United States Court of Appeals,
Fifth Circuit.
No. 93-3194.
CRESCENT CITY MARINE, INC. and Central Boat Rentals, Inc.,
Plaintiffs-Appellants,
v.
M/V NUNKI, her engines, tackle, etc., in rem., Defendant-
Appellee.
May 18, 1994.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before ALDISERT*, REYNALDO G. GARZA, and DUHÉ, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Crescent City Marine, Inc. and Central Boat Rentals, Inc.
appeal the district court's finding that they were not entitled to
a maritime lien. Finding no error, we AFFIRM.
I. FACTS
The M/V NUNKI ("NUNKI") was owned by Impressa Transporti
Maritimi SRL, and under the time charter of Scanports Shipping,
Ltd. ("Scanports"). Scanports entered into a voyage charter with
Energy Transport, LTD., a subsidiary of Cabot Corporation.
Scanports, as the "disponet owner" of the NUNKI, appointed Global
Steamship Agencies, Inc. ("Global"), to act as local, husbanding
agent for the charterers after Global had been nominated by the
voyage charterer. Acting on instructions from the voyage
*
Circuit Judge for the Third Circuit, sitting by
designation.
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charterers, Global arranged to have the "slops"1 removed from the
NUNKI, and disposed ashore by Emerald Refining, Inc. ("Emerald"),
an independent Louisiana service company. The voyage charterers
agreed to pay Emerald $1 per barrel both to remove and dispose of
the slops, plus the opportunity to sell any salvageable crude oil
removed from the vessel. After the slops had been removed from the
NUNKI, Emerald sent an invoice to the voyage charterers totalling
$27,644.64, which was paid in full.
Although Emerald agreed with the voyage charterers to remove
and dispose of the "slops" for a flat per-barrel charge, Emerald
hired appellants Crescent City Marine and Central Boat Rentals'
tugs and barges on a per-day basis. After the "slops" had been
removed from the ship, Emerald encountered difficulties in
disposing of the material. This resulted in Crescent City Marine
and Central Boat Rentals' equipment being tied up much longer than
had been anticipated by Emerald. Work that was supposed to be
completed in two to three days actually required approximately
twelve days to finish. The appellants incurred additional
transportation costs of $80,768.66.
The appellants were never paid for their services and
instituted this action by seizing the vessel claiming a maritime
lien. The district court found that the appellants were not
entitled to a maritime lien and vacated their seizure of the
1
"Slops" is an industry term used to define the oily water
residue in the bottom of the ship's tanks after it has been
washed with hot water. This procedure is usually required when
there is a change in cargo assignment.
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vessel. The appellants timely appealed to this court.
II. DISCUSSION
The appellants claim the district court erred in: (1) finding
that the appellants did not perform the work at the request of a
person authorized to act for the vessel; (2) finding that the
contract price to remove the slops was $1 per barrel; (3) finding
that the charges of the appellants were incurred solely because of
delays Emerald encountered in disposing of the slops; and (4)
failing to hold that a maritime lien attaches when necessaries are
ordered by or supplied to a charterer unless the supplier has
notice that the person who ordered the necessaries lacked authority
to do so.
We find that the district court did not err in any of its
findings. Therefore, the judgment of the district court is
affirmed.
A. Did the appellants perform the work at the request of a person
authorized to act for the vessel?
The appellants claim that they have met all of the
requirements for a maritime lien, and that the trial court erred in
holding that they were not entitled to a maritime lien. The
appellants also claim that the district court erred in holding that
Emerald was the only contractor hired by the vessel to perform the
work, and only it could have acquired a maritime lien. The Federal
Maritime Commercial Instruments and Lien Acts provides that:
[A] person providing necessaries to a vessel on the order of
the owner or a person authorized by the owner—
(1) has a maritime lien on the vessel;
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(2) may bring a civil action in rem to enforce the lien;
and
(3) is not required to allege or prove in the action
that credit was given to the vessel.
46 U.S.C. § 31342(a).
Appellants assert that the district court erred in holding
that they were subcontractors and that by definition, they did not
perform the work at the request of a person authorized to act for
the vessel. They claim that the "restrictive repair contractor"
line of cases relied on by the district court does not apply to
this case. See, Bonanni Ship Supply, Inc. v. United States, 959
F.2d 1558 (11th Cir.1992); Farwest Steel Corp. v. Barge SEA-SPAN
241, 828 F.2d 522 (9th Cir.1987), cert. denied, 485 U.S. 1034, 108
S.Ct. 1594, 99 L.Ed.2d 909 (1988). Rather, they claim that the
"agent/broker" or "middle-man" line of cases is more consistent
with the facts presented in this case. See, Marine Fuel Supply and
Towing v. M/V KEN LUCKY, 869 F.2d 473, 475 (9th Cir.1988); Belcher
Co. of Alabama, Inc. v. M/V MARATHA MARINER, 724 F.2d 1161 (5th
Cir.1984). In the "agent/broker" or "middle-man" cases there were
as many as five layers between the owner of the vessel and the
service provider, yet the service provider was still permitted a
lien against the vessel.
Appellants contend that the Federal Maritime Commercial
Instruments and Liens Act broadly defines persons authorized by the
owner to procure necessaries for a vessel. Although 46 U.S.C. §§
31341, et seq. lists those persons presumed to have authority, that
presumption is not conclusive. Gulf Oil Trading Co., A Div. of
4
Gulf Oil Co. v. M/V CARIBE MAR, 757 F.2d 743, 748-49 (5th
Cir.1985). Appellants assert that persons falling outside the
class presumed to have authority might still have authority to
procure necessaries; there is merely no presumption of authority.
Appellants further assert that it is axiomatic in this court that
authorization, either actual, implied or fairly presumed, given
prior to, during performance of the services, or ratified
subsequent to the performance will suffice. Atlantic & Gulf
Stevedores, Inc. v. M/V GRAND LOYALTY, 608 F.2d 197, 202 (5th
Cir.1979).
Appellants assert that Steven Long, the President of Emerald,
testified that Nick Kandiliotis, President of Global, was informed
during their negotiations that:
(1) Emerald did not own the necessary tug boats and tank barges
absolutely required to properly remove, transport and dispose
of the NUNKI's slops; and
(2) Emerald was going to arrange with the appellants to provide the
tug boats and the tank barges incident to the removal,
transportation, and disposal of the NUNKI's slops.
Finally, appellants claim that Cabot and Global gave Emerald
implied, fairly presumed and/or apparent authority to bind the
vessel for all necessary and incidental equipment required to
properly remove, transport and dispose of the vessel's slops.
Cabot and Global gave this authority by contracting with Emerald,
failing to inquire as to Emerald's abilities to complete the
contracted task without the involvement of other parties, with the
knowledge that it is the common practice in the industry for jobs
of this sort to be farmed out to other parties, and the failure to
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object or instruct Emerald otherwise.
Appellees, in contrast, assert that the pertinent provision of
the Federal Maritime Commercial Instruments and Liens Act states as
follows:
(a) The following persons are presumed to have authority to
procure necessaries for a vessel:
(1) the owner;
(2) the master;
(3) a person entrusted with the management of the vessel
at the port of supply; or
(4) an officer or agent appointed by—
(A) the owner;
(B) a charterer;
(C) an owner pro hac vice; or
(D) an agreed buyer in possession of the vessel.
46 U.S.C. § 31341(a).
Appellees contend that the only section applicable is (a)(4),
and since the appellants dealt only with Emerald, the specific
question before the district court was whether Emerald was an agent
appointed by a charterer. Appellees assert that since the district
court found as a matter of fact that Emerald was not an agent, and
was therefore, without presumptive authority, the appellants' case
must fail because they offered no proof that Emerald had actual
authority to bind the vessel.
Appellees assert that the district court specifically rejected
Steven Long's testimony that Nick Kandiliotis, the President of
Global knew that Emerald was going to subcontract the work. The
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district court in its findings and conclusions stated:
The voyage charterer and Global dealt only with Emerald
Refining. Neither the charterers nor Global were aware that
Emerald in fact subcontracted the work to the plaintiffs, and
they did not ever learn of plaintiffs' involvement in the job
until approximately one month later when Global was contacted
by plaintiffs complaining that Emerald had not paid
plaintiffs' invoices.
Appellees further assert that under Louisiana law, an agency
relationship can be created either by an express appointment or by
an implied appointment arising from apparent authority. Richard A.
Cheramie Enterprises, Inc. v. Mt. Airy Ref. Co., 708 F.2d 156, 158
(5th Cir.1983). Since there was no evidence that Emerald was
expressly appointed as an agent, the only issue is whether there
was an implied appointment. In order to establish implied agency,
Cheramie, makes clear that the appellants had to prove that (1) the
charterer, as principal, made some representation or manifestation
directly to the appellants, and (2) the appellants reasonably
relied on Emerald's purported authority as a direct consequence of
those direct representations. Id. Appellees assert that there is
no evidence whatsoever of any communication between the voyage
charterer, purported principal, and the appellants. Consequently,
there is no evidence that anything the alleged principal (Cabot)
did, led the appellants reasonably to believe that Emerald was the
charterers' agent. Furthermore, the district court specifically
concluded that no one associated with the vessel knew that Emerald
would subcontract the work to the appellants. Therefore, there is
no evidence to suggest that the vessel either consented to or
authorized Emerald's delegation of the work.
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Appellees finally assert that Harriet Harrison, the President
of Crescent City Marine, testified that she knew that Emerald was
an independent contractor rather than an agent of the vessel.
We are bound to uphold the district court's findings of fact
unless they are clearly erroneous. Chance v. Rice University, 984
F.2d 151, 153 (5th Cir.1993); FED.R.CIV.P. 52(a).
The district court specifically found that the appellants did
not perform the work aboard the NUNKI at the request of a person
authorized to act for the vessel. The district court further found
that the slops were removed from the NUNKI in three days and that
Emerald was fully paid for the removal. Finally, the district
court found that the additional charges the appellants incurred
were due solely to delays Emerald encountered in disposing of the
slops.
As the appellees point out, Emerald does not fall within the
category of those presumed to have authority to bind the vessel.
Furthermore, based on general agency law, the appellants have not
provided any evidence that Global did anything that would lead the
appellants to reasonably believe that Emerald had implied authority
to bind the vessel.
Therefore, the district court did not clearly err in finding
that the appellants did not perform the work aboard the NUNKI at
the request of a person authorized to act for the vessel.
B. Did the district court err in finding that the contract price to
remove the slops was $1 per barrel?
The appellants claim that the district court erred in finding
that the contract price to remove the slops was only one dollar per
8
barrel rather than one dollar per barrel plus the opportunity to
sell any salvageable crude oil removed from the vessel.
The district court explicitly found that the agreement between
Emerald and Global was simply that "Emerald would be paid $1.00 per
barrel for whatever it took off the ship and would be entitled to
keep whatever product was so removed for whatever purpose."
Therefore, the appellants' argument is meritless.
C. Did the district court err in holding that the appellants'
additional charges were incurred solely because of delays
Emerald encountered in disposing of the slops?
The appellants claim that the district court erred in finding
that the appellants' additional charges were incurred solely
because of delays Emerald encountered in disposing of the slops.
The appellants argue that the agreement between Global and Emerald
specifically stated that the quality of the crude oil had a water
to oil ratio of 60 to 40. The appellees argue that the charges
they incurred were a result of Global's misrepresentations, because
the water to oil ratio was actually 98.5 to 1.5. This made the
slops commercially useless and the charges incurred were solely the
result of having to dispose of these useless slops.
The district court's finding that the additional charges
incurred were a result of Emerald's delays is subject to a clearly
erroneous standard of review. See, Chance v. Rice University, 984
F.2d 151, 153 (5th Cir.1993); FED.R.CIV.P. 52(a).
The appellants cite only to Steven Long's testimony for their
proposition that the additional charges they incurred were a result
of Global's misrepresentations. The district court specifically
9
rejected Steven Long's testimony.
Therefore, the district court did not clearly err in finding
that the additional charges the appellants incurred were due solely
to delays Emerald encountered in disposing of the slops.
D. Did the district court err in failing to hold that a maritime
lien attaches when necessaries are ordered by or supplied to
a charterer unless the supplier has notice that the person who
ordered the necessaries lacked authority to do so?
Appellants assert that Belcher Co. of Alabama, Inc. v. M/V
MARATHA MARINER, 724 F.2d 1161, 1163 (5th Cir.1984), states that a
maritime lien "attaches when necessaries are ordered by and
supplied to a charterer, unless the supplier has notice that the
person who orders the necessaries lacked authority do so."
The facts of Belcher are similar to the case at bar. In
Belcher, Armada Bulk Carriers of Denmark chartered the vessel. Id.
Armada's broker ordered fuel from Baymar, a California broker, and
Baymar contracted with Belcher, who actually supplied the fuel.
Id. Armada paid Baymar and Baymar made partial payment to Belcher.
Id. Belcher then brought an in rem action against the vessel. Id.
The issue in Belcher, however, was whether Belcher could bring an
in rem action against the vessel when the there was a pending legal
action in Denmark. Therefore, the language appellants cite is
dicta.
However, this dicta is of no help to the appellants. As the
appellees point out, the President of Crescent City Marine
testified that she knew that Emerald was an independent contractor
and not an agent of the vessel. Moreover, the district court
specifically found that the appellants knew when they were hired by
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Emerald, that Emerald was an independent service company with no
special relationship to the NUNKI.
Therefore, the district court did not err in finding that the
appellants were not entitled to a maritime lien in this instance.
III. CONCLUSION
For the foregoing reasons, the district court's judgment is
AFFIRMED.
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