A US district court judge has denied d'Amico Dry's repeated demands that Nikka Finance to prove ownership of a bulker at the centre of a dispute between the the Primera Maritime affiliate.
Italy's d'Amico had accused Nikka Finance of trying to stall an ongoing lawsuit brought against the shipowner in a long-running legal saga over a 2009 forward freight agreement (FFA) contract.
D'Amico Dry Cargo has repeatedly asked Nikka Finance to prove it owns the vessel named in a lawsuit against Paul Coronis-backed Primera Maritime.
Such requests have been allegedly rebuffed by Nikka Finance, a Primera shipowning affiliate, which has said that the papers are nowhere to be found.
"The court now declines to go through the motions of ordering Nikka to produce the documents ... on the basis that Nikka has waived all objections thereto by failing to timely serve its responses, in light of the reality that Nikka will produce no further documents because they do not exist," US magistrate judge Bradley Murray wrote in the denial.
"This court simply cannot order a party to produce documents — nor can it make them have documents — which it represents not to have in its possession, custody and control."
The d'Amico Group subsidiary had alleged that the Marshall Islands-registered entity has exhibited a "pattern of dilatory discovery conduct" in response to d'Amico's requests for proof of ownership.
'Guileful attempt'
"Nikka's guileful attempt to extend this court's unconnected statement into a hard discovery time limit was unacceptable, has unnecessarily delayed and complicated the discovery phase of this litigation and remains exemplary of Nikka's wayward approach to this litigation," according to court documents filed in the US District Court for the Southern District of New York.
Thomas Tisdale, d'Amico Dry Cargo's New York lawyer, did not return calls requesting comment.
D'Amico Dry Cargo also alleged "fatuous relevancy objections" against Nikka Finance over its "bizarre, unsupported statement" that the shipbuilding contract for the 29,100-dwt Seaglass II (built 2008) is "irrelevant and would not lead to discoverable information on the issues before this court".
The Italian shipowner also argued that Nikka Finance cannot claim that it does not have custody and control over certain documents.
"In a nutshell, Nikka's tact has been to delay the production of, lodge spurious objections regarding, and basely deny the very existence of the many documents that ... simply must be in the Bush Hog control of Nikka," court documents state.
Comprehensive search
In an 15 October response, Nikka Finance said it made a "comprehensive search" for the requested documents and has explained why certain documents were unavailable.
"Plaintiff vehemently contends that Nikka must be lying and the requested documents must still exist because they perhaps once did, but plaintiff fails to recognise that some of these responsive documents were created in relation to a transaction that concluded nearly 10 years ago and, in reality, the documents no longer exist because of their age," Nikka Finance wrote in its response filed in the US district Court for the Southern District of Alabama.
"In sum, Nikka has fully complied with its discovery obligations and plaintiff's motion must be denied in full."
How the court case came about
The demands are tied to a $4.7m suit d'Amico Dry Cargo brought against Primera Maritime's Marshall Islands-registered shipowning affiliate Nikka Finance this year for not paying $1.77m on a 2009 FFA contract.
In 2009, Luciano Bosano-led d'Amico Dry Cargo filed a lawsuit in the New York court to collect the $1.77m awarded in an English court from Romania's Primera Maritime.
The extra $3m consists of $1.3m in post-judgment interest over nine years, nearly $726,000 in lawyer fees and attachment of the Seaglass II as security for 125% of the entire claim.
The latest suit in the ongoing case has been filed in the US District Court for the Southern District of Alabama. D'Amico Dry Cargo's lawyers in this suit are led by Thomas Rue of Alabama law firm Maynard Cooper & Gale.
Since 2009, the case has gone back and forth between Alabama and New York courts as Nikka Finance continues to fight paying the $1.77m, arguing the English court's lack of jurisdiction.
