Before the Court are motions for summary judgment filed in each of the above-captioned interpleader actions. The cases arise out of the collapse and insolvency of O.W. Bunker & Trading A/S (“O.W. Denmark”) and its international subsidiaries (collectively, “O.W.”). O.W. Denmark’s United States subsidiary, O.W. Bunker USA Inc. (“O.W. USA”), filed a petition for relief under Chapter 11 of the Bankruptcy Code on November 13, 2014, in the District of Connecticut. In re O.W. Bunker Holding N. Am. Inc., No. 14-51720 (AHWS) (Bankr. D. Conn. filed Nov. 13, 2014).
After discovery, which was conducted on a consolidated basis in the 24 interpleader cases that were pending before this judge as of June 30, 2015, the Court asked the parties to identify “test cases” that would efficiently present for decision the significant legal issues that needed to be decided. Thereafter, motions for summary judgment were filed by the claimants to the interpleader funds—O.W., its lender, and suppliers—and motions for discharge were filed by the vessel owners and charterers (the “Vessel Interests”) in the three “test cases” designated by the Court. O.W., its secured lender, and its ■ suppliers each moved for summary judgment on their asserted in rem claims to the interpleader funds.
BACKGROUND
1. O.W.’s Collapse and the Interpleader Actions
It is an understatement to say that O.W.’s collapse caused a significant disrup
The parties to these cases are the coun-terparties to several of O.W.’s trading contracts and O.W.’s primary secured lender, ING Bank, N.V. (“ING”). O.W.’s insolvency put the Vessel Interests in what this Court has described as a “Sophie’s Choice.” O.W. I,
The parties identified the three test cases presently before the Court, and the Court set a briefing schedule. See Hapag-Lloyd, Dkt. 207. Summary judgment motions were filed on an array of issues by several of the O.W. entities; two of the Physical Suppliers, NuStar Energy Services, Inc. (“NuStar”) and U.S. Oil Trading, LLC (“USOT”); ING; and the vessel charterers themselves.
This Opinion addresses a threshold issue in the interpleader actions. The Physical Suppliers, O.W. entities, and ING each assert an in rem right to the interpleader funds under the Commercial Instruments & Maritime Lien Act (CIMLA), 46 U.S.C. § 31342. CIMLA codifies the common-law maritime lien for “necessaries”—essential supplies and services provided to a vessel. To the extent any party has a maritime lien, the interpleader funds stand as a substitute res for that lien, giving that party a priority interest in the interpleader stake. See Hapag-Lloyd, Dkt. 5 ¶2. The parties’ in personam contract claims to the interpleader funds, as well as the Vessel Interests’ motions to be discharged, will not be' resolved here; they will be addressed separately to the extent they are not mooted by this Opinion.
2. The Test Cases
The test cases concern fuel delivered on O.W.’s behalf in mid-October 2014, shortly before O.W. USA filed for bankruptcy. To give every party an opportunity to be heard, the test cases each involve either a different Physical Supplier or Vessel Interest. Nonetheless, as is set forth in more detail below, the facts of the transactions at issue are materially similar: each case
A, The NuStar Test Cases: Clearlake Shipping Pte Ltd, v, O.W. Bunker (Switzerland) SA, No. 14-CV-9287 and Nippon Kaisha Line Ltd. v. O.W. Bunker USA, Inc,, No. 14-CV-10091
Two of the test cases relate to bunkers arranged by O.W. to be supplied at the Port of Houston. In the first transaction, on October 14, 2014, Clearlake Shipping PTE Ltd. (“Clearlake”) ordered bunkers from O.W. Switzerland for two vessels, the M/V Hellas Glory and the M/V Venus Glory. Clearlake Shipping PTE Ltd. v. O.W. Bunker (Switzerland) SA et al. (Clearlake), No 14-CV-9287 (VEC), Dkt. 172 (ING’s Rule 56.1 Statement) at ¶¶2, 5. The Clearlake-O.W. Switzerland transactions are memorialized in a pair of substantially similar sales order confirmations. Clearlake, Dkt. 170 (Belknap Decl.) Exs. 4, 5. Both confirmations identify the véssel (the M/V Venus Glory or M/V Hellas Glory), O.W. Switzerland as “seller,” and NuStar as “supplier.” Id., Dkt. 170 (Belk-nap Deck) Exs. 4, 5. The confirmations also specify the bunker fuel to be delivered, as well as the quantity, price, and date' of delivery. Id., Dkt. 170 (Belknap Deck) Exs. 4, 5. O.W. Switzerland referred the orders to its affiliate, O.W. USA. Id, Exs. 6-9. O.W. USA confirmed the orders to NuStar the same day. Id., Dkt. 170 (Belknap Deck) Exs. 10-13. NuStar’s sales confirmations identify O.W. USA as the buyer of the bunkers and NuStar as the seller. Id., Dkt. 170 (Belknap Deck) Exs. 11,13.
The second transaction at the Port of Houston involves a similar series of back-to-back contracts. On October 7, 2014, Nippon Yusen KabushiM Kaisha (“Nippon Yusen”), a company associated with the Nippon Yusen Kaisha Line family of companies (“NYK”), entered into an agreement with its sister company, Nippon Yu-sen Kaisha - Trading Corporation (“NYKTC”) for delivery of bunkers to the M/V Riegel Leader. Nippon, Dkt. 141 (O.W. USA’s Rule 56.1 Statement) ¶¶4-6. NYKTC and Nippon'Yusen operated pursuant to a purchase and sale agreement that was renewed quarterly and that required NYKTC to provide bunkers from one of several well-established physical suppliers, one of which was NuStar. Id., Dkt. 136 (Belknap Deck) Ex. 2; Dkt. 134 (NuStar’s Rule 56.1 ' Statement) - ¶ 6. NYKTC, in turn, contracted with O.W. USA to supply the bunkers to the Riegel Leader. Id., Dkt. 141 (O.W. USA’s Rule 56.1 Statement) ¶¶ 11-12. The confirmation between Nippon Yusen and O.W. USA is substantially the same as thát between O.W. Switzerland and Clearlake. It idénti-fies the"vessel interest, Nippon Yusen, as the buyer, and it identifies O.W. USA as the Seller. NuStar is identified as the supplier. Id,, Dkt. 142 (O’Connor Deck) Ex. E. O.W. USA then entered into a separate agreement with NuStar to provide the
The' bunkers were delivered or “stemmed” to the MW Riegel Leader on October 16, 2016, and to the MW Hellas Glory and MW Venus Glory on October 20 and 26,2014. Clearlake, Dkt. 168 (NuStar’s Rule 56.1 Statement) ¶ 15; Nippon, Dkt. 134 (NuStar’s Rule 56.1 Statement) ¶17. In all cases, delivery was coordinated between agents for NuStar and the local agents for the vessels. Clearlake, Dkt. 168 (NuStar’s Rule 56.1 Statement) ¶ 14; Nippon, Dkt. 141 (O.W. USA’s Rule 56.1 Statement) ¶ 21. While the significance of these interactions is disputed hotly, the facts are not: NuStar and its agents communicated with the port agents for the vessels to “lock down the delivery time and location.” Clearlake, Dkt. 175 (Maloney Deck) Ex. 22 (Thompson Tr.) at 17:23-18:14, 76:19-77:8; Nippon, Dkt. 142 (O’Connor Deck) Ex. K (Thompson Tr.) at 17:12-18:14, 33:4-34:4, 76:19-77:8. Among other things, the local agents arranged a time for the bunkering operation and the logistics of delivery. Id. Delivery of .the bunkers was accepted by the chief engineer or master of each vessel, who executed a “delivery note” or receipt. Clearlake, Dkt. 168 (NuStar’s Rule 56.1 Statement) ¶¶ 15-17; Nippon, Dkt. 134 (NuStar’s Rule 56.1 Statement) ¶¶ 17-19. The delivery notes each provide that
Any disclaimer by the purchaser of the marine fuels covered by this note will have no force or effect.... Without limiting the foregoing, no disclaimer by the purchaser of marine fuels covered by this note will alter or waive: the information contained in this note; the seller’s maritime lien against the receiving vessel or the cost of the marine fuels covered by this note; or the receiving vessel’s liability for the cost of the marine fuels covered by this note.
Clearlake, Dkt. 168 (NuStar’s Rule 56.1 Statement) ¶17; Nippon, Dkt. 134 (NuS-tar’s Rule 56.1 Statement) ¶ 18.'
NuStar billed O.W. USA for all three bunkering transactions pursuant to a “bulk contract” or “pricing agreement” between O.W. USA and NuStar. Clearlake, Dkt, 172 (ING’s Rule 56.1 Statement) ¶¶ 18-21; Nippon, Dkt. 141 (O.W. USA’s Rule 56.1 Statement) ¶ 25. The bulk contract identifies O.W. as the purchaser of the bunkers and provides for a monthly true-up of the price of bunkers provided by NuStar. Clearlake, Dkt. 175 (Maloney Deck) Ex. 20; Nippon, Dkt. 142 (O’Connor Deck) Ex. O. Under the contract, payments were due from O.W. within 30 days of delivery. Clearlake, Dkt. 175 (Maloney Deck) Ex. 20; Nippon, Dkt. 142 (O’Connor Deck) Ex. O. Based on a credit review, NuStar had previously extended O.W. USA a $40 million line of credit; the line of credit was in effect at the time of these events. Clear-lake, Dkt. 172 (ING’s Rule 56.1 Statement) ¶¶ 22-25. After O.W.’s financial distress became known to NuStar, it sent an invoice directly to Clearlake. Id., Dkt. 168 (NuStar’s Rule 56.1 Statement) ¶ 19.
B. Hapag-Lloyd Aktiengesellschaft v. U.S. Oil Trading, LLC, No. 14-CV-9949
The third test case concerns bunkers provided by USOT to four vessels at the
All four transactions were documented in a series of back-to-back contracts between Hapag-Lloyd and O.W. Germany, O.W. Germany and O.W. USA, and O.W. USA and USOT. Hapag-Lloyd, Dkt. 258 (Maloney Deck) Exs. 4, 8, 12 (M/V Santa Roberta), Exs. 5, 9, 13 (M/V Seaspan Hamburg), Exs. 6, 10, 14 (M/V Sofia Express), Exs. 7, 11, 15 (M/V Vienna Express). The agreements between Hapag-Lloyd and O.W. Germany identify O.W. Germany as the seller, Hapag-Lloyd as buyer, and USOT as supplier. Id., Dkt. 258 (Maloney Deck) Exs. 4-7. The agreements between O.W. USA and USOT, in turn, identify O.W. USA as buyer and USOT as seller. Id., Dkt. 258 (Maloney Deck) Exs. 12-15. USOT disputes whether its counter-party was O.W. USA or its parent, O.W. Denmark, but it concedes that it had no contractual agreement with Hapag-Lloyd relative to these bunkers. See id., Dkt. 261 (USOT’s Resp. to ING’s Rule 56.1 Statement) ¶ 10. According to USOT, its customer for the bunkers was O.W. Id., Dkt. 227 (USOT’s Rule 56.1 Statement) ¶¶ 7-8.
Delivery of the bunkers was arranged by USOT and local agents for Hapag-Lloyd. In advance of delivery, the local agent confirmed the orders with USOT. Hapag-Lloyd, Dkt. 227 (USOT’s Rule 56.1 Statement) ¶¶ 12-13, 48-51 (M/V Santa Roberta), 80-82 (M/V Vienna Express), 111-113 (M/V Seaspan Hamburg), 141-146 (M/V Sofia Express). USOT and the local agent then arranged the logistics of delivery. Id. The bunkers were delivered in mid and late October. Id. Dkt. 227 (USOT’s Rule 56.1 Statement) ¶¶ 53 (M/V Santa Roberta), 84 (M/V Vienna Express), 116 (M/V Seaspan Hamburg), 149 (M/V Vienna Express). In each case, the chief engineer or master of the vessel signed a bunker delivery note or receipt, including the volume and quantity of the fuel received. Id. Dkt. 227 (USOT’s Rule 56.1 Statement) ¶¶ 55 (M/V Santa Roberta), 86 (M/V Vienna Express), 118 (M/V Seaspan Hamburg), 151 (M/V Vienna Express). The delivery receipts provide that:
No disclaimer stamp of any type or form will be accepted on this bunker certificate,' nor should any such stamp ... alter, change or waive U.S. Oil’s Maritime Lien against the vessel or waive the vessel’s ultimate responsibility andliability for the debt incurred through this transaction.
Id.
USOT initially billed O.W., Hapag-Lloyd, Dkt. 261 (USOT’s Resp. to ING’s Rule 56.1 Statement) ¶7, with payment due from O.W. within 30 days of delivery. Id., Dkt. 258 (Maloney Decl.) Exs. 18, 21, 24, 27. Previously, based on a review of O.W. Denmark’s credit history, USOT had provided O.W. a $10 million line of credit; the line of credit was in effect at the time of these events. Id., Dkt. 231 (ING’s Rule 56.1 Statement) ¶¶ 13-15. When USOT did not receive timely payment, it demanded payment directly from Hapag-Lloyd. Id., Dkt. 1 (Compl.) Ex. 6.
DISCUSSION
Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
1. CIMLA
O.W. and the Physical Suppliers each contend that they are entitled to summary judgment on their in rem claim to a maritime lien. Maritime liens for necessaries arise exclusively under CIMLA. To be entitled to a lien, a party must “provid[e] necessaries to a vessel on the order of the owner or a person authorized by the owner.” 46 U.S.C. § 31342. Disaggregating Section 31342, there are three elements that a party must prove to establish possession of a maritime lien. A party must establish (1) that the goods or services at issue were “necessaries,” (2) that it “provided” the necessaries “to a vessel” and (3) that it did so “upon the order of the owner of such vessel or a person authorized by the owner.”
The requirements of CIMLA are interpreted narrowly under the doctrine of stricti juris. See Itel Containers Int’l Corp. v. Atlanttrafik Express Serv. Ltd.,
2. USOT and NuStar did not provide necessaries “on the order” of the vessels or their agents
The Physical Suppliers did not provide necessaries “on the order” of the Vessel Interests. In reaching this conclusion, the Court joins the other district courts to consider this issue since O.W.’s collapse. See Valero Mktg. & Supply Co. v. M/V ALMI SUN,
CIMLA creates a presumption that certain officers, such as the. master of a vessel or an agent of the charterer, act with authority to encumber the vessel. See 46 U.S.C. § 31341(a); O’Rourke,
Subcontractors who deal with a contractor or a middle-man lack a direct connection to the vessel. See Lake Charles,
The Physical Suppliers are indistinguishable from the subcontractors in Lake Charles and Integral Control Systems.
The Physical Suppliers argue that a contractual or agency relationship to the Vessel Interests is not required so long as the order for necessaries originated with a party that has statutory authority to encumber the vessel. It is a viscerally appealing argument, but it is inconsistent with the strict approach described above. The Physical Suppliers rely heavily on Marine Fuel Supply & Towing Inc. v. M/V KEN LUCKY,
As a fallback position, both Physical Suppliers argue that a direct relationship exists to the Vessel Interests. Because USOT was identified as O.W.’s supplier in internal analyses prepared by Hapag-Lloyd personnel, USOT contends that it, rather than O.W., was nominated as the supplier. Both USOT and NuStar were identified as the supplier in the order confirmations exchanged by O.W. and the Vessel Interests. The Physical Suppliers also worked directly with the port agents for the vessels to arrange delivery and to complete the bunkering operations. And, finally, the chief engineer of each vessel executed a receipt, or delivery note, confirming that the fuel had been received.
Direct contacts between the Physical Suppliers and agents of the vessel can be relevant if they demonstrate a direct contractual or agency relationship.
Several cases, nearly all from the Eleventh Circuit, suggest that close coordination can give rise to a lien even if there is no legally significant relationship between the supplier and vessel. See Galehead,
But as Judge Haight said, describing Marine Coatings, these cases are “navigating outside the mainstream” of American maritime law. See Integral Control Sys.,
At best (from the Physical Suppliers’ perspective), • the summary judgment record shows that the Vessel Interests viewed NuStar and USOT as acceptable suppliers. There is no evidence that the Vessel Interests required O.W. to use the Physical Suppliers to satisfy its obligations or that the Physical Suppliers were directly engaged by agents of the Vessel Interests. To the contrary, the evidence on this point is that the Vessel Interests were indifferent to the identity of the suppliers. The representatives of each of the Vessel Interests testified that the physical supplier was O.W.’s choice. See Hapag-Lloyd, Dkt. 233 (Maloney Decl.) Ex. 3 (Kock Tr.) at 58:7-13, 141:19-22; Clegrlake, Dkt. 175 (Maloney Decl.) Ex. 1 (Saifulin Tr.) at 56:15-19; Nippon, Dkt. 142 (O’Connor Deck) Ex. B (Sano Tr.) at 19:12-20:2. Nippon Yusen’s agreement with NYKTC bears this out: it requires NYKTC to provide bunkers from a group of major suppliers, including, in addition to NuStar, Bo-min, BP, Chemoil, Matrix, Total and Shell. Nippon, Dkt, 142 (O’Connor Deck) Ex. B (Sano Tr.) at 19:6-11. Likewise, when O.W. provided bids to Hapag-Lloyd, it included multiple different suppliers, depending on the port of call. For example, in Los Ange-les, O.W. used O.W. itself, and in Oakland it used P66. Hapag-Lloyd Dkt 258 (Malo-ney Deck) Ex. 55. The uncontradicted testimony from the Vessel Interests is that they saw the choice of physical supplier as essentially O.W.’s to make. See Hapag-Lloyd, Dkt. 233 (Maloney Deck) Ex. 3 (Kock Tr.) 138:3-18, 141:12-22, 158:5:16; Nippon, Dkt. 142 (O’Connor Deck) Ex. B (Sano Tr.) at 19:12-20:2. In short, the inclusion of the Physical Suppliers on the confirmations provided by O.W. and the Vessel Interests does not amount to a “selection” by the Vessel Interests of NuS-tar or USOT.
The interactions between the Physical Suppliers and the port agents for the Vessel-Interests also do not establish a direct relationship between the suppliers and vessels.
Finally, the bunker receipts signed by the chief engineers for each vessel did not create a contract nor do they amount to a ratification of a contract. Accepting the bunkers and signing a receipt may give rise to a maritime lien when doing so creates a contractual relationship. See Atl. & Gulf Stevedores, Inc. v. M/V GRAND LOYALTY,
In sum, while the Court sympathizes with the Physical Suppliers, which apparently believed that they held maritime liens and may be financially harmed by this Court’s holding that they do not, the contractual relationships between the parties in this case are clear, and those rela
3. The O.W. Entities “Provided” Necessaries to the Vessel Interests and Hold Maritime Liens
Having found that the Physical Suppliers do not hold liens, the Court must address whether the O.W. entities hold in rem claims against the vessels.
The Second Circuit has given relatively little guidance on the meaning of
A supplier may “provide” necessaries to a vessel indirectly through a subcontractor. See Lake Charles,
The back-to-back contracts entered into by O.W., the Physical Suppliers, and the Vessel Interests establish O.W. as the “provider” of necessaries. In this respect, O.W. is indistinguishable from the contractors in Lake Charles and Galehead-. it entered into a contract that required it to provide necessaries; then, through a chain of separate, but clearly documented transactions, caused its subcontractors to deliver the necessaries to the vessels. Had the' subcontractors, NuStar and USOT, failed to deliver the bunkers, O.W. would have been liable to the Vessel Interests for breach. See Tr. (Dec. 1, 2016 Oral Arg.) at 37:10-17 ([HAPAG]: “What the testimony reflects is that at all times OW Germany remained responsible to Hapag. If for whatever reason US Oil could not or would not do the supply, OW Germany—and this is in the testimony—had the obligation to substitute similar fuel at the agreed price.”); see also id. at 51:1-5 (THE COURT: “It sounds like everybody agrees that OW was on the hook. So that if who[m]ever the physical supplier was supposed to be had failed to deliver, the vessel would have had a claim against OW, and OW would have had to find a supplier, and
The Court’s analysis is consistent with the reasoning in. Temara II. In that case Judge Forrest concluded that O.W. had not “provided” the bunkers at issue because it did not face “real risk of financial loss” in the transactions. Temara II,
The Court concludes that the O.W. entities are entitled to a maritime lien in the test cases, case nos. 14-CV-9287 and 14-CV-10091.
4. Equity and Public Policy Do Not Require a Different Result
The Physical Suppliers argue, with some force, that permitting O.W. or ING to benefit from a maritime lien without paying the suppliers that actually delivered the fuel is an inequitable result. Although these cases involve interpretation of a Federal statute, there is no doubt that maritime liens are an equitable remedy. See Mullane v. Chambers,
The Physical Suppliers have not seriously argued that any equitable doctrine bars O.W.’s recovery and the parties agreed at oral argument that fraud
The unfortunate reality of these cases is that O.W.’s bankruptcy has caused hardship for creditors, especially trade creditors like the Physical Suppliers. The underlying contractual arrangement between the parties—back-to-back contracts between the vessels, bunker traders, and suppliers—shifted to O.W. the risk that the vessels would not pay their bills. In so doing, it substituted O.W. as the counter-party to the Physical Suppliers. In ordinary times, the Physical Suppliers benefit from this arrangement, as they can better evaluate the credit of bunker traders, like O.W., with whom they deal repeatedly than the credit of owners or charters of vessels with whom they interact only sporadically. See Hapag-Lloyd, Dkt. 227 (USOT’s Rule 56.1 Statement) ¶ 18 (“Given the time and operational constraints of the vessels ... it has not been practical for USOT to conduct an adequate credit check .of each vessel’s [owner or charterer].”). The parties agree that both Physical Suppliers undertook a careful review of O.W.’s credit before extending O.W. a line of credit with 30-day terms. Hapag-Lloyd, Dkt. 231 (ING’s Rule 56.1 Statement) ¶¶ 13-15; Clearlake, Dkt. 172 (ING’s Rule 56,1 Statement) ¶¶ 22-27; Nippon, Dkt. 141 (O.W. USA’s Rule 56.1. Statement) ¶¶ 18-19, Additional contractual protections were available to the Physical Suppliers. Notably, they could have demanded an assignment of O.W.’s rights against the charterers, or they could have insisted that the Vessel Interests become parties to the supply contracts. Cf Tramp Oil,
The Court’s sympathetic view of the Physical Suppliers’ situation is not, however, boundless, and it does not extend to rewriting the consistent, and nearly uniform, case law denying subcontractors a maritime lien. This rule .is rooted in the long-standing Federal policy disfavoring maritime liens. See Piedmont & George’s Creek Coal Co.,
CONCLUSION
The Physical Suppliers’ motions for summary judgment in each of the three tests cases are DENIED: in case no. 14-CV-9287, docket entry 167; in case no. 14-CV-10091, docket entry 183; in case no. 14-CV-9949, docket entry 228; and in case no. 15-CV-6718, docket entry 173.
ING’s motion for summary judgment in the Clearlake test case (Clearlake, Dkt. 171) is GRANTED IN PART to the extent ING has moved for summary judgment on its claim that O.W. Switzerland holds a maritime lien and in rem interest in the interpleader res. ING’s motion for summary judgment as to the validity of the O.W. entities’ assignment of their liens to ING remain pending.
O.W. USA’s motion for summary judgment in the Nippon Yusen test case (Nippon, Dkt. 140) is GRANTED IN PART with respect to O.W. USA’s claim that the O.W. entities hold a maritime lien and in rem interest in the interpleader res. O.W. USA’s motion for summary judgment on its in personam claims against Nippon Yusen remains pending.
By January 16, 2017, the parties are directed to inform the Court of the following:
1.ING must inform the Court whether its motions for summary judgment with respect to its possession of a valid assignment of the O.W. entities’ liens are moot in light of this Opinion;
2. O.W. USA must inform the Court whether its in personam claims against Nippon Yusen are moot in light of this Opinion; and
3. O.W. Germany must inform the Court whether its in personam claims against Hapag-Lloyd are moot in light of this Opinion.
The Clerk of Court is respectfully directed to close the open motions at the following docket entries: in case no. 14-CV-9287, docket entry 167; in case no. 14-CV-10091, docket entry 133; and in case no. 14-CV-9949, docket entry 223.
SO ORDERED.
Notes
. This Opinion and Order supersedes the Court's January 9, 2017 Opinion and Order. The January 9, 2017 Opinion and Order mistakenly granted summary judgment to ING Bank, N.V. on its in rem claim against the stake in the Hapag-Lloyd test case (as defined below). ING Bank did not move for summary judgment on its entitlement to an in rem claim in the Hapag-Lloyd test case, and the Court expresses no opinion as to the merits of that claim. The Court’s January 9, 2017 Opinion and Order is otherwise unchanged.
. Facts relating to O.W. generally and the events giving rise to these cases are taken from the Court's earlier opinion in this case, UPT Pool Ltd. v. Dynamic Oil Trading (Singapore) PTE. Ltd. (O.W. I), No. 14-CV-9262 (VEC),
.In accordance with orders of the Court, the interpleader funds serve as a substitute res. See, e.g., Hapag-Lloyd Aktiengesellschaft v. U.S. Oil Trading LLC et al. (Hapag-Lloyd), No. 14-CV-9949 (VEC), Dkt. 5.
. O.W. has been paid by Hapag-Lloyd for bunkers delivered to the M/V Santa Roberta. Hapag-Lloyd., Dkt. 227 (USOT’s Rule 56.1 Statement) ¶ 58.
. A companion case arising out of the same bunkering transactions, Docket No, 15-CV-
. The vessels are the M/V Santa Roberta, the M/V Seaspan Hamburg, the M/V Vienna Express, and the M/V Sofia Express. Hapag-Lloyd, Dkt. 227 (USOT's Rule 56.1 Statement) ¶¶ 26, 60, 90, 122.
. As originally codified by Congress, a claimant was required to "furnish” as opposed to “provide” necessaries. CIMLA was re-codified in 1988. See Pub. L. 100-710, Title I, 102 Stat. 4748. It is generally accepted that no substantive changes were made at that time and that cases interpreting the original statute remain instructive. See ING Bank N.V. v. M/V TEMARA (Temara I), No. 16-CV-95 (KBF),
. Because the Physical Suppliers did not provide necessaries "on the order” of the'vessels or their agents, the Court need not determine whether they "provided” necessaries within the meaning of the statute.
. NuStar contends that the difference between this case and Lake Charles, Port of Portland, and Integral Control Systems is that in those cases the "order” given to the supplier originated with the contractor rather than with’the vessel. Clearlake, Diet. 188 (NuStar Opp.) at 11-12. To the extent that is true, it is only because the subcontractors in those cases played a less significant role in the overall transaction. The fact that NuStar provided all or nearly all of the services required of O.W. may be evidence of a direct relationship between NuStar and the vessel’s agents, as the. Court discusses below, but it is not grounds to' distinguish Lake Charles or Integral Control Systems. The Court in Integral Control Systems addressed essentially this argument in distinguishing the Eleventh Circuit’s decision in Marine Coatings: "one would expect the factors upon which the Eleventh Circuit focused to be present in most cases where the owner of a vessel places her into the hands of a general contractor for substantial repair or conversion, except in the unlikely circumstance of an owner who disappears from the work site, leaves no agent behind, and' does not return until the work has been completed.”
. In other cases, the Physical Suppliers have argued that O.W. was an agent of the Vessel Interests. The Physical Suppliers make that argument in these cases as well, albeit in footnotes. See Hapag-Lloyd, Dkt. 262 (USOT Opp.) at 19 n.15; Nippon, Dkt. 150 (NuStar
. The evidence that the Vessel Interests were aware of the Physical Suppliers’ identities and tacitly "selected” them is potentially a question of fact, particularly as to Hapag-Lloyd, which included USOT in internal analyses of competing bids. If a question of fact exists on this point, however, it is not material. There is no dispute that the Vessel Interests did not contract with the Physical Suppliers, and the Physical Suppliers do not argue that the contracts required O.W. to use them as suppliers.
. The Court assumes arguendo that the port agents with whom the Physical Suppliers interacted had legal authority to bind the vessels. The parties dispute this point, but it is ultimately irrelevant because no legally significant relationships were formed.
. The Physical Suppliers devote significant effort to arguing that they were under no duty to inquire whether their counterparties had authority to encumber the 'vessels. HapagLloyd, Dkt. 262 (USOT Opp.) at 21-24: Nippon, Dkt. 150.(NuStar Opp.) at 7 n.11, This argument largely misses the mark. CIMLA relieved suppliers of a duty of inquiry with respect to "no lien” clauses by codifying, a presumption that certain agents act with.,authority to. bind the vessel. See 46 U.S.C. § 31341(a). The presumption only applies, however, when the supplier is given an order by one of the parties listed in the statute who have ' presumptive authority. The question here is whether the Physical Suppliers were given an order by such a party and not whether they would hypothetically be entitled to rely on such an order if they had received one,
. Although the Physical Suppliers do not argue that the bunker receipts themselves give rise to maritime liens, that argument has been raised and rejected in other cases. See, e.g., Temara I,
. The O.W. liquidation plan carves out from the Bankruptcy discharge any claims in this action. Nippon, Dkt. 150 (NuStar Opp.) at 16.
. The Court does not address in this Opinion whether any liens held by O.W. were properly assigned to ING.
. Belatedly, NuStar has questioned whether O.W. provided necessaries "on the order of” Nippon Yusen. Nippon, Dkt. 150 (NuStar Opp.) at 12-13 & n.18. O.W.’s counterparty in the Nippon transaction was NYKTC, which is an affiliated subsidiary of the NYK group of companies. See supra at 7. NuStar admitted in its amended answer that NYKTC was an agent of Nippon Yusen. Nippon, Dkt. 102 (Am. Answer) ¶ 4. The parties did not take discovery relative to whether NYKTC was an agent of Nippon Yusen, presumably because the question appeared settled. See Tr. (Dec. 1, 2016 Oral Arg.) at 64:1:17 ([O.W.]: "OW USA has consistently alleged that NYKTC was an agent for the vessel. NYK line has never, up until apparently today, denied that allegation. NuStar, up until it responded to O.W. USA’s Rule 56.1 Statement of facts, had actually admitted to that fact. These are facts which OW USA had relied upon throughout the discovery process for the last two years. Had we known that their positions were different earlier, perhaps we might have litigated the case differently during the discovery process.”). NuStar is bound by its admission. The Court assumes for purposes of analysis that NYKTC acted as an agent of Nippon Yusen in the transactions at issue in these cases,
. NuStar's priority in the O.W. bankruptcy is uncertain. NuStar filed proofs of claim in the O.W. bankruptcy cases, but the value of those claims depends on whether it is entitled to administrative priority under Section 503(b)(9) of the Bankruptcy Code. That issue is not before this Court.