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DONGBU EXPRESS CO. v. NAVIOS CORP.

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


September 24, 1996

DONGBU EXPRESS CO., LTD., Plaintiff, against NAVIOS CORPORATION, Defendant.

The opinion of the court was delivered by: SCHEINDLIN

MEMORANDUM OPINION

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Defendant Navios Corporation ("Navios") moves, pursuant to Rule E(4)(f) of the Supplemental Rules for Certain Admiralty and Maritime Claims, for partial release of the maritime attachment and garnishment of its bank account issued against it by this Court on June 24, 1996 and, pursuant to Rule E(7), for countersecurity.

 BACKGROUND

 Plaintiff Dongbu Express Co. ("Dongbu") is a Korean shipping corporation. On May 17, 1995, Dongbu, as charterer, entered into a time charter agreement with Navios, as owner. Pursuant to the agreement, Dongbu agreed to time charter the vessel MASS WITS from Navios for a minimum period beginning on May 9, 1995 and terminating August 12, 1996, and a maximum period terminating October 12, 1996. See Points of Claim, annexed as an Exhibit to Affidavit of Charles G. Weller, London Attorney for Navios, dated July 12, 1996. On May 3, 1996, the time charter agreement was terminated prematurely. The parties disagree as to who breached the agreement and are presently arbitrating the dispute in London pursuant to the charter's arbitration clause. *fn1"

 On May 29, 1996, Navios filed an action in the District of Connecticut seeking a Rule B maritime attachment of Navios' accounts payable to Dongbu (and the accounts payable of Navios International, Inc., a related company) to secure claims against Dongbu in the London arbitration of the MASS WITS and the LUCKY BULKER disputes. The attachment was ordered on June 7, 1996. See Reply Affidavit of John W. Wall, Attorney for Navios, dated July 12, 1996, Ex. C.

 Dongbu commenced the present action to obtain security in the amount of $ 824,908 for the London arbitration of the MASS WITS dispute. *fn2" On June 24, 1996, this Court issued an order directing the clerk to issue the attachment, and Navios' account at Chase Manhattan Bank, N.A. was subsequently garnished. On June 28, 1996, Navios counterclaimed and applied for an order directing Dongbu to post bond in the amount of $ 439,394 as security for Navios' claims in the MASS WITS dispute. This amount was subsequently reduced to $ 353,542 because Navios 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.

 DISCUSSION

 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. *fn3"

 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

19960924

© 1992-2004 VersusLaw Inc.



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