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Certification of Controlling Question of Law

An interlocutory admiralty order is appealable if it is certified by the district court that there is a controlling question of law as a substantial ground for a difference of opinion, and its resolution may advance the termination of the litigation.  For example, in a suit for negligence, the question as to the existence of a tort claim for economic loss and damage to a vessel will probably not be certified for interlocutory appeal, since the issue is unique to the facts of that case and not likely to have precedential value for a large number of cases, and that an interlocutory appeal will not materially terminate, but delay the final decision.

Motions under a state code provision for the declaration of a good-faith settlement precluding subsequent actions for contribution and indemnity of a settling maritime defendant will be denied.  Such denials are generally not certified for appeal.  Since state procedural statutes governing the settlement of state torts do not apply to Jones Act and maritime actions, an immediate appeal will not resolve the interests of the public and injured seaman’s prayer for the prompt and just resolution of claims.

In Fitzgerald v. Compania Naviera La Molinera, 394 F. Supp. 402, 412 (D. La. 1975), counsel for the Public Grain Elevator, through a letter to the Court, requested to state that the order of the Court dismissing the Elevator’s third party claim against the Board of Trade involved a controlling question of law as to which there was substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, and to certify for an interlocutory appeal.  Usually, the final determination of an appeal requires a great deal of time.  According to the federal rules a party has 40 days from filing the notice of appeal to take the necessary steps to have the appeal docketed.  Specifically, in the Fifth Circuit, this is followed by a delay averaging nine months until final disposition.  In the case of an interlocutory appeal, an additional month or so must be added for the Court of Appeals to consider the merits of allowing the appeal.  Many things would take place during this time and the parties would be forced to suffer the uncertainty of pending litigation.  Delay of the matter pending appeal would deny the plaintiffs their timely day in court, primarily to enable defendants to litigate among themselves on whom the burden either of judgment or expense rests.  The court stated that the delay of justice would be injustice, and such delays shall not be granted by the Court if an appeal was taken.

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