DHL Project & Chartering Limited v. Newlead Holding LTD et al

Filing 24

ORDER granting 16 Motion to Vacate; denying 17 Motion to Strike. DHL shall show cause by no later than December 5, 2016 why the present case should not be dismissed for lack of jurisdiction. Signed by Judge J. Randal Hall on 11/18/2016. (thb)

IN THE UNITED

FOR THE

STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
IN ADMIRALTY

DHL

PROJECT

&

CHARTERING

*

LIMITED,

*

Plaintiff,

*
*

v.

*

NEWLEAD HOLDINGS LTD.;

*

NEWLEAD SHIPPING S.A.;

*

NEWLEAD BULKERS S.A.;
NEWLEAD CASTELLANO LTD.;

CV 416-123

*
*

GRAND VENETICO INC.;

and

*

NEWLEAD VENETICO LTD.,

*
*

Defendants.

*

ORDER

Before

Ltd.,

the

Cheyenne

Court

is

"Interested

Attachment.

(Doc. 16.)

filings

for

motion

(doc.

16)

Capital

Holdings Ltd.,

(collectively,

and

Ray

the

Inc.,

and Labroy
Parties")

Oppenheim

Capital

Shiptrade Limited's
Motion

to

Vacate

After a careful review of the parties'

reasons

below,

the

Interested

Parties'

is GRANTED.
I.

BACKGROUND

On May 25, 2016, upon the filing of Plaintiff DHL Project &
Chartering Limited's

("DHL")

verified

complaint

in the present

action,

the Court entered an order directing the issuance of

process

for

maritime

attachment

and

garnishment

of

the

M/V

Newlead

Castellano,

Through

their

present

vacate

DHL's

attachment

Supplemental Rules

IMO

No.

9686338

motion,

("Vessel").

the

Interested

pursuant

to

(Docs.

1,

2.)

seek

E(4)(f)

Rule

Parties

of

to
the

for Certain Admiralty and Maritime Claims of

the Federal Rules of Civil Procedure.

(Doc.

16.)

The pertinent

facts underlying the motion are as follows.
On

or

Shipping
use

of

13.)

about

S.A.
the

entered

shipping

27,

into
vessel

2011,

a

DHL

charter

M/V

party

Defendant

contract

Newlead Venetico.

and Grand Venetico,

Newlead

for
(Doc.

DHL's
1,

St

Defendants Newlead

Inc. were obligated to,

inter

exercise due diligence to ensure the aforementioned vessel

was seaworthy and properly maintained.
8, 2011,

Materials

Charterer")

St

(Id. St 14.)

On December

DHL sub-chartered the M/V Newlead Venetico to non-party

Zheijiang

(Id.

and

Pursuant to the charter party contract,

Shipping S.A.
alia,

October

for

15.)

a

Industry
shipment

Fuel
of

Shortly after

Group

cargo

Co.,

from

loading of

the

Ltd.

Australia

by

the

Australian

Maritime

various alleged deficiencies.
resumed on or about March 3,

(Id.

to

Safety

St 16.)

"SubChina.

Sub-Charter's

onto the M/V Newlead Venetico on January 4, 2012,

detained

(the

cargo

the vessel was

Authority

due

to

Loading eventually

2012, and the M/V Newlead Venetico

commenced her voyage to the discharge port in China on or about
March

5,

initiated

2012.

(Id.)

arbitration

DHL and the
in

Hong

Kong,

Sub-Charterer
wherein

the

subsequently
Sub-Charterer

alleges

that

it

incurred

delivery of its cargo.

has

provided

no

significant

(Id.

further

losses

SISt 18-19;

information

from

the

see also Doc.

or

evidence

delayed

1-3.)

DHL

regarding

the

status of the aforementioned Hong Kong arbitration other than an
unsubstantiated
(Doc.

21,

On

at

statement

that

it

"is

nearing

9.)

April

19,

2016,

the

Interested

Parties

otherwise-unrelated matter of Ray Capital
Newlead

093

Castellano,

(S.D.

resolution."

Ga.)

complaint with

IMO No.

(the

this

9686338,

"Ray

Court

et

Action"),

alleging a

instituted

Inc.,

al.,

by

the

et

M/V

Case

of

1.)

The

issuance

of

Court

a

warrant

subsequently
for

the

entered

maritime

orders

arrest

-

4:16-CV-

a

verified

claims

the Vessel and Defendant Newlead Castellano Ltd.1
Doc.

v.

No.

filing

number

al.

against

(Ray Action,
directing
as

well

as

issuance of process of maritime attachment and garnishment the Vessel.

(Ray Action,

On May 25,

2016,

Docs.

the

of

8, 10.)

DHL instituted the present action against

Defendant

Newlead Castellano Ltd.

Holdings

Ltd.,

1 The Interested
Action such that

the

Newlead

Shipping

Parties subsequently
they now assert the

as

well

S.A.,

as

Defendants

Newlead

Newlead

Bulkers

S.A.,

amended their complaint in the Ray
following claims: (1) a foreclosure

claim pursuant to Ray Capital's promissory note and the Maritime Lien Act and
the Ship Mortgage Act, 46 U.S.C. § 31301, et seq. ("Act") ; (2) a foreclosure
claim pursuant to the Interested Parties' preferred mortgages and the Act;
(3)

and

a foreclosure claim pursuant to Ray Capital's payment of seamen's wages;

(4)

a

breach

preferred mortgages.

of

contract

claim pursuant

(Ray Action, Doc. 18.)

to

the

Interested

Parties'

Grand Venetico Inc., and Newlead Venetico Ltd.2

(Doc. 1, fl 21-

69.)

in

The

Court

subsequently

action directing the

entered

issuance of process

and garnishment of the Vessel.3
On

Ray

July 14,

Action,

2016,

the

an

order

of maritime

entered

an

order

interlocutory admiralty sale of the Vessel.
48,

as

present

attachment

(Doc. 2.)

on the Interested Parties'

Court

the

motion in the

directing

the

(Ray Action,

Doc.

subsequently amended in part by the Court's Order dated

August 4,

2016,

on August 8,

Doc.

2016,

65.)

The Vessel was sold to a third party

and the Court entered an order confirming the

sale on August 16, 2016.4

(Ray Action, Docs. 65, 75.)

2 DHL's complaint in this case alleges: (1) a breach of contract claim against
Newlead Shipping S.A., Newlead Bulkers S.A., and Grand Venetico Inc.; and (2)
an alter ego claim against Newlead Holdings Ltd. for its control of Newlead
Shipping S.A., Newlead Bulkers S.A., Defendant Newlead Castellano Limited,
Grand Venetico Inc., and Newlead Venetico Ltd.
(Doc. 1, II 21-69.)
Notably,
DHL

did

not

name

the

Vessel

as

a

defendant

in

this

Action,

but

sought

to

attach the Vessel pursuant to Federal Rule of Procedure, Supplemental
Admiralty Rule B as security for its claims against Defendants.
DHL states
that the underlying dispute here "is based on an indemnity claim for an
arbitration award which may be issued against DHL in Hong Kong arbitration.
Thereafter, DHL will pursue recovery against Newlead Shipping and/or Grand
Venetico Inc. in London.
[DHL] brings this action solely to obtain quasi in
rem jurisdiction over [Defendants] and security for its claims."
(Doc. 1, 1
71.)

3 Despite obtaining the Court's Order for Issuance of Process of Maritime
Attachment and Garnishment on May 25, 2016,
the

DHL did not serve this Order (or

related Process of Maritime Attachment and Garnishment)

2016.

(Doc.

14,

15 2-4.)

until August

5,

Notably, DHL has not claimed to have served the

aforementioned papers on the United States Marshal or the Defendants, but
rather has only alleged to have served them to the then-substitute custodian
for the Vessel, National Maritime Services of Fort Lauderdale, Florida.
(Id.)

4 The Vessel was sold to non-party Strategic Shipping,

Inc. for a sale price

of $7,400,000.00 USD plus the current market price of any fuel or gas oil
remaining on board the Vessel at the time of its delivery to Strategic

Shipping, Inc.
(Ray Action, Doc. 75.)
The proceeds from the sale of the
Vessel are presently deposited in the Court's registry for safe-keeping.

On

DHL

July

filed

present
denied

28,

a

2016,

motion

action.

shortly before

to

consolidate

(Doc.

DHL's motion

to

11.)

the

of

the

Action

25,

2016,

on the

consolidate

Ray

August

On

the

sale

grounds

Vessel,

with
the

that

at

3-4.)

On

intervene

in

the

Procedure

Rule

September

8,

2016,

Ray Action pursuant

24(a).

(Ray

Action,

DHL
to

filed

Federal

Doc.

80.)

a

Court

the

actions did not present common questions of law or fact.

13,

the

(Doc.

motion

Rule
On

two

of

to

Civil

October

5,

2016,

the Court denied DHL's motion to intervene on the grounds

that

DHL

had

failed

to

demonstrate

a

sufficient

interest

relating to the property or transaction which is the subject of

the Ray Action.
DHL

filed

its

(Ray Action,

Notice of

Doc.

94.)

Interlocutory Appeal

the Court's Order dated October 5, 2016.5
On

present
(Doc.

October

14,

motion

to

16.)

2016,

the

vacate

On October 19,

2016,

Rule

12(f).

(Doc.

2016,

seeking review of

(Doc. 98.)

Interested

DHL's

strike the Interested Parties'
to

On October 11,

Parties

attachment

and

filed

their

garnishment.

DHL filed a motion seeking to

present motion to vacate pursuant

17.)

On

October

28,

2016,

the

Court

ordered DHL to show cause by no later than October 31,

2016 as

to why DHL's attachment and garnishment of the Vessel

(and any

5 DHL also filed an Emergency Motion for Stay Pending Appeal seeking an order

staying

the

Ray

Action

(or

in

the

alternative

an

order

enjoining

the

distribution of the proceeds from the sale of the Vessel) during the pendency

of DHL's appeal of denial of its motion to intervene.
On November 1, 2016,
Stay Pending Appeal.

(Ray Action, Doc. 99.)

the Eleventh Circuit denied DHL's Emergency Motion for
(Ray Action, Doc. 107.)

res

substitute

October
Parties'

31,

2016,

should not

DHL

filed

Interested

its

Parties

their motion to vacate.

Parties'

be

motion

to

(Doc.

(Doc.

to

21.)

the

their

23.)

Accordingly,

DHL's

reply

attachment

20.)

On

Interested

On November 10,

filed

(Doc.

vacate

vacated.

opposition

present motion to vacate.

the

2016,

thereof)

and

in

support

of

the Interested

garnishment

is

ripe for consideration.
II.

DISCUSSION

Supplemental Admiralty Rule B governs the process by which

a party may attach another party's assets in admiralty.6
Stoli Shipping Ltd.
(2d Cir.
India

2006),

Ltd.

2009) .

v.

v. Gardner Smith Pty Ltd.,

Aqua

460 F.3d 434,

438

overruled on other grounds by Shipping Corp.
Jaldhi

Overseas

Pte

Ltd.,

585

F.3d

58

(2d

"If a defendant is not found within the district,

of

Cir.

. . .

a verified complaint may contain a prayer for process to attach
the

defendant's

the

amount

process

tangible

or

for—in

the

sued

....

The

intangible

hands

court

of

must

personal

garnishees

review

the

property-up

named

to

in

the

complaint

and

affidavit and, if the conditions of this Rule B appear to exist,
enter an order so stating and authorizing process of attachment

and garnishment."

Fed. R. Civ. P. Supp. Rule B(l).

"To begin the

process, a plaintiff must file a verified complaint praying for
6 The historical

purposes

of maritime

attachment

have been:

(a)

to gain

jurisdiction over an absent defendant; and (b) to assure satisfaction of a
judgment.
Aqua Stoli Shipping Ltd., 460 F.3d at 437-38 (citing Swift & Co.
Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 693 (1950)).

an

attachment and an affidavit stating that,

plaintiff's

knowledge,

judicial district."
(citation

attachment,

Aqua Stoli

board

a

defendant's

If

the

Shipping Ltd.,

plaintiff's

the

plaintiff

may

vessel)

or

property

Rule B(l).

granted

any

located

defendant

The

parte,

ex

found within the

460 F.3d at 438

filings

comply

with

then

serve

on

the

United

(if the property is a vessel or tangible property
persons

within

tangible or intangible property) .
Supp.

the

the court must enter an order authorizing the

which

States Marshal
on

the defendant cannot be

omitted).

these conditions,

to the best of

via

in

the

possession

district

appropriate

(all

the

other

Id. ; see also Fed. R. Civ. P.

order of attachment may be

though

of

notice

of

service

the

is

requested and

attachment

required.

to

Aqua

the
Stoli

Shipping Ltd. , 460 F.3d at 438, see also Fed. R. Civ. P. Supp. Rules
B(2),

E(3) .

Under

Supplemental Admiralty Rule

E,

however,

"any person

claiming an interest in [arrested or attached property] shall be
entitled to a prompt hearing at which the plaintiff

required to show why the arrest
vacated

or other

Fed.

Civ.

R.

P.

or attachment

relief granted consistent
Supp.

Rule

E(4)(f);

see

("Whenever there is an arrest in rem,

attached,

with

also

shall be

should not be
these

LAdR

rules."

9(d),

SDGa

or whenever property is

the party arrested or any person having a right to

intervene in respect of the thing attached,

may,

upon evidence

showing

any

improper

practice

the part of the libellant,
libellant

to

show

cause

to

resolve

parties,

but

only

to

a manifest

want

of

equity

on

be entitled to an order requiring the

instanter why

should not be vacated.").
intended

or

the

arrest

or

attachment

This post-attachment hearing "is not

definitively

make

a

the

dispute

preliminary

between

determination

there were reasonable grounds for issuing the

the

whether

[attachment],

and

if so, to fix an appropriate bond" and the scope of this hearing
"is

left

Atl.

to

Sun,

the

of

F.2d

881

discretion

79-80

73,

the

district

(3d

court."

Cir.

Salazar

1989)

v.

("Generally

speaking, an exhaustive adversarial hearing is not necessary for
resolution

of

[whether

the attachment].

informal

Thus,

proceeding,

reasonable

grounds

existed

for

issuing

in many instances we would expect that an

perhaps

before the district court,

in

the

nature

of

a

conference

supplemented by affidavits and legal

memoranda as directed by the court might be sufficient.").

The party having obtained the maritime attachment bears the
burden

of

showing

that

the

attachment

Fed. R. Civ. P. Supp. Rule E(4)(f);

Eagle Exp.,
To do so,
evidence

2012 WL 3068791,

should

not

LAdR 9(d), SDGa;

James v.

M/V

2012).

the plaintiff must prove by a preponderance

of the

the

"reasonable grounds."

arrest

or

James,

Ala.

vacated.

July 27,

that

at *3 (S.D.

be

attachment

was

2012 WL 3068791,

supported

at

*3.

by

This

requires the party who obtained the attachment to demonstrate:
8

(1)

it

has

defendant;

a

valid

(2)

prima

that

the

facie

admiralty

defendant

cannot

claim

be

against

the

within

the

found

district;

(3)

that the defendant's property may be found in the

district;

and

(4)

that there is no statutory or maritime bar to

attachment.

Zambrano

at

Fla.

*2

Ltd. ,

(S.D.
460

F.3d

v.

Vivir

Sept.

at

20,

445).

Seguros,

2016)

In

C.A.,

(citing

whether

determining

Stoli
an

"the court's inquiry must

known

of

M/Y

the

True

time

Dream,

146

the

F.

(citing W.

F.

Supp.

Bulk Carriers

Ltd.,

762

plaintiff

Supp.

fails

to

meet

1307

its

Pty.

(S.D.

Federal

courts

also

the

AS

Fla.

v.

P.S.

1991)).

district

v.

2001)

Int'l,
If

court

the

must

(citing

460 F.3d at 445.)

has

have

Ltd.

facts

Rederi

(S.D.

Ohio

failed

to

demonstrate

facie admiralty claim against Defendants.
7

1311

attachment

on the

Dannebrog

1307,

burden,

focus

Shipping

Zambrano, 2016 WL 5076185, at *2

Aqua Stoli Shipping Ltd.,

Plaintiff

2d

(Australia),

1302,

vacate the attachment.7

Here,

attachment."

WL 5076185,

Aqua

should be vacated,
at

2016

the

discretion

to

a

valid prima

As set forth in DHL's
vacate

an

attachment

where

required by the equities.
Zambrano, 2016 WL 5076185, at *2
Gulf Operating Co. v. Con-Dive, LLC, 371 F. App'x 67, 68-70
ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 585 F.3d
2009)).
Equitable vacatur may be appropriate where: (a)

(citing McDermott
(11th Cir. 2010);
105, 113 (2d Cir.
the defendant is

subject to suit in a convenient adjacent jurisdiction;

(b)

the plaintiff

could obtain in personam jurisdiction over the defendant in the district
where the plaintiff is located; or (c) the plaintiff has already obtained
sufficient security for the potential judgment, by attachment or otherwise.
Id. (citing Aqua Stoli Shipping Ltd., 460 F.3d at 445; Williamson v. Recovery
Ltd. Pfship, 542 F.3d 43, 52 (2d Cir. 2008)).
The party seeking to vacate
the

attachment

bears

the

burden

to

establish

any

equitable

grounds

for

vacatur.
Id^ (citing Aqua Stoli Shipping Ltd., 460 F.3d at 445 n.5).
As
vacatur is appropriate based on DHL's failure to state a valid prima facie
admiralty claim, the Court has not concerned itself with determining whether
equitable vacatur would also be appropriate.

complaint,

in

rem

jurisdiction

claims."8
claims

(Id.

DHL filed the present action "solely to obtain quasi

over

Defendants

(Doc. 1, 1 71.)

against

1 21

and

security

for

DHL itself admits, however, that its

Defendants

are

(emphasis added).)

"contingent

As

indemnity

claim[s]."

DHL concedes in its complaint,

"the underlying dispute arising from the charter party
DHL and Defendant Newlead Shipping S.A.
vessel M/V Newlead Venetico]

an

arbitration

Kong

award

arbitration."

which

(Id.

its

1

[between

concerning the shipping

is based on an indemnity claim for

may

be

71

issued

(emphasis

against

DHL

added).)

in

Hong

Indeed,

DHL

states that "[u]pon a finding by the Hong Kong arbitration panel

that there was a personal want of due diligence on the part of
[Defendants]

make

the

Newlead

[M/V]

responsible,

thereafter

Newlead

and/or

Venetico

pursue

its

Venetico,

for

Newlead

to

DHL

which

[the Sub-Charterer]

against

Inc.

is

and will

Shipping

and/or

in London Arbitration for indemnity pursuant

to the time charter."

fatal

claim

Grand

seaworthy,

DHL will be liable to

Grand Venetico Inc.

8 While not

Shipping

(Id. 1 20

to its claims,

(emphasis added).)

the Court notes that

DHL willingly admits

that it does not intend to pursue direct adjudication of its claims against
Defendants in this Court.

(Doc. 1, 1 71.)

Rather,

DHL intends to pursue its

claims against Defendants in arbitration to be instituted in London, England.
(Id. ) As an aside, the Court notes that DHL has put forth no basis for how
it intends to compel Defendant Newlead Castellano Ltd., the (now-former)
owner of the Vessel, to engage in arbitration on an alter-ego claim given
that

the

aforementioned

defendant

is

not

a

named

party

containing the arbitration clause upon which DHL relies.
13;

Doc.

1-1,

at 8-9,

39.)
10

to

the

contract

(See Doc. 1, II 8,

While DHL asserts that the "Hong Kong arbitration with
Sub-Charterer]

(doc.

21,

at

has

9),

been

it

commenced"

has

and

provided no

"is

nearing

evidence

the aforementioned arbitration proceedings

of

[the

resolution"

the

status

of

other than attaching

to its present complaint a copy of the Sub-Charterer's "Defence
and Counterclaim Submission
(See Doc.

1-3;

see also Doc.

information

from

arbitration

between

this

which

DHL's

present

other

than

that

indeed

been

Hong

Kong

that

there

(Amendment)" dated August

and

claims

has

not

the

Implicit

is
been

Defendants

in

nearing
a

status
the

are

arbitration

DHL's

Moreover,

of

of

is

the

result

of

contingent,
process

statement

completion

determination

settlement in that proceeding.

the

Sub-Charterer,

against

2015.

The Court can glean no

regarding

aforementioned

initiated.

arbitration

St 19.)

document

DHL

the

1,

26,

the

has

that

the

admission

liability

or

a

while DHL has titled

its cause of action against Defendants as a "breach of contract"

claim, it has not alleged that Defendants have actually breached

their agreement with DHL.9
initiated

arbitration

Finally, while DHL alleges to have

proceedings

Defendants Newlead Shipping S.A.

in

London,

England

against

and Grand Venetico Inc.

as of

9 See Doc. 1, I 24 ("If there is a finding in the sub-charter arbitration
[between DHL and the Sub-Charterer in Hong Kong] that there was a personal

want of due diligence to make the vessel seaworthy on the part of Owners for
which DHL is responsible, Newlead Shipping, Newlead Bulkers, and Grand
Venetico

Inc.

will

have

breached their

obligations

to

DHL with

respect

to

seaworthiness and maintenance, which caused the detention of the vessel [M/V
Newlead Venetico] in Australia, the delays in the delivery of cargo, and the
losses claimed by [the Sub-Charterer]." (emphasis added)).
11

September

2,

2016

pursuant

Kingdom's Arbitration Act
initiated

after

until

importantly,

this

to

1996,
DHL

Section

14(4)

of

the

this London arbitration was not

attached

the

arbitration proceeding

Vessel

does

not

and,

(See Doc.

100,

SI 4;

more

include

party thereto the actual owner of the attached Vessel,
Newlead Castellano Ltd.

United

as

a

Defendant

see also Doc.

100-

1.)
Fatal

is not

to

DHL's

available

attachment

to

obtain

is

that

attachment

security for

under

prospective

indemnity claims.

36,

293

F.

App'x

37

(2d Cir.

2008).

This

B

contingent

Bottiglieri Pi Navigazione SPA v.

LLC,

Rule

Tradeline

is because

a

cause of action for indemnity is not ripe until there has been
either

a

determination

of

liability

settlement

that

establishes the purported indemnitor's obligation to pay.

See

Armstrong v. Alabama Power Co.,
1982)
and

(citations

omitted)

indemnification

as

or

a

667 F.2d 1385,

(dismissing claims

premature

where

there

1388
for

(11th Cir.

contribution

was

neither

a

determination of liability nor a settlement in the underlying

litigation

sought)

(citing

Const. Co.,
Pi

for

which

contribution

A/S J.

SPA,

293

indemnification

Ludwig Mowinckles Rederi v.

559 F.2d 928,

Navigazione

and

932-33 (4th Cir.
F.

App'x

at

36

was

Tidewater

1977)); Bottiglieri
(vacatur

of Rule

B

attachment on contingent indemnity claim was proper claim was

not

ripe

under

English

law

because
12

the

plaintiff

had

not

actually

made

a

Durango-Georgia

Ga.

payment
Paper

Co.,

to

the

third

2007

WL

Sept.

21,

2007)

("[A]

cause

indemnity

is

not

ripe

until

determination of

party) ;

7023837,

of

at

action

see

for

there

has

also

*7

In

(Bankr.

S.D.

contribution

been

re

either

or

a

liability or a settlement that establishes the

plaintifffs obligation to pay." (citations omitted)).
Here,

against

whether

liability

Defendants

for

damages

are

obligated

allegedly

to

indemnify

suffered

by

the

DHL

Sub-

Charterer depends in the first place upon whether DHL is found
liable to

the Sub-Charterer in the

Hong Kong arbitration.

The

claims of the Sub-Charterer against DHL - upon which Defendants'

alleged obligation to indemnify DHL rest - are still in dispute.
Further,

DHL has not alleged that the Defendants have actually

breached their agreement and, while DHL has allegedly initiated

arbitration against Defendants Newlead Shipping S.A.

and Grand

Venetico Inc. directly, it has not initiated proceedings against
the

Ltd.

actual

As

owner

such,

of

DHL's

the

Vessel,

indemnity

Defendant

claims

Newlead

against

Castellano

Defendants

are

presently unripe for adjudication, and therefore DHL has failed
to establish a prima facie admiralty claim.

Thus,

DHL was not

entitled to attach the Vessel (and any substitute res thereof)
under Rule B at the time it filed its claim.

Nevertheless,

DHL requests that - even if its claims are

deemed premature - the Court exercise its equitable discretion
13

to

uphold

the

attachment.

Second Circuit that have
such

discretion.

Cammell

(" [A]

See,

Laird Holdings

district

DHL

several

cases

suggested that district
e.g.,

U.K.,

may

court

cites

Patricia
339

in

F.3d

some

Hayes
76,

from

the

courts possess

Assocs.,

82-83

Inc.

(2d Cir.

circumstances

v.

2003)

disregard

the

prematurity of a plaintiff's claim as a matter of discretion."
(emphasis original));
339

F.2d

(2d

S.S. Alexandra,

1965)

(M[S]ome

district

judges

have

been

willing

under

certain

circumstances to ignore the prematurity of a claim.").

DHL has

in

905

Inc. v.

Cir.

sitting

901,

Greenwich Marine,

admiralty

failed, however, to cite any binding precedent from the Eleventh
Circuit that would allow this Court to ignore DHL's

failure to

carry its burden to demonstrate a valid prima facie admiralty
claim.

See Zambrano, 2016 WL 5076185, at *2 ("If the plaintiff

fails to meet

attachment."

445)).

its burden,

(citing

Moreover,

Aqua

it

contemplated in the

the district court must

is

cases

Stoli

unclear

Ltd.,

whether

cited by DHL

Circuit's decision in Aqua Stoli.
460 F.3d at 445 ("[A]

Shipping

vacate

460

the

the

F.3d at

discretion

survived the

Second

See Aqua Stoli Shipping Ltd.,

district court must vacate an attachment

if the plaintiff fails to sustain his burden of showing that he
has

satisfied the

requirements

of

Rule

B and

E."

(emphasis

added) ); see also Sonito Shipping Co. v. Sun United Mar. Ltd.,

478

F.

Supp.

2d

532,

544

(S.D.N.Y.
14

2007).

Even

if

such

equitable

discretion

does

exist,

however,

exercised under compelling circumstances."
478

F.

Supp.

2d

at

circumstances

do

not

544

(citations

exist

here,

it

"should

only

be

Sonito Shipping Co.,

omitted) .

particularly

Such
in

compelling

light

of

the

uncertain nature of DHL's claims against Defendants.
III.

Upon
Vacate

the

foregoing,

Attachment

(doc.

16)

CONCLUSION

the

Interested

is

GRANTED

Parties'

and the

the issuance of process of maritime attachment

Motion

order

and

directing

garnishment

of the Vessel granted to DHL (doc. 2) is VACATED.10
this present vacatur,

to

Based on

the Court has serious concerns regarding

its jurisdiction over the present case.

Accordingly,

show cause by no later than December 5,

2016

DHL shall

why the present

case should not be dismissed for lack of jurisdiction.

ORDER ENTERED at Augusta,
November,

Georgia,

this

/K^ day of

2016.

^L

STATES
IN

10 Because
attachment
Parties in
See Fed. R.

HAI

DISTRICT

JUDGE

DISTRICT OF GEORGIA

the Interested Parties are entitled to seek a vacatur of DHL's
of the Vessel based on the interest claimed by the Interested
the Vessel itself, DHL's Motion to Strike (doc. 17) is DENIED.
Civ. P. Supp. Rule E(4)(f); LAdR 9(d), SDGa; see also Doc. 2, at 2.
15