This is a legacy page. Please click here to view the latest version.
Mon 4 Jun 2018, 09:57 GMT

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 credit: 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.


Titan Optimus alongside Peony Leader vessel. FuelEU pooling drives surge in bio-LNG demand, Titan analysis finds  

Clean fuel supplier's modelling shows pooling mechanism turning overcompliance into tradable value for LNG-fuelled ships.

Keith Johnstone, Lloyd’s Register. Ports told to prepare now for advanced nuclear power  

Joint paper sets out a readiness pathway for ports facing nuclear-powered vessels, floating reactors and small modular units

Terra Clove vessel. Eastern Pacific Shipping takes delivery of first ammonia dual-fuel VLAC  

Terra Clove powered by first Everllence B&W 6G60ME-C10.5-LGIA ammonia dual-fuel two-stroke engine.

BV grants type approval to WinGD. Bureau Veritas approves WinGD's variable compression ratio technology for dual-fuel engines  

Classification society grants type approval to engine technology enabling compression ratio adjustment across different marine fuels.

Joe Kramek, WSC. Dual-fuel fleet passes 500 ships as investment tops $200bn  

World Shipping Council data shows dual-fuel container ships and vehicle carriers growing fast, with IMO rules uncertain.

VPS Carbon Reduction seminar in Athens graphic. VPS to host Athens seminar on fuel efficiency and carbon reduction  

VPS's final European round table of 2026 will cover marine fuels, lubricants and decarbonisation in Athens.

Aurora Botnia vessel. Wasaline secures locally produced biogas supply from St1 Biokraft for Vaasa–Umeå ferry  

Agreement will supply 42 GWh of liquefied biogas annually, with deliveries due to start in January 2028.

Kypros Island delivery ceremony. Safe Bulkers takes delivery of first dual-fuel methanol Kamsarmax newbuild  

Kypros Island becomes the first dual-fuel bulker to enter the Cyprus Registry.

Singapore waterfront skyline. PetroChina seeks LNG bunker trader to expand Asian marine fuel business  

Role requires five to ten years of commercial experience in LNG, bunker trading, marine fuels, commodities, or energy trading.

Shanghai–Melbourne Green Shipping Corridor (GSC). Shanghai and Melbourne ports move green shipping corridor into delivery phase  

Ports launch implementation plan targeting green methanol, biofuels and shore power by 2035.


↑  Back to Top