(concurring):
I concur in the court’s decision on grounds slightly different from those voiced by the majority.
In my view the district court’s non-final security order, even assuming the court had discretionary equitable power as a court of admiralty to direct Venline to post security, see Vaughan v. Atkinson, 369 U.S. 527, 530, 82 S.Ct. 997, 999, 8 L.Ed.2d 88 (1962); Swift & Co. v. Compania Caribe, 339 U.S. 684, 691-92, 70 S.Ct. 861, 866-67, 94 L.Ed. 1206 (1950); Greenwich Marine, Inc. v. S.S. Alexandra, 339 F.2d 901, 905 (2d Cir.1965), does not fit within the Cohen exception permitting appeal of certain types of interlocutory orders because, unlike the situation in Cohen, Venline cannot show that it will suffer an irreparable loss by being required first to go to final judgment. Drys Shipping Corp. v. Freights, Sub-Freights, Charter Hire, etc., 558 F.2d 1050, 1051 (2d Cir.1977).
If, as seems likely, Venline is held liable to the plaintiff, Venline will not suffer any harm from the security order. If, in addition, the district court on remand directs Drescher to give Venline security that will protect it from the risk that Drescher rather than Venline will be held liable, the question of the court’s power to issue the order, if not mooted by the order on remand, can be adjudicated upon appeal from the final judgment without any appreciable risk to Venline because of the delay. This case is therefore distinguishable from an appeal from an order vacating a maritime attachment. Such an order, although interlocutory, is appealable under the Cohen doctrine for the reason that a later review after final judgment would be “an empty rite after the vessel had been released and the restoration of the attachment only theoretically possible,” Swift v. Compania Caribe, supra, 339 U.S. at 688-89, 70 S.Ct. at 864-65. For this reason I prefer not to base my decision on the “power-discretion” distinction, which I find unsatisfactory. See Bancroft Nav. Co. v. Chadade Steamship Co., 349 F.2d 527 (2d Cir.1965); Donlon Industries, Inc. v. Forte, 402 F.2d 935 (2d Cir.1968).