The OWB Bunker saga has placed owners on the horns of a dilemma. Pay ING as assignee of OWB or pay the physical supplier? Owners certainly do not want to have to pay twice. Three recent arrest cases in the US by the physical suppliers indicate that they will not obtain a maritime lien for necessaries. Valero Marketing & Supply Co v M/V ALMI SUN, 2016 US Dist 2016 AMC 632 (ED La Feb 8 2016); O’Rourke Marine Servs LP, LLP v M/V COSCO HAIFA, 2016 (SDNY April 8 2016);Bunker Holdings v M/V YM SUCCESS, 2016 (WD Wash June 6 2016).
There are three elements to the maritime lien for necessaries. 1. Necessaries must be furnished (2) to a vessel (3) on the order of the owner or person authorised by the owner. In these three decisions by district courts it has been held that a person with authority to bind the vessel must have some control over the subcontractor’s selection or performance in order for the subcontractor to have a maritime lien for necessaries. Accordingly, the third requirement for a maritime lien had not been satisfied as OW Bunker selected the physical supplier without the direction or involvement of the party with authority to bind the vessels. The Fifth Circuit is expected to give its decision in the Valero appeal by the end of the year.
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Professor Simon Baughen
Professor Simon Baughen was appointed as Professor of Shipping Law in September 2013 (previously Reader at the University of Bristol Law School). Simon Baughen studied law at Oxford and practised in maritime law for several years before joining academia. His research interests lie mainly in the field of shipping law, but also include the law of trusts and the environmental law implications of the activities of multinational corporations in the developing world. Simon's book on Shipping Law, has run to seven editions (soon to be eight) and is already well-known to academics and students alike as by far the most learned and approachable work on the subject. Furthermore, he is now the author of the very well-established practitioner's work Summerskill on Laytime. He has an extensive list of publications to his name, including International Trade and the Protection of the Environment, and Human Rights and Corporate Wrongs - Closing the Governance Gap. He has also written and taught extensively on commercial law, trusts and environmental law. Simon is a member of the Institute of International Shipping and Trade Law, a University Research Centre within the School of Law, and he currently teaches at Swansea on the LLM in:Carriage of Goods by Sea, Land and Air; Charterparties Law and Practice; International Corporate Governance.
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