UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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No. 92-3976

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HUSSAIN SHAKIT, ET AL.,

Plaintiffs-Appellants,

VERSUS

M/V FORUM TRADER, in rem, ET AL.,

Defendants-Appellees.

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Appeal from the United States District Court

for the Eastern District of Louisiana

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(August 26, 1993)

Before KING, DAVIS, and WIENER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Lexington Shipping Company ("Lexington"), the owner of the M/V

FORUM TRADER, moved to dismiss the in rem plaintiffs' appeal from

an order setting $150,000 bond for the release of the FORUM TRADER.

Because we lack jurisdiction over the appeal, it is dismissed.

I.

Plaintiffs Hussain Shakit, Hamza Hassan, Ibrahim Manik, and

Ibrahim Rasheed, foreign seamen serving aboard the M/V FORUM

TRADER, brought an in rem action against the vessel for nonpayment

of wages and various related torts. The vessel was seized on

November 13, 1992. Following a hearing, the district court set the

release bond at $150,000. On November 25, the owner of the FORUM

TRADER, Lexington Shipping Company ("Lexington"), posted the

required bond, and the vessel was released. Plaintiffs contend the
 

1 § 1292(a)(3) 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.

2

bond was inadequate and seek to appeal the amount of the bond.

Lexington has moved to dismiss plaintiffs' appeal on two

grounds: (1) the appeal is moot, because the vessel has left the

jurisdiction; and (2) this court does not have jurisdiction over

the appeal from the release bond order. Plaintiffs respond that

this court has jurisdiction based on 28 U.S.C. § 1292(a)(3) and,

alternatively, the collateral order doctrine. Plaintiffs also deny

that the appeal is moot. We conclude that we lack jurisdiction

over the appeal, and thus we do not reach the mootness issue.

II.

A.

We first consider whether the district court's order setting

the bond for release of the FORUM TRADER is an appealable

interlocutory order under 28 U.S.C. § 1292(a)(3).1

Although the $150,000 bond is substantially lower than

plaintiffs' $6 million claims, the district court's bond order does

not determine the rights and liabilities of the parties as required

by § 1292. Were we to uphold the order, "we would still have to

remand this case for a decision on whether the defendants were

liable." Bucher-Guyer AG v. M/V Incotrans Spirit, 868 F.2d 734,

735 (5th Cir. 1989) (holding that a decision to apply the COGSA

limitation on damages is not a decision determining the parties'
3

rights and liabilities); see also City of Fort Madison, Iowa v.

Emerald Lady, 990 F.2d 1086, 1090 (8th Cir. 1993). The order

fixing the bond at $150,000 does not determine the parties' rights

and liabilities and thus is not an appealable interlocutory order

under § 1292(a)(3).

B.

Plaintiffs argue next that the release bond is an appealable

collateral order under the doctrine of Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1258 (1949). An

interlocutory order is appealable under Cohen if it (1)

conclusively determines the disputed question, (2) resolves an

important issue completely separate from the merits of the action,

and (3) would be effectively unreviewable on appeal from a final

judgment. Incas and Monterey Printing and Packaging, Ltd. v. M/V

Sang Jin, 747 F.2d 958, 962 (5th Cir. 1984), cert. denied sub nom.

Van Weelde Bros. Shipping Ltd. v. I.N.C.A.S., 471 U.S. 1117 (1985).

Plaintiffs argue that this case is similar to Pride Shipping

Corp. v. Tafu Lumber Co., 898 F.2d 1404 (9th Cir. 1990). Pride was

a Rule B(1) maritime attachment and garnishment action in which the

plaintiff shipowner attached fuel bunkers owned by the charterer,

Tafu Lumber, in order to secure jurisdiction over Tafu. The

district court granted Tafu's motion to vacate the attachment. 

The Ninth Circuit, applying Cohen, addressed the legal

question of "whether orders vacating Rule B(1) attachments fall

within that small class [of appealable collateral orders], when

personal jurisdiction is later obtained through a general

appearance." Pride, 898 F.2d at 1406. The court, citing Swift &
4

Co. Packers v. Compania Colombiana Del Caribe, 339 U.S. 684, 689

(1950), concluded that it had Cohen jurisdiction to review the

order vacating the attachment, but held that the appeal was moot.

This case differs from Pride and Swift in that the district

court here did not reject the plaintiffs' claim that they were

entitled to security. After a hearing, the district court

preliminarily valued the plaintiffs' claims at $150,000 and ordered

the posting of a release bond in that amount. In Swift and Pride,

by contrast, the respective district courts concluded as a matter

of law that the plaintiffs were entitled to no security.

Cohen itself suggests that an interlocutory order involving

the exercise of the court's discretion as to the amount of the

security to be posted is not appealable:

[Not] every order fixing security is subject to appeal.

Here it is the right to security that presents a serious

and unsettled question. If the right were admitted or

clear and the order involved only an exercise of

discretion as to the amount of security, . . .

appealability would present a different question.

Cohen, 337 U.S. at 547. The Second Circuit has relied on that

language in Cohen to hold that a court order reducing security in

an admiralty case is not appealable. Bancroft Navigation Co. v.

Chadade Steamship Co., 349 F.2d 527 (2d Cir. 1965) (holding the

order not appealable because it "is concerned solely with the

proper exercise of the broad discretionary powers granted to the

district court"). Bancroft distinguished Swift and Cohen:

The security cases considered on appeal by the Supreme

Court before final decision on the merits have revolved

about issues concerning the power of the district court

to render its decision, as distinct from the propriety of

its exercise of discretion.

Id. at 529. In this case, the order setting the release bond at
 

2 Plaintiffs argue that, in light of their $6 million

claim, the $150,000 bond was so low as to constitute a gross

abuse of discretion. Mandamus is of course available for review

of such orders in an appropriate case.

5

$150,000 is likewise unappealable as an exercise of the district

court's discretion to value the plaintiffs' claims.2

Because we have no jurisdiction to consider this appeal, it is

dismissed.

APPEAL DISMISSED.