Opinion
03 Civ. 5265 (LAK)
May 7, 2004
ORDER
This is an action in admiralty to recover $41,596, the alleged balance owed for marine fuel delivered to the M/V ROJAREK NAREE at the order of defendant Ocean Navigation (Hellas) ("Hellas"), which allegedly was the charterer of the vessel. Hellas evidently has disappeared, and plaintiff claims not to have been paid. It brought this action against Hellas and defendant Ocean Navigation of Monrovia, S.A. ("Monrovia"), the latter on the theory that it was a partner of Hellas and is jointly and severally responsible for its debts.
Upon Plaintiff's motion, the Court issued an order of maritime attachment directed to Nordea Bank of Finland, plc ("Nordea"). Plaintiff moves for summary judgment. Hellas has not responded, Monrovia opposes the motion and cross-moves to vacate the order of attachment.
Summary Judgment
It is undisputed that Hellas owes plaintiff the $41,596. Accordingly, Plaintiff's motion, insofar as it is addressed to Hellas, is granted.
The sole basis of the Plaintiff's motion against Monrovia is that Hellas and Monrovia operated the "Ocean Navigation" business as partners. Monrovia nevertheless devotes most of its opposing papers to a discussion of its contention that plaintiff has not made a case for piercing the corporate veil, which is not the issue in the first place. Nonetheless, it is quite evident that plaintiff has not carried its burden of demonstrating the absence of any genuine issue of material fact with respect to its partnership claim. Assuming arguendo that New York law applies, it has not demonstrated the absence of a genuine issue as to whether any understanding between Monrovia and Hellas included provision for sharing not only profits, but losses. Regardless of whether the absence of such an understanding is fatal to a claim that they were partners, or merely strong evidence that they were not, this forecloses summary judgment under New York law. And even if Texas law controls and is to the effect contended by plaintiff, it cannot be said that there are no genuine and material factual issues. Accordingly, plaintiff is not entitled to summary judgment against Monrovia.
The Attachment
Supplemental Admiralty Rule E(4)(f) places the burden of justifying the order of maritime attachment on plaintiff. Beyond invoking this principle, however, Monrovia has not suggested any reason for vacating the attachment.
An order of maritime attachment is available where the plaintiff has an in personam claim against the defendant that is cognizable in admiralty, the defendant cannot be found in the district, property of the defendant can be found in the district, and there is no statutory or general maritime law prohibition to the attachment. 2 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 21-2, at 470 (2d ed. 1994). It is undisputed that Monrovia cannot be found in the district and that there is no prohibition of attachment in this case. The verified complaint alleges that defendants have accounts at Nordea, and this has not been contested here. So if Monrovia has any serious objection to the attachment, it must be on the theory that the plaintiff has no in personam claim against it.
Quite plainly, plaintiff has an in personam claim against Monrovia that is cognizable in admiralty. It asserts that Monrovia is jointly and severally liable as a partner of Hellas for maritime fuel supplied to a vessel chartered by Hellas as part of the alleged partnership business. So Monrovia's motion can be understood only as a variation on its theme that it in fact was not a partner of Hellas.
If that is really Monrovia's position, it is at liberty to move for summary judgment dismissing the complaint. On the evidence now before the Court, however, it appears that the question whether these two entities were partners presents triable issues of fact.
Conclusion
For the foregoing reasons, Plaintiff's motion for summary judgment is granted to the extent that plaintiff shall have judgment against Ocean Navigation (Hellas) in the amount of $41,596 together with maritime prejudgment interest on that amount from December 6, 2002 to the date of entry of judgment. Plaintiff's motion is denied in all other respects. Monrovia's cross-motion to vacate the order of maritime attachment is denied.
SO ORDERED.