On November 13, 2009, in the case of Hawknet, Ltd. v. Overseas Shipping Agencies, the U.S. Court of Appeals for the Second Circuit ruled that its recent decision in The Shipping Corporation of India Ltd. v. Jaldhi Overseas Pte. Ltd., where it held that an electronic funds transfer (EFT) is not properly attachable under a maritime attachment order in the federal district courts of New York pursuant to Rule B of the Supplemental Rules for Admiralty, applies retroactively. Hawknet, Ltd. v. Overseas Shipping Agencies , No. 09-2128-cv, 2009 WL 3790654 (2nd Cir. November 13, 2009). The Hawknet case was in active litigation and a Rule B attachment of defendant’s EFT was in effect prior to the Jaldhi decision. The Hawknet court ruled that, since the Rule B attachment related to the jurisdiction of the court, it should be applied retroactively. Id. at *2. Failure to raise the defense of lack of personal jurisdiction before the federal district court did not constitute waiver because this particular defense did not exist until the appellate court’s recent ruling. Id.
DRAFTED NOVEMBER 18, 2009