Malin International Ship Repair & Drydock, Inc. v. Oceanografia, S.A. De C.V. , 817 F.3d 241 ( 2016 )

Case: 15-40463 Document: 00513435325 Page: 1 Date Filed: 03/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 23, 2016
No. 15-40463
Lyle W. Cayce
Clerk
MALIN INTERNATIONAL SHIP REPAIR & DRYDOCK, INCORPORATED,
Plaintiff - Appellee
v.
OCEANOGRAFIA, S.A. DE C.V.,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, WIENER, and HIGGINSON, Circuit Judges.
WIENER, Circuit Judge:
Defendant-Appellant Oceanografia, S.A. (“OSA”) appeals (1) the district
court’s denial of its motion to vacate attachment under Supplemental
Admiralty Rule B and (2) that court’s grant of Plaintiff-Appellant Malin
International Ship Repair & Drydock, Inc.’s (“Malin”) motion for summary
judgment. Concluding that both the attachment and the summary judgment
were proper, we affirm.
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No. 15-40463
I.
FACTS AND PROCEEDINGS
Malin operates a shipyard in Galveston, Texas. In 2008 and 2009, Malin
performed work for OSA, a Mexican corporation, and Con-Dive, LLC (“Con-
Dive”), a now-defunct Texas company. Not having received payment for its
work, Malin sued OSA for the balance of its unpaid invoices for work, services,
materials, and supplies that it had provided to OSA at the request of Con-Dive.
Malin sought recovery on the alternative theories of breach of contract and
quantum meruit.
OSA operated a vessel, the M/V KESTREL, under a bareboat charter
agreement. The registered owner of the M/V KESTREL, Cal Dive Offshore
Contractors, Inc. (“Cal Dive”), had entered into a charter agreement with Gulf
Offshore Construction, Inc. (“GOC”), which in turn bareboat chartered the
vessel to OSA. OSA had taken delivery of the vessel on October 15, 2012. The
charter agreement stated that “[a]t the time of delivery[, OSA] shall purchase
the bunkers . . . in the said Vessel at the then current market price at the port
of delivery.” To obtain jurisdiction over OSA pursuant to Supplemental
Admiralty Rule B, Malin attached the fuel bunkers 1 aboard the M/V KESTREL
on October 29, 2012.
OSA and Cal Dive sought to vacate the attachment, contending that OSA
did not hold an attachable interest in the bunkers at the time of Malin’s
attachment because title to them had not yet passed to OSA. According to OSA
1 “Fuel bunkers” is the admiralty term for the fuel used by a vessel. See Glossary of
Marine Insurance and Shipping Terms, 14 U.S.F. MAR. L. J. 305, 325 (2001–2002) (defining
“bunkers” as “[f]uel to be used by the vessel’s engines for power during the voyage; but not
fuel loaded on board the vessel as cargo”).
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and Cal Dive, OSA had neither paid for the bunkers nor received an invoice for
them and therefore did not own them.
The district court denied their motions, holding that OSA’s possessory
interest in the bunkers constituted an attachable interest under Rule B. Cal
Dive then posted a vessel release bond to substitute for the seized bunkers of
the M/V KESTREL and to secure the liability of OSA to Malin.
Malin then sought summary judgment on its breach of contract and
quantum meruit claims against OSA. Malin contended that Con-Dive was
OSA’s agent and had authority to bind OSA to the invoices, or, in the
alternative, that OSA had ratified the invoices or is liable to Malin on its claim
of quantum meruit. In support, Malin supplied invoices detailing the amounts
owed as well as e-mails from OSA indicating that it had received the invoices
and agreed to pay them. The invoices also contained provisions for interest and
attorneys fees. OSA opposed the motion. It filed only one item of summary
judgment evidence: a declaration from an OSA employee stating that Con-Dive
did not act as OSA’s agent.
The magistrate judge recommended granting summary judgment in
favor of Malin based on its ratification and quantum meruit theories. The
magistrate judge also recommended that Malin be awarded attorneys fees on
its ratification claim. The district court accepted and adopted the magistrate
judge’s Report and Recommendation, then rendered judgment to Malin for the
amount of the invoices, plus accrued interest and attorneys fees. This appeal
followed.
On appeal, OSA contends that the district court erred in denying its
motion to vacate the attachment. It argues that the attachment of the bunkers
was improper under Supplemental Rule B because the bunkers were not its
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property. OSA further asserts that the district court erred in granting Malin’s
motion for summary judgment on its ratification theory. 2
II.
ANALYSIS
A. Attachment
The propriety of the attachment of the bunkers aboard the M/V
KESTREL goes to the district court’s jurisdiction over OSA, so we begin there.
We review an order denying a motion to vacate an attachment under Rule B
for abuse of discretion, and we review issues of law de novo. 3
Supplemental Rule B provides:
If a defendant is not found within the district when a verified
complaint praying for attachment and the affidavit required by
Rule B(1)(b) are filed, a verified complaint may contain a prayer
for process to attach the defendant’s tangible or intangible
personal property—up to the amount sued for—in the hands of
garnishees named in the process. 4
“Rule B allows a district court to take jurisdiction over a defendant in an
admiralty or maritime action by attaching property of the defendant.” 5 The
rule has two purposes: “to secure a respondent’s appearance and to assure
satisfaction in case the suit is successful.” 6
2 OSA’s attempt, in its Summary of the Argument, to challenge the district court’s
award of damages is waived by OSA’s failure to brief it adequately. See United States v.
Sealed Appellant 1, 591 F.3d 812, 823 (5th Cir. 2009).
3 Geneve Butane, Inc. v. Nat’l Oil Corp., 551 F. App’x 185, 185 (5th Cir. 2014)
(unpublished); see also Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58,
66 (2d Cir. 2009).
4 FED. R. CIV. P. SUPP. R. B(1)(a).
5 Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 421 (5th Cir.
2001).
6 Swift & Co. Packers v. Compania Colombiana Del Caribe, S.A., 339 U.S. 684, 693
(1950).
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The only issue before us is whether the fuel bunkers constituted OSA’s
“tangible or intangible personal property” at the time of attachment. 7 Rule B
does not define the term “tangible or intangible personal property.”
Significantly, the rule provides no guidance as to what type of property interest
is attachable. OSA urges us to rule that a party must own property for it to be
subject to attachment under Rule B, contending that it did not own the bunkers
at the time of attachment because it had not yet paid for them. Predictably,
Malin counters that an interest in property less than full ownership—here,
OSA’s agreement to purchase the bunkers coupled with its possession of the
bunkers—suffices.
The Supreme Court approved of maritime attachment in Manro v.
Almeida. 8 Although the Court did not define what constitutes attachable
property, it quoted “a book of respectable authority” which states that goods or
ships may be attached in the hands of the owner or in the hands of “all others
who claim any right or title to them . . . .” 9 More than one hundred years later,
in Kingston Dry Dock Co. v. Lake Champlain Transportation Co., 10 Judge
Learned Hand, writing for the Second Circuit, applied Rule B’s precursor and
held that a conditional buyer’s “conditional right to title” constituted an
attachable interest. There, the plaintiff attached two canal boats possessed by
the defendant, a conditional buyer. The defendant had contracted for the
construction and sale of the boats and had taken possession of them. The
contract, however, reserved title to the seller until it received final payment,
7See Jaldhi, 585 F.3d at 69 (“As a remedy quasi in rem, the validity of a Rule B
attachment depends entirely on the determination that the res at issue is the property of the
defendant at the moment the res is attached.”).
8 23 U.S. (10 Wheat) 473 (1825).
9 Id. at 491–92 (quoting Hall, CLERKE’S PRAXIS part 2, tit. 28) (emphasis added).
10 31 F.2d 265, 267 (2d. Cir. 1929).
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and the defendant had not made payment at the time of attachment. On this
basis, the defendant sought to vacate the writ of attachment. Recognizing that
possession “is historically the original source of all title,” Judge Hand warned
that “[i]t would be curious if possession, coupled with a conditional right to
title, could now be thought insufficient to support a seizure.” 11 Accordingly,
that court declined to vacate the attachment.
Later, the Third Circuit in McGahern v. Koppers Coal Co. distinguished
Kingston when considering whether a bareboat charterer possessed an
attachable interested in the chartered vessel. 12 The court held that a bareboat
charterer holds no attachable interest in the chartered vessel because the
charterer has “no title or expectancy or possibility of title, conditional or
otherwise.” 13 Significantly, under a bareboat charter, “[n]o title passes to the
charterer under it, but merely the right to possess and control it for a limited
period.” 14 The Third Circuit found this result “in entire accord” with Kingston:
“Clearly the conditional vendee [in Kingston], while not the holder of the legal
title, did have conditional right to title, . . . which was sufficient to support the
seizure. . . . In the present case, on the other hand, respondent . . . had no title
or expectancy or possibility of title, conditional or otherwise.” 15
Although these cases recognized the principle that a conditional right to
title may support attachment under Rule B, a more recent unpublished Fourth
Circuit opinion adopted a narrower approach. In Wave Maker Shipping Co.,
Ltd. v. Hawksphere Shipping Co. Ltd., 16 creditors sought to attach a charterer’s
11 Id. at 266–67.
12 108 F.2d 652 (3d Cir. 1940).
13 Id. at 653.
14 Id.15 Id.16 56 F. App’x 594 (4th Cir. 2003) (unpublished).
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fuel bunkers. Relevantly, the charterer had purchased fuel from a fuel
supplier, but had not yet paid for it. 17 Under the contract between the charterer
and the fuel supplier, the supplier retained title to the fuel until the charterer
paid in full. 18 The charterer contended that the attachment should have been
vacated because it did not have title to the fuel; rather, the fuel supplier
retained title. Examining whether the Rule B attachment of the fuel bunkers
should have been vacated, the Fourth Circuit asked whether the charterer
“ever acquired title to the bunkers.” 19 In answering this question, the Fourth
Circuit relied on principles of English law, which governed the contract at
issue. 20 Concluding that the fuel supplier had retained title to the bunkers, the
Fourth Circuit vacated the attachment of the fuel in possession of the
charterer. 21
The Second Circuit recently emphasized the importance of ownership in
determining whether an interest is attachable under Rule B. In deciding
whether electronic fund transfers (“EFTs”) are an attachable interest under
Rule B, the Second Circuit, relying on New York state law, held that they are
not: “Because EFTs in the temporary possession of an intermediary bank are
not property of either the originator or the beneficiary under New York law,
they cannot be subject to attachment under Rule B.” 22 This is because “[f]or
maritime attachments under Rule B . . . the question of ownership is critical.” 23
Several district courts have found an attachable property interest under
Rule B when the defendant’s interest does not rise to ownership. For example,
17 Id. at 597.
18 Id.
19 Id. at 598.
20 Id. at 598–99.
21 Id. at 599.
22 Jaldhi, 585 F.3d at 71.
23 Id. at 69.
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in World Fuel Services, Inc. v. SE Shipping Lines Pte., Ltd., 24 the district court
upheld an attachment of fuel bunkers in the possession of the defendant.
Although the defendant had not acquired title to the bunkers, the district court
upheld the attachment because the defendant had the right to possess the
bunkers, use the bunkers, and sell the bunkers. 25 Similarly, the district court
in Alaska Reefer Management LLC v. Network Shipping Ltd. stated that “Rule
B provides for a broad definition of property and does not require actual
ownership or title.” 26 That district court held that an attachable interest exists
under Rule B when the “assets are being held ‘for the benefit of’ the Defendant
or ‘in its name.’” 27
The body of federal maritime jurisprudence presents ambiguity as to
whether, as the district court held here, a possessory interest is attachable
under Rule B. Neither does federal maritime law categorize the type of interest
that OSA held in the fuel bunkers at the time of the attachment. Confronted
with such a void, other courts “generally look to state law to determine
property rights.” 28 Stated differently, “the precedent in federal admiralty law
is so thin that we should turn to state law more directly on point.” 29 We choose
to do so here in the absence of guiding federal maritime law. In doing so, we
are in accord with the closest circuit case, Wave Maker Shipping Co., which
24 No. 10-4605, 2011 WL 446653 (E.D. La. Feb. 4, 2011).
25 Id. at *1–2.
26 68 F. Supp. 3d 383, 386–87 (S.D.N.Y. 2014).
27 Id. at 387.
28 Jaldhi, 585 F.3d at 70.
29 Reibor Int’l Ltd. v. Cargo Carriers (KACZ-CO.) Ltd., 759 F.2d 262, 266 (2d Cir. 1985)
(“In short, we agree with the district court that the precedent in federal admiralty law is so
thin that we should turn to state law more directly on point. We clearly have this option
where we find it appropriate.”).
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looked to the law governing the contract in determining whether title to fuel
bunkers had passed. 30
At the district court, Cal Dive contended that Texas law governs this
issue. The bareboat charter agreement specifies that Texas law applies when
federal maritime law is silent. An amendment to the agreement, effective
shortly before the instant attachment, specifies that Mexican law applies.
Neither party directed us to this amendment or urged us or the district court
to apply Mexican law. Under Federal Rule of Civil Procedure 44.1, “[a] party
who intends to raise an issue about a foreign country’s law must give notice by
a pleading or other writing.” 31 And “[i]n the absence of sufficient proof to
establish with reasonable certainty the substance of the foreign principles of
law, the modern view is that the law of the forum should be applied.” 32 We
therefore look to Texas law.
OSA and GOC executed the bareboat charter agreement on September
12, 2012. The agreement provides that OSA “shall purchase the bunkers” at
the time of delivery: “At the time of delivery the Charterers shall purchase the
bunkers . . . in the said Vessel at the then current market price at the port of
delivery.” OSA took delivery of the M/V KESTREL (and consequently its
bunkers) on October 15, 2012. Malin attached the fuel bunkers aboard the M/V
KESTREL on October 29, 2012. As of October 31, 2012, OSA had neither paid
30 Wave Maker Shipping Co., 56 F. App’x at 598–99 (applying English law in
determining whether title to fuel bunkers passed).
31 FED. R. CIV. P. 44.1.
32 Symonette Shipyards, Ltd. v. Clark, 365 F.2d 464, 468 n.5 (5th Cir. 1966); see also
Karim v. Finch Shipping Co., Ltd., 265 F.3d 258, 272 (5th Cir. 2001) (“When the parties have
failed to conclusively establish foreign law, a court is entitled to look to its own forum’s law
in order to fill any gaps.” (quoting Banco de Credito Indus., S.A. v. Tesoreria Gen., 990 F.2d
827, 836 (5th Cir. 1993)); Carey v. Bahama Cruise Lines, 864 F.2d 201, 206 (1st Cir. 1988)
(“By their silence, the litigants[] consent to having their dispute resolved according to the law
of the forum.”).
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for nor received an invoice for the bunkers. Our task is to determine the nature
of the property interest OSA held in the fuel bunkers at the time of attachment.
Texas has adopted Article 2 of the Uniform Commercial Code, which
governs the sale of goods. Relevant here, Article 2 specifies that “title passes
to the buyer at the time and place at which the seller completes his
performance with reference to the physical delivery of the goods . . . .” 33 When
“the contract requires delivery at destination, title passes on tender there.” 34
Were we to apply Article 2, we would conclude that title passed to OSA on
delivery of the M/V KESTREL and its fuel bunkers to OSA. Here, however,
OSA’s obligation to purchase the bunkers did not arise from a contract for the
sale of goods, but from the bareboat charter agreement. 35 As Article 2 is thus
inapplicable, we apply principles of Texas common law.
Under Texas common law, the instant at which title to personal property
passes from seller to buyer depends on the parties’ intent. 36 Generally, if the
contract does not condition passage of title on payment, a seller passes title to
a buyer on delivery of the goods. 37 But, “where the contract of sale of personal
property calls for cash on delivery, concurrent payment upon delivery is
33 TEX. BUS. & COM. CODE ANN. § 2.401(b); see also Crocker Nat’l Bank v. Ideco Div. of
Dresser Indus., Inc., 839 F.2d 1104, 1107 (5th Cir. 1988) (“Unless otherwise explicitly agreed,
title to goods generally passes to the buyer when the seller completes his performance with
reference to physical delivery of the goods.”).
34 Id. § 2.401(b)(2).
35 See Neubros Corp. v. Nw. Nat’l Ins. Co., 359 F. Supp. 310, 319 (E.D.N.Y. 1972) (“For
the purposes of the Uniform Commercial Code a bareboat charter for a period of eighteen
months is not a sale as defined in sections 2-102, 2-105(1) and 2-106(1) of the Code.”).
36 John E. Morrison & Co. v. Murff, 212 S.W. 212, 214 (Tex. Civ. App.—Galveston
1919, no writ) (“Moreover, the intention of the parties themselves, to be ascertained from
their express declaration, or from the circumstances presented, or both, is the dominating
consideration in determining whether or not title has passed in the sale of a chattel.”).
37 See, e.g., Luse v. Crispin Co., 344 S.W.2d 926, 930 (Tex. App.—Houston 1961, writ
ref’d n.r.e.).
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essential to pass the title . . . .” 38 The former is a credit sale; the latter is a cash
sale. 39
The instant agreement specifies that OSA “shall purchase the bunkers”
at the time of delivery. Although Cal Dive asserted in the district court that
this language indicates that the parties contemplated a cash sale under which
OSA would not obtain title until payment, this interpretation goes too far.
“Purchase” means “[t]he acquisition of an interest in real or personal property
by sale . . . .” 40 And a “sale” may occur based on either an actual payment or a
mere promise to make payment. 41 The parties’ agreement uses the word
“purchase,” so it does not necessarily indicate that they intended that OSA
make payment before title would pass. Moreover, the agreement is silent as to
when payment was due or when title would pass.
In addition, OSA’s and Cal Dive’s representations throughout this
litigation show that Cal Dive did not expect OSA to remit payment for the
bunkers at the time of delivery. Both parties have consistently represented
that, as of the time of attachment on October 29, 2012, OSA had neither
received an invoice for the fuel bunkers nor been asked to pay for them. OSA
maintains that this confirms that it never obtained title to the bunkers. We
disagree: It shows that OSA was not expected to pay for the bunkers at the
time of delivery. Thus, under Texas law, the parties contemplated a credit
transaction. Further, there is no evidence in the record indicating that OSA
38 Id. (“A cash sale is one in which the contract calls for payment of the price in cash
when the contract is made or the goods are delivered.”).
39 See id.40 Purchase, BLACK’S LAW DICTIONARY (10th ed. 2014).
41 The acquisition of an interest in property “by sale” does not necessarily require
payment. See Sale, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining the four elements of
a sale as “(1) parties competent to contract, (2) mutual assent, (3) a thing capable of being
transferred, and (4) a price in money paid or promised” (emphasis added)).
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and Cal Dive intended to delay the passage of title to the bunkers until OSA
remitted full payment. 42 We conclude that, under Texas law, title to the
bunkers passed to OSA on delivery.
Under this analysis, OSA received title to the bunkers on October 15,
2012, the day that it took possession of the M/V KESTREL. Malin attached
those bunkers on October 29, 2012. Because OSA held title to the bunkers at
the time of Malin’s attachment—and title to property unquestionably suffices
as an attachable interest under Rule B—we affirm the district court’s denial of
OSA’s motion to vacate the attachment.
B. Summary Judgment
Having confirmed that the district court had personal jurisdiction over
OSA by virtue of the attachment of the bunkers on the vessel that it had
chartered, we turn to OSA’s challenges to the district court’s summary
judgment in favor of Malin. We review the district court’s summary judgment
de novo, applying the same standards as the district court. 43
In his Report and Recommendation on Malin’s motion for summary
judgment, the magistrate judge found the following facts to be undisputed: (1)
42 Compare Luse, 344 S.W. at 929–30 (“Although Williams testified that the sale was
a cash sale, the evidence clearly shows that the purchase price was not to be paid by
Transcontintental upon delivery of the pipe at Beaumont, but was to be paid upon receipt of
Crispin’s invoice in Oklahoma. There was no agreement between the parties that payment
should be made before or concurrently with delivery of the pipe at Beaumont. There was no
agreement that delivery of the pipe was to be delayed until the purchase price was paid. It
was contemplated that delivery should precede the payment of the purchase price.”), and
John E. Morrison & Co., 212 S.W. at 213 (“There is an utter absence throughout the entire
body of evidence of any intimation even that full payment in cash of the balance of the
purchase price before removal of the car, or in the alternative the giving of a note therefor,
were made or understood to be conditions precedent to completion of the contract of sale, or
that they were part and parcel of it.”), with Sinker, Davis & Co. v. Comparet, 62 Tex. 470,
474 (1884) (“The machinery was sold and delivered to Comparet under an express stipulation
that the vendors parted with no title, nor was any acquired by Comparet, until payment was
made of the price agreed to be paid as evidenced by the notes given by the purchaser.”).
43 Ashford v. United States, 511. F.3d 501, 504 (5th Cir. 2007).
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Con-Dive represented to Malin that it was acting for and with the permission
of OSA when it arranged for the work and services; (2) Malin performed the
work and provided the services; (3) through Con-Dive, an OSA employee
furnished instructions and directions for Malin’s work; (4) Malin periodically
invoiced OSA for the work; (5) these invoices contained the terms and
conditions of the contracts, including provisions for the collection of service
charges and attorney’s fees; (6) OSA, through an employee, promised to pay
the overdue invoices; (7) OSA did nothing within any reasonably relevant time
to disaffirm Con-Dive’s authority or Malin’s work; and (8) OSA retained all of
the benefits of Malin’s work. On that record, the magistrate judge
recommended finding that OSA ratified Malin’s work and invoices and is liable
to Malin for payment. The magistrate judge recommended finding in the
alternative that OSA is liable for the payment of Malin’s invoices on the basis
of quantum meruit. The magistrate judge also recommended that Malin be
awarded attorneys fees on the basis of its ratification theory, but not on its
quantum meruit theory. The district court adopted these findings and entered
judgment in favor of Malin.
OSA contends that the district court erred in holding that OSA ratified
the contractual obligations of Malin’s customer, Con-Dive. Texas law provides
that “if a party acts in a manner that recognizes the validity of a contract with
full knowledge of the material terms of the contract, the party has ratified the
contract and may not later withdraw its ratification and seek to avoid the
contract.” 44
44Advanced Nano Coatings, Inc. v. Hanafin, 478 F. App’x 838, 843–44 (5th Cir. 2012)
(unpublished) (quoting Verizon Corp. Servs. Corp. v. Kan-Pak Sys., Inc., 290 S.W.3d 899, 906
(Tex. App.—Amarillo 2009, no pet.)).
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OSA initially contends that Malin failed to show that its services
benefited OSA. Whether Malin’s services benefited OSA, however, has no
bearing on Malin’s ratification theory. Demonstrating that a party accepted
benefits under a contract is one way to show ratification, but it is not the only
way. 45 Malin proved that its invoices were ratified by OSA when OSA agreed
to pay them after receiving them. Even if we were to accept OSA’s contention
that Malin did not show that OSA benefited from its services, the result would
not change.
OSA next contends that the presence of an issue of fact as to whether
Con-Dive acted as Malin’s agent should have precluded summary judgment on
Malin’s ratification theory. But an agency relationship is not required to
uphold the district court’s ruling that OSA ratified Con-Dive’s acts. 46
OSA finally contends that Malin failed to show that OSA ratified the
invoices’ provisions on interest and attorneys fees. On an undisputed record,
the magistrate judge found that Malin invoiced OSA for its services and that
“the invoices contained the terms and conditions of the contracts, including the
provisions for the collection of service charges and attorney’s fees . . . .” Malin
45 See United States v. McBride, 571 F. Supp. 596, 612–13 (S.D. Tex. 1983)
(“Ratification may be manifested in one or more of several ways: a party may ratify, first, by
intentionally accepting benefits under the contract; second, by remaining silent or
acquiescing in the contract for a period of time after he has the opportunity to avoid it; and
third, by recognizing [the] validity of the contract by acting upon it, performing under it, or
affirmatively acknowledging it.”).
46 See McWhorter v. Sheller, 993 S.W.2d 781, 787 (Tex. App.—Houston [14th Dist.]
1999, pet. denied) (“Most case law interpreting the doctrine of ratification couches its
discussion in the context of an existing agency relationship where the agent exceeds the scope
of her authority and the principal later accepts the benefits of such act after acquiring full
knowledge. Ratification, however, can occur outside this general paradigm. While most cases
will fall within the context of an agency relationship, such a relation is not necessary to cause
the ratification to be effective. It is true, however, that because ratification is not a form of
authorization, the ratification of an act of a stranger will not create an agency relationship,
it will only bind the ratifier to the specific transaction that is ratified.” (citations omitted)).
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supplied an affidavit from Gabe Socias, a superintendent at Malin, who
testified that “Malin and Oceanografia/Con-Dive agreed to the provision of
certain work and services . . . pursuant to the terms of Malin’s invoices.” Socias
further testified that “[t]he invoices attached are true and correct copies of the
originals and accurately reflect the work and services provided by Malin to
Oceanografia and Con-Dive.” Each invoice includes two parts: (1) a basic
invoice, dated at various times in 2008, which reflected the invoice number,
date, services rendered, and amount due; and (2) a formal invoice, reflecting,
inter alia, the original invoice date, the total amount invoiced, the interest due
as of February 10, 2009, and the interest and attorneys fees provisions. 47
Socias also attached a June 9, 2009, e-mail from an OSA representative
confirming the receipt of Malin’s “overdue” invoices.
On appeal, OSA tries to inject ambiguity into the summary judgment
record by asserting that there is no evidence that OSA received the formal
invoices containing the interest and attorneys fees provisions. It follows,
argues OSA, that the evidence does not prove that it ratified the interest and
attorneys fees provisions of the invoices.
We note that OSA proffered no summary judgment evidence to show that
it did not receive the relevant invoices. By contrast, the unrefuted summary
judgment evidence, as established by Socias’s affidavit, proves that (1) OSA
agreed to Malin’s provision of services and work pursuant to Malin’s invoices,
and (2) the attached invoices are the “true and correct copies of the
originals . . . .” In addition, the June 9, 2009, e-mail from OSA’s representative
confirms OSA’s receipt of the “overdue” invoice statements and OSA’s
47 The record provides no indication of why all the formal invoices specify the interest
accrued as of February 10, 2009. We can only speculate that Malin printed the invoices on
this date.
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Case: 15-40463 Document: 00513435325 Page: 16 Date Filed: 03/23/2016
No. 15-40463
agreement to pay the invoices. We must assume that, if OSA had evidence to
create an issue of fact to preclude summary judgment, it would have supplied
it. 48 We therefore affirm the district court’s determination that no material
issues of fact exist as to whether OSA received and ratified the invoices,
including their interest and attorneys fees provisions. The district court
committed no error in granting summary judgment for Malin.
III.
CONCLUSION
We affirm the district court’s denial of OSA’s and Cal Dive’s motions to
vacate the attachment, and we affirm the district court’s summary judgment
in favor of Malin.
AFFIRMED.
48 OSA supplied an out-of-time declaration from Gustavo Azcarate—the OSA
representative who received Malin’s invoices via e-mail. Azcarate’s declaration, however,
goes only to whether Con-Dive acted as an agent for OSA and says nothing to refute the
evidence demonstrating that OSA, through Azcarate, received Malin’s invoices.
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