Mon 4 Jun 2018 09:57

OW Bunker ruling threatens uncertainty for 'hundreds' of cases: ING


ING files petition for rehearing, arguing that Florida law has been applied at the expense of maritime law.


Image: Pixabay
ING Bank has filed a petition for rehearing following the recent decision by the United States Court of Appeals to uphold a judgment made by a court in the Northern District of Florida, which ruled that physical supplier Martin Energy Services LLC should receive $286,200 plus interest for the supply of 300 metric tonnes of marine fuel to the vessel Bravante VIII in a deal involving the now-defunct business OW Bunker.

As previously reported, ING - as the lead participant in a syndicate that provided working capital for OW Bunker entities prior to their collapse - had appealed the district court's initial judgment that OW Bunker should receive $3,900, which was effectively the sales margin that the firm would have recorded as a back-to-back trader in the $290,100 direct deal it had with the buyer.

ING had asserted that the court had erred by awarding Martin the aforementioned payout for supplying the fuel, arguing that the bunkering certificate did not give rise to a contract between Martin and buyer Boldini; that there had been no direct contact between both companies; and that the vessel that received the fuel had already left the jurisdiction of the court, so it could not adjudicate in rem lien rights against the Bravante VIII.

And in its petition for rehearing, ING argued that the decision to allow the supplier to recover in quantum meruit - i.e. based on the reasonable value of services provided - meant that Florida law was being applied at the expense of "the uniformity of admiralty law".

ING asked the court if a rehearing should be granted in order to "prevent this decision from undermining the principle of uniformity in federal maritime law".

The financial services firm went on to suggest that "this conflict threatens uncertainty around hundreds of litigations arising from the OW Bunker collapse in November 2014 that have proceeded worldwide".

Barcliff, LLC v. M/V Deep Blue

ING also referred to the OW Bunker-related case Barcliff, LLC v. M/V Deep Blue, where a court decreed that Radcliff did not possess a maritime lien for the bunker stem it delivered to the Deep Blue in November 2014, and that ING did have a maritime lien by virtue of OW Bunkers UK's assignment of that right in the Security Agreement.

"It is unfortunate that Radcliff supplied the fuel and was not paid. But by entering into a contractual relationship exclusively with O.W. USA, Radcliff became O.W. USA's creditor. It is assuredly not the only one. O.W. USA's other creditors are doubtless vying for repayment in bankruptcy court. Rather than pursue its claim there, Radcliff elected to go after Technip for the full amount by asserting a lien on the Deep Blue, even though Technip purchased the fuel from O.W. UK and was contractually obligated to pay O.W. UK for it. It was Radcliff's right to gamble, but its choice should elicit no sympathy," ING said.

ING noted that, just like Radcliff in the Barcliff case, Martin "effectively ignored its contractual claim against OWBUSA, and gambled on obtaining the full amount of its claim by asserting a quantum meruit claim against the vessel owner." But unlike Barcliff, Martin won its case.

Triple liability

In its petition for rehearing, ING suggests the decision to grant Martin $286,200 had created a scenario where a vessel and its owner could be subjected to triple liability - once in rem, for failure to pay its counterparty, subjecting the vessel to a statutory maritime lien claim, and twice in personam - once to the physical supplier under principles of Florida law where that law applies, and once to ING (as assignee of the applicable OWB entity) under English contract law for the invoice amount.

ING is requesting that the court grants a rehearing; reverses the district court's judgment; finds that Martin has no legal claim to the funds; and orders disbursement of the funds to ING.


The Buffalo 404 barge, owned by Buffalo Marine Service Inc., performing a bunker delivery. TFG Marine installs first ISO-certified mass flow meter on US Gulf bunker barge  

Installation marks expansion of company's digitalisation programme across global fleet.

Sogestran's fuel supply vessel, the Anatife, at the port of Belle-Île-en-Mer. Sogestran's HVO-powered tanker achieves 78% CO2 reduction on French island fuel runs  

Small tanker Anatife saves fuel while supplying Belle-Île and Île d'Yeu.

Crowley 1,400 TEU LNG-powered containership, Tiscapa. Crowley deploys LNG-powered boxship Tiscapa for Caribbean and Central American routes  

Vessel is the third in company's Avance Class fleet to enter service.

The inland LNG bunker vessel LNG London. LNG London completes 1,000 bunkering operations in Rotterdam and Antwerp  

Delivery vessel reaches milestone after five years of operations across ARA hub.

The M.V. COSCO Shipping Yangpu, China's first methanol dual-fuel containership. COSCO vessel completes maiden green methanol bunkering at Yangpu  

China's first methanol dual-fuel containership refuels with green methanol derived from urban waste.

Carsten Ladekjær, CEO of Glander International Bunkering. Glander International Bunkering reports stable performance amid regulatory changes  

Bunker trader achieves $3bn turnover and $22m pre-tax earnings for fiscal 2024-25.

Map of the Mediterranean Sea ULSFO demand surges in Med as ECA compliance drives fuel shift  

KPI OceanConnect reports accelerating ULSFO uptake across the region.

The Zale performing a bunker delivery. Monjasa reports Singapore as top bunker supply port with over 1 MMT delivered  

Supplier says world's largest bunkering hub became its biggest supply location in 2024.

Steel cutting ceremony for the 7,999 DWT chemical bunker tanker Lucia Cosulich at Taizhou Maple Leaf Shipbuilding Co., Ltd. in China. Fratelli Cosulich begins construction of second methanol-ready bunker tanker  

Italian firm starts steel cutting for 7,999 DWT chemical bunker vessel.

Petrobras logo. Petrobras introduces volume-based price discounts at Santos  

Brazilian oil company offers progressive discounts for bunker deliveries exceeding 1,500 tonnes.


↑  Back to Top