IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40463

MALIN INTERNATIONAL SHIP REPAIR & DRYDOCK, INCORPORATED, 

 Plaintiff - Appellee

v.

OCEANOGRAFIA, S.A. DE C.V., 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, WIENER, and HIGGINSON, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Oceanografia, S.A. (“OSA”) appeals (1) the district 

court’s denial of its motion to vacate attachment under Supplemental 

Admiralty Rule B and (2) that court’s grant of Plaintiff-Appellant Malin 

International Ship Repair & Drydock, Inc.’s (“Malin”) motion for summary 

judgment. Concluding that both the attachment and the summary judgment 

were proper, we affirm.

United States Court of Appeals

Fifth Circuit

FILED

March 23, 2016

Lyle W. Cayce

Clerk

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I.

FACTS AND PROCEEDINGS

Malin operates a shipyard in Galveston, Texas. In 2008 and 2009, Malin 

performed work for OSA, a Mexican corporation, and Con-Dive, LLC (“ConDive”), a now-defunct Texas company. Not having received payment for its 

work, Malin sued OSA for the balance of its unpaid invoices for work, services, 

materials, and supplies that it had provided to OSA at the request of Con-Dive.

Malin sought recovery on the alternative theories of breach of contract and

quantum meruit.

OSA operated a vessel, the M/V KESTREL, under a bareboat charter 

agreement. The registered owner of the M/V KESTREL, Cal Dive Offshore 

Contractors, Inc. (“Cal Dive”), had entered into a charter agreement with Gulf 

Offshore Construction, Inc. (“GOC”), which in turn bareboat chartered the 

vessel to OSA. OSA had taken delivery of the vessel on October 15, 2012. The 

charter agreement stated that “[a]t the time of delivery[, OSA] shall purchase 

the bunkers . . . in the said Vessel at the then current market price at the port 

of delivery.” To obtain jurisdiction over OSA pursuant to Supplemental 

Admiralty Rule B, Malin attached the fuel bunkers1 aboard the M/V KESTREL 

on October 29, 2012.

OSA and Cal Dive sought to vacate the attachment, contending that OSA 

did not hold an attachable interest in the bunkers at the time of Malin’s 

attachment because title to them had not yet passed to OSA. According to OSA 

 

1 “Fuel bunkers” is the admiralty term for the fuel used by a vessel. See Glossary of 

Marine Insurance and Shipping Terms, 14 U.S.F. MAR. L. J. 305, 325 (2001–2002) (defining 

“bunkers” as “[f]uel to be used by the vessel’s engines for power during the voyage; but not 

fuel loaded on board the vessel as cargo”).

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and Cal Dive, OSA had neither paid for the bunkers nor received an invoice for 

them and therefore did not own them.

The district court denied their motions, holding that OSA’s possessory 

interest in the bunkers constituted an attachable interest under Rule B. Cal 

Dive then posted a vessel release bond to substitute for the seized bunkers of 

the M/V KESTREL and to secure the liability of OSA to Malin.

Malin then sought summary judgment on its breach of contract and 

quantum meruit claims against OSA. Malin contended that Con-Dive was 

OSA’s agent and had authority to bind OSA to the invoices, or, in the 

alternative, that OSA had ratified the invoices or is liable to Malin on its claim 

of quantum meruit. In support, Malin supplied invoices detailing the amounts 

owed as well as e-mails from OSA indicating that it had received the invoices 

and agreed to pay them. The invoices also contained provisions for interest and 

attorneys fees. OSA opposed the motion. It filed only one item of summary 

judgment evidence: a declaration from an OSA employee stating that Con-Dive 

did not act as OSA’s agent.

The magistrate judge recommended granting summary judgment in 

favor of Malin based on its ratification and quantum meruit theories. The 

magistrate judge also recommended that Malin be awarded attorneys fees on 

its ratification claim. The district court accepted and adopted the magistrate 

judge’s Report and Recommendation, then rendered judgment to Malin for the 

amount of the invoices, plus accrued interest and attorneys fees. This appeal 

followed.

On appeal, OSA contends that the district court erred in denying its 

motion to vacate the attachment. It argues that the attachment of the bunkers 

was improper under Supplemental Rule B because the bunkers were not its 

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property. OSA further asserts that the district court erred in granting Malin’s 

motion for summary judgment on its ratification theory.2

II.

ANALYSIS

A. Attachment

The propriety of the attachment of the bunkers aboard the M/V 

KESTREL goes to the district court’s jurisdiction over OSA, so we begin there. 

We review an order denying a motion to vacate an attachment under Rule B 

for abuse of discretion, and we review issues of law de novo.3

Supplemental Rule B provides:

If a defendant is not found within the district when a verified 

complaint praying for attachment and the affidavit required by 

Rule B(1)(b) are filed, a verified complaint may contain a prayer 

for process to attach the defendant’s tangible or intangible 

personal property—up to the amount sued for—in the hands of 

garnishees named in the process.4

“Rule B allows a district court to take jurisdiction over a defendant in an 

admiralty or maritime action by attaching property of the defendant.”5 The 

rule has two purposes: “to secure a respondent’s appearance and to assure 

satisfaction in case the suit is successful.”6

 

2 OSA’s attempt, in its Summary of the Argument, to challenge the district court’s 

award of damages is waived by OSA’s failure to brief it adequately. See United States v. 

Sealed Appellant 1, 591 F.3d 812, 823 (5th Cir. 2009).

3 Geneve Butane, Inc. v. Nat’l Oil Corp., 551 F. App’x 185, 185 (5th Cir. 2014) 

(unpublished); see also Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 

66 (2d Cir. 2009).

4 FED. R. CIV. P. SUPP. R. B(1)(a).

5 Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 421 (5th Cir. 

2001).

6 Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 693 

(1950).

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The only issue before us is whether the fuel bunkers constituted OSA’s 

“tangible or intangible personal property” at the time of attachment.7 Rule B 

does not define the term “tangible or intangible personal property.” 

Significantly, the rule provides no guidance as to what type of property interest 

is attachable. OSA urges us to rule that a party must own property for it to be 

subject to attachment under Rule B, contending that it did not own the bunkers 

at the time of attachment because it had not yet paid for them. Predictably, 

Malin counters that an interest in property less than full ownership—here, 

OSA’s agreement to purchase the bunkers coupled with its possession of the 

bunkers—suffices.

The Supreme Court approved of maritime attachment in Manro v. 

Almeida.8 Although the Court did not define what constitutes attachable 

property, it quoted “a book of respectable authority” which states that goods or 

ships may be attached in the hands of the owner or in the hands of “all others 

who claim any right or title to them . . . .”9 More than one hundred years later,

in Kingston Dry Dock Co. v. Lake Champlain Transportation Co.,10 Judge 

Learned Hand, writing for the Second Circuit, applied Rule B’s precursor and 

held that a conditional buyer’s “conditional right to title” constituted an 

attachable interest. There, the plaintiff attached two canal boats possessed by 

the defendant, a conditional buyer. The defendant had contracted for the 

construction and sale of the boats and had taken possession of them. The 

contract, however, reserved title to the seller until it received final payment,

 

7 See Jaldhi, 585 F.3d at 69 (“As a remedy quasi in rem, the validity of a Rule B 

attachment depends entirely on the determination that the res at issue is the property of the 

defendant at the moment the res is attached.”).

8 23 U.S. (10 Wheat) 473 (1825).

9 Id. at 491–92 (quoting Hall, CLERKE’S PRAXIS part 2, tit. 28) (emphasis added).

10 31 F.2d 265, 267 (2d. Cir. 1929).

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and the defendant had not made payment at the time of attachment. On this 

basis, the defendant sought to vacate the writ of attachment. Recognizing that 

possession “is historically the original source of all title,” Judge Hand warned 

that “[i]t would be curious if possession, coupled with a conditional right to 

title, could now be thought insufficient to support a seizure.”11 Accordingly, 

that court declined to vacate the attachment.

Later, the Third Circuit in McGahern v. Koppers Coal Co. distinguished 

Kingston when considering whether a bareboat charterer possessed an 

attachable interested in the chartered vessel.12 The court held that a bareboat 

charterer holds no attachable interest in the chartered vessel because the 

charterer has “no title or expectancy or possibility of title, conditional or 

otherwise.”13 Significantly, under a bareboat charter, “[n]o title passes to the 

charterer under it, but merely the right to possess and control it for a limited 

period.”14 The Third Circuit found this result “in entire accord” with Kingston: 

“Clearly the conditional vendee [in Kingston], while not the holder of the legal 

title, did have conditional right to title, . . . which was sufficient to support the 

seizure. . . . In the present case, on the other hand, respondent . . . had no title 

or expectancy or possibility of title, conditional or otherwise.”15

Although these cases recognized the principle that a conditional right to 

title may support attachment under Rule B, a more recent unpublished Fourth 

Circuit opinion adopted a narrower approach. In Wave Maker Shipping Co., 

Ltd. v. Hawksphere Shipping Co. Ltd.,16 creditors sought to attach a charterer’s 

 

11 Id. at 266–67.

12 108 F.2d 652 (3d Cir. 1940).

13 Id. at 653.

14 Id.

15 Id.

16 56 F. App’x 594 (4th Cir. 2003) (unpublished).

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fuel bunkers. Relevantly, the charterer had purchased fuel from a fuel 

supplier, but had not yet paid for it.17 Under the contract between the charterer 

and the fuel supplier, the supplier retained title to the fuel until the charterer 

paid in full.18 The charterer contended that the attachment should have been 

vacated because it did not have title to the fuel; rather, the fuel supplier 

retained title. Examining whether the Rule B attachment of the fuel bunkers 

should have been vacated, the Fourth Circuit asked whether the charterer 

“ever acquired title to the bunkers.”19 In answering this question, the Fourth 

Circuit relied on principles of English law, which governed the contract at 

issue.20 Concluding that the fuel supplier had retained title to the bunkers, the 

Fourth Circuit vacated the attachment of the fuel in possession of the 

charterer.21

The Second Circuit recently emphasized the importance of ownership in 

determining whether an interest is attachable under Rule B. In deciding 

whether electronic fund transfers (“EFTs”) are an attachable interest under 

Rule B, the Second Circuit, relying on New York state law, held that they are 

not: “Because EFTs in the temporary possession of an intermediary bank are 

not property of either the originator or the beneficiary under New York law, 

they cannot be subject to attachment under Rule B.”22 This is because “[f]or 

maritime attachments under Rule B . . . the question of ownership is critical.”23

Several district courts have found an attachable property interest under 

Rule B when the defendant’s interest does not rise to ownership. For example, 

 

17 Id. at 597.

18 Id.

19 Id. at 598.

20 Id. at 598–99.

21 Id. at 599.

22 Jaldhi, 585 F.3d at 71.

23 Id. at 69.

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in World Fuel Services, Inc. v. SE Shipping Lines Pte., Ltd.,24 the district court 

upheld an attachment of fuel bunkers in the possession of the defendant. 

Although the defendant had not acquired title to the bunkers, the district court 

upheld the attachment because the defendant had the right to possess the 

bunkers, use the bunkers, and sell the bunkers.25 Similarly, the district court 

in Alaska Reefer Management LLC v. Network Shipping Ltd. stated that “Rule 

B provides for a broad definition of property and does not require actual 

ownership or title.”26 That district court held that an attachable interest exists 

under Rule B when the “assets are being held ‘for the benefit of’ the Defendant 

or ‘in its name.’”27

The body of federal maritime jurisprudence presents ambiguity as to 

whether, as the district court held here, a possessory interest is attachable

under Rule B. Neither does federal maritime law categorize the type of interest 

that OSA held in the fuel bunkers at the time of the attachment. Confronted 

with such a void, other courts “generally look to state law to determine 

property rights.”28 Stated differently, “the precedent in federal admiralty law 

is so thin that we should turn to state law more directly on point.”29 We choose 

to do so here in the absence of guiding federal maritime law. In doing so, we 

are in accord with the closest circuit case, Wave Maker Shipping Co., which 

 

24 No. 10-4605, 2011 WL 446653 (E.D. La. Feb. 4, 2011).

25 Id. at *1–2.

26 68 F. Supp. 3d 383, 386–87 (S.D.N.Y. 2014).

27 Id. at 387.

28 Jaldhi, 585 F.3d at 70. 29 Reibor Int’l Ltd. v. Cargo Carriers (KACZ-CO.) Ltd., 759 F.2d 262, 266 (2d Cir. 1985) 

(“In short, we agree with the district court that the precedent in federal admiralty law is so 

thin that we should turn to state law more directly on point. We clearly have this option

where we find it appropriate.”).

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looked to the law governing the contract in determining whether title to fuel 

bunkers had passed.30

At the district court, Cal Dive contended that Texas law governs this 

issue. The bareboat charter agreement specifies that Texas law applies when 

federal maritime law is silent. An amendment to the agreement, effective 

shortly before the instant attachment, specifies that Mexican law applies.

Neither party directed us to this amendment or urged us or the district court 

to apply Mexican law. Under Federal Rule of Civil Procedure 44.1, “[a] party 

who intends to raise an issue about a foreign country’s law must give notice by 

a pleading or other writing.”31 And “[i]n the absence of sufficient proof to 

establish with reasonable certainty the substance of the foreign principles of 

law, the modern view is that the law of the forum should be applied.”32 We

therefore look to Texas law.

OSA and GOC executed the bareboat charter agreement on September 

12, 2012. The agreement provides that OSA “shall purchase the bunkers” at 

the time of delivery: “At the time of delivery the Charterers shall purchase the 

bunkers . . . in the said Vessel at the then current market price at the port of 

delivery.” OSA took delivery of the M/V KESTREL (and consequently its 

bunkers) on October 15, 2012. Malin attached the fuel bunkers aboard the M/V 

KESTREL on October 29, 2012. As of October 31, 2012, OSA had neither paid 

 

30 Wave Maker Shipping Co., 56 F. App’x at 598–99 (applying English law in 

determining whether title to fuel bunkers passed).

31 FED. R. CIV. P. 44.1.

32 Symonette Shipyards, Ltd. v. Clark, 365 F.2d 464, 468 n.5 (5th Cir. 1966); see also 

Karim v. Finch Shipping Co., Ltd., 265 F.3d 258, 272 (5th Cir. 2001) (“When the parties have 

failed to conclusively establish foreign law, a court is entitled to look to its own forum’s law 

in order to fill any gaps.” (quoting Banco de Credito Indus., S.A. v. Tesoreria Gen., 990 F.2d 

827, 836 (5th Cir. 1993)); Carey v. Bahama Cruise Lines, 864 F.2d 201, 206 (1st Cir. 1988) 

(“By their silence, the litigants[] consent to having their dispute resolved according to the law 

of the forum.”).

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for nor received an invoice for the bunkers. Our task is to determine the nature 

of the property interest OSA held in the fuel bunkers at the time of attachment.

Texas has adopted Article 2 of the Uniform Commercial Code, which 

governs the sale of goods. Relevant here, Article 2 specifies that “title passes 

to the buyer at the time and place at which the seller completes his 

performance with reference to the physical delivery of the goods . . . .”33 When 

“the contract requires delivery at destination, title passes on tender there.”34

Were we to apply Article 2, we would conclude that title passed to OSA on 

delivery of the M/V KESTREL and its fuel bunkers to OSA. Here, however, 

OSA’s obligation to purchase the bunkers did not arise from a contract for the 

sale of goods, but from the bareboat charter agreement.35 As Article 2 is thus 

inapplicable, we apply principles of Texas common law. 

Under Texas common law, the instant at which title to personal property

passes from seller to buyer depends on the parties’ intent.36 Generally, if the 

contract does not condition passage of title on payment, a seller passes title to 

a buyer on delivery of the goods.37 But, “where the contract of sale of personal 

property calls for cash on delivery, concurrent payment upon delivery is 

 

33 TEX. BUS. & COM. CODE ANN. § 2.401(b); see also Crocker Nat’l Bank v. Ideco Div. of 

Dresser Indus., Inc., 839 F.2d 1104, 1107 (5th Cir. 1988) (“Unless otherwise explicitly agreed, 

title to goods generally passes to the buyer when the seller completes his performance with 

reference to physical delivery of the goods.”). 

34 Id. § 2.401(b)(2).

35 See Neubros Corp. v. Nw. Nat’l Ins. Co., 359 F. Supp. 310, 319 (E.D.N.Y. 1972) (“For 

the purposes of the Uniform Commercial Code a bareboat charter for a period of eighteen 

months is not a sale as defined in sections 2-102, 2-105(1) and 2-106(1) of the Code.”). 36 John E. Morrison & Co. v. Murff, 212 S.W. 212, 214 (Tex. Civ. App.—Galveston

1919, no writ) (“Moreover, the intention of the parties themselves, to be ascertained from 

their express declaration, or from the circumstances presented, or both, is the dominating 

consideration in determining whether or not title has passed in the sale of a chattel.”).

37 See, e.g., Luse v. Crispin Co., 344 S.W.2d 926, 930 (Tex. App.—Houston 1961, writ 

ref’d n.r.e.).

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essential to pass the title . . . .”38 The former is a credit sale; the latter is a cash 

sale.39

The instant agreement specifies that OSA “shall purchase the bunkers” 

at the time of delivery. Although Cal Dive asserted in the district court that 

this language indicates that the parties contemplated a cash sale under which 

OSA would not obtain title until payment, this interpretation goes too far. 

“Purchase” means “[t]he acquisition of an interest in real or personal property 

by sale . . . .”40 And a “sale” may occur based on either an actual payment or a

mere promise to make payment.41 The parties’ agreement uses the word 

“purchase,” so it does not necessarily indicate that they intended that OSA 

make payment before title would pass. Moreover, the agreement is silent as to 

when payment was due or when title would pass.

In addition, OSA’s and Cal Dive’s representations throughout this 

litigation show that Cal Dive did not expect OSA to remit payment for the 

bunkers at the time of delivery. Both parties have consistently represented 

that, as of the time of attachment on October 29, 2012, OSA had neither 

received an invoice for the fuel bunkers nor been asked to pay for them. OSA 

maintains that this confirms that it never obtained title to the bunkers. We 

disagree: It shows that OSA was not expected to pay for the bunkers at the 

time of delivery. Thus, under Texas law, the parties contemplated a credit 

transaction. Further, there is no evidence in the record indicating that OSA 

 

38 Id. (“A cash sale is one in which the contract calls for payment of the price in cash 

when the contract is made or the goods are delivered.”).

39 See id.

40 Purchase, BLACK’S LAW DICTIONARY (10th ed. 2014).

41 The acquisition of an interest in property “by sale” does not necessarily require 

payment. See Sale, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining the four elements of 

a sale as “(1) parties competent to contract, (2) mutual assent, (3) a thing capable of being 

transferred, and (4) a price in money paid or promised” (emphasis added)).

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and Cal Dive intended to delay the passage of title to the bunkers until OSA 

remitted full payment.42 We conclude that, under Texas law, title to the 

bunkers passed to OSA on delivery.

Under this analysis, OSA received title to the bunkers on October 15, 

2012, the day that it took possession of the M/V KESTREL. Malin attached

those bunkers on October 29, 2012. Because OSA held title to the bunkers at 

the time of Malin’s attachment—and title to property unquestionably suffices 

as an attachable interest under Rule B—we affirm the district court’s denial of 

OSA’s motion to vacate the attachment.

B. Summary Judgment

Having confirmed that the district court had personal jurisdiction over 

OSA by virtue of the attachment of the bunkers on the vessel that it had

chartered, we turn to OSA’s challenges to the district court’s summary 

judgment in favor of Malin. We review the district court’s summary judgment 

de novo, applying the same standards as the district court.43

In his Report and Recommendation on Malin’s motion for summary 

judgment, the magistrate judge found the following facts to be undisputed: (1) 

 

42 Compare Luse, 344 S.W. at 929–30 (“Although Williams testified that the sale was 

a cash sale, the evidence clearly shows that the purchase price was not to be paid by 

Transcontintental upon delivery of the pipe at Beaumont, but was to be paid upon receipt of 

Crispin’s invoice in Oklahoma. There was no agreement between the parties that payment 

should be made before or concurrently with delivery of the pipe at Beaumont. There was no 

agreement that delivery of the pipe was to be delayed until the purchase price was paid. It 

was contemplated that delivery should precede the payment of the purchase price.”), and 

John E. Morrison & Co., 212 S.W. at 213 (“There is an utter absence throughout the entire 

body of evidence of any intimation even that full payment in cash of the balance of the 

purchase price before removal of the car, or in the alternative the giving of a note therefor, 

were made or understood to be conditions precedent to completion of the contract of sale, or 

that they were part and parcel of it.”), with Sinker, Davis & Co. v. Comparet, 62 Tex. 470, 

474 (1884) (“The machinery was sold and delivered to Comparet under an express stipulation 

that the vendors parted with no title, nor was any acquired by Comparet, until payment was 

made of the price agreed to be paid as evidenced by the notes given by the purchaser.”).

43 Ashford v. United States, 511. F.3d 501, 504 (5th Cir. 2007).

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Con-Dive represented to Malin that it was acting for and with the permission 

of OSA when it arranged for the work and services; (2) Malin performed the 

work and provided the services; (3) through Con-Dive, an OSA employee 

furnished instructions and directions for Malin’s work; (4) Malin periodically 

invoiced OSA for the work; (5) these invoices contained the terms and 

conditions of the contracts, including provisions for the collection of service 

charges and attorney’s fees; (6) OSA, through an employee, promised to pay 

the overdue invoices; (7) OSA did nothing within any reasonably relevant time 

to disaffirm Con-Dive’s authority or Malin’s work; and (8) OSA retained all of 

the benefits of Malin’s work. On that record, the magistrate judge 

recommended finding that OSA ratified Malin’s work and invoices and is liable 

to Malin for payment. The magistrate judge recommended finding in the 

alternative that OSA is liable for the payment of Malin’s invoices on the basis 

of quantum meruit. The magistrate judge also recommended that Malin be 

awarded attorneys fees on the basis of its ratification theory, but not on its 

quantum meruit theory. The district court adopted these findings and entered 

judgment in favor of Malin.

OSA contends that the district court erred in holding that OSA ratified 

the contractual obligations of Malin’s customer, Con-Dive. Texas law provides

that “if a party acts in a manner that recognizes the validity of a contract with 

full knowledge of the material terms of the contract, the party has ratified the 

contract and may not later withdraw its ratification and seek to avoid the 

contract.”44

 

44 Advanced Nano Coatings, Inc. v. Hanafin, 478 F. App’x 838, 843–44 (5th Cir. 2012) 

(unpublished) (quoting Verizon Corp. Servs. Corp. v. Kan-Pak Sys., Inc., 290 S.W.3d 899, 906 

(Tex. App.—Amarillo 2009, no pet.)).

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OSA initially contends that Malin failed to show that its services 

benefited OSA. Whether Malin’s services benefited OSA, however, has no 

bearing on Malin’s ratification theory. Demonstrating that a party accepted 

benefits under a contract is one way to show ratification, but it is not the only 

way.45 Malin proved that its invoices were ratified by OSA when OSA agreed 

to pay them after receiving them. Even if we were to accept OSA’s contention

that Malin did not show that OSA benefited from its services, the result would 

not change.

OSA next contends that the presence of an issue of fact as to whether 

Con-Dive acted as Malin’s agent should have precluded summary judgment on 

Malin’s ratification theory. But an agency relationship is not required to 

uphold the district court’s ruling that OSA ratified Con-Dive’s acts.46

OSA finally contends that Malin failed to show that OSA ratified the 

invoices’ provisions on interest and attorneys fees. On an undisputed record, 

the magistrate judge found that Malin invoiced OSA for its services and that 

“the invoices contained the terms and conditions of the contracts, including the 

provisions for the collection of service charges and attorney’s fees . . . .” Malin 

 

45 See United States v. McBride, 571 F. Supp. 596, 612–13 (S.D. Tex. 1983) 

(“Ratification may be manifested in one or more of several ways: a party may ratify, first, by 

intentionally accepting benefits under the contract; second, by remaining silent or 

acquiescing in the contract for a period of time after he has the opportunity to avoid it; and 

third, by recognizing [the] validity of the contract by acting upon it, performing under it, or 

affirmatively acknowledging it.”).

46 See McWhorter v. Sheller, 993 S.W.2d 781, 787 (Tex. App.—Houston [14th Dist.] 

1999, pet. denied) (“Most case law interpreting the doctrine of ratification couches its 

discussion in the context of an existing agency relationship where the agent exceeds the scope 

of her authority and the principal later accepts the benefits of such act after acquiring full 

knowledge. Ratification, however, can occur outside this general paradigm. While most cases 

will fall within the context of an agency relationship, such a relation is not necessary to cause 

the ratification to be effective. It is true, however, that because ratification is not a form of 

authorization, the ratification of an act of a stranger will not create an agency relationship, 

it will only bind the ratifier to the specific transaction that is ratified.” (citations omitted)).

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supplied an affidavit from Gabe Socias, a superintendent at Malin, who 

testified that “Malin and Oceanografia/Con-Dive agreed to the provision of 

certain work and services . . . pursuant to the terms of Malin’s invoices.” Socias 

further testified that “[t]he invoices attached are true and correct copies of the 

originals and accurately reflect the work and services provided by Malin to 

Oceanografia and Con-Dive.” Each invoice includes two parts: (1) a basic 

invoice, dated at various times in 2008, which reflected the invoice number, 

date, services rendered, and amount due; and (2) a formal invoice, reflecting, 

inter alia, the original invoice date, the total amount invoiced, the interest due 

as of February 10, 2009, and the interest and attorneys fees provisions.47

Socias also attached a June 9, 2009, e-mail from an OSA representative 

confirming the receipt of Malin’s “overdue” invoices.

On appeal, OSA tries to inject ambiguity into the summary judgment 

record by asserting that there is no evidence that OSA received the formal 

invoices containing the interest and attorneys fees provisions. It follows, 

argues OSA, that the evidence does not prove that it ratified the interest and 

attorneys fees provisions of the invoices.

We note that OSA proffered no summary judgment evidence to show that 

it did not receive the relevant invoices. By contrast, the unrefuted summary 

judgment evidence, as established by Socias’s affidavit, proves that (1) OSA 

agreed to Malin’s provision of services and work pursuant to Malin’s invoices, 

and (2) the attached invoices are the “true and correct copies of the 

originals . . . .” In addition, the June 9, 2009, e-mail from OSA’s representative 

confirms OSA’s receipt of the “overdue” invoice statements and OSA’s 

 

47 The record provides no indication of why all the formal invoices specify the interest 

accrued as of February 10, 2009. We can only speculate that Malin printed the invoices on 

this date.

 Case: 15-40463 Document: 00513435325 Page: 15 Date Filed: 03/23/2016
No. 15-40463

16

agreement to pay the invoices. We must assume that, if OSA had evidence to 

create an issue of fact to preclude summary judgment, it would have supplied 

it.48 We therefore affirm the district court’s determination that no material 

issues of fact exist as to whether OSA received and ratified the invoices, 

including their interest and attorneys fees provisions. The district court 

committed no error in granting summary judgment for Malin. 

III.

CONCLUSION

We affirm the district court’s denial of OSA’s and Cal Dive’s motions to 

vacate the attachment, and we affirm the district court’s summary judgment 

in favor of Malin.

AFFIRMED.

 

48 OSA supplied an out-of-time declaration from Gustavo Azcarate—the OSA 

representative who received Malin’s invoices via e-mail. Azcarate’s declaration, however, 

goes only to whether Con-Dive acted as an agent for OSA and says nothing to refute the 

evidence demonstrating that OSA, through Azcarate, received Malin’s invoices.

 Case: 15-40463 Document: 00513435325 Page: 16 Date Filed: 03/23/2016