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Cal Dive Offshore Contractors, Inc. v. M/V Sampson

United States District Court, S.D. New York

July 17, 2017

CAL DIVE OFFSHORE CONTRACTORS, INC., et al., Plaintiffs,
v.
M/V SAMPSON, et al., Defendants.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW

          J. PAUL OETKEN UNITED STATES DISTRICT JUDGE

         Plaintiffs 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.) On March 6, 2017, the Court decided the parties' motions for summary judgment, denying Plaintiffs' motion for summary judgment and granting in part and denying in part Defendants' motion for summary judgment. See Cal Dive Offshore Contractors, Inc. v. M/V SAMPSON, No. 15 Civ. 2788, 2017 WL 1157125 (S.D.N.Y. Mar. 27, 2017). On July 12, 2017, the Court held a bench trial on the remaining issues and now issues its findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

         I. Findings of Fact

         CVI is the owner of the SAMPSON, a Panamanian flagged motor vessel capable of laying pipe for the oil industry. In August 2012, Oceanografia, S.A. de C.V. ("OSA") entered into a Bid Cooperation Agreement with Cal Dive to secure pipelaying contracts in the Gulf of Mexico from PEMEX Exploration y Production ("Pemex"). Defendant CarVal was an investment manager on behalf of C VI and acted as an agent of C VI at all relevant times.

         In furtherance of one of the jointly bid contracts, OS A chartered the SAMPSON from CVI pursuant to a charter party dated November 16, 2012, and amended on December 19, 2012. (Def's Ex. A; Def's Ex. B.) OSA was required to use Cal Dive for vessel management because of a Pemex requirement that only one company manage both the marine and pipelay operations onboard the SAMPSON. Accordingly, Cal Dive managed both the marine ("below-deck") and construction/pipelaying ("above-deck") aspects of the SAMPSON'S operations. The charter party demarcated the responsibilities between CVI and OSA with regard to the SAMPSON'S operations. CVI was responsible for procuring and paying for the marine/below-deck crew. (Def's Ex. A § 7.1.) OSA was responsible for the pipelaying/above-deck operations and for any additional personnel required. (Id. §§ 6.1, 8.)

         Accordingly, CVI entered into a Ship Management Agreement with Cal Dive on January 15, 2013, for the provision of the below-deck crew. (Def's Ex. C.) The Ship Management Agreement specifically identified the crew members, by position, that were included within the scope of the agreement. Consistent with the division of responsibilities outlined in the charter party, the Ship Management Agreement did not cover the provision of the above-deck/pipelaying crew that is the subject of this lawsuit.

         Cal Dive developed and submitted a proposal to OSA for Cal Dive to crew and support the SAMPSON. (Def's Ex. Q at CVI 540.) The proposal included a list of personnel to be provided to OSA for the above-deck/pipelaying operations. Ultimately, Cal Dive and OSA agreed on a subset of the proposed pipelaying personnel that Cal Dive would provide (see Def's Ex. E at Cal-Dive 0041), and OSA instructed the SAMPSON to proceed to the field with the approved personnel (id. at Cal-Dive 0039). Cal Dive invoiced CVI for the marine crew and invoiced OSA for the pipelaying personnel. But while CVI paid Cal Dive all amounts due for the marine crew, OSA failed to fully pay Cal Dive for the pipelaying personnel, leaving a balance due to Cal Dive of $1, 623, 459.92. OSA filed for bankruptcy protection, prompting Cal Dive to bring the present action asserting in rem claims against the SAMPSON and inpersonam claims against CVI and CarVal.

         The charter party between CVI and OSA contained a no-lien clause that prohibited OSA from incurring a lien against the M/V SAMPSON. (Def.'s Ex. A § 17.2.) CVI provided Cal Dive with a draft of the charter party, including the no-lien clause, for review prior to the execution of the charter party by CVI and OSA. (Def.'s Ex. Z.) Once executed, the charter party, including the no-lien clause was again provided to Cal Dive for review. (Def.'s Ex. X.) After execution, a representative at Cal Dive quoted sections 5.2 and 8.9 of the charter party[1] in e-mail communications with OSA. (Def.'s Ex. CC.)

         At trial, Brett Anderson, Director of Investment Operations for CarVal, credibly testified that Cal Dive received copies of the charter party because, as ship manager, Cal Dive was responsible for running the day-to-day operations of the vessel. As such, it was necessary for Cal Dive to understand the terms of the charter party. Dennis Weirens, in-house counsel for CarVal, also credibly testified that Cal Dive would need to understand certain provisions in the charter party, including the insurance provisions, in order to carry out its duties as ship manager. Indeed, both Mr. Anderson and Mr. Weirens testified that if a third-party vendor were to supply necessaries or goods to the vessel, Cal Dive itself was responsible for communicating that there was a no-lien provision in the charter party to that vendor.

         Considering this testimony-and the evidence that Cal Dive received copies of the charter party both before and after its execution, and explicitly relied on particular provisions of the charter party in e-mail communications with OSA-the Court finds by a preponderance of evidence that representatives at Cal Dive had actual knowledge of the no-lien provision in the charter party.[2]

         II. Conclusions of Law

         This Court dismissed Cal Dive's inpersonam claims against CVI on summary judgment. Cal Dive, 2017 WL 1157125 at *7-10. The discussion of the in personam claims in the Court's summary judgment opinion, however, applies to both CVI and CarVal since CarVal acted at all pertinent times on behalf of CVI, not itself. (See Dkt. No. 100 ¶ 8 (averring in Plaintiffs' Proposed Finding of Fact that "CarVal acted for CVI in all respects in dealing with Cal Dive").) See also Restatement (Second) of Agency §§ 320, 328.

         This Court has already held that the Ship Management Agreement between Cal Dive and CVI-for the provision of the below-deck crew-governed the relationship between those parties. Cal Dive, 2017 WL 1157125, at *7-10. It is clear that this analysis applies to CarVal as well. The Ship Management Agreement can be modified only by a writing signed by or on behalf of the parties. Id. It cannot be modified orally. Id. There is no evidence that it was amended in writing to cover the provision of the above-deck crew and there is no other contract between the parties that covers the above-deck crew. Nor is there an enforceable guarantee from CVI or CarVal to pay for the above-deck crew if OSA failed to pay for them. Id. This analysis applies with equal force to CVI and CarVal.

         Accordingly, the inpersonam claims ...


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