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Norton Lilly International Inc. v. Kinatsi

United States District Court, E.D. Louisiana

February 6, 2017

M/V KINATSI, her engines, tackle, apparel, etc. in rem, and KINATSI MARITIME SA, in personam[1]

         SECTION "N"


          KURT D. ENGELHARDT United States District Judge.

         Presently before the Court is the "Motion for Counter-Security and for a Stay of Proceedings" (Rec. Doc. 15) filed by Defendant and Plaintiff-in-Counterclaim Non Stop Maritime, Inc. (“Non Stop”), owner pro hac vice of the M/V KINATSI. For the reasons stated herein, IT IS ORDERED that motion is GRANTED IN PART and DENIED IN PART. Specifically, the motion is granted to the extent that Plaintiff and Defendant-in-Counterclaim Norton Lilly International, Inc. (“Norton Lilly”) is ordered to post counter-security in the amount of amount of $45, 915.63 on or before Tuesday, February 21, 2017. IT IS FURTHER ORDERED that until such time that the required counter-security is posted by Norton Lilly, this matter is and shall be STAYED and ADMINISTRATIVELY CLOSED. To the extent that Non Stop seeks counter-security in excess of $45, 915.63, the motion is denied.


         Norton Lilly is engaged in the business of providing agency services in the Port of New Orleans. On or about April 18, 2016, it was retained as Non Stop's port agent for the M/V KINATSI's upcoming call at United Bulk Terminals' Davant, Louisiana facility (“UBT”) for loading of 16, 500 - 17, 400 metric tons of petcoke cargo. On Tuesday, April 26, 2016, the M/V KINATSI arrived at Southwest Pass and proceeded to the ship berth at the UBT facility. Norton Lilly informed the ship's master that UBT planned to commence loading of the vessel on the evening of Wednesday, April 27, 2016. The ship's master advised the stevedoring foreman, UBT, and Norton Lilly that if loading were commenced in Hold No. 3, rather than Hold No. 4, the ship could start necessary deballasting, during the evening of April 27th, while waiting to commence loading. The foreman indicated that he would discuss the ship master's requested load sequence with UBT. Ultimately, however, the shippers and/or UBT rejected the master's recommendation and began loading Hold No. 4.

         On Thursday, April 28, 2016, UBT notified Norton Lilly and the vessel that additional dockage charges were being assessed because loading had to be stopped, as of 12:45 p.m that day, to allow the vessel to pump out ballast. UBT claimed dock detention charges of $5, 000 per hour, continuing until loading resumed, and subsequently presented an invoice to Norton Lilly in the amount of $80, 850, representing 16.17 hours of delay. The M/V KINATSI's master responded by issuing a Letter of Protest to Norton Lilly and UBT, on Friday, April 29, 2016, denying liability for any delays and/or extra costs claimed by UBT. Specifically, Non Stop contends that loading operations were unnecessarily delayed, to allow time for additional deballasting, because UBT had not commenced loading the shop's holds in the order recommended by the ship's master.

         Although loading was completed on Friday, April 29th, Norton Lilly refused to make arrangements to clear the vessel for sailing, and order the necessary pilots, because Non Stop had not paid the additional $80, 850 claimed by UBT.[2] Norton Lilly also removed (or consented to the removal of) the M/V KINATSI's certificates and papers, and turned them over to UBT, thereby detaining the vessel in port after it was loaded and otherwise was ready to sail.[3]

         On May 3, 2016, following its remittance, as port agent for the M/V KINATSI, of the $80, 850 demanded by UBT, Norton Lilly commenced the instant action by filing a complaint against the vessel, in rem, asserting a maritime lien claim in the amount of $87, 582.50 for alleged “necessaries” provided to the vessel by Norton Lilly from April 25, 2016 to May 3, 2016.[4] O n M a y 4, upon motion by Norton Lilly and order of this Court, the M/V KINATSI was arrested by the United States Marshal's Service. Later that day, however, security in the amount of $110, 000 was provided to Norton Lilly by Non Stop to obtain immediate release of the vessel.[5]

         On June 7, 2016, Non Stop filed a Claim/Statement of Interest relative to the M/V KINATSI in accordance with Supplemental Admiralty Rule E(8).[6] On June 14, 2016, Non Stop filed an answer to the complaint and asserted a counterclaim against Norton Lilly, including a demand for counter-security. By correspondence dated August 11, 2016, Non Stop provided an itemized statement of damages to Norton Lilly, and requested counter-security in the amount of $78, 081.25, corresponding to 125% of Non Stop's $64, 465.50 counterclaim.[7] Norton Lilly responded by filing an answer (to the counterclaim) denying Non Stop's entitlement to counter-security.[8]

         In its counterclaim, Non Stop contends that Norton Lilly breached its duties as a faithful port agent by not requesting that UBT and/or shippers carry out the loading sequence recommended by the Master of the M/V KINATSI. In addition, Non Stop contends that Norton Lilly failed to protect the interests of the vessel by ensuring that any delays or additional charges incurred as a result of commencing loading Hold No. 4, rather than Hold No. 3, would be for the account of UBT and/or shippers, with no recourse against the vessel. Finally, Non Stop avers that Norton Lilly, after retrieving the ship's papers from UBT, ignored Non Stop's amicable demand to immediately return those documents, and instead continued to hold them at its office to prevent the vessel from sailing. Such conduct, Non Stop contends, resulted in additional delays and unlawful detention of the M/V KINATSI by self-help carried out without Court approval or authorization, constituting an unlawful and wrongful exercise of dominion, ownership, or control over the property of the vessel.

         Because of Norton Lilly's continued refusal to clear the vessel for sailing, Non Stop alleges, it was forced retain another port agent to clear the vessel and mitigate its losses and damages. Non Stop claims that Norton Lilly is justly indebted to for these additional port agent charges and expenses, and further that Non Stop is entitled to a return of any agency fees and/or advances paid to Norton Lilly for services not rendered to the vessel, unearned disbursements, fees, or charges, and any sums that were not disbursed. With the instant motion, Non Stop asks that the Court: (1) order Norton Lilly to provide Non Stop with counter-security in the amount of $78, 081.25 for the damages demanded in Non Stop's counterclaim; and (2) order a stay of proceedings until Norton Lilly provides counter-security to Non Stop.

         Law and Analysis

         In support of its motion, Non Stop relies on Supplemental ...

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