22

- 918

- cv Global Energy Trading P te Ltd. v. ING Bank



## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC D ATABASE (WITH THE NOTATION “ SUMMARY ORDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2 New York, on the 2 0 t h da y of A p r i l , two thousand twenty

- three

. 3 4 PRESENT: 5 RICHARD C. WESLEY , 6 MICHAEL H. PARK , 7 BETH ROBINSON , 8 Circuit Judges. 9

_____________________________________ 10 11 Global Energy Trading P te Ltd. , 12 13 Defendant

- Cross

- Defendant

14 Cross

- Claimant

- Appellant, 15 16

v. 22

- 918 17 18 Fujian Ocean Shipping Co. Ltd., individually and on 19 behalf of M/V ZHENG RUN (IMO No. 9593816) and 20 M /V ZHENG RONG (IMO No. 9593828), 21 22 Plaintiff

- Counter

- Defendant, 23 24

v. 25 26 ING Bank N.V., 27 28 Defendant

- Cross

- Claimant

- Counter

29 Claimant

- Cross

- Defendant

- Appellee , 30 31 322 O. W. Bunker Far East (S) Pte . Ltd., Equatorial Marine Fuel 1 Management Services Pte Ltd

. , Sinanju Marine Services 2 Pte Ltd

. , Global Marine Transportation Pte Ltd

. , 3 4 Defendant

- Cross

- Defendant

. 5 6

_____________________________________ 7 8 9 FOR APPELLANT: T HOMAS H. B ELKNAP , J R

. , Blank Rome LLP, New 10 York, NY. 11 12 FOR APPELLEE : B RUCE G. P AULSEN , ( Brian P. Maloney on the brief )
, 13 Seward & Kissel LLP, New York , NY. 14 15 Appeal from a judgment of the United States District Court for the Southern District of 16
New York ( Caproni
, J .). 17

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 18

DECREED that the judgment of the di strict court is AFFIRMED

. 19

O.W. Bunker Far East Pte Ltd. (“OWFE”) contracted with F ujian Ocean Shipping Co. Ltd. 20
(“Fujian”) to supply maritime fuel (called “bunkers”) to one of Fujian’s vessels. OWFE then 21

subcontracted with Global Energy Trading Pte Ltd. (“GET ” ) to fill the order. GET’s contract with 22

OWFE contained a Retention of Title clause, which stated that “[n] otwithstanding delivery and 23
the passing of risk in the [bunkers] having been made,

. . . property in the [bunkers] shall not pass 24

from [GET] to [OWFE] until” GET “received

. . . payment.” App’x at A

- 828. The clause also 25

stated that, until title passed, O WFE “shall upon the request of [GET] return” the bunkers. Id. T he 26

OWFE

- GET contract did not , however, require payment upon delivery; OWFE had 30 days upon 27
receipt of GET’s invoice to pay for the bunkers. Accordingly, the parties agree they were aware 28

th at, prior to payment, the vessel might consume the bunkers delivered by GET during that 29
payment window. 303 GET delivered the bunkers to Fujian’s vessel on November 4 and 5, 201 4

. On November 1

7 , OWFE’s parent company filed for bankruptcy

. On November 10

— bef ore OWFE paid GET

— 2
GET sent a letter to Fujian and OWFE invoking the Retention of Title clause and claiming that 3

GET retained title to the bunkers , Fujian was not entitled to use the bunkers, and any consumption 4
by Fujian would be deemed conversion. Fujian did not return the bunkers or pay GET or OWFE

. 5

OWFE and GET sued Fujian in separate actions
, and Fujian initiated this interpleader 6

action

. ING Bank N.V. (“ING”) , OWFE’s security agent, asserted breach of contract claim s 7
against Fujian and in rem maritime lien claims against the interpleader fund. GET asserted claims 8
against the interpleader fund for conversion of the bunkers based on Fujian’s consumption of the 9

bunkers after GET invoked the retention of title provision and requested return of the bunkers

. 1 10

T he district court granted summary judgment in favor of ING on ING’s claims, denied summary 11
judgment on GET’s conversion claim, and entered judgment in favor of ING and against GET. 12

We assume the parties ’ familiari ty with the underlying facts, the procedural history of the case, 13
and the issues on appeal. 14

“We review de novo a district court’s grant of summary judgment.” Tompkins v. Metro

- N. 15

Commuter R.R. Co. , 983 F.3d 74, 78 (2d Cir. 2020) (cleaned up). “When each side has moved for 16
summary judgment,” we “assess each motion on its own merits and [] view the evidence in the 17
light most favorable to the party opposing the motion, drawing all reasonable inferences in favor 18
of that party. ” Wachovia Bank, Nat ’ l Ass ’ n v. VCG Special Opportunities Master Fund, Ltd. , 661 19
F.3d 164, 171 (2d Cir. 2011). 20

1 GET also asserted a n unjust enrichment claim against Fujian but does not challenge on appeal the district court’s dismissal of it.4 I. GET’s Conversion Claim 1

The district court held that , even assuming GET can bring a conversion claim against 2
Fujian based on GET’s November 10 letter to Fujian , that claim is barred by the doctrine of 3
equitable estoppel. We agree. 4
On appeal, t he parties do not dispute that Singapore law governs GET’s conversion claim. 5
Under Singapore law, the doctrine of equitable estoppel has three elements: (1) “a representation 6

o r conduct amounting to a representation intended to induce a course of conduct on the part of the 7
person to whom the representation is made;” (2) “an act or omission resulting from the 8
representation, whether actual or by conduct, by the person to whom the representation is made; ” 9
and (3) “ detriment to such person as a consequence of the act or omission. ” App’x at A

- 572 (citing 10
Tong Seak Kan v. Jaya Sudhir a/l Jayaram [2016] 5 SLR 887 at [37] ). Here, all three elements 11

are met. 12

First, GET induced a course of conduct because “GET delivered the bunkers to Fujian so 13
that they could be consumed, even before they were paid for.” Special App’x at SPA

- 16. As the 14
Singapore High Court concluded in Precious Shipping Co Ltd v. OW Bunker Far East (Singapore) 15

P te Ltd

. , [2015] 4 SLR 1229
, a physical supplier who deliver s bunkers without requiring payment 16

“ must plainly have intended (or at least must be taken to have intended) for the bunkers to be 17

consumed.” A pp’x at A

- 951. Indeed, GET admits that it was aware that Fujian might consume 185 the bunkers before paying for them

. GET’s delivery constitutes conduct amounting to a 1
representation intended to induce the use of the bunkers. 2 2

Second, “Fujian acted and failed to take other actions in obvious reliance on the implied 3
representation that it could consume the fuel prior to payment,” specifically by “commingl[ing] 4
the fuel with existing fuel that was already on board the vessel.” S pecial A pp’x at SPA

- 17. In 5

addition
, Fujian failed to make “arrang ements for additional refueling,” as it would have needed 6
to do “[i]f Fujian was not relying on GET’s implied representation that it could consume the 7
delivered fuel prior to payment.” Id. Such acts are evidence of Fujian’s reliance, even assuming 8
Fujian had not consumed all the fuel GET had delivered at the time of the November 10 letter

. 9

Third, any “off

- loading of the bunkers and replacement with fuel from another source ” 10
would have caused detriment to Fujian, namely “i nevitable delays and costs.” Id. at SPA

- 18 ; see 11

also App’x at A

- 791

. And “[ p ] aying GET directly would have had the obvious detriment of 12
exposing Fujian to double liability, as it would still have been on the hook to pay OWFE.” Special 13

App’x at SPA

- 18. GET argues that Fujian did not suffer a detriment because Fujian was aware 14
that OWFE “did not take title to the bunkers until it had paid for them, and they also knew that 15
OWFE was contracting with a third party who would have its own terms and conditions. ” 16
Appellant’s Br. at 37. But even if Fujian was aware that OWFE did not have title to the bunkers 17

until it had received payment for them
, Precious Shipping makes clear that Fujian was also legally 18

2 GET claims that delivery could not be an inducement given that, under its contract with OWFE, GET had the right to revoke its permission to use the bunkers without payment and in fact tried to revoke that permission by sending the November 10 letter. B ut GET’s revocation came after Fujian had already been induced into a course of conduct, namely commingl ing GET’s bunkers wi th its existing fuel and beginning to consume the commingled fuel

.6 entitled to rely on delivery by commingl ing and consum ing the bunkers before payment. See 1

A pp’x at A

- 950

- 51 . The Retention of Title clause thus could not have put Fujian on notice to 2
avoid any detrimental reliance. 3
Equitable estoppel is a complete defense against GET’s conversion claim. See T ong Seak 4

Kan [2016] 5 SLR 887 at [3 9 ]

. GET’s conversion claim thus fails as a matter of law. 5

II. ING’s Breach of Contract and Maritime Lien Claim s 6

GET also claims that the district erred in granting ING summary judgment on its breach of 7

contract and maritime lien claim s

. 3 But GET fails to identify any error. 8

First, summary judgment in favor of ING on its breach of contract claim was proper. 9

OWFE contracted with Fujian
, OWFE per formed under that contract, and Fujian failed to pay 10
OWFE the contractual price

. Fujian’s failure to pay OWFE thus constitutes a breach of contract. 11

GET argues

— as it did below

— that ING’s breach of contract claim nevertheless fails because
, 12

based on the R etention of Title clause in OWFE and GET’s contract, “OWFE never had title to 13
the bunkers.” Appellant’s Br. at 44. But as the district court found, “GET cites no authority to 14
explain why the Retention of Title clause in its own contract with OWFE would e liminate OWFE’s 15
separate contract claim against Fujian.” S pecial App’x at SPA

- 10. 16

Second, summary judgment in favor of ING on ING’s maritime lien claims was also 17

proper . T his Court has already held that a “contractor is entitled to assert a maritime li en under 18

[ the Commercial Instrument and Maritime Lien Act] when it contracts with an entity specified in 19

3 The district court found that ING could bring these claims in place of OWFE because “ING has shown that it was validly assigned OWFE's rights under English law.” Special App’x at SPA

- 9. GET does not dispute this finding on appeal.7 the statute for the delivery of necessaries and those necessaries are delivered pursuant to that 1
arrangement, even if by a subcontractor.” ING Bank N. V. v. M/V TEMARA, IMO No. 9333929
, 2
892 F.3d 511, 515 (2d Cir. 2018)

. This standard is met when, as here, “a bunker contractor” such 3

as OWFE “contract [s] with a statutorily

- authorized person for the delivery of bunkers ” and “ the 4

bunkers [are] delivered pursuant to that contractual arrangement.” Id. at 520. 5
Accordingly, we find no error in the district court’s entry of judgment in favor of ING and 6
agains t GET. We have considered all of GET’s remaining arguments and find them to be without 7

merit. For the foregoing reasons, the judgment of the district court is AFFIRMED

. 8

FOR THE COURT: 9 Catherine O ’ Hagan Wolfe, Clerk of Court 10 11 12