Topoil AB v. M/V ORUC REIS, her engines, boilers, tackle, apparel etc., in rem

Filing 37

ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS re: 34 Memorandum and Recommendations, granting 22 MOTION for Summary Judgment , denying 20 MOTION for Summary Judgment OR IN THE ALTERNATIVE MOTION to Dismiss BASED ON FORUM NON CONVENIENS. Parties are ordered to submit a Proposed Final Judgment by 10/17/2016. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
September 26, 2016

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

TOPOIL AB,

David J. Bradley, Clerk

§
§
§
§

Plaintiff,
v.

§
§

M/V ORUC REIS, her engines,
boilers, tackle, apparel, etc.,

§
§
§
§

in rem,
Defendant.

CIVIL ACTION NO. H-15-0460

§

ORDER ADOPTING MAGISTRATE JUDGE'S
MEMORANDUM AND RECOMMENDATION

Pending before the court are Claimant V&V Shipping & Transport
Co.'s

Objection[s]

to

the

Magistrate

Recommendation (Docket Entry No.

Judge's

Memorandum

and

35) and Plaintiff's Response to

V&V Shipping & Transport Co.'s Objections to the Magistrate Judge's
Memorandum and Recommendation (Docket Entry No. 36).
This court must review de novo any portions of the Magistrate
Judge's

proposed

matters

to

objections.

which

findings
the

and

parties

recommendations
have

filed

on

dispositive

specific,

See Fed. R. Civ. P. 72 (b); 28 U.S.C.

§

written

636 (b) (1).

V&V Shipping & Transport Co. ( "V&V") objects to the Memorandum
and Recommendation arguing,

in part,

that the Magistrate Judge

overlooked key differences between the terms of the contract before
the Fifth Circuit in World Fuel Services Singapore PTE, Limited v.
BULK JULIANA M/V,

822 F.3d 766

(5th Cir.

2016),

pet.

for cert.

filed, ___ U.S.L.W. ___ (June 30, 2016)
of the contract at issue in this case.

(No. 16-26), and the terms
Specifically, V&V contrasts

the choice-of-law provisions, noting that the contract before the
Fifth Circuit stated that it was governed by United States law,
while the contract before this court stated that it was governed by
the laws of Sweden with the exception of a choice-of-law provision
on the attachment of the vessel.

The instant contract allowed the

bunker seller to attach the vessel anywhere in the world and to
have a maritime lien if the seller was entitled to a lien under the
attachment clause itself or the law of the vessel's flag state, the
place of the arrest, the supply location, or of the United States.
V&V's expert on Swedish law, Anders Hoglund,

explained that

Swedish law would entitle the bunker seller to attach a vessel but
would not allow a maritime lien or the application of United States
law to allow a maritime lien if the vessel seizure occurred in
Sweden. 1

He also stated that Swedish law would not allow parties

to create a maritime lien by contract and implied that, by choosing
governing

law

that

allows

attempting to do just that.

maritime
2

liens,

In his opinion,

the

parties

were

it was "certainly

highly unlikely if a clause involving foreign law on proceedings as

1

See Expert Legal Opinion of Anders Hoglund, Exhibit 5 to
Claimant V&V Shipping & Transport Co. 's Motion for Summary Judgment
or, in the Alternative, Motion to Dismiss Based on Forum Non
Conveniens, Docket Entry No. 20-5, pp. 5, 6.
2

See id. at 5 .
-2-

well as unlawful creating of maritime liens will be accepted as a
part

of

a

certain contract and have

effect

in Sweden. " 3

The

Magistrate Judge acknowledged Hoglund's opinion that Swedish law
would not recognize a maritime lien, but concluded that was not the
relevant issue under BULK JULIANA M/V.

The Magistrate Judge found

that Plaintiff's expert on Swedish law, Jorgen Almelov, answered in
the

affirmative

the

questions

identified in BULK JULIANA M/V:

whether the choice-of-law provisions are enforceable under Swedish
law and whether the method of incorporation met Sweden's legal
standards.

Hoglund did not answer these questions but,

instead,

offered equivocal testimony as to whether Swedish law might not
find this provision enforceable because of the outcome.

The court

concludes that the Magistrate Judge took into consideration the
proper questions of Swedish law.
application

of

Swedish

law

to

V&V's objection regarding the
the

contract

in

this

case

is

OVERRULED.

With regard to the other objections to the Magistrate Judge's
dispositive

recommendations,

the

court

reviewed

de

novo

the

challenged portions of the Memorandum and Recommendation, and the
court is of the opinion that the Memorandum and Recommendation
should be ADOPTED in its entirety.
It is ORDERED that the Memorandum and Recommendation is hereby
ADOPTED by this court.

3

Id. at 6.
-3-

The parties are ORDERED to submit a proposed final judgment,
agreed as to form,
this Order.

within twenty days from the date of entry of

If the parties cannot agree on the form of judgment,

each party will submit its own proposed judgment along with a brief
explanation why its proposed judgment should be entered by the
court.
SIGNED at Houston, Texas, this 26th day of September, 2016.

UNITED STATES DISTRICT JUDGE

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