CLIPPER ULTRA HANDYMAX POOL v. T.W. SHIPPING PTE

Full title: CLIPPER ULTRA HANDYMAX POOL, LLC, Plaintiff, v. TRUSTWORTH SHIPPING PTE…

Court: United States District Court, S.D. New York

Date published: Dec 18, 2009

08 Civ. 9395 (JGK) (S.D.N.Y. Dec. 18, 2009)

Opinion

08 Civ. 9395 (JGK).

December 18, 2009

MEMORANDUM OPINION AND ORDER

JOHN KOELTL, District Judge

In response to the Court's Order to Show Cause why the maritime attachment in this case should not be vacated and the case dismissed without prejudice pursuant to Shipping Corp. of India v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009), and Hawknet, Ltd. v. Overseas Shipping Agencies, 587 F.3d 127 (2d Cir. 2009), the plaintiff argues that the funds attached in this case were not in the hands of an intermediary bank. The plaintiff argues that Jaldhi and Hawknet do not apply because the funds originated at HSBC Bank Hong Kong, presumably an affiliate of HSBC Bank USA, the bank that attached the funds when they passed through this District.

The fact that the intermediary bank restraining the funds may be a branch of the defendant's depository bank from which the funds were sent does not mean the funds can be attached. See Allied Mar. Inc. v. Descatrade SA, No. 09 Civ. 3684 (S.D.N.Y. Dec. 16, 2009) (finding that under separate entity rule, defendant's funds may only be attached "at the branch where the account exists"); World Fuel Servs. Singapore Pte Ltd. v. PT SMOE Indonesia, No. 09 Civ. 6300, 09 WL 4016620, at *1 (S.D.N.Y. Nov. 16, 2009). Without the EFT passing through a bank in this District, there would have been no claim of attachable property in this District, even under the state of the law in this Circuit before Jaldhi. Hawknet clarified that Jaldhi applies retroactively and that "an EFT of which the defendant is either an originator or a beneficiary is no longer attachable under Rule B." Hawknet, 587 F.3d at 131. The plaintiff does not assert that it successfully found funds held in a bank account of the defendant in this District, which it successfully attached.

For the reasons stated above, the attachment is vacated and any funds on deposit in the registry of the Court are to be released at the direction of the garnishee. The Clerk is directed to vacate the attachment, to dismiss the Complaint without prejudice, and to close this case.

SO ORDERED.