The opinion of the court was delivered by: Denise Cote, District Judge
Plaintiff Ocean Star Maritime Co. ("Ocean Star") moves for reconsideration of the denial of its application for an ex parte maritime attachment. For the following reasons, the motion is denied.
The following facts are based on Ocean Star's June 8, 2009 verified complaint. On October 23, 2007, a vessel ("Vessel") owned by Ocean Star loaded lateritic nickel ore in the Phillipines, and set sail for China. That same day, the Vessel ran aground. Ocean Star immediately entered an agreement with non-parties to refloat the Vessel and salvage the cargo. As part of these salvage services, some portion of the cargo was lightened from the Vessel and placed in storage on barges ("OffLoaded Cargo"). The Vessel was refloated over a month later, on November 29, 2007, and it set sail for China with the remainder of the original cargo aboard. The Off-Loaded Cargo was never loaded back onto the Vessel; it was left behind in storage on the barges. On December 5, 2007, Ocean Star purchased the OffLoaded Cargo from the original cargo owners for resale.
This case is about a contract Ocean Star made to sell the Off-Loaded Cargo from the barges to a local buyer. By the time Ocean Star purchased the Off-Loaded Cargo, it had been sitting on the barges for over a month. After buying the Off-Loaded Cargo, Ocean Star left it on the barges for another three months while searching for a buyer. On March 13, 2008, Ocean Star sold the Off-Loaded Cargo for $1 to defendant Pac Asia Mineral and Management Corporation ("Pac Asia"), a company based in the Phillipines. Under the contract, title to the Off-Loaded Cargo passed from Ocean Star to Pac Asia. Upon payment, Pac Asia became responsible for organizing a "safe place of delivery," and for "all costs associated with the storage, collection, and discharge of the cargo in the barges." The contract did not specify where Pac Asia would take the Off-Loaded Cargo or how.
It only warranted that Pac Asia would "provide all necessary license[s], approvals, authorizations or permits required to bring the cargo ashore." Ocean Star made available to Pac Asia "standby, tugs, personnel and equipment" to complete discharge of the cargo free of charge for seven days after execution of the contract. Ocean Star alleges that Pac Asia breached its duty under the contract "to promptly arrange for cargo delivery and discharge."
Ocean Star sued Pac Asia and applied for a maritime attachment on June 8, 2009. By an Order dated July 8 ("July Order"), the application was denied for "fail[ure] to show the existence of maritime jurisdiction." It noted that the plaintiff had not proffered that the barge was itself a vessel in navigation or capable of transporting goods through navigable waters.
Ocean Star did not renew its request for an attachment by making any supplemental showing to support jurisdiction. Instead, it filed this motion for reconsideration on July 22.
The standard for reconsideration is strict. "[R]econsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Trans., Inc., 70 F.3d 255, 257 (2d Cir. 1995). Reconsideration "should not be granted where the moving party seeks solely to relitigate an issue already decided," id., nor may the moving party "advance new facts, issues or arguments not previously presented to the Court." Shamis v. Ambassador Factors Corp., 187 F.R.D. 148, 151 (S.D.N.Y. 1999) (citation omitted). The decision to grant or deny the motion is within the sound discretion of the district court. See Devlin v. Transp. Commc'n Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999).
Ocean Star asserts that this Court has subject matter jurisdiction over this action under 28 U.S.C. § 1333. Section 1333 provides that district courts have original jurisdiction over "[a]ny civil case of admiralty or maritime jurisdiction."
28 U.S.C. § 1333. The Supreme Court has established a "conceptual" approach to determining whether maritime jurisdiction lies. Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 23 (2004). Under this approach, "[w]hile the precise categorization of the contracts that warrant invocation of the federal courts' admiralty jurisdiction has proven particularly elusive," courts "should look to the contract's nature and character to see whether it has reference to maritime service or maritime transactions." Folksamerica Reinsurance Co. v. Clean Water of New York, Inc., 413 F.3d 307, 312 (2d Cir. 2005) (citation omitted).
In Kirby, the Supreme Court addressed the issue of mixed contracts, i.e., contracts that had both sea and land components. The Court stated that in determining whether admiralty jurisdiction is present, the inquiry focuses not on "whether a ship or other vessel was involved in the dispute," or "simply... the place of the contract's formation or performance," but on "the nature and character of the contract." Kirby, 543 U.S. at 23-24 (citation omitted). The Court held that admiralty jurisdiction is proper where the "principal objective of a contract is maritime commerce." Id. at 25.
Following this decision, the Second Circuit stated that it "recognize[s] two exceptions to the general rule that 'mixed' contracts fall outside admiralty jurisdiction." Folksamerica, 413 F.3d at 314 (citation omitted). One exception is where "the claim arises from a breach of maritime obligations that are severable from the non-maritime obligations of the contract." Id. (citation omitted). The second, modified to take account of Kirby, is where, despite the mixed nature of the contract, "the principal objective of [the] contract is ...