India S.S. Co. v. Kobil Petroleum Ltd., No. 09-4564 (2d Cir. 2010)

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09-4564-cv India S.S. Co. v. Kobil Petroleum Ltd. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2009 (Argued: July 14, 2010 Decided: September 16, 2010) Docket No. 09-4564-cv - - - - - - - - - - - - - - - - - - - - -x INDIA STEAMSHIP COMPANY LIMITED, Plaintiff-Appellant, - v.KOBIL PETROLEUM LIMITED, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - -x Before: JACOBS, Chief Judge, WESLEY and CHIN, Circuit Judges. Plaintiff appeals from an October 20, 2009 order of the 30 United States District Court for the Southern District of 31 New York (Berman, J.), vacating a Supplemental Rule for 32 Admiralty or Maritime Claims and Asset Forfeiture Actions B 33 attachment in light of Shipping Corp. of India v. Jaldhi 34 Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009) . 35 AFFIRMED. JEREMY J.O. HARWOOD, of counsel, 1 2 3 4 5 6 7 8 9 Blank Rome LLP, New York, NY, for Plaintiff-Appellant. FRANCIS H. McNAMARA, of counsel, Cardillo & Corbett, New York, NY, for Defendants-Appellees. PER CURIAM: In anticipation of arbitration, plaintiff India 10 Steamship Company Limited ( ISC ) attached $1,653,168 11 belonging to defendant Kobil Petroleum Limited ( Kobil ), 12 pursuant to Rule B of the Supplemental Rules for Admiralty 13 or Maritime Claims and Asset Forfeiture Actions ( Rule B ), 14 as the funds passed briefly through New York en route from 15 one foreign Kobil account to another. 16 general appearance, and the attached funds were transferred 17 by consent order to the Southern District Clerk. 18 this Court s decision in Shipping Corp. of India v. Jaldhi 19 Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009), the United 20 States District Court for the Southern District of New York 21 (Berman, J.) ordered the funds released to Kobil. 22 appeals the release order. 23 Kobil s general appearance nor its consent to the funds 24 transfer waived objection to the attachment. Kobil entered a Following ISC We affirm, holding that neither 2 1 ISC also argues that Jaldhi does not apply because the 2 intercepted electronic funds transfers ( EFTs ) passed 3 between accounts held by the same party. 4 foreclosed by Scanscot Shipping Servs. GmbH v. Metales 5 Tracomex LTDA, No. 09-5280-cv, 2010 WL 3169304, at *2 (2d 6 Cir. Aug. 12, 2010) (per curiam). 7 v. Descatrade SA, No. 09-5329-cv, 2010 WL 3447882, at *3 (2d 8 Cir. Sept. 3, 2010). That argument is See Allied Maritime, Inc. 9 10 I 11 In 2005, the motor tanker Ratna Shalini was damaged 12 while in port in Mombasa. 13 ISC, an Indian corporation, to Kobil, a Kenyan corporation; 14 and ISC initiated arbitration in London to recover its 15 losses, estimated at $1,653,168 . 16 The tanker had been leased by As security against an arbitration judgment, ISC 17 obtained an order from the district court on February 8, 18 2008, attaching Kobil s property in the Southern District of 19 New York pursuant to Rule B. 20 $1,653,168 in the hands of New York intermediary banks while 21 the funds were in transit between Kobil accounts pursuant to ISC thereafter attached 3 1 an electronic funds transfer.1 2 appearance, and consented to the funds transfer to an 3 interest-bearing account in the Southern District s 4 registry. 5 Kobil entered a general Following this Court s decision in Jaldhi, the district 6 court on October 20, 2009 ordered the attached funds 7 released. This appeal timely followed. 8 II 9 10 ISC argues that Kobil waived objection to the 11 attachment [1] by entering a general appearance and, 12 alternatively, [2] by consenting to the funds transfer. 13 Neither argument is persuasive. 14 Kobil concedes that its general appearance conferred on 15 the district court jurisdiction that is general and in 16 personam. 17 over its person, asserted broadly. 18 not waive Kobil s objection to the attachment order or 19 render the order valid. 20 provided the basis for jurisdiction over Kobil at the Kobil therefore waived objection to jurisdiction But the appearance did This is so even though attachment 1 For an explanation of electronic funds transfers, see generally Jaldhi, 585 F.3d at 60 n.1. 4 1 outset. Jurisdiction over a person is conceptually distinct 2 from jurisdiction over the person s property--though (as in 3 the case of quasi in rem jurisdiction) the issues sometimes 4 overlap. 5 over the property in question and the remedial authority to 6 order attachment, regardless of the court s jurisdiction in 7 personam over the property owner. 8 v. First Nat l City Bank, 321 F.2d 14, 18-19 (2d Cir. 1963) 9 (observing that statutorily authorized tax lien can be To attach property, a court will have jurisdiction See, e.g., United States 10 enforced only against property within the jurisdiction of 11 the court), aff d per curiam on reh g in banc, 325 F.2d 1020 12 (2d Cir. 1964), rev d on other grounds, 379 U.S. 378 (1965); 13 Restatement (Second) of Judgments § 8 & cmt.a ( [Attachment 14 jurisdiction] is based on the fact that the property is 15 within the territorial limits of the state in which the 16 court is located. ). 17 therefore is not settled by a court s attainment of in 18 personam jurisdiction over the property owner. 19 one does not imply or effect consent to the other. 20 The validity of an attachment order Consent to Kobil consented to the funds transfer to the Southern 21 District registry so that the funds would accrue interest 22 during the pendency of this action. 5 Its consent did not 1 purport to waive objection to the attachment, nor should it 2 effect forfeiture of objection by operation of law. 3 Cricket S.S. Co. v. Parry, 263 F. 523 (2d Cir. 1920) 4 (holding that a defendant who releas[es] his property from 5 an illegal attachment [by posting a bond] does not waive a 6 good objection to jurisdiction over his person, if it be 7 reserved ). 8 attachment and protecting the value of the attached assets. 9 10 11 Cf. A party need not choose between challenging an * * * For the foregoing reasons, we affirm the district court s October 20, 2009 release order. 6

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