United States District Court, E.D. Louisiana
RICHARDSON STEVEDORING & LOGISTICS SERVICES, INC.
DAEBO INTERNATIONAL SHIPPING CO. LTD., ET AL., SECTION
ORDER AND REASONS
MARTIN L. C. FELDMAN, District Judge.
Before the Court are three virtually identical motions to 21vacate filed in these consolidated cases: Dana Shipping and Trading S.A., the time charterer of the seized vessel, the M/V DAEBO TRADER, seeks to vacate the maritime attachment of the vessel; orders granting motions for writ of foreign attachment were issued in three cases, Civil Action Numbers 15-490, 15-494, and 15-496. For the reasons that follow, the motions to vacate are DENIED.
In these consolidated cases, the plaintiffs insist that Daebo International Shipping Co., Ltd. has cheated the plaintiffs out of approximately $2 million and that its ownership scheme with Shinhan Capital Co., Ltd. should not shield Daebo from the Rule B attachment remedy.
For the purposes of the present motions, it is undisputed that the plaintiffs have maritime claims against Daebo International Shipping Co., Ltd. and that Shinhan Capital Co., Ltd. is the DAEBO TRADER's registered owner. On February 14, 2015 Richardson Stevedoring & Logistics Services, Inc. became the first creditor of Daebo to file an action in this Court seeking attachment of the M/V DAEBO TRADER when it filed its verified complaint with request for issuance of Rule B attachment and garnishment. The next day, SPV followed suit, filing its own verified complaint with request for issuance of Rule B attachment of the M/V DAEBO TRADER. Two days later, American Marine Services, Inc. filed its own verified complaint with request for issuance of Rule B attachment of the M/V DAEBO TRADER. Based on the allegations of the verified complaints and, pursuant to Rules B of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure, the Court issued Rule B writs of foreign attachment, which were served on the DAEBO TRADER on or before February 18, 2015; according to the U.S. Marshals, the vessel was seized on Friday, February 20, 2015.
The plaintiffs allege that Daebo is the reported group owner, ship manager, and operator of the M/V DAEBO TRADER; that Daebo is the reported disponent owner of Shinhan; that Daebo and Shinhan act as a single business entity; that Shinhan is "nothing more than a bank or one-ship company vehicle set up by a bank;" that Shinhan is a "brass plate" company created on paper to legally own a ship and possibly limit the liability for Daebo, which is the real' and/or beneficial' owner;" that "Shinhan's registered ownership of the M/V DAEBO TRADER should be disregarded;" and that "Daebo... is in reality the true and beneficial owner of the M/V DAEBO TRADER."
Dana Shipping and Trading, S.A., making a limited appearance solely as time charterer of the M/V DAEBO TRADER, with a full reservation of all rights and defenses pursuant to Rule E(8) of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure, now moves the Court to vacate the attachment of the M/V DAEBO TRADER on the grounds that the plaintiffs cannot carry their burden of proving that defendant Shinhan Capital Co., Ltd. is an alter ego of defendant Daebo International Shipping Co., Ltd., making the attachment improper under Supplemental Rule B, and further asserting that the plaintiffs' improper attachment of the bunkers is interfering with Dana Shipping's charter of the M/V DAEBO TRADER. The plaintiffs oppose Dana's request to vacate the vessel's attachment; they argue that the writs of attachment should be sustained under Admiralty Rule E(4)(f) and that the plaintiffs should be afforded a full and fair opportunity to conduct discovery, argue the merits of their suits, and, if necessary, compel the sale of the DAEBO TRADER to satisfy their claims against Daebo.
The special remedies and procedures available to admiralty and maritime claimants are governed by the Supplemental Rules for Admiralty or Maritime Claims, as part of the Federal Rules of Civil Procedure. Supplemental Rule B(1)(a) provides:
[A] verified complaint may contain a prayer for process to attach the defendant's tangible or intangible personal property - up to the amount sued for.... To support maritime attachment of property under this Rule, a plaintiff must satisfy filing, notice, and service requirements, and must also show that: (1) the plaintiff has a valid prima facie admiralty claim against the defendants; (2) the defendants cannot be found within the district; (3) the defendants' property may be found within the district; and (4) there is no statutory or maritime law bar to the attachment. See Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434, 445 (2d Cir. 2006), abrogated on other grounds by Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009). Once a defendant's property has been attached, the defendant can move to vacate the attachment under Rule E(4)(f). Williamson v. Recovery Ltd. Partnership, 542 F.3d 43, 51 (2d Cir. 2008), cert. denied, 555 U.S. 1102 (2009). The attachment must be vacated unless the attaching party presents sufficient evidence to show probable cause for the attachment. Austral Asia Pte Ltd. v. SE Shipping Lines Pte Ltd., No. 12-1600, 2012 WL 2567149 (E.D. La. July 2, 2012)(Engelhardt, J.) (citations omitted). However, courts are not obliged to make binding determinations of fact during Rule E(4)(f) hearings; rather, courts are called upon to "merely hold that it is [or is not] likely' that alleged facts are true." Id. at *2 (noting that post-attachment hearings are "not intended to definitively resolve the dispute between the parties; instead, the district court makes a preliminary determination of whether reasonable grounds exist for the arrest").
As a threshold matter, the plaintiffs challenge Dana Shipping's - the time charterer's - standing to seek vacatur of the attachment of the DAEBO TRADER.
The plaintiffs submit that non-party Dana Shipping is the mere time-charterer of the vessel; that Dana Shipping does not have title to the vessel; that it does not pay the vessel crew or the vessel mortgage; that it is not liable to pay any maritime liens incurred by the vessel. The plaintiffs argue that if the Court were to allow Dana to step into the shoes of the vessel owner, who is required by Rule B to appear, it would make a mockery of the vessel attachment process. Dana Shipping counters that it has "an interest in this matter" and is entitled to a prompt postattachment hearing and an order vacating plaintiffs' wrongful attachment of the vessel. Dana contends that the ...