## Facts

- Malin International Ship Repair & Drydock, Inc. operated a shipyard in Galveston, Texas and performed ship-repair-related maritime work in 2008–2009.
- The work was performed for Oceanografia, S.A. de C.V. (a Mexican corporation) in connection with requests and dealings involving Con–Dive, LLC (a related, now-defunct Texas company).
- Malin was not paid in full and sued OSA in the Southern District of Texas for the unpaid balance under breach of contract and quantum meruit.
- Cal Dive Offshore Contractors, Inc. was the registered owner of the M/V KESTREL; the vessel was chartered through intermediaries and ultimately bareboat chartered to OSA.
- OSA took delivery of the vessel on October 15, 2012 under a bareboat charter clause requiring OSA to purchase the bunkers on board at delivery at the then-current market price.
- To obtain quasi in rem jurisdiction and security for its maritime claim, Malin obtained a Rule B writ and attached the fuel bunkers aboard the M/V KESTREL on October 29, 2012.
- OSA and Cal Dive sought to vacate the attachment, arguing OSA lacked an attachable interest because it had not been invoiced or paid for the bunkers.
- The district court denied vacatur, finding OSA’s possessory interest in the bunkers sufficient for Rule B; Cal Dive posted a release bond substituting for the bunkers.
- The district court granted summary judgment to Malin on liability; OSA appealed both the Rule B ruling and summary judgment.

## Issues

1. Whether a bareboat charterer’s possessory interest in fuel bunkers aboard a delivered vessel constitutes “property” of the defendant subject to attachment under Supplemental Admiralty Rule B, despite nonpayment and lack of invoicing.
2. Whether summary judgment was proper on Malin’s claims that OSA was liable for unpaid maritime services under contract theories (including agency or ratification) and/or quantum meruit.
3. Whether the court should apply foreign law referenced in the charter when the parties failed to give notice and provide proof of that foreign law under Federal Rule of Civil Procedure 44.1.

## Decision

- The Fifth Circuit affirmed the denial of the motion to vacate the Rule B attachment.
- The court held that OSA’s possessory interest in the bunkers, arising from its status as bareboat charterer in delivery possession and the charter’s bunker-purchase obligation, was an attachable interest under Rule B.
- The court applied forum law where the parties did not properly raise or prove foreign law under Rule 44.1.
- The Fifth Circuit affirmed summary judgment for Malin, concluding the record established OSA’s liability for the unpaid balance and presented no genuine dispute of material fact defeating judgment as a matter of law.

## Legal Principles

- For Supplemental Admiralty Rule B, “property” of a defendant is not limited to formal title; a possessory interest recognized in admiralty may be sufficient to support attachment and quasi in rem jurisdiction.
- A charterer’s delivery possession of a vessel, combined with contractual obligations tied to onboard consumables (such as bunkers), can create an attachable interest even before invoicing or payment.
- Under Federal Rule of Civil Procedure 44.1, parties seeking application of foreign law must give notice and provide adequate proof; absent sufficient proof, a federal court may apply forum law.
- Summary judgment is proper where the evidence shows no genuine dispute of material fact and the movant is entitled to judgment as a matter of law, including on theories of contractual liability (agency/ratification) and quantum meruit for the value of maritime services.

## Conclusion

The Fifth Circuit held that Rule B permits attachment based on a charterer’s possessory interest in vessel bunkers after delivery and, applying forum law where foreign law was not properly presented, affirmed summary judgment holding the charterer liable for unpaid maritime services.


Malin Int’l Ship Repair & Drydock, Inc. v. Oceanografia, S.A. de C.V., 817 F.3d 241 (5th Cir. 2016)