IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

A/S DAN-BUNKERING LTD., )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 14-0297-CG-N

)

M/V CENTRANS DEMETER, IMO 

No. 9445174, her engines, freights, 

apparel, appurtenances, tackle, 

etc., in rem,

)

)

)

)

)

Defendant. )

ORDER

A/S Dan-Bunkering Ltd. (“Plaintiff”) initiated this maritime action on 

June 26, 2014, claiming it holds a maritime lien on the M/V Centrans 

Demeter, IMO No. 9445174 (“Vessel”). (Doc. 1). Based on this lien, Plaintiff 

asked the Court to authorize an arrest of the Vessel when it arrived in 

Mobile, Alabama. (Doc. 1, p. 6; Doc. 4). The Court granted Plaintiff’s request, 

and on July 3, 2014, the U.S. Marshall arrested the Vessel. (Doc. 8). The 

Vessel’s owner, Aries Shipping Co., Ltd. (“Aries”), subsequently moved the 

Court to vacate the arrest and release or reduce the security (Doc. 21), and 

dismiss the complaint. (Doc. 22). Plaintiff opposed the motions, and filed a 

motion for summary judgment. (Doc. 26). Aries responded and opposed the 

motion for summary judgment. (Doc. 33). Plaintiff then filed its reply to 

Aries’ response. (Doc. 34). 

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After reviewing the initial motions, the Court denied the motions to 

vacate the arrest and dismiss the complaint, stayed the motion for summary 

judgment, and ordered supplemental briefing on the choice-of-law issues 

underlying the case. (Doc. 37, p. 16). Plaintiff and Aries filed their 

supplemental briefs and corresponding replies. (Docs. 38, 39, 42, 43). 

I. BACKGROUND

The Court previously summarized this breach of contract dispute and 

the unique nature of maritime liens for necessaries under U.S. law. (Doc. 37). 

In essence, Plaintiff helped fuel the Vessel in the port of Hong Kong and 

never received payment for doing so. (Doc. 27, pp. 5 – 7). Plaintiff is a 

company organized under the laws of Denmark. (Doc. 27, p. 5). Aries is a 

Hong Kong company. (Doc. 39, p. 1). The Vessel is flagged under the laws of 

Hong Kong. (Doc. 33, p. 11). The Vessel’s charterer, Zhenhua International 

Shipping Co., Ltd. (“Zhenhua”), is a Chinese company. (Doc. 33, p. 11).

Plaintiff and Zhenhua entered into a bunker fuel agreement dated 

November 15, 2011 (“Bunker Contract”). (Doc. 27, Exh. 1, pp. 6 – 7). Aries is 

not a party to the Bunker Contract, nor did it participate in contract 

negotiations. (Doc. 27, Exh. 1, pp. 6 – 7; Doc. 39, p. 2). The Bunker Contract 

stated: “Our General Terms and Conditions of March 2010, which are known 

to you, are to apply. Copy available on request and on our homepage 

www.dan-bunkering.com.” (Doc. 27, pp. 5 – 6; Doc. 27, Exh. 1, p. 7). The 

General Terms and Conditions contain a choice-of-law clause. That clause 

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reads: 

16.1 The Bunker Contract shall be governed by the laws of 

Denmark. However, the choice of law is for the sole benefit of 

the Seller and the Seller may apply and benefit from any law 

granting a maritime lien and/or right to arrest the Vessel in any 

country as stipulated in Section 9 hereof. (Doc. 27, Exh. 1, p. 15). 

The relevant portion of Section 9 reads:

9.1 ... The Seller is entitled to rely on any provisions of law of 

the flag state of the Vessel, the place of delivery or where the 

Vessel is found and shall, among other things, enjoy full benefit 

of local rules granting the Seller maritime lien in the Vessel 

and/or providing for the right to arrest the Vessel. Nothing in 

this Bunker Contract shall be construed to limit the rights or 

legal remedies that the Seller may enjoy against the Vessel or 

the Buyer in any jurisdiction. (Doc. 27, Exh. 1, p. 13) 

Pursuant to the Bunker Contract, Plaintiff helped provide fuel for the 

Vessel on November 18, 2011. (Doc. 27, p. 4; Doc. 39, p. 2). Plaintiff then

invoiced Zhenhua and the Vessel $593,484.00 for the fuel. (Doc. 27, p. 4; Doc. 

27, Exh. 1, p. 19). The Vessel went on its way. Zhenhua made some payments 

for the fuel but never paid Plaintiff in full. (Doc. 27, p. 4; Doc. 27, Exh. 2, p. 

30). When the Vessel sailed into Mobile, Alabama on July 1, 2014, Plaintiff 

had it arrested to enforce a maritime lien. (Docs. 4, 8, 9). Plaintiff claims it 

holds a maritime lien for necessaries pursuant to U.S. law based on the

choice-of-law clause set forth above. (Doc. 27, pp. 7, 10 – 11). 

After reviewing the motions and the Bunker Contract, the Court 

decided it could not “begin its inquiry by assuming the contract is governed 

by U.S. law and the choice-of-law clause is part of the contract. Instead, the 

Court must first determine which country’s laws govern contract 

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formation....” (Doc. 37, p. 11). As a result, the Court ordered supplemental 

briefing on the choice-of-law questions, and the doctrine of forum non 

conveniens. (Doc. 37, p. 16). In the supplemental briefing, Plaintiff argues 

recent federal court decisions confronting similar maritime claims are 

compellingly persuasive, and U.S. law should similarly apply to its maritime 

claim. (Doc. 38, pp. 2 – 5). Aries argues Hong Kong law governs questions 

related to contract formation, as Hong Kong is the place with the most 

significant relationship to the transaction at issue. (Doc. 39, pp. 2 – 3). Aries 

further argues that the need to apply foreign law favors dismissing the case 

under a forum non conveniens analysis. (Doc. 39, pp. 14 – 17). 

II. ANALYSIS

First, the Court must determine the choice-of-law issue and decide 

which country’s laws control contract formation. If United States law is 

applicable, the Court may not dismiss the case on forum non conveniens

grounds. If, however, foreign law is applicable, then the Court can exercise 

discretion in determining whether a forum non conveniens dismissal is 

appropriate. See Perez & Compania (Cataluna), S.A. v. M/V Mexico I, 826 

F.2d 1449, 1452 (5th Cir. 1987) (using forum non conveniens to dismiss action 

for nonpayment of fuel supplied in Spain and used on a maritime voyage from 

Spain to the United States); Forsyth Int’l (U.K.) Ltd. v. SS Penavel, 630 F. 

Supp. 61, 64 (S.D. Ga. 1985) aff’d sub nom. Forsyth Int’l v. SS Penavel, 786 

F.2d 1180 (11th Cir. 1986) (applying forum non conveniens to case involving 

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maritime liens for necessaries). 

A. Determining the Law Governing Contract Formation

The Court must consider several factors to determine which country’s

laws control the formation of the Bunker Contract. See, e.g., Lauritzen v. 

Larsen, 345 U.S. 571, 583 – 92 (1953) (listing seven factors to consider for 

admiralty choice-of-law issues in tort cases). Generally, for a maritime 

contract choice-of-law dispute, courts look for the sovereign with the “most 

significant relationship” to the transaction at issue. Dresdner Bank AG v. 

M/V Olympia Voyager, 446 F.3d 1377, 1382 (11th Cir. 2006). This is done by 

examining (a) the place of contracting; (b) the place of negotiation; (c) the 

place of performance; (d) the locus of the subject matter of the contract; and 

(e) the domicile of the parties. Id. Additionally, the Restatement (Second) of 

Conflicts of Law, Chapter One, Section Six, contains factors that courts 

should consider in any choice-of-law analysis. Dresdner Bank AG, 446 F.3d at 

1383. These factors are: (a) the needs of the international system; (b) the 

relevant policies of the forum (here, U.S. law regarding maritime liens); (c) 

the relevant policies of other interested states; (d) the protection of justified 

expectations; (e) the policy underlying the field of law in question; (f) the 

interest in predictability and uniformity; and (g) the ease in determining and 

applying the relevant law. RESTATEMENT (SECOND) CONFLICTS OF LAW, Ch. 

1, § 6 (1971).

Using the “most significant relationship” test, Hong Kong law controls 

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issues related to Bunker Contract formation. The parties to the Bunker 

Contract, Plaintiff and Zhenhua, negotiated the contract terms in Hong Kong 

and China. (Doc. 39, p. 4). The order confirmation identified the port of Hong 

Kong as the place of performance. (Doc. 27, Exh. 1, p. 6). The subject matter 

of the Bunker Contract, both the fuel and the Vessel, are tied to Hong Kong. 

Plaintiff is a Danish company; Zhenhua is a Chinese company; Aries, though 

not a party to the Bunker Contract, is a Hong Kong Company. The Vessel 

carried the Hong Kong flag.

Additionally, the Restatement factors do not favor applying U.S. law. 

Only two of the Restatement factors, the relevant policies of the forum (factor 

(b)), and the ease in determining and applying the relevant law (factor (g)), 

clearly weight in favor of applying U.S. law. The needs of the international 

system (factor (a)), and the relevant policies of other interested states (factor 

(c)), weigh in favor of applying Hong Kong law. The remaining factors do not 

weigh significantly in favor of one country’s laws over the other. 

In sum, the facts involved do not warrant applying U.S. law to resolve 

Bunker Contract formation issues. Moreover, seizing the ship in Alabama

does not by itself require application of U.S. law. The Court therefore finds 

Hong Kong law controls questions concerning the formation of the Bunker 

Contract, and the incorporation of the choice-of-law clause contained in the

General Terms and Conditions. 

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B. Forum Non Conveniens

When a district court is faced with applying foreign law, it must 

examine the traditional considerations of forum non conveniens in 

determining whether dismissal is appropriate. Forum non conveniens is the 

doctrine that an appropriate forum – even though competent under the law –

may divest itself of jurisdiction if, for the convenience of the litigants and 

witnesses, it appears that the action should proceed in another forum in 

which the action might have been brought in the first place. Piper Aircraft 

Co. v. Reyno, 454 U.S. 235, 257 – 60 (1981). Application of foreign law does 

not require dismissal, but “the need to resolve and apply foreign law should 

point [the trial court] towards dismissal.” Sigalas v. Lido Maritime, Inc., 776 

F.2d 1512, 1519 (11th Cir. 1985) (internal quotations omitted). “The party 

seeking to have a case dismissed based on forum non conveniens ‘must 

demonstrate that ‘(1) an adequate alternative forum is available, (2) the 

public and private factors weigh in favor of dismissal, and (3) the plaintiff can 

reinstate [its] suit in the alternative forum without undue inconvenience or 

prejudice.’” Membreno v. Costa Crociere S.p.A., 425 F.3d 932, 937 (11th Cir. 

2005) (quoting Leon v. Million Air, Inc., 251 F.3d 1305, 1311 (11th Cir. 

2001)). 

Analyzing the private factors first, there is almost no United States 

interest in this lawsuit. No party is a United States citizen, nor did any of the 

events of this suit (except the seizure of the Vessel) occur in the United 

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States. The Vessel does not appear to sail in U.S. waters often. Zhenhua, a 

Chinese company, chartered the Vessel from Aries, a Hong Kong company. 

Zhenhua bought bunker fuel in Hong Kong from Plaintiff, a company

registered in Denmark that does business in China. (Doc. 39, p. 4). The 

parties, witnesses, and documents are primarily in Hong Kong. Indeed, the 

only private interest that supports applying U.S. law is the presumption in 

favor of Plaintiff’s choice of forum, though Plaintiff is not a citizen, resident, 

or corporation of this country. Wilson v. Island Seas Investments, Ltd., 590 

F.3d 1264, 1270 (11th Cir. 2009) (“This presumption in favor of the plaintiffs’ 

initial forum choice in balancing the private interests is at its strongest when 

the plaintiffs are citizens, residents, or corporations of this country.”). 

Regardless of Plaintiff’s foreign affiliation, the other interests on the scale 

strongly outweigh its choice of forum. 

The “private interests” favor dismissing this suit, but some deference 

must also be given to the “public interests” at stake. See Esfeld v. Costa 

Crociere, S.P.A., 289 F.3d 1300, 1311 (11th Cir. 2002) (noting the federal 

forum non conveniens analysis should include inquiry into private and public 

interests); see also Dresdner Bank AG, 446 F.3d at 1383 (discussing related 

policy considerations and governmental interest analysis). “[I]n deciding 

whether a case should be dismissed because a foreign jurisdiction is more 

suitable, federal courts necessarily must analyze the interest that the foreign 

country has in the dispute.” Esfeld, 289 F.3d at 1312. The events leading to 

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this dispute occurred mostly in Hong Kong. The port of Hong Kong is one of 

the busiest ports in the world, and Hong Kong presumably wants to ensure 

that parties doing business there receive fair and lawful treatment. Hong 

Kong, therefore, has an interest in having the controversy decided within its 

borders. 

Before a court dismisses an action for forum non conveniens, it must 

ensure, at the time of dismissal, that there is an available alternative forum 

for the continuation of the suit in which the plaintiff may pursue an adequate 

remedy. Piper Aircraft, 454 U.S. at 255 n. 22. The Court should not retain 

jurisdiction simply because the remedy available in an alternative forum is 

less substantively generous. Id. at 249–55. In maritime cases, federal courts 

have deemed Hong Kong (and Denmark) adequate alternative forums. VebaChemie A.G. v. M/V Getafix, 711 F.2d 1243, 1249 (5th Cir. 1983); Cook v. 

Champion Shipping AS, 732 F. Supp. 2d 1029, 1038 (E.D. Cal. 2010) aff’d, 

463 F. App’x 626 (9th Cir. 2011). Although Hong Kong law does not recognize 

maritime liens for necessaries, its legal system recognizes causes of action for 

breach of contract, open accounts, and other maritime claims. (Doc. 39, p. 15).

Denmark law also allows such claims. (Doc. 39, p. 15).

Plaintiff nevertheless argues, “this Court is the proper and only forum 

to resolve Plaintiff’s claims.” (Doc. 43, p. 11). For purposes of forum non 

conveniens, Plaintiff conflates available claims and available remedies. See

Piper Aircraft, 454 U.S. at 254 (discussing remedies available in the alternate 

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forum). Plaintiff wishes to enforce a maritime lien for furnishing necessaries, 

a particular and unique claim under U.S. maritime law. If Plaintiff cannot 

bring this claim, it does not mean Plaintiff is left without remedies. The Hong 

Kong court may find, for example, that the choice-of-law clause is validly 

incorporated into the Bunker Contract, and that a maritime lien does exist. 

Or the Hong Kong court may find Zhenhua acted as an agent and bound 

Aries to the contract, including the General Terms and Conditions. Or the 

Hong Kong court may determine the choice-of-law clause does not apply to 

Aries. Or the Hong Kong court may fashion an alternative remedy under its 

substantive contract and maritime laws. Because Plaintiff can seek a remedy 

in Hong Kong, the Court finds Hong Kong is an adequate alternative forum

to resolve this dispute.

It is not apparent, however, whether Hong Kong is an “available” 

forum. Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283, 1290 

(11th Cir. 2009) (the foreign court must be able to “assert jurisdiction over 

the litigation sought to be transferred” to be considered “available”). The 

parties do not say clearly whether Plaintiff can bring an immediate action in 

Hong Kong (or alternatively, Denmark). The parties do not address whether 

this action is time barred, and Aries has not expressly agreed to waive any 

statutes of limitations or submit itself to the jurisdiction of a Hong Kong 

court to resolve matters pertaining to the Bunker Contract. Zhenhua is not a 

party to this action, so its status is unclear. (Doc. 27, pp. 5 – 8). Plaintiff does 

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not address these issues. (Doc. 43, pp. 9 – 10). The Court therefore finds that 

Aries must waive any limitations or jurisdictional defenses it may have to 

make Hong Kong an available forum. 

In this case, the primary issue concerns Hong Kong law, the private

and public interests favor dismissal, and there is an alternative forum better 

suited to handle the facts alleged. Dismissing the action will allow the parties 

to file the suit in a more convenient forum. Accordingly, this action is 

dismissed on the basis of forum non conveniens. 

The dismissal, however, is conditioned on Aries agreeing to proceed 

with the action in Hong Kong. Conditional dismissals are permissible in

forum non conveniens cases. See, e.g., Ford v. Brown, 319 F.3d 1302, 1310 

(11th Cir. 2003) (discussing conditional dismissal if defendant waives 

jurisdiction and limitations defenses, and another court ultimately exercises 

jurisdiction over the case); Sigalas, 776 F.2d at 1522 (affirming dismissal 

order conditioned expressly on the appellees’ agreement to proceed in Greek 

court); Alcoa S. S. Co. v. M/V Nordic Regent, 654 F.2d 147, 148 (2d Cir. 1980) 

(en banc, affirming conditional dismissal of an admiralty action on forum non 

conveniens grounds). Conditioning the dismissal does not destroy finality, nor 

does it leave the case pending in the District Court. Leon v. Millon Air, Inc., 

251 F.3d 1305, 1316 (11th Cir. 2001). 

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III. CONCLUSION

After careful consideration, Plaintiff’s motion for summary judgment is 

DENIED. This action is DISMISSED under the doctrine of forum non 

conveniens on the condition that Aries submit itself to the jurisdiction of 

Hong Kong as discussed above. The dismissal is without prejudice, and 

Plaintiff may reinstitute the proceeding upon Aries’ default. The Clerk is 

directed to retain the posted security until the Court is notified that Plaintiff 

and Aries have satisfied the conditions incident to this dismissal.

DONE and ORDERED this 31st day of March, 2015.

/s/ Callie V. S. Granade 

UNITED STATES DISTRICT JUDGE

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