ING Bank N.V. v. Temara
| Decision Date | 24 August 2016 |
| Docket Number | 16-cv-95 (KBF) |
| Citation | 203 F.Supp.3d 355 |
| Parties | ING BANK N.V., Plaintiff, v. M/V TEMARA et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
David W. Skeen, Marc Andrew Campsen, Wright Constable and Skeen LLP, Meighan Griffin Burton, Pascale Stevens LLC, Baltimore, MD, James D. Bercaw, Laura Elizabeth Avery, James Denman Bercaw, Robert J. Stefani, King Krebs and Jurgens PLLC, New Orleans, LA, for Plaintiff.
Geoffrey S. Tobias, Jack Daley, Ober Kaler Grimes and Shriver PC, Baltimore, MD, Sean Patrick Barry, Marie Elizabeth Larsen, James H. Power, Holland & Knight LLP, New York, NY, for Defendants.
While technological developments have fundamentally altered the ways many industries conduct business, for those whose trade involves plying the vast oceans, certain things remain as they have always been. The large ships that are hired to transport and deliver cargo across the globe still need a basic supply of fuel to get where they need to go. Hence, the buying and selling of quantities of fuel (known as bunkers) remains an active trade the world over.
As in any industry, the companies in the bunker business come and go, and sometimes when they go they leave the detritus of unresolved business in their wake. This case arises out of such unresolved business. Indeed, this is one of many cases in this district and around the country and planet that has resulted from the November 2014 collapse of O.W. Bunker & Trading A/S ("OW Bunker"), formerly the world's largest bunker supplier, and may other affiliated entities. The basic pattern, in both this case and many others, is that the relevant OW Bunker entities arranged to have bunkers provided to a ship by a physical supplier, the bunkers were delivered, and then the OW Bunker companies collapsed before anyone was paid. This in rem action against the ship for the value of the unpaid bunker invoice followed.
The physical supplier in this case was CEPSA International B.V. ("CEPSA") and the ship was the M/V TEMARA ("TEMARA"). Now before the Court are dueling summary judgment motions regarding CEPSA's entitlement to a maritime lien against the TEMARA and a breach of contract claim against ING Bank N.V. ("ING"), a bank and the purported assignee of OW Bunker's assets. (ECF Nos. 47 & 58.) CEPSA's request for payment from the funds deposited in the Court's registry appeals to a sense of an orderly business transaction: it delivered fuel and now seeks compensation. However, maritime liens are creatures of law that must be strictly limited to their statutory basis. For the reasons stated below, CEPSA does not hold, and never held, a valid maritime lien against the TEMARA. It has also not entered into any contract with ING which ING could be capable of breaching. Accordingly, the motion to dismiss CEPSA's intervening complaint (ECF No. 47) is GRANTED and CEPSA's cross-motion for summary judgment (ECF No. 58) is DENIED.
On December 19, 2013, ING executed a Security Agreement with OW Bunker and various affiliates. (ECF No. 46-4 at 14-94.) Under the terms of the Security Agreement, which is governed by English law, OW Bunker assigned its rights and interest in New Supply Contracts, including the one at issue here, to ING.2 Under the terms of the Security Agreement, OW Bunker did not assign or transfer any corresponding obligations, liabilities, or debts associated with such contracts. (ECF No. 124 at 24.)
The vessel at issue in the instant action, the TEMARA, is owned by Cimpship Transportes Maritimos, S.A. ("Cimpship") and during the relevant period in 2014 was chartered by Copenship Bulkers A/S ("Copenship"). In October 2014 Copenship contacted OW Bunker to arrange for the TEMARA to be supplied with bunkers at an upcoming stop in Balboa, Panama. OW Bunker responded by sending Copenship a Sales Order Confirmation for the sale of 400 metric tons of fuel, each costing $536. (ECF No. 47-2 at 8-10.) Payment was made due "WITHIN 30 DAYS FROM DATE OF DELIVERY UPON PRESENTATION OF INVOICE." The document listed an address in Denmark and Danish email addresses and telephone numbers for OW Bunker.
The Confirmation also made the agreed-upon sale "subject to the OW Bunker Group's Terms and Conditions of sale(s) for Marine Bunkers" and provided that "acceptance of the marine bunkers by the vessel ... shall be deemed to constitute acceptance of the said general terms." The 15-page Terms and Conditions of sale for Marine Bunkers Edition 2013 (ECF No. 47-6 at 99-115) in turn set forth that "[a]n Agreement shall only be concluded and binding on the Seller when the Seller sends the Order Confirmation to the Buyer," and that each such confirmation would incorporate the Terms and Conditions.
"Supplier" was defined as "any party instructed by or on behalf of the Seller to supply or deliver the Bunkers."
The Terms and Conditions were made applicable to all orders, agreements, and contracts "except where otherwise is expressly agreed in writing by [the International O.W. Bunker Group, or OWB]." They also provided that "[g]eneral trading conditions of another party will not apply, unless expressly accepted in writing by OWB." The Agreement was to be "governed and construed in accordance with English law," but "[t]he General Maritime Law of the United States shall always apply with respect to the existence of a maritime lien."
Under the Terms and Conditions, title in and to the bunkers was to remain with the Seller until full payment was made, and that payment "shall be made in full, without set-off, counterclaim, deduction and/or discount." The Buyer was "obliged to make payments in full ... whether or not it has any claims or complaints."
The Terms and Conditions also contained a section labeled "Exemptions and Force Majeure." One of the provisions in this section, L.4, read as follows:
Neither the Confirmation nor the Terms and Conditions contain any reference to the Seller acting as the Buyer's agent or possessing the power to bind the Buyer to any agreement.
After the agreement between Copenship and OW Bunker was reached, OW Bunker utilized the services of OW Bunker USA Inc. ("OW USA"), a "bunker intermediary." The record before the Court is notably devoid of any documentation of the arrangement between OW Bunker and OW USA. The Court does not, for example, know whether these companies are sister corporations or whether one is a subsidiary of the other, whether they feature joint or separate ownership, or indeed how they enter into agreements with one another.
On October 3, 2014, the same day OW Bunker and OW USA entered into an agreement, OW USA also contracted with CEPSA to physically supply bunkers to the TEMARA. CEPSA's confirmation document was addressed to "O.W. BUNKER USA INC. ATTN: HELENA RIOS," and it listed the Buyer as "O.W. BUNKER USA INC.," the Seller as "CEPSA PANAMA S.A.," and the Vessel as "MV TEMARA." (ECF No. 47-4.) This confirmation, like the previous one OW Bunker issued to Copenship, recited the fuel quantity as 400 metric tons, but listed a lower unit price at $526. OW USA also memorialized this contract in its own Purchase Order Confirmation, which listed a Texas address and phone number for the company. (ECF No. 47-3.) Neither confirmation referenced OW Bunker (as opposed to OW USA) or Copenship, but both referenced the TEMARA.
CEPSA's confirmation document listed the following term: "CEPSA GENERAL TERMS AND CONDITIONS OF SALE (REV. OCT 01, 2011) TO APPLY, A COPY OF WHICH AVAILABLE ON REQUEST." Several of those Terms and Conditions are potentially relevant to the instant dispute. (ECF No. 59-4.)
In CEPSA's Terms and Conditions, CEPSA is identified as "THE SELLER," while "THE BUYER" is the entity that provides CEPSA "written notice of the Request for Supply," which must comply with certain informational requirements. These Terms and Conditions repeatedly distinguish between the Buyer and "the Ship's Master or his representative;" for example, while sampling of the bunkers must occur "in the presence of the ‘BUYER’ or the Ship's Master, or their respective representatives," the bunker receipt after fuel delivery "must be signed by the Ship's Master supplied, or the agent." The Buyer's Final Order also...
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