join, concurring in part and dissenting in part:
We took this case en banc to decide whether insurance is a “necessary” so that the supplier of insurance is entitled to a maritime lien for insurance premiums under the Maritime Lien Act. I concur in the majority’s affirmative answer to this question and the clear persuasive reasons advanced in support of this rule.
I thoroughly disagree, however, with the court’s holding that James, who supplied the insurance, did not, as a matter of law, rely on the credit of the vessel and thus waived his lien. This conclusion is bottomed on a finding that James relied on the credit of the vessel owner and others without consciously considering whether he would lien the vessel if the owner defaulted. In holding that this is sufficient to rebut the presumption of reliance by a supplier on the credit of the vessel, the court, without a word of disapproval, overrules at least twenty-five years of established law in this circuit and creates serious practical problems in the enforcement of maritime liens.
I.
Before the adoption of the Maritime Lien Act (lien act), a supplier who claimed a lien for necessaries furnished to a vessel in her home part was required to establish his reliance on the credit of the vessel as an essential element of the lien. G. Gilmore & C. Black, The Law of Admiralty, § 9-37 (2d ed. 1975). The circuits were split, however, as to whether the materialman asserting a *608lien under state statute had the burden of establishing reliance on the credit of the vessel. Id. The lien act contains two provisions relevant to this reliance on the credit of the vessel element of the lien. The first, section 971 (46 U.S.C. § 971), provides that “it shall not be necessary to allege or prove that credit was given to the vessel.” The second relevant provision of the lien act, section 974 (46 U.S.C. § 974), provides that nothing in the act should be construed to prevent a supplier of necessaries from waiving his right to a lien “by agreement or otherwise.”
Following the adoption of the lien act, the Supreme Court in Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 41 S.Ct. 1, 65 L.Ed. 97 (1920), held that the effect of the lien act was to give the materialman the benefit of a presumption that he relied on the credit of the vessel when he furnished necessaries. The law has been exceedingly clear in this circuit, at least since 1958, that this presumption is a strong one that may be rebutted only by showing that the supplier intentionally relinquished his right to a lien. We have consistently rejected the argument that reliance by the supplier on the personal credit of the vessel owner or charterer is sufficient to rebut that presumption.
In Point Landing, Inc. v. Alabama Dry Dock, 261 F.2d 861 (5th Cir.1958) the supplier of a new engine for the vessel took a note from the vessel owner, a chattel mortgage on the vessel and a mortgage on the vessel owner’s real estate to secure the indebtedness for the engine. The vessel owner argued that no lien arose because the note obtained from the owner, along with the conventional security devices to secure that note, reflected that the supplier relied on the credit of the owner rather than the vessel. This argument was soundly rejected. Judge Brown, speaking for the court, announced a rule that has been consistently followed: “In a proper case it might well be that all such acts, with other convincing testimony deemed sufficient to establish it by a preponderance of the evidence, might permit the inference that the supplier purposefully intended to forego the valuable privilege which the law accords and look solely to the owner’s personal credit. Here, there was no such proof.” 261 F.2d at 867 (emphasis added).
In Gulf Trading & Transportation Co. v. The Vessel HOEGH SHIELD, 658 F.2d 363 (5th Cir.1981), cert. denied, 457 U.S. 1119, 102 S.Ct. 2932, 73 L.Ed.2d 1332 (1982), the shipowner argued that the lien had been waived because the supplier dealt with the charterer of the vessel and had no contact with the vessel owner. The court concluded “[w]e agree with Gulf that when the transaction is considered as a whole, nothing was purposely done by Gulf to waive the maritime lien that arose as a matter of statutory law upon the furnishing of bunker fuel to the vessel in a United States port.” 658 F.2d at 368. (emphasis added)
In a very recent case, Gulf Oil Trading Co. v. M/V CARIBE MAR, 757 F.2d 743 (5th Cir.1985), we held that the supplier of bunkers had not waived its maritime lien even though the fuel was sold to the charterer which had enjoyed a long business relationship with the supplier and had a fixed dollar line of credit with the supplier. We stated “[bjecause of the strong presumption in favor of a maritime lien, we have consistently held that it is necessary that a litigant arguing for such a waiver prove that the creditor deliberately intended ‘to forego the valuable privilege which the law accords and look solely to the owner’s personal credit.’ ” 757 F.2d at 750 (emphasis in opinion at p. 750). To the same effect, see Sasports v. M/V SOL DE COPACABANA, 581 F.2d 1204, 1209-10 (5th Cir.1978); TTT Stevedores of Texas, Inc. v. M/V Jagat Vijeta, 696 F.2d 1135, 1139 (5th Cir.1983). See also Farrell Ocean Services, Inc. v. United States, 681 F.2d 91, 93-94 (1st Cir.1982).
Gilmore & Black, after a thorough discussion of the background of this defense to the assertion of a maritime lien, states: “... the presumption that the lienor relied *609on his lien has become all but conclusive.” G. Gilmore & C. Black, The Law of Admiralty, § 9-38, (2d ed. 1975).
II.
The majority cites three sources in the record that it finds sufficient as a matter of law to establish that James waived its lien.
First, the court points to the cross-examination of James’ marine manager, Mr. Har-grove. Before the testimony was given that is relied upon by the court, counsel questioned Hargrove closely about why James did not require either Equilease or Eltra to sign the Borg-Warner note along with Dunnamis. Counsel then attempted to learn from Mr. Hargrove the identity of the person in the James organization who made the decision to extend credit for the insurance sold on the vessels in question. Hargrove responded that James thought the bill for the insurance premiums would be paid promptly and that a credit transaction was not intended. The series of questions that culminated in the answer relied on by the majority then followed.1 Nowhere in this line of questioning did counsel refer to the liability of the vessel or the willingness of James to enforce a lien if the law gave him one. In sum, Hargrove testified that James, as the insured’s broker, advanced the premiums in the belief that Eltra or Equilease, two corporations with substantial assets, would see that Dunnam-is reimbursed James in the normal course of business. Hargrove was not asked whether he intended to assert a lien against the vessel if the premiums were not paid, but under these circumstances it is reasonable to infer that he did not consider what collection steps he would take if James’ invoice was not paid. As the majority acknowledges, Hargrove did state that he did not intend to give up any right.
The statement in James’ brief2 relied on by the majority in support of its finding that James waived the lien appears in the portion of James’ brief dealing with the validity of Equilease’s mortgage on the vessel. James was attempting to make the point in this passage of its brief that Dun-namis was a shell corporation acting as agent for its dominant parent, Equilease, the party that funded the entire operation and on whose reputation and credit all parties relied.
The most that can reasonably be inferred from Mr. Hargrove’s testimony and the above sentence from James’ brief is that James relied on the personal credit of Dun-namis, Equilease and Eltra and no consideration was given to collection procedures that might be followed in the event of default. The record evidence does not suggest any reason James would relinquish his right to a lien and Mr. Hargrove’s testimony that James did not intend to give up this right is completely credible. In my view, the record evidence relied on by the majority falls far short of supporting a finding that James intentionally relinquished his right to a lien.
*610The majority cites an additional reason why James waived his lien: Until today, the law in this circuit did not allow a lien to one providing insurance, so James had no right to rely on the vessel to pay the debt.
Although the significance of this fact is not explained by the majority, I do not read the opinion to hold that James is not entitled to the change in the law we announce today. It would be novel indeed to hold that the litigant who blazed the trail and persuaded the court to change the law is not entitled to the benefit of that change.
The record does not establish that Mr. Hargrove or anyone else with James knew that James was not entitled to a lien under the law of this circuit when the insurance was furnished. Without proof of such knowledge by James, I fail to see how it can be said that James intentionally relinquished the lien by furnishing necessaries with knowledge that no lien would accrue.
In resolving this issue, the majority seeks to answer the following question: Did James consciously rely on the credit of the vessel when he supplied the insurance. I have no quarrel with the negative answer to that question; it is simply the wrong question. The question which should be asked is whether the record compels the inference that James deliberately or purposefully intended to forego his right to a lien. The record in my view does not support — much less compel — such an inference.
III.
I am persuaded that the rule adopted by the majority will have several untoward consequences in maritime lien litigation. First, an inordinate amount of unproductive trial time will be expended trying to divine the subjective thoughts of the supplier as to whether he considered at the time ofthe sale whether he would lien the vessel if his bill was not paid. If the supplier is a large concern with distinct sales and credit departments the subjective intent of several persons may be relevant. The small unsophisticated supplier uninformed about liens and unaware that his services or supplies give rise to a maritime lien will face a serious problem. According to the majority, such a supplier who has no knowledge that the vessel is liable for the debt and thus does not rely on the credit of the vessel waives his lien. Many of the larger firms will incorporate language in their invoices that will negate any intent to waive the lien. But the less sophisticated individuals and small suppliers — who need lien protection the most — will frequently lose their lien.
IV.
The holding of the majority that James lost its lien because it did not rely on the credit of the vessel is premised on an erroneous interpretation of the Lien Act. In my view, this holding will have the effect of advancing form over substance and creating unnecessary uncertainty, confusion and litigation in this important area of commercial law. For these reasons, I respectfully dissent from this feature of the court’s opinion.
. Q. Mr. Hargrove, what did you rely on for payment of those insurance premiums?
A. Now, why we allowed the premiums to go as long as they did?
Q. No, sir. What did you rely on for payment of those insurance premiums?
A. I still don’t understand your question. I mean, who—
Q. Who or what did you rely on?
A. It was our understanding from the very beginning that Equilease, whether directly or indirectly, and at that time we understood the money was to be given to Dunnamis, we were receiving money from Dunnamis, which was money furnished by Equilease.
Q. So—
A. And again, that’s why we allowed the receivables to go as long as they did without payment. I mean, under normal course of business, if it had not been Eltra, Equilease, we would have cancelled that policy a long time prior to the July 20th renewal.
Q. So you are saying you relied only on Dun-namis, Equilease and/or Eltra, is that a fair statement?
A. That’s a fair statement.
. The Unilease Companies stand in the same position as a general agent for the operations of the Vessels on behalf of Equilease. There was the requisite mutual inter-dependence on the financial credit and stability of each of the parties. The Unilease Companies were totally funded for the operations of the Vessels by Equilease and it was the credit of Equilease upon which all parties placed total reliance.