FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PROSHIPLINE INC; EP-TEAM INC., 

Plaintiffs-Appellants,

No. 08-35337 v.

D.C. No. ASPEN INFRASTRUCTURES LTD,  3:07-cv-05660-FDB formerly known as Suzlon

Infrastructure Ltd; SUZLON OPINION

INFRASTURCTURE LTD,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Washington

Franklin D. Burgess, District Judge, Presiding

Argued and Submitted

December 7, 2009—Seattle, Washington

Filed February 3, 2010

Before: Robert R. Beezer, Ronald M. Gould and

Richard C. Tallman, Circuit Judges.

Opinion by Judge Beezer;

Partial Concurrence and Partial Dissent by Judge Tallman

2021
COUNSEL

Steven V. Gibbons, Gibbons & Associates, P.S., Seattle,

Washington, for the plaintiffs-appellants.

Robert J. Bocko, Keesal, Young & Logan, Seattle, Washington, for the defendant-appellee.

OPINION

BEEZER, Circuit Judge:

Plaintiffs-appellants ProShipLine, Inc. and EP-Team, Inc.

appeal from two district court decisions in favor of defendantappellee Aspen Infrastructures Ltd. Both decisions involve a

writ of maritime attachment that ProShipLine and EP-Team

PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2025
obtained against Aspen pursuant to Rule B of the Supplemental Rules for Certain Admiralty and Maritime Claims to the

Federal Rules of Civil Procedure (“Rule B”). The district

court held in the first decision that it could not compel Aspen

to post security in lieu of garnishment. This decision forced

ProShipLine and EP-Team to either waive their right to garnish Aspen’s property pursuant to a previously obtained Rule

B writ or to garnish the property despite alleged impracticability. The district court, in the second decision, equitably

vacated ProShipLine’s and EP-Team’s Rule B writ and exonerated security posted for that writ. The district court further

ordered ProShipLine and EP-Team to reimburse Aspen for

the value of the property they seized in accord with that writ.

We have jurisdiction over this appeal pursuant to 28 U.S.C.

§ 1291. We hold that although the district court’s first decision was proper, the district court abused its discretion in the

second decision. Equitable vacatur should not have been

applied against EP-Team individually.

I

The litigants’ legal relationship formally began on April 9,

2006, when EP-Team1 and Aspen2 entered into the Sales and

Logistics Services Agreement. Under the Agreement, ProShipLine,3

 as EP-Team’s designated agent and assignee, agreed

1EP-Team is incorporated in Delaware. EP-Team is a consulting and

management enterprise that works with companies across a variety of

business sectors. 

2At the time of contracting, Aspen, a closely-held enterprise incorporated in India, did business under the name of Suzlon Infrastructure Ltd.

Over the past several years, Suzlon Infrastructure Ltd. changed its name

to Aspen Infrastructures Ltd., had its name revert back to Suzlon Infrastructure Ltd. and changed its name again to Synefra Engineering & Construction Ltd. In the interest of simplicity, we refer to this enterprise as

“Aspen” regardless of its actual name at different points in time. 

3ProShipLine is incorporated in Nevada and serves as a contract carrier

for various types of cargo. 

2026 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
to act as Aspen’s general sales and port services agent.

ProShipLine and EP-Team solicited cargo for return trips to

India and handled port and terminal operations for Aspen

throughout America.4

The parties’ Agreement contains a forum selection clause

that says, in the case of a dispute between the parties, arbitration should take place in Singapore. The Agreement also

includes a choice-of-law clause providing that, in such a dispute, the Agreement should be construed and enforced in

accord with English law. ProShipLine’s, EP-Team’s and

Aspen’s contractual relationship remained in good standing

for more than a year.

ProShipLine’s, EP-Team’s and Aspen’s relationship

became strained in the summer of 2007. Each side blames the

other for breaching the Agreement.5 We do not examine the

merit of these contentions. We observe only that the conflict

resulted in the parties terminating their business relationship

on or about August 1, 2007. The end of the business relationship marked the onset of extensive litigation in Texas, New

York and Washington.

A

On August 6, 2007, ProShipLine and EP-Team filed suit

against Aspen in the Southern District of Texas (the “First

Texas Action”). EP-Team, Inc. v. Aspen Infrastructure, Ltd.,

4Aspen charters vessels to transport wind turbine generator components

from India to other countries, including the United States. In an effort to

avoid vessels returning to India empty handed, Aspen entered the contract

carriage business to obtain cargo for its return trips to India. 

5ProShipLine and EP-Team allege that Aspen sought to involve them in

multiple transactions that ProShipLine and EP-Team believed were illegal.

Aspen alleges that it had grown dissatisfied with ProShipLine’s and EPTeam’s performance, especially regarding bookkeeping and the handling

of a bank account operated by ProShipLine and EP-Team on behalf of

Aspen. 

PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2027
No. 4:07 Civ. 2549 (S.D. Tex. Aug. 8, 2007). ProShipLine

and EP-Team sought declaratory relief regarding the construction and enforcement of the Agreement and to compel

arbitration. Aspen then moved to stay the case pending resolution of the parties’ disputes through arbitration in Singapore.

On December 5, 2007, the Texas District Court granted

Aspen’s motion and administratively closed the First Texas

Action. The court expressly left open the option to reinstate

the case following the conclusion of the arbitration proceedings.

On December 7, 2007, ProShipLine and EP-Team initiated

a second action against Aspen in the Southern District of

Texas (the “Second Texas Action”). ProShipLine, Inc. v. M/V

Beluga Revolution, No. H-07-4170, 2007 WL 5397377, at *1

(S.D. Tex. Dec. 7, 2007). In that action, ProShipLine and EPTeam sought an order and writ of maritime attachment pursuant to Rule B. The district court issued the writ on December

10, 2007. Aspen immediately moved to vacate the writ. After

conducting an evidentiary hearing on December 14, 2007, the

district court granted Aspen’s motion and vacated the writ.6

ProShipLine, Inc. v. M/V Beluga Revolution, No. H-07-4170,

2007 WL 4481101, at *1 (S.D. Tex. Dec. 18, 2007).

B

Similar legal proceedings took place in New York. On

October 12, 2007, Aspen brought suit against EP-Team individually in the Southern District of New York (the “First New

York Action”). Aspen Infrastructures, Ltd. v. E.P. Team, Inc.,

No. 07 Civ. 8813 (RWS), 2008 WL 2963491 (S.D.N.Y. Aug.

1, 2008). Aspen alleged admiralty jurisdiction and sought an

6The district court concluded that the writ had been improperly issued

because ProShipLine and EP-Team had failed to sufficiently show that

Aspen could not be “found” within the district, a requirement of Rule B.

ProShipLine, Inc. v. M/V Beluga Revolution, 2007 WL 4481101, at *2-*3

(S.D. Tex. Dec. 18, 2007). 

2028 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
order and writ of maritime attachment pursuant to Rule B.

The district court ordered the issuance of the writ. Pursuant to

that writ, Aspen successfully seized funds belonging to EPTeam.7

On December 3, 2007, ProShipLine independently filed a

separate action against Aspen in the Southern District of New

York (the “Second New York Action”). ProShipLine, Inc. v.

Aspen Infrastructures, Ltd., 533 F. Supp. 2d 422, 425

(S.D.N.Y. 2008). ProShipLine sought an order and writ of

maritime attachment pursuant to Rule B. The district court

issued the writ, and ProShipLine garnished Aspen and seized

approximately $2 million from Aspen’s bank accounts. On

January 16, 2008, Aspen moved to vacate the district court’s

order in the Second New York Action. The district court ruled

in favor of Aspen on February 1, 2008, and vacated the writ.8

ProShipLine appealed the district court’s grant of this motion

to the Second Circuit, which affirmed the district court.

ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 585 F.3d

105, 110 (2d Cir. 2009) (affirming “solely on the ground that

the district court did not err in concluding that [ProShipLine

and Aspen] were both present in the Southern District of

Texas”).

7EP-Team moved, unsuccessfully, to vacate this writ. The district court

concluded that EP-Team had been unable to show that it was “found” in

the same district as Aspen, and therefore the writ was properly issued.

Aspen Infrastructures, Ltd. v. E.P. Team, Inc., 2008 WL 2963491, at *1

(S.D.N.Y. Aug. 1, 2008). 

8The district court granted Aspen’s motion because it concluded that the

Agreement did not give rise to admiralty jurisdiction, that Aspen and

ProShipLine were both present in the Southern District of Texas and that

ProShipLine had abused the ex parte Rule B process by filing a separate

suit against Aspen rather than making a counterclaim in the existing suit.

ProShipLine, Inc. v. Aspen Infrastructures, Ltd., 533 F. Supp. 2d 422,

427-29 (S.D.N.Y. 2008). 

PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2029
C

The parties brought their legal struggles to Washington on

November 27, 2007, when ProShipLine and EP-Team filed

another ancillary Rule B action in the Western District of

Washington (the “Washington Action”). See ProShipLine,

Inc. v. Aspen Infrastructures, Ltd., No. C07-5660FDB, 2008

WL 859753 (W.D. Wash. Mar. 28, 2008). ProShipLine and

EP-Team successfully obtained a writ of maritime attachment

against Aspen. In light of the district court’s order, Aspen

posted security pursuant to Supplemental Admiralty and Maritime Claims Rule E(5) (“Rule E(5)”) in lieu of allowing

ProShipLine and EP-Team to garnish the fuel and lube oil

aboard one of Aspen’s chartered vessels within the district. 

In December of 2007, a second ship chartered by Aspen,

the M/V BELUGA FUSION (the “Beluga”), entered the

Western District of Washington. ProShipLine and Aspen

sought to garnish the fuel and lube oil aboard the Beluga. This

time, Aspen declined to provide security to substitute for garnishment of those resources. On December 27, 2007, the district court held an “emergency” hearing. The court rejected

ProShipLine’s and EP-Team’s argument that it could compel

Aspen to provide security.9 Given the choice to either waive

their right to garnish the property or take the resources despite

alleged impracticability, ProShipLine and EP-Team removed

the fuel and lube oil from the Beluga. With the fuel and lube

oil in hand (or in container, as the case may be), ProShipLine

and EP-Team moved for an order to authorize the sale of the

property. On January 30, 2008, the district court issued the

order permitting sale of the garnished property. ProShipLine,

9ProShipLine and EP-Team sought security because they alleged that

garnishment of the fuel and lube oil aboard the Beluga would be impracticable. Specifically, ProShipLine and EP-Team argued that due to the complexities involved in removing the fuel and lube oil from the Beluga, the

cost of removal and storage would exceed the actual value of those

resources. 

2030 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
Inc. v. Aspen Infrastructures, Ltd., No. C07-5660FDB, 2008

WL 276497 (W.D. Wash. Jan. 30, 2008). The property was

subsequently sold.10

On February 12, 2008, Aspen moved to vacate the writ that

the district court issued in the Washington Action and to

exonerate the security held by ProShipLine and EP-Team pursuant to that writ. ProShipLine, Inc. v. Aspen Infrastructures,

Ltd., 2008 WL 859753 (W.D. Wash. Mar. 28, 2008). On

March 28, 2008, the district court granted Aspen’s motion and

vacated the writ. The district court also ordered ProShipLine

and EP-Team to return the full value of the garnished property.11

The district court held that equitable vacatur was appropriate

because the Agreement did not give rise to admiralty jurisdiction, res judicata applied from the Second New York Action

and all of the parties were present within the same district. 

ProShipLine and EP-Team moved for reconsideration on

the grounds that the district court had allegedly awarded damages to Aspen by ordering ProShipLine and EP-Team to reimburse Aspen. ProShipLine, Inc. v. Aspen Infrastructures, Ltd.,

No. C07-5660FDB, 2008 WL 1757932 (W.D. Wash. Apr. 17,

2008). The district court denied the motion. The court concluded that the amount that ProShipLine and EP-Team had

deposited into the court registry was less than the market

value they had agreed upon prior to garnishment.

10In accord with the sale, ProShipLine and EP-Team deposited an

amount equal to the actual sale price of the fuel and lube oil—$64,129.50

—into the court registry on March 17, 2008. 

11Specifically, the district court ordered ProShipLine and EP-Team to

pay Aspen an additional $28,092.06, the difference between the amount

ProShipLine and EP-Team had deposited into the court registry and the

fair market value of the garnished property at the time it was garnished.

ProShipLine, Inc. v. Aspen Infrastructures, Ltd., No. C07-5660FDB, 2008

WL 1757932, at *1 (W.D. Wash. Apr. 17, 2008). 

PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2031
II

We review an order vacating a writ of maritime attachment

for abuse of discretion. Equatorial Marine Fuel Mgmt. Servs.

Pte Ltd. v. MISC Berhad, No. 08-57046, 2010 WL 59212, at

*1 (9th Cir. Jan. 11, 2010). We review the legal conclusions

supporting such an order de novo. Id.

We review de novo a district court’s decision that it lacked

the legal capacity under the Admiralty Rules to order a party

to post security in lieu of garnishment. See Husain v. Olympic

Airways, 316 F.3d 829, 835 (9th Cir. 2002) (noting that conclusions of law are reviewed de novo), aff’d, 540 U.S. 644

(2004).

III

The district court vacated ProShipLine’s and EP-Team’s

writ of maritime attachment because it concluded that there

was no valid maritime claim giving rise to admiralty jurisdiction. The district court also held that it was bound by res judicata to vacate the writ. The district court further concluded

that attachment was improper because all of the parties were

present in the Southern District of Texas. On appeal to this

court, Aspen offers a fourth reason that equitable vacatur was

proper, arguing that ProShipLine and EP-Team violated 9

U.S.C. § 8 by seeking maritime attachment without diligently

pursuing arbitration in Singapore. The district court properly

vacated the writ as to ProShipLine. The district court, however, abused its discretion by vacating the writ as it pertains

to EP-Team individually.

A

[1] A party may only seek Rule B attachment if the underlying claim satisfies admiralty jurisdiction under 28 U.S.C.

§ 1333. The Supreme Court explains that a contractual claim

gives rise to Section 1333 admiralty jurisdiction when the

2032 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
underlying contract is “maritime in nature.” Norfolk S. Ry.

Co. v. James N. Kirby, Pty Ltd., 543 U.S. 14, 26 (2004). To

make this determination, we must examine a contract to determine “whether the principal objective of a contract is maritime commerce.” Id. at 25. In adopting this framework, the

Supreme Court rejected the longstanding “spatial approach”

to determining the maritime nature of contracts. Id. at 24-25.

The Court instead held that a “conceptual approach” was

needed because modern maritime commerce “is often inseparable from some land-based obligations.” Id. at 25. The conceptual approach acknowledges this modern reality by

examining whether the contract references “maritime service

or maritime transactions.” Id. at 24 (quoting N. Pac. S.S. Co.

v. Hall Brothers Marine Ry. & Shipbuilding Co., 249 U.S.

119, 125 (1919)).

The district court here did not examine the Agreement as

required by Norfolk Southern Railway Co. The district court

instead applied analysis employed by a few cases in the

Southern District of New York. These cases suggest that

whether a contract is maritime for the purpose of admiralty

jurisdiction hinges upon whether the contract involves specific vessels and specific transactions. See, e.g., Dolco Invs.

v. Moonriver Dev., 486 F. Supp. 2d 261, 267-68 (S.D.N.Y.

2007). The district court concluded that the Agreement was

not a maritime contract because it did not make “reference to

specific vessels or voyages.”

[2] In so deciding, the district court abused its discretion.

Norfolk Southern Railway Co. controls and should have been

applied by the district court. Under the conceptual test

adopted by the Supreme Court, the Agreement manifestly has

maritime commerce as its “principal objective.” The Agreement begins by stating that Aspen “seeks to utilize the services of [ProShipLine and EP-Team] in support of its efforts

to book space on its vessels.” ProShipLine’s and EP-Team’s

primary obligations under the Agreement are to “secure

freight and associated revenue,” obtain “opportunities to add

PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2033
cargo to specific outbound voyages” and handle all “port and

terminal handling operations” including “terminal facilitation,

stevedoring, and heavy lift operations.” Although many of

these obligations are performed on land, there is no question

that their sole purpose is to facilitate and make possible

Aspen’s international maritime operations. 

[3] Contrary to the district court’s conclusion, the Agreement gives rise to federal maritime jurisdiction under 28

U.S.C. § 1333. Our interpretation of the Agreement is in

accord with the Second Circuit, which concluded that the

Agreement has an “undeniably maritime flavor” under the

Norfolk Southern Railway Co. conceptual test. ProShipLine,

Inc. v. Aspen Infrastructures, Ltd., 585 F.3d 105, 115 (2d Cir.

2009).

B

[4] Res judicata bars a suit when “a final judgment on the

merits of an action precludes the parties or their privies from

relitigating issues that were or could have been raised in that

action.” Allen v. McCurry, 449 U.S. 90, 94 (1980). We have

further explained that res judicata applies when there is “(1)

an identity of claims; (2) a final judgment on the merits; and

(3) identity or privity between parties.” Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002).

The district court abused its discretion by concluding that

it was bound by res judicata to vacate the writ to conform

with the Southern District of New York’s decision to vacate

the writ involved in the Second New York Action. We examine four factors to determine whether there is an “identity of

claims”:

(1) whether the two suits arise out of the same transactional nucleus of facts; (2) whether rights or interests established in the prior judgment would be

destroyed or impaired by prosecution of the second

2034 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
action; (3) whether the two suits involve infringement of the same right; and (4) whether substantially

the same evidence is presented in the two actions.

Mpoyo v. Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th

Cir. 2005) (emphasis added). Whether two suits arise out of

the “same transactional nucleus” depends upon “whether they

are related to the same set of facts and whether they could

conveniently be tried together.” W. Sys., Inc. v. Ulloa, 958

F.2d 864, 871 (9th Cir. 1992) (emphasis added). Reliance on

the transactional nucleus element is especially appropriate

because the element is “outcome determinative.” Mpoyo, 430

F.3d at 988; see also Int’l Union v. Karr, 994 F.2d 1426,

1429-30 (9th Cir. 1993). 

[5] Here, the district court’s application of res judicata was

erroneous because there is no identity of claims. The appeal

before us and the Second New York Action do not arise from

the same “transactional nucleus.” Although both cases involve

similar sets of facts, the claim in this suit could not have been

tried in the Second New York Action at all, much less conveniently. In order to bring a claim of maritime attachment

within the Second Circuit, a plaintiff must allege that “the

defendant’s property may be found within the district” where

the garnishment action is being brought. Aqua Stoli Shipping

Ltd. v. Gardner Smith Pty Ltd., 460 F.3d 434, 445 & n.5 (2d

Cir. 2006). The Southern District of New York is completely

unable to entertain a claim seeking admiralty attachment of

property on board a vessel, such as the Beluga, located in the

Western District of Washington. Absent an identity of claims,

res judicata cannot apply in this case.12

12The parties have been inconsistent in their use of the term “res judicata” in their briefing, sometimes referring to both claim and issue preclusion. It is also unclear from the district court’s order whether its decision

rests solely on claim preclusion or alternatively on both claim and issue

preclusion. Insofar as the district court may have relied on issue preclusion, we conclude that issue preclusion also does not apply here. 

PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2035
C

[6] Although we have not previously elaborated upon equitable vacatur in the context of admiralty law, the Second Circuit has described three specific instances when equitable

vacatur of a writ of maritime attachment may be appropriate:

[A] district court may vacate [a writ of maritime

attachment] if the defendant shows . . . that 1) the

defendant is subject to suit in a convenient adjacent

jurisdiction; 2) the plaintiff could obtain in personam

jurisdiction over the defendant in the district where

the plaintiff is located; or 3) the plaintiff has already

obtained sufficient security for the potential judgment, by attachment or otherwise.

Id. at 445 (emphasis added). Here, the district court held that

equitable vacatur was appropriate because the second situation described by the Second Circuit applied. The district

court reasoned that ProShipLine and EP-Team had successfully obtained in personam jurisdiction over Aspen in the

Southern District of Texas and that ProShipLine and EPTeam were both “present” in that district. Although we agree

with and adopt the contours of equitable vacatur laid out by

the Second Circuit, we disagree with the district court that the

second situation applies to EP-Team.

[7] A plain language reading of the phrase “the district

where the plaintiff is located” suggests that the plaintiff must

First, the Southern District of New York’s conclusion that the contract

is not a maritime contract was rejected by the Second Circuit on appeal

and gives no basis for issue preclusion. Second, the district court’s conclusion that ProShipLine was “present” in the Southern District of Texas is

irrelevant to the issue of whether EP-Team is “located” there. See Part

III.C, infra. And third, the possibility that ProShipLine abused the ex parte

nature of Rule B attachment proceedings in the Southern District of New

York is also irrelevant to the action before us. 

2036 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
have a materially significant presence in the district where it

is obtaining in personam jurisdiction over the defendant.13

The second Aqua Stoli Shipping situation stresses that the district must be “the” district where the plaintiff is located, not

“a” district or “any” district where the plaintiff is located and

can obtain in personam jurisdiction over the defendant. We

interpret this language to allow for equitable vacatur in situations when a plaintiff could obtain in personam jurisdiction

over the defendant in the district where the plaintiff has its

most significant presence. Our understanding of the second

Aqua Stoli situation is in complete agreement with the Southern District of New York, which has addressed this exact

question. See Peter Dohle Schiffahrts KG v. Sesa Goa Ltd.,

642 F. Supp. 2d 216, 224 (S.D.N.Y. 2009) (holding that the

second Aqua Stoli scenario “references ‘the’ district where the

plaintiff is located . . . [a] concept closely align[ed] with the

legal term ‘domicile’ ”).

[8] There is no question that ProShipLine is “located” in

the Southern District of Texas. Aspen’s briefing alleges, and

the record supports, that ProShipLine’s principal place of

business is in Houston, Texas, thereby prominently locating

it within that district. In reviewing the record before us, however, we find no support for the proposition that EP-Team is

“located” in the Southern District of Texas. The record does

not even show that EP-Team has a registered agent for service

of process in the Southern District of Texas,14 much less that

13As a practical matter, the phrase must require more than in personam

jurisdiction over the plaintiff. Otherwise, the moment that a plaintiff

brings suit against a defendant anywhere in the country, both parties

would be left adrift, unable to obtain maritime attachment in any jurisdiction due to the availability of equitable vacatur. Such a broad understanding of equitable vacatur would threaten to engulf the maritime attachment

rules and run contrary to the intention that equitable vacatur apply only in

“limited circumstances.” Aqua Stoli Shipping, 460 F.3d at 445. 

14Indeed, even EP-Team was unable to establish that it had a registered

agent for service of process in the Southern District of Texas when it

attempted to prove its presence in that district as a defense in the First

New York Action. See Aspen Infrastructures, Ltd. v. E.P. Team, Inc., 2008

WL 2663491, at *1 (S.D.N.Y. 2008). 

PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2037
EP-Team has such a significant presence in that district as to

make it “the” district where EP-Team is located.15 Absent

such a showing, the district court’s application of equitable

vacatur to EP-Team individually was an abuse of discretion.

EP-Team has not been shown to be “located” in a district

where it has in personam jurisdiction over Aspen.16

D

Aspen argues that, in addition to the three reasons provided

by the district court, equitable vacatur of the writ was also

appropriate because ProShipLine and EP-Team violated 9

U.S.C. § 8 by allegedly seeking a Rule B writ without pursuing arbitration in Singapore. The district court was “not convinced” by Aspen’s argument. Neither are we.

[9] Section 8 provides:

If the basis of jurisdiction be a cause of action otherwise justiciable in admiralty, . . . the party claiming

to be aggrieved may begin his proceeding hereunder

by libel and seizure of the vessel or other property of

the other party . . . and the court shall then have

jurisdiction to direct the parties to proceed with the

arbitration . . . .

15The district court’s sole reason for concluding that EP-Team was “located” in the Southern District of Texas was that, in the Second Texas

Action, ProShipLine and EP-Team had jointly alleged in their complaint

that their principal place of business was in the Southern District of Texas.

Mere allegations in a complaint in a different suit in a different jurisdiction

are entirely insufficient grounds on which to conclude that EP-Team was

“located” in the Southern District of Texas, especially when the allegations are contrary to other facts in the record. 

16Because the district court abused its discretion in vacating the writ as

to EP-Team, it also automatically abused its discretion by ordering EPTeam to pay Aspen the market value of the attached resources. We need

not address ProShipLine’s and EP-Team’s argument that the order to

reimburse Aspen constituted the entry of a money judgment. 

2038 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
9 U.S.C. § 8. The Supreme Court interprets Section 8 as a

Congressional declaration that “traditional admiralty procedure with its concomitant security should be available to the

aggrieved party” despite the fact that the “parties had agreed

to arbitrate.” The Anaconda v. Am. Sugar Refining Co., 322

U.S. 42, 46 (1944). The ability to pursue maritime attachment,

however, does not lessen a party’s “obligation to arbitrate [its]

grievance.” Id. Aspen argues that the district court properly

vacated the writ because ProShipLine and EP-Team have not

been diligent in pursuing arbitration in Singapore.

[10] Aspen’s argument is weak on several counts. Neither

the plain text of Section 8 nor the Supreme Court’s interpretation of it suggests that the Section permits a district court to

vacate a Rule B writ if it deems that the plaintiff is not pursuing arbitration. Aspen also fails to salvage its argument by citing any case in support of its novel understanding of Section

8. Moreover, even if we were to adopt Aspen’s interpretation,

it still would not apply here because the record is ambiguous

as to which party has actually been at fault for the slow progress of the Singapore arbitration. The district court acted well

within its discretion in concluding that Aspen’s argument

lacks merit.

IV

ProShipLine and EP-Team contend that the district court

also erred by concluding that a district court lacks the legal

capacity under the Admiralty Rules to order a party to post

security in lieu of garnishment. The district court’s conclusion

was correct.

[11] Supplemental Admiralty and Maritime Claims Rule

E(4)(b) (“Rule E(4)(b)”) states that a marshal may, pursuant

to a warrant, take possession of tangible property for safe custody or, in cases where “possession is impracticable,” may

“affix a copy [of the warrant] to the property in a conspicuous

place.” Rule E(5) provides that the “owner of any vessel may

PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2039
file a general bond or stipulation” to cause the execution of

all processes against the vessel, such as garnishment, to be

stayed provided that the bond or stipulation is sufficient. 

[12] ProShipLine and EP-Team argue that, in the aggregate, these Rules empower a district court to order a party to

post security in lieu of garnishment. Neither provision even

remotely grants district courts such authority. Rule E(4)(b)

refers to impracticability only in the sense that it allows a

marshal to leave notice on property that is “impracticable” to

possess. Rule E(5) is a permissive rule that allows garnishees

to post security in lieu of having their property garnished.

ProShipLine’s and EP-Team’s novel argument that these provisions allow courts to compel the posting of security in lieu

of garnishment in instances of impracticability completely

misinterprets the underlying rules.

V

[13] The district court abused its discretion by vacating the

writ as it pertains to EP-Team. The writ shall be reinstated on

behalf of EP-Team individually. Because the writ was

improperly vacated as to EP-Team, the order to reimburse

Aspen for the value of the garnished property is also

improper.

AFFIRMED in part, REVERSED in part and

REMANDED. Each party shall bear its own costs on appeal.

TALLMAN, Circuit Judge , concurring in part, dissenting in

part:

I agree with the majority’s analysis regarding ProShipLine,

and concur in the opinion affirming the vacatur of attachment

against that company. However, I disagree that the writ of

2040 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
attachment was appropriate as to EP-Team, and as to that portion of the court’s opinion, I respectfully dissent.

I would hold that Judge Franklin D. Burgess did not err

under Rule E by vacating the Rule B writ of attachment

against EP-Team. Because our jurisprudence interpreting

Rule E vacatur is in its infancy, we have rarely had the opportunity to address when vacatur is appropriate. In Equatorial

Marine Fuel Management Services Pte Ltd. v. MISC Berhad,

No. 08-57046, 2009 WL 59212, at *1 (9th Cir. Jan. 11, 2010),

we upheld vacatur because the plaintiff failed to show a need

for attaching the defendant’s property. There we explained

that Rule B attachment of a defendant’s property is appropriate if: “(1) plaintiff has a valid prima facie admiralty claim

against the defendant; (2) defendant cannot be found within

the district; (3) property of the defendant can be found within

the district; and (4) there is no statutory or maritime law bar

to the attachment.” Id. (citing Aqua Stoli Shipping Ltd. v.

Gardner Smith Pty Ltd., 460 F.3d 434, 445 (2d Cir. 2006);

Fed. R. Civ. P., Supp. R. B)). We concluded that a court may

order vacatur of that attachment under Supplemental Rule

E(4)(f) if the “plaintiff failed to meet one of the four conditions for attachment.” Equatorial Marine Fuel, 2009 WL

59212, at *1 (citing Aqua Stoli Shipping, 460 F.3d at 445).

However, we did not discuss any other instance where

vacatur might be an appropriate remedy. Prior to the promulgation of Rule E(4)(f), we opined on the underlying reasons

for granting pre-judgment attachment. We looked to Supreme

Court precedent, which informed us that “[t]he process of foreign attachment . . . has two purposes: to secure a respondent’s appearance and to assure satisfaction in case the suit is

successful.” Polar Shipping Ltd. v. Oriental Shipping Corp.,

680 F.2d 627, 636 (9th Cir. 1982) (quoting Swift & Co. Packers v. Compania Columbiana Del Caribe, S.A., 339 U.S. 684,

693 (1950) (citation omitted)). From this we gleaned that the

first purpose of attachment is met by “obtain[ing] jurisdiction

over the respondents in personam through their property.” J.

PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2041
Lauritzen A/S v. Dashwood Shipping, Ltd., 65 F.3d 139, 141

(9th Cir. 1995) (citing Polar Shipping Ltd., 680 F.2d at

636-37). 

Since obtaining in personam jurisdiction is a principal justification for authorizing a prejudgment writ of attachment, it

follows that if the plaintiff can secure such jurisdiction over

the defendant by some other means, then there is no need to

attach property. Therefore, it seems reasonable that vacatur is

appropriate if in personam jurisdiction is available over all

parties in another court. This is what the Second Circuit held

in Aqua Stoli Shipping. Our sister circuit logically explained

that, even respecting the time-honored special proceedings

applicable to maritime law, there are instances where courts

should permit equitable vacatur. The Second Circuit was

“persuaded that vacatur may be warranted when the defendant

can show that it would be subject to in personam jurisdiction

in another jurisdiction convenient to the plaintiff.” Aqua Stoli

Shipping, 460 F.3d at 445. The court continued: “[a] maritime

attachment would likewise be properly vacated if the plaintiff

and defendant are both present in the same district and would

be subject to jurisdiction there, but the plaintiff goes to

another district to attach the defendant’s assets.” Id. at 444-45.

Here, my colleagues recognize that ProShipLine and Aspen

are subject to in personam jurisdiction in the Southern District

of Texas. However, the court’s opinion concludes that there

is a dearth of evidence in the record to support a finding that

the Southern District of Texas would have jurisdiction over

EP-Team. This, it says, requires that we reinstate the writ as

to EP-Team only.

It does not follow that we should affirm the district court’s

grant of vacatur as to ProShipLine and not as to EP-Team.

EP-Team is “present in the same district [as defendant Aspen]

and would be subject to jurisdiction there. Id. at 444-45. That

district is the Southern District of Texas. The reason is simple.

EP-Team acceded to in personam jurisdiction there by choos2042 PROSHIPLINE INC v. ASPEN INFRASTRUCTURES
ing to file the underlying lawsuit against Aspen within that

district, and counsel conceded jurisdiction there at oral argument. It is a basic tenet of personal jurisdiction jurisprudence

that one subjects himself to the jurisdiction of the court where

he brings suit. Cf. 28 U.S.C. § 1404(a) (not requiring sufficient minimum contacts over plaintiff for transfer to be appropriate); In re Genentech, Inc., 566 F.3d 1338, 1346 (Fed. Cir.

2009) (“There is no requirement . . . that a transferee court

have jurisdiction over the plaintiff or that there be sufficient

minimum contacts with the plaintiff; there is only a requirement that the transferee court have jurisdiction over the defendants in the transferred complaint.”); FTC v. Watson Pharms.,

Inc., 611 F. Supp. 2d 1081, 1090 (C.D. Cal. 2009) (“[T]here

is no need to enter into an analysis of minimum contacts

between the State of California and Georgia, because it is not

necessary for the transferee forum to have personal jurisdiction over the plaintiff.”) (citing Murray v. Scott, 176 F. Supp.

2d 1249, 1255 (M.D. Ala. 2001) (same)). 

EP-Team’s consent to jurisdiction was not merely some

“allegation” that it was subject to suit in that district. It willingly availed itself of the process and power of that court by

choosing to file its complaint against Aspen there. It should

not now be permitted to claim that it is not “present” in the

Southern District of Texas when it initiated the underlying

claim in this case in that very court.

Because the record strongly suggests that maritime attachments are being employed by ProShipLine and EP-Team for

the vexatious purpose of harassing Aspen in order to gain tactical advantage in the pending commercial disputes among the

parties in Singapore and Houston, the district court did not

abuse its discretion in vacating the writs. Equity should not

countenance such litigation tactics even in a maritime case.

Therefore, I would hold that vacatur was appropriate as to

both ProShipLine and EP-Team. 

PROSHIPLINE INC v. ASPEN INFRASTRUCTURES 2043