UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

------------------------------------------------------------X 

ZIM INTEGRATED SHIPPING SERVICES, LTD., 

 Plaintiff, 

 - against - 

BELCO RESOURCES, INC., SINOCHEM 

JIANGSU CORPORATION (FORMERLY KNOWN 

AS SINOCHEM JIANGSU IMPORT & EXPORT 

CORPORATION), NANJING HUABIN FOREIGN 

TRADE & ECONOMICS CO., LTD., 

DRAGONTRANS SHIPPING LTD. d/b/a 

HUABANG INTERNATIONAL, INC., 

SINOTRANS NINGBO INTERNATIONAL 

FORWARDING AGENCY CO., LTD., 

JOHN DOE 1-10, 

 Defendants. 

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Case No. 07-civ-5861 (RMB) 

(ECF Filed) 

MEMORANDUM OF LAW IN FURTHER OPPOSITION TO 

DEFENDANTS SINOCHEM JIANGSU CORPORATION AND 

NANJING HUABIN FOREIGN TRADE & ECONOMICS CO., LTD.’S 

MOTION TO DISMISS WITH PREJUDICE COUNTS II THROUGH IX OF THE 

SECOND AMENDED COMPLAINT AND TO VACATE THE RULE B ATTACHMENT 

AND IN OPPOSITION TO DEFENDANT BELCO RESOURCES, INC.’S 

MOTION TO VACATE THE RULE B ATTACHMENT

DEORCHIS & PARTNERS, LLP 

Attorneys for Plaintiff 

61 Broadway, 26th Floor 

New York, New York 10006-2802 

(212) 344-4700 

Vincent M. De Orchis 

Olivier D. L. DuPont 

-Of Counsel and On the BriefCase 1:07-cv-05861-RMB-GWG Document 50 Filed 03/07/2008 Page 1 of 6
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TABLE OF CONTENTS

PRELIMINARY STATEMENT .....................................................................................................1 

A. Unattributed Statements Made by Agents and Rule 9(b) ...................................................1 

B. Due Process Clause .............................................................................................................1 

C. Sinotrans’ Action in China Is Irrelevant .............................................................................2 

D. China Is an Inadequate Alternative Forum .........................................................................2 

E. Motion to Vacate .................................................................................................................3 

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TABLE OF AUTHORITIES

Cases 

In re Crude Oil Commodity Litig., 

2007 U.S. Dist. LEXIS 47902 (S.D.N.Y. 2007) ...................................................................... 1

Mills v. Polar Molecular Corp. 

 12 F.3d 1170 (2d Cir. 1994)...................................................................................................... 1

OGI Oceangate Transp. Co., Ltd. v. RP Logistics PVT. Ltd., 

 2007 U.S. Dist. LEXIS 46841 (D.N.Y. 2007) .......................................................................... 3

Phillips Petroleum Co. v. Shutts, 

 472 U.S. 797 (U.S. 1985).......................................................................................................1, 2

Rationis Enters. Inc. of Panama v. Hyundai Mipo Dockyard Co., 

 426 F.3d 580 (2d Cir. 2005) ......................................................................................................3 

Time Warner Inc. Secs. Litig. v. Ross, 

 9 F.3d 259, 265 (2d Cir. 1993) .................................................................................................1 

Statutes 

Fed. R. Civ. P. 9(b).............................................................................................................. 1 

Supp. R. Cert. Adm. Mar. Cl. Rule B ................................................................................. 3 

Case 1:07-cv-05861-RMB-GWG Document 50 Filed 03/07/2008 Page 3 of 6
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 Plaintiff Zim Integrated Shipping Services, Ltd. (“Zim”) respectfully submits this Sur-Reply 

Memorandum of Law in further opposition to the joint motion of Defendants Sinochem Jiangsu 

Corporation (“Sinochem”), Nanjing Huabin Foreign Trade & Economics Co., Ltd. (“Huabin”) and Belco 

Resources, Inc. (“Belco”). 

PRELIMINARY STATEMENT 

 In their joint reply, the defendants’ new arguments appear as nothing but a smokescreen intended 

to hide a simple truth: their failure to find any ground for dismissing Zim’s Complaint and any argument 

for vacating Zim’s Attachment. 

A. Inapplicable Case Law: “Unattributed Statements Made by Agents” and Rule 9(b)1

The defendants cite new case law for the proposition that Zim would have failed to meet the 

pleading requirements under Rule 9(b) for claims for fraud and negligent misrepresentation. They cite In 

re Crude Oil Commodity, a 2007 decision from this district court. quoting a ruling from Time Warner Inc. 

Secs. Litig. v. Ross, 9 F.3d 259, 265 (2d Cir. 1993) about “unattributed statements made by agents”. (See

Rep. Br., page 3). However, in Time Warner, the Court refused to hold the company liable for 

anonymous oral statements attributed to Time Warner’s employees which were reproduced in the press. 

Conversely, Zim has attributed in its Complaint specific statements to Sinochem’s agent, Sinotrans 

Ningbo International Forwarding Agency Co., Ltd. (“Sinotrans”), about the nature of the cargo which are 

neither anonymous, nor orally made. This argument is therefore without basis2

. 

B. Due Process Clause 

In its opposition papers, Zim cited a persuasive dictum from Justice Stevens in Phillips Petroleum 

v. Shutts, 329 U.S. 797 (S. Ct. 1985) in the context of conflict of laws3

. Should this Court rule that the 

 

1 The defendants did not answer Zim’s argument that its complaint fell under the Rule 9(b) exception of 

“peculiar knowledge” (See Opp. Brief, page 12). 2 Another easily distinguishable case cited by the defendants is Mills v. Polar Molecular Corp. (failure of 

plaintiff to link the alleged fraudulent statements to particular Directors). (See Rep. Br., page 3).

3

 Justice Stevens further stated that “a constitutional claim of "unfair surprise" cannot be based merely 

upon an unexpected choice of a particular State's law -- it must rest on a persuasive showing of an 

unexpected result arrived at by application of that law.” Id. at 837. 

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conflict of laws analysis under Lauritzen points to the application of Chinese law in respect to the three 

causes of action for strict liability, strict liability for failure to warn and negligent failure to warn, Zim 

simply argued that this will be an “unfair surprise” as it would result in the unexpected result of depriving 

Zim of any remedy under these causes of action. The defendants did not respond to this argument. 

Instead, they generalized a rule from the majority opinion in Phillips Petroleum which was held in the 

specific context of nationwide class action and was not about conflict of laws. See Id. at 821-22 and Rep. 

Br., page 4. Furthermore, they cite case law about the inadequacy of a foreign forum which is part of a 

forum non conveniens analysis, but not of choice of law analysis. See Rep. Br., id. 

C. Sinotrans’ Action in China Is Irrelevant 

The Defendants argue that the action commenced by Sinotrans in China tolls the one year statute 

of limitation of Zim’s claims in China. This is incorrect. Sinotrans’ action before the Ningbo Maritime 

Court is an indemnity action against Defendant Dragontrans Shipping, Ltd (“Dragontrans”). It is not a 

liability action. (Qian 2nd Decl., ¶ 7). Sinotrans seeks indemnity specifically for the legal action 

commenced in the United States. (Qian 2nd Decl., ¶ 6). Sinotrans action in China is entirely premature, 

as Sinotrans has not been held liable to Zim in the United States, nor has Sinotrans paid any monies to 

Zim. Moreover, Zim cannot join Sinotrans’ action as a matter of Chinese law. (Qian 2nd Decl., ¶ 7). 

Sinotrans’ action does not toll the one year statute of limitation. (Qian 2nd Decl., ¶ 9). Sinotrans’ action in 

China is therefore totally irrelevant. 

The Defendants also argue that Dragontrans’ declaration in support of Zim’s opposition papers 

would be ‘suspect’ because Dragontrans (a/k/a Huabang) “may be trying to avoid a parallel proceeding 

brought by defendant Sinotrans in China” (See Rep. Br., page 6, footnote 9, and page 8). However, since 

Zim dismissed its action against Dragontrans, the Defendants’ allegation has no basis. 

D. China Is an Inadequate Alternative Forum4

 

4 The Defendants fail to respond to Zim’s arguments about Chinese courts’ lack of jurisdiction over Belco 

(Qian 2nd Decl. ¶¶ 10, 11 and 18), or the inefficiency that would result from a transfer of this action to 

China when the issues of liability would have to be decided nonetheless in the related action against the 

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 The Defendants attempt to rebut Zim’s argument that the cargo interests are overwhelmingly 

located in the United by engaging in a complex but useless tally of the potential cargo interests5

. (See Rep. 

Br., pages 6-7). However, only the citizenship of the actual cargo interests who have appeared matters in 

a choice of law analysis. See Rationis Enters. Inc. of Panama v. Hyundai Mipo Dockyard Co., 426 F.3d 

580, 587-588 (2d Cir. 2005). Here, as indicated by counsel for the cargo interests, all the subrogated 

defendants who asserted a claim against Zim “but one are located in the United States, or in a U.S. 

territory under the jurisdiction of the Federal Courts” (See Willoughby Decl. ¶ 8-11). Furthermore, in 

respect to the forum non conveniens analysis, it is worth noting that Falcon, an insurance company located 

in Hong Kong, China, and Defendant Dragontrans, also located in China, have both accepted the 

jurisdiction of this court. (See Willoughby Decl. ¶ 13 and Robin Du Decl. ¶¶ 6-8). 

E. Motion to Vacate: Inapposite Case Law 

Citing OGI Oceangate, a 2007 opinion from this District Court, Belco argues for the first time in 

its reply brief that vacatur is appropriate when “the plaintiff has already obtained sufficient security for 

the potential judgment by attachment or otherwise”. (See Rep. Br., pages 9-10). However, OGI 

Oceangate involved only one defendant who had previously paid the amount of the claim subject to the 

Rule B attachment as part of a past settlement. This is obviously not the case here. Moreover, Zim’s 

amended complaint alleges the joint and several liability of Sinochem with the other defendants, 

justifying that each defendant be subject to an attachment for the full amount. (Compl. ¶141). 

Dated: New York, New York 

 March 7, 2008 

DEORCHIS & PARTNERS, LLP 

Attorneys for Plaintiff 

By:____/s/__Vincent M. DeOrchis_________ 

 Vincent M. DeOrchis (VMD-6515) 

 61 Broadway, 26th Floor 

 New York, New York 10006-2802 

 

cargo interests. (Willoughby Decl. ¶¶ 15-22). They carefully omit to mention that the First Engineer and 

the Captain of the m/v Zim Haifa have both indicated at their depositions that English was the official 

spoken language aboard the vessel.

5

 Their tally could not take into account the notice of voluntary dismissal filed by Zim on March 3, 2008. 

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