July 1, 1966. The distribution of the former admiralty rules is shown by the table, F.R.Civ.P., 28 U.S.C.A. on p. 109 following form 32.
The incident giving rise to the third-party complaint occurred on Greenwood Lake, which the court judicially notices to be one located in both New Jersey and New York, with extensive motor-boating activity interstate. See, Davis v. U.S., 185 F.2d 938 (9th Cir. 1950), involving Lake Tahoe, which is in both Nevada and California. Greenwood Lake is navigable water; this is the test. Re Garnett, 141 U.S. 1, 11 S. Ct. 840, 35 L. Ed. 631 (1891); The Robert W. Parsons, 191 U.S. 17, 24 S. Ct. 8, 48 L. Ed. 73 (1903). And marine insurance is a maritime contract within federal jurisdiction, Wilburn Boat Co. v. Fireman's Fund Ins. Co., 348 U.S. 310, 75 S. Ct. 368, 99 L. Ed. 337 (1954) reh. den. 349 U.S. 907, 75 S. Ct. 575, 99 L. Ed. 1243.
" Separate and independent "
The third-party complaint exists because claims were made against Doig, who called on Reliance under the Yacht Policy, and was told it did not cover. Thus, a real controversy arose, the proper subject for a declaratory judgment remedy, in an action between those two parties alone.
Such actions can be and are often brought even though the named insured has no suit filed against him. Since such a suit can stand alone, it involves a separate and independent claim or cause of action which, by itself, could be sued on here or, if begun in State court, could be removed here by Reliance.
Certification of Question
Under 28 U.S.C. § 1292(b), a district court may certify a question not otherwise appealable until after final judgment, under the circumstances set out there.
This is obviously a case for certification. Both Industrial Lithographic and White have considered the question of removability of third-party complaints (in the diversity context); they reached opposite results. Both are decisions of this district, and the Court of Appeals in this circuit has not spoken on the point.
Discovery on the third-party complaint can continue pending decision by the Court of Appeals, thus avoiding delay, and if the mandate is to remand, the case can proceed uninterrupted in state court; otherwise, it can continue to such judgment as the law and the facts call for.
Both parties agree that if removal is valid, this court may retain the whole case or remand everything except the third-party complaint, under 28 U.S.C. § 1441(c). At this early stage (there are only pleadings, so far) the court will reserve on this question until a better picture of the facts has developed, and if remand of other aspects is to be made, will do so no later than immediately after the pretrial conference.
For the reasons stated, the motion for remand is denied.