FILED
NOT FOR PUBLICATION DEC 30 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EQUATORIAL MARINE FUEL No. 10-55688
MANAGEMENT SERVICES PTE LTD.,
D.C. No. 2:08-cv-07756-VBF-CT
Plaintiff - Appellee,
v. MEMORANDUM *
MISC BERHAD,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted December 9, 2011
Pasadena, California
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.
MISC Berhad appeals the district court’s denial of its motion for damages,
costs and fees resulting from wrongful attachment of its vessel by Equatorial
Marine. The facts regarding the vessel’s attachment are set forth in our prior
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
opinion. Equatorial Marine Fuel Mgmt. Servs. Pte Ltd. v. MISC Berhad, 591 F.3d
1208 (9th Cir. 2010). We reverse and remand.
A vessel owner can recover damages for wrongful attachment by
establishing bad faith, malice or gross negligence. See Stevens v. F/V Bonnie
Doon, 655 F.2d 206, 209 (9th Cir. 1981). Bad faith also supports the equitable
recovery of attorney fees and costs in admiralty cases. See Madeja v. Olympic
Packers, LLC, 310 F.3d 628, 635 (9th Cir. 2002). We review the district court’s
bad faith finding for clear error. Id. at 635–36.
The district court clearly erred by finding that Equatorial acted in good faith
when it attached the vessel. As the district court found, Equatorial knew or should
have known that MISC had contracted with Market Asia Link, and that Market
Asia Link, not MISC, was liable to Equatorial for the fuel. Before Equatorial
verified and filed the complaint, MISC directly notified Equatorial by email that
MISC had contracted with and paid Market Asia Link, and that Market Asia Link
would be paying its contractors. Yet, Equatorial sued MISC anyway and wrongly
attached its vessel.
Equatorial’s Supplemental Rule B verified complaint contained allegations
that were not true, specifically: (1) that the parties had entered into a contract; (2)
that MISC had agreed to pay Equatorial for the fuel; (3) that MISC had agreed to
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Equatorial’s “terms and conditions;” and (4) that Equatorial was entitled to invoice
and had invoiced MISC for the fuel. Instead of attaching the operative contract
with Market Asia Link, Equatorial attached contract terms and conditions not
agreed to by MISC, and inaccurately represented the attached document to be its
contract with MISC.
Equatorial’s belated assertion that it thought that Market Asia Link was
MISC’s agent is not persuasive. In addition, Equatorial’s claim that it requested
that MISC provide the MISC contracts and proof that MISC had paid Market Asia
Link before November 24, 2008 is not supported by the record. Moreover,
Equatorial falsely asserted to this court in its prior appeal that it had no knowledge
of Market Asia Link’s involvement until after it attached the vessel. Equatorial’s
own documents establish that this assertion was false.
REVERSED AND REMANDED.
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