Cal Dive Offshore Contractors, Inc. v. M/V Sampson

• Decision Date: 27 March 2017
• Docket Number: 15–CV–2788 (JPO)
• Citation: 245 F.Supp.3d 473
• Parties: CAL DIVE OFFSHORE CONTRACTORS, INC., et al., Plaintiffs, v. M/V SAMPSON, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

245 F.Supp.3d 473

CAL DIVE OFFSHORE CONTRACTORS, INC., et al., Plaintiffs,

v.M/V SAMPSON, et al., Defendants.

15–CV–2788 (JPO)

United States District Court, S.D. New York.

Signed March 27, 2017

Cecil Gordon Starling, Jr., The Law Office of Gordon Starling, LLC, New Orleans, LA, Patrick Robert O'Mea, Peter Skoufalos, Brown Gavalas & Fromm LLP, New York, NY, Matthew Ryan Jackson, Adams and Reese LLP, Mobile, AL, for Plaintiffs.

Mary C. Broughton, Fowler Rodriguez, Mobile, AL, Lawrence Raymond Demarcay, III, Fowler Rodriguez etc., New Orleans, LA, Michael Andrew Harowski, Fowler Rodriguez, New Orleans, LA, for Defendants.

OPINION AND ORDER

J. PAUL OETKEN, United States District Judge

Plaintiffs Cal Dive Offshore Contractors, Inc., Cal Dive International, Inc., and Gulf Offshore Construction, Inc. (collectively "Cal Dive"), filed this action against Defendants M/V SAMPSON, her engines, tackle, appurtenances, equipment, etc. (the "SAMPSON"), in rem , and CVI Global Lux Oil and Gas 4 S.a.r.l. ("CVI") and CarVal Investors, LLC ("CarVal"), in personam , to enforce a maritime lien. (Dkt. No. 1.) This case was transferred to this Court from the Northern District of Florida (Dkt. No. 44), along with a motion to dismiss filed by CarVal (Dkt. No. 30). Cal Dive now seeks summary judgment that it is entitled to an in rem judgment against the SAMPSON. (Dkt. No. 69.) CVI seeks summary judgment that all of Cal Dive's claims—both in rem and in personam —fail as a matter of law. (Dkt. No. 75.) For the reasons that follow, CarVal's motion to dismiss is denied; Cal Dive's motion for summary judgment is denied; and CVI's motion for summary judgment is granted in part and denied in part.

I. Background

The following facts are taken from the parties' 56.1 statements and briefs and are undisputed unless otherwise noted.

At all relevant times, CVI was the title owner of the SAMPSON, a Panamanian flagged motor vessel capable of laying pipe for the oil industry. (Dkt. No. 78 ¶ 1; Dkt. No. 81 ¶ 1.) CVI chartered the SAMPSON to Oceanografia, S.A. de C.V. ("Oceanografia") pursuant to a charter party dated November 16, 2012 (and amended in December 19, 2012). (Dkt. No. 78 ¶ 2; Dkt. No. 81 ¶ 5.) Relevant to the present action, the charter party contained a no-lien clause prohibiting Oceanografia from incurring a lien against the SAMPSON.

(Dkt. No. 78 ¶ 3; Dkt. No. 81 ¶ 8.) The parties dispute whether, at the relevant time, Cal Dive had actual knowledge of the no-lien clause contained in the charter party between CVI and Oceanografia. (Dkt. No. 78 ¶ 6; Dkt. No. 81 ¶ 11.)

Pursuant to the charter party, CVI would provide the below-deck crew to the SAMPSON and Oceanografia would provide the above-deck crew. (Dkt. No. 69 at 3; Dkt. No. 44 at 2.) CVI contracted with Cal Dive to provide below-deck support pursuant to a Ship Management Agreement (Dkt. No. 1–1), executed on January 15, 2013. (Dkt. No. 81 ¶ 12.) Cal Dive also provided an above-deck pipe-laying crew to supervise and assist in the SAMPSON's pipe-laying activities (Dkt. No. 78 ¶ 4), though the parties disagree as to whether this crew was ordered by the charterer, Oceanografia, or by CarVal on behalf of the ship owner, CVI (Dkt. No. 69 at 3–4).¹ The current dispute relates to the failure to complete payment to Cal Dive for its pipe-laying services, leaving a balance due to Cal Dive of $1,623,459.92. (Dkt. No. 78 ¶ 7; Dkt. No. 81 ¶ 35.)

Both CarVal's motion to dismiss and the parties' cross-motions for summary judgment are currently pending before the Court.

II. CarVal's Motion to Dismiss

Cal Dive seeks to enforce a maritime lien in rem against the SAMPSON under Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims, and in personam against CarVal under Rule B. (Dkt. No. 1 at 2.) CarVal has moved to dismiss the complaint against it for failure to state a claim. (Dkt. No. 30.)

A. Legal Standard

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a motion to dismiss, courts must accept as true all "factual allegations contained in the complaint," Twombly , 550 U.S. at 572, 127 S.Ct. 1955, and must draw "all inferences in the light most favorable to the non-moving party," In re NYSE Specialists Sec. Litig. , 503 F.3d 89, 95 (2d Cir. 2007) (Sotomayor, J.).

B. Discussion

The Complaint alleges that Cal Dive provided personnel to the SAMPSON to assist with "pipe laying and related activities." (Dkt. No. 1 at 4.) It further alleges that the total amount to be paid for Cal Dive's services was $3,574,305.92 (id. at 5), and that Cal Dive is still owed $1,623,459.92 (id. at 6). The Complaint claims that CarVal is liable both (1) through an in rem action against the SAMPSON² ; and (2) directly, through an in personam action.

"[A maritime] lien arises to secure creditors who provide ‘necessaries'—‘supplies, repairs and equipment ... ordered on the credit of the ship and which are generally beneficial to the ship.’ " Marine Oil Trading Ltd. v. Motor Tanker PAROS, 287 F.Supp.2d 638, 640–41 (E.D. Va. 2003) (quoting William Tetley, Maritime Liens and Claims 551 (2d ed. 1998)); see also Clubb Oil Tools, Inc. v. M/V George Vergottis , 460 F.Supp. 835, 840 (S.D. Tex. 1978) (broadly interpreting "necessaries" to include labor provided for the ship). "[U]nder 46 U.S.C. § 31342, any entity that supplies a vessel with ‘necessaries,’ ... ‘on the order of the owner or a person authorized by the owner’ has a maritime lien on the vessel and is entitled to bring a civil action in rem to enforce that lien." UPT Pool Ltd. v. Dynamic Oil Trading (Singapore) PTE. Ltd. , No. 14 Civ. 9262, 2015 WL 4005527, at *4 (S.D.N.Y. July 1, 2015), aff'd sub nom. Hapag–Lloyd Aktiengesellschaft v. U.S. Oil Trading LLC , 814 F.3d 146 (2d Cir. 2016).

Accepting as true all "factual allegations contained in the complaint," Twombly , 550 U.S. at 572, 127 S.Ct. 1955, the Court concludes that the Complaint sufficiently alleges the existence of a proper maritime lien against the SAMPSON by alleging that Plaintiffs provided "necessaries" for the benefit of the ship (Dkt. No. 1 at 4), for which they were not reimbursed.³

And "[w]hen a maritime lien attaches, the plaintiff may pursue an in rem action against the vessel involved." Dowell Div. of the Dow Chem. Co. v. Franconia Sea Transp., Ltd. , 504 F.Supp. 579, 581 (S.D.N.Y. 1980), aff'd , 659 F.2d 1058 (2d Cir. 1981). Besides an in rem action against the vessel, "[t]he plaintiff also has the option of bringing an in personam action against any party that is directly liable in contract, tort, or some other substantive law." Id. However, if there is no "separate basis of substantive liability," the in personam liability does not attach "merely because a maritime lien has come into existence." Id. ; see also Notes of Advisory Committee on Rules, Rule C Supplemental Rules for Admiralty and Maritime Claims of the Federal Rule of Civil Procedure (noting that "no action in personam may be brought when the substantive law imposes no personal liability").

CarVal argues that the Complaint fails to state a plausible claim for relief against it under either an in rem or in personam theory of liability. The Court addresses each in turn.

First, CarVal argues that it "is not the owner of the SAMPSON and has not made an appearance to claim the SAMPSON, thus there is no possibility for Carval to be responsible for any potential in rem liability of the vessel." (Dkt. No. 30–1 at 5.) The Court agrees. A maritime lien "gives the creditor a special property in the ship, which subsists from the moment the debt arises, and it gives him a right to have the ship sold that his debt may be paid out of the proceeds of the sale. It is a right in the vessel, a jus in re." Itel Containers Int'l Corp. v. Atlanttrafik Exp. Serv. Ltd. , 982 F.2d 765, 768 (2d Cir. 1992) (quoting The Poznan , 9 F.2d 838, 842 (2d Cir. 1925) (internal quotation mark omitted)). As such, even assuming the existence of a valid maritime lien, the in rem action that arises from that lien is against the SAMPSON and does not state a claim against CarVal. See 2 C.J.S. Admiralty § 90 ("An action in rem in admiralty is a proceeding against a specific thing or res rather than against an individual, and in this form of proceeding, the owner of the property constituting the subject of the proceeding is not recognized until appearing, entering a claim, and defending."); Dowell Div. , 504 F.Supp. at 581 (S.D.N.Y. 1980) ("In the absence of a separate basis of substantive liability ... the shipowner cannot be held personally liable to the plaintiff merely because a maritime lien has come into existence.").

Second, with respect to the in personam claims, CarVal argues that the Ship Management Agreement discussed in the Complaint "is a contract between CVI and [Cal Dive]," and does not implicate or bind CarVal. (Dkt. No. 30–1 at 5–6.) As such, "[t]he face of the contract and the allegations of the complaint establish that [CarVal] is not a party to the contract," and, therefore, that CarVal "can have no liability under the contract." (Id. at 6.)

For its part, Cal Dive argues that CarVal misses the point, as its "claims are not based upon the Ship Management Agreement." (Dkt. No. 34 at 3.) Instead, its claims against CarVal are "based upon the supply and related expenses of ‘the pipe laying crew.’ " (Id. at 4.) The Complaint alleges that "defendants [including CarVal] requested that [Cal Dive] supply the above deck crew." (Dkt. No. 1 at 4.) Further, the Complaint alleges that, for its pipe laying services, Cal Dive ...