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O.W. Bunker Malta Limited v. M/V Trogir

January 29, 2013

O.W. BUNKER MALTA LIMITED, PLAINTIFF,
v.
M/V TROGIR, HER ENGINES, BOILERS, TACKLES, ETC., IN REM, DEFENDANT.



The opinion of the court was delivered by: Manuel. L. Real United States District Judge

IN ADMIRALTY UNCONTROVERTED FACTS AND CONCLUSIONS OF LAW

On January 7, 2013, this Court granted Plaintiff O.W. BUNKER MALTA LIMITED's ("O.W. Bunker" or "Plaintiff") motion for summary judgment (see Dkt. #54). The Court ordered from the bench that "Plaintiff shall submit proposed uncontroverted facts and conclusions of law and a proposed judgment." Id.

Pursuant to the Court's Order, Plaintiff hereby submits the following [Proposed] Uncontroverted Facts and Conclusions of Law.

UNCONTROVERTED FACTS

1. O.W. Bunker is a foreign corporation engaged in the business of providing maritime necessaries to ships, namely bunkers.

2. On or about December 1, 2011, O.W. Bunker entered into an agreement with National Commodity Operators S.A. (hereinafter "National Commodity"), on behalf of the M/V TROGIR (hereinafter "the Vessel"), to provide 589.248 metric tons of bunker fuel and 66.14 metric tons of marine gas oil for delivery to the Vessel at the foreign port of Basuo, China between the period of December 3 through December 6, 2011.

3. The agreement expressly provided that the sale and delivery of the marine fuels by O.W. Bunker to the M/V TROGIR would be subject to O.W. Bunker Group's Terms and Conditions for Sale of Marine Bunkers.

4. The forum selection and choice of law clause contained in O.W. Bunker Group's Terms and Conditions provided, in pertinent part, that "[f]or the sole benefit of the Seller it is further agreed that the Seller . . . [has] the right to proceed against the Buyer, any third party, or the Vessel in such jurisdiction as the Seller in its sole discretion sees fit inter alia for the purpose of securing payment of any amount due to the Seller from the Buyer . . . . In such circumstances, the proceedings shall be governed by the law (substantive and procedural) of such jurisdiction)."

5. On December 6, 2011, O.W. Bunker duly delivered 589.248 metric tons of IFO cst bunker fuel and 66.414 metric tons of marine gas oil DMA to the M/V TROGIR at the foreign port of Basuo, China.

6. The bunker delivery receipts for the transaction bear the signature of the Chief Engineer and the seal of the M/V TROGIR.

7. By signing the bunker delivery receipts, the Chief Engineer of the M/V TROGIR accepted the bunkers on behalf of the Vessel.

8. The M/V TROGIR subsequently consumed the bunkers delivered at the port of Basuo.

9. In accordance with O.W. Bunker's internal procedures, the bunker delivery receipts for the transaction were sent to Plaintiff's accounting department as proof of the exact quantity of fuel supplied and the precise date when delivery took place.

10. Nobody within O.W. Bunker's organization outside of its accounting department reviewed the bunker delivery receipts or ...


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