BETANCOURT, VAN HEMMEN, GRECO & KENYON

Counsel for Defendants UBS Provedores and 

Raecorp International

46 Trinity Place,

New York, NY 10006

(212) 297-0050

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

_________________________________________X

WILHELMSEN PREMIER MARINE FUELS AS

07 Civ. 5798 (CM)

Plaintiff,

against

UBS PROVEDORES PTY LTD. AND 

RAECORP INTERNATIONAL PTY LTD., 

Defendants 

_________________________________________X

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO AMEND

THIS COURT’S SEPTEMBER 28, 2007 DECISION AND ORDER , PURSUANT TO

FED. R. CIV. P. 52(b)

Preliminary Statement

Defendants seek an amendment to the Court’s September 28, 2007 Decision and Order

Denying Defendants’ Motion to Vacate the Attachments (“Decision”) to address an ambiguity that

arises out of certain statements set forth in the Decision’s “Background” section. While the

statements do not appear relevant to the Court’s analysis, the fact of their inclusion in the

Background Section creates the basis for an argument that they are findings of fact binding on the

parties going forward. Given that the statements are irrelevant to the Court’s Decision, but go

directly to the merits of the underlying dispute, Defendants respectfully request that they be stricken

from the Decision. In the alternative, Defendants request the addition of a statement in the Decision

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specifically stating that the paragraph is not a binding finding of fact.

ARGUMENT

Rule 52 of the Federal Rules of Civil Procedure provides in pertinent part:

“(b) Amendment. On Party’s motion filed no later than 10 days after entry of

judgment, the Court may amend its findings - or make additional findings - and may

amend the judgment accordingly.”

Defendants move herein pursuant to Rule 52(b) for an amendment to address an ambiguity that

arguably arises out of one of the Court’s statements on page 3 of its Decision, wherein the Court

wrote:

“There is nothing in the record to support UBS’ assertion that it had not been paid. To the

contrary, documentation from both DESC and Military Sealift Command indicate that UBS has been

paid in full for the Wilhelmsen bunkerings. See id., ¶ 5 - 7; Borge Aff., ¶ 13 & Ex. 7.” Decision,

page 3.

This statement goes directly to the heart of the underlying dispute. The merits of the

underlying dispute, however, were not relevant to the legal issues pending before the Court as a

result of Defendants’ motion to vacate the attachment. At oral argument, the Court stated,”I don’t

care about that dispute, I’m really not interested in it, it has nothing to do with me. I’m trying to tell

you I’m not paying any attention to that.” September 24, 2007 Hearing Transcript, p. 17, l. 15 - 17,

attached as Exhibit 3 to the Van Hemmen Certification in Support (hereinafter “Van Hemmen Cert.).

Nevertheless, that statement in the “Background” section of the Decision arguably creates the

impression that the Court found, as a matter of fact, that UBS had received full payment from the

U.S. Navy of its invoices related to the Wilhelmsen bunkerings in Sasebo, Japan. 

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Moreover, the Decision’s description of the state of the record on this issue is inaccurate.

There was evidence in the record indicating UBS had not been paid by the Navy. William Rae, the

director of UBS, a party to this action, affirmed under oath that “[b]ecause of the inadequate

documentation [of Wilhemsen’s invoices submitted to UBS], the U.S. Navy has refused to pay

UBS.” See the Rae Certification in Support of Defendants’ Motion to Vacate ¶ 7, attached as

Exhibit 1 to the Van Hemmen Cert. The documentation from DESC and Military Sealift Command

was unsworn hearsay from third parties not before this Court. See the Borge affidavit and exhibits

thereto, attached as Exhibit 2 to the Van Hemmen Cert. It was not properly considered for the truth

of the matter asserted. The weight of the evidence properly before the Court, therefore, indicated

UBS was not paid by the U.S. Navy.

Accordingly, Defendants respectfully request that the second full paragraph on Page 3 of the

Decision be stricken. In the alternative, Defendants request the addition of a statement in the

Decision specifying that the paragraph is not a binding finding of fact.

CONCLUSION

For the foregoing reasons, UBS and Raecorp respectfully request this Court to grant its

motion, pursuant to Fed. R. Civ. Pro. 52(b) to 1) strike the second full paragraph on page 3 of the

Court’s September 28, 2007 Decision and Order denying Defendants’ motion to vacate the

attachments; or, in the alternative, to 2) add a sentence to the Decision and Order stating that the

statements contained the second full paragraph on page 3 of the Court’s September 27, 2007

Decision and Order were not findings of fact with binding effect on the parties going forward.

Dated: Red Bank, NJ 

October 8, 2007

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Betancourt, Van Hemmen, Greco & Kenyon

Attorneys for UBS Provedores Pty Ltd and 

Raecorp International Pty Ltd

By____________/s/____________________

Jeanne-Marie Van Hemmen(JV 6414)

46 Trinity Place

New York, NY 10006

(212) 297-0050

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