Charterer's Motion Under Supp. R. Certain Adm. & Mar. Cl. E(4)(F) For An Order Vacating A Maritime Attachment Was Granted As Owner Had Not Carried Its Burden Of Showing That At The Time Of The Attachment It Had A Valid Maritime Claim Against Charterer Bec
SONITO SHIPPING COMPANY LTD., Plaintiff, -against- SUN UNITED MARITIME LTD., Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2007 U.S. Dist. LEXIS 19531
March 19, 2007, Filed
PROCEDURAL POSTURE: Plaintiff owner, asserting a claim for relief within the admiralty and maritime jurisdiction under Fed. R. Civ. P. 9(h), commenced an action in order to invoke the remedy of maritime attachment and garnishment afforded by Supp. R. Certain Adm. & Mar. Cl. B. The court issued an ex parte order for process of maritime attachment. Defendant charterer moved under Supp. R. Certain Adm. & Mar. Cl. E(4)(f) for an order vacating the attachment.
OVERVIEW: The charterer argued that under English law the claim the owner asserted for indemnity in respect of a cargo claim that the owner had not yet paid was premature by reason of the Inter-Club New York Produce Exchange Agreement (ICA), and consequently could not form the basis for an attachment under Supp. R. Certain Adm. & Mar. Cl. B. The owner's complaint made it clear that its claim was solely one for indemnity with respect to the owner's liability to the cargo interests on a claim that those interests had asserted against the owner. That claim would have been decided by arbitration in London. The arbitration was just getting started. The owner had not made any payment to the cargo interests in respect of their claim. An English court of appeal stated that the "condition precedent" for apportionment and indemnification under the ICA was that the cargo claims had been paid. Thus, the court concluded that the owner had not carried its burden of showing that at the time of the attachment it had a valid maritime claim against the charterer. Finally, even if the court had discretion to uphold the attachment when the claim was unripe, there were no compelling circumstances to do so.
OUTCOME: The motion for an order vacating the attachment was granted. The writ of attachment was vacated and the complaint was dismissed. The vacatur and dismissal were without prejudice to the owner filing a complaint and seeking an attachment at a later date, if subsequent developments made it clear that under English law a claim for indemnity had accrued.
