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Maritima De Ecologia, S.A. De C.V v. Sealion Shipping Ltd

April 15, 2011

MARITIMA DE ECOLOGIA, S.A. DE C.V., PLAINTIFF,
v.
SEALION SHIPPING LTD., DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION AND ORDER

Maritima de Ecologia, S.A. de C.V. ("Marecsa") brings this action against Sealion Shipping Ltd. ("Sealion") for breach of contract, unjust enrichment, and quantum meruit. Sealion has moved to compel arbitration and to stay the litigation. For the following reasons, the motion to compel arbitration is denied but the litigation is stayed pending the completion of the ongoing arbitration of Sealion's claims against Marecsa in London.

BACKGROUND

Marecsa, a corporation organized under the laws of Mexico, provides support services to oil companies and rigs operating in the Gulf of Mexico. Sealion, an English corporation, acts as a manager for vessels owned by Toisa Limited ("Toisa") and another related entity, and occasionally bareboat charter vessels from Toisa.

The dispute at issue arises from services that Marecsa provided in 2010 in connection with the Deepwater Horizon catastrophe in the Gulf of Mexico (the "Gulf") without the benefit of a written agreement. Sealion's demand for arbitration depends upon two prior sets of written agreements that the parties executed to permit Marecsa to support Mexican oil exploration in the Gulf. Certain of the contracts in those two commercial transactions contained London arbitration clauses.

A. The First Pemex Exploration and Production Contract Marecsa and Sealion's relationship began when the corporations executed a series of agreements to prepare a tender to provide an offshore oil exploration support vessel to Pemex Exploration and Production ("PEP"), a state-owned Mexican oil exploration company. On November 27, 2002, Marecsa, Sealion, and a third company entered into a "Collaboration Agreement," pursuant to which the parties agreed to "work jointly [to] supply a Well Testing Services Vessel to the operations" of PEP. The Collaboration Agreement did not include a choice of law provision or an arbitration clause.

The same day that the parties concluded the Collaboration Agreement, Sealion and Marecsa executed a "Side Letter." The Side letter provided, in relevant part, that the attached Collaboration Agreement . . . has been executed by both parties solely and exclusively for the purpose of permitting Marecsa to present to Pemex a fully complying tender proposal. As such, it is to have no binding contractual or legal effect between the parties and is null and void in all respects.

It is further provided that the parties will negotiate and sign a separate and complete Joint Venture Agreement, in respect to the actual work to be undertaken by the parties upon terms and conditions to be negotiated and mutually agreed and that this Joint Venture Agreement shall constitute and govern the relationship between the parties.

A choice of law and forum selection clause in the Side Letter provided that the agreement would be "governed by English law and any dispute arising [under it] shall be referred to arbitration in London" under the London Maritime Arbitrators Association ("LMAA") rules. Subsequent to the conclusion of the Collaboration Agreement and the Side Letter, on or about June 8, 2003, Marecsa was awarded a five-year contract to supply a well testing services vessel, the Toisa Pisces, to service PEP's oil rigs in the Gulf (the "First PEP Contract").

As contemplated by the Side Letter, on January 28, Marecsa and Sealion entered two agreements concerning the execution of the First PEP Contract. The Joint Venture Agreement along with the "related" Subcontractor Agreement determined "the relationship of Marecsa and Sealion." The Joint Venture Agreement created a structure for dividing earnings between the two corporations. Pursuant to the Subcontractor Agreement, Sealion in its "position as Disponent Owner of the [Toisa Pisces]" appointed Marecsa to be the "Subcontractor" of the vessel's "deck processing plant."*fn1 Both the Joint Venture and the Subcontractor Agreements included a choice of law and arbitration provision stating that the "Agreement is to be construed and interpreted in accordance with English Law and any dispute arising from [the] Agreement, or its interpretation, shall be referred to arbitration in London in accordance with LMAA rules." The First Pemex Contract terminated by its terms on or about March 4, 2008.

Disputes arose between the parties and on June 3, 2008, Sealion and Marecsa entered a "Transaction Agreement" concerning "unpaid charter hire and other expenses due and owing to Sealion" at the conclusion of the First PEP Contract. Like the preceding contracts, the Transaction Agreement provided that it was to be "construed and interpreted in accordance with English Law" and any dispute arising under it "shall be referred to arbitration in London." The Transaction Agreement also specified, however, that if Marecsa failed to comply with certain obligations, "Sealion has the right to pursue Marecsa both criminally and/or civilly . . . in whatever court and/or jurisdiction it deems necessary or appropriate in its sole discretion."

B. The Second PEP Contract On or about March 8, 2008 -- before the parties had concluded the Transaction Agreement resolving disputes related to the First PEP Contract -- PEP awarded Marecsa a second contract (the "Second PEP Contract"). Marecsa, Sealion, and a third party entered a "Tripartite Agreement" on March 14, which defined each party's role and responsibilities in fulfilling the Second PEP Contract. On the same day, Marecsa and Sealion entered a separate agreement (the "Disputed Terms Agreement"), pursuant to which Marecsa agreed to request that PEP amend certain "Disputed Terms" in the Second PEP Contract "through Modification Agreements on terms satisfactory to Sealion." Both the Tripartite and the Disputed Terms Agreements included the same choice of law and arbitration provision used in the Joint Venture and Subcontractor Agreements.*fn2 The Second PEP Contract expired on March 21, 2010.

C. Deepwater Horizon Transaction After the Second PEP Charter expired, the vessel Toisa Pisces and its personnel remained on standby while Sealion and Marecsa negotiated a third contract with PEP. At the end of April 2010, however, BP p.l.c. ("BP") hired the Toisa Pisces to assist in the cleanup of the oil spill caused by the Deepwater Horizon oil drilling rig. Sealion's New York agent -- Brokerage & Management Corp. -- approached Marecsa to arrange for Marecsa to provide the personnel necessary for Sealion to perform the BP contract. On or about May 21, 2010, the Toisa Pisces entered United States waters with Marecsa personnel on board, but the parties never concluded a written agreement concerning the transaction. Marecsa personnel remained on the vessel, providing services until at least September 24, 2010. Although Marecsa billed Sealion for its fees and expenses relating to the Deepwater Horizon work, these invoices have not been paid.

On October 27, 2010, Marecsa filed this action against Sealion seeking $1,152,946.57 in fees for the services Marecsa provided in connection with the Deepwater Horizon cleanup effort. On December 7, 2010, Sealion served Marecsa with an arbitration demand for alleged breaches of two agreements relating to the First PEP Contract -- the Joint Venture Agreement and the Transaction Agreement (the "London Arbitration"). On January 13, 2011, Sealion ...


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