7ASR3d76

EUROCOMPANY S.P.A., Plaintiff

 

v.

 

YURGRETTANSFLOT,

THE OWNERS OF THE VESSEL;

and

THE VESSEL M/V BUKTA KAMYSHOVAYA,

along

with its gear, tackle and appurtenances,

Defendant

and Defendants In Rem

_________________________________

 

GULF

VLADIMIR, S.A., a Panamanian)

Corporation,

Counter-claimant/Intervenor

 

v.

 

EUROCOMPANY

S.P.A., Counterclaim Defendant

 

High

Court of American Samoa

Trial

Division

 

CA

No. 44-02

 

February

27, 2003

 

 

[1] Voluntary

dismissal pursuant to T.C.R.C.P. 41, if timely filed, is available as a matter

of unconditional right.

 

[2] Voluntary

dismissal under T.C.R.C.P. 41 is effective at the moment the notice is filed

with the clerk, and no judicial approval is required.

 

[3] In order to

be effectuated, a voluntary dismissal must be filed before service by the

adverse party of an answer or of a motion for summary judgment.

 

[4] A

plaintiff’s right to voluntarily dismiss an action under T.C.R.C.P. 41 is not

extinguished by the defendant’s filing of a motion to dismiss under T.C.R.C.P.

12(b).

 

[5]

Where party filed objection to Court’s in rem jurisdiction, such would

not be viewed as equivalent to an answer as to do so would violate Rule C(6) of

the T.C.R.C.P. Supplemental Admiralty and Maritime Claims, its meaning and

purpose.

 

Before

KRUSE, Chief Justice, ATIULAGI, Associate Judge, and MAMEA, Associate Judge.

 

Counsel:

For Plaintiff/Counterclaim Defendant, Paul Miller

 For

Counter-claimant/Intervenor, Barry I. Rose and Craig Miller, pro hac vice

 

ORDER

DENYING MOTION FOR SUMMARY JUDGMENT

 

The

unusual circumstances of this case bring before us an eclectic collection of

international players: an Italian fruit company, a Soviet vessel, a Ukrainian

joint stock company, a Panamanian corporation, and 2,405.0912 metric tons of

Argentinean pears.  The events that led

to this litigation pre-date, and indeed, are linked to, the fall of the Soviet

Union. In the latest chapter, we deny the pending motion for summary judgment.

Background

Eurocompany S.P.A. (“Eurocompany”) is a fruit trading company based in

Italy.  In July 1989, it commenced

litigation in Italy against Yugrybtranssbyt, a Soviet state enterprise and then

owner of the M/V Bukhta Kamyshovaya (“M/V Bukhta”).  The suit, sounding in tort, arose out of a

contract of carriage for 2,405.0912 metric tons of Argentinean pears.  The litigation lingered until May 2001 when

an Italian court entered a final judgment in favor of Eurocompany.  At that point, the vessel had changed hands

several times: following the breakup of the Soviet Union, it became property of

the nation of Ukraine and was operated by a Ukrainian state enterprise; that

entity, in turn, became privatized and known as Yugretransflot, a Ukrainian

joint stock company; in 1997, Yugretransflot sold the vessel to the putative

intervener, Gulf Vladimir, a Panamanian corporation.

In any event, Eurocompany believed that under Italian law, the judgment gave

rise to a maritime lien, which attached to the M/V Bukhta.  Therefore when the M/V Bukhta found its way

into the Pago Pago Harbor, Eurocompany attempted to arrest it.  On May 13, 2002, it filed a complaint in

Admiralty in this court against M/V Bukhta Kamyshovaya (“Bukhta”), and its

former owners, Yugretransflot.  We then

issued an order allowing for the arrest of the vessel only if Eurocompany met

certain conditions.[1]  In response, on May 22, 2002, the current

owner, Gulf Vladimir, filed a Vessel Owner’s Claim and Statement of Right.  The motion contested Eurocompany’s right to

arrest the vessel.  In essence, they

argued that this court did not have in rem jurisdiction over the M/V

Bukhta.

On June 24, 2002, Eurocompany abandoned ship; it filed a notice to voluntarily

dismiss the action pursuant to T.C.R.C.P. 41(a)(1)(i).[2]  Three days later, Gulf Vladimir filed a

counterclaim for declaratory judgment.[3] Then on December 10, 2002,

Gulf Vladimir filed a motion for summary judgment.  This motion is presently before us.

Discussion

[1-3] Under T.C.R.C.P. 41, voluntary

dismissal, if timely filed, “is available as a matter of unconditional right .

. . and is self executing, i.e., it is effective at the moment the notice is

filed with the clerk and no judicial approval is required.”  Marex Titanic, Inc. v. Wrecked and

Abandoned Vessel, 2 F.3d 544, 546 (4th Cir. 1993) (citations omitted).  In order to be effectuated, the dismissal

must be filed “before service by the adverse party of an answer or of a motion

for summary judgment.” T.C.R.C.P. 41(1)(i). 

The only question, then, is whether Gulf Vladimir either served an

answer or moved for summary judgment before June 24, 2002, the day Eurocompany

submitted their notice of dismissal.

[4] It is clear that Gulf Vladimir’s

pre-June 24th strategy was anchored on the presumption that we did not have the

power to arrest the M/V Bukhta.  That is,

their motions contested our in rem jurisdiction over the vessel.  That was the equivalent of a 12(b)(1) motion

for lack of jurisdiction.  It is well

settled that “the plaintiff’s right to a voluntary dismissal is not

extinguished by the filing of a motion to dismiss under [T.C.R.C.P.

12(b)].”  8 James Moore, Moore’s Federal Practice § 41.33(5)(c)(viii)(A)

(3d ed. 1999).[4]  And, despite Gulf Vladimir’s contentions to

the contrary, because the vessel was never actually arrested, our jurisdiction

was never actually “invoked”; it was merely requested.[5]

 

[5]

Furthermore, we do not interpret Gulf Vladimir’s objection to our in rem

jurisdiction as the equivalent of an answer. 

Admiralty procedure provides the owner of a vessel with a specific time

frame in which to file a claim of ownership (10 days) and a separate

time frame in which to serve an answer (20 days).  T.C.R.C.P. Supplemental Admiralty and

Maritime Claims, Rule C(6).  Thus, Rule

C(6) clearly distinguishes between an ownership claim and an answer.  Were we to adopt Gulf Vladimir’s position, we

would be doing a disservice to the clear meaning and purpose of Rule C(6).  See, e.g., United States v. One

1990 Mercedes Benz 300CE, 926 F. Supp. 1, 4 (D.D.C. 1996) (distinguishing

between claim and answer under Rule C(6)); Fed. R. Civ. P. Supplemental

Admiralty and Maritime Claims, Rule C(6) advisory committee’s note (the rule

“requires claimants to come forward and identify themselves at an early stage

of the proceedings—before they could fairly be required to answer.”).

Finally, Gulf Vladimir’s June 27 and December 10 motions cannot salvage their

claims.  Those motions were filed after

Eurocompany’s notice of dismissal and were thus too late.

Conclusion

Unfortunately for Gulf Vladimir, their ship has sailed.  The motion for summary judgment is,

therefore, denied.

It is so ordered.

 

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