdiction over this interlocutory 

appeal. 

B. The District Court should have considered whether 

applying New York substantive law would 

contravene Pennsylvania’s “strong public policy” 

under The Bremen.

As our Court has summarized, the seminal maritime 

insurance decision in Wilburn Boat Co. v. Fireman’s Fund 

Insurance Co., 348 U.S. 310 (1955), established that “maritime 

contracts are governed by federal admiralty law when there is 

an established federal rule, but absent such a rule, state law 

applies.” Royal Ins. Co. of Am. v. KSI Trading Corp., 563 F.3d 

68, 73 (3d Cir. 2009). One such established federal rule is that 

“[a] choice of law provision in a marine insurance contract will 

be upheld in the absence of evidence that its enforcement

would be unreasonable or unjust.” 2 Thomas J. Schoenbaum,
9

Admiralty and Maritime Law § 19:6 (6th ed. 2020); see also

Great Lakes Reinsurance (UK) PLC v. Durham Auctions, Inc., 

585 F.3d 236, 242–44 (5th Cir. 2009) (determining whether 

enforcing identical choice-of-law section in maritime 

insurance policy “would be unreasonable or unjust”); cf. Neely 

v. Club Med Mgmt. Servs., Inc., 63 F.3d 166, 197 n.36 (3d Cir. 

1995) (observing in dicta that choice-of-law provisions are 

“typically . . . enforced under federal maritime law”). 

Raiders, however, contends this presumption of 

enforceability should not control the choice of law here.1 

Citing The Bremen, it argues that enforcing the choice of law 

in the policy would be unreasonable and unjust, as applying 

New York law would contravene the strong public policy of 

Pennsylvania, which protects insureds in Pennsylvania from, 

among other things, bad faith and unfair trade practices by 

insurance companies.

The Bremen involved a dispute between an American 

and a German company about the enforceability of a forumselection provision in a towing contract drawn up to facilitate 

1 Raiders also maintains the express language of the policy’s 

choice-of-law provision does not mandate applying New York 

law to preclude its claims arising under Pennsylvania law. But 

as it failed to raise this argument in the District Court (or, for 

that matter, the more intriguing argument that the provision is 

ambiguous and therefore should be construed against GLI as 

the drafting party), Raiders has not properly preserved this 

argument for our review. See Simko v. U.S. Steel Corp., 992 

F.3d 198, 205 (3d Cir. 2021) (“It is well-established that 

arguments raised for the first time on appeal are not properly 

preserved for appellate review.”). 
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the transport of a drilling rig from Louisiana to the Adriatic Sea 

off the coast of Italy: “Any dispute arising must be treated 

before the London Court of Justice.” 407 U.S. at 2. When a 

contractual dispute arose, the American company sued in a 

federal court. Id. at 3–4. 

The U.S. Supreme Court ultimately held that the 

contract’s forum selection was facially valid and should be 

honored unless a compelling and countervailing reason 

rendered enforcement unreasonable. Id. at 10, 15, 20. It

explained that that forum-selection articles in maritime cases 

should be enforced absent a “strong showing” that 

“enforcement would be unreasonable and unjust, or that the 

clause [is] invalid for such reasons as fraud or overreaching.” 

Id. at 15. It then provided examples of circumstances where 

enforcement of a choice-of-forum provision would be 

“unreasonable and unjust,” including, among other things, 

situations where enforcement would “contravene a strong 

public policy of the forum in which suit is brought, whether 

declared by statute or by judicial decision.” Id. (emphasis 

added). The choice of forum there was enforceable because 

there was “strong evidence that the forum clause was a vital 

part of the [parties’] agreement,” id. at 14, and it was not “an 

agreement between two Americans to resolve their essentially 

local disputes in a remote alien forum,” id. at 17. 

Nearly twenty years later, in Carnival Cruise Lines, Inc. 

v. Shute, 499 U.S. 585, 588 (1991), the Supreme Court 

extended The Bremen’s framework to a dispute over which of 

two competing states was the proper forum for a tort action in 

admiralty. Carnival stemmed from a suit in Washington State 

filed by a cruise ship passenger who sustained injuries in 

international waters off the coast of Mexico. Id. The 
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passenger’s ticket contained a forum-selection proviso that “all 

disputes and matters” be litigated in Florida courts. Id. at 587–

88. 

The Supreme Court analyzed the case under the 

framework laid out in The Bremen to evaluate the 

“reasonableness of the forum clause,” “refin[ing]” the latter 

case’s analysis “to account for the realities of form passage 

contracts.” Id. at 593. It noted that “a cruise line has a special 

interest in limiting the fora in which it potentially could be 

subject to suit.” Id. And “[b]ecause a cruise ship typically 

carries passengers from many locales, it is not unlikely that a 

mishap on a cruise could subject the cruise line to litigation in 

several different fora.” Id. The Court further explained that “a 

clause establishing ex ante the forum for dispute resolution has 

the salutary effect of dispelling any confusion about where 

suits arising from the contract must be brought and defended.” 

Id. at 593–94. Forum aside, “the fact that [the passenger’s] 

accident occurred off the coast of Mexico” meant “this dispute 

[was not] an essentially local one inherently more suited to 

resolution in the State of Washington than in Florida.” Id. at 

594 (quotation marks omitted). In Carnival, therefore, the 

Supreme Court extended The Bremen’s framework to disputes 

over whether one state or another was the proper forum to bring 

suit under a forum-selection provision. 

GLI argues The Bremen “is utterly irrelevant because it 

had absolutely nothing to do with the enforcement of choice of 

law clauses.” Ans. Br. at 26 (emphasis added). We do not 

agree. Though the contract in The Bremen “did not specifically 

provide that the substantive law of England should be applied,” 

the Court nonetheless “conclude[d] that the forum clause was 

also an effort to obtain certainty as to the applicable substantive 
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law,” as “it is the general rule in English courts that the parties 

are assumed, absent contrary indication, to have designated the 

forum with the view that it should apply its own law.” The 

Bremen, 407 U.S. at 13 n.15. 

The U.S. Court of Appeals for the D.C. Circuit grasped 

this in Milanovich v. Costa Crociere, S.p.A., 954 F.2d 763, 767 

n.7 (D.C. Cir. 1992), by extending The Bremen’s framework to 

the choice of law in a cruise ticket: while “The Bremen 

involved a choice-of-forum clause, . . . the Supreme Court 

recognized that enforcing the provision would have the effect 

of subjecting the contract to foreign law.” Milanovich 

concerned whether American or Italian law governed a cruise 

ship passenger’s personal injury lawsuit where the contract 

contained a provision specifying the application of Italian law. 

Id. at 765–66. In resolving this question, the D.C. Circuit relied 

on The Bremen and Carnival to hold that 

courts should honor a contractual choice-of-law 

provision in a passenger ticket unless the party 

challenging the enforcement of the provision can 

establish that “enforcement would be 

unreasonable and unjust,” “the clause was 

invalid for such reasons as fraud or 

overreaching,” or “enforcement would 

contravene a strong public policy of the forum in 

which suit is brought.”

Id. at 768 (quoting The Bremen, 407 U.S. at 15) (emphasis 

added). 
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In the intervening decades, other circuits have relied on 

Milanovich when considering choice-of-law provisions in 

maritime contracts. See Chan v. Soc’y Expeditions, Inc., 123 

F.3d 1287, 1297 (9th Cir. 1997) (upholding choice of law in 

cruise ticket over defendants’ objections that Liberian law 

should apply); Durham Auctions, 585 F.3d at 243–45 

(upholding identical choice-of-law provision where insured 

did not show applying New York law would contravene strong 

public policy of Mississippi). We are therefore persuaded that 

The Bremen’s framework is not “utterly irrelevant” in the 

context of choice-of-law provisions but rather applies equally 

to them as it does to those provisions selecting a forum. 

GLI argues, however, that admiralty law is different: 

even if The Bremen does extend to choices of law in addition 

to forums, the framework it laid out does not apply here 

because, based on the Supreme Court’s statement in Wilburn 

Boat discussed above, “there is a rule of federal admiralty law 

that choice of law clauses in policies of marine insurance are 

presumptively valid and enforceable.” Ans. Br. at 29. Hence

we “must apply that federal rule, no matter what.” Id. at 21.

This mirrors the District Court’s opinion here, which held that 

the public policy of Pennsylvania could not overcome “the 

well-established principle that choice-of-law provisions in 

maritime contracts are presumptively valid.” App. at 21. 

In reaching its conclusion, the District Court also relied 

on the U.S. Court of Appeals for the Ninth Circuit’s decision 

in Galilea, LLC v. AGCS Marine Insurance Co., 879 F.3d 1052 

(9th Cir. 2018). GLI likewise points to Galilea to argue The 

Bremen does not apply here. We disagree. Galilea, which 

does not bind our Court, involved a dispute over the scope of 

an insurance contract for a yacht owned by a Nevada company. 
14

879 F.3d at 1054. The yacht’s policy contained a forumselection provision mandating arbitration in New York and a 

choice-of-law provision applying federal maritime law, but 

where no such established principles and precedents exist, New 

York law applied. Id. at 1055. The yacht’s owner sued in 

federal court in Montana and argued the choice-of-law and 

choice-of-forum provisions were precluded by Montana law 

(which purportedly has a strong public policy against 

enforcement of arbitration agreements) under The Bremen. Id. 

at 1055, 1059–60. 

The Ninth Circuit disagreed. It first explained that 

because the arbitration provision was enforceable under the 

Federal Arbitration Act (“FAA”), 9 U.S.C. § 1, et seq., “there 

[was] no gap in federal maritime law to fill with law from any 

state, Montana included, as the FAA supplies the governing 

arbitration law for maritime transactions.” Id. at 1060 

(emphasis in original). The Court then reasoned that “The 

Bremen considered whether the public policy of the forum 

where suit was brought—there, federal public policy as 

supplied by federal maritime law—outweighed the application 

of the law of other countries.” Id. The Galilea dispute, in 

contrast, concerned an “unequal, hierarchical relationship 

between federal maritime law and state law.” Id. Because 

“[w]ithin federal admiralty jurisdiction, conflicting state policy 

cannot override squarely applicable federal maritime law,” the 

Ninth Circuit held that the insured’s “reliance on Montana law 

under The Bremen [was] misplaced.” Id. at 1060–61.

 

From this, the District Court here “conclude[d] that the 

public policy of a state where a case was filed cannot override 

the presumptive validity, under federal maritime choice-of-law 

principles, of a provision in a marine insurance contract where 
15

the chosen forum has a substantial relationship to the parties or 

the transaction.” App. at 21. “The issue is not,” the Court 

explained, “whether New York law conflicts with 

Pennsylvania public policy.” Id. Rather, it is “whether the 

well-established principle that choice-of-law provisions in 

maritime contracts are presumptively valid must yield to the 

public policy preferences of the particular state in which the 

case happens to have been brought.” Id. In holding the answer 

is no, the Court’s opinion (relying on Galilea) turned on the 

view that The Bremen and its progeny apply to one set of 

circumstances whereas there is a separate regime governing

choice-of-law concerns in marine insurance contracts. Id. at 

21–22.

But the principle of generally enforcing choice-of-law 

provisions in marine insurance contracts is not altogether 

separate from the choice-of-forum/choice-of-law regime set 

out in The Bremen and Milanovich. Indeed, the rule that 

choice-of-law provisions in maritime insurance contracts are 

presumed enforceable unless “enforcement would be 

unreasonable or unjust,” Schoenbaum, supra, § 19:6, is 

identical to The Bremen’s rule that forum-selection provisions

should be honored unless “enforcement would be unreasonable 

and unjust,” 407 U.S. at 15. Given this overlap—coupled with 

The Bremen’s “strong public policy” exception comprising but

one part of the holding’s broader “unreasonable and unjust” 

standard—we consider it altogether reasonable that a “strong 

public policy of the forum [state] in which suit is brought” 

could, as to that policy specifically, render unenforceable the

choice of state law in a marine insurance contract. See id. 

Moreover, the District Court’s confining of The Bremen 

and its progeny only to disputes between international fora and 
16

U.S. law is belied by Carnival (uncited by the parties), in which 

the Supreme Court applied The Bremen to a dispute over 

whether Washington State or Florida was the proper forum to 

decide. Given the broad language in The Bremen, its oftrecognized applicability to choice-of-law provisions, see e.g., 

Milanovich, 954 F.2d at 768, and the extension of its holding

to a state-versus-state question in Carnival, we hold that The 

Bremen’s framework extends to the choice-of-law provision at 

issue here. Accordingly, the District Court needed to consider 

whether Pennsylvania has a strong public policy that would be 

thwarted by applying New York law. We thus vacate and 

remand for further proceedings consistent with this holding.