Transactions to procure supplies for vessels engaged in international trade typically involve numerous international and local brokers, agents and contractors. The vessel operator or charterer will place an order for supplies with a broker. The broker locates a seller with the best price and reputation in the vicinity of the vessel. The seller makes arrangements with one or more contractors to deliver the supplies to the vessel. At the agreed time and place, the vessel thereafter pays the broker, who ensures that the seller is paid in full less any broker’s commission. The seller then compensates the delivery contractor at their agreed rate. (Of course, failure to timely pay by the vessel interests potentially gives rise to maritime liens against the vessel in favor of the suppliers.)
Under the foregoing arrangements, it is clear that there is no direct contract between the vessel interests and the delivery contractor. However, for purposes of the Oil Pollution Act, the U.S. Fifth Circuit has concluded that the typical arrangements for the sale and delivery of bunker fuel to ships can qualify as a “contractual relationship”, with the result that the vessel could not avoid strict liability for clean-up costs under OPA for a fuel spill resulting from the collision the vessel and a barge, hired by the fuel seller to deliver the fuel to that vessel. Buffalo Marine Servs. Inc. v. United States, No. 10-41108 (5th Cir. Nov. 22, 2011). In so holding, the Court approved the government’s broad definition of “contractual relationship,” which correspondingly resulted in a very limited scope of one of OPA’s affirmative defenses.
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