Clearlake Shipping Pte Ltd. v. Nustar Energy Services, Inc., 121918 FED2, 17-1458-cv

Docket Nº:17-1458-cv[*]
Opinion Judge:KEARSE, CIRCUIT JUDGE
Party Name:CLEARLAKE SHIPPING PTE LTD., Plaintiff-Counter-Defendant-Appellee, v. NUSTAR ENERGY SERVICES, INC., Defendant-Cross-Defendant-Cross-Claimant-Appellant, ING BANK N.V., Defendant-Counter-Claimant-Cross-Claimant-Cross- Defendant-Appellee, O.W. BUNKER (SWITZERLAND) SA, O.W. BUNKER USA, INC., O.W. BUNKER NORTH AMERICA, INC., O.W. BUNKER HOLDING NORT...
Attorney:MARIE E. LARSEN, New York, New York (James H. Hohenstein, Holland & Knight, New York, New York, on the brief), for Plaintiff-Counter-Defendant-Appellee. JONATHAN S. FRANKLIN, Washington, D.C. (Mark Emery, Norton Rose Fulbright US, Washington, D.C.; Keith B. Letourneau, Blank Rome, Houston, Texas,...
Judge Panel:Before: KEARSE, CABRANES, and LOHIER, Circuit Judges.
Case Date:December 19, 2018
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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CLEARLAKE SHIPPING PTE LTD., Plaintiff-Counter-Defendant-Appellee,

v.

NUSTAR ENERGY SERVICES, INC., Defendant-Cross-Defendant-Cross-Claimant-Appellant,

ING BANK N.V., Defendant-Counter-Claimant-Cross-Claimant-Cross- Defendant-Appellee,

O.W. BUNKER (SWITZERLAND) SA, O.W. BUNKER USA, INC., O.W. BUNKER NORTH AMERICA, INC., O.W. BUNKER HOLDING NORTH AMERICA INC., Defendants.[**]

No. 17-1458-cv[*]

United States Court of Appeals, Second Circuit

December 19, 2018

Argued: April 19, 2018

Appeal by interpleader defendant NuStar Energy Services, Inc. ("NuStar"), from orders and an April 18, 2017 partial final judgment of the United States District Court for the Southern District of New York, Valerie E. Caproni, Judge, rejecting its claims of entitlement to maritime liens against two chartered vessels to which NuStar, pursuant to arrangements with and among other entities, physically provided marine fuel for which it was not paid following the bankruptcies of the entity to which NuStar sold the fuel and of that entity's affiliate from which the charterer had ordered the fuel. The district court denied NuStar's motion for summary judgment on its maritime-lien claims and entered a partial final judgment dismissing those claims, ruling principally that the claims were governed by the Commercial Instruments and Maritime Liens Act ("CIMLA"), 46 U.S.C. § 31301 et seq., and that bunker suppliers who were subcontractors were not entitled to maritime liens because their sales were not made "on the order of the owner or a person authorized by the owner" of the vessel, id. § 31342(a). See Clearlake Shipping PTE Ltd. v. O.W. Bunker (Switzerland) SA, 239 F.Supp.3d 674 (S.D.N.Y. 2017). On appeal, NuStar contends principally that it was entitled to the claimed liens in light of CIMLA's plain text and purpose and as a matter of equity, regardless of its lack of contractual privity with the vessels' owner/charterer or their agent. We see no error in the district court's interpretation of CIMLA or its ruling that maritime liens may not properly be granted based on principles of equity. And as NuStar-unlike the physical supplier in U.S. Oil Trading LLC v. M/V VIENNA EXPRESS, No. 17-0922, and Hapag-Lloyd Aktiengesellschaft v. U.S. Oil Trading LLC, No. 17-0931, which are also resolved today-has not pointed to evidence that the owner or charterer or their agent directed that NuStar be the physical supplier, NuStar's claims are not meaningfully distinguishable from those rejected in ING Bank N.V. v. M/V TEMARA, 892 F.3d 511 (2d Cir. 2018).

MARIE E. LARSEN, New York, New York (James H. Hohenstein, Holland & Knight, New York, New York, on the brief), for Plaintiff-Counter-Defendant-Appellee.

JONATHAN S. FRANKLIN, Washington, D.C. (Mark Emery, Norton Rose Fulbright US, Washington, D.C.; Keith B. Letourneau, Blank Rome, Houston, Texas, on the brief), for Defendant-Cross-Defendant-Cross-Claimant-Appellant.

BRUCE G. PAULSEN, New York, New York (Brian P. Maloney, Seward & Kissel, New York, New York, on the brief), for Defendant-Counter-Claimant-Cross-Claimant-Cross-Defendant-Appellee.

Before: KEARSE, CABRANES, and LOHIER, Circuit Judges.

KEARSE, CIRCUIT JUDGE

Interpleader defendant NuStar Energy Services, Inc. ("NuStar"), a physical supplier of marine fuel ("bunkers") to two vessels time-chartered by interpleader plaintiff Clearlake Shipping PTE Ltd. ("Clearlake"), appeals from orders and an April 18, 2017 partial final judgment of the United States District Court for the Southern District of New York, Valerie E. Caproni, Judge, denying NuStar's motion for summary judgment and dismissing its claims to maritime liens against the vessels. The district court ruled that, under the Commercial Instruments and Maritime Liens Act ("CIMLA"), 46 U.S.C. § 31301 et seq., NuStar was not entitled to maritime liens because it provided the fuel "on the order of" an entity other than "the owner or a person authorized by the owner" of the vessels, id. § 31342(a). See Clearlake Shipping PTE Ltd. v. O.W. Bunker (Switzerland) SA, 239 F.Supp.3d 674 (S.D.N.Y. 2017) ("Clearlake"). On appeal, NuStar contends principally that it was...

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