The opinion of the court was delivered by: Gershon, District Judge.
Plaintiff American Oil Trading Inc. ("AOT") asserts a claim for
a maritime lien against the M/V SAVA ("the Vessel") in rem, as
well as in personam claims against the Vessel's owner Croatia
Line, its operator Malta Cross Shipping Co., and its charterer,
Palm Star Shipping Ltd. ("Palm Star"), which is the agent for an
undisclosed principal, Queensgate Shipping ("Queensgate").
Plaintiff moves for summary judgment to enforce a maritime lien
against the Vessel in rem for the value of unpaid fuel oil
("bunkers") supplied to the Vessel in New Orleans in April 1997
and in Panama in June 1997. Plaintiff also seeks prejudgment
interest and reasonable attorneys' fees.
The following facts are undisputed: In April 1997, defendant
Palm Star requested plaintiff AOT to supply bunkers to M/V SAVA
in New Orleans, Louisiana. On April 28, 1997, AOT arranged for
the supply of 200 metric tons of intermediate fuel oil ("IF") and
79.95 metric tons of marine diesel fuel ("MDO") to the Vessel in
New Orleans and subsequently issued its invoice No. AMT 923/97
dated May 8, 1997 in the amount of $37,770.83. Pursuant to the
terms of this invoice, payment was due no later than May 28,
1997, thirty days after the April 28 delivery. In mid-June 1997,
Palm Star requested AOT to supply bunkers to the Vessel in Panama
on or about June 20, 1997. AOT accepted this request, but also
requested Palm Star to pay $20,000 by June 23, 1997, "on account"
of the $37,770.83 that was still due on the prior delivery. By a
telefax dated June 18, 1997, Thames Petroleum Services AS, on
behalf of Palm Star, confirmed to AOT that Palm Star would be
paying AOT $20,000 by June 23, 1997, and that AOT could use
$8,673.71 to satisfy an outstanding interest invoice for Palm
Star's previous late payments and apply the balance of $11,328.29
to Invoice No. AMT 923/97 for the previous New Orleans fuel
delivery. On or about June 21, 1997, AOT arranged for the
provision of 100.47 metric tons of IF and 50.50 tons of MDO to
the Vessel in Panama. AOT subsequently issued an invoice in the
amount of $27,921.15 for this delivery. On June 24, 1997, AOT
received the $20,000 payment "on account" and applied $8,673.71
to cover outstanding interest that Palm Star owed for prior late
payments and applied the balance of $11,328.29 to Invoice No. AMT
923/97 for the previous New Orleans fuel delivery, in accordance
with Thames Petroleum's telefax of June 18, 1997. After this
payment, a balance of $26,444.54 remained due on Invoice No. AMT
923/97.
It is undisputed that on two prior occasions, in June and July
of 1996, when AOT supplied the Vessel with bunkers, vessel
personnel stamped the bunker receipts with the following
"Important Notice":
The goods and services being hereby acknowledged by,
receipted for and/or ordered are being accepted
and/or ordered solely for the account of charterers
of M/V SAVA and not for the account of said vessel or
her owners. Accordingly, no lien or other claim
against said vessel or her Owners can arise therefor.
Malta Cross Shipping, Owners of the Bulk M/V SAVA.
AOT also supplied bunkers to the Vessel on two other, later
occasions, in 1996, when it received bunker receipts that were
signed by the Vessel's chief engineer, but did not have the no
lien clause stamped on them; on August 30, 1996, and September
12, 1996, AOT arranged for the supply of bunkers to the Vessel in
Houston and Panama, respectively, and on each occasion, the
Vessel accepted the bunkers without stamping the bunker receipt
with a no lien clause.
AOT acknowledges that it received copies of the bunker receipts
stamped a no lien clause after it supplied bunkers to the Vessel
in New Orleans in April 1997 and Panama in June 1997. AOT denies
actual notice of a no lien clause in any charter party prior to
that time, and the President of AOT, Adrian Little, states that
"[i]f AOT had been advised by the vessel, its owners or its
charterers that Palm Star, Queensgate or Thames Petroleum did not
have authority to also bind the vessel in rem, for joint
liability for the bunkers, AOT would not have delivered bunkers
to the vessel."
AOT has not been paid for its supplies of bunkers to the Vessel
in April and June 1997. Accordingly, it commenced the instant
action by filing a verified complaint on July 23, 1997, a date on
which the Vessel was within the District. After security was
provided, the Vessel was released from arrest on July 28, 1997
pursuant to a stipulation.
A motion for summary judgment is granted if there is no genuine
issue as to any material fact, and the moving party is entitled
to judgment as a matter of law. See Lipton v. Nature Co.,
71 F.3d 464, 469 (2d Cir. 1995). The moving party must demonstrate
the absence of any material factual issue genuinely in dispute.
See id. The court must view the inferences to be drawn from the
facts in the light most favorable to the party opposing the
motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
However, the non-moving party may not "rely on mere speculation
or conjecture as to the true nature of the facts to overcome a
motion for summary judgment." Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986). Rather, it must produce specific facts
sufficient to establish that there is genuine factual issue for
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986).
AOT moves for summary judgment to enforce a maritime lien
against the Vessel in rem pursuant to both the Maritime
Commercial Instruments and Liens Act of 1988 ("Liens Act"),
46 U.S.C. ยง 31341-31342, and the terms of its sales contract for
the value of unpaid bunkers supplied to the Vessel in New Orleans
in April 1997 and in Panama in June 1997. There is no dispute
that AOT has satisfied the requirements of the Liens Act by
furnishing necessaries, namely, bunkers of oil, to the M/V SAVA
upon the order of the time charterer of the Vessel. Defendant
argues, however, that AOT improvidently extended credit to Palm
Star when it provided additional bunkers in Balboa, Panama on
June 21, 1997. Defendant also argues that AOT is not entitled to
a ...