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August 25, 1983

BULK OIL (ZUG) A.G., a Swiss Corporation, Plaintiff, against SUN OIL COMPANY, INC., a Pennsylvania Corporation, First Defendant, SUN OIL TRADING COMPANY, a Delaware Corporation, Second Defendant, SUN INTERNATIONAL INC., a Delaware Corporation, Third Defendant, SUN INTERNATIONAL LITD., a Bermuda Corporation, Fourth Defendant.

The opinion of the court was delivered by: STEWART


STEWART, District Judge:

 In our decision dated August 11, 1983, we dismissed three of four claims asserted in the complaint. As to the remaining claim for wrongful attachment, we asked the parties to submit supplemental briefs on the issues of which jurisdiction's law applies and whether plaintiff's claim is legally sufficient under that law. These briefs having been submitted, we consider those issues herein.

 The Third Claim of plaintiff's complaint asserts a claim "for damages inflicted on Bulk Zug by defendants' wrongful attachment of the property of Bulk Oil (Milano) S.r.l., an affiliate of the plaintiff". As amplified by the pleadings in a related case brought by Bulk Oil (Milano), 83 Civil 742 (CES), *fn1" which are attached to the complaint, the claim is that defendants obtained orders of sequestration or attachment from Italian courts directed to crude oil of Bulk Zug. However, the crude oil which was attached thereafter was the property of Bulk Milano. Plaintiff seeks damages for this wrongful attachment.

 In determining which law applies, we look in this diversity action to New York's conflict of law rules. The New York test has been described as one of "governmental interest analysis", Clark v. Celeb Publishing, Inc., 530 F. Supp. 979, 982 (S.D.N.Y. 1981); Babcock v. Jackson, 12 N.Y.2d 473, 481; 240 N.Y.S.2d 743, 749, 191 N.E.2d 279 (1963). Here, Bulk Zug, a Swiss corporation, sues for damages resulting from orders of attachment issued by Italian courts against property in Italy which was owned by Bulk Milano, an Italian company. Under the New York rule, it seems clear that the law of Italy is applicable.

 It is alleged that SOTC has its principal place of business in Pennsylvania. Plaintiff asserts that the decision to attach the oil was made in Pennsylvania and hence the law of Pennsylvania is applicable. We disagree. The claimed wrongful conduct was the use of Italian law and Italian courts to seize property of an Italian company.As indicated above, Italian law is the appropriate law to apply.

 The applicable law appears to be Article 96 of the Italian Code of Civil Procedure. *fn2" This provides as follows:

 If it appears that the losing party has asserted his claim or denied another party's claim with bad faith or gross negligence, the judge, upon application of the successful party, will sentence the losing party to pay not only the costs of the proceedings but also the damages suffered by the successful party which he will assess in the judgment.

 The judge who ascertains the nonexistence of the right for which the attachment was enforced or a mortgage was recorded or executory proceedings were commenced or prosecuted, upon application of the damaged party, will adjudicate the party that obtained the attachment to restore the damages when the plaintiff acted without due diligence. The damages will be assessed as in the first part of this provision.

 Defendants were seeking the attachment here in issue in connection with an arbitration proceeding in London between the parties in which Bulk Zug was the losing party. Under Article 96 only "the successful party" may assert a claim for wrongful attachment. Moreover, as both experts agree, a claim for damages for wrongful attachment must be asserted in the attachment proceeding itself (and so may not be asserted here). Finally, according to defendants' expert, plaintiff's claim would be rejected under Italian law as too remote a consequence of the attachment.That is, since the oil belonged not to Bulk Zug but to Bulk Milano and Bulk Zug's claim is based on Bulk Milano's failure to pay for the oil, an Italian court would find that Bulk Zug's damages were not related to the attachment. *fn3"

 Plaintiff now asserts that the cause of action, although expressly labelled one for wrongful attachment, is in fact one for intentional interference with contract, that is, that defendants intentionally had tortiously interfered with the performance of the contract under which Bulk Milano purchased oil from plaintiff. It is further contended that, as a result of the attachment, Bulk Milano could not resell the oil to obtain funds to pay plaintiff therefor. This belated effort to change the thrust of the third claim is not persuasive. The pleadings are clear on their face as to the nature of the claim. But even if we were to construe the plain language to state a claim for tortious interference with contract, it fails to state a claim. The orders of attachment were obtained, according to the Bulk Milano complaint, on October 27 and October 28, 1981. The orders were served on October 31, 1981 and, it is alleged, on that date defendants became aware that the oil belonged to Bulk Milano and not Bulk Zug. Accordingly, defendants could not have been acting improperly with respect to a contract of which they had no knowledge when they obtained the orders. Indeed even under Pennsylvania law, if it were applicable, there would be no claim stated, since that law requires that the defendant must have acted with the purpose of interfering with plaintiff's contract. Birl v. Philadelphia Electric Co., 402 Pa. 297, 300-1, 167 A.2d 472 (1960). *fn4"

 We conclude that Italian law applies and that under Italian law plaintiff has not stated a cause of action in the Third Claim. Accordingly, the Third Claim and the complaint are dismissed.


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