In re Lykes Bros. Steamship Co., Inc.
| Decision Date | 12 March 1997 |
| Docket Number | Adv. No. 97-365.,Bankruptcy No. 95-10453-8P1 |
| Citation | 207 BR 282 |
| Parties | In re LYKES BROS. STEAMSHIP CO., INC., Debtor. LYKES BROS. STEAMSHIP CO., INC., Plaintiff, v. HANSEATIC MARINE SERVICE, GmBH, Altonia Schiffahrtsgesellschaft MBH & Co. KG, and Andrea Shipping (PTH) Ltd. Singapore, Defendants. |
| Court | U.S. Bankruptcy Court — Middle District of Florida |
Russell M. Blain, Stichter, Riedel, Blain & Prosser, P.A., Tampa, FL, for Lykes Bros. Steamship Co., Inc.
Luc Keyzer, Kegels, Roosendaal, Keyzer, Straatman & Berckmans Advocaten, Antwerpen, Belgium, for Lykes Bros. Steamship Co., Inc.
Paul Steven Singerman, Stroock & Stroock & Lavan, Miami, FL, for Creditors' Committee.
Hanseatic Marine Services GmbH, Hamburg, Germany, Hanseatic Marine Services GmbH, Lubeck, Germany, Peter Dohle Schiffarts KG GmbH & Co., Hamburg, Germany, Stephane Van Moorleghem, Fransen Advocaten, Antwerpen, Belgium, for Hanseatic Marine Service GmbH.
Cynthia P. Burnette, United States Trustee's Office, Tampa, FL.
ORDER GRANTING PRELIMINARY INJUNCTION AGAINST HANSEATIC MARINE SERVICE, GmbH, ALTONIA SCHIFFAHRTSGESELLSCHAFT mbh & CO., KG, AND ANDREA SHIPPING (PTH) LTD. SINGAPORE
THIS CAUSE came on for hearing on March 12, 1997, upon the motion of the Debtor, LYKES BROS. STEAMSHIP CO., INC. ("Lykes" or "Debtor"), pursuant to Rule 65, Federal Rules of Civil Procedure, as applied to this adversary proceeding pursuant to Rule 7065, Federal Rules of Bankruptcy Procedure, seeking the entry of a preliminary injunction and incorporation of the terms of the temporary restraining order entered on March 6, 1997 by the Honorable Paul M. Glenn of this Court. Notice of the hearing to consider the issuance of a preliminary injunction was given by mail and telefacsimile transmission of this Court's temporary restraining order dated March 6, 1997. The Court, having considered the verified motion and the subsequent motion filed in this proceeding, the complaint, and the record, and having considered the evidence and proffered testimony, finds that the relief requested is appropriate and that a preliminary injunction should be issued. The reasons for the issuance of this injunction are as set forth below.
The Debtor is a major international liner shipping company and vessel-operating common carrier with roots going back to 1900. Lykes has always been headquartered in the United States, and its vessels regularly carry goods on ocean-going vessels on scheduled itineraries between ports on five continents and between ports in many foreign countries, including Belgium, Italy, and Israel among many others. Lykes has employees and agents around the globe including Antwerp, Genoa, and Haifa. Lykes employs over one thousand persons in the United States and abroad, and some thirty agents and employees in Antwerp, Belgium.
The instant bankruptcy case was filed on October 11, 1995 (the "petition date") under Chapter 11 of Title 11 of the United States Code (the "Bankruptcy Code"). Chapter 11 of the Bankruptcy Code was designed to provide a single forum to resolve disputes between a debtor and its creditors. A clear purpose of Chapter 11 is to benefit all parties, including the debtor and its creditors, by providing a breathing space to enable a debtor to reorganize. Some of the fundamental principles of Chapter 11 include the desire to maximize the value of the estate for the benefit of all creditors, to promote equal distribution among creditors, and to avoid piecemeal, preferential dismemberment of a debtor's assets. To effect this result, the Bankruptcy Code provides that: (1) an estate is created upon filing the petition pursuant to § 541 of the Bankruptcy Code, which consists of property of the debtor wherever located in the world; and (2) an automatic stay of all actions by creditors against a debtor or its property. In Chapter 11, the debtor proposes a plan of reorganization to maximize value for the general benefit of all creditors, thus avoiding a mad scramble for assets. In this case, Lykes has proposed its Plan of Reorganization, which is currently scheduled for a hearing on April 2, 1997, to consider confirmation of the plan.
Prior to the petition date, Lykes chartered a vessel known as the M/V ALTONIA from an entity known as Altonia Schiffahrtsgesellschaft mbh & Co. KG ("Altonia"), the owner of the M/V ALTONIA, under a charter agreement dated on or about April 10, 1992. The M/V ALTONIA was returned to the owner by Lykes prior to the petition date. Also prior to the petition date, Lykes chartered another vessel known as the M/V ARABELLA from an entity known as Andrea Shipping (PTH) Ltd. Singapore ("Andrea"), the owner of the M/V ARABELLA, under a charter agreement dated on or about April 10, 1992. The M/V ARABELLA was also returned to the owner by Lykes prior to the petition date.
Both Altonia and Andrea claim that Lykes owes amounts based upon pre-petition breaches of the aforementioned charters. Specifically, Altonia claims an amount approximating $130,000, and Andrea claims an amount approximating $30,000. The record of this Court reveals that, on or about January 2, 1996, Andrea filed a proof of claim in this case as claim number 289 in the amount of $36,605.23. The attorney or agent that signed Andrea's proof of claim is, as stated on the face of the claim, Peter Dohle Schiffarts KS, from Hamburg, Germany. This entity is also the agent of Altonia pursuant to Addendum No. 3 to the time charter with respect to the M/V ALTONIA.
On October 12, 1995, this Court entered its Order on Emergency Motion for Determination of Application of § 362 Stay or, in the Alternative, for Extension of Stay (the "Stay Order"). This Order was widely publicized, and was reported in West's Bankruptcy Reporter at In re Lykes Bros. Steamship Co., Inc., 191 B.R. 935 (Bkrtcy.M.D.Fla.1995).
On or about October 16, 1995, five days after Lykes had filed its Chapter 11 petition, in contravention of the automatic stay and the Stay Order, Andrea and Altonia purportedly assigned their claims against Lykes to a company known as Hanseatic Marine Service GmbH ("Hanseatic"). Hanseatic is reportedly an entity organized and existing under the laws of Germany. The Debtor asserts that its research reflects that Hanseatic appears to have been created on or about October 20, 1995 (therefore, after the assignments). In the assignment documents, the Defendants appear to have attempted to conceal the purported assignment by requiring confidentiality. The assignment documents state on their face that "particular Lykes Bros., Inc. shall at the moment not be informed about the assignment." It is not unreasonable to infer that Hanseatic was created and the claims assigned to Hanseatic to avoid the automatic stay, and to that extent, violate the automatic stay and this Court's October 12, 1995 Stay Order.
It should be noted that there are thousands of creditors in this Chapter 11 case in locations around the globe. This Court has presided over contested matters and adversary proceedings involving Mitsui Engineering & Shipping Co., Ltd. (Japan), den Norske Bank (Norway), Kreditanstalt für Wiederaufbau (Germany), Mitsubishi Heavy Industries, Ltd. (Japan), ICE (Gibraltar), Ltd. (United Kingdom), Bridgehead Container Services, Inc. (United Kingdom), and numerous other non-U.S. creditors. Until recently, no domestic or foreign creditor had openly violated either the automatic stay or the Stay Order. Thousands of creditors from Asia, Europe, South America, and around the globe have respected the jurisdiction of this Court over this case and, in bringing their disputes to this central forum, have relied upon the fact that other creditors would do likewise.
The peace was broken days ago by the Defendants in this case. On March 6, 1997 at approximately 4:00 p.m. Belgian time, Hanseatic procured the arrest of the M/V STELLA LYKES (formerly named the M/V PRESIDENT GARFIELD) in a court in Belgium in order to compel payment of the pre-petition claims purportedly assigned by Andrea and Altonia. Hanseatic moreover refused to cause the arrest of the M/V STELLA LYKES to be lifted without the posting of a bond or guaranty.
The Debtor immediately commenced this adversary proceeding seeking, among other things, the entry of a temporary restraining order and the issuance of a preliminary and permanent injunction against the Defendants. This Court, the Honorable Paul M. Glenn presiding, entered a temporary restraining order on March 6, 1997 at 7:35 p.m. Tampa, Florida, U.S.A. time. This Court scheduled a hearing, with notice to all parties, for March 12, 1997 at 8:30 a.m. to consider extension of the temporary restraining order or issuance of a preliminary injunction, and to consider further relief against the Defendants.
The March 6, 1997 Order was served on Hanseatic and the Defendants. Notably, the Debtor has filed with this Court correspondence received from Hanseatic after service of the March 6, 1997 Order in which Hanseatic seeks to compel arbitration of its claims in further violation of the automatic stay and the Stay Order.
The Court will first address its jurisdiction over the Defendants.
Whether this Court can exercise personal jurisdiction over the Defendants depends upon whether the Defendants have the requisite minimum contacts with the United States at large. Clearly, the Bankruptcy Court has personal jurisdiction of over Andrea Shipping because Andrea filed a claim. Peter Dohle Schiffarts KG ("Dohle"), its agent from Hamburg, Germany filed a claim on its behalf.
Andrea Shipping (PTH) Ltd. Singapore ("Andrea"), the owner of the M/V ARABELLA, filed an unsecured claim in the case on or about January 2, 1996. The claim was in the amount of $36,605.23, and was given claim number 289. On its face, the claim relates to the charter between Lykes and Andrea. By uniform authority of longstanding jurisprudence, Andrea...
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