Aegean Bunkering (Usa) LLC v. M/T Amazon (Imo 9476654)
| Decision Date | 24 August 2016 |
| Docket Number | 14-cv-9447 (KBF) |
| Parties | AEGEAN BUNKERING (USA) LLC, Plaintiff, v. M/T AMAZON (IMO 9476654), its engines, tackle and apparel and CERTAIN BUNKERS FO 500 CST aboard or loaded aboard the M/T Amazon, Defendants in rem, BERGEN BUNKERS, AS and JASPER EXPORTING LTD., Defendants quasi in rem, THE MASTER OF THE M/T AMAZON, Garnishee. JASPER EXPORTING LTD., Third-Party Interpleader Plaintiff, v. O.W. BUNKER MALTA, LTD. and ING BANK N.V., Third-Party Interpleader Defendants. |
| Court | U.S. District Court — Southern District of New York |
This is one of a large number of admiralty cases currently pending in this and other districts relating to the non-payment of bunkers. Bunkers are marine fuel necessary to the operations of ocean-going vessels. This Opinion & Order sets forth the Court's determination of whether, on the facts presented on this motion, the physical supplier of the bunkers, Aegean Bunkering (USA) LLC ("Aegean") is entitled to a maritime lien. It is not.1 Accordingly, its claims in this action must be dismissed.
The resolution of this motion requires reference to the structure of the transaction at issue and principles of maritime law, contract law, and agency. Careful consideration of the relevant facts and principles leads the Court to conclude that while Aegean did, in fact, supply the bunkers at issue, it did not do so "on the order of the owner or a person authorized by the owner" of the vessel. It is in the position of a subcontractor. As such, and on the facts presented here, it lacks a maritime lien.
Before this Court are three motions for summary judgment, each of which seeks determination of this same question. Accordingly, as set forth below this Court DENIES Aegean's motion for summary judgment (ECF No. 108), and GRANTS ING Bank N.V.'s ("ING's") and Jasper Exporting Ltd.'s ("Jasper's") cross-motions for summary judgment (ECF Nos. 114 & 119) and dismisses Aegean's claims. To be clear, this Opinion & Order does not determine what entity, if any, in fact holds a maritime lien against the vessel.
The bunkers, the payment for which are at issue in this case, were invoiced to various entities (as described below) on October 31, 2014. On or about November 14, 2014, Aegean arrested the vessel at issue, the Amazon, in the Bahamas. Jasper, the vessel owner, subsequently posted a Letter of Undertaking and the Amazon was released. Aegean commenced the instant action against Jasper in this district on November 26, 2014. (ECF No. 2.) Aegean asserted in rem claims against the Amazon based on a purported maritime lien in the amount of $981,708.20 and quasi in rem claims against Jasper.
Jasper answered the complaint on February 27, 2015 (ECF No. 22) and then amended its answer on March 20, 2015 to assert counterclaims, cross-claims, and a third party complaint for interpleader naming Bergen Bunkers, AS ("Bergen"), O.W. Bunker Malta, Ltd. ("OW Malta") and ING. (ECF No. 27.) ING answered Jasper's third party complaint on June 12, 2015 and counterclaimed against Jasper for the disputed funds. (ECF No. 70.) Jasper and ING both filed a Second Amended Complaints in July and September respectively, with Jasper's adding a new third party defendant, O.W. Bunker USA, Inc. ("OW USA"). (ECF Nos. 83, 87.) Aegean answered Jasper's third party complaint on August 10, 2015. (ECF No. 85.)
Neither OW Malta nor OW USA have appeared in this action; OW USA was dismissed from the action on February 10, 2016. (ECF No. 103.) A Clerk's Certificate of Default was entered against OW Malta on February 25, 2016, anddefault judgment was entered against OW Malta on May 23, 2016. (ECF Nos. 105 & 141.) Fact discovery closed on March 4, 2016.
On March 4, 2016, Aegean moved for summary judgment as to the existence of its maritime lien, and thus to dismiss the claims of ING and contrary to the position of Jasper. (ECF No. 108.) Jasper and ING cross-moved for summary judgment against Aegean. (ECF Nos. 114 & 119.) These three motions are the subject of the instant decision.
The provision of bunkers to the Amazon has the feel of a game of musical chairs: On October 22, 2014, Jasper, the Amazon's owner, acted through its management agent, Dynacom Tankers Management Limited ("Dynacom") to place an order with OW Malta for bunkers. OW Malta then contracted with OW USA for the provision of the bunkers; OW USA in turn contracted with Bergen, and finally Bergen contracted with Aegean. When the music stopped, Aegean was in fact the physical supplier of the bunkers which it duly delivered to the Amazon on October 31, 2014 at Marcus Hook, Pennsylvania.
On the same day the bunkers were delivered, October 31, 2014, Aegean invoiced Bergen in the amount of $981,708.20; OW Malta then invoiced Jasper (through Dynacom) $994,313.42, with a notation that payment should be made toING as assignee. To date, no entity has been paid for the bunkers.3 Bergen has gone bankrupt.
Jasper contracted with Dynacom to act as its agent for, inter alia, the acquisition of bunkers. The first transaction in the long chain of transactions which are implicated in this lawsuit is that between Dynacom4 and OW Malta.5
In October 2014, Dynacom contracted with OW Malta for the provision of marine fuel, or bunkers. The documentation reflecting the Dynacom / OW Malta transaction indicates a purchase order for 2,100 metric tons of marine fuel of a particular grade and at a price of $466 per ton. (Potter Decl., ECF No. 120, Exh. 1.) The documentation specifies delivery and sampling requirements to insure quality. (Id.) OW Malta confirmed the order by a "Sales Order Confirmation" dated October 22, 2014. (Potter Decl. Exh. 2.) That confirmation is on OW Malta letterhead, with an address in Greece and telephone numbers with national prefixes associated with Greece. It reiterates the essential terms of the purchase order. As to payment it states "Within 30 days from date of supply upon presentation of invoice." (Id.) The second page of the Confirmation states:
(Id.) The OW Bunker Group Terms and Conditions provide, in pertinent part:
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