Trans-Tec Int'l S.R.L. v. M/V Virtuous Striker
Trans-Tec Int'l S.R.L. v. M/V Virtuous Striker
Opinion of the Court
Pending is Plaintiff Trans-Tec International S.R.L. d/b/a Trans-Tec's Motion for Summary Judgment (Document No. 34). After carefully considering the motion, response, and applicable law, the Court concludes for the following reasons that the motion should be granted.
I. Background
Plaintiff Trans-Tec International S.R.L. d/b/a Trans-Tec ("Trans-Tec") sues in rem to enforce against the M/V VIRTUOUS STRIKER a maritime lien for the supply of necessaries under the Federal Maritime Lien Act,
Trans-Tec, a Costa Rican corporation, "is part of a network of affiliated and related companies that provide fuel to ocean-going vessels throughout the world, doing business under the trade name 'World Fuel Services.' "
In October 2014, Lars Olsen, a customer broker for WFS Denmark acting on Trans-Tec's authorization, negotiated a sales contract with Copenship Bulkers A/S ("Copenship"), a Danish charter company, to supply fuel bunkers to the Vessel to be *341delivered at the Port of Offshore Trinidad.
ALL SALES ARE ON THE CREDIT OF THE VSL. BUYER IS PRESUMED TO HAVE AUTHORITY TO BIND THE VSL WITH A MARITIME LIEN. DISCLAIMER STAMPS PLACED BY VSL ON THE BUNKER RECEIPT WILL HAVE NO EFFECT AND DO NOT WAIVE THE SELLER'S LIEN.7
The Bunker Confirmation also incorporates by reference Trans-Tec's General Terms and Conditions (the "General Terms"):
THIS CONFIRMATION IS GOVERNED BY AND INCORPORATES BY REFERENCE SELLER'S GENERAL TERMS AND CONDITIONS IN EFFECT AS OF THE DATE THAT THIS CONFIRMATION IS ISSUED. THESE INCORPORATED AND REFERENCED TERMS CAN BE FOUND AT WWW.WFSCORP.COM. ALTERNATIVELY, YOU MAY INFORM US IF YOU REQUIRE A COPY AND SAME WILL BE PROVIDED TO YOU.8
The General Terms, which are accessible through two clicks on the WFS website,
1. INCORPORATION AND MERGER: Each sale of Products shall be confirmed by e-mail, fax or other writing from the Seller to the Buyer ("Confirmation"). The Confirmation shall incorporate the General Terms by reference so that the General Terms thereby supplement and are made part of the particular terms set forth in the Confirmation. The Confirmation and the General Terms shall together constitute the complete and exclusive agreement governing the transaction in question (the "Transaction")....
* * *
8. CREDIT AND SECURITY:
(a) Products supplied in each Transaction are sold and effected on the credit of the Receiving Vessel, as well as on the promise of the Buyer to pay, and it is agreed and the Buyer warrants that the Seller will have and may assert a maritime lien against the Receiving Vessel for the amount due for the Products delivered....
(d) All sales made under these terms and conditions are made to the registered owner of the vessel, in addition to any other parties that may be listed as Buyer in the confirmation. Any bunkers ordered by an agent, management company, charterer, broker or any other party are ordered on behalf of the registered owner and the registered owner is *342liable as a principal for payment of the bunker invoice.
* * *
17. LAW AND JURISDICTION: The General Terms and each Transaction shall be governed by the General Maritime Law of the United States and, in the event that the General Maritime Law of the United States is silent on the disputed issue, the law of the State of Florida, without reference to any conflict of laws rules which may result in the application of the laws of another jurisdiction. The General Maritime Law of the United States shall apply with respect to the existence of a maritime lien, regardless of the country in which Seller takes legal action. Any disputes concerning quality or quantity shall only be resolved in a court of competent jurisdiction in Florida. Disputes over payment and collection may be resolved, at Seller's option, in the Florida courts or in the courts of any jurisdiction where either the Receiving Vessel or an asset of the Buyer may be found. Each of the parties hereby irrevocably submits to the jurisdiction of any such court, and irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum or its foreign equivalent to the maintenance of any action in any such court. Seller shall be entitled to assert its rights of lien or attachment or other rights, whether in law, in equity or otherwise, in any country where it finds the vessel. BUYER AND SELLER WAIVE ANY RIGHT EITHER OF THEM MIGHT HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING FROM OR RELATED TO THE GENERAL TERMS OR ANY TRANSACTION .10
There is no evidence that Copenship objected to or inquired about the General Terms.
On October 7, 2014, Aegean Bunkering (Trinidad) Ltd., an independent subcontractor for Trans-Tec, delivered 450.015 metric tons of the specified fuel to the Vessel at the Port of Offshore Trinidad.
The Court issued an arrest warrant, and the Vessel was arrested by the U.S. Marshals on February 23, 2016.
II. Legal Standard
Rule 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). Once the *343movant carries this burden, the burden shifts to the nonmovant to show that summary judgment should not be granted. Morris v. Covan World Wide Moving, Inc.,
In considering a motion for summary judgment, the district court must view the evidence "through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc.,
III. Analysis
The central dispute is whether under Danish law Clause 17 of the General Terms, "Law and Jurisdiction," was properly incorporated into the agreement between Trans-Tec and Copenship such that Trans-Tec has the right to enforce a maritime lien against the Vessel for the supply of the bunkers. The Fifth Circuit recently decided an almost identical case involving Singaporean law. See World Fuel Services Singapore Pte, Ltd. v. Bulk Juliana M/V,
In Bulk Juliana, World Fuel Services Singapore Pte, Ltd. ("WFS Singapore"), a Singaporean fuel supplier, sought to recover a debt for the supply of fuel oil bunkers that were delivered to a Panamanian-flagged vessel, the M/V BULK JULIANA, which was beneficially owned and operated by United States companies and chartered by a German company.
The Fifth Circuit's controlling decision in Bulk Juliana discusses two important issues that are also present in this case: (1) whether the General Terms, including the U.S. choice-of-law provision, were validly incorporated in the contract and were enforceable, and (2) whether the charterer could bind the vessel in rem even though the vessel's owner was not a party to the contract for purchase of the fuel.
Trans-Tec argues and Chartley does not dispute that Danish law applies to contract formation and whether the General Terms were validly incorporated in the contract.
Laudrup acknowledged that "a Danish court may find the terms incorporated by reference to be invalid if they are found to be especially burdensome to the other party," but explained that there was no basis in this case to set aside Clause 17 of the *345General Terms as unreasonably burdensome.
Chartley's Danish law expert, Jens V. Mathiasen ("Mathiasen"), largely agrees with Laudrup's explanation of Danish law, stating that "Trans-Tec's attempt to incorporate its General Terms in the Bunker Sale Contract between Trans-Tec and Copenship Bulkers A/S seems to be in accordance with the above-mentioned conditions."
[h]owever, it should be stressed and strongly emphasized that under Danish law the terms of the Bunker Sale Contract only apply to and bind the contracting parties, i.e. Trans-Tec and Copenship Bunkers A/S.
There is nothing in the available documentation to suggest that the owner of the Vessel (Chartley World Incorporated) is a party to the Bunker Sale Contract (e.g. by way of dealings by the master of the Vessel) or in any other way is bound by the provisions of the Bunker Sales Contract, including the General Terms.27
Mathiasen's latter opinions go beyond the issue of whether the contracting parties themselves validly incorporated into the contract Clause 17 with its choice-of-law provision and are therefore beyond the scope of the Court's inquiry into Denmark's law.
In a similar case involving questions of Swedish law, a claimant's expert attacked the plaintiff's expert's testimony on incorporation by reference by "focusing on the opinion that [the vessel's owner] had not entered an agreement with Plaintiff and on the nonexistence of maritime liens for bunkers under the law of Sweden." Topoil AB v. M/V ORUC REIS, Civ. No. 4:15-cv-460, Document No. 34 at 16,
[p]ursuant to the Fifth Circuit's analysis [in Bulk Juliana ], these issues are beyond the scope of consultation of the law of Sweden. The Fifth Circuit was concerned with whether choice-of-law provisions are enforceable under the law of Sweden and whether the method of incorporation met its legal standards. On *346those points, Hoglund's testimony does not raise a fact issue.
Because the uncontroverted summary judgment evidence is that under Danish law, the General Terms, including the United States choice of law provision, were validly incorporated into the contract, United States law controls the remaining issues. See Bulk Juliana,
Under United States law, charterers are presumed to have authority to bind the Vessel by the ordering of necessaries. Triton Marine,
IV. Order
For the foregoing reason, it is
ORDERED that Plaintiff Trans-Tec International S.R.L. d/b/a Trans-Tec's Motion for Summary Judgment (Document No. 34) is GRANTED. The parties shall submit a proposed final judgment, agreed as to form, within twenty-one (21) days after the date of this Order. If the parties cannot agree on the form of judgment, each party will submit its own proposed judgment along with a brief explanation why its proposed judgment should be entered by the Court.
The Clerk will enter this Order, providing a correct copy to all counsel of record.
Document No. 1 (Plf.'s Verified Orig. Compl.).
Document No. 34, ex. A ¶ 6.
See
Document Nos. 1, 2.
Document Nos. 3, 4, 9.
Document Nos. 12, 14.
Document Nos. 21, 37.
Document No. 37 at 4 of 8.
Document No. 34, ex. C ¶ 14.
Document No. 37, ex. A ¶ 3.3; see also
Reference
- Full Case Name
- TRANS-TEC INTERNATIONAL S.R.L. d/b/a Trans-Tec v. M/V VIRTUOUS STRIKER, her engines, tackle, appurtenances, etc. in rem
- Status
- Published