IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 93-3541

USDC No. CA-92-2196-G-5

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ILVA (USA), INC.,

 Plaintiff-Appellant,

versus

ALEXANDER'S DARING M/V, its

engines, tackle, radios, 

furniture, fixtures, gear,

apparel, appurtenances, ETC.,

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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(November 10, 1993)

Before SMITH, WIENER, and EMILIO M. GARZA, Circuit Judges.

BY THE COURT:

Ilva (USA) appeals an order staying its damages action

pending arbitration. Appellees Thermaikos Navigation Co., Ltd.,

Alexander's Daring, Ltd., Alexco Shipmanagement (Hellas), Ltd.,

and Sidermar Di Navagazione SpA have moved to dismiss the appeal

for lack of jurisdiction under 9 U.S.C. § 16(b) and McDermott

Int'l., Inc. v. Underwriters at Lloyds, 981 F.2d 744 (5th Cir.),

cert. denied, 113 S. Ct. 2442 (1993).

Ilva concedes that under 9 U.S.C. § 16(b), an interlocutory

order granting a stay pending arbitration is not an appealable
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order. See McDermott, 981 F.2d at 747. Ilva contends, however,

that because it waived its right to arbitration in its notice of

appeal, it is subject to having its claims against appellees

dismissed with prejudice. Therefore, Ilva maintains the district

court's order is final and appealable under 28 U.S.C.

§ 1292(a)(3). 

We reject this argument. "An order is considered final if

it `ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment.'" McDermott, 981 F.2d at

747 (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.

Ct. 631, 89 L. Ed 911 (1945)). In determining whether an order

affecting arbitration is final or interlocutory, most courts

distinguish between arbitration actions that are "independent"

and those that are "embedded" among other claims. Generally, if

the only issue before the court is the dispute's arbitrability,

the action is considered independent and a court's decision on

that issue constitutes a final decision. If, however, the case

includes other claims for relief, an arbitrability ruling does

not "end the litigation on the merits", but is considered

interlocutory only.

Id. (citations omitted).

Here, the district court's order does not end the litigation

on the merits and is not a final order, despite Ilva's waiver of

its arbitration rights in the notice of appeal. The arbitration

issue arose in the context of Ilva's damages action against

appellees and I.T.O. Corp. The claim against I.T.O. is pending

in the district court, and must be resolved regardless of the

outcome of the arbitration. Further, there has been no judgment

entered on the claims against the appellees. 

State Establishment for Agric. Prod. Trading v. M/V

WESERMUNDE, 838 F.2d 1576 (11th Cir.), cert. denied, 488 U.S. 916
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(1988), provides no support for Ilva's argument that we should

construe the district court's order as final because of the

waiver. That appeal of an order compelling arbitration did not

go forward until the district court dismissed the action with

prejudice for State Establishment's failure to prosecute. Id. at

1579. There has been no similar final order in this case. Ilva

may pursue in the district court the remedies outlined in State

Establishment. Id. at 1582-83.

Accordingly, the appeal is DISMISSED.