now believes it will be able to mitigate a portion of its damages. See Reply Affidavit of Paul L. Hedger, Vice President of Operations of Navios Corporation ("Hedger Reply Aff."), dated July 12, 1996, at PP 2-7.
On July 5, 1996, Dongbu commenced a second action against Navios, this time in South Korea, and attached accounts payable to Navios from Keoyang Shipping Co. Ltd. in the amount of $ 854,300 to secure claims for damages in the LUCKY BULKER, MASS WITS, and SCENERY SEA disputes. See Letter from Kim, Shin & Yu, Navios' Korean counsel, dated July 10, 1996, annexed as Ex. A to Hedger Reply Aff.
Navios now moves for a partial release of the New York attachment. In addition, Navios moves for countersecurity for its counterclaims, arguing that because the Connecticut action did not provide sufficient security to fully cover its LUCKY BULKER and MASS WITS claims, Navios may allocate the entire Connecticut attachment to LUCKY BULKER and seek new security for MASS WITS in New York. See Letter from Matthew A. Marion, Attorney for Defendant ("Marion Letter"), dated August 5, 1996, at 2.
I. Motion for Partial Release of Attachment
Motions for reducing attachments are common in admiralty law. Because pre-judgment attachments are usually based upon reasonable estimates and not precise facts, parties often attach amounts which are later deemed excessive in light of changes in circumstance. See 7A James W. Moore et al., Moore's Federal Practice P E14 (2d ed. 1996). As a result, a reduction in security is "freely granted upon a showing that the [attachment] is excessive." Id. Indeed, the Supplemental Rules for Certain Admiralty and Maritime Claims and the Southern District's Local Admiralty Rules explicitly provide for hearings and motions regarding such reductions.
Navios asserts two arguments in support of its request to reduce the New York attachment. First, Navios challenges the merits of two of Dongbu's claims and Dongbu's calculation of interest and costs. Second, Navios argues that Dongbu has obtained duplicative security for the MASS WITS dispute in Korea and is therefore oversecured. These arguments raise different issues and will be addressed separately.
A. Dongbu's claims
It is well-settled that in an attachment proceeding, the plaintiff need not prove its damages with exactitude. See, e.g., Bergesen v. Lindholm, 760 F. Supp. 976, 986 (D. Conn. 1991). But the court must be satisfied that the plaintiff's claims are not frivolous. See Royal Swan Navigation Co., Ltd. v. Global Container Lines, Ltd., 868 F. Supp. 599 (S.D.N.Y. 1994); Rolls Royce Industrial Power v. M.V. Fratzis M., 1995 WL 846690, at *3 (S.D.N.Y. July 24, 1995).
Dongbu claims the following damages in the London arbitration of the MASS WITS dispute:
Return of hire and value of bunkers onboard $ 286,720
Off-hire $ 127,698
Indemnity claim for liability $ 121,375
to subcharterers (NSAC)
Return of Far East redelivery bonus $ 350,000
Principal Sum $ 885,793
Interest at 9.25% for 2 years $ 163,872
Costs $ 200,000
TOTAL $ 1,249,665
© 1992-2004 VersusLaw Inc.