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., 

MULTILOGISTICS SRL, and 

ARO STEEL SRL 

Defendants.

 

Electronically Filed 

MEMORANDUM OF LAW IN SUPPORT OF ORDER 

TO SHOW CAUSE TO VACATE ATTACHMENT 

AND DISMISS COMPLAINT 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 1 of 25
- i - 

0006.DOC 

TABLE OF CONTENTS 

INTRODUCTION........................................................................................................................ 1 

STATEMENT OF FACTS ........................................................................................................... 2

POINT I 

PLAINTIFF CANNOT MEET ITS BURDEN TO SUSTAIN THE ATTACHMENT 

AT A RULE E(4(f) HEARING BECAUSE IT HAS NOT ESTABLISHED A 

PRIMA FACIE ADMIRALTY CLAIM AGAINST THIS DEFENDANT AND 

CANNOT ESTABLISH THERE IS NO STATUTORY BAR TO THE CLAIM................... 6 

 A. PLAINTIFF HAS NOT ESTABLISHED A VALID PRIMA FACIE 

 ADMIRALTY CLAIM AGAINST MULTILOGISTIC......................................... 7 

 1. Plaintiff has not alleged any debt owed by Multilogistic to Plaintiff 

 nor any debt owed by New Ocean to Plaintiff for which Multilogistic 

 is responsible, sufficient to support the attachment............................................ 11 

2. Plaintiff has not established any contract between it and Multilogistic 

 sufficient to bind Multilogistic to arbitrate with Plaintiff or to 

 obligate Multilogistic to pay Plaintiff demurrage ................................................ 14 

 B. THERE IS A STATUTORY BAR TO THIS ATTACHMENT WHICH 

 FORMS A VALID BASIS TO VACATE.............................................................. 17 

POINT II 

PLAINTIFF’S FAILURE TO PLEAD ANYTHING MORE THAN BALD 

CONCLUSIONS OF LAW WARRANTS DISMISSAL UNDER RULE 12 (B)(6) ........... 19 

POINT III 

THE WRIT OF ATTACHMENT CANNOT BE SUSTAINED AND, THEREFORE, 

THE COMPLAINT MUST BE DISMISSED AS AGAINST MULTILOGISTIC FOR 

LACK OF PERSONAL JURISDICTION................................................................................ 21 

CONCLUSION .......................................................................................................................... 22 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 2 of 25
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., 

MULTILOGISTICS SRL, and 

ARO STEEL SRL 

Defendants.

 

MEMORANDUM OF LAW 

IN SUPPORT OF ORDER 

TO SHOW CAUSE TO 

VACATE ATTACHMENT 

AND DISMISS COMPLAINT 

Electronically Filed 

INTRODUCTION 

Defendant, Multilogistic Srl (“Multilogistic”), erroneously sued herein as 

“Multilogistics Srl,” submits this Memorandum of Law in support of its Order to Show 

Cause why this Court should not (1) vacate the maritime attachment obtained by Plaintiff 

pursuant to Rule B of the Supplemental Rules for Certain Admiralty and Maritime 

Claims, annexed to the Federal Rules of Civil Procedure, and grant other relief consistent 

with the Federal Rules, and (2) dismiss Plaintiff’s Verified Complaint (hereinafter 

“Complaint”). 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 3 of 25
MEMORANDUM OF LAW Page 2 of 23 

Plaintiff’s attachment should be vacated under Fed.R.Civ.P. Supp. Rules B and E (4) 

(f) because Plaintiff has failed to plead the circumstances out of which its claim arises 

with the level of particularity required by Suplemental Rule E (2)(a). Plaintiff has also 

failed to plead facts sufficient to state a claim upon which relief can be granted and its 

Complaint should, therefore, be dismissed pursuant to Fed.R.Civ. P.Rule 12 (b)(6). 

Vacatur of the attachment would leave this Court without personal jurisdiction over 

Multilogistic. Accordingly, if vacatur is granted, Plaintiff’s Complaint as against 

Multilogistic must also be dismissed under Fed.R.Civ.P. Rule 12 (b)(2). 

In further support of its requested Order to Show Cause, Defendant submits 

concurrently with this Memorandum of Law the Declarations of Simone Guardiano and 

Antonio Oppicelli. 

STATEMENT OF FACTS 

Plaintiff, Sinoriches Global Limited (“SGL”), sought and obtained an Ex Parte

Order of this Court dated June 19, 2007 directing the Clerk of the Court to issue Process 

of Maritime Attachment and Garnishment to a number of New York intermediary banks. 

The Clerk apparently thereafter issued such Process (although the actual writ received by 

Multilogistic is dated June 18, 2007). As set forth in the Declaration of Simone 

Guardiano, a Sales Executive with Multilogistic, on or about July 13, 2007, an electronic 

funds transfer belonging to Multilogistic in the amount of $7,619.00 was attached while 

temporarily in the possession of Wachovia Bank en route to its ultimate destination. 

(Guardiano Declaration, ¶ 2). 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 4 of 25
MEMORANDUM OF LAW Page 3 of 23 

Plaintiff’s Complaint sought a maritime attachment to obtain security for the 

alleged non-payment of $706,962.00 of demurrage for the use of its vessel, M/V MICRO. 

(Complaint, ¶ 7). Plaintiff alleged that it had chartered the MICRO to co-defendant, New 

Ocean Shipping Co. Ltd. (“New Ocean”), under a charter party1

 dated on or before 

January 31, 2007. (Complaint, ¶ 6). Without providing a shred of additional fact, Plaintiff 

alleges that “[a]t all times relevant herein, defendant MULTILOGISTICS was bound by 

the terms and conditions of the charter party and responsible for the actions of NEW 

OCEAN, and accordingly is responsible for the $706,962.00.” (Complaint, ¶ 8). It is not 

clear what “charter party” is meant by the allegations in paragraph 8 of the Complaint 

since no charter or other contract was annexed to the Complaint. One can only assume, 

then, that Plaintiff means the charter party between SGL and New Ocean described in 

paragraph 6 of the Complaint. 

However, Multilogistic never entered or signed the alleged charter party between 

SGL and New Ocean, nor has it ever even seen a copy of that alleged contract. Therefore, 

Multilogistic denies that it is “bound” by the terms and conditions of that agreement and 

denies that it is “responsible for the actions of New Ocean.” It further denies it entered 

any other agreement to pay demurrage to or arbitrate disputes with SGL. (Guardiano 

Declaration, ¶ 6). 

 

1

 “A charter party is a specific contract, by which the owners of a vessel let the entire 

vessel, or some principal part thereof, to another person, to be used by the latter in 

transportation for his own account, either under their charge or his.” Asoma Corp. v. SK 

Shipping Co., Ltd., 467 F.3d 817, 823 (2d Cir. 2006). 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 5 of 25
MEMORANDUM OF LAW Page 4 of 23 

Multilogistic is an Italian corporation engaged in the business of providing freight 

forwarding and other logistics services. (Guardiano Declaration, ¶ 3). Multilogistic’s sole 

involvement with respect to the MICRO was to act as a freight forwarder for AroSteel, Srl 

(“AroSteel”), an Italian company and one of the other defendants named in this action. 

AroSteel had purchased several cargoes of steel from Chinese manufacturers/shippers on 

“FOB (stowed)” terms. AroSteel, in turn, hired Multilogistic as its freight forwarding 

agent to arrange for an ocean carrier to transport the cargoes from Shanghai, China to 

Genoa, Italy. (Guardiano Declaration, ¶ 7, 13). 

Under applicable Italian law, contracts to provide freight forwarding services, such 

as the one at issue here between AroSteel and Multilogistic, establish an agency 

relationship. Multilogistic was thus retained to act as agent on behalf of its principal, 

AroSteel. (Oppicelli Declaration, ¶¶ 6, 7). 

Acting for AroSteel, Multilogistic entered into a Fixture Note with New Ocean, as 

owner, to let space on the MICRO for the transportation of AroSteel’s steel cargoes. A 

copy of that Fixture Note, which was dated as of January 31, 2007, is attached as Exhibit B 

to the Guardiano Declaration. SGL is not a party to the Fixture Note. Moreover, the 

Fixture Note does not refer in any way to the alleged SGL/New Ocean charter party. 

Therefore, the Fixture Note did not incorporate (as against Multilogistic) any alleged 

agreement to pay demurrage to SGL, or any alleged agreement to arbitrate disputes with 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 6 of 25
MEMORANDUM OF LAW Page 5 of 23 

SGL. In short, Multilogistic’s sole contractual relationships were with AroSteel and New 

Ocean. (Guardiano Declaration, ¶¶ 8, 9, 10, 12, 14). 

Multilogistic never had dealings with New Ocean prior to the Fixture Note. 

Multilogistic does not own or control any of the shares of New Ocean and New Ocean 

does not own or control any of the shares of Multilogistic. The two companies do not 

share officers, directors, employees, bank accounts or office space. Each is entirely 

independent of the other. (Guardiano Declaration, ¶¶ 8, 9). 

Once AroSteel’s cargoes were loaded and stowed aboard the MICRO (a process in 

which Multilogistic was not involved since the purchase terms were FOB (stowed)), 

agents acting for SGL issued five bills of lading2 for the cargoes. Multilogistic played no 

role in the drafting or issuance of those bills, which are attached as Exhibit C to the 

Guardiano Declaration. The bills do not contain any reference to the SGL/New Ocean 

charter party. (Guardiano Declaration, ¶¶ 16, 17, 18). Indeed, the blank space on the 

face of the bills,3

 which exists specifically to insert the date of and refer to the terms of a 

 

2

 “A bill of lading is a document normally issued by the shipowner when goods are loaded 

on its ship, and may, depending on the circumstances, serve as a receipt, a document of 

title, a contract for the carriage of goods, or all of the above.” Asoma Corp. v. SK Shipping 

Co., Ltd., 467 F.3d 817, 823 (2d Cir. 2006). 

3

 The face of each bill has a blank in the lower left corner that reads: “Freight payable as 

per Charter-Party dated _________”. The rear side of the bill, containing the 

“Conditions of Carriage,” provides in Paragraph 1 that “All terms and conditions, 

liberties and exceptions of the Charter Party, dated as overleaf, including the law and 

Arbitration Clause, are herewith incorporated.” The failure to insert the date, or any 

other reference to the SGL/New Ocean charter, demonstrates that the SGL/New Ocean 

charter party terms were not incorporated by reference. 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 7 of 25
MEMORANDUM OF LAW Page 6 of 23 

particular charter party, was left entirely blank by SGL’s agent. Thus, the bills did not 

incorporate the terms of the SGL/New Ocean charter. As already noted, the Fixture Note 

did not mention the terms of the SGL/New Ocean charter or bind Multilogistic in any 

way to pay demurrage to or arbitrate disputes with SGL. 

Accordingly, there is no contract or other obligation between Multilogistic and SGL 

sufficient to support this attachment, which must be vacated. 

POINT I 

PLAINTIFF CANNOT MEET ITS BURDEN TO SUSTAIN THE ATTACHMENT 

AT A RULE E (4)(f) HEARING BECAUSE IT HAS NOT ESTABLISHED 

A PRIMA FACIE ADMIRALTY CLAIM AGAINST THIS 

DEFENDANT AND CANNOT ESTABLISH THERE 

IS NO STATUTORY BAR TO THE CLAIM. 

Fed.R.Civ.P. Supp. Rule E (4)(f) requires that “any person claiming an interest in 

[the attached property] shall be entitled to a prompt hearing at which the plaintiff shall be 

required to show why the ... attachment should not be vacated or other relief granted 

consistent with these rules” [emphasis added]. “Therefore, the plaintiff has the burden to 

show that the attachment should not be vacated, and at the hearing the defendant can 

attack ‘the complaint, the arrest, the security demanded, or any other alleged deficiency in 

the proceedings.’” Dolco Investments, Ltd., Cypress v. Moonriver Developments Ltd., 486 F. 

Supp. 2d 261, 265-6 (S.D.N.Y. 2007), quoting Fed.R.Civ.P. Supp. Rule E (4)(f), Advisory 

Committee’s Note. 

A plaintiff bears a five-fold burden at a Rule E (4)(f) hearing challenging a Rule B 

attachment. Plaintiff must show that: 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 8 of 25
MEMORANDUM OF LAW Page 7 of 23 

(a) it has met the filing and service requirements of Supplemental Rules B 

and E; 

(b) it has a valid prima facie admiralty claim against the defendant whose 

assets were attached; 

(c) the named defendant cannot be found within the district; 

(d) the named defendant’s property is within the district; and 

(e) there is no statutory or maritime law bar to the attachment. 

Aqua Stoli Shipping, Ltd. v. Gardner Smith Pty, Ltd., 460 F.3d 434, 445 (2d Cir. 2006). 

Defendant shows below why Plaintiff here cannot meets its burden with respect to Aqua 

Stoli factors (b) and (e).4

A. PLAINTIFF HAS NOT ESTABLISHED A VALID PRIMA FACIE 

ADMIRALTY CLAIM AGAINST MULTILOGISTIC. 

To sustain its attachment of Multilogistic’s funds, Plaintiff must establish that it has 

an in personam claim which is cognizable in admiralty against the defendant. Winter 

Storm Shipping Ltd. v. TPI, 310 F.3d 263, 268 (2d Cir. 2002). Aqua Stoli elaborated that, 

in order to withstand a motion to vacate, plaintiff must have a “valid prima facie

admiralty claim against the defendant.” 460 F.3d at 445. In other words, an in personam

 

4

 Review of the Pacer docket sheet for this action does not show any entry for a Rule B 

affidavit filed by Plaintiff or its attorney. Fed.R.Civ.P. Supp. Rule B (1)(b) requires that, 

in addition to the Complaint, the plaintiff or his attorney must file an affidavit stating 

that, to the best of the affiant’s knowledge, the defendant cannot be found within the 

district. Unless there is an error on the computerized docket sheet, Plaintiff has failed to 

meet the filing requirements of Rule B, and its attachment should be vacated on that 

ground as well. See, e.g., Submersible Systems, Inc. v. Perforadora Central, S.A. de C.V., 

249 F.3d 413, 422 (5th Cir. 2001) (district court did not err in refusing to order issuance 

of a Rule B writ of attachment where the plaintiff had not filed the affidavit required 

under Rule B). 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 9 of 25
MEMORANDUM OF LAW Page 8 of 23 

claim against New Ocean or AroSteel will not suffice for a Rule B attachment against the 

assets of Multilogistic.

The Second Circuit “has not stated exactly what a plaintiff must show to make out a 

‘prima facie admiralty claim.’” Transportes Navieros Terrestes, S.A. De D.V. v. Fairmount 

Heavy Transport N.V., No. 07 CV 3076, 2007 U.S. Dist. LEXIS 50260, at *10 (S.D.N.Y. 

July 6, 2007). As a result, a split has developed in this district as to the relevant test for 

evaluating the adequacy of the admiralty claim. Compare Wajilam Exps. (Singapore) Pte. 

Ltd. v. ATL Shipping Ltd., 475 F. Supp. 2d 275 (S.D.N.Y. 2006) (holding that the 

applicable standard for establishing the Aqua Stoli factors is whether plaintiff has 

demonstrated “reasonable grounds” for the attachment), with Tide Line, Inc. v. Eastrade 

Commodities, Inc., No. 06 Civ. 1979, 2006 U.S. Dist. LEXIS 95870, at *14-15 (S.D.N.Y. 

August 15, 2006) (collecting cases and holding that a “reasonable grounds” or “probable 

cause” test is inconsistent with the more limited and less fact-intensive Rule E (4)(f) 

inquiry demanded by Aqua Stoli and concluding that a plaintiff can rely solely on the 

allegations of his Complaint to establish that his admiralty claim is a valid “prima facie” 

one). 

The foregoing split in authority need not concern this Court. Regardless of which 

standard is applied, Plaintiff cannot establish a valid prima facie admiralty claim against 

Multilogistic because Plaintiff has no contract with Multilogistic; it has only its alleged 

agreement with New Ocean to which Multilogistic was not a party. Plaintiff has, thus, not 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 10 of 25
MEMORANDUM OF LAW Page 9 of 23 

supplied the Court with anything remotely resembling “reasonable grounds” or “probable 

cause” for why Multilogistic’s property should be attached for the demurrage debt of New 

Ocean. Even using the less stringent standard applied by Tide Line, the allegations of 

Plaintiff’s Complaint do not allege a single supporting fact for why the corporate 

separateness of Multilogistic should be disregarded such that it should be held liable for 

the contractual debts of New Ocean. Instead, the Complaint asserts a legal conclusion. 

The sole and operative allegation against Multilogistic states simply that it is “bound” by 

the Sinoriches/New Ocean charter and “responsible” for the actions of New Ocean. 

(Complaint, ¶ 8). 

Even Tide Line acknowledges that a “defendant may, under Supplemental Rule E 

(4)(f), argue that plaintiff’s pleadings are themselves insufficient to state such a claim; 

otherwise, it is not clear how a defendant could argue that the ‘prima facie claim’ 

requirement of Supplemental Rule B has not actually been met.” 2006 U.S. Dist. LEXIS at 

*22-3 (emphasis added). Moreover, “[s]uits in admiralty are subject to Supplemental 

Rule E (2)(a) ... .” OGI Oceangate Transp. Co. Ltd. v. RP Logistics Pvt. Ltd., No. 06 Civ. 

9441, 2007 WL 1834711, at *4 (S.D.N.Y. June 26, 2007). That Rule provides: 

In actions to which this rule is applicable the complaint shall state the 

circumstances from which the claim arises with such particularity that the 

defendant or claimant will be able, without moving for a more definite 

statement, to commence an investigation of the facts and to frame a 

responsive pleading. 

Fed.R.Civ.P. Supp. Rule E (2)(a). 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 11 of 25
MEMORANDUM OF LAW Page 10 of 23 

The Second Circuit has held that the “standard for the particularity of complaints 

[filed pursuant to the Supplemental Rules] is more stringent than the pleading 

requirements of the Federal Rules of Civil Procedure.” United States v. 4492 Livonia Rd., 

889 F.2d 1258, 1266 (2d Cir. 1989), reh’g denied, 897 F.2d 659 (2d Cir. 1990); accord, 

United States v. $38,000.00 Dollars in U.S. Currency, 816 F.2d 1538, 1547 n. 20 (11th 

Cir.1987); see also United States v. 1,920,000 Cigarettes, No. 02-Cv-437A, 2003 WL 

21730528, at *3 (W.D.N.Y. Mar. 31, 2003) (in forfeiture context, standards under Rule C 

(2)(b) and Rule E (2)(a) are “more stringent than the general pleading requirements set 

forth in the Federal Rules of Civil Procedure”). While Rule 8 of the Fed.R.Civ.P. may 

permit “bare-bones” liberal notice pleading,5

 Supplemental Rule E (2)(a) requires more. 

Tide Line, 2006 U.S. Dist. LEXIS at *23-24. 

A leading case on the proper construction of Fed.R.Civ.P. Supp. Rule E (2)(a) is 

Riverway Co. v. Spivey Marine & Harbor Service Co., 598 F. Supp. 909 (S.D. Ill.1984), 

which involved an in rem proceeding against a tugboat. The Riverway Court said that 

vessel owners “are entitled to freedom from the threat of seizure of their livelihood upon 

conclusory allegations and dubious circumstances.”6

 Id. at 913 (emphasis added). The 

Court further noted that Rule E (2)(a)'s requirement for “[p]leading specific 

 

5

 As argued in Point III below, Multilogistic contends that the dearth of facts alleged in 

the Complaint fails to meet even the liberal pleading standard of Rule 8 and the 

Complaint should be dismissed for failure to state a claim under Rule 12 (b)(6). 

6

 Although the attachment at issue only seized $7,619.00 of Multilogistic’s funds, Plaintiff 

is presumably continuing to serve PMAG’s on garnishee banks to attach the balance of its 

alleged claim, and puts Multilogistic’s ability to use New York intermediary banks at risk. 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 12 of 25
MEMORANDUM OF LAW Page 11 of 23 

circumstances is one part of the process which guards against the improper use of 

admiralty seizure proceedings.” Id. Here, having obtained the advantage of an ex parte 

seizure remedy, Plaintiff is bound by and has not met the more stringent pleading 

requirements of Rule E (2)(a). 

1) Plaintiff has not alleged any debt owed by Multilogistic to Plaintiff nor 

any debt owed by New Ocean to Plaintiff for which Multilogistic 

is responsible, sufficient to support the attachment. 

“Federal Courts sitting in admiralty apply federal common law when examining 

corporate identity.” Status Int’l. S.A. v. M&D Maritime Ltd., 994 F. Supp. 182, 186 

(S.D.N.Y. 1998). It is hornbook law that one corporation is not ordinarily liable for the 

debts for another. “[C]ases in admiralty in which one corporation may be held for the 

acts or faults of another are and ought to be few.” Insur. Co. of No. America v. Canadian 

American Navigation Co., Ltd., 1932 A.M.C. 1396, 1401 (D.C.Z. 1932). 

Here, Plaintiff has simply advanced no reason why Multilogistic should be liable for 

a demurrage debt which New Ocean may (or may not have) incurred under a charter 

party to which Multilogistic is not a party. Multilogistic does not control nor is it 

controlled by New Ocean. The two companies are simply unrelated. Plaintiff does not, 

in any event, plead an alter ego theory of liability. In fact, the fatal problem with the 

Complaint is that it does not plead any theory of liability. 

Indeed, the bare legal conclusion that Multilogistic is “bound” under the terms of 

the Sinoriches/New Ocean charter party and “responsible for the actions of New Ocean” 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 13 of 25
MEMORANDUM OF LAW Page 12 of 23 

can be usefully compared to the operative allegation in the Tide Line case. There, the 

issue was whether plaintiff had sufficiently alleged that defendant Transclear was the alter 

ego of co-defendant Eastrade. The sole operative factual allegation in support of the alter 

ego theory was an assertion that “[u]pon information and belief, Defendant Transclear 

acts as paying agent, or arranges for other non-parties to satisfy the debts and obligations 

of defendant Eastrade.” 2006 U.S Dist. LEXIS 95870, at * 3-4. 

Chief Judge Wood found the foregoing allegation “did not meet the more 

particularized pleading standard set forth in Supplemental Rule E(2)(a) – nor even, 

arguably, the more liberal standard of Rule 8 (a), see EED Holding v. Palmer Johnson 

Acquisition Corp., 228 F.R.D. 508, 512 (S.D.N.Y. 2005)(stating that ‘conclusory’ 

allegations regarding veil-piercing ‘fail to satisfy even the more lenient Rule 8(a) pleading 

requirements’). ” 2006 U.S. Dist. LEXIS at *42-43.7

 If the operative allegation in Tide 

Line, (which contained at least a scintilla of fact in support of the alleged alter ego theory) 

was found wanting, the operative allegation in Plaintiff’s Complaint, which is simply 

barren of fact, must be even more deficient. 

 

7

 Plaintiff’s attachment in Tide Line was ultimately upheld. The court found that plaintiff 

had provided further allegations and evidence in support of its alter ego theory in its 

submissions during the course of the motion to vacate the attachment. 2006 U.S. Dist. 

LEXIS at * 43-44. On this basis, the court found plaintiff had alleged a prima facie

admiralty claim and the court granted plaintiff permission to file an amended complaint 

which alleged with greater detail the additional facts discovered after the filing of the 

original complaint. 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 14 of 25
MEMORANDUM OF LAW Page 13 of 23 

Similarly, in Dolco Investments, Ltd., Cypress v. Moonriver Development, Ltd., 486 F. 

Supp. 2d 261 (S.D.N.Y.), the court considered whether the allegations of a complaint 

against defendant GML, that it was liable on a veil-piercing theory for the debts of codefendant Moonriver, were sufficient to meet the standard of Rule E (2)(a). The 

complaint alleged the following allegations upon which GML’s liability was asserted: 

Upon information and belief, defendant GML has been used by defendant 

Moonriver, from time to time, as a vehicle to pay funds owed to plaintiff 

Dolco. 

Upon information and belief, defendant Bromley is a director of both 

Moonriver and GML. 

Upon information and belief, defendant GML has used Moonriver to 

perpetuate a fraud and/or has so dominated and disregarded its corporate 

form that it primarily transacted GML's corporate business rather than 

Moonriver's own corporate business. 

486 F. Supp. 2d at 270. 

The court found the foregoing allegations failed to meet the heightened pleading 

standard imposed by Fed.R.Civ.P. Supp. Rule E (2)(a) because plaintiff had: 

not included any factual allegations that GML exercised complete 

domination over Moonriver. Other than the conclusory allegation of 

domination, the Complaint and the Amended Complaint8

 both allege that 

GML paid Moonriver’s debts “from time to time.” (Compl. P 7; Am. 

Compl. P 10). Under the heightened standard of Fed.R.Civ.P. Supp.Rule 

E(2)(a), more is required. (Emphasis added).

 

8

 The plaintiff in Dolco had proposed to file an amended complaint with slightly different 

allegations than in the original complaint. The court found that neither pleading met the 

standard of Supplemental Rule E (2)(a). 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 15 of 25
MEMORANDUM OF LAW Page 14 of 23 

486 F. Supp. 2d at 272. The court, therefore, held that the solitary conclusory allegation 

of domination in the complaint insufficiently alerted GML under Rule E (2)(a) to the 

basis of the alter ego claim against it. The claim against GML was dismissed. 

So too here, Plaintiff’s naked allegation that the terms of the charter party between 

SGL and New Ocean “bind” Multilogistic and that Multilogistic is “responsible for the 

actions of New Ocean” are insufficient, as a matter of law, under Supplemental Rule 

E(2)(a), to alert Multilogistic to the nature of the claim asserted against it. 

Multilogistic acted in this transaction as a freight forwarder at the request of the 

cargoes’ purchaser, AroSteel. Guardiano Declaration ¶ 7. Under applicable Italian law, 

contracts by freight forwarders are agency contracts. (Oppicelli Declaration, ¶ 6). 

Multilogistic acted only as an agent in this transaction for its disclosed principal AroSteel 

and cannot be held liable as though it were a principal. 

2) Plaintiff has not established any contract between it 

and Multilogistic sufficient to bind Multilogistic to 

arbitrate with Plaintiff or to obligate Multilogistic to 

pay Plaintiff demurrage. 

Arbitration is a creature of contract and “a party cannot be required to submit to 

arbitration any dispute which he has not agreed so to submit.” AT&T Techs. Inc. v. 

Comm’ns Workers of Am., 475 U.S. 643, 648 (1986). Multilogistic was not a party to the 

contract between SGL and New Ocean, which is the underlying agreement upon which 

Plaintiff founds its claim for attachment. If Multilogistic agreed to arbitrate with any one 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 16 of 25
MEMORANDUM OF LAW Page 15 of 23 

at all, a point which is not conceded here, it could only have been with New Ocean under 

the Fixture Note. Plaintiff, however, was not a party to that agreement. 

The Fixture Note between New Ocean and Multilogistic does not incorporate the 

terms of the charter party between Plaintiff and New Ocean. Moreover, the bills of lading 

also fail to incorporate those terms because they too make no reference to the SGL/New 

Ocean charter party. Furthermore, the relevant blank on the face of the bills was left 

empty. See footnote 3, above. 

To effectively incorporate the terms and conditions of a charter party, a bill of 

lading must generally “specifically refer[ ] to a charter party” and use “unmistakable 

language” indicating that it has been so incorporated. Continental Ins. Co. v. Polish S.S. 

Co., 346 F.3d 281, 283 (2d Cir. 2003). Requiring specific reference to a particular charter 

and unmistakable language of incorporation is usually necessary because, as negotiable 

instruments, bills of lading often pass into the hands of those who have nothing to do 

with a charter party and may have no notice of its terms. Amoco Overseas Co. v. S.T. 

Avenger, 387 F. Supp. 589, 593 (S.D.N.Y. 1975). Therefore, bills of lading should be 

“carefully if not restrictively construed.” Import Export Steel Corp., 351 F.2d 503, 506 (2d 

Cir.), reh’g denied, 356 F.2d 109 (1965). 

In this case, the five bills of lading for AroSteel’s cargo were issued on the standard 

“CONGENBILL” form. Two decisions from the Southern District have examined 

whether CONGEN bills of lading incorporated the terms and conditions of a charter 

Case 1:07-cv-05779-RJH Document 8 Filed 08/14/2007 Page 17 of 25
MEMORANDUM OF LAW Page 16 of 23 

party in circumstances analogous to those at issue here. In Macsteel International USA 

Corp. v. M/V JAG RANI, No. 02 Civ. 7436, 2003 WL 22241785 (S.D.N.Y. September 30, 

2003), the court comprehensively reviewed the case law regarding the incorporation of 

charter party terms by reference into bills of lading and it refused to find the charter’s 

terms were incorporated into the bill. It concluded that “courts generally find that a 

charter party is not incorporated when the space provided in the bill of lading for the 

name and date of the charter party is left blank” (citations omitted). 2003 WL 22241785 

at *3.9

 That, of course, is the case here – the blanks on the face of each of the five bills 

were left completely blank. 

Indeed, the facts in Macsteel presented an even stronger case for incorporation by 

reference than those here. In Macsteel, the blank on the face of the CONGENBILL, did 

not refer to a date of a particular charter party but, at least had the words “AS PER 

RELEVANT” typed in the blank. Id. The court nevertheless found this insertion was too 

ambiguous to allow for incorporation of the argued charter party terms. 

Similarly, in Associated Minerals Corp. v. M/V ARKTIS SKY, No. 90 Civ. 4562, 1991 

WL 51087 (S.D.N.Y. April 3, 1991), the Court examined a CONGENBILL which had the 

words “As agreed” typed into the blank after the words: “Freight payable as per 

 

9

 The MacSteel opinion, and the other incorporation by reference decisions it cites, 

appears to use the law of the forum to determine the threshold question of whether there 

has been incorporation by reference. Multilogistic does not hereby waive any argument 

that, after determination of this threshold issue, foreign law should apply to determining 

substantive rights and liabilities pursuant to those bills of lading. 

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CHARTER-PARTY dated _______”. Id. at *3. The court found this insertion 

insufficient to demonstrate an unmistakable intent to incorporate a specific charter party. 

Id. Moreover, the court attributed significance to the fact that the holder of the bill there 

had categorically denied ever receiving the charter party. Id. Multilogistic has similarly 

denied ever receiving the Sinoriches/New Ocean Charter. (Guardiano Declaration, ¶ 6). 

Finally, it is clear there were at least three charter agreements potentially in 

existence in this case. First, there was the Fixture Note between Multilogistic and New 

Ocean; second, the alleged voyage charter between Sinoriches and New Ocean; and third, 

presumably a time charter from a head owner to Sinoriches as disponent owner. 

Situations involving multiple charters create more ambiguity and confusion and demand 

even more specificity and unmistakable language if a bill is to incorporate the terms of a 

particular charter. See, e.g, Joo Seng Hong Kong Co. Ltd. v. S.S. Unibulkfir, 493 F. Supp. 

35, 40 (S.D.N.Y. 1980) (holding that where there were three charters in issue, the Court 

could not determine with any degree of certainty which charter’s terms were 

incorporated). Here, where the five bills were left totally blank and multiple charters were 

in existence, there was no unmistakable incorporation by reference of the terms of the 

Sinoriches/New Ocean charter into the bills. 

B. THERE IS A STATUTORY BAR TO THIS ATTACHMENT 

WHICH FORMS A VALID BASIS TO VACATE. 

In Aqua Stoli, the Court imposed on a plaintiff at a Supplemental Rule E (4)(f) 

hearing the burden to demonstrate that there is no “statutory or maritime law bar” to the 

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attachment. 460 F.3d at 445. Multilogistic submits there is such a statutory bar here and 

that it warrants vacatur. 

All of the countries that arguably have an interest in the underlying transactions 

and in this litigation, including the United States, China, Italy and England, are parties to 

the Convention on the Recognition and Enforcement of Foreign Arbitral 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. See

www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html. 

Accordingly, if there is an agreement to arbitrate, as Plaintiff alleges in paragraph 

10 of the Complaint, it is governed by the Convention. See Rhone Mediterranee 

Compagnia Francese Di Assicurazioni E Riassicurazoni v. Lauro, 712 F.2d 50 (3d Cir. 

1983). 

The Convention provides that “[e]ach Contracting State shall recognize an 

agreement in writing under which the parties undertake to submit to arbitration all or 

any differences which have arisen or which may arise between them ... concerning a 

subject matter capable of settlement by arbitration.” Convention art. II, § 1. The 

Convention goes on to define “agreement in writing” to include “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. The Second Circuit has held that the phrase 

“signed by the parties” modifies both of the preceding phrases such that, if Plaintiff is 

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relying on “an arbitral clause in a contract or an arbitration agreement” -- whichever it is 

-- either one must be “signed by the parties or contained in an exchange of letters or 

telegrams.” Kahn Lucas Lancaster, Inc. v. Lark Intern. Ltd., 86 F.3d 210, 218 (2d Cir. 

1999). See also Dynamo v. Ovechkin, 412 F.Supp.2d 24 (D.D.C. 2006); Bothell v. Hitachi 

Zosen Corp., 97 F.Supp.2d 1048 (W.D.Wash. 2000); Sen Mar, Inc. v. Tiger Petroleum 

Corp., 774 F.Supp. 879, 882 (S.D.N.Y.1991). 

Turning to the facts, Plaintiff cannot point to a document that satisfies the 

Convention’s requirements. It has not alleged the existence of an arbitration agreement 

directly between itself and Multilogistic and, of course, there is none. There may be an 

arbitration clause in the as-yet-unseen charter party between Plaintiff and New Ocean 

but, under the Convention, that would not be binding on Multilogistic since it was not a 

party to and did not sign that contract. Likewise, there has been no exchange of “letters 

or telegrams” between Plaintiff and Multilogistic. Accordingly, Plaintiff cannot satisfy the 

Convention’s requirement of an “agreement in writing” and cannot assert a claim against 

Multilogistic in arbitration in London, on which this action, as against Multilogistic, is 

based. 

POINT II 

PLAINTIFF’S FAILURE TO PLEAD ANYTHING 

MORE THAN BALD CONCLUSIONS OF LAW 

WARRANTS DISMISSAL UNDER RULE 12 (B)(6). 

Bald assertions and conclusions of law will not suffice to state a claim under 

Fed.R.Civ.P. 12(b)(6). Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir.1996); see also DeJesus v. 

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Sears, Roebuck & Co., 87 F.3d 65, 70 (2d. Cir. 1995), cert. denied, 519 U.S. U.S. 1007 

(1996) (conclusory allegations masquerading as facts are insufficient to withstand even 

the liberal Rule 12 (b)(6) standard in a complaint for piercing the corporate veil). 

Allegations which fail to give notice of the basic events and circumstances of which 

the plaintiff complains, and contain only a litany of general conclusions are meaningless 

and, as a matter of law, are insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363 

(2d Cir.1987). Dismissal under Rule 12 (b)(6) is proper where there is either a lack of a 

cognizable legal theory, or the absence of sufficient facts alleged under a cognizable legal 

theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Here, 

Plaintiff’s Complaint is arguably defective for both reasons but, at a minimum, it is 

defective for failure to allege sufficient facts as to why Multilogistic should be held liable 

under a contract to which it is not party. 

In Dolco Investments, discussed at length above at pages 12-13, Judge Sweet found 

that plaintiff had failed to state a claim upon which relief could be granted as against 

defendant GML. 486 F. Supp. 2d at 273. The mere allegation of “domination” of the 

alleged servient corporation, without any well-pled facts in support of the alleged veil 

piercing theory, warranted dismissal on the grounds of Rule 12 (b)(6). 

So too here, Plaintiff’s allegations that Multilogistic is “bound” and “responsible for 

the actions of New Ocean” are nothing more than legal conclusions masquerading as 

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facts. Accordingly, the Complaint should be dismissed for failure to state a claim upon 

which relief can be granted. 

POINT III 

THE WRIT OF ATTACHMENT CANNOT BE SUSTAINED AND, 

THEREFORE, THE COMPLAINT MUST BE DISMISSED AS 

AGAINST MULTILOGISTIC FOR LACK OF PERSONAL JURISDICTION. 

In Deiulemar Compania Di Navigazione S.p.A. v. Dabkomar Bulk Carriers, Ltd., No. 

05 Civ. 8199, 2005 U.S. Dist. LEXIS 40783, at *11 (S.D.N.Y. December 12, 2005--

Magistrate Judge’s Opinion), adopted by 2006 U.S. Dist. LEXIS 8331 (S.D.N.Y. February 

10, 2006), Magistrate Judge Pitman was faced with circumstances analogous to those here 

because plaintiff there had failed at a post-attachment hearing to establish that it had a 

valid prima facie admiralty claim based on a guaranty. The Deiulemar Court ruled: 

Because plaintiff cannot prevail on its guarantee claim against Dabkomar 

AS, it cannot establish a prima facie admiralty claim and cannot meet its 

burden under Admiralty Rule E(4)(f). The Order of Attachment should, 

therefore, be vacated. In addition, because the attachment is the only basis 

for the assertion of jurisdiction over Dabkomar AS, its vacatur requires the 

dismissal of the action as to Dabkomar AS for lack of personal jurisdiction. 

(Citations omitted; emphasis Added).

Id. at *27-8. 

The same result should be reached in this case. Plaintiff has not alleged any facts 

under which Multilogistic can be held bound to the terms of an agreement to which it is 

not a party, nor why it can be held responsible for the actions of a corporate co-defendant 

with which it has nothing but an arms-length relationship. The Order of Attachment 

should, therefore, be vacated, leaving this Court without personal jurisdiction over 

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Multilogistic. Accordingly, Plaintiff’s Complaint should be dismissed under Rule 12 

(b)(2). See, e.g., Blueye Navigation, Inc. v. Oltenia Navigation, Inc., 1995 U.S. Dist. LEXIS 

1844, 94 Civ. 1500, 94 Civ. 2653, 1995 WL 66654 at *4 (S.D.N.Y. Feb. 17, 1995) (if res is 

released in a case based on quasi in rem jurisdiction, personal jurisdiction over defendant 

is extinguished). 

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 13, 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 

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MEMORANDUM OF LAW Page 23 of 23 

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\0003.doc 

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