Heidmar, Inc. v. Anomina Ravennate Di Armamento Sp.A. of Ravenna & A.R.A.

132 F.3d 264, 1998 A.M.C. 982, 1998 U.S. App. LEXIS 592, 1998 WL 255
Court of Appeals for the Fifth Circuit·Decided January 15, 1998·No. No. 97-40709·Published·Cited by 9 cases

Opinion

W. EUGENE DAVIS, Circuit Judge:

Appellants Heidmar, Inc. and Heidenreich Marine, Inc. (collectively, “Heidmar”) appeal an order of the district court vacating the attachment of a vessel, the MTV Pegasus Erre (“Pegasus Erre”), owned by appellees Anomina Ravennate Di Armamento Sp.A of Ravenna and A.R.A. Anomina Ravennate Di Armamento Sp.A. (collectively, “Ravennate”). For the reasons set out below, we conclude that the district court erred in vacating the attachment and remand for further proceedings.

I.

Heidmar is a Liberian corporation with a principal place of business in Greenwich, Connecticut. Heidmar provides ocean transportation services, primarily transporting oil products for petroleum companies. Heidmar does not own any vessels; rather, it' charters them as needed from other entities. Raven-nate is an Italian -corporate' entity with a principal place of business in Ravenna, Italy and the owner of the Pegasus Erre, an Oil tanker.

In May 1995, Heidmar negotiated a time charter party with Ravennate for the Pegasus Erre. Among other things, the charter party required that the vessel be oil-tight, fit to carry crude petroleum and its products, and in good order and condition. The charter party also required Ravennate to have the vessel inspected and approved by various oil companies during the life of the charter party. The charter party provided that its terms would “be construed and the relations between the parties determined in accordance with the laws of England,” and that [266]*266either party could elect to have any dispute arbitrated by a single arbitrator in-London.

The Pegasus Erre was delivered to Heid-mar in November 1995. In October 1996, however, Heidmar returned the Pegasus Erre to Ravennate, complaining that the vessel was unfit and had not met the terms of the charter party. Ravennate denied that it had breached the charter party, and countered that rather Heidmar had breached the charter party by returning the vessel before its expiration. Unable to resolve their dispute, the parties commenced arbitration proceedings in London. That arbitration is still pending.

On March 7, 1997, Heidmar filed suit against the Pegasus Erre, in rem, and against Ravennate, in personam, in the Southern District of Texas. ' Heidmar sought a judgment against Ravennate and the Pegasus Erre, as well as the arrest of'the vessel pursuant to Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims.1

Heidmar filed its complaint at approximately 3:45 p.m. CST.2 Its complaint was accompanied by a motion for an expedited hearing on its request for the arrest ,of the Pegasus Erre. Heidmar’s counsel was advised that he should await the arrival of a magistrate judge who would conduct an ex parte hearing that afternoon. Meanwhile, at approximately 4:00 p.m. CST, Ravennate faxed a notification that it had appointed an agent for service of process in the Southern District of Texas to Heidmar’s headquarters in Connecticut.3

At approximately 4:45 p.m. CST, a magistrate judge held a hearing on Heidmar’s request for the arrest of the Pegasus Erre. Neither she nor Heidmar’s counsel were aware of Ravennate’s appointment of an agent for service of process. The magistrate judge granted Heidmar’s request and issued a warrant for the arrest of the Pegasus Erre. The vessel arrived in Corpus Christi, Texas on March 9, and was arrested the following day.

On March 12, the Pegasus Erre filed a motion to vacate the arrest on the ground that English law, which governs the charter party, does not provide for a maritime lien for breach of a charter party.4 At a hearing that day, the magistrate judge denied its motion.

A few days later, the magistrate judge issued an order setting the amount of security for the release, of the Pegasus Erre at $839,078 plus interest. Ravennate subsequently posted a bond in that amount and the Pegasus Erre was released.

After the magistrate judge denied the Pegasus Erre’s motion to vacate the arrest, Ravennate and the Pegasus Erre filed a motion to dismiss which the district court converted into a motion for summary judgment. On May 15, .1997, the court ruled that Heid-mar could not proceed against the Pegasus Erre in rem under Rule C because English law does not provide for a maritime lien for breach of a charter party.' The court, however, temporarily converted the arrest of the vessel into an attachment under Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims pending further briefing on the issue of whether Ravennate could be “found within the district” for pur[267]*267poses of Rule B.5

On June 19, 1997, the court ruled that Ravennate could be found within the district for purposes of Rule B and issued an order vacating the attachment. The court also ruled that Ravennate had not waived its objection to arrest of the Pegasus Erre, as Heidmar had argued, and ordered the release of the bond. The court stayed further proceedings in the case pending the outcome of the London arbitration. Heidmar now appeals the court’s order vacating the attachment.

II.

As a preliminary matter, we must address Ravennate’s contention that we lack jurisdiction over this interlocutory appeal. Generally, we may only hear appeals from final orders unless the district court has certified an order for appeal. See 28 U.S.C. §§ 1291, 1292(b). Heidmar contends, however, that the district court’s order is a collateral order appealable under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen, the United States Supreme Court recognized an exception to the final judgment rule for orders that “fall in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” 337 U.S. at 546, 69 S.Ct. at 1225-26.

In Swift & Co. Packers v. Companía Colombiana Del Caribe, S.A., 339 U.S. 684, 70 S.Ct. 861, 94 L.Ed. 1206 (1950), the Supreme Court held that an order vacating attachment was appealable under Cohen because “[appellate review of the order ... at a later date would be an empty rite after the vessel had been released and the restoration of the attachment only theoretically possible.” Id. at 689, 70 S.Ct. at 865. We find Swift & Co. controlling and therefore conclude that we have jurisdiction over this appeal.

III.

A.

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Heidmar, Inc. v. Anomina Ravennate Di Armamento Sp.A. of Ravenna & A.R.A., 132 F.3d 264, 1998 A.M.C. 982, 1998 U.S. App. LEXIS 592, 1998 WL 255 (5th Cir. 1998).

132 F.3d 264 (Heidmar, Inc. v. Anomina Ravennate Di Armamento Sp.A. of Ravenna & A.R.A.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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