ING Bank N.V. v. BULK FINLAND M/V
Filing
63
ORDER AND REASONS: IT IS ORDERED that the 29 , 30 motions for summary judgment are GRANTED, as set forth in document. IT IS FURTHER ORDERED that the 50 motion to lift stay is DISMISSED. Signed by Judge Ivan L.R. Lemelle on 04/26/2019.(Reference: All Cases)(am)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ING BANK N.V.
CIVIL ACTION
VERSUS
NO. 15-5975
c/w 15-6060
BULK FINLAND M/V,
NO. 9691577
SECTION: “B”
ORDER AND REASONS
Before the Court are Plaintiff ING Bank N.V.’s (“ING Bank”)
Motion
for
Summary
Judgment
(Rec.
Doc.
29),
Defendant
DryLog
Bulkcarriers Limited’s (“DryLog”) Motion for Summary Judgment (Rec.
Doc. 30), Consol Plaintiff Bomin Bunker Oil Corp.’s (“Bomin Bunker”)
Response in Opposition (Rec. Doc. 33), Bomin Bunker’s Response in
Opposition (Rec. Doc. 42), ING Bank’s Reply (Rec. Doc. 45), ING
Bank’s and DryLog’s Joint Supplemental Memorandum in Support of
Renewed Motions for Summary Judgment (Rec. Doc. 56), Bomin Bunker’s
Supplemental Memorandum in Response in Opposition(Rec. Doc. 57). For
the reasons discussed below,
IT IS ORDERED that the motions for summary judgment (Rec. Doc.
Nos. 29, 30) are GRANTED.
IT IS FURTHER ORDERED that the motion to lift stay (Rec. Doc.
50) is DISMISSED.
FACTS AND PROCEDURAL HISTORY
This consolidated matter is made up of two cases. The parties
are ING Bank as lead case plaintiff; Bomin as member case plaintiff;
1
and DryLog as long-term charterer of and claimant for defendant in
rem, BULK FINLAND M/V.
On October 16, 2014, BULK FINLAND was supplied with marine
fuel/bunkers in Balboa, Panama. See Rec.Doc. 56 at 2. Two weeks
before the fuel was actually delivered to the vessel, three separate
confirmations/contracts
were
issued.
See
id.
Specifcally,
the
contractual relationships leading up to the fueling of the vessel
were as follow: Tatsuo Consulting Limited (“Tatsuo”), who seems to
possibly be the charterer of the vessel, ordered the fuel bunkers
from OW Malta; OW Malta then ordered the fuel it agreed to supply to
the vessel from O.W. Bunker USA, Inc. (“OW USA”); OW USA then ordered
the fuel that OW Malta agreed to supply to the vessel from Bomin.
See id.; see also Rec. Doc. 29-1 at 5-11. After Bomin physically
delivered the fuel to the vessel, Bomin issued its invoice to OW
USA; OW USA issued its invoice to OW Malta; and, OW Malta issued its
invoice to Tatsuo. See Rec.Doc. 56 at 3. Each of the contracts, while
separate, were all due on November 14, 2014. See id. Tatsuo has not
paid OW Malta or ING Bank. See id. OW Malta and OW USA filed for
bankruptcy before the due date of the invoices. See id.
On November 17, 2018, ING Bank filed a verified complaint
against BULK FINLAND in rem praying for the Rule C arrest of the
vessel. See Rec. Doc. 29-1 at 4. On November 18, 2015, Bomin filed
a verified complaint against BULK FINLAND asserting a maritime lien
claim and maritime breach of contract claim. See id. On November 23,
2
2015, this Court consolidated the ING Bank Action with the Bomin
Action. See Rec. Doc. 8. On January 08, 2016, DryLog filed separate
answers to the verified complaints of ING Bank and Bomin. See Rec.
Doc. Nos. 17, 18.
On April 24, 2017, ING Bank filed a motion for summary judgment.
See Rec. Doc. 29. On April 28, 2019, DryLog filed a motion for
summary judgment. See Rec. Doc. 30. On May 2, 2017, Bomin filed a
response to ING Bank. See Rec. Doc. 33. On June 2, 2017, Bomin filed
a response to DryLog. See Rec. Doc. 42. On June 19, 2017, ING Bank
replied. See Rec. Doc. 45. Near the end of June 2017, this matter
was stayed. See Rec. Doc. Nos. 46, 47.
Recently, on March 8, 2019, the Court renewed ING Bank’s Motion
for Summary Judgment and DryLog’s Motion for Summary Judgment. See
Rec.
Doc.
55.
ING
Bank
and
DryLog
filed
a
joint
supplemental
memorandum in support of their renewed motions for summary judgment
to dismiss the verified complaint of Bomin. See Rec. Doc. 56. Bomin
filed a supplemental brief supporting its original response to the
motions for summary judgment. See Rec. Doc. 57. ING Bank and Dry Log
filed a joint reply memorandum. See Rec. Doc. 62. 1
1
While the parties filed a joint memorandum in support, it is important to note
that DryLog originally filed its own motion for summary judgment. See Rec. Doc.
30-1. In its motion, it adopted the arguments contained in ING Bank’s motion,
except for the statements and allegations that conflict with DryLog’s defenses
and answers to ING Bank and Bomin’s Verified Complaints. See id. at 1-3. For
example, DryLog does not adopt ING Bank’s contention, in various places, that:
(1) Tatsuo was the charterer of the M/V BULK FINLAND when Tatsuo allegedly ordered
the subject bunkers from OW Malta, the implication being that Tatsuo’s alleged
relationship with OW Malta (and/or some other OW entity through which ING claims
to be an assignee) may be presumed to giving rise to a maritime lien over the M/V
BULK FINLAND within the meaning of 46 U.S.C. § 31341; and (2) the M/V BULK FINLAND
3
LAW AND ANALYSIS
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate
when
interrogatories,
“the
and
pleadings,
admissions
on
depositions,
file,
answers
together
with
to
the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)
(quoting Fed. R. Civ. P. 56(c)). See also TIG Ins. Co. v. Sedgwick
James of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A genuine issue
of material fact exists if the evidence would allow a reasonable
jury to return a verdict for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The court should view all
facts and evidence in the light most favorable to the non-moving
party. United Fire & Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283,
285 (5th Cir. 2006). Mere conclusory allegations are insufficient to
defeat summary judgment. Eason v. Thaler, 73 F.3d 1322, 1325 (5th
Cir. 1996).
The
movant
must
point
to
“portions
of
‘the
pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate
the absence of a genuine issue of material fact.” Celotex, 477 U.S.
and/or DryLog are bound and obligated jointly and severally to the OW entities’
sales order confirmation and/or to their terms and conditions posted online. See
id. at 1-2.
4
at 323. If and when the movant carries this burden, the non-movant
must then go beyond the pleadings and present other evidence to
establish a genuine issue. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). However, “where the
non-movant bears the burden of proof at trial, the movant may merely
point to an absence of evidence, thus shifting to the non-movant the
burden of demonstrating by competent summary judgment proof that
there is an issue of material fact warranting trial.” Lindsey v.
Sears Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994). “This court
will not assume in the absence of any proof that the nonmoving party
could or would prove the necessary facts, and will grant summary
judgment in any case where critical evidence is so weak or tenuous
on an essential fact that it could not support a judgment in favor
of the [non-movant].” McCarty v. Hillstone Rest. Grp., 864 F.3d 354,
357 (5th Cir. 2017).
B. Bomin Does Not Have a Maritime Lien Against BULK FINLAND 2
The purpose of a maritime lien is to enable a vessel to obtain
necessaries to continue operation by giving a temporary underlying
pledge of the vessel which will hold until payment can be made. See
Lake Charles Stevedores, Inc. v. Professor Vladimir Popov MV, 199
F.3d 220, 223 (5th Cir. 1999) citing to A.L. Veverica v. Drill Barge
2 Bomin initially sought denial because there were relevant cases on appeal in the
Fifth, Second, and Ninth Circuits. However, those cases have been decided. See
NuStar Energy Services, Inc. v. M/V COSCO Auckland, 2019 WL 192408, at *1 (5th
Cir. 2019); Valero Mktg. & Supply Co. v. M/V Almi Sun, 893 F.3d 290 (5th Cir.
2018); ING Bank N.V. v. M/V Temara, 892 F.3d 511 (2nd Cir. 2018); Bunker Holdings
Ltd. v. Yang Ming Liberia Corp., 906 F.3d 843 (9th Cir. 2018).
5
Buccaneer No. 7, 488 F.2d 880, 883 (5th Cir. 1974) (“The very purpose
of maritime liens is to encourage necessary services to ships whose
owners
are
unable
to
make
contemporaneous
payment.”).
In
most
instances, maritime liens are created statutorily. See Lake Charles
Stevedores, Inc., 199 F.3d at 224 citing to In re Admiralty Lines,
Ltd., 280 F. Supp. 601, 604-05 (E.D. La. 1968)(“Admiralty law has
long ago ceased to create new liens. The only liens recognized today
are those created by statute and those historically recognized in
maritime law.”). To resolve the lien issue in the instant motion,
the court must look to the CIMLA , 46 U.S.C. 31342. See Valero Mktg.
& Supply Co. v. M/V Almi Sun, 893 F.3d 290, 292 (5th Cir. 2018);
Lake Charles Stevedores, Inc., 199 F.3d at 224.
Specifcally, the CIMLA, 46 U.S.C. 31342(a)(1), defines the
circumstance under which a party is entitled to a maritime lien.
This Circuit applies the provisions of the CIMLA strictly. See Valero
Mktg. & Supply Co., 893 F.3d at 292 (“We apply the provisions of
CIMLA stricti juris to ensure that maritime liens are not lightly
extended by construction, analogy, or interference.”). In relevant
part, the CIMLA states that a person providing necessaries to a
vessel on the order of the owner or a person authorized by the owner
has maritime lien on the vessel. See 46 U.S.C. § 31342(a)(1).
It is undisputed here that the fuel bunkers are necessaries and
Bomin provided the fuel bunkers to BULK FINLAND. The issue here is
6
whether Bomin furnished the necessaries to BULK FINLAND on the order
of the owner of the vessel or a person authorized by the owner.
The persons presumed to have authority to procure necessaries
on the vessel’s account are the owner, the master, a person entrusted
with the management of the vessel at the port of supply, an officer
or agent appointed by the owner, a charterer, an owner pro hac vice,
or an agreed buyer in possession of the vessel. See 46 U.S.C. §
31341. “It is not unusual for an entity supplying necessaries to a
vessel to lack privity of contract with the owner of that vessel,
and instead contract with an intermediary.” Valero Mktg. & Supply
Co., 893 F.3d at 293.
The facts concerning the chain of contractual relationships are
undisputed; the terms and conditions of each contract in the chain
are
undisputed;
the
dates
of
the
orders
and
confirmations
are
undisputed. Bomin, acting as a sub-subcontractor, took orders for
the fuel from OW USA. There is no material evidence that the owner
of BULK FINLAND selected or intended that Bomin act as a subsubcontractor and physically deliver the fuel to BULK FINLAND. These
undisputed facts show that Bomin furnished the fuel bunkers on the
order of OW USA, who is not a person statutorily presumed to have
authority to procure necessaries on BULK FINLAND’s account or an
agent of the same. See id. (stating that this Circuit recognizes two
lines
of
cases
that
deal
with
these
circumstances:
the
general/subcontractor line of cases and the principal/agent line of
7
cases).
The undisputed facts show that Bomin did not furnish the
fuel bunkers to BULK FINLAND on the order of the owner of the vessel
or a person authorized by the owner and therefore Bomin does not
have a maritime lien against BULK FINLAND.
Furthermore, the reasons that Bomin offers to summarily deny
the instant motions for summary judgment are unconvincing. 3 Bomin
argues that ING Bank lacks standing to file its Motion for Summary
Judgment (and the supplemental memoranda). See Rec. Doc. 33 at 1-2;
Rec. Doc. 57. ING Bank has standing because the advisory comments of
F.R.C.P. 56(a) makes it clear that summary judgment may be requested
as to an entire case, a lone claim or defense, or a part of a lone
claim or defense. Further, the actions have been consolidated and
are being considered as such here.
Bomin does not contest DryLog’s standing to bring its motion
for
summary
judgment.
DryLog’s
Motion
for
Summary
Judgment
is
substantially the same as ING Bank’s motion as it adopts ING Bank’s
arguments and asks the Court to dismiss Bomin’s Verified Complaint.
Bomin argues that the motions for summary judgment are premature
because “there is still significant and critical discovery to be
taken . . ..” Rec. Doc. 57 at 1. The only discovery that has occurred
is the parties’ exchange of initial disclosures. The Court is not
persuaded that discovery beyond clear and unambiguous contractual
3
Bomin argues that the Court should consider DryLog’s Motion to Amend Answers to
Allow Interpleader (Rec. Doc. 27) before considering the instant motions for
summary judgment. See Rec. Doc. 57 at 2; Rec. Doc. 43. The Court has not renewed
that motion. Even if it had, this Order would moot the motion to amend answers.
8
terms and initial disclosures would reap fruitful evidence relevant
to the issue at hand. Bomin seeks discovery of facts that are, for
the most part, immaterial to instant motions and oppositions to same.
For example, Bomin lists “[w]hether Tatsuo had knowledge that Bomin
would physically supply the subject bunkers to the Vessel[.]”. Id.
at 8. This Circuit has held that “mere awareness does not constitute
authorization under the CIMLA.” See NuStar Energy Services, Inc. v.
M/V COSCO Auckland, 2019 WL 192408 *1, *2 (5th Cir. 2019) citing to
Valero Mktg. & Supply Co., 893 F.3d at 295.
Bomin refers to three cases to support additional discovery:
Martin Energy Servs., LLC v. M/V Bourbon Petrel, 2018 U.S. Dist.
LEXIS 198285 (E.D. La. 2008)(Fallon, J.); Summary Order, Remand,
U.S. Court of Appeals, Second Circuit in 17-4028-CV NCL (Bahamas)
Ltd. v. O.W. Bunker USA, Inc., December 2018; and Canpotex Shipping
Services et al. v. Marine Petrobulk, et. al., Federal Court of
Canada, Dock: T-109-15, Citation: 2018 FC 957 (September 2008). See
Rec. Doc. 57 at 2-7. Of the three cases, only one is from this Court.
The Martin Energy Services, LLC case is distinguishable from the
instant facts and issues. Specifically, the Court held that an entity
authorized
to
bind
the
vessel
controlled
the
selection
of
the
physical supplier. See Martin Energy Servs., LLC v. M/V Bourbon
Petrel, 2018 U.S. Dist. LEXIS 198285 *1, *2 (E.D. La. 2008)([E]ach
time [physical supplier] fuel was supplied, O.W. Bunker presented
[authorized entity] with two bids — one from [the physical supplier]
9
and one from Stone Oil, with the price quoted by each. In all three
instances, the authorized entity instructed O.W. Bunker to choose
the physical supplier’s lower bid).
Furthermore, Bomin relies on two other cases in an attempt to
persuade the Court that certain contractual terms entitle it to a
maritime lien. See Rec. Doc. 57 at 4-6. The Court is not convinced
as maritime liens are created statutorily not by contract. See Lake
Charles Stevedores, Inc., 199 F.3d at 224; see also ING Bank N.V. v.
M/V
Temara,
892
F.3d
511
(2nd
Cir.
2018)
(rejecting
similar
argument). More importantly, the Court is not bound by those cases
due to Fifth Circuit authorities cited in this opinion.
As
discussed
31342(a),
binding
earlier
and
and
more
in
accordance
relevant
Fifth
substantially similar facts and issues here.
with
Circuit
46
U.S.C.
cases
§
have
See NuStar Energy
Services, Inc., 2019 WL 192408, at *1, *2; Valero Mktg. & Supply
Co., 893 F.3d at 292-5; Lake Charles Stevedores, Inc., 199 F.3d at
229. Accordingly, Bomin’s Verified Complaint is dismissed.
New Orleans, Louisiana, this 26th day of April, 2019.
___________________________________
SENIOR UNITED STATES DISTRICT JUDGE
10
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