United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN UNITED STATES DISTRICT JUDGE.
Cal Dive Offshore Contractors, Inc., Cal Dive International,
Inc., and Gulf Offshore Construction, Inc. (collectively
“Cal Dive”), filed this action against Defendants
M/V SAMPSON, her engines, tackle, appurtenances, equipment,
etc. (the “SAMPSON”), in rem, and CVI
Global Lux Oil and Gas 4 S.a.r.l. (“CVI”) and
CarVal Investors, LLC (“CarVal”), in
personam, to enforce a maritime lien. (Dkt. No. 1.) This
case was transferred to this Court from the Northern District
of Florida (Dkt. No. 44), along with a motion to dismiss
filed by CarVal (Dkt. No. 30). Cal Dive now seeks summary
judgment that it is entitled to an in rem judgment
against the SAMPSON. (Dkt. No. 69.) CVI seeks summary
judgment that all of Cal Dive's claims-both in
rem and in personam-fail as a matter of law.
(Dkt. No. 75.) For the reasons that follow, CarVal's
motion to dismiss is denied; Cal Dive's motion for
summary judgment is denied; and CVI's motion for summary
judgment is granted in part and denied in part.
following facts are taken from the parties' 56.1
statements and briefs and are undisputed unless otherwise
relevant times, CVI was the title owner of the SAMPSON, a
Panamanian flagged motor vessel capable of laying pipe for
the oil industry. (Dkt. No. 78 ¶ 1; Dkt. No. 81 ¶
1.) CVI chartered the SAMPSON to Oceanografia, S.A. de C.V.
(“Oceanografia”) pursuant to a charter party
dated November 16, 2012 (and amended in December 19, 2012).
(Dkt. No. 78 ¶ 2; Dkt. No. 81 ¶ 5.) Relevant to the
present action, the charter party contained a no-lien clause
prohibiting Oceanografia from incurring a lien against the
SAMPSON. (Dkt. No. 78 ¶ 3; Dkt. No. 81 ¶ 8.) The
parties dispute whether, at the relevant time, Cal Dive had
actual knowledge of the no-lien clause contained in the
charter party between CVI and Oceanografia. (Dkt. No. 78
¶ 6; Dkt. No. 81 ¶ 11.)
to the charter party, CVI would provide the below-deck crew
to the SAMPSON and Oceanografia would provide the above-deck
crew. (Dkt. No. 69 at 3; Dkt. No. 44 at 2.) CVI contracted
with Cal Dive to provide below-deck support pursuant to a
Ship Management Agreement (Dkt. No. 1-1), executed on January
15, 2013. (Dkt. No. 81 ¶ 12.) Cal Dive also provided an
above-deck pipe-laying crew to supervise and assist in the
SAMPSON's pipe-laying activities (Dkt. No. 78 ¶ 4),
though the parties disagree as to whether this crew was
ordered by the charterer, Oceanografia, or by CarVal on
behalf of the ship owner, CVI (Dkt. No. 69 at
3-4).The current dispute relates to the failure
to complete payment to Cal Dive for its pipe-laying services,
leaving a balance due to Cal Dive of $1, 623, 459.92. (Dkt.
No. 78 ¶ 7; Dkt. No. 81 ¶ 35.)
CarVal's motion to dismiss and the parties'
cross-motions for summary judgment are currently pending
before the Court.
Car Val's Motion to Dismiss
Dive seeks to enforce a maritime lien in rem against
the SAMPSON under Rule C of the Supplemental Rules for
Certain Admiralty and Maritime Claims, and in
personam against CarVal under Rule B. (Dkt. No. 1 at 2.)
CarVal has moved to dismiss the complaint against it for
failure to state a claim. (Dkt. No. 30.)
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
allege “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
considering a motion to dismiss, courts must accept as true
all “factual allegations contained in the complaint,
” Twombly, 550 U.S. at 572, and must draw
“all inferences in the light most favorable to the
non-moving party, ” In re NYSE Specialists Sec.
Litig., 503 F.3d 89, 95 (2d Cir. 2007) (Sotomayor, J.).
Complaint alleges that Cal Dive provided personnel to the
SAMPSON to assist with “pipe laying and related
activities.” (Dkt. No. 1 at 4.) It further alleges that
the total amount to be paid for Cal Dive's services was
$3, 574, 305.92 (id. at 5), and that Cal Dive is
still owed $1, 623, 459.92 (id. at 6). The Complaint
claims that CarVal is liable both (1) through an in
rem action against the SAMPSON; and (2) directly, through
an in personam action.
maritime] lien arises to secure creditors who provide
‘necessaries'-‘supplies, repairs and
equipment . . . ordered on the credit of the ship and which
are generally beneficial to the ship.'” Marine
Oil Trading Ltd. v. Motor Tanker PAROS, 287 F.Supp.2d
638, 640-41 (E.D. Va. 2003) (quoting William Tetley,
Maritime Liens and Claims 551 (2d ed. 1998));
see also Clubb Oil Tools, Inc. v. M/V George
Vergottis, 460 F.Supp. 835, 840 (S.D. Tex. 1978)
(broadly interpreting “necessaries” to include
labor provided for the ship). “[U]nder 46 U.S.C. §
31342, any entity that supplies a vessel with
‘necessaries, ' . . . ‘on the order of the
owner or a person authorized by the owner' has a maritime
lien on the vessel and is entitled to bring a civil action
in rem to enforce that lien.” UPT Pool
Ltd. v. Dynamic Oil Trading (Singapore) PTE. Ltd., No.
14 Civ. 9262, 2015 WL 4005527, at *4 (S.D.N.Y. July 1, 2015),
aff'd sub nom. Hapag-Lloyd Aktiengesellschaft v. U.S.
Oil Trading LLC, 814 F.3d 146 (2d Cir. 2016).
as true all “factual allegations contained in the
complaint, ” Twombly, 550 U.S. at 572, the
Court concludes that the Complaint sufficiently alleges the
existence of a proper maritime lien against the SAMPSON by
alleging that Plaintiffs provided “necessaries”
for the benefit of the ship (Dkt. No. 1 at 4), for which they
were not reimbursed.
“[w]hen a maritime lien attaches, the plaintiff may
pursue an in rem action against the vessel involved.”
Dowell Div. of the Dow Chem. Co. v. Franconia Sea
Transp., Ltd., 504 F.Supp. 579, 581 (S.D.N.Y. 1980),
aff'd, 659 F.2d 1058 (2d Cir. 1981). Besides an
in rem action against the vessel, “[t]he
plaintiff also has the option of bringing an in personam
action against any party that is directly liable in contract,
tort, or some other substantive law.” Id.
However, if there is no “separate basis of substantive
liability, ” the in personam liability does
not attach “merely because a maritime lien has come
into existence.” Id.; see also Notes
of Advisory Committee on Rules, Rule C Supplemental Rules for
Admiralty and Maritime Claims of the Federal Rule of Civil
Procedure (noting that “no action in personam
may be brought when the substantive law imposes no personal
argues that the Complaint fails to state a plausible claim
for relief against it under either an in rem or
in personam theory of liability. The Court addresses
each in turn.
CarVal argues that it “is not the owner of the SAMPSON
and has not made an appearance to claim the SAMPSON, thus
there is no possibility for Carval to be responsible for any
potential in rem liability of the vessel.”
(Dkt. No. 30-1 at 5.) The Court agrees. A maritime lien
“gives the creditor a special property in the ship,
which subsists from the moment the debt arises, and it gives
him a right to have the ship sold that his debt may be paid
out of the proceeds of the sale. It is a right in the vessel,
a jus in re.” Itel Containers Int'l Corp. v.
Atlanttrafik Exp. Serv. Ltd., 982 F.2d 765, 768 (2d Cir.
1992) (quoting The Poznan, 9 F.2d 838, 842 (2d Cir.
1925) (internal quotation mark omitted)). As such, even
assuming the existence of a valid maritime lien, the in
rem action that arises from that lien is against the
SAMPSON and does not state a claim against CarVal.
See 2 C.J.S. Admiralty § 90 (“An action
in rem in admiralty is a proceeding against a specific thing
or res rather than against an individual, and in this form of
proceeding, the owner of the property constituting the
subject of the proceeding is not recognized until appearing,
entering a claim, and defending.”); Dowell
Div., 504 F.Supp. at 581 (S.D.N.Y. 1980) (“In the
absence of a separate basis of substantive liability . . .
the shipowner cannot be held personally liable to the
plaintiff merely because a maritime lien has come into
with respect to the in personam claims, CarVal
argues that the Ship Management Agreement discussed in the
Complaint “is a contract between CVI and [Cal Dive],
” and does not implicate or bind CarVal. (Dkt. No. 30-1
at 5-6.) As such, “[t]he face of the contract and the
allegations of the complaint establish that [CarVal] is not a
party to the contract, ” and, therefore, that CarVal
“can have no liability under the contract.”
(Id. at 6.)
part, Cal Dive argues that CarVal misses the point, as its
“claims are not based upon the Ship Management
Agreement.” (Dkt. No. 34 at 3.) Instead, its claims
against CarVal are “based upon the supply and related
expenses of ‘the pipe laying crew.'”
(Id. at 4.) The Complaint alleges that
“defendants [including CarVal] requested that [Cal
Dive] supply the above deck crew.” (Dkt. No. 1 at 4.)
Further, the Complaint alleges that, for its pipe laying
services, Cal Dive “agreed that it could be paid from
defendants' trust” (id. at ...