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Noble Resources Pte. Ltd. v. Metinvest Holding Ltd.

April 10, 2009

NOBLE RESOURCES PTE. LTD., PLAINTIFF,
v.
METINVEST HOLDING LTD. AND METINVEST INTERNATIONAL S.A., DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

MEMORANDUM OPINION AND ORDER

In this maritime attachment action, Plaintiff Noble Resources Pte. Ltd. ("Noble") alleges that it entered into a contract with Defendants Metinvest Holding Ltd. and Metinvest International S.A. to sell, transport by chartered vessel, and deliver a cargo of coking coal to Defendants. Noble further claims that Defendants repudiated the contract before the coal was shipped, and that as a result Noble was forced to cancel a charter party agreement it had entered into in which it had arranged for transport of the coal. Noble claims that it has suffered damages of $2.15 million, representing "deadfreight due and owing to [the vessel's owner] as a result of the cancellation of the charter party."*fn1 (Complaint, Skoufalos Aff., Ex. A, ¶¶ 5-10)

On December 23, 2008, Noble filed a verified complaint and supporting attorney affidavit seeking a Rule B Order attaching "all tangible or intangible property belonging to, claimed by, or being held for the Defendants by any garnishees within this District up to $2,695,923.83."*fn2 (Ex Parte Attachment Order, Skoufalos Aff., Ex. C) Pursuant to an ex parte Rule B attachment order issued by this Court on December 23, 2008, Deutsche Bank restrained $1 million of Defendant Metinvest International's funds on January 5, 2009, and JPMorgan Chase Manhattan Bank restrained $1,695,923.83 of Metinvest International's funds on January 6, 2009. (Skoufalos Aff., Ex. D)

On February 25, 2009, Defendants moved to vacate the attachment order pursuant to Fed. R. Civ. P. 12(b)(1), Rule E(4)(f) of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure, and Local Admiralty Rule E.1. Defendants argue that this Court lacks subject matter jurisdiction because Plaintiff's claim arises from non-maritime contractual obligations.

On March 11, 2009, this Court held a hearing on Defendant's motion to vacate. For the reasons stated below, Defendants' motion is GRANTED and this Court's December 23, 2008 order for Process of Maritime Attachment and Garnishment (the "Rule B Order") is VACATED.

BACKGROUND

This Court's December 23, 2008 order of attachment was issued on the basis of a Verified Complaint containing, inter alia, the following allegations:

5. By an unsigned contract dated June 23, 2008 and a signed trade confirmation dated June 30, 2008, Plaintiff agreed to sell and deliver by ocean transport a cargo of Coking Coal to the Defendant.*fn3

6. Pursuant to the terms of the contract, the Plaintiff was required to charter a Vessel for the carriage of the cargo from the loadport in Virginia to the Defendant's nominated discharge port.

7. Pursuant to the contract, Plaintiff nominated and chartered the Vessel "OLDENDORFF TBN" (hereinafter, the "Vessel") from her owners, Oldendorff GmbH & Co. KG. ("Oldendorff"), for the carriage of the cargo of Coking Coal from Virginia by a charter party dated September 2, 2008.

8. In breach of the terms of the contract, the Defendant claimed they could no longer ship the cargo.*fn4

9. As a result of the Defendant's default, Plaintiff was forced to cancel the charter party with Oldendorff.

10. As a result, Plaintiff has sustained damages in the total principal amount of $2,150,000 which represents deadfreight due and owing to Oldendorff as a result of the cancellation of the charter party. This principal amount is exclusive of interest, arbitration costs and attorney's fees.

11. The contract provided that any disputes arising thereunder shall be referred to London Arbitration ...


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