United States District Court, E.D. Louisiana
ING BANK N.V.
BULK FINLAND M/V, NO. 9691577
ORDER AND REASONS
the Court are Plaintiff ING Bank N.V.'s (“ING
Bank”) Motion for Summary Judgment (Rec. Doc. 29),
Defendant DryLog Bulkcarriers Limited's
(“DryLog”) Motion for Summary Judgment (Rec. Doc.
30), Consol Plaintiff Bomin Bunker Oil Corp.'s
(“Bomin Bunker”) Response in Opposition (Rec.
Doc. 33), Bomin Bunker's Response in Opposition (Rec.
Doc. 42), ING Bank's Reply (Rec. Doc. 45), ING Bank's
and DryLog's Joint Supplemental Memorandum in Support of
Renewed Motions for Summary Judgment (Rec. Doc. 56), Bomin
Bunker's Supplemental Memorandum in Response in
Opposition(Rec. Doc. 57). For the reasons discussed below,
IT IS ORDERED that the motions for summary
judgment (Rec. Doc. Nos. 29, 30) are
IS FURTHER ORDERED that the motion to lift stay
(Rec. Doc. 50) is DISMISSED.
AND PROCEDURAL HISTORY
consolidated matter is made up of two cases. The parties are
ING Bank as lead case plaintiff; Bomin as member case
plaintiff; and DryLog as long-term charterer of and claimant
for defendant in rem, BULK FINLAND M/V.
October 16, 2014, BULK FINLAND was supplied with marine
fuel/bunkers in Balboa, Panama. See Rec.Doc. 56 at
2. Two weeks before the fuel was actually delivered to the
vessel, three separate confirmations/contracts were issued.
See id. Specifcally, the contractual relationships
leading up to the fueling of the vessel were as follow:
Tatsuo Consulting Limited (“Tatsuo”), who seems
to possibly be the charterer of the vessel, ordered the fuel
bunkers from OW Malta; OW Malta then ordered the fuel it
agreed to supply to the vessel from O.W. Bunker USA, Inc.
(“OW USA”); OW USA then ordered the fuel that OW
Malta agreed to supply to the vessel from Bomin. See
id.; see also Rec. Doc. 29-1 at 5-11. After
Bomin physically delivered the fuel to the vessel, Bomin
issued its invoice to OW USA; OW USA issued its invoice to OW
Malta; and, OW Malta issued its invoice to Tatsuo.
See Rec.Doc. 56 at 3. Each of the contracts, while
separate, were all due on November 14, 2014. See id.
Tatsuo has not paid OW Malta or ING Bank. See id. OW
Malta and OW USA filed for bankruptcy before the due date of
the invoices. See id.
November 17, 2018, ING Bank filed a verified complaint
against BULK FINLAND in rem praying for the Rule C
arrest of the vessel. See Rec. Doc. 29-1 at 4. On
November 18, 2015, Bomin filed a verified complaint against
BULK FINLAND asserting a maritime lien claim and maritime
breach of contract claim. See id. On November 23,
2015, this Court consolidated the ING Bank Action with the
Bomin Action. See Rec. Doc. 8. On January 08, 2016,
DryLog filed separate answers to the verified complaints of
ING Bank and Bomin. See Rec. Doc. Nos. 17, 18.
April 24, 2017, ING Bank filed a motion for summary judgment.
See Rec. Doc. 29. On April 28, 2019, DryLog filed a
motion for summary judgment. See Rec. Doc. 30. On
May 2, 2017, Bomin filed a response to ING Bank. See
Rec. Doc. 33. On June 2, 2017, Bomin filed a response to
DryLog. See Rec. Doc. 42. On June 19, 2017, ING Bank
replied. See Rec. Doc. 45. Near the end of June
2017, this matter was stayed. See Rec. Doc. Nos. 46,
on March 8, 2019, the Court renewed ING Bank's Motion for
Summary Judgment and DryLog's Motion for Summary
Judgment. See Rec. Doc. 55. ING Bank and DryLog
filed a joint supplemental memorandum in support of their
renewed motions for summary judgment to dismiss the verified
complaint of Bomin. See Rec. Doc. 56. Bomin filed a
supplemental brief supporting its original response to the
motions for summary judgment. See Rec. Doc. 57. ING
Bank and Dry Log filed a joint reply memorandum. See
Rec. Doc. 62.
Summary Judgment Standard
Federal Rule of Civil Procedure 56, summary judgment is
appropriate when “the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986) (quoting Fed.R.Civ.P.
56(c)). See also TIG Ins. Co. v. Sedgwick James
of Wash., 276 F.3d 754, 759 (5th Cir. 2002). A genuine
issue of material fact exists if the evidence would allow a
reasonable jury to return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The court should view all facts and evidence in the
light most favorable to the non-moving party. United Fire
& Cas. Co. v. Hixson Bros. Inc., 453 F.3d 283, 285
(5th Cir. 2006). Mere conclusory allegations are insufficient
to defeat summary judgment. Eason v. Thaler, 73 F.3d
1322, 1325 (5th Cir. 1996).
movant must point to “portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,' which it
believes demonstrate the absence of a genuine issue of
material fact.” Celotex, 477 U.S. at 323. If and when
the movant carries this burden, the non-movant must then go
beyond the pleadings and present other evidence to establish
a genuine issue. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). However,
“where the non-movant bears the burden of proof at
trial, the movant may merely point to an absence of evidence,
thus shifting to the non-movant the burden of demonstrating
by competent summary judgment proof that there is an issue of
material fact warranting trial.” Lindsey v. Sears
Roebuck & Co., 16 F.3d 616, 618 (5th Cir. 1994).
“This court will not assume in the absence of any proof
that the nonmoving party could or would prove the necessary
facts, and will grant summary judgment in any case where
critical evidence is so weak or tenuous on an essential fact
that it could not support a judgment in favor of the
[non-movant].” McCarty v. Hillstone Rest.
Grp., 864 F.3d 354, 357 (5th Cir. 2017).
Bomin Does Not Have a Maritime Lien Against ...