Winter Storm Shipping, Ltd. v. TPI

310 F.3d 263, 2002 WL 31478850
CourtCourt of Appeals for the Second Circuit
DecidedNovember 6, 2002
DocketDocket No. 02-7078
StatusPublished
Cited by24 cases

This text of 310 F.3d 263 (Winter Storm Shipping, Ltd. v. TPI) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Winter Storm Shipping, Ltd. v. TPI, 310 F.3d 263, 2002 WL 31478850 (2d Cir. 2002).

Opinion

HAIGHT, Senior District Judge.

Winter Storm Shipping, Ltd. (“Winter Storm”) appeals from the January 11, 2002 Opinion and Order, 198 F.Supp.2d 385, and the January 16, 2002 Judgment of the District Court for the Southern District of New York (Shira A. Scheindlin, District Judge) vacating a maritime attachment of funds of defendants TPI, a/k/a Thai Petrochemical Industry Public Company Limited, Thai Petrochemical Industry PCI, TPI Oil (1997) Co., Ltd. and TPI Oil Co. Ltd. (collectively “TPI”) in the hands of garnishee Bank of New York (“BNY”) and dismissing Winter Storm’s complaint for lack of jurisdiction over TPI. This appeal, involving the interplay between a centuries-old admiralty law procedure and present day banking technology, poses the question whether funds involved in electronic fund transfer (“EFT”) between banks are subject to attachment under Rule B(l) of the Supplemental Rules for Certain Admiralty and Maritime Claims. The district court answered in the negative. We vacate the judgment of the district court and remand the case to that court with instructions to reinstate the attachment and retain jurisdiction.

BACKGROUND

Winter Storm, a foreign corporation with a place of business in Malta, chartered its vessel MW NINEMIA to defendant-appellee TPI, a Thai corporation, to carry an oil cargo from Rabigh, Saudi Arabia, to Rayong, Thailand, in February and March, 2001. Winter Storm claims that TPI breached the charter party by failing to pay the full freight due and owes Winter Storm $361,621.58, an amount that includes interest and anticipated attorneys’ and arbitrators’ fees. The charter party provides for arbitration of disputes in London.

Winter Storm filed a complaint against TPI in the district court on June 21, 2001, and an amended complaint on June 26, 2001 (hereinafter the “complaint”), characterizing its claim as admiralty and maritime in nature under Rule 9(h), Fed.R.Civ. P., and invoking the district court’s admiralty jurisdiction conferred by 28 U.S.C. § 1333. The complaint described the charter party of the NINEMIA, the voyage performed, and TPI’s failure to pay the full freight, and asserted that “plaintiff has, or will shortly, nominate its arbitrator pursuant to the arbitration clause set forth in the contract of charter.” A-10.1

[266]*266Winter Storm further alleged that TPI could not be “found within this District” within the meaning of Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure (the “Admiralty Rules”) and sought an order directing the Clerk to issue process of maritime attachment and garnishment pursuant to Rule B and the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, 8 attaching TPI’s assets held by garnishees in the amount of $361,621.58.

Admiralty Rule B(l) provides:

(a) If a defendant is not found within the district, 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 — in the hands of garnishees named in the process.

The process of attachment prayed for by Winter Storm identified “Chase Manhattan Bank and/or Bank of New York” as potential garnishees.

Section 8 of the FAA, 9 U.S.C. § 8, which Winter Storm invoked in addition to Admiralty Rule B, makes maritime attachment available to parties to a maritime contract, such as a charter party, which contains an arbitration clause. The statute provides:

If the basis of jurisdiction be a cause of action otherwise justiciable in admiralty, then, notwithstanding anything herein to the contrary, the party claiming to be aggrieved. may begin his proceeding hereunder by libel and seizure of the vessel or other property of the other party according to the usual course of admiralty proceedings, and the court shall then have jurisdiction to direct the parties to proceed with the arbitration and shall retain jurisdiction to enter its decree upon the award.

The district court entered its ex parte order of attachment on June 22, 2002. Process of maritime attachment and garnishment was served upon BNY at 12:19 p.m. and 4:44 p.m. on June 28, 2001, and at 12:50 p.m. and 1:45 p.m. on June 29. At those times BNY did not hold any funds of TPI. However, as a result of these services of process BNY “not later than the close of business on June 28, 2001, placed a stop order on any funds relating to [TPI] passing through” BNY. Affidavit of David Rosenfield (“Rosenfield affidavit”), BNY’s Manager — Legal Process and Senior Counsel, A-33.

TPI maintained an account with a Thai bank in Bangkok, the Bank of Ayudhya (“BA”), which in turn maintained an account at BNY. TPI entered into an unrelated commercial transaction with Oppsal Shipping Co., Ltd. (“Oppsal”), which maintained an account with the Royal Bank of Scotland in London (“RBS”). TPI’s contract with Oppsal called for TPI to pay Oppsal in United States dollars. At 6:48 a.m. on July 2, 2001, BNY received from BA a payment order in respect of an EFT in the amount of $1,085,071.41 on behalf of TPI to the account of Oppsal at RBS. The transfer would be made electronically through BNY in New York City. BA was the originating bank and BNY acted as the intermediary bank.

Because BNY, in response to the earlier services of process of attachment procured by Winter Storm, had placed a stop order on TPI funds that might pass through it, BNY did not immediately execute BA’s payment order that would have completed the electronic transfer of $1,085,071.41 by BA to RBS. Instead, BNY “placed $361,621.58 from the account of Bank of Ayudhya in a suspense account and issued a payment order in the amount of the balance of $723,449.83 to the account of Oppsal at The Royal Bank of Scotland.” Rosenfield affidavit, A-34. The deducted amount of $361,621.58 represents the total [267]*267amount of Winter Storm’s claims against TPI, as recited in the processes of attachment.

That sum was still anchored in BNY’s suspense account when, at 10:59 a.m. on July 2, 2001, BNY was served with an additional process of maritime attachment on behalf of Winter Storm. BNY continued to hold these funds, now in obedience to the process. Had BNY not taken the earlier action of placing a stop order on any TPI funds that might pass through the bank, then “[i]n the ordinary course of business, The Bank would have executed the payment order well prior to the next service of process, which occurred at 10:59 a.m. on July 2, 2001.” Rosenfield affidavit, A-35.

In these circumstances, TPI moved in the district court to vacate the attachment of the funds held by BNY in the suspense account. Winter Storm opposed TPI’s motion. The district court granted TPI’s motion to vacate the attachment and, since the attachment formed the sole basis for jurisdiction quasi in rem over TPI, dismissed Winter Storm’s complaint for lack of jurisdiction. Judge Scheindlin held that an EFT intercepted at an intermediary bank is not “property” that can be attached under Admiralty Rule B.

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310 F.3d 263, 2002 WL 31478850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/winter-storm-shipping-ltd-v-tpi-ca2-2002.