Industrial Maritime Carriers, LLC v. Dantzler, Inc. , 611 F. App'x 600 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15130
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-22655-MGC
INDUSTRIAL MARITIME CARRIERS, LLC,
Plaintiff-Appellant,
versus
DANTZLER, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 29, 2015)
Before HULL, ROSENBAUM and JULIE CARNES, Circuit Judges.
PER CURIUM:
This appeal arises from the alleged wrongful arrest of a vessel. Following
entry of summary judgment in the Southern District of Florida in favor of
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defendant Dantzler, Inc. (“Dantzler”) on the alleged wrongful arrest, plaintiff
Industrial Maritime Carriers, LLC (“IMC”) appeals to this Court.
I. Background
Dantzler, a Florida corporation, was awarded a judgment on September 5,
2007 by a Brazilian court against Monsted Chartering (“Monsted”). To collect the
judgment, the Brazilian court authorized the arrest of a vessel operated by Scan-
Trans Holdings A/S (“Scan-Trans”), a purported successor-in-interest to Monsted.
Dantzler’s Brazilian counsel, Paulo Madeira (“Madeira”), requested that the
Brazilian court arrest one of Scan-Trans’ fleet. He presented to that court a Scan-
Trans fleet list (taken from Scan-Trans’ website), which listed the M/V Industrial
Fighter (“Industrial Fighter”) as one of Scan-Trans’ vessels, and evidence showing
that the Industrial Fighter would be arriving on June 14, 2013 in a Brazilian port.
The Brazilian court reviewed the evidence and issued an arrest order on June 7,
2013 for the Industrial Fighter. The Industrial Fighter was then seized on June 18,
2013.
IMC, a Bermudan company that, at the time of the seizure, was time-
chartering the Industrial Fighter, sent a letter by email and certified United States
mail to Dantzler on June 19, 2013. The letter stated that neither Monsted, Scan-
Trans, nor any other successor of Monsted held an interest in the vessel, and
supported this assertion with reports from various shipping industry publications
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that indicated that a German company, MS “ERIS J” Schiffahrtsgessellschaft mbH
& Co. KG (“Eris”), actually owned the vessel. The letter also requested the
immediate release of the Industrial Fighter. Because the letter was addressed to
“Dantzler, Inc. Legal Department,” and Dantzler does not have a legal department,
Dantzler states that it did not receive this communication in a timely manner.
The next day, on June 20, 2013, IMC sent a similar letter, this time by
facsimile and certified mail, to Dantzler’s registered agent. Dantzler’s President,
Antonio Godinez (“Godinez”), received the letter, and passed along its contents to
Dantzler’s United States counsel and Madeira. Dantzler’s United States legal
counsel contacted IMC, and the next day, on June 21, 2013, IMC sent a letter to
that counsel, reiterating that the Industrial Fighter was being mistakenly held and
demanding its release. Meanwhile, on June 20, 2013, Eris, the German company
that actually owned the ship, petitioned the Brazilian court for the release of the
Industrial Fighter, which that court granted on June 24, 2013. The vessel was thus
released on June 25, 2013.
IMC then filed suit in the Southern District of Florida for wrongful arrest of
a vessel and tortious interference with contract and business relationships.
Dantzler answered, denying that it had acted in malice, bad faith, or recklessness in
seizing the Industrial Fighter, and raising the affirmative defense of reliance on the
advice of counsel. Dantzler also moved for summary judgment. IMC opposed
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summary judgment, asserting that there were disputed issues of material fact:
namely, (1) the question of whether Dantzler had in fact acted with malice, bad
faith, or recklessness and (2) whether Dantzler had in fact honestly relied on the
advice of counsel. The district court granted summary judgment to Dantzler,
holding that “[t]he record evidence demonstrates that Dantzler, honestly and in
good faith, did nothing except rely on the advice of counsel to discharge the duty
for which Dantzler hired counsel.”
[B]ased upon competent, albeit faulty evidence, Madeira petitioned
the Brazilian Court to arrest a vessel he thought to be operated by
Monsted’s successor in interest. Upon the receipt of notice that
Dantzler had arrested property not belonging to Monsted, Godinez
immediately communicated with its United States and Brazilian
counsel that an error may have been made, and honestly sought advice
as to how to proceed.
Following the entry of summary judgment for Dantzler, IMC filed this
appeal. IMC argues that issuance of summary judgment was inappropriate, as
material issues of fact exist as to whether Dantzler arrested the Industrial Fighter in
bad faith, malice, or recklessness and as to whether Dantzler’s reliance on counsel
was in good faith.
II. The Applicable Law
“We review a district court’s grant or denial of summary judgment de novo,
considering all the facts and reasonable inferences in the light most favorable to the
nonmoving party.” Norfolk S. Ry. Co. v. Groves, 586 F.3d 1273, 1277 (11th Cir.
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2009). Summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “An issue of fact is ‘material’ if, under the
applicable substantive law, it might affect the outcome of the case.” Hickson
Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1259-60 (11th Cir. 2004).
“Although all justifiable inferences are to be drawn in favor of the nonmoving
party, the moving party is entitled to judgment as a matter of law when the
nonmoving party fails to make a sufficient showing of an essential element of the
case.” Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 636 (11th Cir. 1991).
The arrest of a vessel arises under admiralty law. See Marastro Compania
Naviera, S.A. v. Canadian Mar. Carriers, Ltd., 959 F.2d 49, 53 (5th Cir. 1992)
(“Maritime law controls the substantive law of maritime seizures . . . .”) It is
within the United States district courts’ “traditional maritime powers . . . to fashion
admiralty procedures . . .” for the seizure of vessels. Schiffahartsgesellschaft
Leonhardt & Co. v. A. Bottacchi S.A. De Navegacion, 773 F.2d 1528, 1531 (11th
Cir. 1985) (en banc). Congress has, however, “retained the power to alter
substantive and procedural maritime rules” and has instituted various procedural
safeguards, but these have not included the right to a pre-arrest hearing. Id.; see
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Fed. R. Civ. P. Supp AMC B. The rationale for denying pre-arrest process is that it
would potentially give a foreign party the opportunity to abscond prior to the
resolution of the dispute. See Crimson Yachts v. Betty Lyn II Motor Yacht, 603
F.3d 864, 870 (11th Cir. 2010). The absence of pre-arrest process, however, means
that erroneous seizures may occur, because “ownership interests in shipping often
are shrouded by a tangled web of legal interests whose identities are impossible for
a judge to discern within the time frame in which writs of attachments must issue.”
Leonhardt, 773 F.2d at 1538. The protection United States law provides to
mitigate this risk is, first, the ability to file for a “prompt postgarnishment hearing
before a judge.” Id. at 1538-39 (quotation marks removed). “An immediate
postattachment hearing strikes a workable balance between the creditor’s need to
reach the property before it leaves the court’s jurisdiction and a debtor’s fear that
his property will be unjustly attached.” Id.; see also Neapolitan Navigation, Ltd. v.
Tracor Marine Inc., 777 F.2d 1427, 1430 (11th Cir. 1985) (same).
Of course, the above procedures do not apply in this case because the arrest
was made through Brazilian courts following Brazilian law. Nonetheless, a second
safeguard is relevant to this case: the action for wrongful attachment. “It is an
established principle of maritime law that one who suffers a wrongful attachment
may recover damages from the party who obtained the attachment, provided he
prove that such party acted in bad faith.” Furness Withy (Chartering), Inc.,
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Panama v. World Energy Sys. Assocs., Inc., 854 F.2d 410, 411 (11th Cir. 1988)
(“Furness II”); Frontera Fruit Co., Inc. v. Dowling, 91 F.2d 293, 294 (5th Cir.
1937) (“these awards are necessarily based on findings of bad faith, malice, or such
negligence as would constitute bad faith . . . .”) 1; 2 Admiralty & Mar. Law § 21-5
(5th ed.) (“A plaintiff may be liable for damages for wrongful arrest or attachment
and detention of a vessel only upon a showing of bad faith, malice or gross
negligence.”) As our key precedent explains:
The gravamen of the right to recover damages for wrongful seizure or
detention of vessels is the bad faith, malice, or gross negligence of the
offending party. The reasons for the award of damages are analogous
to those in cases of malicious prosecution. The defendant is required
to respond in damages for causing to be done through the process of
the court that which would have been wrongful for him to do himself,
having no legal justification therefor and acting in bad faith, with
malice, or through a wanton disregard of the legal rights of his
adversary.
Frontera, 91 F.2d at 297 (citations removed). Further, “the advice of competent
counsel, honestly sought and acted upon in good faith is alone a complete defense
to an action for malicious prosecution.” Id.; Marastro, 959 F.2d at 53 (same).
Thus, the plaintiff bears the burden of proving that the attachment was done in bad
1
“[D]ecisions of the United States Court of Appeals for the Fifth Circuit (the ‘former
Fifth’ or the ‘old Fifth’), as that court existed on September 30, 1981, handed down by that court
prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit,
for this court, the district courts, and the bankruptcy courts in the circuit.” Bonner v. City of
Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).
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faith, and if the defendant establishes that it honestly relied on the advice of
counsel in attaching the vessel, then there is no liability. 2
As for IMC’s tortious interference claim, this claim is properly subsumed
under the wrongful attachment claim. As we have held in the context of a party
seeking to recover on wrongful attachment and conversion theories (the latter of
which does not require bad faith), the proper cause of action in such cases is
wrongful attachment, not some other cause of action taken from the common law.
Furness II, 854 F.2d at 412 (“[M]aritime precedent has answered, albeit implicitly,
the question of what a claimant must prove to recover for a conversion caused by
an improper attachment. The claimant must prove bad faith by the party who
obtained the attachment.”); see also Incas & Monterey Printing & Packaging, Ltd.
v. M/V Sang Jin, 747 F.2d 958, 964 (5th Cir. 1984) (“Since the admiralty is not
concerned with common law labels as to theories of recovery, or causes of action,
we are entitled to treat this broadly as a claim for wrongful seizure, whether
denominated as such or as one for abuse of process, malicious prosecution, or all
three.”) (citing Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625
2
Where the maritime attachment has been made by order of a United States district
court, 28 U.S.C. § 1921(a)(1)(E) permits the court to tax the fees and costs to either one of the
parties. See Marastro, 959 F.2d at 53-54 (taxing costs to defendant, even though it was not
liable for wrongful attachment). The district court below recognized that the applicability of 28
U.S.C. § 1921(a)(1)(e) was disputed by the parties, and stated that it would decide that issue at
the appropriate time. That issue is not before this Court on this appeal, and we express no
opinion on the matter.
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(1959)). Therefore, like the district court, we do not consider this claim separately
from the wrongful attachment claim. The parties do not dispute this on appeal.
III. Application of the Law to IMC’s Claim
Thus, to recover against Dantzler, IMC must show that Dantzler acted in
“bad faith, with malice, or through a wanton disregard of the legal rights of his
adversary.” Frontera, 91 F.2d at 297. The district court concluded that because
IMC had failed to provide evidence of bad faith, Dantzler was entitled to summary
judgment.
In contending that there exists a genuine dispute as to whether Dantzler
acted in bad faith, IMC points us to various actions that Dantzler failed to take
before and after the arrest of the Industrial Fighter. First, in support of its position
that Dantzler acted in bad faith in seizing the Industrial Fighter, IMC argues that
“Dantzler failed to provide the Brazilian court with information pertinent to the
arrest, that is the true identity of the vessel’s owner.” This is misleading. Insofar
as it pertains to the initial arrest of the vessel, there is no evidence in the record to
support the conclusion that Dantzler knew before the arrest that the vessel
belonged to Eris. Indeed, IMC elsewhere recognizes that Dantzler would have
known (that is, it did not actually know) that the Industrial Fighter belonged to Eris
had Dantzler consulted various maritime publications and resources. But that is
just to say that Dantzler proceeded with negligence, that is, “[t]he failure to
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exercise the standard of care that a reasonably prudent person would have
exercised in a similar situation . . . .” Black’s Law Dictionary (10th Ed. 2014). As
Frontera makes clear, mere negligence is insufficient for liability. 91 F.2d at 297.
As the allegation that Dantzler withheld information pertains to Dantzler’s
actions once it had been notified by IMC that the vessel belonged to Eris, this is
likewise misleading because, as the record shows, Dantzler did immediately notify
Madeira and its United States counsel, those attorneys immediately contacted IMC,
and Madeira then notified the court. In one of our few precedents to address the
issue of wrongful arrest and bad faith, we explained that the district court did not
err in determining that there was no bad faith when the defendant was notified that
it was seizing the wrong party’s vessel, but requested from that party further
evidence to support that fact, rather than immediately releasing the vessel. Furness
Withy (Chartering), Inc., Panama v. World Energy Sys. Assocs., Inc., 772 F.2d
802, 808 n.9 (11th Cir. 1985) (“Furness I”). Thus, as Furness I indicates, there is
no duty to do anything beyond diligently investigating the new information. The
arresting party need not immediately seek the release of a vessel just because the
arrest is contested. Dantzler’s conduct in passing the information on to its counsel
shows no negligence and IMC suggests no specific course of action that would
have materially hastened the release of the Industrial Fighter. That Dantzler relied
on its counsel to handle the matter rather than contact the Brazilian court directly,
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as IMC suggests it should have done, is no sign of bad faith. Rather, it just shows
that Dantzler was doing what people and companies hire lawyers to do: handle
their legal affairs.
Second, IMC argues that Dantzler had “implied knowledge of the
impropriety of the arrest” because it knew of maritime industry resources that had
information about vessel ownership, yet failed to consult those resources before
seeking the seizure of the Industrial Fighter. As stated, however, IMC is again
simply saying that Dantzler was negligent in failing to consult those resources, and
negligence is insufficient for liability under the Frontera standard. See Frontera,
91 F.2d at 294, 297. Casting as “implied knowledge” the fact that such resources
would have shown that the Industrial Fighter was owned by Eris, not Scan-Trans,
does not make Dantzler’s behavior rise above the level of negligence.
A district court case relied upon by IMC for this point illustrates the
difference between Dantzler’s conduct and bad faith conduct. See Coastal Barge
Corp. v. M/V Maritime Prosperity, 901 F. Supp. 325 (M.D. Fla. 1994). There,
following a maritime collision, the arrestor arrested the arrestee’s vessel not once,
but twice. Id. at 326. After the first arrest, the arrestor, “in exchange for [the
arrestee’s] assumption of liability [for a collision], had agreed not to subject [the
vessel] to any further arrest as a means of securing [the arrestor’s] claim of
damages.” Id. at 327. However, “driven by its conviction that its promise not to
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rearrest the ship had been given for illusory consideration,” the arrestor rearrested
the ship without informing the court of the agreement. Id. at 328. The evidence
before the court was unequivocal that the arrestor “knew full well of the ship’s
right not to be rearrested by it.” Id. at 329. By gambling that the agreement was
invalid, the district court held, the arrestor was proceeding recklessly. Coastal
Barge, 901 F. Supp. at 328-29. IMC tries to analogize Dantzler’s behavior to the
arrestor’s in Coastal Barge, arguing that in both cases pertinent information was
withheld from the courts in seeking to arrest (or rearrest) the vessel. But in
Coastal Barge it was clear that the arrestor knew of the previous agreement not to
rearrest the vessel—there was a contract, after all—whereas here, the most IMC
can point to is information that Dantzler could have, but did not, consult. That is,
of course, precisely the difference between negligence and recklessness—that is,
“[c]onduct whereby the actor does not desire harmful consequence but nonetheless
foresees the possibility and consciously takes the risk.” Black’s Law Dictionary
(10th Ed. 2014).
This inference is reinforced by another district court case cited by IMC in its
“implied knowledge” argument. See Sea Star Line Caribbean, LLC v. M/V
Sunshine Spirit, No. 09-1152(JAF), 2009 WL 3878246 (D.P.R. Nov. 13, 2009). In
Sea Star, the defendant had the plaintiff’s vessel arrested, despite there being a
contract between the parties expressly prohibiting arrest should any dispute arise.
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Id. at *4-5. In granting summary judgment to the plaintiff, the district court noted
that the defendant “is charged with implied actual knowledge of the . . . clause, and
it is a sophisticated business entity engaged in the trade of carriage of goods by
sea.” Id. at *6. IMC reads Sea Star for the proposition that “bad faith may be
presumed where the arrestor is a sophisticated business entity engaged in the
carriage of goods by sea and has implied knowledge of the impropriety of the
arrest.” The facts of Sea Star—involving a contract between sophisticated parties
that expressly forbade the arrest of the vessel—allowed the imputation of “implied
knowledge” to the defendant. But those factors are quite different from the facts of
this case, in which, again, IMC simply argues that Dantzler should have consulted
more resources before being satisfied that the Industrial Fighter was owned by
Scan-Trans. To repeat, bad faith may be found in acting in disregard of what one
knows; failing to take reasonable precautions leads only to a conclusion of
negligence.
Coastal Barge and Sea Star, upon which IMC relies heavily, therefore do
not support the conclusion that Dantzler’s conduct was anything more than
negligent. Instead, the facts of those cases illustrate the gulf between what
amounts to bad faith in wrongful arrest cases and what Dantzler is alleged to have
done here.
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Finally, IMC argues that Dantzler and its president, Godinez, should have
exercised more supervision of Madeira, rather than permit him to pursue the
attachments of vessels on his own. But even if Dantzler had a duty to supervise its
attorney, IMC points to no facts that could support the conclusion that Dantzler
should have known that Madeira was acting inappropriately (or even a conclusion
that Madeira was indeed acting inappropriately), except for the fact that the arrest
of the Industrial Fighter turned out to be erroneous. Moreover, IMC cites nothing
specific that Dantzler, whose headquarters are in Florida, should have been doing
to supervise its Brazilian attorney in his representation of Dantzler’s interests in
Brazil. As such, it has therefore failed to place any facts in dispute. Clients
routinely rely on their attorneys to handle their legal affairs. Our “wrongful arrest”
jurisprudence emphasizes this point by making honest reliance on advice of
counsel an absolute defense. See Frontera, 91 F.2d at 297.
The district court therefore did not err in deciding that IMC had put into
reasonable dispute no facts that would preclude summary judgment for Dantzler.
What IMC has provided at most shows Dantzler’s or Madeira’s negligence in
pursuing the recovery of the debt owed to it by Monsted. It shows no malice,
recklessness, or bad faith toward IMC, because IMC has cited no evidence that
would indicate that Dantzler had knowledge that Madeira’s conduct was infringing
on the rights of IMC.
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The jurisprudence of other circuits supports this conclusion. For example, in
Marastro, a judgment creditor seized cargo it believed to belong to an alter ego of
its judgment debtor, which, because the subject cargo was aboard a chartered
vessel and there was no place to unload it, necessitated the arrest of the vessel as
well, forcing it to remain in port for several days. 959 F.2d at 50-51. Although the
cargo owner turned out not to be an alter ego of the judgment debtor, and therefore
the seizure was improper, the Fifth Circuit affirmed the district court’s denial of
the wrongful arrest claims of the cargo owner and the vessel charterer because the
mistake about ownership was, however erroneous, not in bad faith. Id. at 53.
Similarly, courts have not found an arresting party liable just because it turns
out that it had the losing legal argument in the underlying dispute leading to the
attachment. For example, the First Circuit affirmed a grant of summary judgment
to the defendant on a wrongful arrest claim where that defendant, anticipating a
breach of a contract to provide fuel, attached the plaintiff’s vessel prior to the
payment due date on the contract, claiming that it feared the vessel would be gone
from United States’ waters by the time the payment would be due. Central Oil Co.
v. M/V Lamma-Forest, 821 F.2d 48, 51 (1st Cir. 1987). Likewise, where an
attachment arose from a disagreement between the parties as to whether Canadian
or United States maritime lien law applied to their dispute, the Fourth Circuit
found no bad faith, even though it determined that the attachment was illegal under
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the governing (Canadian) law. Ocean Ship Supply, Ltd. v. MV Leah, 729 F.2d 971,
974 (4th Cir. 1984).
As these cases make clear, wrongful arrest is not a tool to redress good-faith
mistakes of a party’s identity (Marastro) or the law (Central Oil, Ocean Ship),
even though these mistakes may turn out to be costly. These are the types of
mistakes that our admiralty procedures anticipate and accept as a necessary evil to
be suffered in the interests of preventing parties from fleeing a court’s jurisdiction
before the dispute can be adjudicated. Leonhardt, 773 F.2d at 1538. These cases
further make clear that the sort of error made by Dantzler in attaching the
Industrial Fighter is well within what the courts have held to be, at most, negligent
error. No facts that IMC has produced could be reasonably construed as evidence
of bad faith. Rather, they are the sorts of mistakes routine in maritime attachments.
Thus, because we agree with the district court that IMC has failed to carry its
burden in raising issues of material fact, summary judgment was appropriate. 3
IV. Overruling Frontera
Finally, perhaps realizing that this Circuit’s law does not support its case,
IMC asks us to overrule Frontera and fashion an alternative standard for wrongful
attachment, one under which “Dantzler would be exposed to liability for the
3
Because we agree with the district court that IMC has failed to carry its burden to
survive summary judgment, we need not address Dantzler’s affirmative defense that, even if the
arrest of the Industrial Fighter rose above the level of negligence, Dantzler was relying in good
faith on the advice of counsel.
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negligent acts and misrepresentations of its attorney and agent.” Frontera, IMC
complains,
[P]roduces an inequitable result because it places an immense burden
on the innocent owner or charterer of an improperly seized vessel,
requiring that the owner, charterer or other affected party prove by a
preponderance of the evidence the arrestor’s actions arose from
malice, bad faith or a reckless disregard for the affected party’s legal
rights.
Whatever may be the merits of IMC’s criticism of Frontera and the
undesirable policy interests that it allegedly promotes, we are bound by it as our
precedent. We have relied on Frontera. See Furness I, 772 F.2d at 808; Furness
II, 854 F.2d at 411. Our district courts have also done so. See, e.g., Coastal
Barge, 901 F. Supp. at 328-29; Hyundai Heavy Indus. Co., Ltd. v. M/V Saibos FDS,
163 F. Supp. 2d 1307, 1315-16 (N.D. Ala. 2001); John W. Stone Oil Distrib., Inc. v.
M/V Miss Bern, 663 F. Supp. 773, 778 (S.D. Ala. 1987). Other courts have cited it
approvingly. See, e.g., U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 392 n.4
(3d Cir. 2002); Arochem Corp. v. Wilomi, Inc., 962 F.2d 496, 499 (5th Cir. 1992);
Central Oil, 821 F.2d at 51; Ocean Ship Supply, 729 F.2d at 974. Finally, as this
Court has held since its inception, “a prior decision of the circuit (panel or en banc)
c[annot] be overruled by a panel but only by the court sitting en banc.” Bonner v.
City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981). Frontera is therefore
precedent unless and until we overrule it en banc. We therefore must decline
IMC’s invitation.
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V. Conclusion
For the reasons explained above, we affirm the district court in its grant of
summary judgment to Dantzler.
AFFIRMED.
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