FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APR 25 2000 THOMAS K. KAHN CLERK PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 98-6223

________________________ 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.,2 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 inpending arbitration proceedings. The district court vacated the attachment prev iously 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 M obile, Alabama and3 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 Line s and Venalum, the court issued a series of orders providing for a stay of execu tion 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 appeal s the district court’s March 4 order vacating the writ of foreign attachment. Inappeal no. 98-6223, Venalum contests the4 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 forei gn state’s property in the United States from attachment, arrest and execution except as provided inspecific 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 executi on 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 ... us ed 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 u ltimately be entered against the foreign state, and not to obtain jurisdiction. 28 U.S.C. § 1610(d). The parties do not disput e 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;5 and (iii) the attached aluminum was used for a commercial activity in the United
States. See § 1610(d). The district court’s conclu sion 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 waiv ed its immunity from prejudgment attachment. A waiver of immunity from prejudgmen t attachment must be explicit. See 28 U.S.C. § 1610(d)(1). To determine whethe r Venalum explicitly waived immunity, we look to the pertinent language of the contract of affreightment, which states:
CLAUSE O8 – ATTACHMENT THE SHIPOWNERS [Venus Lines] sha ll have the right to attach the cargo for the payment of the freight, dead freight, demurrages and losses due to detention. THE CHARTERER S [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 res ponsible for the demurrages which may have been caused at the port of discharge or unloading. The issue is whether the clear reference to Venus Li nes’ right to “attach” the cargo is a sufficiently explicit waiver of immunity from prejudgment attachment. (Though the original contractwas in Spanish, the parties agree that the word “embarger” is properly translated as a ttachment). Although no court has addressed6 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, th e court held, was intended by Congress to preclude only an “unintended waiver.” Th erefore, the language “any . . . immunity from legal proceedings” constituted an exp licit waiver of immunity under section 1610(d)(1) because, although the words “preju dgment attachment” were not explicitly mentioned, the language demonstrated a “c lear 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 “attach ment” 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 reas on to believe that Venalum’s waiver of prejudgment attachment was “unintended.” Libra , 676 F.2d at 50. We dete rmine that the district7 court erred in holding that Venalum did not explicitly waive its immunity from prejudgment attachment. Because the district court decided the cas e 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 securitycannot 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 misr eads 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 by8 Appellants specifically sought to attach th e vessel in order to subject UASC, a nonresident defendant, to personal jurisdiction.”). It is clear that the purpose of the a ttachment was to obtain security. Venus Lines’ complaint expressly states that it “s eeks 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 inthe underlying action is not in dispute because in the contract of affreightment, Venalum consented to jurisdiction in a New York arbitration, which was in pr ogress at the time of this appeal. Because the purpose of the a ttachment 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 unde r section 1610(d), the property must be “used for a commercial activity in the Unite d 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 Unite d States, however, is not enough to satisfy this condition for a waiver of sovereign immunity.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 ad equately 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 dissolv ing 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.”). 9 Venus Lines contends that there was infact a commercial use of the property in the United States. According to the a ffidavit 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, Ve nus claims that the Mexico cargo was used for the commercial activity of facilitating Venalum’s sale of the Mobile cargo. If true, the Mexico car go 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 determinati on whether the commercial activity prong has been satisfied and the answ er to the ultimate question whether Venalum’s property is entitled to immunity under the FSIA are con tingent 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 Ru les of Civil Procedure, the district court ordered the execution of its judgment st ayed upon the posting of a supersedeas bond10 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 pr ocuring the order allowing the appeal, as the case may be. Th e stay is effective when the supersedeas bond is approved by the court. In the case of a non-money judgment, wh ether 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 a pplicant will be irreparably injured absent a stay; (3) whether the issuance of a stay will substantially injure the other parties interested in the proceedi ng; and (4) where the public interest lies. United States v. United St ates 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. Bond11 Venalum also argues that the court was without authority to require Venalum to post a bond to gain the release of th e 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. Neve rtheless, 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 Ru le (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 “p rocess of maritime attachment and garnishment . . . is issued .” In this case, the district court vacated , rather than issued, the attachment. Neve rtheless, we conclude that Rule (E)(5)(a) applies because the district court stayedits vacation of the writ of attachment,12 meaning that the “process of maritime attach ment and garnishment . . . issued” by the magistrate judge remained in effect. Venalum argues the district court exceed ed 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), wh ich 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 th e 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 me t, the district court was au thorized 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 dist rict court’s orders granting a stay and requiring Venalum to post a bond for release of the Mexico cargo.13 Appeal no. 98-6562: We REVERSE th e district court’s order vacating the writ of foreign attachment and REMAND for further proceedings consistent with this opinion.