Nederland Shipping Corp v. United States ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-2269
_____________
NEDERLAND SHIPPING CORPORATION;
CHARTWORLD SHIPPING CORPORATION,
v.
UNITED STATES OF AMERICA
Nederland Shipping Corporation,
Appellant
_______________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-19-cv-01302)
District Judge: Hon. Richard G. Andrews
_______________
Argued
April 14, 2021
Before: CHAGARES, JORDAN, and SCIRICA, Circuit
Judges.
(Filed: November 16, 2021)
_______________
George M. Chalos [ARGUED]
Chalos & Co.
55 Hamilton Avenue
Oyster Bay, NY 11771
Counsel for Appellant
Anne Murphy [ARGUED]
United States Department of Justice
Appellate Section
Room 7644
950 Pennsylvania Avenue, NW
Washington, DC 20004
Charles W. Scarborough
United States Department of Justice
Appellate Section
Room 7244
950 Pennsylvania Avenue, NW
Washington, DC 20004
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Delay is a serious problem in the transportation
business, especially for shippers of perishable goods. So, when
a ship called the M/V Nederland Reefer (the “Reefer” or the
“Vessel”), carrying a cargo of fruit, arrived in the Port of
2
Wilmington, Delaware in February of 2019, its crew thought
the layover would be brief. Things did not turn out that way.
After a Coast Guard inspection of the ship revealed evidence
of an illegal discharge of bilge water,1 the Reefer was held in
port pending an investigation. The Reefer’s owner, Nederland
Shipping Corporation (“Nederland”), wanted to get the ship
back to sea as rapidly as possible and so entered into a contract
with the United States government to allow for the release of
the Reefer in exchange for, among other consideration, a surety
bond to cover potential fines.
Although Nederland delivered the bond and met its
other requirements under the contract, the Vessel was detained
in Wilmington for at least two additional weeks. Nederland
sued in the United States District Court for the District of
Delaware, but the government moved to dismiss the suit,
arguing among other things that the District Court lacked
subject matter jurisdiction. The District Court accepted that
argument and dismissed the complaint, holding that
Nederland’s claims had to be brought in the United States
Court of Federal Claims. More specifically, the District Court
1
“Bilge,” as a shorthand expression for bilge water, is
sometimes used as a synonym for “nonsense,” denoting
disbelief and derision, Bilge, Cambridge Dictionary (2021),
https://dictionary.cambridge.org/us/dictionary/english/bilge,
but it has a literal maritime meaning too. Bilge water is the
often noxious mixture of liquids that collects in the lowest
compartment of a ship. Bilge Water, Cambridge Dictionary
(2021),
https://dictionary.cambridge.org/us/dictionary/english/bilge-
water. Improperly disposing of it can lead to criminal liability,
as further discussed herein.
3
held that the breach of contract claim did not invoke the
Court’s admiralty jurisdiction and that the statutory cause of
action under the Act to Prevent Pollution from Ships (the
“APPS”) failed because the APPS did not waive the
government’s sovereign immunity. We disagree on both
counts and will accordingly reverse and remand for further
consideration.
I. BACKGROUND
The Reefer arrived at the Port of Wilmington, Delaware
on February 20, 2019 for what Nederland expected to be a short
stay. Upon shipboard inspection, however, the Coast Guard
noticed evidence suggesting that the Vessel had violated the
APPS.2 Specifically, the Coast Guard suspected that the
Vessel had discharged dirty bilge water directly overboard and
misrepresented in its record book that the ship’s oil water
separator had been used to clean the bilge water prior to
discharge. The Coast Guard accordingly detained the Reefer
2
The Act to Prevent Pollution from Ships authorizes the
Department of Homeland Security to enforce the 1973
International Convention for the Prevention of Pollution from
Ships (“MARPOL”) and to “prescribe any necessary or desired
regulations to carry out” that treaty. 33 U.S.C. § 1903(c)(1);
see United States v. Abrogar, 459 F.3d 430, 431-32 (3d Cir.
2006). It is a crime to “knowingly violate[ ]” those regulations
or the APPS. 33 U.S.C. § 1908(a). “A ship operated in
violation of” those laws “is liable in rem for any fine
imposed[.]” Id. § 1908(d).
4
by withholding a departure clearance, under 33 U.S.C.
§ 1908(e) of the APPS.3
The Coast Guard’s Captain of the Port issued a letter to
the Vessel’s representative on February 22, 2019, explaining
the Coast Guard’s authority to withhold the departure
clearance and that clearance could be granted if the Vessel
entered into a surety agreement that included providing a
financial bond. To negotiate that agreement, Nederland sought
3
The Coast Guard may “refuse or revoke” a vessel’s
departure clearance “if reasonable cause exists to believe” that
the vessel may be subject to a fine under the APPS. 33 U.S.C.
§ 1908(e). The departure clearance may nonetheless be
granted “upon the filing of a bond or other surety satisfactory
to the Secretary” of Homeland Security. Id. Entitled “Ship
clearance or permits; refusal or revocation; bond or other
surety[,]” 33 U.S.C. § 1908(e) provides:
If any ship subject to the MARPOL Protocol,
Annex IV to the Antarctic Protocol, or this
chapter, its owner, operator, or person in charge
is liable for a fine or civil penalty under this
section, or if reasonable cause exists to believe
that the ship, its owner, operator, or person in
charge may be subject to a fine or civil penalty
under this section, the Secretary of the Treasury,
upon the request of the Secretary [of Homeland
Security], shall refuse or revoke the clearance
required by section 60105 of Title 46 [to proceed
from a port]. Clearance may be granted upon the
filing of a bond or other surety satisfactory to the
Secretary.
5
out Commander Robert Pirone of the Coast Guard. On
March 7, Commander Pirone repeated that departure clearance
could be obtained upon the issuance of a bond as part of a
security agreement. He also told Nederland that the alleged
discharge of bilge water had been referred to the Department
of Justice for criminal prosecution under the APPS.
Seeking to get the Reefer underway again, Nederland
signed an “Agreement on Security” (the “Agreement”) with
the United States on March 8, 2019. Nederland agreed to post
a surety bond of $1 million, which would act as security for
any adjudicated fines or penalties for violations of the APPS.4
It also agreed to other provisions “[a]s consideration for surety
satisfactory to the Secretary [of Homeland Security] for the
release of the Vessel.” (App. at 37.) Those provisions included
consent to the jurisdiction of the United States over the
criminal case and assurance that the thirteen crewmembers of
the Reefer would remain in the United States to participate in
the criminal trial, at the expense of Nederland. The Agreement
also provided that “[a]ny dispute between the United States and
Owner or Operator[, i.e., Nederland,] regarding payment under
this paragraph shall be submitted to the United States District
Court for the District of Delaware. ... [T]he party asserting that
there has been a breach of the Agreement shall bear the burden
of proof.” (App. at 39.) In addition, the parties agreed that
“the criminal and civil penalty claims of the United States
against the Vessel in rem shall attach to the Vessel release’s
security as provided pursuant to the Federal Rules of Civil
4
Nederland ended up entering a guilty plea in the
criminal case. It paid a $900,000 fine.
6
Procedure, Admiralty, Maritime Claims, Supplemental Rule
E(5).” (App. at 46.)
On that same day, March 8, Coast Guard agents served
the Reefer’s crewmembers with subpoenas to testify before a
grand jury in April. Three days later, on March 11,
Nederland’s attorney informed Commander Pirone that all
replacement crewmembers were on board the Reefer and had
completed the handover from the thirteen crewmembers who
were required to stay in Delaware. But the Vessel did not
receive a departure clearance. After sending several emails
asking for updates on the processing of paperwork for the
detained crewmembers, Nederland’s attorney told the
government that the continuing delay of the Vessel had become
unreasonable. He also highlighted Nederland’s right to pursue
damages under 33 U.S.C. § 1904(h).5 In particular, he
emphasized the economic losses that the Vessel would
experience if the delay continued, including the costs
associated with making alternative arrangements for its
perishable cargoes and missing its next commercial
commitment. Nederland continued to ask for updates from the
government, with little to no response, until March 28, 2019,
when the Vessel was finally permitted to leave port.
Approximately three months later, Nederland filed for
declaratory relief in the District Court under 33 U.S.C.
§ 1904(h), seeking a declaratory judgment that the Agreement
5
Section 1904(h) provides: “Compensation for loss or
damage [-] A ship unreasonably detained or delayed by
the Secretary acting under the authority of this chapter is
entitled to compensation for any loss or damage suffered
thereby.” 33 U.S.C. § 1904(h).
7
was null and void ab initio and asking for damages for breach
of contract and compensation for unreasonable delay in
allowing the Vessel’s departure. The government moved to
dismiss for failure to state a claim and for lack of subject matter
jurisdiction.
The District Court was persuaded by the government’s
attack on subject matter jurisdiction. As to Nederland’s breach
of contract claim, the Court held that it did not have jurisdiction
in admiralty because the Agreement is not a maritime contract,
as the “principal objective of the Agreement is to permit the
ship’s departure clearance while preserving the Government’s
ability to investigate.” (App. at 9.) Without the waiver of
sovereign immunity attendant to admiralty jurisdiction, the
claim could not proceed, the Court said, because the
Agreement itself did not amount to a waiver of that immunity.
As to the APPS cause of action under 33 U.S.C. § 1904(h), the
Court held that § 1904(h) does not expressly waive sovereign
immunity. According to the Court, the waiver of sovereign
immunity found in the Tucker Act, 28 U.S.C. § 1491, could
instead provide an avenue for relief for Nederland, but any
such claim would have to be brought in the Court of Federal
Claims.
Nederland now appeals.
II. DISCUSSION6
Nederland argues that the District Court erred in
holding that it lacked subject matter jurisdiction in this case.
6
We have appellate jurisdiction under 28 U.S.C.
§ 1291. Nederland asserted jurisdiction in the District Court
8
According to Nederland, the Agreement it entered with the
government is maritime in nature and thus vested the Court
with admiralty jurisdiction.7 Nederland also contends that its
statutory cause of action for monetary damages under 33
U.S.C. § 1904(h) provides subject matter jurisdiction because
it is an independent cause of action that waives the
government’s sovereign immunity. The government counters
that the Tucker Act waives sovereign immunity for non-tort
monetary claims against the United States “founded …
upon … any Act of Congress[,] … or upon any express or
implied contract with the United States,” and also provides
exclusive jurisdiction for such claims in the Court of Federal
Claims, 28 U.S.C. § 1491(a)(1), so that Nederland’s suit must
instead be brought in that court.
To prevail in this jurisdictional dispute, Nederland must
clear two hurdles: it has to demonstrate that Congress provided
for subject matter jurisdiction in the district courts over the
claims at issue and that Congress waived sovereign immunity.
See United States v. Bormes, 568 U.S. 6, 9-10 (2012)
(explaining plaintiffs may only sue the United States for
under 28 U.S.C. §§ 1331 and 2201. We address the District
Court’s jurisdiction herein. We exercise plenary review to
determine whether the District Court enjoyed subject matter
jurisdiction. In re Allen, 768 F.3d 274, 279 (3d Cir. 2014).
7
Nederland also argues that the parties contracted for
subject matter jurisdiction in the District Court. That argument
plainly fails because parties cannot create subject matter
jurisdiction. See Samuel-Bassett v. KIA Motors Am., Inc., 357
F.3d 392, 396 (3d Cir. 2004) (“[P]arties may not confer subject
matter jurisdiction by consent.”).
9
monetary damages where sovereign immunity has been waived
and subject matter jurisdiction exists). The parties do not
dispute that if there is admiralty jurisdiction in this case, both
conditions are satisfied for the contract claim, since federal
courts have power to hear “all Cases of admiralty and maritime
Jurisdiction[,]” U.S. Const. art. III, § 2, cl. 1; 28 U.S.C. § 1333,
and Congress has waived sovereign immunity for claims
brought in admiralty, Henderson v. United States, 517 U.S.
654, 665 (1996); 46 U.S.C. § 30903. The fight over the
contract claim is thus whether it is a maritime claim and so
properly subject to admiralty jurisdiction. As to the APPS
statutory claim, the fight is whether 33 U.S.C. § 1904(h)
waives sovereign immunity.
A. The Agreement is a maritime contract.
Nederland argues that the Agreement is maritime in
nature and thus invokes the District Court’s admiralty
jurisdiction. The government responds that the Agreement
primarily sought to facilitate a criminal investigation pursuant
to the APPS and so is not a maritime contract. Nederland has
the better of the argument.
The Supreme Court emphasized in Norfolk Southern
Railway Co. v. Kirby that the primary interest of maritime
jurisdiction is “the protection of maritime commerce.” 543
U.S. 14, 25 (2004) (emphasis in original) (quoting Exxon Corp.
v. Cent. Gulf Lines, Inc., 500 U.S. 603, 608 (1991)).
Consequently, we are looking to “the nature and character of
the contract” at issue to determine whether it has “reference to
maritime service or maritime transactions.” Id. at 24 (quoting
N. Pac. S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co.,
249 U.S. 119, 125 (1919)). A ship does not need to be directly
10
involved in the dispute for admiralty jurisdiction to attach, as
“the admiralty and maritime jurisdiction ... extends to and
includes cases of injury or damage ... caused by a vessel on
navigable waters even though the injury or damage is done or
consummated on land.” Id. at 23-24 (quoting the Admiralty
Jurisdiction Extension Act, 46 U.S.C. § 30101).
Following the two-step inquiry established more than a
half-century ago in Kossick v. United Fruit Co., 365 U.S. 731,
735 (1961), the Kirby Court asked first whether the contracts
under review were maritime, and, second, whether they dealt
with an inherently local dispute such that federal law should
not control. Kirby, 543 U.S. at 22-23. It held that bills of
lading for the transport of goods from Australia to Alabama
were maritime contracts even though the final leg of the
journey was via rail. Id. at 23-24. Because the bills of ladings’
“primary objective” under the first step of Kossick was to
“accomplish the transportation of goods by sea from Australia
to the eastern coast of the United States[,]” the Court held that
it was beside the point that part of the journey was by rail. Id.
at 24. The Court also indicated, at the second step of Kossick,
that no local interests had been suggested that would call
federal jurisdiction into question. Id. at 27.
Following the same analytical path here, but in reverse
order, we can quickly dispose of the “inherently local” issue.
The dispute before us clearly implicates federal law – the APPS
– and international concern with sea-going commerce and
ocean pollution. It is thus obviously not inherently local. The
issue, then, is the first question posed in Kossick and Kirby:
what is the primary objective of the contract at issue. Not
surprisingly, each party characterizes the Agreement’s
“primary objective” differently. Id. The government says the
11
primary objective of the Agreement was to allow “the criminal
proceedings to continue to conclusion, including the payment
of a potential criminal penalty.” (Answering Br. at 23.)
Nederland says instead that the primary objective of the
Agreement was to provide sufficient security to obtain the
Vessel’s departure clearance so it could continue its trade.
Both objectives are, it is true, contemplated in the Agreement,
but the government’s characterization ignores every interest
but its own and, even at that, fails to acknowledge that the
crime under investigation was itself particularly maritime in
character. The government chooses to define its objective as
simply pursuing a criminal prosecution, but that does not
change the fact that the charge it was pursuing was a crime on
the seas, outlawed by a maritime treaty. Nor does it change
that both the Agreement (App. at 46) and the statute under
which the government detained the vessel, 33 U.S.C.
§ 1908(d), speak in terms of liability in rem, which is language
classically associated with admiralty jurisdiction. See, e.g.,
Leon v. Galceran, 78 U.S. 185, 190 (1870) (“[A] party may
proceed in rem in the admiralty, and if he elects to pursue his
remedy in that mode he cannot proceed in any other form, as
the jurisdiction of the admiralty courts is exclusive in respect
to that mode of proceeding[.]”). That is not determinative here,
but it is telling.
What is determinative is that, contrary to the
government’s position, it did not need the Agreement to permit
the criminal proceeding to continue to conclusion. The result
of there having been no agreement and no surety bond would
not have been the Reefer sailing away scot-free. It would have
been the Coast Guard withholding the Vessel’s departure
clearance until the criminal proceedings ended. Watervale
Marine Co. v. U.S. Dep’t of Homeland Sec., 807 F.3d 325, 330
12
(D.C. Cir. 2015) (Section 1908(e) “clearly provides authority
in the Coast Guard to simply hold the ship in port until legal
proceedings are completed.”); see also Angelex Ltd. v. United
States (Angelex I), 723 F.3d 500, 507 (4th Cir. 2013) (Section
1908(e) “grants the Coast Guard broad discretion to deny bond
altogether[.]”). So the essential character and purpose of the
Agreement was not to secure the Vessel and crew in port; that
was already done. The primary objective of the Agreement
was rather to set the Reefer free to pursue maritime commerce.8
8
The parties also discuss the purposes of the APPS and
MARPOL, both pointing to various aims of the treaty and its
enacting legislation to support their characterizations of their
Agreement’s primary objective. The government argues that
the APPS was “passed to implement various environmental
obligations that the United States assumed when it entered
into” MARPOL. (Answering Br. at 16 (quoting Watervale
Marine Co. v. U.S. Dep’t of Homeland Sec., 807 F.3d 325, 327
(D.C. Cir. 2015)).) And Nederland contends that MARPOL
not only sought to preserve the marine environment, but to
balance those environmental concerns with “the desire not to
impose laws which make shipping prohibitively expensive.”
(Reply Br. at 4-5 (quoting United States v. Apex Oil Co. Inc.,
132 F.3d 1287, 1291 (9th Cir. 1997)).) Such a concern was
codified in § 1904(h), which provides a means by which ships
unreasonably detained can seek compensation. 33 U.S.C.
§ 1904(h). Ultimately, however, “the nature and character of
the contract” itself must guide our admiralty jurisdiction
analysis – not a broader review of the treaty or the enabling
legislation behind the particular contract. Norfolk S. Ry. Co. v.
Kirby, 543 U.S. 14, 24 (2004) (citation omitted).
13
The conclusion that the Agreement here has, as the
saying goes, a “genuinely salty flavor,” Kirby, 543 U.S. at 22(citation omitted), is confirmed by other cases considering
contracts that provide security in exchange for a vessel’s
freedom to continue on its journey. For example, in Deval
Denizcilik Ve Tigaret A.S. v. Agenzia Tripcovich S.R.L., the
district court held that it had admiralty jurisdiction over a
bank’s guaranty to pay as a substitute for releasing cargo from
arrest because it “ultimately hastened the delivery of the cargo
by sea.” 513 F. Supp. 2d 6, 9 (S.D.N.Y. 2007). Just as the
ship’s “cargo would not have been released had [the bank] not
issued the guarantee[,]” Nederland’s Vessel would not have
been allowed to continue its maritime trade but for the
Agreement. Id. Similarly, in Great Eastern Shipping Co. v.
Binani Cement Ltd., the district court held that a letter of
indemnity promising to pay a bond to secure the release of a
ship in exchange for the delivery of cargo was a maritime
contract. 655 F. Supp. 2d 395, 399 (S.D.N.Y. 2009); see also
Compagnie Francaise De Navigation a Vapeur v. Bonnasse,
19 F.2d 777, 778-79 (2d Cir. 1927) (holding admiralty
jurisdiction existed over a contract to assume the performance
of a bond “to release the res, or to prevent its arrest”).
The government attempts to distinguish those cases by
arguing that the security agreements at issue in them were for
inherently maritime obligations, while securing a potential
criminal penalty is not a maritime obligation. In drawing that
contrast, the government again views its Agreement with
Nederland solely from its own perspective, not recognizing the
obvious commercial benefit to Nederland of freeing the Reefer
to go to sea. On top of that, the distinction the government
draws is unfounded. The Deval court did not premise its
decision on the underlying charter contract, but instead
14
emphasized that the guaranty permitted maritime commerce to
continue. 513 F. Supp. 2d at 9. That is a precise analog of deal
in the Agreement here. So too in Great Eastern Shipping, the
court stated that “Great Eastern’s consideration was the prompt
discharge of the cargo, a quintessentially maritime service, in
forbearance of its right to demand the bills of lading on
discharge, a quintessentially maritime right.” 655 F. Supp. 2d
at 399. It thus relied on its finding that the “overall purpose of
the transaction ... was maritime” to conclude that the letter of
indemnity was maritime in nature. Id. While the government
rightly points out that both cases involved underlying
commercial contracts, it was the discharge of the cargo to allow
for uninterrupted maritime trade that rendered the contracts
maritime in nature.
The government would prefer that we rely upon a case
from the District of New Hampshire that was decided before
Kirby. In Chi Shun Hua Steel Co. v. Crest Tankers, Inc., the
district court held that an agreement releasing the attachment
of a vessel in exchange for posting security or bringing the
vessel the following day to be reattached was a non-maritime
contract. 708 F. Supp. 18, 22 (D.N.H. 1989). But, lacking the
later guidance that the Supreme Court provided in the Kirby
opinion, the Crest Tankers court determined whether the
contract was maritime in nature by asking whether the contract
“concerns transportation by sea, relates to navigation and
concerns maritime employment.” Id. Applying that outdated
rule, the court held that the involvement of a ship did not bring
the matter within its admiralty jurisdiction because “the
settlement agreement itself was of a non-maritime nature.” Id.Even if that reasoning were persuasive, it does not survive after
Kirby. The Kirby Court specifically noted that “reference to
maritime service or maritime transactions” can make a contract
15
maritime in nature. 543 U.S. at 24 (quoting Hall Bros., 249
U.S. at 125). Reference to a vessel which has been detained,
and which a surety agreement would free to continue its
maritime trade, falls within the Supreme Court’s definitional
guidance.
For much the same reason, we are not persuaded by the
cases that the District Court cited to support its jurisdictional
conclusion. In saying it lacked jurisdiction, the Court first
pointed to Angelex I, 723 F.3d at 509, which is inapposite
because, although it concerned the withholding of a departure
clearance for a vessel accused of violating the APPS, there was
no underlying contractual agreement in that dispute. There, the
Fourth Circuit held that the withholding of a vessel’s departure
clearance for an indeterminate amount of time – where the
vessel owner could not afford to post bond – was
not “tantamount to an arrest of the ship” and thus did not
invoke in rem admiralty jurisdiction. Id. Because in rem
admiralty actions involve a vessel being “treated as the
offender and made the defendant by name or description in
order to enforce a lien[,]” and “discretionary action on the part
of the Coast Guard under APPS” cannot be considered “an
offense to the ship itself,” the Fourth Circuit concluded that
subject matter jurisdiction was lacking. Id. at 509-10. That
case would surely be on point and we would have to address
its analysis if Nederland and the government had failed to
negotiate a security agreement. But the parties here did
negotiate a contract, and our jurisdictional inquiry must focus
on whether the Agreement they entered into, pursuant to
§ 1908(e), constitutes a maritime contract – a question not
raised in Angelex I.
16
The District Court also relied on Retif Oil & Fuel, LLC
v. Offshore Specialty Fabricators, LLC, which held that a
guaranty agreement to pay the debt owed on a contract for ship
fuel and lube was a maritime contract. No. 17-7831, 2018 WL
4680125, at *5 (E.D. La. Sept. 28, 2018). The District Court
in the instant case quoted Retif Oil for the proposition that “a
‘surety agreement is held not to be an admiralty contract, since
the obligation of the surety is only to pay damages in the event
of liability on the underlying contract[.]’” (App. at 9 (quoting
Retif Oil, 2018 WL 4680125, at *5).) The Retif Oil court
concluded that the guaranty agreement before it, in contrast,
was a promise to step into the shoes of the obligor and fully
perform the underlying obligation by paying for the provisions
if the other party did not. 2018 WL 4680125, at *6. So, the
guaranty agreement at issue was more than a bare promise to
pay damages and, thus, was a maritime contract. Id. But the
hypothetical surety contract discussed in Retif Oil differs from
the Agreement before us in a key aspect. Nederland did not
merely promise to pay money in the event of liability; it
promised to pay money and perform other undertakings in
order to obtain a departure clearance so the Reefer could leave
port and continue its maritime trade. In sum, both cases relied
on by the District Court – Angelex I and Retif Oil – are
distinguishable because they did not determine whether
contracts providing security to allow a vessel to continue
seagoing commerce are maritime in nature.
Finally, we note that the Agreement, which was drafted
by the government, is premised on the explicit understanding
that subject matter jurisdiction is proper in the District Court.
For example, the Agreement provides that “the criminal and
civil penalty claims of the United States against the Vessel in
rem shall attach to the Vessel release’s security as provided
17
pursuant to the Federal Rules of Civil Procedure, Admiralty,
Maritime Claims, Supplemental Rule E(5).” (App. at 46.) We
cannot conceive of a circumstance in which the government
would contract to the applicability of Admiralty Supplemental
Rule E(5) if it viewed potential breaches of the contract as not
falling under admiralty jurisdiction.9 In addition, the
government agreed that “any” dispute “regarding payment
under this paragraph shall be submitted to the United States
District Court for the District of Delaware.” (App. at 39.) At
oral argument, counsel for the government said that this
provision only refers to the United States’ ability to sue
Nederland for the payment of the bond. (See audio recording
of oral argument held on April 14, 2021 at 30:00-31:57
(https://www2.ca3.uscourts.gov/oralargument/audio/20-
2269_NederlandShippingv.USA.mp3).) But that assertion is
belied by the very next sentence in the Agreement: “In any
such dispute wherein one party claims a breach of the terms
and conditions herein, the party asserting that there has been a
breach of the Agreement shall bear the burden of proof.” (App.
at 39.) The use of the generic term “party[,]” rather than
specifying that only the United States may sue in the District
Court, plainly means that either party could commence
litigation in the District Court. While the parties to a contract
cannot confer subject matter jurisdiction on federal courts, and
while the government’s past or present positions on
jurisdiction do not determine our conclusion, it is nevertheless
revealing that the government’s pre-litigation view of the law,
9
The Supplemental Admiralty and Maritime Claims
Rule E contemplates jurisdiction over “actions in personam
with process of maritime attachment and garnishment, actions
in rem, and petitory, possessory, and partition actions[.]” Fed.
R. Civ. P. Adm. Rule E(1) (emphasis added).
18
as embodied in the form of contract it drafted, was that
admiralty jurisdiction in a case like this existed in the District
Court.
Given all of the foregoing, our view is that the District
Court has admiralty jurisdiction over the breach of contract
claim, as the primary objective of the Agreement was to secure
the Vessel’s departure clearance, so that it could continue its
maritime trade.10
10
Nederland fleetingly argues in the alternative that the
contract is a “mixed” contract, meaning it contains both
maritime and non-maritime elements. Mixed contracts do not
fall within admiralty jurisdiction unless they are severable and
may be separately adjudicated, Berkshire Fashions, Inc. v.
M.V. Hakusan II, 954 F.2d 874, 880 (3d Cir. 1992), and
Nederland suggests only in a conclusory manner that the
Agreement is severable. Because the contract’s primary
objective is maritime in nature and thus falls within admiralty
jurisdiction, we need not address that alternative argument.
We do, however, briefly note the government’s
subsidiary arguments. It says that the Agreement contains no
maritime clauses or terms “that might require the district court
to draw upon its maritime expertise[.]” (Answering Br. at 25.)
It fails, however, to cite any precedent to support its suggestion
that a contract can only be maritime in nature if it requires a
court to analyze the meaning of a maritime term. Lastly, it
relies on Kirby to contend that “the core purpose of admiralty
jurisdiction, uniformity in the law,” is best served if APPS
security agreements are always adjudicated in the Court of
Federal Claims. (Answering Br. at 25-26.) But any uniformity
concern cited by Kirby involved whether the contract at issue
was inherently local or federal, not where in the federal system
19
B. The District Court erred in holding that it
lacked subject matter jurisdiction over the
APPS cause of action.
Nederland also contends that the District Court has
federal question jurisdiction pursuant to 28 U.S.C. § 1331 over
its statutory cause of action because Congress explicitly
waived the government’s sovereign immunity for damages
claimed under the APPS in 33 U.S.C. § 1904(h).11 The
government argues that Nederland’s § 1904(h) claim is not
cognizable as an independent cause of action and thus must be
transferred to the Court of Federal Claims under the waiver of
sovereign immunity provided by the Tucker Act.12 We agree
with Nederland because the APPS explicitly waives the
government’s sovereign immunity, making the Tucker Act
immaterial to this dispute.
The Tucker Act waives the government’s sovereign
immunity for non-tort monetary claims against the United
States founded upon “any Act of Congress,” the Constitution,
the contract claim should be adjudicated. Kirby, 543 U.S. at
27-28.
11
Nederland does not contend that the District Court
enjoyed admiralty jurisdiction under 28 U.S.C. § 1333 over the
statutory cause of action, and it is not necessary to consider that
point.
12
The government also says that Nederland forfeited its
sovereign immunity waiver argument on appeal. Not so:
Nederland argued that the APPS permits claims against the
government through waiver of sovereign immunity.
20
or contracts, but it vests jurisdiction only in the Court of
Federal Claims. 28 U.S.C. § 1491(a)(1).13 With that waiver,
the Tucker Act “supplied the missing ingredient for an action
against the United States for the breach of monetary
obligations not otherwise judicially enforceable.” Bormes, 568
U.S. at 12. It does not provide a substantive right to damages
but instead opens the door to government liability for claims
falling under its purview. Chabal v. Reagan, 822 F.2d 349,
355 (3d Cir. 1987). For a claim to have the advantage granted
by the Tucker Act, it need only “fairly be interpreted as
mandating compensation by the Federal Government for the
damage sustained.” United States v. White Mountain Apache
Tribe, 537 U.S. 465, 472 (2003) (citation omitted). That “‘fair
interpretation’ rule demands a showing demonstrably lower
than the standard for the initial waiver of sovereign
immunity[,]” and thus “an explicit provision for money
damages” is not necessary. Id. at 472, 477.
Not all claims against the government, however, are
reliant on the Tucker Act. Claims premised upon statutes that
provide for independent causes of action and that waive the
13
The Tucker Act provides:
The United States Court of Federal Claims shall
have jurisdiction to render judgment upon any
claim against the United States founded either
upon the Constitution, or any Act of Congress or
any regulations of an executive department, or
upon any express or implied contract with the
United States, or for liquidated or unliquidated
damages in cases not sounding in tort.
28 U.S.C. § 1491(a)(1).
21
government’s sovereign immunity need not be channeled
through the Tucker Act. See Bowen v. Massachusetts, 487
U.S. 879, 910 n.48 (1988) (“Rather, [the Court of Federal
Claims’] jurisdiction is ‘exclusive’ only to the extent that
Congress has not granted any other court authority to hear the
claims that may be decided by the Claims Court.”); Franklin-
Mason v. Mabus, 742 F.3d 1051, 1055 (D.C. Cir. 2014) (“If a
separate waiver of sovereign immunity and grant of
jurisdiction exist, district courts may hear cases over which,
under the Tucker Act alone, the Court of Federal Claims would
have exclusive jurisdiction.” (citation omitted)); Tritz v. U.S.
Postal Serv., 721 F.3d 1133, 1137 (9th Cir. 2013) (While
the Tucker Act “create[s] a presumption of exclusive
jurisdiction in the Court of Federal Claims, ... that presumption
can be overcome by an independent statutory grant of
jurisdiction to another court.”). Nederland argues that the
APPS is one such statute, as it waives sovereign immunity and
provides jurisdiction in the district courts, so resort to the
Tucker Act, and transfer to the Court of Federal Claims, is
unnecessary. The government, on the other hand, contends
that the APPS should be interpreted as providing a cause of
action under the Tucker Act but not as an independent waiver
of sovereign immunity.
The government does not dispute that if the APPS
waives sovereign immunity, jurisdiction would be proper in the
District Court.14 The question before us, then, is whether the
14
The government cites Chabal v. Reagan, where, in
denying jurisdiction over a former U.S. Marshal’s suit for
reinstatement, back pay, and damages for an allegedly
improper removal, we explained: “Jurisdiction over non-tort
monetary claims against the United States is exclusively
22
APPS indeed waives the government’s sovereign immunity.
The United States is immune from suit unless it expressly and
unequivocally waives its immunity. United States v. Mitchell,
445 U.S. 535, 538 (1980). Statutory text purporting
to waive governmental immunity is strictly construed “in favor
of the sovereign.” United States v. Nordic Vill., Inc., 503 U.S.
30, 34 (1992) (internal quotation marks and citation omitted).
Thus, “[a]ny ambiguities in the statutory language are to be
construed in favor of immunity,” and “[a]mbiguity exists if
there is a plausible interpretation of the statute that would not
authorize money damages against the [g]overnment.” F.A.A.
v. Cooper, 566 U.S. 284, 290-91 (2012). There is no particular
set of words that must be invoked to waive sovereign
immunity, but the waiver must be discernable and explicit
through traditional tools of statutory interpretation. Id. at 291.
Furthermore, “[a] statutory waiver of sovereign immunity …
defines the scope of a court’s jurisdiction to entertain the suit.”
Gentile v. Sec. & Exch. Comm’n, 974 F.3d 311, 316 (3d Cir.
2020) (internal quotation marks and citations omitted).
Consequently, “[t]o sustain a claim that the Government is
liable for awards of monetary damages, the waiver of
sovereign immunity must extend unambiguously to such
monetary claims.” Lane v. Pena, 518 U.S. 187, 192 (1996).
defined by the Tucker Act, as codified at 28 U.S.C. §§ 1346,
1491, because it is only under the terms of the Tucker Act that
the United States waives its sovereign immunity to non-tort
claims seeking monetary relief.” 822 F.2d 349, 353 (3d Cir.
1987). But, as later explained by the Supreme Court, that is
merely an “assumption[,]” and Congress has the ability to
waive sovereign immunity for other claims. Bowen, 487 U.S.
at 910 n.48.
23
With all of that in mind, we conclude that there is a
waiver of sovereign immunity for monetary damages in the
plain text of the APPS. Section 1904(h), under which
Nederland brings its statutory cause of action, provides:
“Compensation for loss or damage [–] A ship unreasonably
detained or delayed by the Secretary acting under the authority
of this chapter is entitled to compensation for any loss or
damage suffered thereby.” 33 U.S.C. § 1904(h). The Fourth
Circuit has dubbed that provision an “after-the-fact damages
remedy against the United States for unreasonable detention or
delay.” Angelex I, 723 F.3d at 509.
By “entitl[ing] [a ship] to compensation for any loss or
damage suffered” due to its detention or delay by the Secretary
of Homeland Security, § 1904(h) clearly goes beyond
providing a cause of action that is cognizable only under the
Tucker Act. Cf. White Mountain Apache Tribe, 537 U.S. at
477 (comparing “the less demanding requirement” for finding
a cause of action under the Tucker Act with the more
demanding requirement for finding an independent waiver of
sovereign immunity). We thus do not agree with the
government that § 1904(h) provides a cause of action only in
tandem with the Tucker Act’s waiver of sovereign immunity.
Rather, Congress provided “an explicit provision for money
damages” by allowing for “compensation for any loss” caused
by the Secretary’s unreasonable detention of a ship. Id.; 33
U.S.C. § 1904(h). The provision need not explicitly state that
“the United States” will pay compensation for any loss
because, reading the provision in context as we must, see King
v. Burwell, 576 U.S. 473, 486 (2015) (“Our duty ... is to
construe statutes, not isolated provisions” (internal quotation
marks and citation omitted)), no other actor could logically be
held liable. The federal government causes the unreasonable
24
detention, and the federal government thus provides
compensation for the resulting loss or damage. Cf. Cooper,
566 U.S. at 291 (“We have never required that Congress use
magic words” to waive sovereign immunity.). Congress
intended to make the United States liable when a vessel is
unreasonably detained by the Secretary of Homeland Security,
and § 1904(h) is express and unequivocal in stating that waiver
of sovereign immunity.15 Mitchell, 445 U.S. at 538.
That conclusion comports with the opinion of the only
other court of appeals to have considered a claim under
§ 1904(h). See Angelex, Ltd. v. United States (Angelex II), 907
F.3d 612, 623 (D.C. Cir. 2018) (affirming a grant of summary
judgment for the government where a ship owner sought
compensation under § 1904(h) for expenses after an allegedly
unreasonable delay of its ship). In Angelex II, the D.C. Circuit
15
Nederland also argues that Congress waived
sovereign immunity for claims brought under the APPS
through § 1910. That provision, entitled “Legal Actions[,]”
provides that “any person having an interest which is, or can
be, adversely affected, may bring an action” upon certain stated
grounds “in the United States district court for any judicial
district wherein the ship or its owner or operator may be
found.” 33 U.S.C. § 1910(a), (c)(3). Because we read
§ 1904(h) to expressly waive sovereign immunity, we need not
resort to other sections of the APPS to reach our conclusion.
As a reminder, the government does not dispute
jurisdiction in the District Court if the APPS waives sovereign
immunity. As contemplated by 33 U.S.C. § 1908(d), “[a] ship
operated in violation of the MARPOL Protocol … may be
proceeded against in the United States district court of any
district in which the ship may be found.”
25
addressed a § 1904(h) claim on its merits without questioning
or discussing subject matter jurisdiction. Id. at 618. The
district court in that case had noted at the motion to dismiss
stage that the government did not contest jurisdiction. Angelex,
Ltd. v. United States, 123 F. Supp. 3d 66, 74 n.4 (D.D.C. 2015).
While the government is correct to point out that “drive-by
jurisdictional ruling[s]” carry little precedential weight, Del.
Riverkeeper Network v. Sec’y Pa. Dep’t of Env’t Prot., 903
F.3d 65, 71 (3d Cir. 2018), it is notable that neither the district
court nor the D.C. Circuit viewed subject matter jurisdiction
over the § 1904(h) claim as worthy of discussion.
The government would have us reason that Congress
may only displace the provisions of the Tucker Act through a
statute with a “specific remedial scheme[,]” which the APPS
does not have. (Answering Br. at 29 (quoting Bormes, 568
U.S. at 12).) Relying on United States v. Bormes, the
government notes that the Supreme Court held a plaintiff could
not avail himself of the Tucker Act’s waiver of sovereign
immunity because the Fair Credit Reporting Act contained its
own self-executing remedial scheme, indicating that Congress
intended to displace the Tucker Act. 568 U.S. at 10-11. When
a litigant brings a claim under a statute with a self-executing
remedial scheme that imposes monetary liability on the
government, that law “supersedes the gap-filling role of the
Tucker Act” because “precisely drawn, detailed statute[s] pre-
empt[ ] more general remedies[.]” Id. at 12-13. So the
government is quite right that Bormes described how “[t]he
Tucker Act yields when the obligation-creating statute
provides its own detailed remedies[.]” Maine Cmty. Health
Options v. United States, 140 S. Ct. 1308, 1328 (2020) (citing
Bormes, 568 U.S. at 13). But that case does not mandate
deferral to the Tucker Act unless the other statute at issue has
26
a detailed remedial scheme. The issue is not the level of detail
surrounding an alternative remedy; the issue is whether there
is a clear waiver, and in the APPS there is.
Because there is no “plausible interpretation of the
statute that would not authorize money damages against the
[g]overnment[,]” we conclude that § 1904(h) waives the
federal government’s sovereign immunity. Cooper, 566 U.S.
284 at 290-91. Thus, under 28 U.S.C. § 1331, the District
Court enjoyed jurisdiction over the independent statutory cause
of action provided in 33 U.S.C. § 1904(h).
III. CONCLUSION
For the foregoing reasons, we will reverse the order of
the District Court and remand for consideration of Nederland’s
claims.
27