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Mason Agency Ltd. v. Eastwind Hellas SA

September 29, 2009

MASON AGENCY LTD., PLAINTIFF,
v.
EASTWIND HELLAS SA, DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge

OPINION & ORDER

Plaintiff Mason Agency Ltd. ("Mason") filed a verified complaint ("Complaint") in this admiralty action on July 21, 2009, requesting an Order to Issue Process of Maritime Attachment and Garnishment under Rule B of the Supplemental Rules to the Federal Rules of Civil Procedure for Certain Admiralty and Maritime Claims ("Supplemental Rules"). On August 3, an attachment was authorized by the Court in the amount of $116,369.84. Defendant Eastwind Hellas S.A. ("Hellas") now moves to vacate the maritime attachment under Supplemental Rule E(4)(f). In its opposition to the motion, Mason seeks leave to amend its Verified Complaint, to compel limited discovery, and to stay vacatur of the attachment pending appeal. For the following reasons, Hellas's motion to vacate the maritime attachment is granted, Mason's requests to compel discovery and stay vacatur are denied, and Mason's application for leave to amend the Complaint is granted.

BACKGROUND

On July 21, 2009, Mason filed the Complaint initiating a lawsuit in this Court and naming Hellas as the sole defendant. Mason asserted separate causes of action for breach of contract, account stated, and unjust enrichment/quantum meruit.

The specific facts alleged in the Complaint are as follows. In May 2009, Mason was requested by Hellas, in the latter's role as "operator/manager of the M/V YSTWYTH," to provide "vessel husbanding and agency services" to the M/V Ystwyth ("Vessel") at the Port of Vancouver. In furtherance of the agreements between Mason and Hellas, Mason obtained and provided various necessary goods and services for the operation of the Vessel while it was in port, including bunkering, pilotage, obtaining proper certifications, and handling port charges, terminal expenses, and bills of lading. Pursuant to the agreements, Mason later invoiced and demanded payment from Hellas, but Hellas, "in violation of [its] obligations under the terms and conditions of the agency agreements," refused to pay the outstanding balances that were "undisputedly due and owing" for the services rendered by Mason. Mason identified its principal claim as $93,117.00, plus estimated interest in the amount of $23,252.84, for a total of $116,369.84. Attached to the Complaint was a two-page estimate prepared by Mason on or about May 4, 2009, which identified the value of the services to be provided as $93,117.00. Mason did not, however, attach to the Complaint any of the agreement(s) that Mason purported to have with the defendant.

On August 3, on the basis of the representations contained in the Complaint and the accompanying sworn affidavits, this Court issued an Order to Issue Process of Maritime Attachment and Garnishment in the amount of $116,389.84. On August 13, Mason restrained eighteen wire transfers from garnishees Citibank and HSBC in the total attachment amount. On the same date, Mason's counsel served a copy of the Complaint and notified Hellas that it had restrained its electronic funds transfers. By letter of August 17, plaintiff's counsel also informed the Court that plaintiff had restrained the transfers. By Order of August 24, the Court directed the garnishee banks to transfer the attached funds to the Clerk of Court to be deposited in the Court's registry.

On August 27, Hellas moved to vacate the maritime attachment pursuant to Supplemental Rule E(4)(f). The attached memorandum of law stated that Hellas "was never the owner or operator" of the Vessel and "was never a party to any contract, written or oral, with Mason." According to Hellas, the only contact that it had with Mason in conjunction with this transaction was Hellas's email request to Mason on May 7 that Mason arrange for a radio technician to install a piece of communications equipment on board the Vessel. That email identifies Hellas "as agents only" for the Vessel. Hellas represented that Mason had instead contracted with a different company, Eastwind Maritime Inc. ("Maritime"), which in turn had acted as an agent for the Vessel's owner, Ystwyth Marine Ltd. ("Ystwyth Ltd."). The attached attorney's declaration further informed the Court that both Ystwyth Ltd. and Maritime had filed for Chapter 7 bankruptcy protection in the Southern District of New York. The declaration noted that Hellas has not filed for bankruptcy.

A conference was held with the parties on August 31. Upon the Court's specific request, Mason presented to the Court and to Hellas a copy of the agreement upon which Mason had rendered its services. The May 5, 2009 agreement was a five-page document entitled "Port Agency Appointment and Pro-forma Disbursement Account Request" (the "Appointment"). The Appointment clearly reflected a contract between Mason and Maritime. Mason later provided the Court with its May 5, 2009 "Appointment Acceptance with Pro-forma Disbursement Account Letter" ("Acceptance"), which also listed the contract parties as Mason and Maritime. Neither the Appointment nor the Acceptance mention Hellas.

Mason's September 8 opposition to the motion to vacate advances a theory that Hellas should be held liable on the unpaid debts incurred under the Appointment because Hellas is the "beneficial owner" of the Vessel. Mason alleges that "all 'owners" items, including . . . payments for crew wages, spare parts and inspections were handled" by Hellas and that "[a]ll disbursements made by [Mason] for 'owner's account' were invoiced to Eastwind Hellas and settled by Eastwind Hellas." The "owners' items" are reflected in invoices of June 23 and 26, and amount to less than $5,000 in total charges. Mason further alleges that "[a]t no time during the port agency appointment was [Mason] told that it was acting on behalf of any entity other than Eastwind Hellas, as operator and beneficial owner of the Vessel." A declaration attached to Mason's opposition brief of September 8 concedes that the unpaid principal sum owed to Mason is only $23,841.63 plus interest, or roughly one-quarter of the $93,117.00 principal claim alleged by Mason in the Complaint.*fn1 Mason did not provide copies of the invoices or demands for payment which the Complaint asserts that it presented to Hellas for the services covered by the Acceptance.

Mason is currently restraining funds in the amount of $116,389.84. To date, Mason has not requested the Court to release any of the funds that it has restrained above the amount now required to secure its claim. Counsel for Mason previously represented in a sworn declaration that "[p]laintiff has agreed to voluntarily release all funds in excess of USD 29,795.28, and [would] liaise with opposing counsel to prepare a Stipulated Order directing the release of the excess funds from the Registry of the Court."

DISCUSSION

I. Hellas's Motion to Vacate

Under the Supplemental Rules, an attachment should issue only if a plaintiff establishes four factors: (1) that the plaintiff has a valid prima facie admiralty claim against the defendant; (2) that the defendant cannot be found within the district; (3) that the defendant's property may be found within the district; and (4) that there is no statutory or maritime law bar to the attachment. Williamson v. Recovery Ltd. P'ship, 542 F.3d 43, 51 (2d Cir. 2008) (citing Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434, 445 (2d Cir. 2006)). Supplemental Rule E(4)(f) provides that, once an attachment has occurred, "any person claiming an interest in [the attached property] shall be entitled to a prompt hearing" at which the person may contest the attachment of property. Fed. R. Civ. P. Supp. R. E(4)(f).

Under Supplemental Rule E(4)(f), plaintiff bears the burden of "show[ing] why the arrest or attachment should not be vacated." Id.; Aqua Stoli, 460 F.3d at 445 & n.5. In other words, the plaintiff must affirmatively demonstrate that the four Aqua Stoli requirements have been met so that an attachment is justified. If the district court "determines, after hearing from both parties, that the requirements of Rule B have not actually been met," it should vacate the attachment. Williamson, 542 F.3d at 52. The district court may also vacate a maritime attachment for equitable reasons "in other limited circumstances," such as when the defendant is amenable to suit in a convenient adjacent jurisdiction, when the plaintiff could obtain in personam ...


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