DocketNumber: No. 87-3359
Citation Numbers: 913 F.2d 1521
Judges: Anderson, Brown
Filed Date: 10/10/1990
Status: Precedential
Modified Date: 11/27/2022
The Prelude
In a nutshell, the government’s theme can be simply capsulated: A maritime lien claim for repairs to a vessel requires seizure and arrest of the vessel to effectuate it. Since governmentally owned and operated vessels
The Past is Indeed Prologue
The government’s position, successfully maintained below, and reasserted here, flatly ignores principles established 45 years ago.
In Canadian Aviator, Ltd. v. United States,
The dismissal by the lower court of petitioner’s libel raises three questions for consideration by this Court:
[1] Does the Public Vessels Act, 1925, [PVA] authorize suit against the United States where the public vessel is not the physical cause, the “physical instrument” by which the damage is done; that is, is the Act confined to cases involving the collision situation?
[2] If not, does the Act, which authorizes the filing of a libel in person-am against the United States, authorize recovery in such suit on admiralty principles of in rem as well as in personam liability?
[3] Finally, if the Act authorizes recovery on admiralty principles in rem and in personam does petitioner’s libel state cause of action under those principles of admiralty law?
Id. 324 U.S. at 218, 65 S.Ct. at 641, 89 L.Ed. at 905.
Later, the Court, pointing out that the petitioner was evidently relying on § 2 of the Act to state in its libel the election to have the action proceed on principles of in rem as well as in personam liability specifically referred to the Court of Appeals holding “that the Act does not authorize recovery on principles of in rem liability because of the statutory denial [§ 788] of a maritime lien ... ” — the very contention now made 45 years later by the government. The Court then answering the first of its decisive questions phrased it this way:
Does the [PVA] which authorizes filing of a “libel in personam” authorize the courts to apply principles of in rem as well as in personam liability in admiralty?
Id. at 226, 65 S.Ct. at 645, 89 L.Ed. at 909. The answer, the Court reasoned, brought into play §§ 2
The Court then concludes with this sweeping declaration:
Since there is nothing in the [PVA] that is inconsistent with this provision of the [SIA], we hold that the incorporation clause applies.
324 U.S. at 227, 65 S.Ct. at 645, 89 L.Ed. at 910. This means that for nearly half a century the PVA authorized a libel (complaint) in personam against the government to be determined on principles of both in personam and in rem liability under the maritime law.
Both PVA and SIA have substantially the same provisions forbidding seizure or arrests of a ship involving either a pre-1960 “merchant vessel”
No Lien Clauses Are SIA-PVA Centered
Here again what happened — not 45 years ago, but over 70 — determines that the no-lien clause of SIA and PVA are directly related to and draw their meaning and limitation from inclusion in these Acts. They are in no sense a prohibition on the creation or existence of a maritime lien. They each assure that there can be no arrest or seizure of a government vessel.
We go back to The Lake Monroe.
Referring to Lake Monroe and Eastern Transportation Co. v. United States,
Although § 2 [§ 742] of [SIA] limited suit to the filing of a ‘libel in personam’ this Court interpreted the provisions of § 3 [§ 743], of the Act to authorize recovery in such suit on admiralty principles of in rem as well as in personam liability.
324 U.S. at 220, 65 S.Ct. at 642, 89 L.Ed. at 906.
So as we raise the curtain to unfold the facts on which to apply the decisive principles, the law concerning public vessels under PVA is now, and has been for nearly half a century:
PVA automatically incorporates the procedure of §§ 2 and 3 [§§ 742 and 743] of SIA.
A libel (complaint) in personam with in rem election may invoke principles of a libel in rem.
The no lien clause of PVA, § 788, and the no seizure clause of SIA, § 741, relate to a SIA-PVA proceeding against the government.
A PVA libel (complaint) in personam with in rem election can effectually enforce a maritime lien.
/.
The Litigation
The District Court entered judgment against the ship repairer
In the Beginning
The SEALIFT ANTARCTIC is a public vessel of the United States.
In 1984, the SEALIFT ANTARCTIC was scheduled for a major overhaul, including tank cleaning, repainting and coatings and major engine and machinery work. On January 14, 1985, in response to a solicitation for repair work bids issued by MTL, Atlantic submitted a bid to carry out and complete the specified repairs for an agreed price. The bid submitted by Atlantic, as required by the bid solicitation, identified Stevens as a subcontractor performing more than 15 percent by dollar value of the specified repair work.
On January 16, 1985, Stevens and Atlantic entered into a memorandum agreement which, among other things, provided for division of the repair items between Atlantic and Stevens, with the Atlantic items totaling approximately $578,000, and the Stevens items totaling approximately $580,-000. The Atlantic contract was accepted and approved by government agencies, and on February 15, 1985, MTL awarded the job to Atlantic for the work to be done by Atlantic and Stevens.
The repairs were performed at Atlantic’s repair facility in Tampa, Florida. During the course of the repair work on the SEAL-IFT ANTARCTIC the government was represented by employees of MTL and MSC who inspected, tested and approved the
After a bench trial, the District Judge, Anthony Alaimo entered judgment against Atlantic for the amount due, but ordered that Stevens take nothing in its quasi in rem action against the United States. The District Court concluded that Stevens was not entitled to recover against the SEAL-IFT ANTARCTIC in rem and, therefore, dismissed the claim against the United States.
The PVA Specifically Authorizes Maritime Liens to be Effectuated by In Personam Claim with In Rem Election
We need not — as we shortly do — trace the judicial history of PVA to determine whether Congress by enacting § 788, supra, n. 8, meant either to (i) prohibit all maritime liens, or somehow, (ii) carve out from the allowance of claims generally creating a maritime lien, those growing out of an engagement for repairs to a public vessel.
The statute § 781 provides the answer: A libel in personam in admiralty may be brought against the United States ... for damages caused by a public vessel of the United States, and for [i] compensation for [a] towage and [b] salvage services, including [c] contract salvage, rendered to a public vessel of the United States.
46 U.S.C.App. § 781.
It does not strain principles of legislative history to conclude that in the 1925 PVA, reference to maritime liens brought automatically into consideration the principles of the recently-enacted (1920) Federal Maritime Lien Act (FMLA) 46 U.S.C.App. §§ 971-975. Significantly, the FMLA covered “repairs, supplies, towage, use of dry dock or marine railway, or other neces-saries_” 46 U.S.C.App. § 971.
Of the enumerated items in § 781 the first, [a] towage both before and after FMLA, is recognized as giving rise to a maritime lien.
Since claim for salvage gives rise to a lien and it is specifically allowed in PVA, Congress must have intended that that sort of a lien could still be asserted notwithstanding the no lien clause. The same is true since § 781 expressly covers collision. GILMORE AND BLACK, p. 628.
Having specifically recognized three (e.g., [a], [b] and [c], supra) situations giving rise to a maritime lien, Congress
To attribute any other meaning to § 788 is to both grant a remedy [§ 781] and simultaneously take it away [§ 788].
What We Hold What We Do Not Hold
In considering the massive material that follows, it is important to emphasize from the beginning WHAT WE HOLD and WHAT WE DO NOT HOLD:
We hold:
PVA applies to and controls this public vessel case.
PVA controls with all of its restrictive provisions.
PVA § 788 is directly applicable.
Section 788 concerns, as does SIA § 741, primarily prohibition of arrest or seizure to effectuate PVA objectives.
We do NOT hold:
Incorporation of SIA does or could avoid or eliminate § 788 in a PVA case which this one is.
The question then is reduced to:
Does § 788 in the light of SIA and PVA prevent the assertion of a maritime lien for repairs to a public vessel in a PVA suit in personam with election for in rem liability? ,
Genesis of SIA and PVA
Once upon a time, suits against the United States were barred by principles of sovereign immunity. Over a period of years, the United States has, by a variety of statutes, waived sovereign immunity and consented to be sued in one tribunal or another, for a vast variety of claims.
The history of the 1920 SIA and the 1925 PVA is so thoroughly documented by the Supreme Court in Canadian Aviator,
As this was both unsatisfactory and embarrassing, Congress soon enacted the SIA in 1920. It was simple in design. With Lake Monroe fresh in its mind, Congress provided in § 741, supra, n. 7, that “[n]o vessel owned by the United States shall, in view of the provision for a libel in person-am be subject to arrest or seizure.... ” Section 742, supra, n. 4, permitted a libel in personam, and § 743, supra, n. 5, provided that such in personam suit should be “heard and determined” according to principles of law obtaining in like cases between private parties and, of great importance here, expressly provided that on election by the libelant “the suit may proceed in accordance with the principles of libels in rem" wherever had the vessel been privately owned a libel in rem might have been maintained.
Until 1925, however, there was no recourse against the government for damages from operation of a public vessel. As to them Congress was once again faced
1960 Amendments to SIA
Then came the 1960 amendments to SIA resulting in the deletion of the clause “provided that such vessel is employed as a merchant vessel” in §§ 742 and 743, supra, nn. 4 and 5. Although enacted principally to eliminate the vexing controversies over just when a vessel was a “merchant vessel,” see, Calmar Steamship Corp. v. United States,
Judicial Application PVA, SIA Generous, Not Hypercritical
Not only has Congress been liberal in its efforts to initiate the widest possible waiver of sovereign immunity for suits against government vessels, the Courts have been equally generous. There is no judicial precedent for establishing, 65 years later, that the 1925 PVA cannot apply because the in rem suit as authorized would, to effectuate it, theoretically require seizure and arrest of the vessel which is so positively forbidden by §§ 741 and 788 (nn. 7 and 8, supra).
The first challenge came in 1945, with Canadian Aviator, n. 3, supra, in which the government seriously contended there was no PVA coverage for damage sustained by the following vessel under orders to follow directly astern of the patrol boat YP 249 due to the negligence of and the escorting naval patrol vessel. Besides raising and answering the three critical questions, see, supra, n. 1 and related text, the Court proceeded to deal with the government’s contention that PVA allowed suits against the United States only “for damages caused by a public vessel” which meant only where the public vessel is the “physical instrument” by which damage is done, e.g. collision. 324 U.S. at 222, 65 S.Ct. at 643, 89 L.Ed. at 907. The Court responded:
We conclude that such a narrow interpretation of the Act is not justifiable.... [W]e think congressional adoption of broad statutory language authorizing suit was deliberate and is not to be thwarted by an unduly restrictive interpretation.
Id. (citations omitted).
Giving it the broadest brush possible, the Court continued:
The consent to suit embodied in the Act thus extends to cases where the negligence of the personnel of a public vessel in the operation of the vessel causes damage to other ships, their cargoes, and personnel, regardless of physical contact between the two ships, and where principles of admiralty law impose liability on private parties. There seems no logical reason for allowing recovery for collision and refusing recovery for damages*1529 caused by other movements of the offending vessel.
Id. at 224-25, 65 S.Ct. at 644, 89 L.Ed. at 909.
While Canadian Aviator indicated the broadest concept of causation and physical damage, seven years later, in Calmar S.S. Corp. v. United States, supra, n. 22, the Court drew back somewhat. “It is not to be assumed that all claims sounding in contract can form the basis of a suit under the Public Vessels Act. The Act expressly authorizes towage and salvage claims. We intimate no opinion as to other claims.... ” 345 U.S. at 456, n. 8, 73 S.Ct. at 738, n. 8, 97 L.Ed. at 1147, n. 8.
Calmar involved a libel brought under the SIA concerning a privately-owned vessel operated for the United States for hire and used exclusively for the carriage of war materiel rejecting prior contradictory actions of the district court and appellate court. The Supreme Court held that even though it was engaged in a war mission, it was, nevertheless, a “merchant vessel” eligible to proceed under the SIA. Id.
In American Stevedores, supra, n. 19, the Court was confronted with the claim of Porello, a longshoreman injured while working in the hold of a public vessel. He had first received compensation checks under LHWCA, 33 U.S.C. §§ 901-950, but thereafter gave notice, 33 U.S.C. § 933(a), of his election to sue the United States as a third party tortfeasor. The government first claimed sovereign immunity and that by earlier accepting compensation, Porello had lost his right to sue it as a third party tortfeasor. To the Court, the important issue was whether the PVA makes the United States liable for damages on account of personal injuries. Sounding the broad purpose of the enactment of SIA and PVA the Court characterized them as “as attesting] ... the growing feeling of Congress that the United States should put aside its sovereign armor in cases where federal employees have tortiously caused personal injury or property damage.” 330 U.S. at 453, 67 S.Ct. at 851, 91 L.Ed. at 1018.
The Court concluded that PVA read in the light of its legislative history evinces no “congressional intent ... to provide [only] a remedy to the owners of damaged property”. Id. Nor does acceptance of compensation preclude the injured employee from suing under- PVA. Id.
Although the Court was unable to resolve the indemnity claim asserted by the government against the contracting stevedore, it is evident that the Court was not troubled that on adequate proof PVA would encompass such a contractual, or at least quasi-contractual claim.
Probably the most important decision reflecting the admiralty-based concept of PVA and SIA is Weyerhaeuser Steamship Co. v. United States,
In the Supreme Court the government argued that, “with respect to the amount paid [the employee] the established admiralty rule has been qualified by § 7(b) of the Federal Employees Compensation Act,” which provides that liability under the Compensation Act shall be exclusive. Id. at 599, 83 S.Ct. at 927, 10 L.Ed.2d at 3-4.
Dealing with § 7(b), the Court stated it was:
added ... to establish that, as between the Government on the one hand and its employees ... on the other, the statutory [compensation] remedy was to be exclusive.
However:
There is no evidence that whatever that Congress was concerned with the rights of unrelated third parties, much less of any purpose to disturb settled doctrines of admiralty law....
Id. at 601, 83 S.Ct. at 929, 10 L.Ed.2d at 5.
The Court granted certiorari “to consider the single question whether the historic admiralty rule of divided damages ... has been qualified ... by the exclusive liability provision of the federal compensation statute.” Id. at 600, 83 S.Ct. at 928, 10 L.Ed.2d at 4. Reverting to the Canadian Aviator holding that PVA “was intended to impose on the United States the same liability (apart from seizure or arrest under libel in rem) as is imposed by the admiralty law on the private shipowner ...,” the Court proceeded to hold that “there can be no question that a private shipowner in a case such as this would be liable for half of all the petitioners’ provable damages....” Id. Applying this 100 year old admiralty rule, the Court applied The Chattahoochee,
Dealing with questions of venue and possible jurisdiction, Blamberg Brothers v. United States
*1531 These liberal provisions indicate that the language used in the section should have its broad and ordinary meaning and should not be interpreted in a restrictive and distributive sense. We think, therefore, that the suit brought in the district where the libelant resided was a suit brought in accordance with Section 2, [§ 742] even though it would have been an action in rem between private parties, and that it made no difference where the vessel then was, provided only that it was within the jurisdiction of the United States.
267 U.S. at 126, 45 S.Ct. at 278, 69 L.Ed. at 538 (emphasis added).
Lower Federal Courts Equally Generous
In United States v. The Australia Star: The Hindoo, 172 F.2d 472 (2d Cir.1949), involving a war time (1944) collision in the Caribbean Sea between the S/S HINDOO, a government vessel, and the S/S AUSTRALIA STAR under blackout conditions, the HINDOO and AUSTRALIA STAR were held equally at fault but the naval escort vessel, PC-616, was exonerated. Holding the escort vessel negligent in failing to signal the HINDOO or give warning to the AUSTRALIA STAR, the Court then did an interesting thing following the rule that where two vessels of the same ownership contribute to a disaster, the vessel owner may not limit liability without sur-rending his interest in both vessels: it altered the judgment to provide instead of 50/50 fault a 1/3/1/3/1/3 judgment.
In Ira S. Bushey & Sons, Inc. v. United States,
Gilmore and Black’s treatise reflects the generous reading Courts have given to SIA and PVA. GILMORE AND BLACK, THE LAW OF ADMIRALTY, 2d Ed.1974, 982-86. It provides that recovery in personam may be had against the United States where either an in rem or an in personam liability would have risen on the same facts as against a private owner: “Obviously, the pattern of this statement supports the statement ... that the government, in entering the shipping world as a participant, simply assumes a normal role in the antecedent pattern.” Id. at 982.
There are, of course, decisions which exclude certain types of claims from liability under PVA and SIA. In none of them is the exclusion based on sovereign immunity. Rather, in each case it is either a specific restrictive provision of PVA or some comprehensive statutory structure excluding from SIA-PVA liability an otherwise valid maritime claim.
First, there was the situation of injury to a civilian employee of the government while working as a crew member on a public vessel, such as a troop transport, army tug, or the like. The Court in Konrad G. Johansen v. United States,
All in all we are convinced that the Federal Employees Compensation Act is the exclusive remedy for civilian seamen on public vessels.
343 U.S. at 441, 72 S.Ct. at 857, 96 L.Ed. at 1061.
Harry J. Amell v. United States,
This brings us to United States v. United Continental Tuna Corp.
Congress’ deletion of the “employed as a merchant vessel” proviso was clearly intended to remove such uncertainty as to the proper forum by bringing within the [SIA] whatever category of claims involving public vessels was beyond the scope of the Public Vessels Act.
425 U.S. at 180-81, 96 S.Ct. at 1328, 47 L.Ed.2d at 665 (emphasis added).
Thus, through SIA, the amendment did bring in claims against public vessels greater rights than imposed in PVA. But the Court carefully pointed out that “claims like the instant one,” i.e., collision with a foreign vessel which was expressly “within the PVA,” was not the problem with which Congress was concerned in the 1960 amendments. If a claim was within PVA prior to 1960, it necessarily included the restrictive reciprocity provisions of PVA. Necessarily, the reciprocity provision continued to apply. As the Court phrased it:
We therefore hold that claims within the scope of [PVA] remain subject to its terms after the 1960 amendments to [SIA],
425 U.S. at 181, 96 S.Ct. at 1329, 47 L.Ed.2d at 666.
Reviving the Specter of More Private Bills For Congress of Ships Bare Boat Chartered to the United States
The government’s contention that the no lien clause for a public vessel, 46 U.S.C. App. § 788, supra, n. 8, forbids the use of the libel in personam on principles of in rem liability as permitted under §§ 742 and 743, supra nn. 4 and 5, is no victory for the government. For PVA cases now effectively incorporated in SIA, the government will escape damages under PVA, SIA, or both. But it would directly increase the number of private bills to be handled by Congress in its largess. Today, as in the instant case, the government obtains the use of a privately-owned vessel such as a tanker or the like to perform military functions under a bare boat charter which makes the government the owner pro hac vice. The commercial-like operation of such public vessels will expose the ships to the usual run-of-the-mill maritime risks, including damage from collisions or damage to shore structures, docks and piers. That will, for example, include the mandatory use of a state-compulsory pilot.
Suppose, for example, that a tanker of the size of U.S.S. SEALIFT ANTARCTIC navigating the Houston ship channel conned by a Texas compulsory pilot crashes into a tanker at a major petroleum dock doing hundreds of thousands of dollars in damage, both afloat and ashore. Notwithstanding the existence of the Extension of Admiralty Act, 46 U.S.C.App. § 740, the government would be liable if the suit were the equivalent of one in rem, The China, 74 U.S. (7 Wall.) 53, 19 L.Ed. 67, but would walk off scott free on a suit in personam because of the actions of an involuntary servant, Homer Ramsdell Transp. Co. v. Compagnie Generale Transatlantique, 182 U.S. 406, 21 S.Ct. 831, 45 L.Ed. 1155 (1901). Nor as actions of an involuntary servant would there be any liability under FTCA.
The upshot would be that after suits on the admiralty side of the district court and belated efforts in the claims court with a foray under the FTCA, it would be back in the halls of Congress. One could understand the frustration of some knowledgeable senator who might exclaim,
What are we doing here? I though our predecessors in 1925 had sent such cases to the admiralty courts.
The reverse occurred below when the trial judge, Anthony Alaimo, a skilled, long-experienced District Judge, near the end of the case and during argument of counsel almost blurted out:
The Court: Tell me why in the world there is not a single case cited under that section [§ 788]?
Government Counsel: I wish I knew. The Court: Can you explain that?
To which government counsel meekly (but honestly) could only reply:
*1534 Government Counsel: No, I can’t, I really can’t. We have looked for them. We can’t find them. We can’t find any legislative history.
No Articulate Precedents That Section 788 Prohibits Enforcement of Maritime Lien in a PVA With In Rem Included in Suit
Arrayed against this voluminous history of SIA and PVA, the very terms of each, and judicial precedents which speak without equivocation, the government can find and hence cite only two cases as justification for its position that § 788 prevents an effective enforcement of a maritime lien so no right of recovery can be had under a PVA § 781 suit including principles of in rem liability.
One is River & Offshore Services Co. v. United States,
46 U.S.C. § 788 forbids liens against public vessels. Section 788 provides, “Nothing contained in this chapter shall be construed to recognize the existence of or as creating a lien against any public vessel of the United States.” Therefore, the United States is entitled to summary judgment dismissing the maritime lien claims against the United States.40
The other case cited is B.V. Bureau Wijsmuller v. United States of America as Owner of the Warship Julius A. Furer,
Accordingly, the Government contends, the motion to compel arbitration must be denied, and the case go forward in this court pursuant to the provisions of [the PVA],
Id.
The Court held for reasons no one challenges, that enforcement of the “LOF” for arbitration (and deposits) was not enforceable under PVA. Consequently, the motion for an order directing the government to proceed with arbitration was denied. But the Court then added what must have pleased the government proctor but which makes chills go up and down the spine of the present advocates:
The case will go forward in this court, in accordance with applicable maritime law as declared by the federal courts sitting in admiralty.
Id. at 2522.
II.
Whether Stevens Has a Maritime Lien
Here we address, as did Canadian Aviator supra, n. 3, and related text, the deferred question, supra, n. 12, whether under applicable admiralty principles, Stevens has a maritime lien.
The critical facts are relatively free of dispute. First, both MSC and MDL were aware of Stevens’ performance. Indeed, as required, the principal contract with Atlantic, showed Stevens as a subcontractor having more than 15 percent by dollar value of the contract. More than that, they knew that Atlantic was not capable, either by facilities or experience, to do anything other than clean and repaint the ship’s tanks. Compensation for the work to be done by Atlantic was approximately $579,000 and that of Stevens a like figure of $580,000. The work known to be done by Stevens, comprising Items 3 to 177, related to exten
Of course, the contract covering work actually to be done by Atlantic and Stevens was fully and explicitly authorized by MTL, the operator whose operating contract included responsibility for maintenance and repair of the vessel. Further up the governmental hierarchy, it was approved by MSC. Atlantic refused to take responsibility for Stevens’ work. Despite the government’s effort to stick its head in the sand as though Stevens barely existed and was a complete stranger to this million dollar job, both MSC and MTL, while unhappy with Atlantic’s refusal to assume any responsibility other than purely nominal, for Stevens’ work, continued to deal with Stevens’ representatives in discussing, testing and inspecting work done by Stevens. So upsetting was this to persons schooled in bureaucratic formalities, the MSC principal representative wrote a last redoubt memorandum “for the file” complaining bitterly of this untypical arrangement. Fortunately for the work, the job went on with close collaboration dealing with Stevens in its work by representatives of MTL and occasionally MSC.
To cap it all off, the actions of the government refute its peculiar contention that the work done by Stevens was not ordered by any party “who [was] authorized,” § 971. All of the repairs were accepted and fully compensated to the dollar by MTL. MTL, in turn, had further ratification by being reimbursed with government funds through MSC.
There is thus no question about the actual performance of the repairs, the actual performance of the repairs by Stevens, and that all of this was done under a contractual arrangement initiated, authorized and accepted by competent authorities. There is no dispute the repairs were done, were done by Stevens, and were accepted and paid for by MTL and MSC.
This brings into play the Maritime Lien Act which by § 971
The Court in Gulf Oil Trading Co. v. M/V CARIBE MAR,
Section 971 ... grants a lien if necessaries are ordered by the owner “or a*1536 person authorized by the owner.” Section 972 states a presumption that certain individuals are authorized by the owner to order necessaries. Section 973, since the 1971 amendment, serves only to include certain other individuals in the class presumed to be authorized by the owner under section 973. Prior to the 1971 amendment, section 973 also served to qualify the presumption stated in Section 972.
Id. at 748.
The Court then confronted the contention that the 1971 amendments made the presumption of authority in § 972 a conclusive presumption. In rejecting this contention, the Court held that a principal purpose of the 1971 amendments was to statutorily eliminate the affirmative — and the theretofore judicially declared — duty of inquiry. The amendments would not enable the furnisher to overcome actual knowledge of an effective no-lien clause or contract. Id. at 749.
Of course, § 974 permits the affirmative waiver of a lien.
In an opinion binding on this Court,
We are of the further opinion that § 971 et seq. is not to be viewed through the constricting glass of stricti juris-We view the legislative history of these sections to mandate a more liberal application than that which existed prior to the 1971 amendments to the Maritime Lien Act. Our review leads us inexorably to the conclusion that it was the intent of Congress to make it easier and more certain for [contractors] and others to protect their interests by making maritime liens available where traditional services are routinely rendered.
Id. at 201.
Since the furnisher of repairs does not have to “allege or prove that credit was given to the vessel,” § 971, the absence of proof from Stevens showing that it affirmatively relied on the credit of the vessel, rather than that of Atlantic (the main contractor) is not decisive. The government’s assertion comes down almost to the proposition, so urgently advanced in the framing of its questions to witnesses that, especially in view of the terms of the Atlantic contract, Stevens must have expected payment from Atlantic rather than from the government. Expectations that payment for the service would be made by some party other than the vessel does not vitiate a lien by one who, as permitted under § 971, is not required to prove reliance on the credit of the vessel. Indeed, expectation that a time-charterer, who ordered the bunkers, see Gulf Oil, supra, n. 45, or stevedoring, see Atlantic and Gulf, supra, n. 48, relfect that the furnisher fully expected payment in full by the time-charterer, but when it was not forthcoming, each had a maritime lien. The classic ease in its simplest form involves a time-charterer who, under the charter is responsible for paying for the loading and discharge of cargo, arranges with a contracting stevedore to furnish the services including that of longshoremen. Obviously, the stevedore expects to be paid by the charterer. On failure of the time-charterer to pay, the stevedoring contractor has a maritime lien.
Since expectation of payment is of no decisive significance, all that is left of the
This circuit’s cases construing the waiver provision ... place a heavy burden on the litigant attempting to prove that [a claimant] waived a lien by looking to someone other than the vessel owner for payment.
Id. at 750.
Going on, the Court, in citing earlier Fifth Circuit cases all binding on this Court, see supra, n. 49, including Sasportes,
Under MLA, the repairs performed by Stevens were ordered by authorized persons, performed by Stevens, and accepted by authorized persons so that Stevens became a maritime lienor under §§ 971-973, which was not, by the Atlantic contract, or otherwise, waived under § 974.
We could perhaps simply determine by our reversal on Part I that the denial of a maritime lien under Part II be likewise reversed. Since we are convinced that the trial court was laboring under misapprehensions of the MLA on the facts, its fact-findings/conclusions are to the contrary. They lack the protection of the usual Rule 54(b) clearly erroneous standard, and a remand is called for. Consequently, the question of the existence of a maritime lien by Stevens is vacated and remanded for further consistent proceedings.
III.
We do not reach the contention that recovery of the amounts due under PVA is barred because of the Contract Disputes Act, 41 U.S.C: § 601 et seq., since it was not urged as a defense by the government, nor even argued below. Nevertheless, the admiralty court would have to determine that the controversy contains no disagreement as to the work done or price payable, especially in view of § 603:
Appeals under paragraph (g) of [section 607] and suits under [section 609], arising out of maritime contracts, shall be governed by [46 U.S.C. §§ 741, et seq.] or [46 U.S.C. §§ 781 et seq.] as applicable, to the extent that those acts are not inconsistent with this act.
The dispute is confined to whether, for repairs fully performed, the furnisher is entitled to a lien — a question of law not within the competence of a contracting officer.
As to the question of relief (Part I) under PVA despite § 788, we disapprove and direct a judgment in Stevens’ favor; as to the existence of a maritime lien (Part II) we vacate and remand for further consistent proceedings.
REVERSED AND RENDERED IN PART.
VACATED AND REMANDED IN PART.
. 46 U.S.C.App. § 741, see, infra, n. 7.
. 46 U.S.C.App. § 781, see, infra, n. 15, and related text.
. 324 U.S. 215, 65 S.Ct. 639, 89 L.Ed. 901 (1945).
. Section 742, Libel In Personam, provides, in pertinent part:
In cases where if such vessel were privately owned or operated ... a proceeding in admiralty could be maintained, any ... proceeding in personam may be brought against the United States.... Such suits shall be brought in the district court of the United States....
. Section 743, Procedure in Cases of Libel In Personam, provides, in pertinent part:
Such suit shall proceed ... and [be] determined according to the principles of law and to the rules of practice obtaining in cases between private like parties.... If the libel-ant [plaintiff] so elects in his libel, the suit may proceed in accordance with the principles of libels in rem wherever it shall appear that had the vessel ... been privately owned ... a libel in rem might have been maintained .... [T]he, United States ... shall [not] be required to give any bond or admiralty stipulation on any proceeding brought hereunder.
. Section 782, applying provisions of chapter 20, provides, ,in pertinent part:
Such suit shall be brought in the district court of the United States.... Such suits shall be subject to and proceed in accordance with the provisions of chapter 20 [PVA] of this title or any amendment thereof, insofar as the same are not inconsistent herewith....
(Emphasis added).
. Section 741, Exemption of United States Vessels and Cargo from Arrest or Seizure, provides, in pertinent part:
No vessel owned by the United States ... or in the possession of the United States ..., and no cargo owned or possessed by the United States ... shall, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions.
. Section 788, Lien Not Created Against Public Vessels, provides:
Nothing contained in this chapter shall be construed to recognize the existence of or as creating a lien against any public vessel of the United States.
. The Lake Monroe (Re: United States), 250 U.S. 246, 39 S.Ct. 460, 63 L.Ed. 962 (1919).
. 39 Stat. 728, c. 451, codified at 46 U.S.C.App. § 801 et seq.
. 272 U.S. 675, 47 S.Ct. 289, 71 L.Ed. 472 (1926).
. For Part I, we assume that Stevens, as the principal subcontractor, has a maritime lien. That question is deferred to Part II.
. It is uncontested that the SEALIFT ANTARCTIC, an auxiliary tanker, was at all material times a public vessel of the United States. This vessel has been engaged exclusively in the carriage of Department of Defense petroleum products to military facilities, which are used to supply naval vessels, aircraft, and other military vehicles of the Army, Navy and Air Force. Since the vessel was launched, it has never carried privately owned cargo.
. While the complaint specified the action to be against the vessel in rem, no writ or warrant of arrest was issued by the clerk of court, nor was the vessel ever seized.
. Brackets are added for ease of reference.
. GILMORE AND BLACK, THE LAW OF ADMIRALTY, 2d Ed. 1974 at 630.
.See Id., at 532-85. Indeed, for priority, salvage "ranks second in the order of priority on the theory that the salvor has preserved the property for the benefit of all claimants.” Id. at 738.
. See, supra, n. 3, 324 U.S. at 218-22, 65 S.Ct. at 641-43, 89 L.Ed. at 905-07.
. American Stevedores, Inc. v. Rosario Porello, 330 U.S. 446, 450-54, 67 S.Ct. 847, 849-52, 91 L.Ed. 1011, 1016-18 (1947).
. United States v. United Continental Tuna Corp., 425 U.S. 164, 170-78, 96 S.Ct. 1319, 1323-27, 47 L.Ed.2d 653, 659-64 (1976).
. See, supra, n. 10.
. 345 U.S. 446, 73 S.Ct. 733, 97 L.Ed. 1140 (1953).
. See, S.Rep. No. 1894, 86th Cong. 2nd Sess., 1960 U.S.Code Congressional and Administrative News, p. 3583, et seq. and n. 8; DeBardeleben Marine Corp. v. United States, 451 F.2d 140, 143 (5th Cir.1971).
.The Court stated:
If the District Court interprets the contract not to apply to the facts of this case, the Court would, of course, be free to adjudge the responsibility of the parties to the contract under applicable rules of admiralty law.
Id. at 458, 67 S.Ct. at 854, 91 L.Ed. at 1021.
. 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963).
. 5 U.S.C. § 757(b).
. 173 U.S. 540, 19 S.Ct. 491, 43 L.Ed. 801 (1899).
. 46 U.S.C.App. § 102; substantially re-enacted in § 4(2)(a) of COGSA, codified at 46 U.S.C.App. § 1304(2)(a).
. 260 U.S. 452, 43 S.Ct. 179, 67 L.Ed. 346 (1923).
. 267 U.S, 122, 45 S.Ct. 277, 69 L.Ed. 536 (1925).
. 398 F.2d 167 (2d Cir.1968).
. 343 U.S. 427, 72 S.Ct. 849, 96 L.Ed. 1051 (1952).
. 39 Stat. 742, 5 U.S.C. §§ 751 et seq.
. 186 F.2d 120 (4th Cir.1950).
. The amendment added a new subsection to 63 Stat. 854 which concluded:
Provided, however, that this subsection shall not apply to a master or a member of the crew of any vessel.
. 384 U.S. 158, 86 S.Ct. 1384, 16 L.Ed.2d 445 (1966).
. 425 U.S. 164, 96 S.Ct. 1319, 47 L.Ed.2d 653 (1976).
. Section 785, which covers suits by nationals of foreign governments, provides:
No suit may be brought under this chapter by a national of any foreign government unless it shall appear to the satisfaction of the Court ... that said government, under similar circumstances, allows nationals of the United States to sue in its courts.
46 U.S.C.App. § 785.
. 651 F.Supp. 276 (E.D.La.1987).
. Id. at 281-82 (footnote omitted). The court in its note 7, Id. at 282, did provide, "See Marine Coatings of Alabama, Inc. v. United States, 792 F.2d 1565, 1567 (11th Cir.1986)." Marine Coatings is now on appeal to the Eleventh Circuit, and has been held in abeyance pending the decision in the instant case.
.1976 A.M.C. 2514 (S.D.N.Y.1976).
. Section 971 provides in full:
Any person furnishing repairs, supplies, tow-age, use of dry dock or marine railway, or other necessaries, to any vessel, whether foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel, which may be enforced by suit in rem, and it shall not be necessary to allege or prove that credit was given to the vessel.
. Section 972, Persons authorized to procure repairs, supplies and necessaries provides:
The following persons shall be presumed to have authority from the owner to procure repairs, supplies, towage, use of dry dock or marine railway, and other necessaries for the vessel: The managing owner, ship’s husband, master, or any person to whom management of the vessel at the port of supply is intrusted. No person tortiously or unlawfully in possession or charge of a vessel shall have authority to bind the vessel.
. Section 973 provides as follows (portion deleted by 1971 amendment is emphasized):
The officers and agents of a vessel specified in [§ 972] shall be taken to include such officers and agents when appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser in possession of the vesself;] but nothing in this section shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of the charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs, supplies, or other necessaries was without authority to bind the vessel therefor.
46 U.S.C. § 973 (amended 1971).
. 757 F.2d 743 (5th Cir.1985).
. Section 974 Waiver of right to lien:
Nothing in this chapter shall be construed to prevent the furnisher of repairs, supplies, tow-age, use of dry dock or marine railway, or other necessaries, or the mortgagee, from waiving his right to a lien ... at any time by agreement or otherwise.
. Bonner v. City of Prichard, Alabama, 661 F.2d 1206 (11th Cir.1981) (decisions binding on the Eleventh Circuit).
. 608 F.2d 197 (5th Cir.1979).
. Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, 273, 60 S.Ct. 937, 940, 84 L.Ed. 1197, 1200 (1940). See also, Point Landing, Inc. v. Alabama Dry Dock & Shipbuilding Co., n. 51, infra; TTT Stevedores v. M/V JAGAT VIJETA, 696 F.2d 1135, 1139 (5th Cir.1983).
. Sasportes v. M/V SOL DE COPACABANA, 581 F.2d 1204 (5th Cir.1978).
. 261 F.2d 861, 867 (5th Cir.1958).
. 658 F.2d 363, 368 (5th Cir.1981).