Inbesa America, Inc. v. M/V Anglia , 134 F.3d 1035 ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_______________
No. 96-5278
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D. C. Docket No. 95-7147-CV-WJZ
INBESA AMERICA, INC., a Texas Corporation,
Plaintiff-Appellee,
versus
M/V ANGLIA, a 1977 313-foot general
cargo ship, Lloyds Reg. No. 7601724,
her engines, tackle, cargo,
appurtenances, etc., in rem,
Defendant-Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Florida
______________________________
(February 2, 1998)
Before ANDERSON and BIRCH, Circuit Judges, and WOODS*, Senior
District Judge.
*
Honorable Henry Woods, Senior U.S. District Judge for the
Eastern District of Arkansas, sitting by designation.
BIRCH, Circuit Judge:
In this appeal, we determine whether a contract for various
shipping-related services comes within the federal admiralty
jurisdiction. In granting summary judgment for appellee Inbesa
America, Inc. (“Inbesa”), the district court held that a contract
between Inbesa and the charterer of in rem appellant M/V Anglia
was wholly maritime, thereby bringing all disputes arising under the
contract within the federal admiralty jurisdiction. The Anglia,
however, contends that the contract is not subject to admiralty
jurisdiction because the contract covers a variety of non-maritime
services. We REVERSE and REMAND for further proceedings.
I. BACKGROUND
Inbesa operates a terminal shipping facility in the Port of
Houston, Texas. As part of its business, Inbesa provides shippers
with both docking and cargo-handling services. Although Inbesa’s
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own employees perform most of Inbesa’s shoreside services, Inbesa
subcontracts all stevedoring to outside companies.
In April 1994, Inbesa entered a “Stevedoring and Terminal
Services Contract” (“the contract”) with Genesis Container Line
(“Genesis”). Under the contract, Inbesa agreed to perform a variety
of services for Genesis’s liner service, including cargo handling,
dockage, and stevedoring. Inbesa then subcontracted its
stevedoring responsibilities to Gulf Stream Maritime, Inc. (“Gulf
Stream”).
In November 1994, the claimant/owner of the Anglia, Reederei
MS Anglia GmBH & Co. KG (“Reederei”), and Genesis entered into
a time charter allowing Genesis to use the Anglia for its liner service.
Thereafter, the Anglia received terminal services from Inbesa from
July through November 1995 under the existing Inbesa-Genesis
contract. Under the contract, Inbesa billed Genesis for six itemized
categories of services with regard to the Anglia: $ 6,708.56 for
dockage; $ 115,688 for stevedoring; $ 6,708.56 for unloading of
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break bulk (i.e., un-containerized) cargo from trucks; $ 14,807.50
for stuffing and stripping of break bulk cargo into and out of
containers; $ 5,265.68 for securing cargo within containers; and
$ 28,062.36 for moving cargo through Inbesa’s wharf.
When Genesis failed to pay its bills, Inbesa filed a verified
complaint in rem against the Anglia to foreclose on purported
maritime liens for its services. The Anglia, however, argued that the
district court lacked admiralty jurisdiction because the contract
involved significant non-maritime services.1 On the parties’ cross-
motions for summary judgment, the district court awarded final
judgment to Inbesa against the Anglia for $ 177,389.62 plus
prejudgment interest. The Anglia now appeals.
II. DISCUSSION
Before assessing the validity of Inbesa’s asserted lien, we must
first establish whether we have admiralty jurisdiction over the
1
To avoid arrest of the Anglia, Reederei stipulated with Inbesa to substitute security
for Inbesa’s asserted lien.
4
contract from which the lien is purported to arise. See, e.g.,
Ambassador Factors v. RMS, 105 F.3d 1397, 1398-99 (11th Cir.
1997). In order for a contract to fall within the federal admiralty
jurisdiction, it must be wholly maritime in nature, or its non-maritime
elements must be either insignificant or separable without prejudice
to either party. See E.S. Binnings, Inc. v. M/V Saudi Riyadh, 815
F.2d 660, 665 (11th Cir. 1987); 14 Charles Alan Wright et al.,
Federal Practice and Procedure § 3675 (Suppl. 1997) (collecting
cases). To qualify as maritime, moreover, the elements of a contract
must “pertain directly to and be necessary for commerce or
navigation upon navigable waters. . . . The test we apply in deciding
whether the subject matter of a contract is necessary to the
operation, navigation, or management of a ship is a test of
reasonableness, not of absolute necessity.” Ambassador Factors,
105 F.3d at 1399 (quoting Nehring v. Steamship M/V Point Vail, 901
F.2d 1044, 1048 (11th Cir. 1990) (internal quotation omitted).2
2
In this sense, the federal admiralty jurisdiction is co-
terminus with the right of providers of maritime services to
5
Applying this standard, the Anglia argues that a significant portion of
the services provided by Inbesa under the contract were non-
“necessary,” while Inbesa maintains that its contract services were
wholly maritime. We review the district court’s jurisdictional analysis
de novo. See Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir.
1994).
As stated previously, Inbesa asserts a maritime lien on the
Anglia for six itemized categories of services: (1) dockage, (2)
stevedoring, (3) unloading, (4) stuffing and stripping, (5) securing,
and (6) wharfage. Of these claimed services, two, dockage and
stevedoring, are clearly maritime. See Steven F. Friedell, 1
maritime liens. See Bradford Marine, Inc. v. M/V Sea Falcon , 64
F.3d 585, 589 (11th Cir. 1995) (“The lien and the proceeding in rem
are . . . correlative--where one exists, the other can be taken,
and not otherwise.” (quoting The Rock Island Bridge, 73 U.S. (6
Wall.) 213, 215, 18 L. Ed. 753 (1867))). Under the Maritime and
Commercial Instruments and Liens Act, “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; [and] (2) may bring a civil action in rem to enforce the
lien . . . .” 46 U.S.C. § 31342(a)(1) & (2) (emphasis added). The
statutory definition of “necessaries,” however, is non-exclusive
and, therefore, not helpful in this particular case. See 46 U.S.C.
§ 31301(4) (“‘necessaries’ includes repairs, supplies, towage, and
the use of a dry dock or marine railway”); Bradford Marine, 64 F.3d
at 589 (statutory definition non-exclusive).
6
Benedict on Admiralty § 213, at 14-21 (7th ed. 1997) (“During the
furnishing, supplying, loading, unloading and repairing of a vessel,
it is necessary that she should lie at wharf, dock or pier . . . . The
pecuniary charge to which vessels are liable for such use of a dock
or wharf is called . . . dockage and is a subject of admiralty
jurisdiction . . . .” (footnotes omitted)) (collecting cases); id. § 215, at
14-25 (“To enable the vessel safely to transport her cargo, it is of the
first importance that the cargo be well stowed . . . . The business of
stowing ships and of breaking out cargo at the port of delivery has
fallen into the hands of . . . stevedores. Their services are maritime.”
(internal footnote omitted)) (collecting cases).
The remaining categories of services provided by Inbesa under
the contract, however, are non-maritime cargo-handling. Despite
Inbesa’s protestations, “it has long been the rule that contracts
involving cargo are maritime only to the extent the cargo is on a ship
or being loaded on or off a ship.” Luvi Trucking, Inc. v. Sea-Land
Serv., Inc., 650 F.2d 371, 373 (1st Cir. 1981) (citing The Moses
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Taylor, 71 U.S. (4 Wall.) 411, 18 L. Ed. 397 (1866)).3 Inbesa’s
stripping, stuffing, securing, and unloading of cargo into and out of
containers and trucks was not directly related to the loading or
unloading of a maritime vessel. Cf. Bermuda Express, N.V. v. M/V
Litsa, 872 F.2d 554, 563-64 (3rd Cir. 1989) (movement of cargo
chassis along pier “not directly related to loading or unloading the
vessel”); South Carolina State Ports Auth. v. M/V Tyson Lykes, 837
F. Supp. 1357, 1365 (D.S.C. 1993), aff’d, 67 F.3d 59 (4th Cir. 1995)
(cargo container services not maritime); Green Light Transp., Inc. v.
Ocean Express Lines, Inc., No. 93-1686-CIV, (S.D. Fla. 1994)
(positioning truck under stevedore’s crane not maritime). But see
3
Inbesa’s citations to Pittson Stevedoring Corp. v.
Dellaventura, 544 F.2d 35, 53 (2d Cir. 1976), aff’d Northeast
Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 97 S. Ct. 2348,
53 L. Ed. 2d 320 (1977), are inapposite. In Pittson, the Second
Circuit “liberally” interpreted the “remedial” Longshoreman and
Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq, to cover
longshoremen handling cargo along a pier, thereby providing parity
between longshoremen off-loading cargo containers and longshoremen
stripping such containers. See id. at 51-53. In contrast, Inbesa
seeks in the instant case to assert a lien under the Maritime and
Commercial Instruments and Liens Act, 46 U.S.C. § 31342. Maritime
liens are “governed by the principle ‘stricti juris and will not be
extended by construction, analogy or inference.’” Bradford Marine,
64 F.3d at 589 (quoting Piedmont & George’s Creek Coal Co. V.
Seabord Fisheries Co., 254 U.S. 1, 12, 41 S. Ct. 1, 4, 65 L. Ed. 97(1920)).
8
Ceres Marine Terminals, Inc. v. M/V Harmen Oldendorff, 913 F.
Supp. 919, 927 (D. Md. 1995) (holding container stuffing and
stripping to be maritime).4 Although such services by Inbesa were
no doubt important for Genesis’s business, they were not
“necessary” for the Anglia’s operation. Indeed, all of Inbesa’s cargo-
handling services took place on land without regard to whether the
Anglia was in port; Inbesa could have unloaded, stuffed, and
secured cargo from trucks into containers before the Anglia arrived,
and then stripped cargo from containers into warehouses or onto
trucks after the Anglia departed. Although we recognize that
circumstances may sometimes arise in which movement of cargo a
short distance away from a ship may be necessary to make room for
additional off-loading, Inbesa has made no such claim of stevedoring
necessity in this case. The fact that it was convenient, as a logistical
4
In addition to finding Ceres unpersuasive, we are uncertain
whether the case remains good law within the Fourth Circuit. After
the district court in Ceres issued its opinion, the Fourth Circuit
affirmed Tyson Lykes, which had found shoreside, cargo container
services to be non-maritime. See Tyson Lykes, 837 F. Supp. at
1365, aff’d, 67 F.3d 59. The Fourth Circuit, however, did not
discuss the Tyson Lykes district court’s conclusion that such
services were not maritime.
9
matter, for Genesis to have Inbesa fill and empty its cargo
containers at Inbesa’s port facilities is not enough to make Inbesa’s
shoreside, cargo-handling services maritime. Cf. Luvi Trucking, 650
F.2d at 373 (“Whether a contract action falls within admiralty
jurisdiction depends upon the subject matter of the contract rather
than the place where the contract . . . is to be performed”). We see
no reason to blur the line between stevedoring and shoreside cargo-
handling that has long been a useful guide for the district courts in
determining the scope of their admiralty jurisdiction.
For similar reasons, Inbesa’s “wharfage” services, as
idiosyncratically defined by the contract, are also non-maritime.
Normally, the term “wharfage” is used synonymously with “dockage.”
See 1 Benedict § 213, at 14-21. As such, “wharfage” is a maritime
service. See id. Inbesa’s “wharfage” fees, however, reflect charges
for the movement of Genesis’s cargo through Inbesa’s wharf, not
dockage. See R2-33 at 16 (Geiger Depo.) (“Wharfage is a charge
assessed on every ton of cargo that goes through a wharf.”). In fact,
10
Inbesa not only charged Genesis separately for “dockage,” as the
district court noted below, see R3-96 at 5-6, but also listed
“wharfage” under the contract’s heading for terminal cargo-handling
services, see R2-33 Exh. 1 at 2. Inbesa cannot bring shoreside
cargo-handling services within the admiralty jurisdiction simply by re-
labelling them as “wharfage.”
In sum, we conclude that a significant portion of Inbesa’s
obligations under the contract are non-maritime. Even so, it may be
possible for a federal court to exercise admiralty jurisdiction over the
maritime dockage and stevedoring parts of the contract if they are
separable without prejudice to either party. See Binnings, 815 F.2d
at 665. Unfortunately, neither Inbesa nor the Anglia has addressed
the separability or prejudice issues in their briefs before this court,
and the district court did not have reason, given its ruling that the
contract was wholly maritime, to examine such issues in its order
granting summary judgment. Although the itemized nature of
Inbesa’s invoices and claims suggests to us that the maritime and
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non-maritime elements of the contract may be separable, we believe
that the prudent course is to remand the case to the district court so
that it may examine the separability and prejudice issues as a court
of the first instance.5 On remand, the district court should determine,
first, whether Inbesa’s maritime claims under the contract are
capable of separate adjudication and, second, whether separate
adjudication of Inbesa’s claims concerning dockage and stevedoring
would be prejudicial to Inbesa’s or the Anglia’s claims or defenses
regarding the non-maritime contract services.
III. Conclusion
A significant portion of the contract at issue concerns non-
maritime shoreside services. Therefore, we conclude that the
district court erred in exercising admiralty jurisdiction over Inbesa’s
claim for a lien against the Anglia to cover all of Inbesa’s contract
5
As we are remanding the case to the district court, we
decline to reach at this time the additional issues raised by the
parties.
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services to the vessel. Accordingly, we REVERSE and REMAND
the case to the district court for a determination of whether the
remaining contract services are separable without prejudice as
required for the district court to exercise admiralty jurisdiction.
Should the district court conclude that admiralty jurisdiction does lie
with regard to Inbesa’s claims for maritime dockage and stevedoring
services, it may proceed to determine whether summary judgment
is again appropriate.
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