Bunker Holdings, Ltd. v. Green Pacific A/S, 082809 FED4, 07-1957

Docket Nº:07-1957
Party Name:BUNKER HOLDINGS, LTD., Intervenor/Plaintiff - Appellant, v. GREEN PACIFIC A/S, Defendant - Appellee, and TRITON MARINE FUELS LTD., S.A.; BRIDGE OIL, LTD., Plaintiffs, and CRESCENT TOWING AND SALVAGE COMPANY, INC.; COOPER/T. SMITH MOORING; CANTON PORT SERVICES LLC; ISS MARINE SERVICES, INC., d/b/a Inchcape Shipping Services, Intervenors/Plaintiffs,
Case Date:August 28, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

BUNKER HOLDINGS, LTD., Intervenor/Plaintiff - Appellant,

and

TRITON MARINE FUELS LTD., S.A.; BRIDGE OIL, LTD., Plaintiffs,

and

CRESCENT TOWING AND SALVAGE COMPANY, INC.; COOPER/T. SMITH MOORING; CANTON PORT SERVICES LLC; ISS MARINE SERVICES, INC., d/b/a Inchcape Shipping Services, Intervenors/Plaintiffs,

v.

GREEN PACIFIC A/S, Defendant - Appellee,

and

M/V PACIFIC CHUKOTKA, apparel, freights, etc., IMO No. 8800224; EMERALD REEFER LINES, LTD.; EMERALD REEFER LINES, LLC; INTERTRANSPORT CO., LLC; INTERTRANSPORT, LTD., Defendants,

and

THE MASTER OF THE M/V PACIFIC CHUKOTKA, Garnishee.

No. 07-1957

United States Court of Appeals, Fourth Circuit

August 28, 2009

UNPUBLISHED

Argued: May 12, 2009.

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (l:06-CV-03346-JFM)

John Stephen Simms, SIMMS & SHOWERS, LLP, Baltimore, Maryland, for Appellant.

David W. Skeen, WRIGHT, CONSTABLE & SKEEN, LLP, Baltimore, Maryland, for Appellee.

Before SHEDD, Circuit Judge, Joseph F. ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation, and Martin K. REIDINGER, United States District Judge for the Western District of North Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

In this maritime action, Bunker Holdings, Ltd. ("Bunker Holdings") asserts in personam claims of conversion and unjust enrichment against Green Pacific A/S ("Green Pacific"), arising out of the consumption of fuel oil by Green Pacific's vessel, the M/V PACIFIC CHUKOTKA ("PACIFIC CHUKOTKA" or "Vessel"). The district court granted Green Pacific summary judgment, holding that the contracts between Bunker Holdings and the Vessel's charterer, pursuant to which Bunker Holdings supplied the fuel bunkers to the Vessel, called for the application of Greek law, and that Bunker Holdings had failed to show that Greek law recognized such claims.

Bunker Holdings appeals, arguing that the Greek choice-of-law provisions in the supply contracts with the Vessel's charterer do not control Bunker Holdings' extra-contractual claims against the Vessel's owner, Green Pacific. Bunker Holdings further contends that had the district court applied traditional maritime choice-of-law rules to Bunker Holdings' claims, the district court would have found that Russian law governs this action. For the following reasons, we affirm.

I. Bunker Holdings is a Cypriot corporation that sells marine fuel ("bunkers"). Green Pacific is a Norwegian corporation and, at all times relevant to this litigation, was the owner of the Vessel.

In December 2005, Green Pacific leased the Vessel under a bareboat charter1 to Intertransport Company LLC ("Intertransport"), a Russian company with its principal place of business in Vladivostok, Russia. On September 28, 2006, Intertransport sent an e-mail to Bunker Holdings requesting a quote for a purchase of bunkers. On September 29, 2 006, Bunker Holdings replied by e-mail ("Bunker Confirmation"), confirming Intertransport's order. The Bunker Confirmation contains a choice-of-law provision, which states as follows:

BUYERS ACCEPT AND AGREE THAT THIS AGREEMENT, FOR ANY DISPUTES ARISING HEREIN IS SUBJECT TO GREEK LAW AND THE EXCLUSIVE JURISDICTION OF THE COURTS OF PIRAEUS.

(J.A. 193) . The bunker transaction was also subject to Bunker Holdings' "Standard Terms and Conditions for Sale of Marine Bunker Fuels, Lubricants and Other Products," which provides, in pertinent part, as follows:

The Agreement is subject to the law and jurisdiction of the courts of Greece. So whoever that nothing in this clause shall, in the event of a breach of the Agreement by the Customer, preclude the Company from taking any such actions as it shall in its absolute discretion consider it necessary to enforce, safeguard or secure its rights under the Agreement in any Court or tribunal or any state or country.

(J.A. 206) . On October 5, 2006, Bunker Holdings confirmed delivery of the bunkers to the Vessel in St. Petersburg, Russia. Thereafter, Bunker Holdings sent an invoice to Intertransport requesting payment for the bunkers by December 4, 2006.

On November 16, 2006, similar e-mail communications between Bunker Holdings and Intertransport confirmed a second sale of bunkers to be delivered to the Vessel in St. Petersburg, Russia. The confirmation terms were identical to the terms of the October 5, 2006 transaction, including the Greek choice-of-law clause. This second transaction was also governed by the Standard Terms and Conditions, which included a Greek choice-of-law provision. On November 25, 2006 Bunker Holdings confirmed delivery of this second set of bunkers to the Vessel in St. Petersburg, Russia, and an invoice was sent to Intertransport requesting payment for the fuel. Intertransport never paid for either bunker delivery.

In December 2006, the PACIFIC CHUKOTKA was arrested in the Port of Baltimore pursuant to a complaint filed by another fuel supplier, Triton Marine Fuels Ltd. Bunker Holdings intervened in that action to assert claims against the charterer and sub-charterer of the Vessel for their failure to pay for the bunkers. Bunker Holdings subsequently amended its complaint to assert in personam claims against Green Pacific as the Vessel's owner. This amended complaint, without reference to the applicable law, asserts in personam claims of conversion and unjust enrichment against Green Pacific arising out of the consumption of the fuel oil by the Vessel between October 5, 2006 and the date of the Vessel's arrest. As part of its in personam action, Bunker Holdings attached the Vessel as property of Green Pacific, pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions.

Green Pacific moved to vacate Bunker Holdings' attachment and to dismiss Bunker Holdings' in personam claims under federal maritime law.2 In response to Green Pacific's motion to vacate, Bunker Holdings stated for the first time its position that its claims were made under Russian maritime law, and it submitted the affidavits of three...

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