     16-4067-cv
     O’Rourke Marine Services L.P. v. M/V COSCO HAIFA, et al.

                                         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 DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
     OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   10th day of July, two thousand eighteen.
 4
 5   Present:    BARRINGTON D. PARKER,
 6               RICHARD C. WESLEY,
 7               DEBRA ANN LIVINGSTON,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   O’Rourke Marine Services L.P., L.L.P.,
12
13                                           Plaintiff-Cross Defendant-Counter Defendant-Appellant,
14
15
16                                           v.                                 16-4067-cv
17
18
19   M/V COSCO HAIFA, IMO No. 9484338, her engines, apparel, furniture, equipment,
20   appurtenances, tackle, etc., in rem, M/V COSCO VENICE, IMO No. 9484405, her engines,
21   apparel, furniture, equipment, appurtenances, tackle, etc., in rem,
22
23                                           Defendants in rem-Counter-Claimants-Counter-Defendants-
24                                           Appellees,
25
26   ING Bank N.V.,
27
28                                           Third Party Defendant-Counter-Claimant-Cross-Claimant-
29                                           Appellee,
30
31   O.W. Bunker North America, Inc.,
32
33                                           Third Party Plaintiff,
34
 1   O.W. Bunker USA Inc.,
 2
 3                           Third Party Defendant.1
 4   _____________________________________________________
 5
 6   Appearing for O’Rourke Marine Services L.P., L.L.P.:          J. Stephen Simms, Casey L. Bryant,
 7                                                                 Simms Showers LLP, Baltimore,
 8                                                                 MD.
 9
10   Appearing for M/V COSCO HAIFA, M/V COSCO VENICE:                      James L. Ross, Gina M.
11                                                                         Venezia, Michael J. Dehart,
12                                                                         Freehill Hogan & Mahar
13                                                                         LLP, New York, N.Y.
14
15   Appearing for ING Bank N.V.:                                  Bruce G. Paulsen, Brian P. Maloney,
16                                                                 Seward & Kissel LLP, New York,
17                                                                 N.Y.
18
19   Appearing for O.W. Bunker USA Inc. Liquidated Trust and Dr. Gideon Böhm, as insolvency
20   administrator and foreign representative of O.W. Bunker Germany GmbH, amici curiae, in
21   support of appellees:
22
23                                                                 Davis Lee Wright, Robert E.
24                                                                 O’Connor, Kaspar Kielland,
25                                                                 Montgomery McCracken Walker &
26                                                                 Rhoads LLP, New York, N.Y.
27
28                                                                 Andrew B. Kratenstein, Darren
29                                                                 Azman, McDermott Will & Emery
30                                                                 LLP, New York, N.Y.
31
32                                                                 Justin M. Heilig, Hill Rivkins LLP,
33                                                                 New York, N.Y.
34
35
36
37
38             UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

39   DECREED that the judgment of the District Court is AFFIRMED.

40             Appellant O’Rourke Marine Services L.P., L.L.P. (“O’Rourke”) appeals from a judgment

41   of the United States District Court for the Southern District of New York (Forrest, J.). The


     1
         The Clerk of Court is respectfully directed to amend the caption as above.


                                                        2
1    District Court entered judgment in favor of ING Bank N.V. (“ING”) and the Vessels M/V

2    COSCO HAIFA and M/V COSCO VENICE (together, the “Vessels”) pursuant to their

3    stipulation. We assume the parties’ familiarity with the underlying facts, procedural history, and

4    issues for review.

5           In October and November 2014, O’Rourke physically supplied bunkers to the Vessels in

6    Houston, Texas. O’Rourke was then never paid for the bunkers. In April 2015, O’Rourke

7    brought this action against the Vessels, asserting claims for maritime liens in an attempt to

8    recover for the unpaid bunkers. Following discovery, O’Rourke moved for summary judgment

9    on its maritime lien claims and, for the first time, argued it was entitled to summary judgment on

10   the basis of breach of contract and unjust enrichment. The District Court denied O’Rourke’s

11   motion, concluding that O’Rourke could not assert a maritime lien against the Vessels, and

12   declined to address O’Rourke’s unpleaded assertions of breach of contract and unjust

13   enrichment. O’Rourke then filed a motion for reconsideration, which the District Court denied.

14   The District Court eventually granted summary judgment against O’Rourke on its maritime lien

15   claims. This appeal followed.

16          On appeal, O’Rourke argues that the District Court erred in granting judgment to ING

17   and in finding that it was not entitled to a maritime lien under statute or in equity. We disagree

18   with these contentions. The District Court properly concluded that O’Rourke could not assert a

19   maritime lien because it did not meet the requirements for a maritime lien as set out by the

20   Commercial Instruments and Maritime Liens Act (“CIMLA”), 46 U.S.C. § 31301 et seq. We

21   held in ING Bank N.V. v. M/V TEMARA, 892 F.3d 511 (2d Cir. 2018), that “CIMLA requires

22   three elements for a maritime lien: (1) that the goods or services at issue were ‘necessaries,’ (2)

23   that the entity ‘provid[ed]’ the necessaries to a vessel; and (3) that the entity provided the




                                                       3
1    necessaries ‘on the order of the owner or a person authorized by the owner.’” M/V TEMARA,

2    892 F.3d at 519 (quoting 46 U.S.C. § 31342(a)). As to the third requirement, “CIMLA defines

3    ‘persons . . . presumed to have authority to procure necessaries for a vessel’ as ‘(1) the owner;

4    (2) the master; (3) a person entrusted with the management of the vessel at the port of supply; or

5    (4) an officer or agent appointed by—(A) the owner; (B) a charterer; (C) an owner pro hac vice;

6    or (D) an agreed buyer in possession of the vessel.’” Id. (quoting 46 U.S.C. § 31341(a)).

7           The District Court determined that only the third of those requirements was at issue and

8    concluded that O’Rourke did not meet it. We agree that O’Rourke did not supply the bunkers

9    upon the order of a statutorily authorized person, thus failing to meet CIMLA’s third

10   requirement for a maritime lien. Instead, O’Rourke was hired to supply the bunkers to the

11   Vessels by a subcontractor, O.W. USA, who, in turn, was contracted by the bunker contractor,

12   O.W. Far East (Singapore) Pte, Ltd. (“O.W. Far East”), who, in turn, was hired to provide

13   bunkers to the Vessels by the corporate affiliate of the agent of the Vessels’ owners. O’Rourke

14   does not appear to dispute this contractual chain. O’Rourke also did not adduce any evidence

15   that would tend to establish that the subcontractor and its contractor were in agency relationships

16   with a statutorily authorized person such that it could have been construed as being hired directly

17   by them. See Marine Fuel Supply & Towing, Inc. v. M/V Ken Lucky, 869 F.2d 473 (9th Cir.

18   1988). Nor did it adduce evidence that a statutorily authorized person controlled the selection of

19   O’Rourke as the physical supplier. See Lake Charles Stevedores, Inc. v. PROFESSOR

20   VLADIMIR POPOV MV, 199 F.3d 220 (5th Cir. 1999).

21          Instead, O’Rourke mainly argues about the effect of a particular clause, clause L.4(a), of

22   the O.W. Far East contractual terms. That clause purports to bind the buyer of the bunkers (here,

23   the Vessels’ agent) to the physical supplier’s terms when the physical supplier “insists” that the




                                                      4
1    buyer be bound. O’Rourke argues that clause means the Vessels should be deemed to have

2    agreed to O’Rourke’s own terms of sale, which state that O’Rourke has a lien over the vessel for

3    the value of the bunkers delivered to it. The District Court properly rejected that argument. The

4    District Court properly concluded that maritime liens are solely creatures of statute, not contract,

5    and are construed strictly under the principle of stricti juris. O’Rourke’s terms of sale cannot fill

6    the absence of one of the statutory requirements for a maritime lien under CIMLA, namely that

7    O’Rourke had been hired by a statutorily authorized person to supply the bunkers, which, in this

8    case, it was not.

9            Finally, O’Rourke argues that it should prevail on a theory of unjust enrichment, even

10   though it never pleaded such a claim in its complaint, but instead mentioned such a theory for

11   the first time in its motion for summary judgment. The District Court properly disregarded this

12   argument. A plaintiff cannot seek relief on a claim it failed to plead. Indeed, “a district court

13   does not abuse its discretion when it fails to grant leave to amend a complaint without being

14   asked to do so.” Greenidge v. Allstate Ins. Co., 446 F.3d 356, 361 (2d Cir. 2006). While

15   “plaintiffs who failed to include a claim in their complaint can move to amend the complaint”

16   and “if summary judgment has been granted to their opponents, they can raise the issue in a

17   motion for reconsideration,” O’Rourke “took neither of these steps.” Id. Nor was any sort of

18   unjust enrichment claim tried by express or implied consent of the parties, so as to invoke Rule

19   15(b)(2).2 The District Court was entitled to disregard such unpleaded claims. In addition,

20   O’Rourke’s argument fails because unjust enrichment claims must be brought in personam, and

21   O’Rourke has filed only an in rem claim against the Vessels. See M/V TEMARA, 892 F.3d at

22   522.
     2
      Federal Rule of Civil Procedure 15(b)(2) provides, “When an issue not raised by the pleadings
     is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in
     the pleadings.”


                                                        5
1         We have considered O’Rourke’s other arguments and find them to be without merit.

2   Accordingly, the judgment of the District Court is AFFIRMED.

3
4                                            FOR THE COURT:
5                                            CATHERINE O’HAGAN WOLFE, CLERK
6
7




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