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Praxis Energy Agents Pte Ltd. v. Beach

United States District Court, D. Delaware

September 25, 2018

M/V PEBBLE BEACH, its engines, tackle, apparel and freights, Defendant in rem.

          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.

         I. BACKGROUND

         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:

You are hereby put on notice that any bunkers to be delivered on board the vessel is for the account of the charterers and charterers alone and charterers have no right to allow any such rights to be vested to you in connection with said bunkers.
The Master reading this message in copy will ensure that an appropriate stamp will be inserted in the BDN [Bunker Delivery Note] on completion of the bunkering and obtain the signature of your representative prior to bunkering that you are aware of the above quoted stipulation.

(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.")atl)

         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. ...

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