Shipping Company Wants Maritime Attachment

The Norfolk U.S. District Court denies defendant freight company’s motion to dismiss plaintiff shipping company’s action to enforce an arbitration award previously confirmed by a New York federal court, which would allow plaintiff to seek maritime attachment of the M/V Cape Viewer.

Plaintiff Glory Wealth Shipping PTE won an arbitration award against defendant Industrial Carriers Inc. in England, and asked a New York federal court to confirm the English award. The  New York court entered default judgment against defendant ICI on May 12, 2014. Defendant Freight Bulk PTE (FBP) contends this court does not have jurisdiction over Glory Wealth’s Claim because Glory Wealth missed the three-year statute of limitations to confirm its foreign arbitration award. Under FBP’s analysis, Glory Wealth’s arbitration award is unenforceable under the statute of limitations and therefore cannot serve as the basis for Glory Wealth’s maritime attachment of the M/V Cape Viewer.

FBP’s argument collides with the default judgment Glory Wealth won against ICI in the New York federal court. That court confirmed Glory Wealth’s arbitration award, albeit by default. FBP therefore actually asks the court to query the facts underlying the default judgment of the New York court, determine that the statute of limitations was neither met nor tolled, vacate that court’s entry of default judgment based on Glory Wealth’s failure to meet the statute of limitations, and dismiss Glory Wealth from the instant case because without the default judgment it has no jurisdictional basis for an admiralty attachment. As the thrust of FBP’s motion and its invocation of Rule 60(b)(4) in its reply make clear, FBP’s argument boils down to a Rule 60(b)(4) motion. The court will not grant the motion because the Eastern District of Virginia is not the proper venue for, nor is FBP the proper party to make such a motion under the circumstances. Parties alone may bring jurisdictional challenges in a separate tribunal to a rendered judgment.

FBP therefore is asking this court to permit it, a nonparty, to attack a default judgment rendered against ICI in a separate tribunal. There seems to be no precedent for the exception FBP seeks – a Rule 60(b) motion by a nonparty in a tribunal other than the rendering court on jurisdictional grounds. The court will not create one. To the extent that FBP, as a nonparty, brings claims under the Rule 60(b)(4) exceptions outlined above, FBP must do so in the New York federal court, not this court. Rule 60(b) does not contemplate nonparty attacks of rendered judgments in separate tribunals.

If FBP is making a 12(b)(6) motion, it is procedurally barred. The three-year statute of limitations FBP would have the court apply was available to FBP as  defense when it filed its earlier motions to vacate and dismiss Glory Wealth’s amended complaint.

The court denies FBP’s motion to dismiss.

Flame S.A. v. Industrial Carriers Inc. (Doumar) No. 2:13cv658, July 17, 2014; USDC at Norfolk, Va.; Stephen M. Stancliff, Michelle T. Hess for plaintiffs; Patrick M. Brogan for defendants. VLW 014-3-356, 7 pp.