Sanko SS Co., Ltd. v. Newfoundland Refining Co., 76 Civ. 756.

• Citation: 411 F. Supp. 285,1976 AMC 417
• Decision Date: 04 March 1976
• Docket Number: No. 76 Civ. 756.,76 Civ. 756.
• Parties: The SANKO STEAMSHIP CO., LTD., Plaintiff, v. NEWFOUNDLAND REFINING COMPANY, LIMITED, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

411 F. Supp. 285

1976 AMC 417

The SANKO STEAMSHIP CO., LTD., Plaintiff, v. NEWFOUNDLAND REFINING COMPANY, LIMITED, et al., Defendants.

No. 76 Civ. 756.

United States District Court, S. D. New York.

March 4, 1976.

Bigham, Englar, Jones & Houston by Sheldon A. Vogel, New York City, for plaintiff.

Manning, Carey & Redmond by Richard dey Manning, John T. Redmond, New York City, for defendants.

MEMORANDUM AND ORDER

WHITMAN KNAPP, District Judge.

The plaintiff, pursuant to Admiralty Rule B(1) and F.R.C.P. 64, has invoked "the remedies provided by state law for attachment" and seeks to levy upon certain New York bank balances claimed to be owing to some or all of the defendants. The particular provision of state law which plaintiff has invoked is C.P. L.R. § 6201, which, so far as relevant, provides:

"An order of attachment may be granted in any action, . . . where the plaintiff has demanded and would be entitled, . . . to a money judgment against one or more defendants, when:

1. the defendant is a foreign corporation or not a resident or domiciliary of the state;" emphasis supplied

Plaintiff duly filed an action in this court alleging breach by defendants of a time charter party agreement. In order to avoid the pitfalls suggested in Sugar v. Curtis Circulation Co. (S.D.N.Y.1974) 383 F.Supp. 643 remanded, 44 U.S.L.W. 4416 plaintiff did not request the court to issue an attachment ex parte, but sought such relief by an appropriate Order to Show Cause.¹

Thus forewarned, the defendant countered with a motion to dismiss² the underlying action, contending that if such motion were granted there would be no "action" to provide the underpinnings of an attachment under the above-quoted statute. For reasons which follow, we believe that defendants' position is well-taken, that the action should be dismissed, and, accordingly, that there is no basis for an attachment.

DISCUSSION

The underlying action against the defendants is for breach of contract. The contract sued upon, however, contains a forum selection clause confining actions for disputes arising thereunder to the courts of England. Thus the contract provides:

"40. (a) This charter shall be construed and the relations between the parties determined in accordance with the law of England.

(b) Any dispute arising under this charter shall be decided by The English Courts to whose jurisdiction the parties agree whatever their domicile may be:

Provided that either party may elect to have the dispute referred to the arbitration of a single arbitrator in London in accordance with the provisions of the Arbitration Act, 1950, or any statutory modification of re-enactment thereof for the time being in force."

It is defendants' contention that this clause is valid and precludes the plaintiff from invoking the jurisdiction of this court and, therefore, requires that the action be dismissed. We find that defendants' position is conclusively established by Bremen v. Zapata Off-Shore Co. (1972) 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513. That case laid at rest any doubt as to the enforceability of such clauses and specifically held that they were applicable to in rem actions.³ Id. at 20, 92 S.Ct. at 1918, 32 L.Ed.2d at 526. Plaintiff correctly points out that no question of the validity of an attachment was before the Court in that case.⁴ However, we deem that circumstance to be irrelevant. The Supreme Court was obviously not concerned with the provisions of New York C.P.L.R. § 6201. What it did establish was a rule of law which entitles defendants to a dismissal of this action. Such dismissal makes an attachment unavailable under C.P.L.R. § 6201.⁵

The complaint is accordingly dismissed, the action terminated and the TRO vacated. Let judgment enter.

SO ORDERED.

1 Contained in said Order to Show Cause, which the Court made returnable 3 days later, was a temporary restraining order, enjoining defendants from removing or releasing $3,000,000 from their respective New...