Opinion
No. 02-2281 Section "C"(4)
February 10, 2003
ORDER AND REASONS
In this admiralty and maritime action pursuant to Rule 9(h) and Rules B and C of the Supplemental Rules for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure (the "Supplemental Rules"), Marine Oil Trading Ltd. ("Plaintiff" "MOBCO") filed a Verified Complain: against the M/V SEA CHARM, her engines, tackle, equipment, appurtenances, etc., in rem (" in rem Defendant") and against Tropic Star Shipping Co. Ltd., in personam ("in personam Defendant" "Tropic Star"). Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Tropic Star, owner of the in rem Defendant M/V SEA CHARM, moves for summary judgment dismissing the claim of MOBCO. For the following reasons Tropic Star's motion for summary judgment is GRANTED.
I. Background
This is an action by MOBCO to recover a debt arising from the supply of fuel oil bunkers to the M/V SEA CHARM. At the time the debt accrued, the vessel was not owned by the in personam Defendant, but instead was owned by another entity, Sea Charm Limited of Malta ("Sea Charm Malta"). On June 25, 1998, Veritas Shipping and Trading Hellas, Ltd. ("Veritas") executed a Time Charter with the former owner. (Rec. Doc. 8, Ex. 1). Under that contract Veritas was responsible for providing fuel. ( Id., ¶ 39) In July of 1998, Veritas, as time charterer of the vessel, through its agent Marcan Shipping ("Marcan"), executed a bunkering sales contract with MOBCO to supply fuel oil and marine diesel to the vessel while it was located in Montevideo, Uruguay. ( Id., Exs. 2 3). The vessel owner was not a party to that agreement. In order to facilitate this transaction, MOBCO contracted with Estimar, S.A. ("Estimar") to physically supply the bunkers. Estimar issued an invoice to MOBCO for payment ( Id., Ex. 7) and MOBCO, in turn, invoiced Marcan. ( Id., Exs. 8 9.)
MOBCO alleges it is subrogated to Estimar's claim of $153,536.91 for delivery of certain fuel oil bunkers to the M/V SEA CHARM. (Rec. Doc. 1, ¶¶ VI VIII)
The bunkers were delivered aboard the vessel, which in turn set sail from Montevideo. At some point thereafter, the M/V SEA CHARY called upon the jurisdiction of Panama. In October of 1998, MOBCO seized the vessel and filed an in rem claim against the M/V SEA CHARM in Panama, alleging that a maritime lien or a statutory right in rem in favor of MOBCO against the vessel existed under Uruguayan law, the situs of delivery of the bunkers. The Panamanian lower court found and the Panamanian Supreme Court agreed that the contract between Veritas and MOBCO was the sole relevant contract at issue and that a choice of law provision in that contract designated the law of England applicable to the action. Further, the Panamanian courts found that Estimar merely supplied the bunkers to the vessel and was not the seller of the bunkers as MOBCO contends. Consequently, the Panamanian Supreme Court held that the M/V SEA CHARM was absolved of liability because English law does not recognize a maritime lien or a statutory right in rem in favor of MOBCO.
For a transcript of the Panamanian lower court decision, see Rec. Doc. 8, Ex. 12, Tribunal Maritimo de Panama, translated at Ex. 13. For a transcript of the Panamanian Supreme Court decision, see id., Ex. 14, Corte Suprema de Justicia, translated at Ex. 15.
The Panamanian Supreme Court concluded that substantial evidence existed and confirmed the maritime court's decision that Estimar acted as a supplier for MOBCO, and that "delivery [of the bunkers] was made by virtue of the supply contract entered into [by] MOBCO and VERITAS and not because of one said to be entered into by ESTIMAR, S.A. and the vessel." (Rec. Doc. 8, Ex. 15, p. 9) Further, the Panamanian Supreme Court concluded that "there is sufficient evidence in the record to show that the M/V SEA CHARM never entered into the supposed sales contract with the plaintiff nor with ESTIMAR, S.A. Instead, everything leads the judge to the conviction that the contract was entered into between the vessel's time charter VERITAS and MOBCO." ( Id.)
On July, 26, 2002, MOBCO arrested the M/V SEA CHARM in the Port of New Orleans, Louisiana, alleging identical claims asserted in the Panamanian proceedings. In the instant Complaint, MOBCO alleges: (1) that a right to arrest exists under U.S. law; (2) that the Panamanian procedure has no preclusive effect because the Panamanian Supreme Court ultimately concluded that it did not have subject matter jurisdiction; and (3) that the Panamanian courts "grossly misconstrued the underlying contract and misapplied Uruguayan law." (Rec. Doc. 16, p. 2).
Tropic Star counters that res judicata and the doctrine of comity preclude this action. Also, Tropic Star contends that MOBCO's claim is barred by the doctrine of laches. Finally, Tropic Star counters that seizure was wrongful because under English law MOBCO has no lien or statutory right in rem against the M/V SEA CHARM.
II. Summary Judgment
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mutual Automobile Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First National Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50, 106 5. Ct. at 2511 (citations omitted).
III. Analysis
A. Res Judicata, Comity and the Panamanian Decisions
The doctrine of res judicata applies when: (1) the parties to both actions are identical (or a: least in privity); (2) the judgment in the first action is rendered by a court of competent jurisdiction; (3) the first action concluded with a final judgment on the merits; and (4) the same claim or cause of action is involved in both suits. Ellis v. Amex Life Ins. Co., 211 F.3d 935, 937 (5th Cir. 2000) (citing United States v. Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994)). "Generally, federal courts determine the res judicata effects of a foreign judgment in a federal question case without any reference to state law." Galehead, Inc. v. MV Liman, 2000 AMC 2689, 2690 (E.D. La. 2000), citing, Wright Miller, 18 Federal Practice Procedure § 4473 (1981). The theory often used to account for the recognition of foreign judgments is that of comity, which is an "essentially voluntary deference to the acts of other governments, undertaken for the common good even though no transnational institution exists to exert any direct compulsion." Id.; see also, Hilton v. Guyot, 159 U.S. 113, 227-28 (1895). Nonetheless, comity should be withheld "when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect." Somportex Ltd. v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 (3d Cir.), cert denied, 405 U.S. 1017 (1971).
MOBCO submits that the Panamanian decision "incorrectly found that [MOBCO's] contract precluded the exercise of lien rights against the vessel," and that it "grossly misconstrued Uruguayan law in holding that no lien arose under Uruguayan law for provision of bunkers to the vessel." (Rec. Doc. 16, p. 8).
As a threshold matter the court will address MOBCO's allegation that the Panamanian decision misconstrued Uruguayan law. Review of both Panamanian court decisions reveals that no misapplication of Uruguayan law occurred during either Panamanian proceeding, precisely because neither Panamanian court applied Uruguayan law. The Panamanian courts made a choice of laws decision and determined that English law, as expressed in the contractual choice of law provision governed the agreement between MOBCO and Veritas.
MOBCO's Uruguayan law expert submits that pursuant to Art. 2399 of the Uruguayan Civil Code, "contracts are governed by the law of the place where they originated. In the case of supply of fuel in a Uruguayan port, there is no doubt that the law of the place of origin is Uruguayan law." (Rec. Doc. 21, Expert Report of Dr. Fernando Aguirre Ramirez, Ex. 2, p. 2). Further, Dr. Ramirez submits that this standard is a "public standard" which nullifies any contract choice of law provisions. ( Id., citing Uruguay Civil Code Art. 2403).
The Court notes that the statements of Dr. Ramirez, if true, would not invalidate the decision of the Panamanian courts, which found that the relevant contract for the supply of fuel that specifically took place in Uruguay was the supply contract between MOBCO and Estimar, of which Veritas and/or the vessel owner were not in privity. Therefore, under MOBCO's urged interpretation of Uruguayan law this supply contract may very well be governed by Uruguayan law, and any choice of law provisions contained therein, may be invalid under that regime. Although there were no specific findings of fact by the Panamanian courts as to the situs of the MOBCO-Veritas purchase contract, there is no evidence whatsoever, that this contract occurred in Uruguay. The contract refers to MOBCO at a London, England address (however, MOBCO now alleges that it is a Delaware corporation with its principle place of business in Louisiana). Also, Marcan, Veritas' agent appears to be a London domiciliary. However, even if Marcan were not domiciled in London, there is no evidence, whatsoever, to suggest that Marcan is a Uruguayan concern, or that it has any connection to that forum. Thus, even if the Court were to adopt MOBCO's urged interpretation of Urugucyan law, (or if the Panamanian courts had applied it as such) the Panamanian decision would be not be disturbed on these grounds.
MOBCO submits that the Court may disregard a foreign judgment where the court issuing the challenged opinion lacked subject matter jurisdiction ( see, e.g., Wilson v. Marchington, 127 F.3d 805, 810 n. 5 (9th Cir. 1997) (citing Restatement (Third) of International Relations § 482); or where the decision violates domestic public policy. ( See, e.g., Victrix S.S. Co., S.A., v. Salen Dry Cargo A.B., 825 F.2d 709, 713 (2d Cir. 1987). First, the Court is not persuaded by MOBCO's argument that comity should not be extended to the Panamanian decision "because the court in Panama, finding no lien, thereby found that it lacked jurisdiction over the case itself." (Rec. Doc. 16, p. 7). Review of the Panamanian decisions does not reveal a dismissal for lack of subject matter jurisdiction. On the contrary, upon consideration of an extensive record, the Panamanian Supreme Court found that the maritime court made a choice of laws determination and found that English law governed the relevant contract at issue and reached the merits of the case. ( See Rec. Doc. 8, Ex. 15) (discussing whether substantive law was applied the court found that "a great quantity of evidence, such as out-of-court declarations, affidavits, answers to interrogatories, expert opinions and other documents, analysis and examination, of which makes it clearly feasible to deduce the merits of [plaintiff's] claim." Id., p. 7)
There is no express discussion of dismissal for lack of subject matter jurisdiction in either Panamanian court decision. Unfamiliar with Panamanian procedure and the limits of jurisdictional authority of Panamanian courts, the Court cannot presume that the Panamanian decision does not reach the merits of the case. Further, the Court acknowledges the distinction between its own subject matter jurisdiction and statutory jurisdiction over a vessel, in rem. For example, this Court maintains its subject matter jurisdiction over any action in admiralty, even though the Court cannot exercise jurisdiction over the vessel, in rem, under Supplemental Rule C absent the existence of a maritime lien. Dismissal of an action in rem for failure to comply with Supplemental Rule C does not necessarily equate with a lack of subject matter jurisdiction.
Likewise, the Court is not persuaded by MOBCO's argument that comity should not be extended to the Panamanian decision because "the Panamanian court grossly misinterprets the underlying contract, contrary to U.S. decisions interpreting similar contracts." (Rec. Doc. 16, pp. 7-8). In support of this argument, MOBCO asserts that "the vessel as a source of credit for the provision of necessaries is a lynchpin of maritime commerce. The Panamanian decision is contrary to this fundamental policy of maritime law, and thus, contrary to U.S. public policy." ( Id., p. 8).
The contract between MOBCO and Veritas contains a general choice of law provision stating that English law governs. MOBCO, is a sophisticated business entity and the author of the contract. Despite MOBCO's vociferous argument regarding fundamental international maritime principles, United States courts have routinely found "where a service contract is governed by English law, the existence of a maritime lien is to be determined by English law, not the law of the forum." Bolongon v. M/V Nor Atlantic, No. 99-1261, 1999 U.S. Dist. LEXIS 15575, at *9-10 (E.D. La. Oct. 5, 1999)., citing, J.P. Provos Maritime, S.A. v. M/V AGNI, Nos. 99-26, 99-29, 99-47, 99-106, 1999 U.S. Dist. LEXIS 12012, 1999 WL at 558151, at *4 (E.D. La. July 28, 1999); see also, Sembawang Shipyard, Ltd. v. Charger, Inc., 955 F.2d 983 (5th Cir. 1992); Trinidad Foundry Fabricating, Ltd. v. M/V K.A.S. CAMILLA, 966 F.2d 613 (11th Cir. 1992). It is well settled that English law does not recognize maritime liens for the provision of necessaries. See Bolongon, 1999 U.S. Dist. LEXIS 15575, at *10 (citations omitted) Courts in this district routinely apply the English legal standard for the existence of maritime liens where contracts expressly designate that English substantive law governs. See generally, id. Accordingly, the Panamanian decision applying English law and holding that no maritime lien exists is not contrary to U.S. public policy.
Whether the Panamanian court "fail[ed] to properly interpret the express language of the underlying contract," as MOBCO suggests is of no moment. Courts routinely interpret contracts and whether the Panamanian courts correctly interpreted this particular contract has no bearing on U.S. public policy, especially considering that the transaction did not involve the United States.
MOBCO sought a judicial determination from the courts of Panama by seizing the vessel in that forum and the Panamanian courts exercised jurisdiction and reached the merits of the case. The Panamanian judgment reflects thorough, reasoned and competent analysis. Therefore, it constitutes prima facie evidence of the non-existence of a maritime lien for necessaries under English law. See Ellis, 211 F.3d at 937. Further, recognition of the Panamanian decision would not be contrary or prejudicial to U.S. interests. See Somportex, 453 F.2d at 440. However, in an abundance of caution, the Court will address and independently assess whether English law or Uruguayan law should apply to this case.
B. Whether English Law Governs
The MOBCO-Veritas agreement contains a choice of law clause which states, "[t]he Agreement shall be governed by and construed in accordance with English law and the parties submit to the jurisdiction of the English High Court of Justice." (Rec. Doc. 8, Ex. 3, ¶ 19). The party who wrote the contract, MOBCO, chose English law to govern the commercial enterprise between it and Veritas. As a general rule, MOBCO cannot now seek to avoid the language of its own contract. Bolongon, 1999 U.S. Dist. LEXIS 15575, at *10 (E.D. La. Oct. 5, 1999).
MOBCO contends that the Panamanian courts misinterpreted the agreement, because the contract's own terms limit the application of English law. MOBCO submits that Paragraph 9 specifically reserves the right to obtain a lien against the vessel for product supplied to it. Also, MOBCO submits that the preamble to the "Standard Terms and Conditions" states that, to the extent that any terms in the "Confirmation of Stem" conflict with the Standard Terms and Conditions, the Confirmation Terms shall prevail. ( See Rec. Doc. 16, p. 3). MOBCO urges that this language is significant because the Confirmation sent to Marcan specifically reserved MOBCO's right to proceed against the vessel. ( Id., citing Rec. Doc. 8, Ex 2) ("The supply will be made not only on the credit of the Buyer, but also on the faith and credit of the vessel itself. Marine Oil Trading may assert a lien against the vessel itself.")
Although Paragraph 9 purports to permit a lien on the vessel, the vessel was not a party to the contract. Paragraph 9 more accurately states, "[i]f not the owner of the Vessel the Customer hereby warrants that it has the authority of the owner to pledge the vessel's credit." ( Id., ¶ 9). Although, the Customer (Veritas) "warrants" that it has the owner's authority, the Charter Agreement specifically states that fuel is the Charter's (Veritas) responsibility. ( See Id., Ex. 1, ¶ 39).
MOBCO relies on the Fifth Circuit decision in Liverpool London S.S. Prot. Indem. Ass'n v. Queen of Leman MV, 296 F.3d 350 (5th Cir. 2002), to support its position that despite the choice of law provision designating English law, exceptions in the contract preserve its right to assert a lien against the vessel for the supply of necessaries. In that case, the Fifth Circuit found that the choice of law clause did not limit an insurer's lien rights, because such an interpretation would render the contractual provisions granting a lien meaningless:
In that case the vessel's protection and indemnity insurer arrested the vessel in the United States to enforce a lien for unpaid premiums.
LL argues persuasively that applying English law to the issue of the existence of a maritime lien would render Rule 40's grant of a "lien on ships" meaningless, as English law would not recognize a maritime lien. Moreover, it calls into question the relevance of the Rule 48 provision allowing for the enforcement of a lien in "any jurisdiction in accordance with local law." If English law controls and there is no maritime lien for unpaid insurance premiums, then LL would have little need for enforcement provisions, as no right would exist to be enforced.
. . .
We therefore agree with LL that in order to give meaning to the entire contract, the determination of whether a maritime lien exists in the first place should be determined by United States law.
( Id., at 353-54). MOBCO suggests that like the protection and indemnity ("PI") contract in the Queen of Leman, a question of the scope of the choice of law provision exists as applied to claimant's lien rights. Moreover, MOBCO submits that, as in the PI contract, application of the choice of law provision here would invalidate claimant's lien rights, thus making the lien provisions in the contract meaningless.
The Court finds the contract provision at issue in the Queen of Leman distinguishable. In that case, the Fifth Circuit found that "[u]nder Rule 40 of the 1999 version of the contract, [plaintiff] is entitled to `a lien on the ships of a member' for any unpaid premiums. Rule 48 provides that:
These rules and any special terms of entry form a contract of insurance between the Association and a member, and subject to the right of the Association under Rule 47C to enforce its right of lien in any jurisdiction in accordance with local law in such jurisdiction, shall be construed in accordance with English law."Id., at 353 (quoting PI Rule 48) (emphasis added).
In contrast, the MOBCO contract does not provide for an express right to enforce a lien "in any jurisdiction in accordance with local law." Rather, Paragraph 9 of the MOBCO contract simply states that "[p]roduct is supplied upon the faith and credit of the Vessel." (Rec. Doc. 8, Ex. 3, ¶ 9). Paragraph 9 also contains additional language that forestalls any attempt by "any person to restrict, limit or prohibit its lien or liens attaching to the Vessel." ( Id.) There is nothing in Paragraph 9 that speaks to MOBCO's right "to enforce its right of lien in any jurisdiction in accordance with local law." See Queen of Leman, 296 F.3d at 353, quoting PI Rule 40 (emphasis added).
Further, although Paragraph 19 contains qualifying language, expanding MOBCO's right to bring an action in a forum other than the English High Court of Justice, this modification does not expressly affect the choice of law provision to the same extent that Fifth Circuit found existed in the PI contract in the Queen of Leman. In that case, the qualification in Rule 47 was explicit:
Nothing herein shall affect or prejudice the right of the Association to take action and/or commence proceedings in any jurisdiction to enforce its right of lien on ships or to otherwise obtain security by seizure, attachment or arrest of assets for any amounts owed to the Association.Id., at 353, quoting Rule 47 of the PI contract (emphasis added) In contrast, the qualification in the MOBCO contract is more general and does not expressly except "liens on ships" in particular:
Nothing in this clause shall, however, preclude the Company . . . from taking any such action . . . to enforce, safeguard or secure its rights under the Agreement in any Court or Tribunal or any state of country.
(Rec. Doc. 8, Ex. 3, ¶ 19). Moreover, although the forum selection aspect of the MOBCO "Law and Jurisdiction" clause is qualified, unlike the express reservation in Rule 40 of the PI contract in the Queen of Leman to employ "local law," no such modification is made here with respect to choice of law. Thus, pursuant to Paragraph 19, MOBCO can assert its rights under the agreement in any forum, however, these rights remain expressly determined by English law. Unlike the PI contract at issue in the Queen of Leman, there is no specific reference to application of "local law," nor is there particular exception to "liens on ships."
In the Queen of Leman, the Fifth Circuit clearly distinguished the contract at issue from MOBCO-like contracts that do not "qualify general choice of English law with the explicit exception to allow for asserting liens in foreign jurisdictions." See id., 296 F.3d at 354, citing, Ocean Marine Ins. Ass'n Europe O.V. v. M/V Lia, 1999 U.S. Dist. LEXIS 21369, 1999 WL 679671 (E.D. La. Aug. 27, 1999); and Bolongon. Review of the district court decision in Ocean Marine reveals that Rule 40 of the contract at issue in that case provided that English law governed. Rule 12 in Ocean Marine, like instant Paragraph 9 created a lien on vessels, and Rule 41 in Ocean Marine, like instant Paragraph 19 contained qualifying language permitting claims to be brought in any jurisdiction. The court in Ocean Marine found that:
Nothing in these two provisions [Rules 12 and 41] carves out an exception for maritime liens to the clear choice of law provisions of the Rule Books selecting English law, or indicates, in any way, that Plaintiff and its members agreed that United States law governs the creation of maritime liens.Ocean Marine, 1999 U.S. Dist. LEXIS 21369, at *6. Plaintiff's reliance on Queen of Leman for the application of Uruguayan law is in error, because that case dictates that without "explicit exception to allow for asserting liens in foreign jurisdictions," English law should apply. See id., 296 F.3d at 354. (distinguishing general contractual language in Ocean Marine nearly. identical to MOBCO's contract). Therefore, analyzed under Fifth Circuit law, the contract at issue is governed by the law of England.
As discussed above, English law does not recognize maritime liens for the provision of necessaries. Thus, even if the Court were to disturb the Panamanian court decision, MOBCO cannot proceed in rem against the M/V SEA CHARM. See Trinidad Foundry, 966 F.2d at 617 (finding that absent a maritime lien there is no jurisdictional basis for an in rem action pursuant to Supplemental Rule C); see also, Bolongon, 1999 U.S. Dist. LEXIS 15575 at *11. Finally, because there is no maritime lien against the vessel, there is no cognizable claim against the owner of the vessel, in personam Defendant, Tropic Star under Supplemental Rule B.
IV. Conclusion
MOBCO arrested the vessel M/V SEA CHARM in the jurisdiction of Panama and brought identical claims before a competent court in that forum. The Panamanian courts exercised jurisdiction over this matter, found that English law applied to the contract at issue and determined that no maritime lien existed under English law. Through independent analysis and application of Fifth Circuit precedent, the Court has reached the same conclusion.
Because the Court is satisfied that no maritime lien exists under English law, there is no need to address Tropic Star's argument under the doctrine of laches. Moreover, the disputed issue of fact regarding the validity and impact of the letter from the ship's master to Estimar is of no moment, because the existence and content of this letter has no bearing on the Court's analysis of the scope of the choice of law provision in the MOBCO contract. ( See Rec. Doc. 6, Ex. 6).
There is no evidence that the Panamanian courts lacked subject matter jurisdiction nor is the Panamanian decision contrary to United States public policy. Further, the Panamanian decision was thorough, well reasoned and in accord with the Court's analysis. Therefore, under notions of comity, the Court recognizes the Panamanian decisions as res judicata. In the alterative, the Court concludes that English law applies to this dispute and as such, no maritime lien exists, therefore, there is no right to arrest the vessel under Supplemental Rule C and no claim against the owner, in personam Defendant, Tropic Star under Supplemental Rule B.
Exercise of comity and deference to the Panamanian decision, however, is not necessarily dependent on the Court's accord with the Panamanian court's conclusion on the merits.
Accordingly, IT IS ORDERED that the Motion for Summary Judgment of Defendant, Tropic Star Shipping Co. Ltd. is GRANTED. IT IS FURTHER ORDERED that Defendant' s security be released and the claims of Marine Oil Trading, Ltd. dismissed.