Triton Marine Fuels Ltd. v. M/V Pacific Chukotka , 575 F.3d 409 ( 2009 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
TRITON MARINE FUELS LTD., S.A., 
Plaintiff-Appellant,
and
BRIDGE OIL, LTD.,
Plaintiff,
and
CRESCENT TOWING AND SALVAGE
COMPANY, INC.; COOPER/T. SMITH
MOORING; CANTON PORT SERVICES
LLC; ISS MARINE SERVICES, INC.,
 No. 07-1908
d/b/a Inchcape Shipping Services;
BUNKER HOLDINGS, LTD.,
Intervenors/Plaintiffs,
v.
M/V PACIFIC CHUKOTKA, apparel,
freights, etc., IMO No. 8800224,
Defendant-Appellee,
and

2 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
EMERALD REEFER LINES, LTD.; 
GREEN PACIFIC A/S; EMERALD
REEFER LINES, LLC; INTERTRANSPORT
CO., LLC; INTERTRANSPORT, LTD.,
Defendants,

and
THE MASTER OF THE M/V PACIFIC
CHUKOTKA,
Garnishee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(1:06-cv-03346-JFM)
Argued: May 12, 2009
Decided: July 29, 2009
Before SHEDD, Circuit Judge, Joseph F. ANDERSON, Jr.,
United States District Judge for the District of
South Carolina, sitting by designation, and
Martin K. REIDINGER, United States District Judge for the
Western District of North Carolina, sitting by designation.
Reversed and remanded with instructions by published opin-
ion. Judge Reidinger wrote the opinion, in which Judge Shedd
and Judge Anderson joined.
COUNSEL
Geoffrey S. Tobias, OBER, KALER, GRIMES & SHRIVER,
PC, Baltimore, Maryland, for Appellant. David W. Skeen,
TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 3
WRIGHT, CONSTABLE & SKEEN, LLP, Baltimore, Mary-
land, for Appellee.
OPINION
REIDINGER, District Judge:
In this maritime action, Triton Marine Fuels Ltd., S.A.
("Triton"), a Panamanian corporation, alleges that it supplied
the M/V PACIFIC CHUKOTKA ("PACIFIC CHUKOTKA"
or "Vessel") with fuel bunkers in a foreign port but was never
paid. Triton brought an in rem claim against the Vessel in fed-
eral district court, asserting a maritime lien under the Federal
Maritime Lien Act, 46 U.S.C.A. § 31342(a) (West 2007)
("FMLA"). Upon a motion for summary judgment filed by the
PACIFIC CHUKOTKA’s owner, Green Pacific A/S ("Green
Pacific"), the district court dismissed Triton’s in rem action
against the Vessel. Triton now appeals, arguing that the dis-
trict court erred in concluding that a maritime lien did not
arise in favor of Triton under the FMLA. For the reasons that
follow, we reverse the district court’s grant of summary judg-
ment in favor of Green Pacific and remand with instructions
to enter summary judgment in favor of Triton.
I.
The material facts are not in dispute. On December 30,
2005, Green Pacific, a Norwegian company, bareboat chartered1
the PACIFIC CHUKOTKA to Intertransport Company LLC
("Intertransport"), a Russian company. The bareboat charter
provided that Intertransport was to operate and manage the
Vessel in all respects for its own account and to purchase fuel
1
Under a bareboat charter, also known as a demise charter, "the ship-
owner surrenders possession and control of the vessel to the charterer, who
then succeeds to many of the shipowner’s rights and obligations." Black’s
Law Dictionary 250 (8th ed. 2004).
4 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
for its own account and at its own expense. The charter fur-
ther prohibited Intertransport and its agents from incurring
any maritime liens on the Vessel and specifically required the
posting of a notice on the Vessel to the effect that the char-
terer had no authority to create, incur or permit any such lien.
There is no evidence, however, that any such notice was ever
posted.
In June 2006, Green Pacific delivered the Vessel to Inter-
transport, which then sub-chartered the Vessel to Emerald
Reefer Lines, Ltd. ("ERL"), a Cayman Islands corporation
with its principal place of business in Seattle, Washington. At
the time of the subject transaction, the PACIFIC CHU-
KOTKA was registered provisionally under the laws of Malta
but thereafter sailed under a Russian flag.
The PACIFIC CHUKOTKA was among a number of ves-
sels owned by Green Pacific which delivered cargos of sea-
food to various destinations, including the United States. In its
capacity as a sub-charterer, ERL operated the vessels and had
the option to purchase them at a later time.
On August 2, 2006, an employee of Ocean Transportation
Services LLC, ERL’s agent in Seattle, sought a supply of fuel
bunkers for the PACIFIC CHUKOTKA to be delivered in
Odessa, Ukraine. The request was sent to Triton Marine Fuels
Canada Inc. ("Triton Canada") a Canadian corporation in
Quebec, Canada, which serves as an agent for Triton. Triton
Canada responded that same day, confirming ERL’s request
for delivery of fuel bunkers by Triton to the Vessel in Odessa
between August 3 and August 8, 2006 ("Bunker Confirma-
tion"). The Bunker Confirmation identifies ERL as the buyer
acting "[o]n behalf of the M/V ‘Pacific Chukotka’ and jointly
and severally her Master, Owners, Managing Own-
ers/Operators, Managers, Disponent Owners, Charterers, and
Agents." (J.A. 030). The Bunker Confirmation also contains
a choice-of-law provision, which states: "This agreement shall
be governed and construed in all particulars by the laws of the
TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 5
United States of America, and the parties hereby agree to the
jurisdiction of the United States District Courts." (J.A. 032).
On August 5, 2006, the bunkers were delivered to the
PACIFIC CHUKOTKA in Odessa. That same day, Triton
submitted an invoice to ERL in Seattle requesting payment of
$260,400.00 by November 2, 2006, by telegraphic transfer
through a New York bank to Triton’s account in London.
ERL never paid for the bunkers and is now insolvent.
On December 15, 2006, Triton filed this in rem action
against the PACIFIC CHUKOTKA in the United States Dis-
trict Court for the District of Maryland, seeking to enforce a
maritime lien under United States law. Thereafter, the Vessel
was arrested while discharging cargo in the port of Baltimore.
In January 2007, Green Pacific posted security to obtain the
Vessel’s release.
Green Pacific moved for summary judgment on Triton’s in
rem claim. Triton, in turn, filed a cross-motion for summary
judgment. The district court, assuming the application of
United States law, concluded that no maritime lien arose as a
result of the bunkers transaction because "the FMLA is not to
be applied extraterritorially to confer a maritime lien upon the
plaintiff." (J.A. 089). Accordingly, the district court granted
Green Pacific’s motion for summary judgment, denied Tri-
ton’s motion, and dismissed Triton’s in rem action against the
Vessel. This appeal followed.
II.
We review the district court’s grant of summary judgment
de novo, applying the same standards as those applied by the
district court. Catawba Indian Tribe of S.C. v. City of Rock
Hill, 501 F.3d 368, 370-71 (4th Cir. 2007). Summary judg-
ment is proper "if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no gen-
6 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
uine issue as to any material fact and that the movant is enti-
tled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
III.
This appeal requires the Court to address two principal
issues. First, the Court must determine whether the choice-of-
law provision in the Bunker Confirmation is enforceable as it
applies to Triton’s in rem action against the Vessel. Second,
if the choice-of-law provision is enforceable, and United
States law therefore applies, the Court must determine
whether Triton is entitled to a maritime lien under United
States law.
For the following reasons, we conclude that the choice-of-
law provision in the Bunker Confirmation should be enforced
with respect to Triton’s in rem claim against the Vessel. We
further conclude that Triton is entitled to a maritime lien as
a matter of law.
A.
In determining the enforceability of the choice-of-law pro-
vision in the contract, we look to principles of federal mari-
time law. See generally M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1 (1972); Richards v. Lloyd’s of London, 135 F.3d
1289, 1292-93 (9th Cir. 1998) (en banc); but see Trans-Tec
Asia v. M/V HARMONY CONTAINER, 518 F.3d 1120, 1124
(9th Cir.) (applying traditional choice-of-law principles to
determine which country’s law determines the validity of
choice-of-law provision in contract), cert. denied, 129 S. Ct.
628 (2008). "In the absence of a contractual choice-of-law
clause, federal courts sitting in admiralty apply federal mari-
time choice-of-law principles derived from the Supreme
Court’s decision in Lauritzen v. Larsen, 345 U.S. 571 . . .
(1953), and its progeny." Chan v. Soc’y Expeditions, Inc., 123
F.3d 1287, 1296 (9th Cir. 1997)). Where the parties have
specified in their contract which law should apply to their
TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 7
transaction, however, "admiralty courts will generally give
effect to that choice." Hawkspere Shipping Co. v. Intamex,
S.A., 330 F.3d 225, 233 (4th Cir. 2003) (quoting Chan, 123
F.3d at 1297). It is well established under federal maritime
law that absent a compelling reason of public policy, a freely
negotiated choice-of-law clause in a maritime contract should
be enforced. See Bremen, 407 U.S. at 12-13 ("There are com-
pelling reasons why a freely negotiated private international
agreement, unaffected by fraud, undue influence, or over-
weening bargaining power, such as that involved here, should
be given full effect."); Lauritzen, 345 U.S. at 588-89 (1953)
("Except as forbidden by some public policy, the tendency of
the law is to apply in contract matters the law which the par-
ties intended to apply."); Bominflot, Inc. v. M/V HENRICH S,
465 F.3d 144, 148 (4th Cir. 2006) ("Because no ‘other law’
is specified on the face of the contract, and public policy does
not counsel against it, we will respect the parties’ intentions
and apply English law.").
The parties do not appear to dispute that United States mar-
itime law governs whether the choice-of-law provision is
enforceable. Green Pacific, however, argues three reasons as
to why the choice-of-law provision is unenforceable in this
case: first, that Green Pacific was not a party to the contract
and thus did not assent to such choice of law; second, that it
would be fundamentally unfair to adversely affect Green
Pacific’s rights in its property (the Vessel) based upon a
choice-of-law provision to which it did not agree; and third,
that the choice-of-law provision selecting United States law is
an indirect attempt to do what cannot be done directly, to wit:
create a maritime lien by contract.
1.
Green Pacific first argues that the choice-of-law provision
in the Bunker Confirmation cannot bind Green Pacific or its
property without its knowledge or consent. Green Pacific’s
argument, however, ignores the fact that this case involves an
8 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
in rem action asserting a maritime lien against the Vessel,
rather than an in personam claim against Green Pacific as the
Vessel’s owner. As such, the relevant inquiry is not whether
the parties to the supply contract had authority to bind the
Vessel owner, but whether the parties had the authority to
bind the Vessel. In the case of a maritime lien, the vessel itself
is viewed as the obligor, regardless of whether the vessel’s
owner is also obligated. See Amstar Corp. v. S/S ALEXAN-
DROS T., 664 F.2d 904, 908-09 (4th Cir. 1981); see also
Black’s Law Dictionary 943 (8th ed. 2004) ("[The maritime
lien] arises by operation of law and exists as a claim upon the
property, secret and invisible.") (quoting Griffith Price, The
Law of Maritime Liens 1 (1940)) (emphasis added).
As the sub-charterer of the Vessel, ERL had the presump-
tive authority to bind the Vessel in this case. It is a fundamen-
tal tenet of maritime law that "[c]harterers and their agents are
presumed to have authority to bind the vessel by the ordering
of necessaries2." Trans-Tec, 518 F.3d at 1127-28. If it were
not so, charterers could not stray far from a ship’s owner for
fear of being stranded by their inability to secure fuel, repairs
or other necessaries. ERL’s presumptive authority was not
diminished by the existence of a "no lien" clause in Green
Pacific’s charter, as there is nothing in the record to suggest
that Triton had actual knowledge of that provision. See id. at
1129. Accordingly, we conclude that ERL had the authority
to bind the Vessel to the provisions of the Bunker Confirma-
tion, even without Green Pacific’s knowledge or consent.
2.
In arguing that enforcement of the choice-of-law clause
would adversely affect its property rights, Green Pacific cites
2
"Necessaries" is defined as including "repairs, supplies, towage, and
the use of a dry dock or marine railway." 46 U.S.C.A. § 31301(4) (West
2007). Fuel bunkers are considered necessaries within the meaning of the
FMLA. See Bominflot, 465 F.3d at 147.
TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 9
to cases wherein courts have refused to enforce a maritime
choice-of-law provision on the grounds that the law chosen by
the parties would operate to affect adversely the rights of an
entity which was not a party to the agreement. See, e.g., Rain-
bow Line, Inc. v. M/V Tequila, 480 F.2d 1024 (2d Cir. 1973);
Redcliffe Americas Ltd. v. M/V Tyson Lykes, 806 F. Supp. 69,
71 (D.S.C. 1992) (citing Rainbow Line), reversed on other
grounds, 996 F.2d 47 (4th Cir. 1993).
There is a split of authority among the circuits as to this
issue, with the Second Circuit’s position in Rainbow Line
being at variance with the position of the Fifth Circuit as
expressed in Liverpool & London S.S. Protection & Indemnity
Association v. QUEEN OF LEMAN MV, 296 F.3d 350 (5th
Cir. 2002), and the Ninth Circuit as recently expressed in
Trans-Tec Asia v. M/V HARMONY CONTAINER, 518 F.3d
1120 (9th Cir.), cert. denied, 129 S. Ct. 628 (2008). The facts
of Trans-Tec are strikingly similar to the instant case. In
Trans-Tec, a foreign supplier entered into a contract with a
charterer of a foreign-flagged vessel for the provision of fuel
bunkers in a South Korean port. Id. at 1122. The contract cal-
led for the application of United States law to the transaction.
After the charterer failed to pay for the fuel, the supplier
brought an in rem action in district court against the vessel,
seeking to assert a maritime lien under United States law. Id.
at 1123. The supplier also asserted an in personam claim for
breach of contract against the vessel owner. The district court
concluded that the choice-of-law provision was incorporated
as a term of the contract, but that United States law did not
provide for maritime liens to foreign suppliers servicing
foreign-flagged ships in foreign ports. Id. On appeal, the ves-
sel owner urged the Court not to enforce the choice-of-law
provision, arguing that the transaction was "too foreign" for
United States law to apply. Id. at 1126. The Ninth Circuit
rejected the owner’s argument, noting that this approach
would "ignore[ ] both the long-recognized principle of honor-
ing the expectations of the parties to a contract and the scope
of a maritime lien under the FMLA." Id.10 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
In so holding, the Court relied upon the Fifth Circuit’s deci-
sion in QUEEN OF LEMAN. In that case, the Fifth Circuit
upheld a maritime lien asserted by an English insurer against
a vessel for unpaid insurance premiums. Although the insur-
ance contract provided that it was to be governed by English
law, the contract also provided that the insurer could "enforce
its right of lien in any jurisdiction in accordance with local
law in such jurisdiction." 296 F.3d at 353. The Fifth Circuit
concluded that the insurer was entitled to seek a maritime lien
under the FMLA by bringing suit in the Eastern District of
Louisiana, declaring "there is nothing absurd about applying
the law of the jurisdiction into which the ship sails, as the
ship’s presence in the jurisdiction represents a substantial con-
tact." Id. at 354. The Ninth Circuit agreed with the Fifth Cir-
cuit’s reasoning, stating as follows:
QUEEN OF LEMAN thus counsels that where for-
eign parties have specified that they want United
States law to determine the existence of a maritime
lien in a transaction involving multiple foreign
points of contact, and the ship has sailed into the
United States, it is reasonable to uphold the choice
of American law. That a maritime lien might exist on
the vessel under United States law, but would not
exist under Malaysian law, was a consequence obvi-
ously contemplated by the contracting parties, and
because the [vessel] sailed into a United States port,
results in no fundamental unfairness.
Trans-Tec, 518 F.3d at 1126-27.
We find the reasoning of Trans-Tec and QUEEN OF
LEMAN to be more persuasive than that of Rainbow Line. In
Rainbow Line, the Second Circuit refused to apply the law as
chosen by the contracting parties after engaging in only a cur-
sory analysis and without any reference to the Supreme
Court’s seminal decision in Bremen, which had been handed
down only a year prior. The Ninth Circuit’s opinion in Trans-
TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 11
Tec and the Fifth Circuit’s opinion in QUEEN OF LEMAN,
on the other hand, are not only well-reasoned, but are consis-
tent with the holdings of the Supreme Court in Bremen and
Lauritzen, as well as of this Court, to the effect that absent
compelling reasons of public policy, a choice-of-law provi-
sion in a maritime contract should be enforced. See Bremen,
407 U.S. at 12-13; Lauritzen, 345 U.S. at 588-89; Bominflot,
465 F.3d at 148; Hawkspere, 330 F.3d at 233.3
Applying the reasoning of Trans-Tec and QUEEN OF
LEMAN to the present case, we note that the parties agreed to
have their transaction governed by the laws of the United
States, and the Vessel sailed into a United States port. Appli-
cation of United States law under these circumstances would
not result in any fundamental unfairness to Green Pacific.
Indeed, Green Pacific is not subject to any more prejudice
than it would have been had the sub-charterer elected to
receive necessaries while in a United States port, whereby a
maritime lien unquestionably would have arisen by operation
of United States law.4 Nor would enforcement of this provi-
sion create "unnecessary uncertainty" in maritime dealings, as
predicted by the court below. (J.A. 089). To the contrary, as
the Ninth Circuit has noted, "recognition of freely negotiated
contract terms encourages predictability and certainty in the
realm of international maritime transactions." Trans-Tec, 518
F.3d at 1131.
3
Additionally, it should be noted that the adversely affected third party
in Rainbow Line was a mortgagee to the vessel’s subsequent owner and
thus was "an entity far removed from the original parties to the charter."
Trans-Tec, 518 F.3d at 1127. Conversely, the third party affected by the
maritime lien in the present case is the ship owner itself, a party that has
a direct contractual relationship with the charterer. For these reasons,
Rainbow Line is also distinguishable on its facts.
4
Additionally, it should be noted that Green Pacific could have taken
any number of steps, including requiring the charterer to post a bond,
demanding a letter of credit or even possibly procuring some sort of insur-
ance, in order to protect its interest in the Vessel from the effects of a mar-
itime lien, but no such actions were apparently taken in this case.
12 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
3.
Green Pacific next contends that the choice-of-law provi-
sion is unenforceable because under federal maritime law, a
supplier and charterer cannot create a maritime lien by con-
tract. Green Pacific argues that by contractually choosing
United States law, ERL and Triton attempted to do indirectly
what they could not do directly, that is, create a maritime lien.
As this Court has noted, "maritime liens are stricti juris and
cannot be created by agreement between the parties; instead,
they arise by operation of law, often depending on the nature
and object of the contract." Bominflot, 465 F.3d at 146; see
also Redcliffe Americas Ltd. v. M/V Tyson Lykes, 996 F.2d 47,
50 (4th Cir. 1993) (noting that a "maritime lien is a secret one,
arising by operation of law"). By selecting United States law
to govern their transaction, Triton and ERL quite likely con-
templated the possibility of a maritime lien arising under
United States law. The inclusion of this choice-of-law provi-
sion, however, did not "create[ ] by agreement" any such lien;
the maritime lien would still have to arise by operation of law.
Whether in fact such a lien arose in this case is a separate
issue and one which will be addressed next in our analysis.
B.
Having determined that the choice-of-law provision in the
Bunker Confirmation is enforceable with respect to Triton’s
in rem claim, we now address whether a maritime lien was
created in favor of Triton under United States law.
"As with any question of statutory interpretation, our analy-
sis begins with the plain language of the statute." Jimenez v.
Quarterman, 129 S. Ct. 681, 685 (2009). When analyzing the
meaning of a statute, we must first "determine whether the
language at issue has a plain and unambiguous meaning."
Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Whether
the statutory language is plain and unambiguous "is deter-
TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 13
mined by reference to the language itself, the specific context
in which that language is used, and the broader context of the
statute as a whole." Id. at 341. If the language is plain and
"the intent of Congress is clear and unambiguously expressed
by the statutory language at issue, that would be the end of
our analysis." Zuni Public School Dist. No. 89 v. Department
of Educ., 550 U.S. 81, 93-94 (2007). "It is well established
that ‘when the statute’s language is plain, the sole function of
the courts—at least where the disposition required by the text
is not absurd—is to enforce it according to its terms.’" Lamie
v. U.S. Trustee, 540 U.S. 526, 534 (2004) (quoting Hartford
Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S.
1, 6 (2000)).
The FMLA provides, in pertinent part, as follows:
(a) [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;
(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.A. § 31342(a) (West 2007).
By its plain language, the FMLA affords a maritime lien to
"a person providing necessaries to a vessel." Id. (emphasis
added). The FMLA does not limit the availability of maritime
liens to American suppliers any more than it limits liens to
American vessels, nor does it require that the provision of
necessaries occur within an American port. As the Court
noted in Trans-Tec:
14 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
The FMLA, by its plain language, is not restricted in
application to United States citizens, American com-
panies, or companies doing business in the United
States. Though Congress may have had American
suppliers in mind, the statute, on its face, recognizes
a maritime lien in favor of any person providing nec-
essaries.
518 F.3d at 1130.
Although it is unnecessary to look beyond the plain lan-
guage of the statute, we note that this interpretation of the
statutory language is consistent with the original purposes of
the FMLA. Prior to 1910, a maritime lien arose under United
States law when necessaries were provided to a vessel in a
port of a foreign country or state, but no such lien arose if the
necessaries were supplied in a port of the vessel’s home state,
unless a lien was authorized by local state law. See The Roa-
noke, 189 U.S. 185, 193-94 (1903); The Gen. Smith, 17 U.S.
(4 Wheat.) 438, 443 (1819). To address this anomaly, Con-
gress enacted the FMLA. Act of June 23, 1910, ch. 373 § 1,
36 Stat. 604. As the Supreme Court later explained, the pur-
pose of the FMLA was three-fold:
First, to do away with the artificial distinction by
which a maritime lien was given for supplies fur-
nished to a vessel in a port of a foreign country or
state, but denied where the supplies were furnished
in the home port or state. Second, to do away with
the doctrine that, when the owner of a vessel con-
tracts in person for necessaries or is present in the
port when they are ordered, it is presumed that the
materialman did not intend to rely upon the credit of
the vessel, and that hence, no lien arises. Third, to
substitute a single federal statute for the state statutes
in so far as they confer liens for repairs, supplies and
other necessaries.
TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 15
Piedmont & Georges Creek Coal Co. v. Seaboard Fisheries
Co., 254 U.S. 1, 11 (1920) (citations omitted). Clearly, even
before the enactment of the FMLA, a maritime lien attached
under federal maritime law upon the provision of necessaries
in a foreign port. The FMLA merely expanded that applica-
tion to the provision of necessaries in ports of the United
States. Despite numerous recodifications,5 the fundamental
purposes underlying the FMLA have remained unchanged.
The FMLA provides a single federal statute for the determina-
tion of maritime liens, and by providing this uniform scheme,
the statute confers domestic suppliers of necessaries with the
same lien rights as previously enjoyed only by foreign suppli-
ers under the common law.
In concluding that the FMLA protects only American, not
foreign, suppliers, the district court relied on Trinidad
Foundry and Fabricating, Ltd. v. M/V K.A.S. Camilla, 966
F.2d 613 (11th Cir. 1992); Tramp Oil and Marine, Ltd. v. M/V
"Mermaid I", 805 F.2d 42 (1st Cir. 1986); and Trans-Tec Asia
v. M/V HARMONY CONTAINER, 435 F.Supp.2d 1015 (C.D.
Cal. 2005). In each of these cases, the FMLA was found to
be inapplicable because the services or supplies at issue were
rendered by foreign companies in foreign ports. None of the
cases are binding on this Court, nor do we find any of these
cases to be persuasive. These cases ignore the fact that federal
maritime law extended a maritime lien for the provision of
necessaries in foreign ports even before the enactment of the
FMLA, and that the FMLA was intended to provide this rem-
5
In 1920, the FMLA was recodified as part of the Ship Mortgage Act
of 1920, previously codified at 46 U.S.C.A. §§ 971-75. The substance of
the FMLA remained virtually unchanged until 1971, when Congress
enacted legislation essentially to void "no lien" clauses in charters, as long
as the supplier did not have actual knowledge of such clause. See H.R.
Rep. No. 92-340 (1971), reprinted in 1971 U.S.C.C.A.N. 1363, 1365-66.
In 1988, the FMLA was recodified as part of the Commercial Instruments
and Maritime Liens Act, 46 U.S.C. §§ 31301-31343 (West 2007). This
recodification did not affect any substantive changes to the FMLA. H.R.
Rep. No. 100-918 (1988), reprinted in 1988 U.S.C.C.A.N. 6104, 6141.
16 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
edy for American suppliers as well. Furthermore, as previ-
ously noted, the Trans-Tec decision cited by the district court
has been reversed by the Ninth Circuit Court of Appeals as to
this issue, and as such, any reliance thereon is misplaced. Fur-
thermore, a close examination of the Trinidad and Tramp Oil
decisions reveals that the pronouncements by these courts that
the FMLA does not apply to foreign suppliers in foreign ports
were merely dicta. In Trinidad, the Eleventh Circuit enforced
a choice-of-law clause calling for the application of English
law and therefore concluded that the FMLA did not apply to
the transaction. 966 F.2d at 615, 617. In Tramp Oil, the First
Circuit held that a British fuel broker, which had no direct
relation to the vessel itself, was not entitled to a "suppliers’
lien" under the FMLA, as it was not a "supplier." 805 F.2d at
46. Additionally, Tramp Oil relies on a misreading of the
FMLA’s legislative history. See id. (citing H.R. Rep. No. 92-
340 (1971), reprinted in 1971 U.S.C.C.A.N. 1363, 1365)
(stating that enactment of amendment would "be of great
assistance to American materialmen in collecting amounts
owed on necessaries") (emphasis added). This "passing refer-
ence" to the protection of American suppliers, however,
"hardly overrides the unambiguous language of the statute."
Trans-Tec, 518 F.3d at 1130.
In rejecting Triton’s maritime lien claim, the district court
expressed concern regarding the extraterritorial application of
the FMLA, finding that there was a lack of material ties
between the transaction and the United States. This case pre-
sents no problems of extraterritoriality, however, because
there are a significant number of ties between the United
States and the transaction at issue. ERL has its principal place
of business in the United States and conducted its negotiations
for the bunkers transaction there. Additionally, the fuel pro-
cured from Triton enabled the Vessel to travel to the United
States and to deliver its cargos of seafood to a United States
port. Finally, and perhaps most significantly, the parties chose
United States law to govern their transaction. The parties’
agreement to apply United States law to their transaction,
TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 17
when considered along with the contacts between the transac-
tion and the United States, "put[s] to rest any fears that an
American court is unilaterally imposing the FMLA on other
nations." Id. at 1132.
IV.
For the foregoing reasons, we conclude that the choice-of-
law provision in the Bunker Confirmation should be enforced
and that United States law is therefore applicable to Triton’s
in rem claim against the Vessel. We further conclude that as
a matter of law, a maritime lien arose in favor of Triton under
the FMLA. There being no genuine issue of any material fact,
and having concluded that Triton is entitled to a judgment as
a matter of law, we conclude that the district court erred in
granting summary judgment to Green Pacific and denying
summary judgment to Triton. Accordingly, we reverse the
judgment of the district court and remand with instructions to
enter summary judgment in favor of Triton. See United States
v. St. Louis Univ., 336 F.3d 294, 304 (4th Cir. 2003) (court
of appeals may direct entry of judgment in favor of the appel-
lant where cross-motions for summary judgment have been
filed).
REVERSED AND
REMANDED WITH INSTRUCTIONS