United States Court of Appeals

for the Fifth Circuit

No. 22-20021

Preble-Rish Haiti, S.A., 

Plaintiff—Appellee,

versus

Republic of Haiti,

Defendants,

BB Energy USA, L.L.C., 

Garnishee—Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:21-CV-1953

Before Higginbotham, Dennis, and Graves, Circuit Judges.

James E. Graves, Jr., Circuit Judge:

The Foreign Sovereign Immunities Act provides a foreign state’s 

property with immunity from prejudgment attachment unless an exception 

applies. The relevant exception in this case requires a foreign state to 

explicitly waive its immunity from prejudgment attachment. 28 U.S.C. 

§ 1610(d). Although this court has yet to interpret the § 1610(d) exception, 

today we hold that an explicit waiver must be, well, explicit. Anything short 

United States Court of Appeals

Fifth Circuit

FILED

July 14, 2022

Lyle W. Cayce

Clerk

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of a foreign state’s clearly expressed waiver of immunity from prejudgment 

attachment will not suffice under § 1610(d). Here, however, the district court 

entered a writ of attachment based on the erroneous conclusion that Haiti 

and its agency waived their immunity from prejudgment attachment based 

on a contract that said nothing about prejudgment attachment. We therefore

REVERSE the district court and VACATE the writ. 

BACKGROUND

Plaintiff-Appellee Preble-Rish Haiti, S.A. filed this case pursuant to 

Rule B of the Supplemental Rules for Admiralty or Maritime Claims in the 

Federal Rules of Civil Procedure. It sought to attach assets to secure a partial 

final arbitration award against the Republic of Haiti and the Bureau de 

Monétisation de Programmes d’Aide au Developpement (BMPAD).

Garnishee BB Energy USA, L.L.C. admits to holding credits belonging to 

BMPAD located in the Southern District of Texas. 

A. Underlying Facts

In May 2020, Preble-Rish, a Haitian company, entered into three 

contracts with BMPAD, a Haitian government agency, to deliver fuel. The 

contracts specified that BMPAD would provide a letter of credit as payment. 

BMPAD did not provide that letter,so the contracts were amended to permit 

BMPAD to instead make full prepayment pursuant to an invoice Preble-Rish 

submitted before each delivery. The contracts stated Preble-Rish would 

make six deliveries of fuel in response to orders from BMPAD.

Relevant here, the contracts had an arbitration clause stating: 

In the event of a dispute between the [BMPAD] and [Preble 

Rish] under this Contract, the dispute shall be submitted by 

either party to arbitration in New York. . . . The decision of the 

arbitrators shall be final, conclusive and binding on all Parties. 

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Judgment upon such award may be entered in any court of 

competent jurisdiction.

Pursuant to the contracts, BMPAD and Preble-Rish executed their 

duties without issue on four deliveries of fuel. Problems arose on the fifth 

delivery. To resolve these issues, on November 20, 2020, Preble-Rish sent 

BMPAD a notice demanding arbitration in New York. BMPAD did not 

appear in the arbitration and refused to participate. On December 22, 2020, 

Haiti and BMPAD filed a petition in New York state court to obtain an order 

to stay the pending arbitration with Preble-Rish. Preble-Rish opposed the 

petition and filed a cross-motion to compel arbitration. 

While Haiti and BMPAD’s action was pending in New York state 

court, on August 6, 2021, the arbitration panel issued a partial final award of 

security. The award required BMPAD to post approximately $23 million in 

security. 

On September 27, 2021, the New York state court denied BMPAD’s 

petition to stay the arbitration and granted Preble-Rish’s motion to compel 

arbitration. The order states: “It is beyond dispute that the parties freely and 

unequivocally agreed to arbitrate all of their disputes in New York.” That 

order was affirmed by the New York Appellate Division on April 12, 2022. 

The Appellate Division stated BMPAD failed to show the arbitration clause 

was invalid under Haitian law. 

B. Procedural History

On June 15, 2021, Preble-Rish filed this Rule B attachment action in 

the Southern District of Texas to secure any final award from the pending 

arbitration and the partial final award of security. In its first complaint, 

Preble-Rish asserted claims for breach of contract and unjust enrichment. 

After complying with Rule B, Preble-Rish sought a writ of attachment for 

property belonging to BMPAD located in the district but in the possession of 

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BB Energy. Preble-Rish alleged that BMPAD prepays BB Energy for fuel and 

that the prepaid funds are property of BMPAD present in the district. 

The district court issued the writ of attachment and Preble-Rish 

served BB Energy with the writ on July 1, 2021. BB Energy promptly moved 

to dismiss and argued the district court lacked jurisdiction over the complaint 

based on BMPAD’s sovereign immunity.1 BB Energy also moved to vacate 

the attachment because the contracts at issue were not maritime in nature 

and therefore precluded admiralty jurisdiction as needed for Rule B 

attachment. The district court stayed the writ to determine the subject 

matter jurisdiction issue. 

On August 10, 2021, the district court denied BB Energy’s motion to 

dismiss because it concluded BMPAD had waived sovereign immunity by 

agreeing to arbitrate disputes under the contracts. The district court also 

concluded BMPAD explicitly waived its sovereign immunity from 

prejudgment attachment by agreeing to provide letters of credit or 

prepayment as stated in the contracts and because the property that sought 

to be attached was “used for commercial activity in the United States.” 

Having concluded that BMPAD waived its sovereign immunity generally and 

from prejudgment attachment, the district court determined it had subject 

matter jurisdiction over the case and reinstated the writ of attachment. 

BB Energy did not appeal this order. 

On September 3, 2021, the district court granted BB Energy’s motion 

to vacate the writ of attachment. The district court concluded the contracts 

1 To date, neither Haiti nor BMPAD has appeared in this case. BB Energy

nonetheless has standing to assert the sovereign immunity defense because the property it 

holds qualifies as “property of a foreign state.” See Walker Int’l Holdings Ltd. v. Republic of 

Congo, 395 F.3d 229, 233 (5th Cir. 2004). 

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were not maritime in nature and did not satisfy the requirements for 

admiralty jurisdiction for Rule B attachments. 

Preble-Rish filed an amended complaint2 and added claims for 

maritime fraud and conversion. BB Energy moved to dismiss and again, 

raised BMPAD’s sovereign immunity by arguing the new maritime tort 

claims fell outside the scope of the arbitration clause and BMPAD did not 

waive its immunity from prejudgment attachment. The district court 

deferred ruling on the motion to dismiss and directed the parties to discovery. 

BB Energy appealed and this court remanded the case with instructions for 

the district court to limit discovery to the sovereign immunity jurisdictional 

issue. See Preble-Rish Haiti, S.A. v. BB Energy USA, LLC, No. 21-20534, 2021 

WL 5143757, at *3 (5th Cir. Nov. 4, 2021) (unpublished). On remand, the 

parties agreed no further discovery was needed to resolve the issue.

On January 4, 2022, the district court denied BB Energy’s motion to 

dismiss based on sovereign immunity. The district court relied on its August 

10, 2021 decision to conclude that the arbitration clause waived BMPAD’s 

immunity from suit. It therefore only determined whether the arbitration 

clause covered maritime tort claims in the amended complaint. The court 

broadly construed the arbitration clause’s waiver for disputes “under this 

contract” to encompass the maritime tort claims in addition to the breach of 

contract claims. The district court also applied issue preclusion as to whether 

Haitian law prohibited arbitration against governmental entities and cited the 

New York state court’s order denying BMPAD’s motion to stay arbitration. 

Although BB Energy raised BMPAD’s sovereign immunity from

2 Preble-Rish first filed a notice of appeal and a motion for reconsideration, or in 

the alternative, a motion for leave to file an amended complaint. After the district court 

granted Preble-Rish leave, Preble-Rish withdrew its notice of appeal and filed its amended 

complaint. 

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prejudgment attachment again, the district court stated it had already 

decided that issue and cited its August 10, 2021 order. 

BB Energy appeals the January 4, 2022 order pursuant to the collateral 

order doctrine.3

DISCUSSION

This case turns on the interpretation of 28 U.S.C. § 1610(d) which 

provides a limited exception to the general rule that a foreign state and its 

property is entitled to sovereign immunity. That exception applies only when 

“the foreign state explicitly waived its immunity from attachment prior to 

judgment.” § 1610(d). Here, there was no explicit waiver. So we conclude 

BMPAD did not waive its immunity from prejudgment attachment and the 

district court erred in concluding otherwise.

Without this waiver, the district court did not have jurisdiction to 

enter the writ of attachment against BB Energy.

4 We accordingly reverse the 

district court and vacate the writ.

The denial of sovereign immunity is reviewed de novo. See Frank v. 

Commonwealth of Antigua and Barbuda, 842 F.3d 362, 367 (5th Cir. 2016). A 

foreign state’s sovereign immunity deprives the federal courts of jurisdiction.

The Foreign Sovereign Immunities Act (FSIA) therefore “provides the sole 

source of subject matter jurisdiction in suits against a foreign state.” Id.

3 Contrary to Preble-Rish’s argument that this court lacks appellate jurisdiction, 

the collateral order doctrine permits review of the denial of sovereign immunity from writs 

of garnishment or attachment. See Stena Rederi AB v. Comision de Contratos del Comite 

Ejecutivo Gen. del Sindicato Revolucionario de Trabajadores Petroleros de la Republica 

Mexicana, S.C., 923 F.2d 380, 386 (5th Cir. 1991).

4 Because we resolve this appeal on the prejudgment attachment issue, we assume 

without deciding that BMPAD implicitly waived its sovereign immunity from suit generally 

pursuant to 28 U.S.C. § 1605(a)(1).

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(quoting Dale v. Colagiovanni, 443 F.3d 425, 427–28 (5th Cir. 2006)); 28 

U.S.C. § 1604. Pursuant to the FSIA, the general rule is that foreign states 

are immune from suit in American courts. 28 U.S.C. § 1604; see also Arriba 

Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 532–33 (5th Cir. 1992). Along with 

immunity from suit generally, the FSIA provides a foreign state’s property 

with immunity from attachment or execution unless an exception applies. 28 

U.S.C. § 1609.

The relevant exception here is § 1610(d), which states:

The property of a foreign state . . . used for a commercial 

activity in the United States, shall not be immune from 

attachment prior to the entry of judgment in any action . . . 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.

This exception has three conditions: (1) the property must be used for 

a commercial purpose in the United States; (2) there must be an explicit 

waiver; and (3) the purpose of attachment must be to secure satisfaction of a 

judgment. See Pine Top Receivables of Ill., LLC v. Banco de Seguros del Estado, 

771 F.3d 980, 983 (7th Cir. 2014). BB Energy only challenges the first two 

elements; it argues there is no explicit waiver from prejudgment attachment 

and the credits it holds for BMPAD are not “used for commercial activity in 

the United States.” 

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This court has not yet interpreted the § 1610(d) exception or its

requirements. We are confident, however, that the explicit waiver 

requirement has not been met here.5

To interpret § 1610(d), “we begin ‘where all such inquiries must 

begin: with the language of the statute itself.’” Republic of Sudan v. Harrison, 

139 S. Ct. 1048, 1056 (2019) (alterations and citations omitted). 

Section 1610(d) revokes sovereign immunity for a foreign state’s property “if 

the foreign state has explicitly waived its immunity from attachment prior to 

judgment.” The key word here is “explicitly.” This naturally and ordinarily 

means in a definite and unambiguous manner. To be unequivocal, express,

clear, or plain. Dictionaries contrast “explicitly” with “not merely by 

implication or implicitly.” E.g., Explicitly, Oxford Eng. Dictionary

(3d ed. June 2016). 

We, like other courts, think an explicit waiver must be explicit “in the 

common sense meaning of that term.” S & S Machinery Co. v. 

Masinexportimport, 706 F.2d 411, 416 (2d Cir. 1983). While an explicit waiver 

need not include the words “prejudgment attachment” or the like, an 

asserted waiver “must demonstrate unambiguously the foreign state’s 

intention to waive its immunity from prejudgment attachment.” Id. This 

requires “unmistakable and plain language.” Id.

The importance of the explicit waiver requirement is also highlighted 

when we compare § 1610(d) to the language used in other exceptions in the 

FSIA. For instance, there are several other exceptions that permit a waiver 

to be explicit or implicit. Compare §§ 1605(a)(1), 1610(a)(1) (allowing wavier 

to be explicit or by implication), with § 1610(d). See also S & S Machinery, 706 

F.2d at 416 (“The requirement that the waiver of immunity from 

5As for the other two requirements, we find no error in the district court’s analysis. 

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prejudgment attachment be explicitly made is underscored both by the plain 

language of § 1610(d) and by the contrast between § 1610(d) and § 1610(a).” 

(emphasis in original)).

With this understanding, we can only conclude that BMPAD did not 

explicitly waive its immunity from prejudgment attachment. The only basis 

for a waiver of any immunity is the arbitration clause in the contract between 

BMPAD and Preble-Rish. The arbitration clause is relevant to whether 

BMPAD waived its sovereign immunity from suit generally, but a waiver of 

immunity from suit has “no bearing upon the question of immunity from 

prejudgment attachment.” S & S Machinery, 706 F.2d at 417. 

Even when we look at the arbitration clause and the contract as a 

whole, we find nothing to support an explicit waiver of immunity from

prejudgment attachment. The clause does not contemplate prejudgment 

attachment or any other liabilities. Nor does it mention security or letters of 

credit in the context of disputes between the parties. Although Preble-Rish 

and BMPAD agreed any arbitration awards would “be final, conclusive and 

binding,” that language does not contemplate any specific remedy or allow 

the arbitration panel to ignore the immunity from prejudgment attachment 

as provided by the FSIA.

And in prior cases where this court has concluded the § 1610(d) 

exception applied, the parties’ agreement has explicitly said sovereign 

immunity is waived “including any immunity from the jurisdiction of any 

court or from any execution or attachment in aid of execution prior to judgment or 

otherwise.” Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 875 F.2d 

1174, 1177 (5th Cir. 1989) (emphasis added); see also Mangattu v. M/V Ibn 

Hayyan, 35 F.3d 205, 210 (5th Cir. 1994) (rejecting argument that agreement 

to laws of another country is sufficient to find an explicit waiver); id. (“If the 

subsequent law of another country in fact waives immunity, it would be an 

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implicit waiver . . . .” (emphasis added)). Such explicit language is absent 

here.

Preble-Rish urges us to find waiver because, in the contracts, BMPAD 

agreed to provide letters of credit or full prepayment, i.e., agreed to provide 

security in Preble-Rish’s favor. To support this theory, Preble-Rish points to 

Banco de Seguros del Estado v. Mutual Marine Office, Inc., 344 F.3d 255 (2d 

Cir. 2003). In that case, the Second Circuit determined a sovereign entity 

agreed to “apply for and secure delivery to [the other party] a clean 

irrevocable Letter of Credit issued by a bank” and therefore demonstrated 

that the “parties embraced the usefulness of letters of credit as a means of 

securing their respective rights and obligations and as a means of facilitating 

the transaction generally.” Mut. Marine Off., 344 F.3d at 261 (citations 

omitted). The parties in that case had also agreed to arbitration and explicitly 

stated the “arbitrators are relieved of all judicial formalities and may abstain 

from following the strict rules of law.” Id. (internal quotation marks and 

citations omitted). Although the district court accepted this theory, we are 

unpersuaded. 

The Second Circuit in Mutual Marine noted the arbitration clause at 

issue did not explicitly authorize the arbitrator to order a letter of credit as 

security against a possible final award. See id. So rather than relying on 

§ 1610(d)’s demand that a waiver be explicit, the court looked to other 

provisions in the agreement to infer a waiver of immunity from prejudgment 

attachment. If the court needs to infer a waiver, then the waiver is not 

explicit. See Pine Top, 771 F.3d at 985 (concluding a waiver that must be 

discerned from contract clauses “that do not speak to orders of preanswer 

security in judicial proceedings” is not explicit). And although BMPAD 

agreed to provide letters of credit, the contracts in this case lack the same 

generous arbitration clause that allows arbitrators to “abstain from following 

the strict rules of law.” Id. Without such authorization, the contract here 

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simply provides for letters of credit during the underlying transaction—not 

in any disputes that are ultimately submitted to arbitration. Mutual Marine is 

thus distinguishable and unpersuasive on the issue before us.

CONCLUSION

To satisfy § 1610(d), an explicit waiver of immunity from 

prejudgment attachment must be express, clear, and unambiguous. Anything 

short of that is insufficient. Because there is no such explicit waiver in the 

contract or elsewhere, the district court erred in concluding BMPAD waived 

its sovereign immunity from prejudgment attachment. We accordingly 

REVERSE the district court and VACATE the writ of attachment. 

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