United States District Court, N.D. New York
& CO., P.C. Counsel for Plaintiff
HOLLAND & KNIGHT Counsel for Defendant and Claimant
M. CHALOS, ESQ. BRITON P. SPARKMAN, ESQ. MELISSA D.
H. POWER, ESQ.
DECISION AND ORDER
T. SUDDABY, Chief United States District Judge.
before the Court, in this maritime action by Bomin Greece
S.A. (“Plaintiff”) against M/V Genco Success
(“Defendant” or the “Vessel”), is a
motion by Genco Success Ltd. (“Claimant” or
“Genco”) to vacate the Court's Order for the
Maritime Arrest of the Vessel. (Dkt. No. 19.) For the reasons
set forth below, Claimant's motion to vacate is granted.
the parties have (in their motion papers) demonstrated an
adequate understanding of the action's procedural
history, the facts giving rise to the action, and the
parties' arguments on the current motion, the Court will
not recite that information in this Decision and Order, which
is intended primarily for the review of the parties, but will
respectfully refer the reader to the Court's Decision and
Order of March 31, 2017. (Dkt. No. 32.)
GOVERNING LEGAL STANDARD
Admiralty Rule E(4)(f) provides that, "[w]henever
property is arrested or attached, any person claiming an
interest in it shall be entitled to a prompt hearing at which
the plaintiff shall be required to show why the arrest or
attachment should not be vacated or other relief granted
consistent with these rules." Fed.R.Civ.P. Adm. Supp. R.
E(4)(f). To avoid vacatur of arrest, it is the
plaintiff's burden to affirmatively demonstrate its
entitlement to a maritime lien. Bay Casino, LLC. v. M. V.
Royal Empress, 20 F.Supp.2d 440, 448 (E.D.N.Y. 1988);
Equatorial Marine Fuel Mgmt. Servs. Pte Ltd. v. MISC
Berhad, 591 F.3d 1208, 1210 (9th Cir. 2010).
Commercial Instruments and Maritime Lien Act
("CIMLA"), 46 U.S.C. § 31301 et seq.,
provides for a statutory maritime lien for the supply of
necessaries where the plaintiff has provided necessaries to a
vessel on the order of the owner or “a person
authorized by the owner.” 46 U.S.C. § 31341(a).
Among persons presumed to be “a person authorized by
the owner” are “the master, ” “a
person entrusted with the management of the vessel at the
port of supply, ” or “an officer or agent
appointed by . . . a charterer . . . .” 46 U.S.C.
§ 31341(a); see also Galehead, Inc. v. M/V
Anglia, 183 F.3d 1242, 1245 (11th Cir. 1999)
(“A charterer is authorized under the statute to bind a
vessel for necessaries.”); Trans-Tec Asia v. M/V
HARMONY CONTAINER, 518 F.3d 1120, 1127-28 (9th Cir.
2008) (“Charterers and their agents are presumed to
have authority to bind the vessel by the ordering of
necessaries.”); Ceres Marine Terminals, Inc. v. M/V
Harmen Oldendorff, 913 F.Supp. 919, 922 (D. Md. 1995)
(“A time charterers ordinarily holds sufficient legal
authority over the management of a chartered vessel to
subject the vessel to maritime liens.”).
a charterer is presumed to have authority to bind the vessel,
the lien does not vest absolutely as a matter of law."
Belcher Oil Co. v. M/V Gardenia, 766 F.2d 1508, 1512
(11th Cir. 1985). A maritime lien does not arise "when
necessaries are ordered by one without authority to bind the
vessel where the vessel owner can show that the supplier of
necessaries had actual knowledge of the existence of any lack
of authority relied upon as a defense." World Fuel
Serv. Trading, DMCC v. M/V HEBEI SHIJAZHUANG, 12
F.Supp.3d 792, 808 (E.D. Va. 2014); see also See also
Belcher Oil Co., 766 F.2d at 1512 ("If the person
who order the services is not authorized by the owner to
create liens and if the furnisher of the services has notice
of the lack of authority, it is entirely clear that no lien
will arise.") (citing Gilmore & Black, The Law
of Admiralty, 2d Ed. at 685); Gulf Oil Trading Co.
v. M/V CARIBE MAR, 757 F.2d 743');">757 F.2d 743, 749 (5th Cir. 1985)
(noting that the legislative history of CIMLA supports the
policy that a physical supplier does not have a lien
"when a physical supplier has actual knowledge of a
prohibition of lien clause" contained in a charter
party). In other words, the presumption that a charterer has
authority to bind a vessel to a maritime lien is
“rebutted” or “overcome” where a
defendant has shown that a supplier of necessaries has actual
knowledge of the charterer's lack of authority to bind a
vessel. Belcher Oil Co., 766 F.2d at 1509; Lake
Union Drydock Co. v. M/V POLAR VIKING, 446 F.Supp. 1286,
1291 (W.D. Wash. 1978).
the addition of a “no-lien stamp” or
“disclaimer stamp” affixed to a bunker delivery
note is insufficient to provide such notice. Am. Oil
Trading, Inc. v. M/V SAVA, 47 F.Supp.2d 348, 352
(E.D.N.Y. 1999); O.W. Bunker Malta Ltd. v. M/V
TROGIR, 602 F. App'x 673, 679 (9th Cir.
2015); Empire Scott Stevedoring, Inc. v. M/V STEVNS
PEARL, 98-CV-1818, 1998 U.S. Dist. LEXIS 14607, at *9
(E.D. La. Sept. 10, 1998); Gulf Oil Trading Co. v. M/V
FREEDOM, 84-CV-0425, 1985 U.S. Dist. LEXIS 23790, at *3,
7-8 (D. Ore. July 25, 1985). However, an “affirmative
communication” to the supplier may provide such notice.
Cal Dive Offshore Contractors, Inc. v. M/V Sampson,
15-CV-2788, 2017 WL 1157125, at *6 (S.D.N.Y. March 27, 2017);
O.W. Bunker Malta Ltd. v. M/V Trogir, 12-CV-5657,
2013 U.S. Dist. LEXIS 19026, at *7-8 (C.D. Cal. Jan. 29,
2013), aff'd, O.W. Bunker Malta Ltd. v. M/V
Trogir, 602 F. App'x 673 (9th Cir. 2015).
“supplier” does not include merely the contract
supplier but may include the physical supplier if the vessel
owner had no knowledge of any other fuel supplier involved in
the transaction. See Hampton Bermuda Ltd. v. M/V STAR
SIRANGER, 05-H-3074, 2008 A.M.C. 1352, at 1359 (S.D.
Tex. Aug. 18, 2008) (“[A]ctual notice must be given to
the supplier of the necessary, or to another entity in
the supply chain known to the vessel owner. . . . On the
facts presented to the Court at trial, the vessel provided
actual notice of the ‘no-lien clause' to Colonial
Oil, the physical supplier of the bunkers. Although Colonial
Oil served as an independent contractor to Hampton Bermuda,
it is undisputed that the vessel had no knowledgeof any other fuel supplier involved in the
transaction, including any Hampton entity.”)
(emphasis added) (citing Gulf Oil Trading, 757 F.2d
at 750-51). However, such a supplier is distinguishable from
a mere “intermediary” (used to deliver the
necessaries in question) who had no “effect on the
relationship” between the ...