United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 24, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 03-31157
_______________________
PACORINI USA INC; ET AL,
Plaintiffs,
PACORINI USA INC;
CLEAR WATER SHIP AGENCY INC.,
Plaintiffs-Appellees,
versus
ROSINA TOPIC MV, ETC; ET AL,
Defendants,
ROSINA TOPIC MV, HER ENGINES,
TACKLE, APPAREL, ETC., IN REM,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Louisiana
03-CV-381
Before GARWOOD, JONES, and PRADO, Circuit Judges.
Edith H. Jones, Circuit Judge:*
This case arises from an in rem action against a vessel
for payment for services provided to that vessel. Despite the
vessel’s waiver of the issue below, we hold that Clear Water lacked
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
standing, and the district court thus lacked jurisdiction, over
claims belonging to the stevedore Lockwood. The vessel’s
complaints against the judgment for the stevedore Pacorini are
misplaced. We AFFIRM IN PART, REVERSE IN PART, and RENDER.
BACKGROUND
The M/V ROSINA TOPIC (“ROSINA TOPIC”) is a Liberian flag
vessel chartered at all times relevant to this appeal to TorMar
Shipping, A.S. (“TorMar”), a Norwegian corporation. TorMar engaged
Clear Water Ship Agency, Inc. (“Clear Water”) to coordinate the
discharge of various lots of cargo carried by the vessel. TorMar
authorized Clear Water to procure stevedoring services for the
vessel, as well as such barging services as might be needed.
The ROSINA TOPIC began its journey in St. Petersburg,
Russia, carrying cargo that included zinc ingots, copper wire,
aluminum t-bars, and steel bars. The vessel first called in
Newark, New Jersey. Lockwood International (“Lockwood”), hired by
Clear Water, provided stevedoring services in Newark, and Lockwood,
in turn, hired two more companies to discharge the relevant cargo
in Newark. The vessel then continued south, and on January 24,
2003, the ROSINA TOPIC docked in New Orleans, Louisiana, at a mid-
stream buoy system owned by Zito Anchorage, LLC (“Zito”). Pacorini
U.S.A., Inc. (“Pacorini”), a stevedoring company, had negotiated
with the relevant parties to unload part of the cargo in New
Orleans. Specifically, Pacorini had an agreement from Glencore,
2
the lead cargo interest for the cargo onboard the ROSINA TOPIC, to
discharge part of the cargo (a portion of the steel bars and zinc)
on a “liner out” basis. When cargo is unloaded on a “liner out”
basis, the line, charterer, or vessel is responsible for all
stevedoring charges.1
Around this time, Pacorini and the other parties became
aware that the charterer, TorMar, had become financially unstable.2
When TorMar’s insolvency became apparent, all named plaintiffs
demanded adequate assurance of payment from all interested parties,
including the vessel interest for the services that are the subject
of the instant suit. As part of this demand, on January 29, 2003,
Pacorini threatened to halt work, after it had already discharged
approximately two-thirds of the “liner out” cargo. At this point,
Pacorini also entered negotiations with Glencore, owner of the
“liner out” cargo, about guaranteeing payment for discharge of the
zinc portion of the “liner out” cargo if Pacorini was otherwise
unable to obtain payment or security from the vessel interests.
The “through” bill of lading for the steel bars required
delivery to Chicago to Aurora USA, Inc. (“Aurora”), which owned
that particular cargo. Although the ROSINA TOPIC was supposed to
continue to Chicago, the operators learned that it was too large to
1
Additionally, Glencore hired Pacorini separately to discharge part
of the aluminum t-bars on a “free out” basis. This second aspect of the
transactions is not at issue here. When cargo is unloaded on a “free out” basis,
the cargo owner or receiver is responsible for all stevedoring charges.
2
TorMar ultimately filed for bankruptcy in Norway on February 19,
2003.
3
navigate up the Mississippi River. Clear Water, as shipping agent,
then hired Lockwood to arrange barge transportation of the steel
bars from New Orleans to Chicago and for stevedoring services on
arrival. On January 31, 2004, Lockwood issued an invoice to Clear
Water in the total amount of $17,350, representing $13,300 for
barging the steel from New Orleans to Chicago, and $4,050 for
stevedoring services in Chicago. On February 4, 2003, the steel
bars were successfully unloaded from the ROSINA TOPIC to the
appointed barge in New Orleans. On February 8, Clear Water advised
Aurora that Lockwood was holding the barge in New Orleans pending
payment for its services. In spite of this threat, however, the
barge eventually made its trip and the steel bars were unloaded in
Chicago. Although neither Lockwood nor its hired stevedore Ceres
was ever paid, at no time did either company assign its claims to
Clear Water.
On February 7, 2003, Clear Water, Zito, and Pacorini
filed a complaint against the vessel, in rem, seeking to have the
vessel arrested. That same day, Topal Navigation Company, Inc.,
the owner of the vessel, deposited $205,178.08 in the registry of
the court in lieu of arrest.
Following a bench trial, the district court delivered
oral reasons and entered a written judgment in favor of the three
plaintiffs. The district court found that all three plaintiffs had
provided necessaries to the vessel and were entitled to maritime
liens to secure payment. Additionally, the court found that all
4
plaintiffs maintained their liens on the vessel, and that none of
the named plaintiffs waived their rights to assert maritime liens
against the vessel. The district court awarded Clear Water $5,000
for the services provided to the vessel as the ship’s agent. This
award is not disputed in the appeal. The district court also ruled
in Clear Water’s favor for the expenses paid to Lockwood for
stevedoring and barge transportation services in Newark, New
Orleans, and Chicago. Specifically, the district court held “that
Clear Water is obligated to collect and pay Lockwood for
stevedoring services in Newark which amount to $2,177.85, and
Chicago in the amount of $4,050, as well as the charges associated
with barge movement of cargos from New Orleans to Chicago in the
amount of $13,300.” District Court Op. at 10. The district court
awarded docking and line handling fees to Zito. This award has not
been appealed. The district court also awarded Pacorini $42,950
for the discharge of a cargo of zinc while the vessel was moored in
New Orleans, rejecting the contention that Glencore entered into a
valid agreement to guarantee these payments.
The vessel timely filed a notice of appeal. On motion of
the vessel, the district court ordered payment of the parts of the
judgment which were not subject to appeal and stayed execution on
the remainder of the judgment.
DISCUSSION
5
Appellant-Defendant ROSINA TOPIC raises several claims of
error. First, the ROSINA TOPIC contends that Clear Water lacked
standing to assert claims for charges owed to Lockwood, and thus
the district court’s award to Clear Water should be reversed
because that court lacked jurisdiction. In the alternative, the
vessel claims the district court erred as a matter of fact in
finding that Clear Water had a valid maritime lien against the
ROSINA TOPIC. Second, the vessel contends the award to Pacorini
should be reversed because Pacorini waived its maritime lien.
Finally, the vessel asserts that the district court erroneously
awarded Pacorini excessive damages.
Upon appeal of a judgment rendered through a bench trial,
we review the factual findings for clear error and conclusions of
law de novo. See Maritrend, Inc. v. Serac & Co., 348 F.3d 469, 470
(5th Cir. 2003). Factual determinations made under an erroneous
view of legal principles are reviewed de novo. Id. Additionally,
mixed questions of law and fact are reviewed de novo. See Davis v.
Odeco, Inc., 18 F.3d 1237, 1244 n.30 (5th Cir. 1994).
The requirement that a party have legal standing to
assert a violation of legal rights is a constitutional requirement
of jurisdiction that must exist throughout the litigation and
cannot be waived. See Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U.S. 464, 475-
76, 102 S. Ct. 752, 760 (1982); Warth v. Seldin, 422 U.S. 490, 498-
99, 95 S. Ct. 2197, 2205 (1975); Asbestos Information Assoc./North
6
America v. Reich, 117 F.3d 891, 893 (5th Cir. 1997). To have
standing, (1) a plaintiff must have suffered an actual injury of a
legally protected interest which is both (a) concrete and
particularized and (b) actual or imminent; (2) a causal connection
must exist between the injury and the complained of conduct; and
(3) a likelihood must exist that a favorable decision will redress
the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61,
112 S. Ct. 2130, 2136 (1992).
As Clear Water never paid Lockwood any of the costs
Lockwood was due for services rendered to the vessel, it lacks a
cognizable “injury” from the dispute unless it somehow inherited
the claims Lockwood had against Defendants-Appellants. Cf. Florida
Dep’t of Ins. v. Chase Bank of Tex. Nat. Ass’n, 274 F.3d 924, 931
(5th Cir. 2001). Under general maritime law, a maritime agent
acting on behalf of a disclosed principal is not liable for
contract claims stemming from contracts the agent executes on the
principal’s behalf. See Atlantic & Gulf Stevedores, Inc. v.
Revelle Shipping Agency, Inc., 750 F.2d 457, 459 (5th Cir. 1985).
Clear Water, as the agent of disclosed principals ROSINA TOPIC
and/or TorMar, could not have been held liable to Lockwood for
claims arising out of contracts Clear Water executed on these
principals’ behalf. Thus the opposite is also true: where Clear
Water risked no liability, it can win no recovery as agent to
disclosed principals. Moreover, Clear Water offered no evidence in
the district court that Lockwood had assigned its claims against
7
Defendants-Appellants to Clear Water. Clear Water lacks standing
to sue and recover from the Defendants-Appellants — and in fact has
lacked standing from the outset of the lawsuit.3 Thus we must
reverse the district court on its decision awarding damages to
Clear Water; the judgment in Clear Water’s favor for $19,527.85 is
REVERSED.4
For two reasons, the vessel contends the district court
erred in awarding damages to Pacorini because Pacorini waived its
maritime lien. A supplier of necessaries enjoys a strong
presumption that it has not waived its maritime lien. Gulf Oil
Trading Co. v. M/V CARIBE MAR, 757 F.2d 743, 750 (5th Cir. 1985).
To overcome this presumption, a defendant bears the burden of
showing that the plaintiff took affirmative actions that manifested
plaintiff’s clear, purposeful, and deliberate intention to forego
the maritime lien. Id.
First, the vessel asserts that Pacorini waived its
maritime lien by filing a premature in rem suit. But this case is
3
At oral argument, counsel for the vessel conceded that he had never
raised this argument in the district court — and in fact intentionally chose not
to raise such an argument. The fact that this jurisdictional defect can be
raised and addressed in the first instance in this court is an irreducible truth
of constitutional law. However, that legal point does not mean that a party
serves his client, the interests of justice, or his ethical obligations
sufficiently by failing to raise the argument in the first instance in the
district court. This “strategic decision” wasted judicial resources. Although
we will not impose sanctions for this infraction, we trust that counsel will
refrain from this course of action in the future.
4
Because the district court lacked jurisdiction to adjudicate Clear
Water’s claims arising from Lockwood’s charges, we need not address the vessel’s
alternative argument as to whether Clear Water had a valid maritime lien against
the ROSINA TOPIC.
8
unlike Veverica v. Drill Barge Buccaneer No. 7, 488 F.2d 880 (5th
Cir. 1974), where premature arrest of a vessel constituted an
independent breach of the contract giving rise to the lien, and
where the court determined that the vessel did not have to be
seized to protect the lien. Here, Pacorini did not immediately
seize the vessel but instead notified all vessel representatives
prior to the suit, prompting them to post security and avoid arrest
and the interruption of trading. Finding waiver or repudiation of
a maritime lien under these circumstances would vitiate an
important aspect of maritime law — providing a maritime lien to
stevedores servicing vessels. See Atlantic & Gulf Stevedores, Inc.
v. M/V GRAND LOYALTY, 608 F.2d 197, 201 (5th Cir. 1979) (“[I]t was
the intent of the Congress to make it easier and more certain for
stevedores and others to protect their interests by making maritime
liens available where traditional services are routinely
rendered.”).
Second, the vessel points to the arrangement Pacorini
made with Glencore for payment as evidence of waiver. At trial,
however, the court found that Glencore’s willingness to guarantee
payment for the discharging of the zinc portion of the liner out
cargo was contingent upon Pacorini’s inability to secure payment or
security from an alternative source. This arrangement between
Pacorini and Glencore did not amount to a sufficiently “clear and
unequivocal” intent to rely exclusively on the credit or security
of a cargo receiver to constitute waiver of a maritime lien. The
9
district court’s determination comports with our relevant caselaw,
which establishes that “[i]f the evidence shows that the claimant
relied on the credit of the vessel to some extent, we will not find
a waiver of the maritime lien.” Maritrend, Inc. v. Serac & Co.,
348 F.3d 469, 473 (5th Cir. 2003). We will not disturb this aspect
of the district court’s decision.
Finally, the vessel challenges Pacorini’s damage award as
excessive. We review this factual determination for clear error.
See Sosa v. M/V LAGO IZABAL, 736 F.2d 1028, 1035 (5th Cir. 1984).
A verdict is excessive if it is greater than the maximum amount a
trier of fact could properly have awarded. Caldarera v. Eastern
Airlines, Inc., 705 F.2d 778, 784 (5th Cir. 1983).
The trial court awarded Pacorini the invoiced amount of
$42,950, which that court considered “reasonable and justified”
based on the evidence. The vessel contends that this award is
$7,000 higher than the original amount Pacorini agreed to charge.
However, the district court considered this amount the appropriate
market rate; the lower price quote reflected a “volume discount.”
As TorMar became insolvent, its inability to produce additional
volume for Pacorini justified Pacorini’s unwillingness to extend
the concomitant discount. The district court did not clearly err
in awarding this level of damages; we thus affirm all aspects of
the award to Pacorini.
10
AFFIRMED IN PART, REVERSED IN PART, and RENDERED.
JUDGMENT RENDERED IN REVISED AMOUNT. Each party shall bear their
own costs on appeal.
11