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Dopmar S.R.L. v. Basic Commodities B.V.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


December 5, 2008

DOPMAR S.R.L., PLAINTIFF,
v.
BASIC COMMODITIES B.V. A/K/A BASIC COMMODITIES -- AMSTERDAM, DEFENDANT.

The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

OPINION AND ORDER

Defendant Basic Commodities B.V. has moved for reconsideration of this Court's decision on September 11, 2008, denying vacatur of this Court's Order of Attachment and Garnishment obtained by Plaintiff, Dopmar S.R.L. under Rule B of the Supplemental Rules of the Federal Rules of Civil Procedure for certain admiralty and maritime claims.

Defendant's motion for reconsideration is based on the Second Circuit's Summary Order dated September 17, 2008 in Bottigllieri di Navigazione SPA v. Tradeline LLC, 2008 U.S. App. LEXIS 20028 (2d Cir. Sept. 17, 2008), affirming Judge Kaplan's District Court decision of the same name.*fn1 472 F. Supp. 2d 588 (S.D.N.Y. 2007).

In Judge Kaplan's case, which had been in arbitration since 1991, the defendant was a ship charterer who entered into a charter party with plaintiff, the vessel's deponent owner, to carry corn to Iran. Plaintiff, in turn, entered into a charter party on the same terms with the actual owner. The receiving party claimed the delivered shipment was unsatisfactory, and the owner settled the receiving party's claim and announced its intention to commence arbitration against plaintiff. Plaintiff, in turn, announced its intention to commence arbitration against the defendant ship charterer for the same claims being asserted by the owner. 472 F. Supp. 2d at 589.

In Judge Kaplan's decision, he found that plaintiff was seeking indemnification: It "is clear from the allegations of the complaint, which trace the bulk of monetary claims made against defendant, to the damages claimed by the Owner, and state plainly, 'Defendant is liable to indemnify the Plaintiff for all amounts claimed against it. . .' This claim is not ripe under English law. Plaintiff thus has not established the 'valid prima facie admiralty claim' required under Aqua Stole." 472 F. Supp. 2d 588, 590.

Here, the Complaint is based on the voyage charter agreement dated March 25, 2008, for use of the M/V Libertas in the carriage of a cargo of bagged cocoa beans from Ivory Coast to Turkey. It alleges that Defendant breached the charter agreement by failing to properly load, stow and discharge the cargo. (Declaration of Garth S. Wolfson, dated August 1, 2008 ("Wolfson Decl.") at Ex. 1.)

Dopmar has commenced an arbitration in London seeking recovery of its damages from the Defendant's breach of the charter party. Under English law, the claims "are 'ripe', even if the precise quantum of damages remains to be decided." (Id.

IT IS SO ORDERED.


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