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ING Bank N.V. v. Finland

United States District Court, E.D. Louisiana

April 26, 2019

ING BANK N.V.
v.
BULK FINLAND M/V, NO. 9691577

         SECTION: “B”

          ORDER AND REASONS

         Before 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 GRANTED.

         IT IS FURTHER ORDERED that the motion to lift stay (Rec. Doc. 50) is DISMISSED.

         FACTS AND PROCEDURAL HISTORY

         This 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.

         On 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.

         On 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.

         On 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, 47.

         Recently, 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.[1]

         LAW AND ANALYSIS

         A. Summary Judgment Standard

         Under 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).

         The 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).

         B. Bomin Does Not Have a Maritime Lien Against ...


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