World Fuel Services Trading, DMCC v. M/V HEBEI SHIJIAZHUANG

Filing 97

OPINION AND ORDER: For the reasons set forth in this Opinion and Order, Claimant's Rule 56(d) motion for additional time to complete discovery is DISMISSED AS MOOT. Claimant's 64 Motion for Summary Judgment is DENIED, and Plaintiff� 39;s 29 Motion for Summary Judgment is GRANTED. The trial scheduled to commence on Tuesday, April 8, 2014, will be limited to the following "triable issues" indicated in the March 27, 2014 final pretrial order: "the total amount due to Plaintiff for which it has a maritime lien on the Vessel," "whether Plaintiff is entitled to prejudgment interest," and "whether Plaintiff is entitled to administrative charges, custodian legis expenses, attorney fees and inte rest." ECF No. 85 at 21; see Triton Marine Fuels, Ltd. v. M/V PACIFIC CHUKOTKA, 671 F. Supp. 2d 753, 760 (D. Md. 2009) (citing Bradford Marine, Inc. v. M/V SEA FALCON, 64 F.3d 585, 589-90) (observing that "an FMLA lien does not necessarily cover all the terms of the underlying contract"), as outlined. (See Opinion and Order for Specifics) Entered 4/3/14 and filed 4/4/14. (Signed by District Judge Mark S. Davis on 4/3/14). Copies provided as directed on 4/4/14.(ecav, )

UNITED STATES DISTRICT COURT

FILED

EASTERN DISTRICT OF VIRGINIA
Norfolk Division

WORLD FUEL SERVICES TRADING,
DMCC, D/B/A BUNKERFUELS
CLERK. US r;"-M!CT COURT
Plaintiff,

Civil Action No. 2:13cvl73
v.

M/V HEBEI SHIJIAZHUANG,
HER ENGINES,

TACKLE,

EQUIPMENT, APPURTENANCES,
ETC.,

IN REM

Defendant,

HEBEI PRINCE SHIPPING COMPANY,
LTD,

Claimant.

OPINION AND ORDER

This

matter

is

before

the

Court

on

a

motion

for

summary

judgment filed by plaintiff World Fuel Services Trading,

DMCC

("Plaintiff" or "WFS DMCC"), a cross-motion for summary judgment
filed

by

("Claimant"
additional

claimant
or

Hebei

"Prince"),

Prince
and

discovery pursuant

Court

conducted a hearing

March

27,

2014.

For

on

a

Shipping

motion

to Fed.

R.

the summary

the reasons

by
Civ.

Company,
Claimant
P.

Ltd.
seeking

56(d).

judgment motions

discussed below,

The

on

Claimant's

Rule 56(d) motion is DISMISSED AS MOOT, Claimant's cross-motion

for summary judgment is DENIED, and Plaintiff's motion seeking
summary judgment is GRANTED.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. The Fuel Bunker Transaction

Tramp
Greece,

Maritime

chartered

registered
three

in

the

Hong

Greece,
vessel

8,

time

2012.

provides
operators

M/V

Kong,

consecutive

November

Enterprises

Ltd.

HEBEI

SHIJIAZHUANG

from Claimant,
charters

Bunkerfuels

marketing
and

("Tramp"),

and

owners

on

Hellas,

of

in

vessel"),

in China,

for

23,

May

and

2012

located

promotion
behalf

("the

located

between

located

in

Athens,

services

to

Plaintiff,

Greek

a

bunker

fuel provider located in Dubai,

United Arab Emirates.

Decl. M

On October 22, 2012, Tramp sent

an

4, 5, 9, ECF No. 48-2.

email

Bunkerfuels

to

Aristides
Hellas,

quotation for

for

fuel bunkers

about October 27, 2012

Emirates.

P.

Vogas

the
to

("Vogas"),

purpose

of

ECF No.

price

the vessel

on or

The

United Arab

Later that same day,

confirming the order

1-3.

of

a

at the port of Khor Fakkan,

Vogas sent an email to Tramp,

employee

obtaining

be delivered to

Claimant's Ex. 8, ECF No. 39-8.

confirmation").

an

Heijmen

bunker

("the bunker

confirmation

listed

the "buyer" as "MV HEBEI SHIJIAZHUANG and her owners/operators
and

Tramp

Maritime

Enterprises

Ltd,"

and

the

"BUNKERFUELS A DBA/DIVISION of WFS Trading DMCC."
The bunker

confirmation indicated that the

"seller"

as

Id_j_ at 1.

"physical supplier"

of the fuel would be APSCO Jeddah ("APSCO"), that the payment

terms would be "30 DDD by TTT."

IcL

Below the details of the

transaction was the following language:

All sales are on the credit of the vsl.

Buyer is

presumed to have authority to bind the vsl with a
maritime lien.

Disclaimer stamps placed by vsl on the

bunker receipt will have no effect and do not waive
the seller's lien.

This confirmation is governed by

and incorporates by reference seller's general terms
and conditions in effect as of the date that this
confirmation is issued.
These incorporated and
referenced

terms

can

be

found

at

www.wfscorp.com.

Alternatively, you may inform us if you require a copy
and same will be provided to you.
Id.

The website located at www.wfscorp.com is the website for

World Fuel Services Corporation ("WFS Corp."), the United States

parent corporation of WFS DMCC.
Fuel

Services

Corporation

Terms and Conditions"

is

A document titled "The World

Marine

Group

located on the

of

Companies

General

"Marine Solutions"

sub-

page of WFS Corp.'s website, and can be accessed by clicking the
"Marine"

menu

item

www.wfscorp.com
Conditions"

link

at

and
at

the

then
the

top

the

clicking

bottom

paragraph of the document states,

and supply shall

of

of

web

the

the

web

page

"Marine
page.

located

at

Terms

&

The

first

"the following terms of sale

constitute the General

Terms and Conditions

('General Terms') of the World Fuel Services Corporation Marine

Group of companies (collectively,

'World Fuel Services')."

No.

identifies

30-4

at

1.

The

document

a

list

of

ECF

twelve

companies comprising the "Marine Group of companies," "which
includes, but is not limited to, World Fuel Services, Inc.;

World

Fuel

Services

(Singapore)

Pte.

Europe,

Ltd.;

World

[nine

other

companies]

Ltd.;

respective trade names,
offices."

icL

subsidiaries,

Fuel

Services

and

their

affiliates and branch

The document further provides that the "list

includes all subsidiaries of World Fuel Services Corporation who
have sold,

are selling or will sell petroleum products and

services, whether or not in existence on the effective date."
Id.

The

"Credit and

Security"

section

of

the General Terms

provides, in pertinent part:

Products

supplied in each Transaction are sold and

effected on

the

credit

of

the

Receiving Vessel,

as

well as on the promise of the Buyer to pay, and it is

agreed and the Buyer warrants that the Seller will
have and may assert a maritime lien against the
Receiving Vessel for the amount due for the Products
delivered. . . . Disclaimer of lien stamps placed on
a Bunker Delivery Receipt shall have no effect towards
the waiver of such lien.

All sales made

under

these

terms

and

conditions

are

made to the registered owner of the vessel, in
addition to any other parties that may be listed as
Buyer in the confirmation.
Any bunkers ordered by an
agent, management company, charterer, broker or any
other party are ordered on behalf of the registered
owner

and

the

registered

owner

is

liable

as

a

principal for payment of the bunker invoice.
Id. at 6.

The document concludes with a "Law and Jurisdiction"

paragraph, which provides:

The

General

Terms

and

each Transaction

shall

be

governed by the General Maritime Law of the United
States and, in the event that the General Maritime Law
of the United States is silent on the disputed issue,
the law of the State of Florida, without reference to

any conflict of laws rules which may result in the
application of the laws of another jurisdiction. The
General Maritime Law of the United States shall apply
with respect to the existence of a maritime lien,

regardless of the country in which Seller takes legal
action. . . .

Seller shall be entitled to assert its

rights of lien or attachment or other rights, whether
in law, in equity or otherwise, in any country where
it finds the vessel.
Id.

at 12.

On October 29,
to the vessel
vessel's

2012, APSCO delivered the bunkers at issue

in the port of Khor Fakkan and provided
Delivery

Note[s]"

reflecting the amount of fuel delivered to the vessel.

See ECF

Nos.

1-1

chief

and

engineer

1-2.

The

with

two

chief

"Bunker

the

engineer

signed

each

Delivery Note and stamped them with the following

Bunker

"no lien"

language: "Bunkering Services and the bunkers are ordered solely
for the account of Charterers and not for Owners.
no

lien or other

owners can arise."

claims whatsoever against

Accordingly

the Vessel

or her

Id.
B.

The Vessel's Arrest

On April 4, 2013, Plaintiff filed a Verified Complaint with
this

Court,

alleging

that,

"[d]espite

repeated

demands

for

payments for the amounts due for the fuel oil and marine gas oil
provided, Tramp . . . and the [vessel] have failed to pay and

refused to pay the amounts due."
that,

Tramp

f 15,

and

ECF No.

the vessel

1.

Plaintiff

asserted

Plaintiff

"the sum of $809,420.50," Plaintiff had "a maritime

lien on the [vessel]

because

Compl.

owed

for the unpaid balance due of $809,420.50

for necessaries provided to the vessel, pursuant to 46 U.S.C. §§
31341

and

Complaint,

31342.

M

19,

20.

Along

with

the Verified

Plaintiff filed a Motion for Issuance of Warrant of

Maritime Arrest,
arrest

IcL

of

the

pursuant to Supplemental Admiralty Rule C,
vessel,

which

was

expected

to

arrive

in

Eastern District of Virginia within the next fourteen days.

No. 3.

for

the

Court

Issuance

granted Plaintiff's

of

Warrant

motion

ECF

and issued an

of Maritime Arrest.

The vessel was arrested on or about April 8, 2013.

2013,

the

After reviewing the Verified Complaint and accompanying

documents,
Order

for

ECF No.

4.

On April 10,

the Court entered a joint stipulation filed by Plaintiff

and Claimant,

from arrest

agreeing

that

Plaintiff would release the vessel

in exchange for a cash bond deposited by Claimant

with the Court in the amount of $850,000.
C.

ECF No.

11.

Procedural History

Plaintiff filed its motion for summary judgment on December

17, 2013,

alleging that

the vessel"
execute
vessel."

its

it is

and requesting
maritime

PL's Mot.

lien
Summ.

"entitled to a maritime lien on

that
and
J.

the

Court

collect

at 1,

"allow Plaintiff

that

ECF No.

sum

29.

owed

by

to
the

On January 15,

2014,

Claimant

alleging

a

brief

the Court

that

filed

opposing

"lacks

Plaintiff's

subject matter

motion,

jurisdiction,"

that "there are genuine issues of material fact regarding the
contractual

privity

between

plaintiff

and

the

parties

and

property," and that Plaintiff "does not have an in rem lien on
the narrow facts of this case."

Claimant's Br.

in Opp'n at 1-2,

ECF No. 39. Plaintiff filed its reply brief on February 6,
ECF No.

48.

Claimant

March

2014.

10,

filed

2014,

its

cross-motion

asserting as

grounds

for

summary

for

its

judgment

on

cross-motion the

same grounds it had asserted as defenses to Plaintiff's summary
judgment

motion.

opposing

the

ECF

No.

cross-motion

64.
on

Plaintiff

March

24,

filed

2014.

Claimant filed its reply brief on March 31,

2014.

its

ECF

brief

No.

79.

ECF No.

87.

Accordingly, both motions are ripe for review.
II.

The

Federal

Rules

STANDARD OF REVIEW

of

Civil

Procedure

provide

that

a

district court shall grant summary judgment in favor of a movant

if such party "shows that there is no genuine dispute as to any
material fact and the movant is
of

law."

Fed.

R.

Civ.

P.

entitled to judgment as a matter

56(a).

The

mere

alleged factual dispute between the parties

otherwise

properly

supported motion

for

existence

of

some

"will not defeat an

summary

judgment;

the

requirement is that there be no genuine issue of material fact."

Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986).

the pleadings,

affidavits,

deposition

transcripts,

and

If

other

discovery materials demonstrate that there is no genuine dispute
as to a material fact,

"it is the 'affirmative obligation of the

trial judge to prevent factually unsupported claims and defenses
from proceeding to trial.'"

744 F.
Pratt,

Supp.

2d 543,

999 F.2d 774,

545

Hostettler v. Auto-Owners Ins. Co.,

(E.D.

778-79

Va. 2010)

(quoting Drewitt

v.

(4th Cir. 1993)).

If a movant has properly advanced evidence supporting entry
of summary judgment,

the non-moving party may not rest upon the

mere

the pleadings,

allegations

specific

facts

illustrating

Catrett,

a

477

judge's

of
in

U.S.

the

form

genuine

function

determine

the

317,
is

issue

for

and

trial.

(1986).

himself

to

the matter but

is a genuine issue for trial."
doing so,

instead must

exhibits

322-24

not

truth of

of

but

sworn

weigh

that
the

forth

statements

Celotex

At

to

set

Corp.

point,

"the

evidence

determine whether

Anderson,

v.

477 U.S.

and
there

at 249.

In

the judge must construe the facts and all "justifiable

inferences" in the light most favorable to the non-moving party,
and the judge may not make credibility determinations.
255;

T-Mobile Ne.

380,

385

(4th

non-movant's
thinks

the

LLC v.

Cir.

favor,
evidence

City Council of Newport News,

2012) .

"the

After

viewing

judge must

unmistakably

8

the

ask himself

favors

one

Id.

at

674 F.3d

evidence

in

the

not whether he

side

or

the

other

but whether

a

[non-movant]

on the evidence presented."

252.

fair-minded jury could return a verdict

Because

implicates
would

the

apply

existence

a

plaintiff's

on

substantive

at

of

ruling

the
a

on

scintilla

position

if

or

is

not

granted."

for

Id.

summary

insufficient"

summary

at

judgment,

When

"the

separately on its own merits

parties

deserves

Voorhaar,

judgment

316 F.3d 516,

mere

to

of

the

overcome

motion.

a
Id.

summary

must

judgment
with

review

may

be

cross-motions

each

motion

to determine whether either of the

as

523

[t]he

"is merely colorable,

confronted

court

that

support

judgment

probative,

249-50.

in

evidence

proof

. . .

evidence

the non-movant's

significantly

merits [,]

at

"necessarily

standard of

be

well-founded

Accordingly,

the

the

477 U.S.

judgment

of

will

defendant's

summary

evidentiary

trial

Anderson,

for

a

matter

(4th Cir.

of

law."

2003)

Rossignol

v.

(internal quotation

marks omitted).
III.

A.

DISCUSSION

Claimant's Rule 56(d) Motion

Plaintiff filed its summary judgment motion on December 17,
2013.

On January 16,

Plaintiff's

summary

Plaintiff

had

discovery

and ha[d]

Claimant's

Br.

2014,

when Claimant filed its response to

judgment

"produced

a

total

objected

in Opp'n

at

motion,

to

10,

of

Claimant
73

pages

numerous
ECF No.

of

asserted

documents

discovery

39.

that
in

requests."

Claimant

observed

that it was "entitled to continue discovery through February 25,

2014," pursuant to the "Rule 16(b)
this

case."

depositions
time

Id.

Claimant,

Scheduling Order entered in

further

asserting

had not yet been completed,

"for discovery

so

that

Court

observes

the claims

that

the

several

requested additional
and

action can be disposed of on the merits."
The

that

defenses

in

this

Id. at 11.

date

for

the

completion

of

discovery has since passed and Claimant has filed its own motion
for

summary

excerpts

judgment,

accompanied

from depositions,

to Claimant's

discovery

by

and copies

requests.

have

addressed

certain

several

filings

in

issues

this

of

ECF

both the Magistrate Judge assigned to

sworn

case.

Plaintiff's

No.

this

regarding

declarations,

64.

In

responses
addition,

case and this Judge

proposed

Furthermore,

amendments

Claimant

makes

to

no

assertion in its own cross-motion for summary judgment that any

discovery

is

received no
with

the

still

yet

indication

Rule

16(b)

to
that

be

completed.

the

Scheduling

parties
Order

in

Accordingly,
have

failed

this

having

to

case,

comply

or

their

obligation to work together to prepare this case for trial,
Court

DISMISSES

AS

MOOT

Claimant's

Rule

56(d)

motion

the

seeking

additional time to complete discovery.
B.

Plaintiff
because

the

Summary Judgment Motions

asserts

undisputed

that

it

facts

is

entitled to

establish

10

that

summary judgment
1)

the

vessel,

through

time-charterer

Tramp,

entered

into

an agreement

to

purchase fuel bunkers from Plaintiff, 2) the agreement, through
incorporation by reference of Plaintiff's terms and conditions
located on its

website,

"contains

an explicit

choice of law

provision selecting United States law," and 3)
entitled to

a

maritime

lien against

Federal Maritime Lien Act"

("FMLA"),

bunker suppliers against a vessel."

7-10,

ECF No.

30.

the vessel

judgment

under

"the

which "provides liens by

Pl.'s Br. Supp. Summ. J. at

Claimant disagrees,

summary

Plaintiff is

because

asserting that it is

entitled

to

1)

neither

Plaintiff,

Claimant,

nor the vessel were parties to the agreement,

2)

the

agreement is not governed by United States law, and 3) even if
the agreement is governed by United States
maritime
Terms

law

does

of

not

Furthermore,

the

United

include

States

maritime

Claimant alleges,

4)

law,

referenced

statutes

governs

the

agreement.

in

such

as

because Plaintiff

notice of its anti-lien agreement with Tramp,
entitled to a maritime lien,

the general
the

General

the

FMLA.

had actual

Plaintiff

is not

regardless of which country's law

Because

the

grounds

for

Claimant's

cross-motion for summary judgment are the same as its defenses
to

Plaintiff's

Court

grants

motion

for

Plaintiff's

summary

motion

and

judgment,

denies

and

because

Claimant's

the

cross-

motion, the Court is required to "'resolve all factual disputes

and

any

competing,

rational

inferences
11

in

the

light

most

favorable'

to

[Claimant,]

motion."

Rossignol,

Springfield Terminal

the

100

party

F.3d at

Ry.

Co.,

100

opposing

523

[Plaintiff's]

(quoting

F.3d 228,

Wightman

230

v^

(1st Cir.

1996)).

1. Law Governing Contract Formation

Claimant asserts that,

before determining the validity of

the choice-of-law provision located in the General Terms,
Court

must

first

evaluate

whether

the

"the

contractual provision

providing for the application of U.S. law is valid under the law
of the country in which the contract was formed."

Br.

Supp.

contends

Summ.
that

J.

the

at 24-25,
contract

ECF No.

formation

66.

Claimant

issues

governed by Greek law because the parties'

in

this

U.S.)

port,

to a

by

foreign

a

(applying Lauritzen

(non U.S.)

foreign

factors).

areas

"Greek

of

shipping

law applies

to

and
the

case

are

for delivery

in a foreign

supplier."

Claimant

declaration of Andreas Nassikas,

"the

vessel,

(non U.S.)

further

dispute involves "a

contract made in Greece between two Greek parties

of bunkers

Claimant's

also

Id.

offers

(non

at

22

the sworn

a Greek attorney experienced in

insurance
formation

law,"
of

the

who

asserts

contract

that

for

the

provision of bunkers in this case since Greece is most closely
connected with

the

surrounding circumstances."

12

Nassikas

Decl.

at 2,

10, ECF Nos. 39-4,

observes

that

Tramp

66-19.1

"is

a

Specifically, Mr. Nassikas

company

...

in

Greece,

the

negotiations . . . were conducted in Greece (between Bunkerfuels
Hellas

and

[Tramp] ), and the parties

contract in Greece."

Id.

have

entered into

Plaintiff responds

that,

the

even if

"Greek law govern[s] the formation of the contract, Plaintiff's
lien still exists."

PL's Br. in Opp'n at 13, ECF No. 79.

The United States Court of Appeals for the Fourth Circuit

has

recognized

that,

"absent

compelling

reasons

of

public

policy, a choice-of-law provision in a maritime contract should
be

enforced."

CHUKOTKA,

Triton Marine Fuels

575 F.3d 409,

Ltd.,

415 (4th Cir.

S.A. v. M/V

2009)

PACIFIC

(citing M/S BREMEN

v. Zapata Off-Shore Co., 407 U.S. 1, 12-13 (1972); Lauritzen v.
Larsen,

345 U.S.

571,

588-89

(1953);

Bominflot,

Inc.

v.

M/V

HENRICH S, 465 F.3d 144, 148 (4th Cir. 2006); Hawkspere Shipping
Co.

v.

Intamex,

S.A. ,

330

F.3d

225,

233

(4th

Cir.

2003)).

However, where a choice-of-law provision does not appear on the
face of the contract, as in Triton where the bunker confirmation
contained a United States choice-of-law provision, but rather in

a document incorporated by reference into the contract,

as in

1 Rule 44.1 of the Federal Rules of Civil Procedure provides:
When "determining foreign law, the court may consider any relevant
material or source, including testimony, whether or not submitted by a

party or admissible under the Federal Rules of Evidence."
A party's
rights under foreign law may "be proved in several different ways,
such as through an affidavit by a foreign legal expert or through an
authoritative legal treatise or law review article."
1 Thomas
Schoenbaum, Admiralty & Mar. Law § 9-8, at 737 n.26 (5th ed. 2011).
13

J.

this

case

reference

where
terms

the

bunker
conditions

and

confirmation
containing

incorporated
a United

by

States

choice-of-law provision, prudence requires the Court to first
determine "which country's law controls the issue of contract

formation."

Trans-Tec Asia v. M/V Harmony Container, 518 F.3d

1120,

(9th Cir.

1124

2008)

(first conducting analysis to

determine "which country's law controls the issue of contract
formation" where bunker confirmation incorporated by reference a

United States choice-of-law provision in terms and conditions).
In other words, before the Court "can determine the validity of
the United States choice of law provision in the contract

between [Plaintiff] and [Claimant]," it must first determine,
"as a matter of law,

that such a provision was a valid

contractual term and was legitimately incorporated into the

parties' contract."

Io\ (emphasis added) (cited with approval

in Triton, 575 F.3d at 415); see also Oceanconnect.com, Inc. v.
M/V FESCO ANGARA, No. 2:09-1694, 2012 U.S. Dist. LEXIS 125241,
at **12-13 (W.D. La. Aug. 31, 2012).

Generally, in order to determine which country's law to

apply to a certain issue, "federal courts sitting in admiralty
[should] apply maritime choice-of-law principles derived from
the [United States] Supreme Court's decision in Lauritzen."
Trans-Tec Asia, 518 F.3d at 1124.

Under Lauritzen, a court

should consider "(1) the place of the wrongful act; (2) the law
14

of the flag; (3) the allegiance of the injured party; (4) the

allegiance

of

the

defendant

shipowner;

(5)

the place

of

contract; (6) the inaccessibility of a foreign forum; and (7)
the law of the forum."

IcL (citing Lauritzen, 345 U.S. at 583-

92) . In this case, however, Claimant proffers its own analysis
of the Lauritzen factors, concluding that Greek law governs the
contract

formation

disagree.

issues,

and

Plaintiff

does

not

strongly

See PL's Reply Br. at 6, ECF No. 48; PL's Br. in

Opp'n at 13, ECF No. 79 (observing that, "[e]ven if the Court
were to . . . ignore the other possible countries' law, conclude
there

was

an actual

conflict,

and conclude

that

Greek

law

governed the formation of the contract, Plaintiff's lien still
exists").

The

conceivable

that

Court

formation

(where
of

that

it

is

at

the law of the United Arab Emirates

Plaintiff is located),

Hong Kong

acknowledges

China

(where Claimant

the vessel

the

contract,

is

rather

flagged),
than

least
(where

is located),

might

Greece.

govern
See,

or

the
e.g.,

Trans-Tec Asia, 518 F.3d at 1125 (observing that determining the

"place of contract or . . . negotiation of the contact" is a
"thorny inquiry" and, under the particular facts of that case,
the vessel's "Malaysian flag and [the vessel owner's] Malaysian

nationality"
"formed

outweighed the place of the contract,

through

a

series

of

emails

and

which was

facsimiles"

between

Singapore and Taiwan "when the [vessel] was docked in Hong Kong"
15

(applying

Lauritzen

factors)).

However,

the

Court

also

recognizes that it must "^resolve all factual disputes and any
competing, rational inferences in the light most favorable' to

[Claimant,]

the

party

opposing

Rossignol, 100 F.3d at 523.

[Plaintiff's]

motion."

Because Claimant makes a compelling

argument that Greek law governs the formation of the contract in
this case, because Plaintiff does not suggest the outcome under
Greek law would be any different, and because the Court knows of

no "public policy" forbidding the application of Greek law,
Lauritzen,

345 U.S.

at 588,

the Court applies Greek law to

resolve the issues regarding the formation of the contract.2
2. Parties to the Contract

Claimant

argues

that

Plaintiff,

because

it

"neither

arranged nor performed any contract," was not "in privity of
contract with any other party to the transaction" between Tramp

and

Bunkerfuels

Hellas

"under

either

Greek

or

Claimant's Br. Supp. Summ. J. at 2, 9, ECF No. 69.

disagrees,

U.S.

law."

Plaintiff

arguing that the undisputed evidence shows that

Plaintiff was

the

Bunkerfuels Hellas,

2 Even if the

"seller" and that Vogas,
simply "serve[d]

Court were

to

an employee of

as broker on behalf of

alternatively apply the Triton

standard, skip the Lauritzen analysis, and conclude that the United
States choice-of-law provision controlled, as explained below, the
Court would reach the same ultimate conclusion as it does when
applying Greek law as to the formation of the contract.
16

Plaintiff"

to

arrange

Plaintiff.

PL's Br. in Opp'n at 3, ECF No. 79.

Under Greek law,

[agent]

the

transaction

between

Tramp

and

a principal may "knowingly allowU

the

to contract with third parties as if he were the

[principal's] agent or representative."
ECF Nos. 39-4, 66-19.

Nassikas Decl. at 7,

Furthermore, if an agent "alleges that he

is transacting business on the [principal's]

behalf and the

[principal], although aware of the [agent's] conduct, takes no
steps to put a stop to it, this suffices very much for the
[Greek] doctrine of ostensible authority to apply."

Id_i

The

Greek doctrine of "ostensible authority" is much like the agency

law recognized in the United States,

where "[t]he essential

underlying principle in the agency relationship is the power of
an agent to commit his principal to business relations with
third parties."
Ltd.,

131 F.

Allianz Ins. Co. v. Cho Yang Shipping Co.,

Supp.

2d 787,

792 n.l

(E.D. Va.

2000)

(citing

Griffin v. United States, 588 F.2d 521, 528-29 (5th Cir. 1979)).

For example,

United States agency law recognizes

that "[a]n

agent can have actual authority, meaning explicit permission
from the principal to act on its behalf."

Garanti Finansal

Kiralama A.S. v. Aqua Marine & Trading, Inc., 697 F.3d 59, 71

(2d Cir. 2012) (citing Interocean Shipping Co. v. Nat'l Shipping
& Trading Co.,

523 F.2d 527,

537

(Third) of Agency § 2.01 (2006)).
17

(2d Cir.

1975); Restatement

This Greek law principle

finds further application in United States law recognizing that
an agent can also have "apparent authority, by which the agent
can

'affect

part[y]

[the]

principal's

legal

relations

with

when a third party reasonably believes

[a]

third

the actor has

authority to act on behalf of the principal and that belief is
traceable

to

Restatement
the

the

principal's

(Third)

United

manifestations."

of Agency § 2.01 (2006)).

States,

"the

existence

and

Id.

(quoting

Furthermore,

scope

of

an

relationship can be resolved as a matter of law ...
the

facts

are

undisputed;

or

(2)

there

reasonable jury to interpret them."

is

Garanti,

(citing Brunswick Leasing Corp. v. Wise.
521,

526 (7th Cir.

Plaintiff's

but

in

agency

if:

one way

(1)

for

a

697 F.3d at 71-72

Cent.,

Ltd.,

136 F.3d

1998).

Verified

Complaint3

asserts

that

Plaintiff

"entered an agreement with the

[vessel]

provide bunkers

and marine

oil

S[ 8, ECF No.

Attached to the Verified Complaint is a copy of

1.

the bunker confirmation,

gas

also

submits

the

[vessel]."

indicating the seller as

DBA/DIVISION of WFS Trading DMCC."
Plaintiff

to

and Tramp Maritime to

the

sworn

Compl.

Ex.

declaration

Compl.

"BUNKERFUELS A

3, ECF No.
of

Jos

1-3.

Heijmen,

3 Because Plaintiff's Complaint contains a sworn declaration
"based upon [the] personal knowledge and documents available to [the
affiant]," ECF No. 1 at 6, the Verified Complaint may be considered

for purposes of summary judgment just as any other sworn declaration
submitted for summary judgment purposes.
See Williams v. Griffin, 952
F.2d 820, 823 (4th Cir. 1991); see also Williams v. Adams, 935 F.2d
960, 961 (8th Cir. 1991) ("A verified complaint is the equivalent of
an affidavit for summary-judgment purposes.").
18

"Senior

Vice

President

of

Credit

&

Risk

Management

of

[WFS

Corp.]," affirming that Bunkerfuels Hellas is "affiliated" with
WFS DMCC, and acts as a local "point of contact" for "Greek ship

operators/owners, . . . regardless of where a ship is located in
the world."

Heijmen Decl. SISI 8-9, ECF No. 48-2.

According to

Mr. Heijmen, Bunkerfuels Hellas, upon receiving the inquiry for
fuel

to

be

delivered

in

"relayed [the inquiry]

Khor

Fakkan,

United

Arab

Emirates,

to the World Fuel's affiliated company

located in the geographic region of the world where the bunkers
will

be

delivered"

authorized Vogas,
enter

on

5 13,

[its]

Vogas

Plaintiff,

-

DMCC.

IcL

at

I 10.

After WFS

an employee of Bunkerfuels Hellas,

behalf

sent

to

WFS

. . . the

the

Tramp,

bunker
listing

contract

the

seller

DBA/DIVISION OF WFS Trading DMCC," Compl.

"to act and

with Tramp,"

confirmation,

on

as

DMCC

id.

behalf

at

of

"BUNKERFUELS

A

Ex. 3 at 1, ECF No.

1-

3.

In its opposition to Plaintiff's
Claimant

presents

"depositions,
file,"

477 U.S.

the contract.

filed
fails

answers

illustrating

Celotex,

after
to

no

to

"specific

facts,"

interrogatories,

"that there is a

at 324,

summary judgment motion,
supported

[or]

genuine

admissions

issue

by

on

for trial,"

as to whether Plaintiff was a party to

Claimant's own cross-motion for summary judgment,

the

deadline

establish

a

for

completing

genuine
19

issue

discovery had passed,
for

trial

regarding

Plaintiff's privity to the contract.

alleges

that

no

'Bunkerfuels'"

evidence

as

"establish[es]

indicated

any
and

on

J. at 10, ECF No.

[WFS]

66.

vessel

in

Plaintiff's
ECF

Nos.

this

case,

66-8,

Plaintiff's

as

well

or

relationship

Claimant's Br.

66-11,

statement:

the

as

corporation,

WFS Trading DMCC."

confirmation,

bunker

as

between

Supp.

Summ.

LLC," another one of WFS Corp.'s

for

in

"only connection"

confirmation's

[Plaintiff]

Claimant also points to an invoice from

companies,"

parent

the

DMCC."

APSCO to "Marine Energy Arabia,

of

Claimant merely

"identif[ies]

organizational

Bunkerfuels Hellas

"Marine Group

Rather,

bunkers

payment

to

APSCO

support
to

the

"SELLER:

sent

for

of

by

WFS

A

is

the

Corp.,

argument

transaction

Supp.

to

the bunkers,

its

BUNKERFUELS

Claimant's Br.

delivered

see
that

the bunker

DBA/DIVISION OF

Summ. J. at 13,

ECF No.

66.

The Court finds Claimant's allegations of a lack of privity
between

Plaintiff

issue of material
sworn

and
fact.

declaration

"explicit permission

Garanti,

his

[Plaintiff's]

establishes

1 13,

ECF No.

that

Vogas,

. . .
48-2,

at

252.

Bunkerfuels

to

"to

contract

and accurately

20

create

act

a

genuine

Heijmen's
Hellas

had

on its behalf."

employed by Bunkerfuels Hellas,

authority
the

to

477 U.S.

from the principal

ostensible
behalf

insufficient

Anderson,

697 F.3d at 71.

exercised

Decl.

Tramp

act
with

and

enter

Tramp,"

on

Heijmen

represented Plaintiff

as the seller on the bunker confirmation sent to Tramp, Compl.

Ex. 3, ECF No. 1-3.

Payment by Plaintiff's parent corporation

to APSCO for delivery of the bunkers,
APSCO

to

Marine
to

delivered
material

Energy
vessel,

the

fact

as

contract,

but

Plaintiff

to

handled

Arabia,
does

merely

LLC

not

whether

for

create

Plaintiff

suggests

the

as well as invoicing by

that

billing

and

regarding

and Bunkerfuels Hellas,

Claimant
Court

offers

finds

no

was

other

bunkers

genuine
a

APSCO

issue

of

to

the

party

entities
related

besides
to

the

Because "there is but one

way for a reasonable jury to interpret"
Plaintiff

a

receipts

purchase and delivery of the bunkers.

by

the

the facts as presented

the agency relationship between itself
Garanti,

specific

697

facts

that Plaintiff has

F.3d at 71-72,

illustrating

and because

otherwise,

the

satisfied its burden as a matter

of law regarding its privity to the contract with Tramp.
3. Incorporation by Reference of the General Terms

Claimant also argues that the bunker confirmation failed to
incorporate

by

reference

Plaintiff's

General

Terms

located

on

WFS Corp.'s website because Tramp neither had reasonable notice
of

Plaintiff's

General

Terms.

Greek law,
the

bunker

General

Terms

nor

Specifically,

manifested

Claimant

its

assent

contends

that,

to

the

under

the General Terms were not validly incorporated into
confirmation

exact website

address

because

they

indicated on

21

were

not

the bunker

located

at

the

confirmation and,

in any event,

the General Terms failed to name Plaintiff as a

company covered by such General Terms.

Plaintiff disagrees,

arguing that 1) Claimant's own evidence establishes that "Greek
law

[does not]

prohibit[]

incorporation

reference to an additional document," 2)
additional

website

did

[General
Terms"

clicks"

not

to

reach

Tramp

of

and 3)

"the

very

indicates that the list of

to

the

submitted by Claimant,

either

the parties

interpreting
39-4,
Art.

66-19
3(1)).

"a U.S.

sworn

Terms

on

"reasonable
language

notice

of

companies is

WFS

the

Corp.'s

of

[General]

"not intended to

to

the
or

their

declaration

of

Mr.

Nassikas,

contract,
can

agreement."

be

provided

such

clearly

ascertained

Nassikas

Decl.

at

choice

9,

(citing European Union (EU) Regulation No.
Mr.

Nassikas

further asserts

choice of law term [would]

that,

be valid if

to

website"

explicit way."
sworn

should

be

Id. at 10-11.

declaration

of

Paris

drafted

in

In response,
Karamitsios,

"a

593/2008,

it was expressly
term

the "reference

clear,

plain

and

Plaintiff offers the
a

Greek

specializing in "shipping and transportation law."
22

by

under Greek law,

be incorporated by reference to a website,"
[the]

is

ECF Nos.

stated on the face of a contract," but in order for "such a

[to]

the

"Greek law will respect any choice of law

expressly

made

terms by

PL's Br. in Opp'n at 5, 7, 12, ECF No. 79.

According

by

contract

the requirement of "two

General

deprive

Terms],"

be exhaustive."

made

the

of

attorney

Karamitsios

Decl.

at 1,

ECF No.

Greek law,
to

the

Mr.

Karamitsios asserts that,

under

"in order for general terms and conditions to apply

contract,

contents

48-1.

of

[Tramp]

must

have

obtained

knowledge

of

the

such terms or must have been given the opportunity

to obtain knowledge thereof."

Id. at 5 (citing, inter alia, the

United

Contracts

Nations

Convention

Sale of Goods Arts.

on

8, 14-24

(Vienna,

for

the

International

1980), which was "ratified

by Greece by way of law 2532/1997").

It

is

undisputed

General Terms
that

a

is

person

that

the

actual

website

address

of

the

www.wfscorp.com/Marine/pdf/Marine-Terms.pdf and
reach

the

General Terms from WFS Corp.'s home page at www.wfscorp.com.

In

addition,

recipient
Terms]

1-3.

must

the

to

click

bunker

two

additional

confirmation

"inform us

if

Court

finds

you require a

that

the

to

expressly

and same will be provided to you."

The

links

copy

[of

Compl.

bunker

directs

Ex.

the

the General
3, ECF No.

confirmation

validly

incorporated the General Terms under both of the Greek standards

asserted by Claimant
the

reference

to

"lacks,

per

se,

because

the

the
the

"term

and Plaintiff.
General

Terms

necessary

cannot

Mr.

Nassikas

located

clarity

immediately

and

be

at

found"

ECF Nos.

Nassikas's

39-4,

opinion

66-19.

and

However,

finds

that

23

that

www.wfscorp.com

explicitly

address provided on the bunker confirmation.
11,

opined

at

the

[sic],"
website

Nassikas Decl.

at

the Court disagrees with Mr.

the

bunker

confirmation

was

sufficiently clear and explicit to direct Tramp - as well as

anyone

else

who

General Terms.

received

the

bunker

confirmation

- to

the

See, e.g., One Beacon Ins. Co. v. Crowley Marine

Servs.,

648

F.3d

similar

incorporation

258,

263,
by

169

(5th

reference

Cir.

of

2011)

(approving

and

conditions

terms

located on a website requiring four clicks to reach the actual
location

of

the

"undoubtedly
location

notice

could

of

of

the

the

particular
confirmation

opportunity

have

terms

terms

facts
in

to

Karamitsios Decl.

noting

terms,

provided

and

and

of

at

1,

clearer

conditions

on

was

case").

case

obtain

although

conditions

this

this

that

confirmation

direction
the

knowledge"

of

reasonable

48-1,

under

bunker

Tramp

General

the

General

Terms

were

"the

Terms,

Accordingly,

the Court

finds no genuine issue of material fact regarding whether,
law,

the

by offering to provide a

copy of the General Terms upon request.

Greek

the
. . .

the

offered

the

to

website,

Furthermore,

explicitly

ECF No.

the

validly

under

incorporated

by

reference into the bunker confirmation.

4. Companies Covered by General Terms

Claimant

specifically
General Terms,

conditions."

argues

that,

identify

because

Plaintiff

such General Terms

Claimant's Br.

Plaintiff disagrees,

as

the

an

General

entity

Terms

do

not

covered

by

the

"are not Plaintiff's terms and

Supp.

Summ.

J.

at 15,

ECF No.

66.

arguing that the list of entities contained
24

in the General Terms is

"not intended to be exhaustive."

PL's

Br. in Opp'n at 5, ECF No. 79.

Plaintiff submitted a copy of the General Terms located at

WFS Corp.'s website.
true
as

that

one

Compl. Ex. 5, ECF No. 1-5.

the General Terms

of

the

"Marine

do

Group

Although it is

not specifically name Plaintiff

of

companies,"

the

General

Terms

specify that the "Marine Group of companies . . . includes, but
is not limited to"

one

-

"and

affiliates

the named companies - of which WFS Corp.

their

and

respective

branch

trade

offices."

Id.

names,

is

subsidiaries,

(emphases

added).

The

undisputed evidence shows that Plaintiff is a subsidiary of WFS
Corp.
[WFS

Furthermore,
Corp.]

who

the General Terms cover "all subsidiaries of

have

sold,

are

petroleum products and services,
the effective date."
that

Corp.

and a

seller

General

will

sell

marine

whether or not in existence on

Plaintiff,

Thus,

it

is clear

a subsidiary of WFS

marine petroleum products

and services.

the bunker confirmation directs the reader to the

Terms,

terms

of

or

(emphasis added).

the General Terms apply to

In any event,

those

Id.

selling

and

as

its

this

indicates

own,

regardless

that
of

Plaintiff
whether

had

adopted

Plaintiff

was

identified by name in the General Terms.

Accordingly,

finds

regarding

whether

the

website

applied

to

no

General

genuine

Terms

issue

located

of

on

material

WFS

fact

Corp.'s

Plaintiff and the agreement between Plaintiff and Tramp.

25

the Court

5. The "General Maritime Law of the United States"

Claimant next argues that,

even if the General Terms were

validly incorporated by reference into the bunker confirmation,
the

choice-of-law provision

General

Maritime

asserts does
as

not

46 U.S.C.

the

Br.

(incorporating by

governing

States,"

law

to

which

Supp.

Summ.

reference

asserting

that

under which

"the

Claimant

J.

at

Claimant's

21

"the

ECF No.

n.7,

argument

for summary

in

general

39; see

ECF

No.

66

its brief

judgment).

phrase

such

Plaintiff brings

in Opp'n at 14-15,

Plaintiff's motion

disagrees,

United

and 31342,

Claimant's Br.

Claimant's

opposing

of

the

include United States maritime statutes,

§§ 31341

this action.

also

Law

limits

Plaintiff

maritime

law

simply indicates that it is the maritime statutes and case law
that

are

Plaintiff

applicable."
contends

law should govern
U.S.C.

§ 31342."

Plaintiff

did not

PL's

that,

the
Id.

Reply Br.

because

choose

3.

"this

However,

United

3 n.2,

the parties

transaction,"
at

at

ECF No.

"agreed that U.S.

Court must

Claimant points

States

48.

statutory

apply 46
out

law to

that

govern

the agreement with Tramp - it chose "only 'the general maritime
law of

the United States,'

Claimant's Br.

The

traditional

the

in Opp'n at 15, ECF No.

general

jurisprudence

and not

of

maritime

the

federal

common law rules,

law

entirety of

and

modifications

26

law."

39.

"stems

courts"

U.S.

from

"'is
of

the

an

maritime

amalgam

those rules,

of
and

newly created rules.'"
Law § 5-1,

at 248

1 Thomas J. Schoenbaum, Admiralty & Mar.

(5th ed.

Corp. v. Transam. Delaval,

2011)

(quoting E.

River Steamship

Inc., 476 U.S. 858,

864-65 (1986)).

"The general maritime law of contracts covers contracts such as
charter

parties,

salvage

contracts,

insurance,

statutes."

Id^ at 249.

and

contracts,

and

tow,

agreements

other

tug

not

addressed

federal

Claims

40

(2d

jurisdiction."

William

ed.

also

(explaining that,

by

"Until 1910, the lien law of the United

States was composed of state law and the general
under

repair

1998);

see

"[p]rior to 1910,

Tetley,

Triton,

maritime law
Mar.

575

Liens

F.3d

at

&
417

a maritime lien arose under

United States law when necessaries were provided to a vessel in

a port of a foreign country or state, but no such lien arose
. . .

in a port of the vessel's home state,

authorized by local state law").

unless a lien was

"Since then,

legislation has

been passed in order to codify and clarify federal

lien

. . .

law, without . . . abolishing the general "maritime law which is

not incompatible with the statutory law."

Tetley,

supra,

at 40

(emphasis added).

" [Legislation has always served as an important source of
both common law and admiralty principles."
Corp. , 498 U.S.

19,

24

(1990).

As

Miles v. Apex Marine

a general

rule,

"[s]tatutes

which invade the common law or the general maritime law are to

be

read

with

a

presumption

favoring
27

the

retention

of

long-

established and familiar principles,

purpose

to

the

contrary is

except when a statutory

evident."

Johnson, 343 U.S. 779, 783 (1952).

Isbrandtsen Co.—v^

When determining Congress's

purpose in enacting - or amending - a particular statute, the
"statutory text" is the "best evidence" of what Congress "set[]
out to change, but also what it resolve[d] to leave alone."

W^

Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991).

"[A]n admiralty court must be vigilant not to overstep the
well-considered
Miles,

boundaries

498 U.S. at 27.

federal courts,

imposed

To be sure,

by

federal

legislation."

"it is for Congress, not

to articulate the appropriate standards to be

applied as a matter of federal law."

Milwaukee v. Illinois, 451

U.S.

quotation

304,

316-17

(1981)

(internal

marks

omitted).

Consequently, when a statute "'speak[s] directly to a question,
the

courts

are

not

free

to

supplement

Congress'

thoroughly that the [statute] becomes meaningless.'"

answer

so

Miles, 498

U.S. at 31 (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S.
618, 625 (1978)).

particular issue,

Put another way,

. . . the general maritime law must comply

with that resolution."
Garris,

"when a statute resolves a

Norfolk Shipbuilding & Drydock Corp. v.

532 U.S. 811, 817 (2001).

Before Congress enacted the Federal Maritime Lien Act of

1910, "[t]he state of the general maritime law on the imposition
of contract liens on chartered vessels was conveniently summed
28

up

in

U.S.

two
458

[United States
(1896),

Gilmore & C.

1975) .

and

Black,

Supreme Court]

The

Valencia,

165

cases,"
U.S.

The Kate,

254

The Law of Admiralty § 9-40,

"Taken together,

164

(1897).

at 670

G.

(2d ed.

The Kate and The Valencia established

the following propositions:"
1) when a materialman either knows or could easily
find out that a ship is under charter (The Kate) or,
preferring ignorance to knowledge, "shuts his eyes" to
obvious facts (The Valencia) , he is put on inquiry as
to what the charter contains;
2) a charter party term requiring the charterer to
"provide and pay for" certain services is enough to
defeat

a

lien

for

materialman who was
party contained.
Id.

at 672.

such

services

on inquiry as

in

favor

to what

of

a

the charter

In enacting the Federal Maritime Lien Act of 1910,

Congress purported to make "'no change in the general principles
of

the

[then]

Georges

11-12

Creek

present
Coal

(1920).

Co.

law
v.

between
those

repairs,
furnished

Congress

[concerning]

had been much confusion,"

liens.'"

Fisheries

intended

Piedmont

Co.,

"to

maritime liens as

254

U.S.

simplify

&
1,

and

to which there

to abolish "the artificial distinction

supplies,
in

maritime

Seaboard

Rather,

clarify the rules

of

etc.,

foreign

furnished

ports,"

and

in
to

home

ports

and

"substitute!]

a

federal statute for numerous state statutes purporting to confer
liens."

Dampskibsselskabet

310

268,

U.S.

maritime law,

272

(1940) .

Dannebrog v.

Thus,

Signal

consistent

Oil

with

&

the

Gas

Co.,

general

the Federal Maritime Lien Act of 1910 conferred no

29

lien "'when the furnisher knew,

or by exercise of reasonable

diligence could have ascertained, that because of the terms of a

charter party,

. . . the person ordering the repairs, supplies,

or other necessaries was without authority to bind the vessel

therefor.'"

icL at 273 (quoting former 46 U.S.C. § 973) .4

In 1971,

however,

Congress abolished the general maritime

duty of a supplier, imposed under The Kate and The Valencia and

preserved in the Federal Maritime Lien Acts of 1910 and 1920, to

"inquire as to the presence and terms of a charter party."
Benedict on Admiralty § 40, at 3-42 (7th ed. 1998).

2

Thus, under

the current federal statute governing maritime liens,
even if [a supplier] is aware that the vessel with
which he is dealing is under charter, he should not be

charged with knowledge of the existence of any "no
lien" clause absent affirmative evidence that he had
received express notice from the owner or other
reliable source that the vessel was not to be bound.

Id- (emphasis added); see also Ramsay Scarlett & Co. v. S. S. Koh

Eun, 462 F. Supp. 277, 285 (E.D. Va. 1978)
post-1971

.. .

statutory

presumption"

(describing "the
as

rendering

a

prohibition of lien clause "ineffective against such a supplier

of necessaries absent actual knowledge of a charter including a
prohibition

of

lien

clause"

(emphasis

added)).

Indeed,

in

The Federal Maritime Lien Act of 1910 was "subsequently amended
in 1920 to cure an overly restrictive interpretation." 2 Benedict on
Admiralty § 37, at 3-22 (7th ed. 1998) (citations omitted). "American
federal maritime lien and mortgage law is now codified in the
Commercial Instruments and Maritime Liens Act," ("CIMLA") at 46 U S C
§§ 31301-09, 31321-30, 31341-43.

Tetley, supra, at 41 and n.206.
30

actions pursued solely under the current federal statute,
been

said

that

application,

"The

further

general maritime
Cir.

Kate

and The

than

law."

Valencia

they purport

are

247

course,

pre-1971

general maritime

Federal

subject

of

(citing 46

Maritime

maritime
U.S.C.

Lien

Act

liens."

Casey,

499

§ 31342).

U.S.

at 98,

does

not

2 Benedict,
However,

duty-of-inquiry "statutory text"

84,

89-90

(9th

controlling because
regulate

supra

the 1971

and

terms

of

§ 36,

entire

at

3-22

deletion of

the

clearly evidences Congress's intent

whether a supplier of necessaries has
presence

the

from the Federal Maritime Lien

to "speak directly to [the] question," Miles,

the

F.

"principles are still

important and in some situations are still

Act,

[pre-statutory]

1917).

Of

the

therefore without

to state

The South Coast,

it has

a

498 U.S. at 31, of

a duty to inquire as

charter party.

Indeed,

to

Claimant

appears to concede that "the general maritime law . . . relating
to vessel liens for necessaries . . . was fully preempted by the
drastic departure from the general maritime law resulting from
the

1971

amendment."

Claimant's

Reply Br.

at

10,

ECF No.

87

(contending that, as a result of the statutory preemption of the
general

maritime

Maritime Law of

no remedy").
[Congress's]

law,

"Plaintiff's

the United States'

selection

of

- without more

the
-

'General

affords

it

Because "the general maritime law must comply with
resolution" of this

31

"particular issue," Garris,

532

U.S.

at

817

(emphasis added),

Maritime Law of

includes

the

Plaintiff

the United States,"

Federal

brings

Inc. , 2001 AMC
"[i]t

of

Compl.

Maritime

1808,

Lien

action.

this

See

In

n.14

(D.

the

FMLA

to

the

requirements

satisfying

Ex.

Act,

1813

would undermine

absence

the Court finds that "the General
ECF No.

pursuant

re

Del.

5,

Eagle

2001)

conclude
of

which

Geophysical,

(observing that

that,

the

to

1-5,

even

FMLA,

in

the

any party

who provides a 'necessity' to a vessel is entitled to a maritime
lien under general maritime principles").
6.

Existence of a Maritime Lien under 46 U.S.C.

Plaintiff

under

46

alleges

U.S.C.

"presumed

that

§§ 31341

authority

and 3)

knowledge"

of

Claimant argues

entitled

bind

to

31342
the

2)

Pi's Br.

that,

Supp.

maritime

vessel"

of

when

Tramp
it

lien

had

J.

the

ordered

"supplied the fuel"

to

[Plaintiff] had actual

lien

Summ.

assuming the

a

1)

Plaintiff

"prohibition

to

because

"no facts support that

the

charter party."

is

and

necessaries for the vessel,
the vessel,

it

§§ 31341-42

clause"
at

10-11,

transaction was

in

Tramp's

ECF No.

30.

governed by

United States statutory law, the two no-lien stamps provided to

Plaintiff
notice

under

that

[Tramp's]

a

actual

Tramp's
maritime
or

ECF No.

lien

apparent

Opp'n at 21-22, ECF No.
69,

earlier

charter

claim

for

authority."

39; Claimant's Br.

66.

32

party
bunkers

"gave

actual

was

beyond

Claimant's

Br.

in

Supp. Summ. J. at 68-

"[U]nder American law,

creditors

who

provide

a

[maritime]

'necessaries'

lien arises

-

'supplies,

to secure

repairs

and

equipment . . . ordered on the credit of the ship and which are
Marine Oil Trading Ltd. v.

generally beneficial to the ship.'"
Motor Tanker Paros,

(quoting

Tetley,

287 F.

supra,

Supp.

at

2d 638,

551);

see

640-41

also

(E.D.

46

Va.

U.S.C.

2003)

§ 31342

(granting a maritime lien to a person "providing necessaries to
a vessel").
is

viewed

"In the case of a maritime lien,
as

the

obligor,

owner is also obligated."
fundamental

tenet

of

regardless

Triton,

maritime

law

of

the vessel itself

whether

the

vessel's

575 F.3d at 413-14.
that

'[c]harterers

"It is a
and

their

agents are presumed to have authority to bind the vessel by the
ordering of

necessaries.'"

518

1127-28);

F.3d at

presumptions

supplier
manager

are

need
of

of

not

the

Id.

at

(quoting Trans-Tec Asia,

see also 46 U.S.C.

immense value

"know

ship

414

to

anything

beyond

"The

the supplier"

about

the

§ 31341.

fact

the

because

authority

that

§ 31341

such

of

the

the

individual

apparently exercises that degree of control over the vessel that
could be

expected

Benedict,

supra,

of

§ 40,

any

[entrusted]

of

the

owner."

2

at 3-41.

A maritime lien does not arise,
are

agent

ordered by one without

authority

however,
to bind

"when necessaries
the vessel"

where

the vessel owner can "'show that the supplier of necessaries had
actual

knowledge

of

the

existence

33

of

any

lack

of

authority

relied upon as

a defense.'"

766

1512

F.2d

Co.,

1508,

Inc.

1978)).

V.

Belcher Oil Co.

(11th Cir.

M/V HARE ARABICO,

authority

M/V GARDENIA,

(quoting Jan

459 F.

Supp.

Because "[a]ctual knowledge of

clause is merely one way of
lack of

1985)

v.

Uiterwyk

1331

1325,

C.

(D. Md.

[a] prohibition of lien

obtaining actual knowledge of

to bind a

vessel,"

a

vessel

one's

owner may rebut

the presumption of a charterer's authority to bind the vessel by

establishing "that the supplier of necessaries either had actual
knowledge

that

the

person

ordering

authority to bind the vessel
of

lien

clause

in

the

the

supplies

or had knowledge of

charter."

Id.

at

a

position

refuse

to

payment,
SAVA,

or

47 F.

Trading

Co.

to

make

supply

the

assume
Supp.
v.

informed

vessel,

the

352

CARIBE

1985)) .

Consequently,

employee

of

(E.D.

MAR,

decision,

other

Am.

Oil

N.Y.

757

Such

actual

'the supplier is

business

make

risk.'"

2d 348,

M/V

the

an

F.2d

then

and

may

arrangements

Trading,

1999)

the

a prohibition

1512-13.

knowledge "defeats a maritime lien because
in

lacked

Inc.

for

v.

M/V

(quoting Gulf Oil

743,

749

(5th

Cir.

actual knowledge must be attributed to an

supplier

"who

has

the

ability

to

effect

the

negotiations and the contract prior to

the time the contract is

entered into."

v.

O.W.

U.S.

Bunker Malta Ltd.

2013).

"The party seeking to bar a supplier's maritime lien has
that

19026,

the

at

supplier

34

*7

(W.D.

Cal.

CV12-

2013

proving

LEXIS

No.

05657R,

the burden of

Dist.

M/V TROGIR,

Jan.

actually knew of

29,

a

no

lien

clause

Trading,

in

the

charter party

or

other

contract,"

Am.

Oil

47 F. Supp. 2d at 352, or "the existence of any lack of

authority relied upon as

a

defense,"

Belcher

Oil,

766

F.2d at

1512.

The parties do not dispute that
Act

"presum[es]

necessaries

No.

for

39.

Trading,
include

as
287

a

charterer

the ship."

Nor

qualified

that

is

there

Supp.

any

to the vessel as

authorized
Br.

dispute

under

2d at

fuel bunkers"),

is

Claimant's

necessaries
F.

the Federal Maritime Lien

641

the

to

procure

in Opp'n at 22,

that

the

statute,

fuel

see

(observing that

ECF

bunkers

Marine

Oil

" [n]ecessaries

or that the fuel bunkers were delivered

agreed.

Rather,

whether Plaintiff is

entitled

to a maritime lien in this case depends solely on whether or not
Plaintiff,
business

claim

with

sufficient

decision,

for

received

bunkers

authority."

was

Claimant's

opportunity

to

"actual notice

make

informed

that a maritime lien

beyond

[Tramp's]

actual

or

apparent

Br.

Opp'n

21-22,

ECF

No.

in

at

Claimant's Br. Supp. Summ. J. at 68-69, ECF No.

Here, Claimant fails

an

39;

66.

to show that there is a genuine issue

of material fact as to whether Plaintiff "actually knew of a no
lien clause
Trading,

in the charter party or

47 F.

Supp.

2d at 352.

other contract."

Am.

Oil

Claimant submits copies of

two

no-lien stamps affixed to two bunker delivery notes provided by
the vessel under Tramp's earlier charter party,
35

but provides no

specific

facts

establishing a

regarding whether

Plaintiff

genuine

issue

received actual

of material

fact

notice of the no-

lien provisions in the charter party governing this transaction.
See, e.g., O.W. Bunker Malta,

2013 U.S. Dist.

LEXIS 19026, at *7

(granting summary judgment where Claimant "presented no evidence
that

Plaintiff's
actually

department,

delivery

employees,

receipts

read

or

the

had

outside
anti-lien

actual

at

earlier charter party,
most,

lacked
See

the

Lake

1286,

authority

Union

Court

Drydock
(W.D.

maritime

imputed
terms,"

'reasonable

to

bind
Co.

v.

Wash.

the

diligence,"

of

a

1978)

the

it").

Tramp

in

bunker

Even

(observing

statutory
knowledge

if

that

the

446

that,

of

current

F.

Supp.

under

"the

the
to

have

transaction.

law,

"duty

might

this

POLAR VIKING,

supplier's
but

that

vessel

M/V

. . . constructive
on

on

the no-lien provision in

knowledge

law and pre-1971

based

accounting

such notice would charge Plaintiff,

constructive

1290-91

general

its

with

the

stamps

knowledge

Plaintiff did receive actual notice of

the

of

the

Supreme

charter

inquire
statute

and
with
now

requires

"actual knowledge that the vessel is operating under a

charter

which

original)).
upon
the

Finally,

"learn[ing]
bunkers

entitled

to

contains

of

were

a

no-lien

provision"

(emphasis

in

in response to Claimant's suggestion that,
the no lien provision in the charter after

delivered,"

exercise

self-help

the
to

36

fuel

bunker

recover

the

supplier
bunkers

"was

already

delivered," Claimant's Br.

in Opp'n at 23-24,

ECF No.

39,

the

Court observes that "actual notice to a supplier is ordinarily
ineffective

to bar

necessaries

have been provided

Terms, v.

Md.

a maritime

1033,

Gulf

1034

Stevedores,

v.

(S.D.N.Y. 1984)).

is given

after

Ceres

Supp. 919,

M/V

ROSA

Accordingly,

fact regarding

maritime lien in this matter and finds,

Marine
(D.

Gulf Oil

2739 (D. Or.
ROTH,

the

924-25

757 F.2d at 749;

1985 AMC 2738,

Inc.

genuine issue of material

it

913 F.

(citing M/V CARIBE MAR,

Trading Co. v. M/V FREEDOM,
&

if

to the vessel,"

M/V HARMEN OLDENDORFF,

1995)

Atl.

lien

587

1985);

F.

the Court

Supp.

finds no

the existence of a

as a matter of law,

that

Plaintiff is entitled to a maritime lien against the vessel.
IV.

For

the

reasons

set

CONCLUSION

forth

above,

Claimant's

Rule

56(d)

motion for additional time to complete discovery is DISMISSED AS

MOOT,

Claimant's

motion

for

summary

judgment

is

DENIED,

Plaintiff's motion for summary judgment is GRANTED.

and

The trial

scheduled to commence on Tuesday, April 8, 2014, will be limited

to

the

2014
for

following

"triable

final pretrial order:
which

it

Plaintiff

is

Plaintiff

is

has

a

issues"

"the total

maritime

entitled
entitled

to
to

indicated

lien

on

prejudgment

the

March

27,

amount due to Plaintiff
the

Vessel,"

interest,"

administrative

legis expenses, attorney fees and interest."
37

in

"whether

and

charges,

"whether

custodian

ECF No. 85 at 21;

see Triton Marine Fuels,

Ltd. v. M/V PACIFIC CHUKOTKA,

671 F.

Supp. 2d 753, 760 (D. Md. 2009) (citing Bradford Marine, Inc. v.
M/V SEA FALCON,

64 F.3d 585,

589-90)

(observing that

"an FMLA

lien does not necessarily cover all the terms of the underlying
contract").

The Clerk is REQUESTED to send a copy of this Opinion and
Order to all counsel of record.
IT IS

SO ORDERED.

/s
Mark S.

~M&r
Davis

UNITED STATES DISTRICT JUDGE

Norfolk, Virginia
April O
2014

38