O.W. Bunker Malta Limited v. Mv Trogir

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAR 18 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

O.W. BUNKER MALTA LIMITED, No. 13-55360

Plaintiff - Appellee, D.C. No. 2:12-cv-05657-R-FFM

v.

MEMORANDUM*

MV TROGIR, her engines, boilers, tackles, etc., in rem,

Defendant - Appellant,

And

TROGIR MARITIME INC., Specially Appearing,

Claimant - Appellant.

O.W. BUNKER MALTA LIMITED, No. 13-56124

Plaintiff - Appellant, D.C. No. 2:12-cv-05657-R-FFM

v.

MV TROGIR, her engines, boilers, tackles, etc., in rem,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Defendant - Appellee,

And

TROGIR MARITIME INC., Specially Appearing,

Claimant - Appellee.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Argued and Submitted February 12, 2015 Pasadena, California

Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.

O.W. Bunker Malta Limited (OWB) contracted with National…

concurring:

I' agree with my colleagues that our decision in Trans-Tec Asia v. M/V Harmony Container, 518 F.3d 1120 (9th Cir.2008), requires us to affirm the district court’s ruling that a maritime lien exists in favor of O.W. Bunker. But in my view Trans-Tec was wrongly decided. In holding that a maritime lien arose against the vessel, the Trans-Tec court gave effect to a choice-of-law clause in a contract between the materialman and the charterer, even though there, as in this case, neither the vessel nor the vessel owner was a party to the contract. Id. at 1126-27 . In so holding, we purported to follow the Fifth Circuit’s decision in Liverpool and London Steamship Protection and Indemnity Ass’n Ltd. v. QUEEN OF LEMAN MV, 296 F.3d 350 (5th Cir.2002). Trans-Tec, 518 F.3d at 1126 . But we overlooked a basic fact of that case: While the Fifth Circuit did indeed give effect to a choice-of-law clause when deciding whether a maritime lien arose, the contract in that case was between the party claiming the lien (an insurer) and the vessel owner itself. QUEEN OF LEMAN, 296 F.3d at 351 . The Fifth Circuit’s reasoning has no application in a ease like Trans-Tec, which involved a…

MEMORANDUM *

O.W. Bunker Malta Limited (OWB) contracted with National Commodity Operators S.A. (NCO), the agent of the charterer of the M/V Trogir (the Vessel) to provide marine bunkers (or fuel) to the Vessel. The fuel was delivered to the Vessel on December 6, 2011, in Basuo, China. OWB was not fully paid for the fuel and when the Vessel docked in Los Angeles, OWB had the M/V Trogir arrested, asserting that it had a maritime lien. The owner of the Vessel, Trogir Maritime, Inc. (TMI) arranged for substitute security and the Vessel was released. On summary judgment, the district court determined that OWB had a maritime lien, but then issued an amended judgment concerning prejudgment interest. TMI appeals from the district court’s finding of a maritime lien and OWB cross-appeals from the amended judgment’s treatment of prejudgment interest. TMI has not shown that the district court erred in holding that OWB had a maritime lien. Therefore, we affirm that determination. However, as the district court incorrectly applied the statutory rate of interest to partial payments made by third parties under contract, we vacate the amended judgment and remand for recalculation of damages.

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