The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
This is an action in admiralty to recover $41,596, the alleged
balance owed for marine fuel delivered to the M/V ROJAREK NAREE at the
order of defendant Ocean Navigation (Hellas) ("Hellas"), which allegedly
was the charterer of the vessel. Hellas evidently has disappeared, and
plaintiff claims not to have been paid. It brought this action against
Hellas and defendant Ocean Navigation of Monrovia, S.A. ("Monrovia"), the
latter on the theory that it was a partner of Hellas and is jointly and
severally responsible for its debts.
Upon Plaintiff's motion, the Court issued an order of maritime
attachment directed to Nordea Bank of Finland, plc ("Nordea"). Plaintiff
moves for summary judgment. Hellas has not responded, Monrovia opposes
the motion and cross-moves to vacate the order of attachment.
It is undisputed that Hellas owes plaintiff the $41,596. Accordingly,
Plaintiff's motion, insofar as it is addressed to Hellas, is granted.
The sole basis of the Plaintiff's motion against Monrovia is that
Hellas and Monrovia operated the "Ocean Navigation" business as partners.
Monrovia nevertheless devotes most of its opposing papers to a discussion
of its contention that plaintiff has not made a case for piercing the
corporate veil, which is not the issue in the first place. Nonetheless,
it is quite evident that plaintiff has not carried its burden of
demonstrating the absence of any genuine issue of material fact with
respect to its partnership claim. Assuming arguendo that New
York law applies, it has not demonstrated the absence of a genuine issue
as to whether any understanding between Monrovia and Hellas included
provision for sharing not only profits, but losses. Regardless of whether
the absence of such an understanding is fatal to a claim that they were
partners, or merely strong evidence that they were not, this forecloses
summary judgment under New York law. And even if Texas law controls and
is to the effect contended by plaintiff, it cannot be said that there are no
genuine and material factual issues. Accordingly, plaintiff is not
entitled to summary judgment against Monrovia.
Supplemental Admiralty Rule E(4)(f) places the burden of justifying the
order of maritime attachment on plaintiff. Beyond invoking this
principle, however, Monrovia has not suggested any reason for vacating
An order of maritime attachment is available where the plaintiff has an
in personam claim against the defendant that is cognizable in
admiralty, the defendant cannot be found in the district, property of the
defendant can be found in the district, and there is no statutory or
general maritime law prohibition to the attachment. 2 THOMAS J.
SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 21-2, at 470 (2d ed. 1994).
It is undisputed that Monrovia cannot be found in the district and that
there is no prohibition of attachment in this case. The verified
complaint alleges that defendants have accounts at Nordea, and this has
not been contested here. So if Monrovia has any serious objection to the
attachment, it must be on the theory that the plaintiff has no in
personam claim against it.
Quite plainly, plaintiff has an in personam claim against
Monrovia that is cognizable in admiralty. It asserts that Monrovia is
jointly and severally liable as a partner of Hellas for maritime fuel
supplied to a vessel chartered by Hellas as part of the alleged
partnership business. So Monrovia's motion can be understood only as a
variation on its theme that it in fact was not a partner of Hellas.
If that is really Monrovia's position, it is at liberty to move for
summary judgment dismissing the complaint. On the evidence now before the
Court, however, it appears that the question whether these two entities
were partners presents triable issues of fact.
For the foregoing reasons, Plaintiff's motion for summary judgment is
granted to the extent that plaintiff shall have judgment against Ocean
Navigation (Hellas) in the amount of $41,596 together with maritime
prejudgment interest on that amount from December 6, 2002 to the date of
entry of judgment. Plaintiff's motion is denied in all other ...