Filed: Apr. 25, 2000
Latest Update: Feb. 21, 2020
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT APR 25 2000 THOMAS K. KAHN No. 98-6223 CLERK _ D. C. Docket No. 98-00070-CV-P-C VENUS LINES AGENCY, Plaintiff-Appellant, versus CVG INDUSTRIA VENEZOLANA DE ALUMINIO, C.A., Defendant-Appellee. **** _ No. 98-6562 _ D. C. Docket No. 98-00070-CV-P-C VENUS LINES AGENCY, Plaintiff-Appellee, versus CVG INDUSTRIA VENEZOLANA DE ALUMINIO, C.A., Defendant-Appellant. _ Appeals from the Uni
Summary: PUBLISH IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT APR 25 2000 THOMAS K. KAHN No. 98-6223 CLERK _ D. C. Docket No. 98-00070-CV-P-C VENUS LINES AGENCY, Plaintiff-Appellant, versus CVG INDUSTRIA VENEZOLANA DE ALUMINIO, C.A., Defendant-Appellee. **** _ No. 98-6562 _ D. C. Docket No. 98-00070-CV-P-C VENUS LINES AGENCY, Plaintiff-Appellee, versus CVG INDUSTRIA VENEZOLANA DE ALUMINIO, C.A., Defendant-Appellant. _ Appeals from the Unit..
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PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 25 2000
THOMAS K. KAHN
No. 98-6223 CLERK
________________________
D. C. Docket No. 98-00070-CV-P-C
VENUS LINES AGENCY,
Plaintiff-Appellant,
versus
CVG INDUSTRIA VENEZOLANA DE ALUMINIO, C.A.,
Defendant-Appellee.
****
________________________
No. 98-6562
________________________
D. C. Docket No. 98-00070-CV-P-C
VENUS LINES AGENCY,
Plaintiff-Appellee,
versus
CVG INDUSTRIA VENEZOLANA DE ALUMINIO, C.A.,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Alabama
_________________________
(April 25, 2000)
Before BLACK and WILSON, Circuit Judges, and RONEY, Senior Circuit Judge.
PER CURIAM:
These consolidated appeals arise from a United States steamship cargo
company’s attachment of cargo belonging to a Venezuelan corporation to secure any
award the cargo company might receive in pending arbitration proceedings. The
district court vacated the attachment previously entered by a magistrate judge, on the
ground that the property was immune from attachment under the Foreign Sovereign
Immunities Act, 28 U.S.C. §§ 1602-1611 (the “FSIA”). On this issue, we reverse and
remand. We affirm, however, the district court’s order granting a stay and providing
for a release bond.
In February 1995, Venus Lines Agency (“Venus Lines”), a shipping company,
contracted with CVG Industria Venezolana de Aluminio, C.A. (“Venalum”), a
corporation that produces aluminum products, for Venus Lines to deliver Venalum’s
monthly shipments of aluminum products from Venezuela to Mobile, Alabama and
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Veracruz, Mexico. In late 1996, Venus Lines commenced arbitration against
Venalum, claiming that Venalum owed it more than $4,000,000 for a number of
charges due under the contract.
In early January 1998, Venus Lines’ vessel arrived in Mobile, Alabama and
offloaded the aluminum intended for delivery to Venalum’s customers there (the
“Mobile cargo”). Rather than proceeding to Veracruz, Mexico, the delivery point for
the remaining aluminum (the “Mexico cargo”), Venus Lines filed a motion for a writ
of foreign attachment pursuant to Rule B of the Supplemental Rules for Certain
Admiralty and Maritime Claims of the Federal Rules of Civil Procedure seeking
attachment of the Mexico cargo.
A magistrate judge issued the writ of attachment. Venalum filed a motion to
vacate the attachment, which was granted by the district court on March 4, 1998.
Thereafter, pursuant to motions by Venus Lines and Venalum, the court issued a series
of orders providing for a stay of execution of the March 4 judgment pending appeal
and the posting of bonds by Venalum and Venus Lines in the amounts of $4,200,000
and $286,000, respectively.
In appeal no. 98-6562, Venus Lines appeals the district court’s March 4 order
vacating the writ of foreign attachment. In appeal no. 98-6223, Venalum contests the
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district court’s order granting a stay and requiring Venalum to post bond. We address
Venus Lines’ appeal first.
I. Writ of foreign attachment (Appeal No. 98-6562)
The FSIA grants immunity to a foreign state’s property in the United States
from attachment, arrest and execution except as provided in specific provisions of the
Act. See 28 U.S.C. § 1609, which states in pertinent part:
[T]he property in the United States of a foreign state shall be immune
from attachment, arrest and execution except as provided in sections
1610 and 1611 of this chapter.
The issue is whether the exception to immunity in section 1610(d) regarding
prejudgment attachment applies in this case. Section 1610(d) states:
The property of a foreign state ... used for a commercial activity in the
United States, shall not be immune from attachment prior to entry of
judgment in any action brought in a court of the United States ... if --
(1)The foreign state has explicitly waived its immunity from
attachment prior to judgment ..., and
(2) The purpose of the attachment is to secure satisfaction of a
judgment that has been or may ultimately be entered against the
foreign state, and not to obtain jurisdiction.
28 U.S.C. § 1610(d). The parties do not dispute that Venalum is considered a “foreign
state” under the FSIA, because it is majority-owned by an agency or instrumentality
of the Venezuelan government. See 28 U.S.C. § 1603(a). Therefore, the exception
will apply if (i) Venalum explicitly waived its immunity from prejudgment
attachment; (ii) the purpose of the attachment was to obtain security, not jurisdiction;
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and (iii) the attached aluminum was used for a commercial activity in the United
States. See § 1610(d). The district court’s conclusion as to whether Venalum enjoys
sovereign immunity under the FSIA is a question of law we review de novo. See
Aquamar, S.A. v. Del Monte Fresh Produce, 179 F.3d 1279,1289-90 (11th Cir. 1999).
A. Whether Venalum explicitly waived its immunity from prejudgment
attachment.
A waiver of immunity from prejudgment attachment must be explicit. See 28
U.S.C. § 1610(d)(1). To determine whether Venalum explicitly waived immunity, we
look to the pertinent language of the contract of affreightment, which states:
CLAUSE O8 – ATTACHMENT
THE SHIPOWNERS [Venus Lines] shall have the right to attach the
cargo for the payment of the freight, dead freight, demurrages and losses
due to detention. THE CHARTERERS [Venalum] shall be responsible
for the dead freight and demurrages which may have been caused at the
port of lading.
THE CHARTERERS shall also be responsible for the demurrages which
may have been caused at the port of discharge or unloading.
The issue is whether the clear reference to Venus Lines’ right to “attach” the
cargo is a sufficiently explicit waiver of immunity from prejudgment attachment.
(Though the original contract was in Spanish, the parties agree that the word
“embarger” is properly translated as attachment). Although no court has addressed
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this precise issue, the Second Circuit has rejected the contention that the words
“prejudgment attachment” must be recited to effect a waiver. See Libra Bank, Ltd. v.
Banco Nacional de Costa Rica, S.A., 676 F.2d 47, 49-50 (2d Cir. 1982). In Libra
Bank, the defendant issued four promissory notes, each “irrevocably and
unconditionally waiv[ing] any right or immunity from legal proceedings including suit
judgment and execution on grounds of sovereignty.” Libra
Bank, 676 F.2d at 49. The
requirement of an “explicit” waiver, the court held, was intended by Congress to
preclude only an “unintended waiver.” Therefore, the language “any . . . immunity
from legal proceedings” constituted an explicit waiver of immunity under section
1610(d)(1) because, although the words “prejudgment attachment” were not explicitly
mentioned, the language demonstrated a “clear and unambiguous intent to waive all
claims of immunity in all legal proceedings.” Libra
Bank, 676 F.2d at 49.
Similarly, the use of the term “attachment” in this case evinces the parties’
“clear and unambiguous intent” to waive immunity from prejudgment attachment.
Libra Bank, 676 F.2d at 49. Under a common sense reading, prejudgment attachment
is wholly encompassed by the broader term “attachment.” A simple reference to
“attachment,” therefore, explicitly covers both prejudgment and postjudgment
attachment. There is no reason to believe that Venalum’s waiver of prejudgment
attachment was “unintended.”
Libra, 676 F.2d at 50. We determine that the district
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court erred in holding that Venalum did not explicitly waive its immunity from
prejudgment attachment.
Because the district court decided the case based on this issue, the court did not
reach the other two prongs of section 1610(d). We address each prong in turn.
B. Whether the cargo was attached to obtain security.
Under section 1610(d), the “purpose” of the prejudgment attachment must be
to “secure satisfaction of a judgment . . . and not to obtain jurisdiction.” Venalum
argues that the attachment violates this requirement of section 1610(d) because, under
Rule B, it confers on the district court jurisdiction over Venalum through its property.
See Nehring v. Steamship M/V Point Vail, 901 F.2d 1044,1051 (11th Cir. 1990)(Rule
B “cannot be used purely for the purpose of obtaining security: ‘The two purposes
may not be separated, however, for security cannot be obtained except as an adjunct
to obtaining jurisdiction.’”), quoting Seawind Compania, S.A. v. Crescent Line, Inc.,
320 F.2d 580,582 (2d Cir. 1963). Venalum misreads section 1610(d): so long as the
purpose of the prejudgment attachment is to obtain security and not jurisdiction, it is
irrelevant that an effect of the attachment is to obtain jurisdiction. Compare Mangattu
v. M/V IBN HAYYAN, 35 F.3d 205,209(5th Cir. 1994)(Rule B attachment improper
under section 1610(d) where “[t]he Motion for Issuance of Warrant of Arrest filed by
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Appellants specifically sought to attach the vessel in order to subject UASC, a non-
resident defendant, to personal jurisdiction.”).
It is clear that the purpose of the attachment was to obtain security. Venus
Lines’ complaint expressly states that it “seeks to attach property of Defendant within
the district to secure any arbitration award that [Venus Lines] might obtain.”
Furthermore, Venus Lines had no incentive to seek attachment merely to obtain
jurisdiction. Jurisdiction over Venalum in the underlying action is not in dispute
because in the contract of affreightment, Venalum consented to jurisdiction in a New
York arbitration, which was in progress at the time of this appeal.
Because the purpose of the attachment was to obtain security, not jurisdiction,
this condition for waiver of immunity under section 1610(d) was satisfied.
C. Whether Venalum’s property was “used for a commercial activity
in the United States.”
To satisfy the immunity exception under section 1610(d), the property must be
“used for a commercial activity in the United States.” The only property subject to
the disputed attachment was the Mexico cargo, which remained on Venus Lines’ ship
docked in Mobile Bay awaiting its delivery by Venus Lines to Veracruz, Mexico. The
mere presence of the property in the United States, however, is not enough to satisfy
this condition for a waiver of sovereign immunity.
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Venus Lines contends that there was in fact a commercial use of the property
in the United States. According to the affidavit of Venus Lines’ president, Michael
Kobiakov, Venus Lines released the Mobile cargo only after Venalum agreed to allow
Venus Lines to attach the Mexico cargo in its place. In effect, Venus claims that the
Mexico cargo was used for the commercial activity of facilitating Venalum’s sale of
the Mobile cargo. If true, the Mexico cargo would indeed have been “used for a
commercial activity in the United States.” In a counter-affidavit, however, Venalum’s
vice-president and legal counsel, Gustavo N. Rondon Fragachan, denies that such an
agreement was reached. The determination whether the commercial activity prong has
been satisfied and the answer to the ultimate question whether Venalum’s property is
entitled to immunity under the FSIA are contingent upon resolution of this disputed
issue. Accordingly, we remand this issue of fact to the district court.
II. Bond and Stay (Appeal No. 98-6223)1
Pursuant to Rule 62(d) of the Federal Rules of Civil Procedure, the district court
ordered the execution of its judgment stayed upon the posting of a supersedeas bond
1
The court sua sponte raised the question whether it had jurisdiction over Venalum’s appeal.
Having reviewed the parties’ briefs, the court is satisfied that Venalum adequately identified the
orders from which it appeals in its notice of appeal, and the appeal is properly brought under the
collateral order doctrine. See Swift & Co. Packers v. Compania Colombiana del Caribe, S.A., 339
U.S. 684,688-89 (1950)(28 U.S.C. § 1291 did not bar jurisdiction over appeal from order dissolving
attachment: “Appellate review of the order dissolving the attachment at a later date would be an
empty rite after the vessel had been released and the restoration of the attachment only theoretically
possible.”).
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by Venus Lines in the amount of $286,000 and ordered Venalum to post a bond in the
amount of $4,200,000. Venalum challenges both the imposition of the stay pending
appeal and the order requiring it to post bond.
A. Stay
Rule 62(d) states:
(d) Stay Upon Appeal. When an appeal is taken the
appellant by giving a supersedeas bond may obtain a stay
subject to the exceptions contained in subdivision (a) of the
rule. The bond may be given at or after the time of filing
the notice of appeal or of procuring the order allowing the
appeal, as the case may be. The stay is effective when the
supersedeas bond is approved by the court.
In the case of a non-money judgment, whether a stay is warranted under Rule
62(d) depends upon:
(1) whether the stay applicant has made a strong showing that [it] is likely to
succeed on the merits; (2) whether the applicant will be irreparably injured
absent a stay; (3) whether the issuance of a stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest lies.
United States v. United States Fishing Vessel MAYLIN, 130 F.R.D. 684,686 (S.D. Fla.
1990), quoting Hilton v. Braunskill, 481 U.S.770,776 (1987).
Although Venalum correctly observes that the district court did not quote the
four-factor test in its opinion, the court did conduct a comparable inquiry in which it
assessed the equities of imposing a stay. We find no error in the court’s ordering of
a stay under Rule 62(d).
B. Bond
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Venalum also argues that the court was without authority to require Venalum
to post a bond to gain the release of the Mexico cargo. While the bond imposed on
Venus Lines falls squarely within Rule 62(d), we agree that the district court erred in
analyzing the bond required of Venalum as a “supersedeas bond” under that rule. By
its plain language, Rule 62(d) only applies to appeal bonds, not to a release bond used
as a substitute for attached property. Nevertheless, we affirm the district court’s
decision on other grounds. See Watkins v. Bowden, 105 F.3d 1344, 1354 n.17 (11th
Cir. 1997) (appellate court may affirm district court on any ground, even one not
considered).
The court’s action was authorized by Rule (E)(5)(a) of the Supplemental Rules
for Certain Admiralty and Maritime Claims, which provides in pertinent part that
“whenever process of maritime attachment and garnishment . . . is issued the
execution of such process shall be stayed, or the property released, on the giving of
security, to be approved by the court or clerk.” Arguably, this provision is
inapplicable because it only applies by its terms where “process of maritime
attachment and garnishment . . . is issued.” In this case, the district court vacated,
rather than issued, the attachment. Nevertheless, we conclude that Rule (E)(5)(a)
applies because the district court stayed its vacation of the writ of attachment,
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meaning that the “process of maritime attachment and garnishment . . . issued” by the
magistrate judge remained in effect.
Venalum argues the district court exceeded its authority under Rule E(5) by
compelling Venalum to post bond, relying on Seguros Banvanez, S.A. v. S/S Oliver
Drescher, 761 F.2d 855, (2d Cir. 1985), which is factually inapposite. In Seguros,
the party that had to furnish the bond was not the shipowner, but the charterer. The
Seguros court was concerned about making the charterer pay security when it did not
get the quid pro quo of the release of the ship:
[a] shipowner is not compelled to furnish a bond to the person
who has arrested its ship. Its quid pro quo for voluntarily furnishing
security is the release of its ship. Depriving [the charterer] of its
property by compelling it to furnish a bond to [the owner] without any
similar quid pro quo, without any valid prior finding as to the parties’
respective rights, and without any provision for protection of [the
charterer’s] interests and expenses, smacks of a violation of due process.
See Seguros, 761 F.2d at 863-64.
In this case, it was not the ship, but the cargo that was attached. When Venalum
posted bond, it got its quid pro quo -- the release of the Mexico cargo. Because the
terms of Rule E(5)(a) were met, the district court was authorized to require Venalum
to post bond to gain the release of the Mexico cargo pending appeal.
III. Conclusion
Appeal no. 98-6223: We AFFIRM the district court’s orders granting a stay
and requiring Venalum to post a bond for release of the Mexico cargo.
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Appeal no. 98-6562: We REVERSE the district court’s order vacating the
writ of foreign attachment and REMAND for further proceedings consistent with this
opinion.
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