Praxis Energy Agents Pte LTD v. M/V Pebble Beach
| Decision Date | 25 September 2018 |
| Docket Number | C.A. No. 17-559-LPS |
| Citation | 344 F.Supp.3d 772 |
| Parties | PRAXIS ENERGY AGENTS PTE LTD, Plaintiff, v. M/V PEBBLE BEACH, its Engines, Tackle, Apparel and Freights, Defendant in rem. |
| Court | U.S. District Court — District of Delaware |
Timothy Jay Houseal, YOUNG CONAWAY STARGATT & TAYLOR LLP, Wilmington, DE, J. Stephen Simms and Marios J. Monopolis, SIMMS SHOWERS LLP, Baltimore, MD, Attorneys for Plaintiff.
Michael B. McCauley, PALMER BIEZUP & HENDERSON LLP, Wilmington, DE, Frank P. DeGuilio and Kevin G. O'Donovan, PALMER BIEZUP & HENDERSON LLP, Philadelphia, PA, Attorneys for Defendant in rem.
Pending before the Court is Plaintiff Praxis Energy Agents Pte Ltd's ("Praxis" or "Plaintiff") Motion for Summary Judgment and for Fed. R. Civ. P. 54(b) Final Judgment Entry (D.I. 22), Sithonia Shipholding S.A.'s ("Sithonia" or "Defendant") Motion for Discovery Prior to Filing Opposition to Praxis' Motion for Summary Judgment (D.I. 37), and Sithonia's Cross Motion for Summary Judgment (D.I. 39-4). Sithonia has appeared as owner of Defendant in rem , the M/V PEBBLE BEACH (hereinafter, the "Vessel"). The parties have not requested oral argument.
Unless otherwise stated, the following facts are not disputed. On August 29, 2014, Sithonia, as owner of the Vessel, entered a Charter Party agreement with Greatwin Carrier (Holdings) Co., Ltd. ("Greatwin"). (D.I. 37-4) Relevant to this suit, Greatwin agreed that it "will not procedure [sic ] suppliers, necessaries or services including, inter alia, bunkers on the credit of the owners or the vessel or in the owner's name or the vessel's name and if required will provide evidence thereof to the owners." (Id. at 9)
On September 2, 2014, while in Russia, Greatwin placed an order with Praxis for bunkers (i.e., marine fuel) for the Vessel. (D.I. 22-2) (Affidavit of Pritam Singh ("Singh Aff.") at 1) That same day, Praxis emailed Greatwin a Bunker Nomination (i.e., purchase order) which provides, in relevant part, "the acceptance of marine fuels ... by the nominated vessel shall be deemed to constitute the clear acceptance of our standard terms and conditions, which include expressly seller's maritime lien rights." (Id. at 2, Ex. 1) (all caps removed) A representative from Greatwin confirmed the Bunker Nomination that same day. (Id. at 2, Ex. 2) Praxis' General Terms and Conditions for the Sale of Marine Bunker Fuels and Lubricants ("Terms and Conditions") (which the parties presume are the "standard terms and conditions" referenced in the Bunker Nomination) provide under Section 10.00 "Maritime Lien":
Where Products are supplied to a Vessel, in addition to any other security, the agreement is entered into .... It is agreed and acknowledged that the sale of Products to the Buyer and/or their acceptance on the Vessel create a maritime lien over the Vessel for the price of the Products, such maritime lien afforded to the Company over the Vessel.... In case the Buyer is not the owner of the Vessel, it hereby expressly warrants that it has the authority of the owner to pledge the Vessel's credit and create a lien upon her as aforesaid and that he has given notice of the provisions of this Clause to the owner. The Company shall not be bound by any attempt by any person to restrict, limit or prohibit its lien or liens attaching to a Vessel, either by clausing the Physical Supplier's delivery receipts or otherwise.
(Id. Ex. 3 § 10.00) The Terms and Conditions further provide that General Maritime Law of the United States of America governs the agreement. (Id. Ex. 3 § 22.01) Praxis subcontracted Alliance-Bunker, a local physical supplier, to deliver the bunkers to the Vessel. (Id. at 2)
On September 8, 2014, Nikolaos Pantelias, Operations Manager at Evalend Shipping Company S/A ("Evalend"), which is the Ship Manager for the Vessel, emailed Alliance-Bunker after learning that Greatwin arranged for Alliance-Bunker to deliver fuel to the Vessel. (D.I. 39-1) (Affidavit of Nikolaos Pantelias ("Pantelias Aff.") at 1) With subject line "MV Pebble Beach Due to Bunker For Charterers Account," the email provided the text of the above-cited provision in the Charter Party agreement limiting Greatwin's authority to procure bunkers on the credit of the Vessel and further stated, "under no circumstances your contractual partner can receive bunkers on credit against a maritime lien on the vessel." (Id. Ex. A) The email continued:
(Id. Ex. A) The email attached a form letter ("Skipper Letter") (id. Ex. B), which "was to be delivered by the Master of the [Vessel] to the Master of the bunker barge [to sign] before the bunkers were delivered." (Id. at 2) The Skipper Letter is written as a statement from the skipper of the barge Carnival "[f]or and on Behalf of the Physical Supplier [Alliance-Bunker]." (Id. Ex. B) The Skipper Letter provides that the barge Carnival, on behalf of Alliance-Bunker, acknowledges "that vessel's charterers are the party responsible for the payment of the value of the bunkers the vessel will receive and Owners, the Master and the crew will not be called upon to pay any sums in connection therewith." (Id. Ex. B) The Skipper Letter further provided that "[a]ny maritime lien rights that the physical Suppliers [Alliance-Bunker] may have under the terms of this sale or otherwise are hereby fully and unreservingly waived." (Id. Ex. B)
Captain Domingo Bautista Dacillo, Master of the Vessel, received the September 8 email and form Skipper Letter. (D.I. 44-1) (Affidavit of Captain Domingo Bautista Dacillo ("Dacillo Decl.") at 1)
Captain Dacillo affirms that on September 11, 2014 he signed the Skipper Letter, which was delivered to the Captain of the barge Carnival, who also signed the Skipper Letter before any bunkers were delivered. (Id. at 2) Mr. Singh claims that the signed Skipper Letter is not genuine and that the signature is fake. (Singh Aff. at 3) From 9:30 PM on September 11 to 1:30 AM on September 12, Alliance-Bunker delivered the bunkers. (Id. Ex. 4)
It is undisputed that a Bunker Delivery Note (i.e., receipt) was provided to the Vessel for the delivery, which was signed by the Captain of the Vessel. (Id. Ex. 4) The Bunker Delivery Note attached to the Singh Affidavit contains a "no lien" stamp that states:
The goods and / or services being hereby acknowledged receipt for and / or ordered are being accepted and / or ordered solely for the account of Messrs Greatwin Carrier (Holdings) Co. Ltd. of the m.s. Pebble Beach and not for the account of said ship or her owners. Accordingly, no lien or other claim against said ship can arise therefrom.
(Id. Ex. 4) However, Mr. Singh affirms that this "no lien" stamp "was added only after the bunkers were pumped into [the Vessel] and the supply was completed." (Id. at 3)1
Ultimately, Greatwin failed to pay Praxis by the due date of October 10, 2014 and has still not paid for the bunkers. (Id. Ex. 7) Nevertheless, Praxis paid for Alliance-Bunker's services on October 14, 2014. (Id. at 3)
About one year later, on August 21, 2015, when the Vessel arrived at the port of Rio Grande, Brazil, Praxis filed a pleading in Brazil against Evalend, Sithonia, and Greatwin asking the Court to detain the Vessel pending deliberation from the Court and to grant a Writ of Preliminary Attachment as to the Vessel until defendants provide a security for the amount of $270,000 (the "Brazilian Action"). (D.I. 39-2 at 3-4, 18) A Brazilian attorney, Dr. Arthur Rocha Baptista, who represented the Vessel, Evalend, and Sithonia in the Brazilian Action, referred to it as "a lawsuit of arrest proceedings" in which the "Brazilian court ordered that the [Vessel] should be arrested and that the [V]essel not depart from the port of Rio Grande, Brazil." (D.I. 16-1) (Affidavit of Dr. Arthur Rocha Baptista ("Baptista Aff.") at 1-2) The defendants in the Brazilian Action provided security to obtain the release of the Vessel. (Id. at 3) On October 11, 2016, Praxis' Brazilian Action was dismissed, a decision which was affirmed on March 30, 2017. (Id. ) The security provided remains in the custody of the Brazilian court. (Id. )
Nearly two years later, on May 12, 2017, when the Vessel arrived at the port of Wilmington, Delaware, Praxis filed a complaint in this Court seeking issuance of a warrant for arrest of the Vessel in rem . (D.I. 1, 5) The warrant was issued the same day. (D.I. 9) Two days later, the Vessel was released on provision of security through a Letter of Understanding ("LOU"), which was replaced by a surety bond on August 22. (D.I. 10, 21) On June 16, 2017, Sithonia appeared as owner of the Vessel, answered the Complaint, filed a Counterclaim, and sought countersecurity for the counterclaim from Praxis. (D.I. 16) Praxis answered the counterclaim on July 5 (D.I. 19) and filed its pending motion for summary judgment on November 27. On December 22, the Court ordered Praxis to provide the countersecurity and stayed the proceedings until it was paid. (D.I. 26) Praxis paid the countersecurity on April 20, 2018 and, as a result, the Court lifted the stay on June 4. (D.I. 32) On June 14, the Court issued a Scheduling Order, which set a briefing schedule for Praxis' summary judgment motion and set fact discovery to close on September 30. (D.I. 36) The following day, Sithonia filed its pending Rule 56(d) motion for discovery and, thereafter, on June 27, filed its cross-motion for summary judgment.
Under Rule 56(a) of...
To continue reading
Request your trial
- Martes v. Comm'r of Soc. Sec.
-
Glander Int'l Bunkering v. M/V Dvina Gulf
...holding in determining the effect of the previous arrest. There, the previous arrest took place in Brazil, which recognized maritime liens. Id. at 780. The court reasoned that although plaintiff originally brought the action in personam, the Brazilian court converted it into an action in re......