NCL (Bahamas) Ltd. v. O.W. Bunker USA Inc. et al

Filing 98

MEMORANDUM AND ORDER (see attached). The Court will derive assistance from oral argument by counsel on 94 NCL's Renewed Motion to Enjoin O.W. USA from Proceeding with Arbitration in London. However, counsel are advised that given the procedural posture of the case, the contemplated oral submissions will more closely resemble "closing summations" at the conclusion of a bench trial than argument on a contested motion. The Court will hold the hearing by Zoom conference at 10:30 a.m. on Wednesday, September 8, 2021. Signed by Judge Charles S. Haight, Jr. on August 12, 2021. (Dorais, L.)

Case 3:17-cv-01327-CSH Document 98 Filed 08/12/21 Page 1 of 5

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT

NCL (BAHAMAS) LTD., d/b/a
NORWEGIAN CRUISE LINE,

Civil Action No.
3:17-CV-1327 (CSH)

Plaintiff,
v.

O.W. BUNKER USA, INC. and KELLY
BEAUDIN STAPLETON, Liquidating
Trustee of the OWB USA Liquidating Trust,

AUGUST 12, 2021

Defendants.

MEMORANDUM AND ORDER
HAIGHT, Senior District Judge:
Plaintiff NCL (Bahamas) Ltd. (“NCL”), the owner of the M/V Norwegian Spirit, a Bahamasflag passenger ship, renews its motion to enjoin arbitration in London of a claim by Defendant O.W.
Bunker USA, Inc. (“O.W. USA”) for the value of bunkers delivered to the vessel at the port of
Piraeus, Greece, in October 2014. See Doc. 94
In a Ruling reported at 280 F. Supp. 3d 324 (S.D.N.Y. 2017) (“NCL I”), this Court granted
NCL’s motion for a preliminary injunction staying the London arbitration. O.W. USA and its
Liquidating Trustee in bankruptcy appealed that injunction. The Second Circuit issued a summary
order, 745 F. App’x 416 (2d Cir. Dec. 19, 2018) (“NCL II”), which vacated this Court’s preliminary
injunction and remanded the case with particular instructions for the taking of further evidence.
Familiarity with both rulings is assumed.

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NCL I held in substance that (1) Article L.4 of the bunker supply contract between O.W.
USA and NCL superseded the provision in Article P.1 of that contract for arbitration of disputes in
London, if the physical supply of the bunkers was performed by a third party which insisted upon
its own terms and conditions, including a different forum selection clause; (2) third party EKO
supplied the bunkers to the Norwegian Spirit at Piraeus pursuant to a contract between EKO and
O.W. Malta which provided for the application of Greek law and the exclusive jurisdiction of
Piraeus courts; and (3) O.W. Malta and, through it, O.W. USA, knew of and were bound by those
conditions, upon which EKO insisted. On that third point of decision, I reasoned in NCL I:
The presence of EKO and O.W. Malta in Piraeus, and the nature of
those companies’ businesses in that busy port city, give rise to the
reasonable inference, which I draw, that O.W. Malta was aware of
EKO’s standard terms and conditions, and agreed to them when it
placed with EKO the order for the bunkers destined for the
Norwegian Spirit.
280 F. Supp. 3d at 346. Given these holdings, I preliminarily enjoined the arbitration in London
O.W. USA demanded with NCL.
While the Second Circuit’s summary order in NCL II vacated that injunction, I do not read
the court of appeals’ reasoning as disturbing either of the first two holdings in NCL I. It seems to
me that NCL II affirmed those holdings sub silentio.1 Rather, the Second Circuit in NCL II
identified the unresolved issue as “whether EKO had taken a firm position that NCL be bound by

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For the present, I disagree with O.W. USA’s contention in its brief that the Second Circuit
also held the “old evidence” was “insufficient to show that EKO properly incorporated its own terms
and conditions into its sales contract with another third party, O. W. Bunker Malta Ltd.” Doc. 96,
at 5. The text of EKO’s terms and conditions was in the record before the court of appeals, which
quoted the pertinent language, 745 F. App’x at 418, and then identified the question requiring
remand as “whether EKO had taken a firm position that NCL be bound by EKO’s terms and
conditions here.” Id. at 419 (emphasis added). Counsel for Defendants may argue the contrary
proposition at the hearing scheduled infra.
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EKO’s terms and conditions,” and directed a remand because “the district court’s factual findings
regarding EKO’s insistence are insufficient to resolve this dispute.” 745 F. App’x at 419. The
Second Circuit’s ensuing discussion about how the parties could create a sufficient evidentiary
record bears repeating, since it informed the subsequent litigation steps taken by counsel:
The [district] court inferred that since OWB Malta was a “regional
affiliate of the world’s largest bunker broker” and “EKO was a major
local supplier of bunker fuels,” the parties likely had many other
dealings through which OWB Malta became aware of EKO’s terms
and conditions. [NCL (Bahamas) Ltd., 280 F. Supp. 3d] at 345.
However, OWB Malta’s agreement raises the issue of whether EKO
insisted but does not answer it.
There are no findings as to whether, by trade custom or OWB
Malta’s experience with EKO, the EKO terms and conditions were
requirements in actual effect or whether negotiations over such terms
and conditions are customarily conducted or customarily foreclosed.
On remand, the district court may consider evidence on those
questions or any others, alternatively or in addition, to support a
finding as to EKO’s insistence. Without such a finding, the district
court could not hold that NCL was likely to succeed on the
forum-selection issue. A preliminary injunction was therefore not
warranted.
745 F. App’x at 419. The Second Circuit concluded NCL II with the pointed instruction that the
case is –
REMANDED for the district court to consider whether EKO insisted
that its terms and conditions apply to NCL and hold any further
proceedings consistent with this order.
Id. at 420.
Counsel for the parties, instructed by the Second Circuit’s direction and guidance in NCL
II, embarked upon a course of deposition-taking and related discovery in foreign countries. Counsel
made use of procedures delineated in the Hague Convention on the Taking of Evidence Abroad.
The principal deposed witnesses were: Ioannis Voskos, EKO’s counsel in charge of contractual
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terms between EKO and its customers; Panagiotis Bachtis, at the pertinent times the legal
representative of the Piraeus office of O.W. Malta; and Melina Chaliakopoulou, at the pertinent
times the O.W. Malta bunker trader who handled the Norwegian Spirit bunkering transaction.
Voskos and Bachtis gave testimony before a judge of a Greek court.

Chaliakopoulou gave

testimony before a QC appointed as Examiner by an English court. American attorneys for the
parties attended the depositions and questioned the witnesses. Transcripts of the depositions are
now a part of the record before this Court.
The parties take predictably different views of this recent evidence. NCL contends that
“[t]he new evidence fully corroborates” the Court’s earlier inference that “EKO insisted on
application of its terms and conditions such that the London arbitration provision in O.W. USA’s
contract is replaced by the Greek jurisdiction clause in EKO’s terms and conditions.” NCL Brief
[Doc. 95], at 1. O.W. USA contends that “NCL has not indisputably proven that EKO insisted its
terms and conditions applied to NCL.” O.W. USA Brief [Doc. 96], at 29.
The brief for O.W. USA contains the notation “oral argument requested.” Id. at 1. I think
that the Court will derive additional assistance from oral submissions by able counsel in this
interesting and important case. However, the present procedural posture more closely resembles the
conclusion of a bench trial. I think of the contemplated efforts of counsel as “closing summations,”
rather than arguments on a contested motion.
The Court will hold a hearing by Zoom conference at 10:30 a.m. on Wednesday,

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September 8, 2021.
It is SO ORDERED.
Dated: New Haven, Connecticut
August 12, 2021

/s/Charles S. Haight, Jr.
CHARLES S. HAIGHT, JR.
Senior United States District Judge

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