The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
This matter is before the Court on a motion by the third party defendants (collectively, "Devon") to vacate Supplemental Rule B attachments obtained by defendant-third party plaintiff Pactrans Air & Sea Inc. ("Pactrans") and for counter-security. Magistrate Judge Ronald E. Ellis has filed a report and recommendation (the "R&R") suggesting that the Court grant the motion to vacate and deny counter-security. Pactrans objects. The matter raises once again the question when a court ought to vacate a Rule B attachment on equitable grounds.
Devon retained Pactrans as a freight forwarder to ship a cargo of gypsum wallboard from China to Pensacola, Florida. Pactrans, acting as Devon's agent, in turn chartered the M/V SANKO RALLY from plaintiff China National Chartering Corp. ("CNCC") for that purpose. Pactrans claims that Devon was obliged by the charter party to make all payments for charter hire and other costs and expenses relating to the shipment including, inter alia, demurrage. Pactrans, in turn, was obliged to load, stow and secure the cargo.
The cargo was loaded in Qingdao, China, in April 2006. Pactrans maintains that Devon prevented it from directing or supervising the loading and stowage. When the vessel arrived in Pensacola in June 2006, an inspection determined that much of the cargo had been damaged and/or destroyed during transport. The vessel and the remainder of the cargo were delayed for a number of days in order to permit sorting and discharging the sound portion of the cargo.
The Lawsuits and the Arbitration
A good deal of litigation ensued:
* In June 2006, Devon sued the M/V SANKO RALLY in rem and Pactrans in personam in the Northern District of Florida for damage to the cargo (the "Devon Action"). On November 6, 2006, Pactrans counterclaimed in that action for indemnification and/or contribution for any liability it may have to CNCC.
* In August 2006, Pactrans filed its own action against Devon and CNCC in the Northern District of Florida (the "Pactrans Action") seeking the same relief as it seeks in its counterclaim in the Devon Action.
* In November 2006, CNCC commenced this action (the "CNCC Action") to obtain a Rule B attachment in aid of an arbitration claim in China that seeks to hold Pactrans liable for failure to pay demurrage associated with the delay in Pensacola. Pactrans filed a third party complaint here against Devon in December 2006. It asserts that Devon is obliged to indemnify it for any liability it may have to CNCC.
Pactrans obtained Rule B attachments against Devon in connection with its third party complaint in this, the CNCC action. Devon moves to vacate them or, in the alternative, for counter-security.
The Report and Recommendation
Devon argued that the process of maritime attachment and garnishment should be vacated because (1) Devon and Pactrans both appeared in personam in the Florida actions and, in any case, (2) Devon would be subject to in personam jurisdiction in another jurisdiction convenient to Pactrans. The R&R recommends vacatur of the attachments on the first theory, viz. that both Devon and Pactrans are "present" in the Northern District of Florida by virtue of their appearances and amenability to suit there. It comments also, in an adverse way, on Pactrans' resort to Rule B in this district after two actions already were pending in Florida. Pactrans objects, arguing essentially that the Florida actions are inactive, that neither it nor Devon is ...