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MS "Taga Bay" GMBH & Co. Containerschiff KG v. SA Independent Liner Services PTY Ltd.

July 24, 2009

MS "TAGA BAY" GMBH & CO. CONTAINERSCHIFF KG, PLAINTIFF,
v.
SA INDEPENDENT LINER SERVICES PTY LTD., A/K/A "SAILS," AND LONRHO PLC, DEFENDANTS.



OPINION and ORDER

On the original verified complaint against defendant SAILS, a South Africa-based vessel operator, plaintiff on October 16, 2008 obtained an order for maritime attachment of up to $885,157.56 in SAILS' property, in aid of arbitration of plaintiff's claim that SAILS is in default of its payment obligations under a maritime charter party.

On November 7, 2008, plaintiff filed an amended verified complaint adding defendant Lonrho PLC, the London-based grandparent of SAILS, on the claim that SAILS is Lonrho PLC's alter ego, and obtained an order in this case for attachment of up to $2,515,228.98 in SAILS' and Lonrho PLC's property.

On May 19, 2009, that order was vacated as to Lonrho PLC because none of its property had been attached, and since the same appeared to be true as to SAILS' property, plaintiff was ordered to show cause by June 26, 2009 why this suit for maritime attachment should not be dismissed.

Plaintiff has responded to that by an ex parte letter admitting that "no funds have been attached to date" (Pl.'s June 23, 2009 Ltr. at p. 4), and seeking, among other things, leave to amend its complaint further by adding as defendants eleven*fn1

Lonrho PLC affiliates, on allegations that they and SAILS are Lonrho PLC's alter egos, and attaching up to $2,515,228.98 in SAILS' and those eleven affiliates' property.

1.

Because it does not appear that allowing plaintiff to file its second amended verified complaint ("complaint" or "SAVC") would be futile, leave to do so is granted pursuant to Fed. R. Civ. P. 15(a)(2) (Except in circumstances not applicable here, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.").

2.

Plaintiff argues that attachment of property belonging to newly-added defendant Lonrho Africa (Holdings) Limited, a wholly owned subsidiary of Lonrho PLC and the parent of SAILS, is warranted by its claim that SAILS and Lonrho Africa are alter egos of Lonrho PLC.

Based on the same claim, principally supported by allegations predicated on submissions in the record of this case, Judge Swain in Wilhelmsen Premier Marine Fuels AS v. SA Independent Liner Service (PTY) Ltd. a/k/a "SAILS," Lonrho PLC, and Lonrho Africa Holdings Ltd., No. 08 Civ. 8878 (LTS) (S.D.N.Y.) on January 6, 2009 allowed the maritime attachment by Wilhelmsen of SAILS' and Lonrho Africa's property, to obtain security for Wilhelmsen's claim that SAILS breached a maritime bunkering services contract. The allegations relied upon by Judge Swain (and previously by me with respect to SAILS and Lonrho PLC) sufficiently demonstrate that SAILS and Lonrho Africa are alter egos of Lonrho PLC for purposes of an attachment, and an order will be issued separately for attachment of up to $2,515,228.98 in SAILS' and Lonrho Africa's property.

3.

However, the ex parte application is denied to the extent it seeks permission to attach property of the ten other newly added defendants:

* Luba Freeport Limited, the operator of an oil services terminal in Equatorial Guinea with an address in the Island of Jersey;

* Six Lonrho PLC affiliates with an address in the British Virgin Islands, who run the "Fly 540" airline providing ...


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