The Second Circuit recently discussed the circumstances in which a court pursuant to Rule E(5) or (6) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure (the "Supplemental Rules") may reduce the amount held by maritime attachment.
In an opinion by Judge Katzmann, the court affirmed District Judge Preska’s order reducing the amount of the attachment.
The court held that a court may assess preliminarily the reasonableness of plaintiff's damages claim when setting a security under Rule E(5) and may weigh this and other equitable considerations when evaluating whether good cause exists to reduce a security under Rule E(6).
In making a preliminary assessment of plaintiff's damages claim, the court should be satisfied that the plaintiff's claims are not frivolous, but it should not require the plaintiff to prove its damages with exactitude.
Because the court agreed that TNT likely could not have shown that the wrongful arrest of the Vessel actually caused its claimed damages, which according to TNT's allegations were suffered after TNT was aware of the wrongful arrest but before it took any action to secure the Vessel's release.
Therefore, the district court did not abuse its discretion in drawing the preliminary conclusion that TNT was likely to recover only the costs it incurred in securing the release of the Vessel.
TRANSPORTES NAVIEROS Y TERRESTRES S.A. DE C.V. v. FAIRMOUNT HEAVY TRANSPORT N.V, 2009 U.S. App. LEXIS 13394 (2d Cir. 2009)
Tim Moore
mooreorlesstim3@yahoo.com
http://www.disabilityblogger.blogspot.com
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