                                                                           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                           NOT FOR PUBLICATION                              DEC 30 2011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


                                            2
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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