Preble-Rish Haiti SA v BB Energy USA - United States Court of Appeals for the Fifth Circuit Case No 22-20021 - Ruling - 14 July 2022
Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21-CV-1953
The Foreign Sovereign Immunities Act provides a foreign state's property with immunity from prejudgment attachment unless an exception applies. The relevant exception in this case requires a foreign state to explicitly waive its immunity from prejudgment attachment. 28 U.S.C. § 1610(d). Although this court has yet to interpret the § 1610(d) exception, today we hold that an explicit waiver must be, well, explicit. Anything short of a foreign state's clearly expressed waiver of immunity from prejudgment attachment will not suffice under § 1610(d). Here, however, the district court entered a writ of attachment based on the erroneous conclusion that Haiti and its agency waived their immunity from prejudgment attachment based on a contract that said nothing about prejudgment attachment. We therefore REVERSE the district court and VACATE the writ.
Plaintiff-Appellee Preble-Rish Haiti, S.A. filed this case pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims in the Federal Rules of Civil Procedure. It sought to attach assets to secure a partial final arbitration award against the Republic of Haiti and the Bureau de Monétisation de Programmes d'Aide au Developpement (BMPAD). Garnishee BB Energy USA, L.L.C. admits to holding credits belonging to BMPAD located in the Southern District of Texas.
To satisfy § 1610(d), an explicit waiver of immunity from prejudgment attachment must be express, clear, and unambiguous. Anything short of that is insufficient. Because there is no such explicit waiver in the contract or elsewhere, the district court erred in concluding BMPAD waived its sovereign immunity from prejudgment attachment. We accordingly REVERSE the district court and VACATE the writ of attachment.