Michael J. Walsh (6578) 

Keith W. Heard (8578) 

Burke & Parsons 

100 Park Avenue 

New York, NY 10017-5533 

Tel: (212) 354-3800 

Fax: (212) 221-1432 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

SINORICHES GLOBAL LIMITED, 07-Civ-5779 (RJH) 

Plaintiff,

v. 

NEW OCEAN SHIPPING CO. LTD., 

MULTILOGISTIC SRL, and 

ARO STEEL SRL 

Defendants.

 

REPLY MEMORANDUM OF LAW 

IN SUPPORT OF ORDER 

TO SHOW CAUSE TO VACATE 

ATTACHMENT AND DISMISS 

COMPLAINT 

Electronically Filed 

Defendant, Multilogistic Srl (“Multilogistic”), submits this Reply Memorandum of 

Law to rebut arguments made by plaintiff, Sinoriches Global Limited (“SGL”), in its 

Memorandum of Law in Opposition to Motion to Vacate (“Memo in Opposition”). 

POINT I 

PLAINTIFF HAS NOT ESTABLISHED A VALID PRIMA FACIE 

ADMIRALTY CLAIM AGAINST MULTILOGISTIC. 

Plaintiff erroneously claims Multilogistic is urging a fact-intensive inquiry on this 

Court in violation of the spirit of Aqua Stoli Shipping, Ltd. v. Gardner Smith Pty, Ltd., 460 

Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 1 of 16
REPLY MEMORANDUM OF LAW Page 2 of 10 

F.3d 434 (2d Cir. 2006). However, any fair reading of Multilogistic’s Memorandum of 

Law shows that it is the sufficiency of the pleading itself, under the heightened pleading 

standard of Fed.R.Civ.P. Supp. E (2)(a), which Multilogistic attacks. Multilogistic does 

not ask this Court to engage in any far-flung factual inquiry. It simply requests that the 

Court determine whether information set forth within the four corners of the pleading 

sufficiently states a valid prima facie maritime claim against Multilogistic. 

Plaintiff mistakenly asserts “[t]he factual dispute as to which defendant is 

responsible for the payment of demurrage is not to be analyzed at this stage” [i.e., at the 

Supplemental Rule E (4)(F) hearing]. Memo in Opposition, p. 7. However, if the Winter 

Storm and Aqua Stoli decisions teach anything at all, it is that the attaching plaintiff must 

have an in personam claim against the defendant whose assets are seized. Here, however, 

we have nothing more than plaintiff’s ipse dixit assertions of Multilogistic’s 

“responsibility” for New Ocean’s debt.

Plaintiff claims that its pleading “more than sufficiently alleged a valid prima facie 

claim against Multilogistic.” Memo in Opposition, p. 7. It further asserts that it has 

adequately pled that Multilogistic “breached a maritime contract.” Memo in Opposition, 

p. 6. However, there is simply no allegation of “breach” in paragraphs 6, 7 or 8 of the 

Verified Complaint. More importantly, there is no allegation of a contract between 

Multilogistic and SGL (or of facts from which this Court could legitimately infer a 

Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 2 of 16
REPLY MEMORANDUM OF LAW Page 3 of 10 

contractual responsibility on the part of Multilogistic for a debt allegedly incurred under 

the SGL/New Ocean contract). 

The mere fact that there were similar charters executed on the same day between 

SGL and New Ocean, on the one hand, and New Ocean and Multilogistic --acting as 

agent for AroSteel -- on the other, does not demonstrate anything untoward or nefarious. 

Indeed, this is the very nature of the shipping business and it is how profits are made. 

One party leases space on a ship and then re-lets the space, in turn, to someone else, at a 

higher rate. This is simply arbitrage. It does not, however, destroy the separateness of the 

contracting parties within the contracting chain. Nor does it create substantive liabilities 

between parties such as Multilogistic and SGL, who are not in privity of contract with 

each other. 

Plaintiff mistakenly argues that “Multilogistic paid the Sinoriches freight bill.” 

Memo in Opposition, p. 7; see also Bennett Declaration, ¶¶ 9, 10 (and Exhibit E attached 

thereto). No doubt, plaintiff hopes to create a false syllogism that, if Multilogistic paid the 

freight bill directly to SGL, it should, therefore, be held similarly liable to pay the 

demurrage bill directly to SGL. However, Plaintiff’s underlying premise is wrong. SGL 

did not bill freight directly to Multilogistic (see Exhibit E to Bennett Declaration which 

plainly shows that SGL directed its freight invoice to its contractual partner, New Ocean.) 

Moreover, Multilogistic did not pay freight directly to SGL. Instead, New Ocean sent its 

own freight bill to Multilogistic (as would be expected, given the separate contractual 

Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 3 of 16
REPLY MEMORANDUM OF LAW Page 4 of 10 

relationships between the parties). A copy of New Ocean’s freight bill to Multilogistic is 

attached hereto as Exhibit A. As can readily be seen from New Ocean’s freight invoice, it 

was New Ocean who directed that Multilogistic make its freight payment in two separate 

subpayments. New Ocean’s payment instructions on the freight invoice direct a partial 

payment to a bank account at Nanyang Commercial Bank Ltd., in favor of Oceanlink 

Navigation Co. Limited. (Apparently, Sinoriches now claims some connection with this 

account, although Multilogistic had no knowledge of such at the time the payment was 

made.) New Ocean’s freight invoice directed that Multilogistic pay the balance of New 

Ocean’s freight invoice to a bank account at China Merchants Bank H.O., Shenzhen, 

P.R.C. in favor of Eastern Ocean Transportation Co., Limited. Multilogistic made the 

foregoing two subpayments in the manner directed by its contractual partner, New 

Ocean. See Evidence of Payment, attached hereto as Exhibit B. Thus, the formal 

distinctions between the SGL/New Ocean and New Ocean/Multilogistics charters were 

respected by the parties and there is no basis to hold Multilogistics liable, on the present 

state of the pleadings, for New Ocean’s debt to SGL. 

Finally, Plaintiff argues that Multilogistic was more than simply the agent of 

AroSteel. Bennett Declaration, ¶ 8. Yet, Plaintiff acknowledged in correspondence with 

Multilogistic that AroSteel was Multilogistic’s “principal”. On May 22, 2007, SGL’s 

agents, Trafalgar Shipping Ltd., sent Multilogistics an email plainly acknowledging that 

Multilogistic was merely an agent for a disclosed principal, AroSteel. A copy of this email 

(together with an informal translation thereof) is attached hereto as Exhibit C. Moreover, 

Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 4 of 16
REPLY MEMORANDUM OF LAW Page 5 of 10 

in the correspondence which Multilogistic sent to the agents for SGL, it clearly confirmed 

that it was acting merely “as agent” for AroSteel. See Exhibit D attached hereto. It is 

hornbook law that an agent for a disclosed principal is not liable for a breach of contract 

by the principal. Fireman’s Fund McMgee Marine v. M/V CAROLINE, No. 02-Civ. 6188, 

2004 WL 287633, at * 2 (S.D.N.Y. February 11, 2004). 

Quite simply, Plaintiff has failed to adequately address the Tide Line and Dolco 

Investment decisions discussed at length in defendant’s Memorandum in Support of the 

Motion to Vacate. Both of those decisions teach that Aqua Stoli did not void Rule E 

(2)(a’s) heightened requirement for pleading facts as opposed to mere legal conclusions. 

In addition, by introducing the transcript of the hearing held before Judge Castel on 

September 29, 2006 in Route Holding Inc. Beam Co. v. International Oil Overseas Inc., (See 

Exhibit 1 to Memo in Opposition)1

, Plaintiff has only reinforced Multilogistic’s argument 

that facts and not conclusions are necessary under Rule E (2)(a). From a review of that 

transcript, it is apparent that the allegations in the Complaint before Judge Castel were 

more detailed than those at issue here. See page 24 of the transcript which recite the 

 

1

 The Memo in Opposition purports at page 4 to attach as “Exhibit 1” the “Order inTide 

Line, Inc. v. Eastrade Commodities, Inc. and Transclear, S. A, 06 Civ, 1979 (KMW).” 

However, the Tide Line Order was not attached to the opposition papers forwarded under 

cover of plaintiff’s email to the Court dated August 14, 2007. What was attached to the 

Memo in Opposition was the transcript of a hearing in an entirely different proceeding, 

Route Holding Inc. Beam Co. v. International Oil Overseas Inc., 06 Cv 03428.

Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 5 of 16
REPLY MEMORANDUM OF LAW Page 6 of 10 

operative allegations containing facts sufficient to state a piercing claim.2 Moreover, 

Judge Castel had before him a Declaration from the plaintiff which contained highly 

detailed factual allegations which Judge Castel found alleged a piercing claim “chapter 

and verse.” See Transcript, p. 25. Here by contrast, the record is simply devoid of any 

allegation by SGL of a contract between SGL and Multilogistic or of any facts which 

would state a valid prima facie maritime claim against Multilogistic for a debt on a 

contract to which it is not a party. 

POINT II 

PLAINTIFF HAS MISREAD THE UNIFORM CONVENTION 

WHICH FORMS A STATUTORY BAR TO THIS ACTION. 

In Aqua Stol., 460 F.3d at 445, the Second Circuit explained that, at a Rule E (4)(f) 

hearing, an attaching plaintiff must show inter alia that there is no statutory or maritime 

law bar to the attachment. In its main brief, Multilogistic established that Plaintiff’s 

allegation that its demurrage claim is arbitrable must be examined against the 

requirements of the Convention on the Recognition and Enforcement of Foreign Arbitral 

 

2

 The operative allegations, which contain more facts than those in issue here, was 

summarized by Judge Castel as follows: 

Here, the plaintiff alleges that MWS is the alter ego of IOOI, but it does not 

simply leave it as a conclusory allegation. It goes on to allege that the 

reason it believes it is the alter ego is because IOOI dominates and 

disregards MWS’s corporate form to the extent that MWS is actually 

carrying on IOOI’s business and operations as if the same were its own. It 

further goes on to allege that MWS, acting as paying agent, acts as paying 

agent or arranges for other nonparties to satisfy the debts and obligations of 

IOOI. (Emphasis added). Transcript, p. 24.

Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 6 of 16
REPLY MEMORANDUM OF LAW Page 7 of 10 

Awards, June 10, 1958, 21 U.S.T. 2517, 330 U.N.T.S. 38 (entered into force with respect to 

the United States, Dec. 29, 1970) (the “Convention”), as implemented, 9 U.S.C. §§ 201-

08.3

 The Convention requires that, for an arbitration agreement to be legally enforceable, 

it must be set forth in an agreement in writing and that agreement must be contained in 

“an arbitral clause in a contract or an arbitration agreement, signed by the parties or 

contained in an exchange of letters or telegrams.” Convention art. II, § 2. 

Unable to satisfy the Convention’s requirements, Plaintiff opts instead to change

Multilogistic’s argument and respond to the straw man it has created. Plaintiff takes the 

position that the Convention does not prohibit the use of provisional remedies such as 

attachment pursuant to Supplemental Rule B, relying on this Court’s decision in 

Construction Exporting Enterprises, Uneca v. Nikki Maritime Ltd., 558 F.Supp. 1372 

(S.D.N.Y. 1983). Although there are other cases which hold that the use of provisional 

remedies, such as attachment, is contrary to the Convention, see, e.g., McCreary Tire & 

Rubber Co. v. CEAT S.p.A., 501 F.2d 1032 (3d Cir. 1974), those cases, along with the case 

cited by Plaintiff, are absolutely irrelevant because Plaintiff has misdescribed the 

argument. 

The issue before this Court is not whether the Convention prohibits the use of 

provisional remedies, such as maritime attachment. The issue is whether the “agreement” 

 

3

 In Missouri v. Holland, 252 U.S. 416, 432 (1920), the Supreme Court observed that “by Article 6 [of the 

Constitution] treaties made under the authority of the United States, along with the Constitution and laws of 

the United States made in pursuance thereof, are declared the supreme law of the land.” See also, Renkel v. 

U.S., 456 F.3d 640, 642 (6th Cir. 2006) (“[T]reaties have the same legal effect as statutes”, citing Whitney 

v. Robertson, 124 U.S. 190 (1888)). 

Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 7 of 16
REPLY MEMORANDUM OF LAW Page 8 of 10 

to arbitrate alleged in the Complaint, as between Plaintiff and Multilogistic, is sufficient 

to satisfy the basic requirements of an “agreement in writing”, as required by the 

Convention. Convention art. II, § 1. 

Clearly, Plaintiff has failed to allege in the Complaint or show in its papers in 

opposition that its alleged agreement to arbitrate with Multilogistic passes muster under 

the Convention. Paragraph 6 of the Complaint alleges that Plaintiff entered into a charter 

party with defendant New Ocean by which the latter gained the use of the vessel MICRO, 

paragraph 8 alleges that Multilogistic was “bound by the terms and conditions of the 

charterparty” and paragraph 10 alleges that “pursuant to the terms and conditions of the 

charterparty”, all disputes were subject to arbitration in London. However, Plaintiff fails 

to allege that the charter party or the alleged arbitration agreement was “signed by the 

parties or contained in an exchange of letters or telegrams”, as required by the 

Convention. Id. at art. II, § 2. 

A maritime charter party does not have to be signed or in writing to be enforceable 

as a maritime contract under U.S. law. M.Wilford et al., Time Charters at p. 60 (5th ed. 

2003). However, that is not the same thing as containing a valid and enforceable 

agreement to arbitrate under the Convention, which has separate requirements. Plaintiff 

may have pleaded an enforceable contract with defendant New Ocean but that does not 

mean Plaintiff has established the existence of a valid and enforceable agreement to 

arbitrate with Multilogistic under the Convention. This pleading failure is fatal since, if 

Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 8 of 16
REPLY MEMORANDUM OF LAW Page 9 of 10 

Plaintiff cannot establish compliance with the Convention, it cannot prove there is no 

statutory or maritime law bar to the attachment, as required by the Second Circuit in 

Aqua Stoli. 

CONCLUSION 

For all the foregoing reasons, Plaintiff’s attachment of the total sum of $7,619.00 of 

Defendant Multilogistic’s funds should be vacated, garnishee Wachovia Bank should be 

ordered to release said funds and the Verified Complaint should be dismissed with 

prejudice as against Multilogistic, with attorneys’ fees and costs. 

Dated: New York, NY 

 August 15, 2007

BURKE & PARSONS 

Attorneys for Defendant 

MULTILOGISTICS SRL 

By s/Michael J. Walsh

Michael J. Walsh (MW-6578) 

100 Park Avenue 

 New York NY 10017-5533 

 (212)354-3800 

Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 9 of 16
REPLY MEMORANDUM OF LAW Page 10 of 10 

To: Bennett, Giuliano, McDonnell 

& Perrare LLP 

Attn: William R. Bennett III, Esq. 

Attorneys for Plaintiff 

225 West 34th Street 

Suite 402 

New York, NY 10122 

O:\CM\9011_MUL\BP_Doc\0012.doc 

Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 10 of 16
Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 11 of 16
Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 12 of 16
Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 13 of 16
Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 14 of 16
Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 15 of 16
Case 1:07-cv-05779-RJH Document 13 Filed 08/15/2007 Page 16 of 16