IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-31288
BANK ONE LOUISIANA N A,
Plaintiff-Appellee,
versus
MR DEAN MV, Etc.; ET AL,
Defendants,
BARGECARIB INCORPORATED,
Intervenor-Appellant.
Appeals from the United States District Court
for the Eastern District of Louisiana
June 10, 2002
Before GARWOOD and WIENER, Circuit Judges
and FALLON, District Judge.(1)
GARWOOD, Circuit Judge:
BargeCarib, Inc. (BargeCarib) appeals the
district court's grant of summary judgment in favor of Bank One, Louisiana
N.A. (Bank One) establishing that Bank One's preferred ship mortgage had
priority over BargeCarib's maritime lien for breach of charter. Because
maritime liens for breach of charter attach at the moment the owner places
the vessel at the charterer's disposal, we vacate and remand.
Background
BargeCarib, Inc. (a subsidiary of American
Rice, Inc.) sells rice to Haiti and transports it there by an oceangoing
barge called the LauriKristi. To provide propulsion for the LauriKristi,
BargeCarib executed a time charter agreement with Offshore Supply Ships,
Inc. (Offshore), owner of the towboat M/V Sovereign, to hire the Sovereign
for a period of one year, beginning August 15, 1996. BargeCarib began using
the Sovereign under this charter and later, in July 1997, timely exercised
its contractual right, provided for in the charter, to extend the charter
for another year.
On May 20, 1997, Offshore sold the Sovereign
to Global Towing, LLC (Global). To finance this purchase, Global received
a line of credit from First National Bank of Commerce (FNBC) and in return
gave FNBC a $2,000,000 preferred ship mortgage as security. Global completely
satisfied the Sovereign's existing mortgage of record and FNBC duly recorded
its preferred mortgage on May 21, 1997. On October 2, 1998, Global's owner
Michael Blake executed an $800,000 guarantee of the Global indebtedness.
After the sale of the vessel and recording
of the mortgage, Offshore and Global reassured BargeCarib that the Sovereign,
now renamed the M/V Mr. Dean, would sail on time for a scheduled trip to
Haiti. Nevertheless, Global delivered neither the Mr. Dean nor a substitute
suitable under the charter. BargeCarib immediately filed suit in the United
States District Court for the Southern District of Texas against the Mr.
Dean in rem and Global in personam for breach of the charter.
This court held that the charter had indeed been breached. BargeCarib
Inc. v. Offshore Supply Ships, Inc., 168 F.3d 227 (5th Cir. 1999).
On remand, the district court held that the date of breach was July 10,
1997.
Global defaulted on the loan and Blake refused
to pay under the terms of his guarantee. On March 24, 2000, Bank One (successor
by merger to FNBC) responded by filing the present lawsuit in the United
States District Court for the Eastern District of Louisiana against the
Mr. Dean in rem and against Global and Blake in personam.
On June 2, 2000, BargeCarib intervened in the lawsuit and asserted a maritime
lien based on the breach of charter. BargeCarib and Bank One disputed the
priorities of their claims to the Mr. Dean, a critical issue because the
proceeds of sale of the Mr. Dean would be unlikely to satisfy both interests.
They filed cross motions for summary judgment, and by order dated September
29, 2000 and entered October 2, 2000, the district court denied BargeCarib's
motion and granted summary judgment to Bank One, determining that Bank
One's mortgage had priority over BargeCarib's maritime lien. BargeCarib
has timely appealed the September 29 order.
Discussion
I. Threshold Issues
This court takes jurisdiction of this appeal
pursuant to 28 U.S.C. § 1292(a)(3), allowing for review of interlocutory
decrees of district courts determining the rights and liabilities of the
parties to admiralty cases. Because the grant of summary judgment disposed
of BargeCarib's case on the merits, we have jurisdiction even without Rule
54(b) certification. See Walter E. Heller and Co. v. O/S Sonny V.,
595 F.2d 968, 971-72 (5th Cir. 1979). We review a grant of summary judgment
"de novo, applying the same standards as the district court, while
viewing all disputed facts and reasonable inferences in the light most
favorable to the nonmoving party." McClendon v. City of Columbia,
258 F.3d 432, 435 (5th Cir. 2001) (quotation omitted).
II. Attachment of a Maritime Lien
Under the Ship Mortgage Act, Bank One's mortgage
takes priority over all other claims against the vessel except for "preferred
maritime liens." 46 U.S.C. § 31326(b)(1). Under the facts of this
case, BargeCarib's lien could only be preferred if it "arose" before the
mortgage was filed. 46 U.S.C. § 31301(5)(A). The time charter commenced
before the mortgage was filed, but Offshore and Global breached the charter
twenty days after that date. Thus, this case presents the purely legal
question of when a maritime lien for breach of charter "arises." Bank One
prevails if maritime liens arise at the time of breach, while BargeCarib
prevails if they arise at the inception of the charter.
We begin our analysis, as we must, with a
recognition of the unique qualities of the maritime lien. Rather than arising
from the English common law, maritime liens are based on principles of
civil law. The Young Mechanic, 30 F. Cas. 873, 874 (Curtis, Circuit
Justice 1855). As a result, a "maritime lien, so-called, is not a lien
at all in the common-law sense of the term." Grant Gilmore & Charles
L. Black, Jr., The Law of Admiralty 586 (2nd ed. 1975) (hereinafter Gilmore
& Black). "A lien is a lien is a lien, but a maritime lien is not."
Id. at 589. This case concerns the maritime lien's unique power
to confer the right to sue the vessel itself in rem, almost as if
it were a person. See id. at 589.(2)
When the vessel is sold under an in rem proceeding to satisfy a
maritime lien, the owner takes the vessel free of all liens imposed anywhere
in the world. Id. at 622. Accordingly, we take note that our analysis
should not be primarily guided by reference to the commercial law of secured
credit or the land-based common law of liens. Instead, we find our guidance
in the ancient and peculiar case law of admiralty. While recent cases cast
only a dim glow, we find our lighthouse in the Supreme Court of the 1860s.
A. Older Case Law
A wealth of authority from the nineteenth
century exists to guide us in our resolution of this case. We discover
that courts have long understood that maritime liens for charters and shipping
contracts attach at the beginning of the contract and remain inchoate until
breached.
The Supreme Court first examined the timing
of charter liens in The Freeman, 59 U.S. (18 How.) 182 (1855), observing
in dictum that "charterparties, must, in the invariable regular
course of that business, be made, for the performance of which the law
confers a lien on the vessel." Id. at 190. The Court added that
"third persons, who have shipped merchandise and taken bills of lading
therefor, would thereby acquire a lien on the vessel." Id. This
use of "thereby" implies that the lien attaches at the delivery of the
merchandise, a point made explicit in 1860 when Mr. Justice Nelson held
that:
"The goods were put on board of the vessel,
and, if the lien attached at all, it attached as soon as they were laden
on board. So far as the form of the remedy is concerned, it is the same
as if the voyage had been broken up by the charterers at any other point
in the course of the voyage, after the vessel had been out a week, a month,
or longer." The Hermitage, 12 F. Cas. 27, 28 (Nelson, Circuit Justice
1860).
The entire Court agreed that same term, holding
that "we do not see why the lien may not attach, when the cargo is delivered
to the master for shipment." The Edwin, 65 U.S. (24 How.) 386, 394
(1860). The Court reaffirmed the principle six years later. "[T]he better
opinion is, that the lien for freight commences as soon as the goods are
delivered into the control of the master, or certainly as soon as they
are put on board." The Bird of Paradise, 72 U.S. (5 Wall.) 545,
563 (1866).(3) These holdings were reiterated
by district and circuit courts. "[A]s soon as the performance of the contract
is commenced a lien exists on the vessel in favor of the shipper or charterer,
and a suit in rem may be maintained against the same for any liability
of the master or owner arising on or growing out of such contract." The
Director, 26 F. 708, 710 (D. Or. 1886). See also The Oceano,
148 F. 131, 133 (S.D.N.Y. 1906) (quoting same); The Esrom, 272 F.
266, 270-71 (2nd Cir. 1921) ("[T]he lien of the vessel upon the goods and
of the goods upon the vessel attaches from the moment the goods are laden
on board").
Soon after The Bird of Paradise, the
Supreme Court elaborated further by adopting the Privy Council's classic
exposition of the maritime lien:
"A maritime lien is the foundation of the
proceeding in rem, a process to make perfect a right inchoate
from the moment the lien attaches; and whilst it must be admitted that
where such lien exists, a proceeding in rem may be had, it will
be found to be equally true, that in all cases where a proceeding in
rem is the proper course, there a maritime lien exists, which gives
a privilege or claim upon the thing, to be carried into effect by legal
process." The Bold Buccleugh, 7 Eng. Rep. 267, 284 (1851), quoted
in The Rock Island Bridge, 73 U.S. (6 Wall.) 213, 215 (1867)
(emphasis added).
This statement explains how a maritime lien
can attach at the beginning of the charter, yet only be enforceable at
the time of breach: the lien remains "inchoate" until "perfected." The
lien exists from the beginning of the charter to provide security for the
parties:
"Shipowners contract for the safe custody,
due transport, and right delivery of the cargo, and for the performance
of their contract the ship, her apparel and furniture, are pledged in each
particular case, and the shipper, consignee, or owner of the cargo, contracts
to pay the freight and charges, and to the fulfillment of their contract
the cargo is pledged to the ship, and those obligations are reciprocal,
and the maritime law creates reciprocal liens for their enforcement." The
Maggie Hammond, 76 U.S. (9 Wall.) 435, 450 (1869).
Judge Hough later clarified the true purpose
of the rule:
"The ancient and customary lien of the sea
is not maintained, nor was it created (so far as history reveals its origin)
for the convenience or assurance of parties, but for the encouragement
of commerce and shipping as a presumed benefit to the public, in respect
of an occupation hazardous and uncertain beyond most land ventures." The
Saturnus, 250 F. 407, 414 (2nd Cir. 1918).
Even though the lien attaches at the beginning
of the venture, the inchoate lien cannot permit suit against the vessel
in rem until "perfected" by a breach of the charter. This principle
was best stated in 1921:
"From the moment, therefore, that the cargo
was aboard the St. Paul, the lien attached. It is argued, however, that
this lien was 'inchoate,' in the meaning of not being perfected . . . .
It is 'inchoate' only in the sense of enforceability. In other words, the
lien is discharged, ipso facto, when the ship performs its duty to the
cargo. If it does not, then the enforcement 'relates back to the period
when it first attached'; for the lien is born and exists, until discharged,
from the moment the cargo is aboard." The St. Paul, 277 F. 99, 106
(S.D.N.Y. 1921).
Thus, the maritime lien attaches at the commencement
of the undertaking and any subsequent breach perfecting the lien relates
back to that time. BargeCarib's maritime lien arose when the Mr. Dean (then
called the Sovereign) was delivered under the time charter agreement, and
it was perfected when Global and Offshore breached the contract.
B. The Executory Contract Doctrine
The above cases require that the cargo be
aboard the vessel in order for the lien to attach. This comes from the
"executory contract doctrine," the principle that a maritime lien does
not attach if the contract has not, by the actual loading of cargo, ceased
to be wholly executory. Though it can be seen in earlier cases, the Court
stated the rule clearly in 1870:
"[T]he law creates no lien on a vessel as
a security for the performance of a contract to transport a cargo until
some lawful contract of affreightment is made, and the cargo to which it
relates has been delivered to the custody of the master or some one authorized
to receive it." The Keokuk, 76 U.S. (9 Wall.) 517 (1870).
Bank One characterizes the executory contract
doctrine as an exception to the general rule that breach of contract gives
rise to a maritime lien, not as an indication of when the lien attaches.
Thomas Schoenbaum intimates the same in his treatise Admiralty and Maritime
Law. See 1 Thomas J. Schoenbaum, Admiralty and Maritime Law §
9-2, at 506-07 (3rd ed. 2001).
We choose instead to rely upon the above case
law and on other treatises. See 2 Benedict on Admiralty §
43, at 3-48 (7th ed. rev. 1988); Michael Wilford et al., Time Charters
498 (4th ed. 1995). The executory contract doctrine encompasses the earlier
case law and merely restates the fact that an inchoate maritime lien attaches
once the cargo is loaded. This is the meaning of our more recent statement
that "under the 'executory contract doctrine,' a maritime lien for breach
of charterparty arises once (and to the extent that) cargo is loaded on
board." Cardinal Shipping Corp. v. M/V Seisho Maru, 744 F.2d 461,
467 (5th Cir. 1984).
We must also note the application of this
doctrine to the present case. The asserted maritime lien arises from a
time charter and not a contract of affreightment, a distinction we made
in E.A.S.T., Inc. of Stamford, Connecticut v. M/V Alaia, 876 F.2d
1168 (5th Cir. 1989). "A time charterer does not pay freight to the vessel
owner for the safe transport of a specific cargo to a specific destination,
but pays instead for the use of the vessel for a specified period of time--the
intended use of the vessel may not include the transportation of any cargo
at all or may be to make a series of voyages, carrying different cargo
to various destinations." Id. at 1176. For that reason, even though
a contract for affreightment ceases to be executory only when the cargo
is loaded, "the vessel begins performance of the [time charter] contract
when it 'is placed at the charterer's disposal'" and ceases to be executory
at that point. Id. at 1176. Under the logic we expressed in Alaia,
then, a maritime lien for breach of a time charter attaches when the owner
places the vessel at the charterer's disposal. In the present case, the
vessel had already been delivered to BargeCarib and BargeCarib had made
several voyages with it.(4) BargeCarib's
maritime lien thus arose before the preferred ship mortgage was recorded.
C. Recent Case Law
Very few recent cases even hint at when a
maritime lien arises.(5) The Supreme Court
has not discussed the priority of maritime liens since 1898, no recent
circuit court case addresses the issue before us, and district courts have
addressed the issue but split in their results. Though this confusion means
we cannot rest upon recent holdings, it also means that nothing has altered
the precedent laid down in the last century.
Bank One most heavily relies upon our decision
in Cardinal Shipping Corp. v. M/V Seisho Maru, 744 F.2d 461 (5th
Cir. 1984), quoting our statement that "a maritime lien typically arises
when the owner has breached its contract with the charterer." Id.
at 466. Yet, in Cardinal Shipping we were discussing whether a sub-charter
confers the right to sue the vessel in rem or whether the litigant
must be satisfied with the usual in personam and quasi in rem
approaches. Id. at 467. Placed within its context, the statement
merely addresses the existence of a maritime lien and not when that lien
attaches. This reading gains support from our later statement in Cardinal
Shipping that "under the 'executory contract doctrine,' a maritime
lien for breach of charterparty arises once (and to the extent that) cargo
is loaded on board." Id. "The fanciful courts have envisioned a
'union of ship and cargo' marking the commencement of the lien." Id.
As we explained above, these later statements delineate the exact point
at which the lien attaches and undermine Bank One's interpretation of the
earlier sentence. At any rate, Cardinal Shipping would not bind
us because it addressed a breach at the beginning of the charter. Id.
at 464. Any statement regarding the timing of the lien would therefore
be dictum.
For the same reason, we find inapposite the
Second Circuit's treatment of maritime liens in Rainbow Line, Inc. v.
M/V Tequila, 480 F.2d 1024 (2nd Cir. 1973). The Second Circuit held
in Rainbow Line that "there is a maritime lien for the breach of
a charter party," a holding we followed in International Marine Towing
v. Southern Leasing Partners, Ltd., 722 F.2d 126, 130-31 (5th Cir.
1983). Though the Rainbow Line court states that "a maritime lien
for breach of charter has priority over the mortgagee only if it has attached
before the mortgage was recorded," Rainbow Line, 480 F.2d at 1028,
this only begs the question before us. Moreover, just as in Cardinal
Shipping, the Rainbow Line court was considering a breach of
charter that occurred before the mortgage was recorded. Any inference regarding
the time of attachment would thus be dictum.
Finally, we note that our opinion in International
Marine Towing v. Southern Leasing Partners, Ltd., 722 F.2d 126 (5th
Cir. 1983) implies in several places that the breach of the charter gives
rise to the maritime lien. See, e.g., id. at 130 ("III. MARITIME
LIENS ARISING FROM BREACH OF THE CHARTER PARTY"); id. at 132 (".
. . the clause does not speak to the issue of liens created by the owner's
breach . . ."). We also note, however, that
International Marine Towing
only discussed the existence of the maritime lien and declined to go any
further. Id. at 132-33. As with Rainbow Line and Cardinal
Shipping, this court did not have before it the question we consider
today. Therefore, while we were apparently under the impression that breach
of charter confers a maritime lien at the moment of breach, we don't think
our passing
dicta should lead us to disregard Supreme Court precedent.
Some district courts have, of late, directly
ruled on the question presented here. In Kopac International, Inc. v.
M/V Bold Venture, 638 F. Supp. 87 (W.D. Wash. 1986), the court held(6)
that a mortgage took priority over a lien for breach of charter because
the mortgage was recorded before any breach could have occurred. Id.
at 90. The only authority offered by the Kopac court was the equivocal
quote from Rainbow Line discussed above; the district court apparently
jumped to conclusions and thus the decision commands little deference.
Id. In Rainbow Line, Inc. v. M/V Tequila, 341 F. Supp. 459
(S.D.N.Y. 1972), a district court determined priority by reference to the
date of breach. Id. at 464. This reference was not carried forward
into the Second Circuit's opinion in the case, probably because (as discussed
above) it is not necessary to the decision.
On the other hand, some modern district court
opinions support BargeCarib's position. In Medina v. Marvirazon Compania
Naviera, S.A., 533 F. Supp. 1279 (D. Mass. 1982), the district court
held that "a lien in favor of the charterer attaches to the vessel from
the moment performance of a charter commences." Id. at 1290. BargeCarib
also directs us to two district court cases where ongoing contracts begun
before the mortgage were held to have priority over the mortgage. Redwood
Empire Production Credit Association v. Fishing Vessel Owners Marine Ways,
Inc., 530 F. Supp. 75 (W.D. Wash. 1981); Caterpillar Financial Services,
Inc. v. Aleutian Chalice, 1994 A.M.C. 1767, 1994 WL 468187 (W.D. Wash.
1994). These cases fall within a line of such holdings, explained by Gilmore
and Black:
"Where repairs, being performed under contract,
were begun before, but not completed until after recording and indorsement,
it has reasonably been held that the entire repair claim was entitled to
priority. The basis of such holdings seems to be that the repair man was
under a contractual duty to go forward with the work; a supply man who
continued to furnish supplies after the mortgage had been recorded and
indorsed would not be entitled to priority." Gilmore & Black at 755-56,
citing The Eastern Shore, 31 F. Supp. 964, 1940 A.M.C. 388
(D. Md. 1940) and
The Transford, 1929 A.M.C. 727 (E.D.N.Y. 1929).
We agree with BargeCarib that these cases
suggest that the relevant date for continuing contracts should be the date
of commencement of performance, and that the charter is somewhat analogous.
Nothing in the more modern case law dissuades
us from the path charted by the Supreme Court 140 years ago.
D. Other Language in Recent Case Law
Some recent statements in dictum are
even more ambiguous as to the present question, but should nevertheless
be examined in light of the rule we have discovered. We first note our
passing observation that "the [maritime] lien arises when the debt arises."
Equilease Corp. v. M/V Sampson, 793 F.2d 598, 602 (5th Cir. 1986)
(en banc).(7) This court took as its authority
The Poznan, 9 F.2d 838, 842 (2nd Cir. 1925), rev'd on other grounds,
47 S.Ct. 482 (1927). Equilease, 793 F.2d at 602. The true meaning
of the quoted language can be more clearly seen in The Poznan, which
states the rule as follows:
"[The maritime lien] is given by the law,
and it gives the creditor a special property in the ship, which subsists
from the moment the debt arises, and it gives him a right to have the ship
sold that his debt may be paid out of the proceeds of the sale." The
Poznan, 9 F.3d at 842.
This was the original statement of the rule,
before the language was modernized. See The Young Mechanic, 30 F.
Cas. 873, 875 (Curtis, Circuit Justice 1855) ("the law creating an incumbrance
thereon, and vesting in the creditor, . . . which subsists from the moment
when the debt or claim arises"); The J.E. Rumbell, 13 S.Ct. 498,
499 (1893) (quoting same); 2 Benedict on Admiralty § 22 (7th ed. rev.
1988). The word "subsists" becomes essential here, because it does not
mean "springs into being" but rather "exists" in the sense of "persists"
or "continues." See Webster's Third New International Dictionary Unabridged
2279 (1961). The maritime lien attaches when the cargo is loaded or the
chartered vessel delivered, and continues when the debt perfects (or "vests")
the power to later sue the vessel in rem. The Second Circuit in
The Poznan must have agreed, or they would not have observed that
"the lien . . . attaches from the moment the goods are laden on board."
The Poznan, 9 F.2d at 842, quoting The Esrom, 272 F.2d 266,
270 (2nd Cir. 1921). We are therefore not troubled by this statement in
our recent case law. When the debt arises, what "arises" is not the lien
itself but rather the right to sue in rem.
We have also previously stated that "because
the damages sought to be recovered by [the charterer] . . . flow directly
from the breach of the charter, it has a maritime lien." International
Marine Towing v. Southern Leasing Partners, 722 F.2d 126, 131 (5th
Cir. 1983), quoting Rainbow Line, Inc. v. M/V Tequila, 480 F.2d
1024, 1027 (2nd Cir. 1973) (alterations in original). Given the Supreme
Court precedent on point, we take this statement to mean only that once
the lawsuit is filed, maritime lien status only extends to those damages
which flow directly from the breach of charter. Insofar as the statement
might imply the timing of maritime liens, it would be dictum anyway.
E. The Ship Mortgage Act
Finally, the parties rely upon the Ship Mortgage
Act, now codified at 46 U.S.C. § 31301 et seq. While the statute
has nothing explicit to say on the issue before us, Bank One argues that
the lender protections of the statute would be undermined if maritime liens
for breach of charter attached at the beginning of performance of the contract,
in that the lender would be subordinated for a longer period of time. While
that is likely the case, we do not agree that this "problem" compels us
to accept Bank One's proposed rule. We also note that a lender may have
a difficult time knowing whether an ongoing charter has been breached,
while a rule establishing an inchoate maritime lien at the beginning of
the charter results in greater certainty. Such certainty assists the parties
with the reporting requirements of 46 U.S.C. § 31323 and with their
own investigations.(8) The parties therefore
advance two different readings of law, each of which may demonstrate a
Congressional purpose. Because of this equivocation, we cannot find guidance
in either. Instead, we choose to follow the precedent begun by the Supreme
Court in the 1860s and carried forward into this century by the circuit
and district courts.
Conclusion
Courts in the nineteenth and early twentieth
centuries held that a maritime lien attaches when a charter ceases to be
executory and remains inchoate until perfected by the breach of that charter;
we see nothing in the ambiguities of recent case law that undermines that
authority. This principle can be refined by observing that unlike a contract
of affreightment, a time charter ceases to be executory when the owner
places the vessel at the charterer's disposal. A maritime lien for breach
of a charter thus attaches when the owner places the vessel at the charterer's
disposal and remains inchoate until perfected by a breach or discharged
by the undisturbed end of the charter.
In the present case, the vessel had been placed
at BargeCarib's disposal, and was employed under the charter, months before
Bank One recorded its preferred ship mortgage, and therefore an inchoate
maritime lien attached to the Mr. Dean. When Global and Offshore perfected
BargeCarib's maritime lien by breaching the charter, the lien became enforceable.
Nevertheless, the maritime lien "arose" before the mortgage was filed.
For this reason, the district court improperly granted Bank One's motion
for summary judgment and improperly denied BargeCarib's motion for summary
judgment. Accordingly, we VACATE the decisions of the district court and
REMAND for further proceedings not inconsistent with this opinion.
VACATED AND REMANDED
1. District Judge of the
Eastern District of Louisiana, sitting by designation.
2. "[T]he ship, personified,
is itself--or herself--the defendant in a proceeding in rem to enforce
a lien. The ship is "the offending thing"; the lien itself is, in an obscure
Latin jingle which has been so often repeated that it is no longer polite
to inquire what it means, jus in re rather than jus ad rem."
Gilmore & Black at 589. Yet, "[i]t may be concluded that the fiction
of ship's personality has never been much more than a literary theme."
Id. at 616.
3. This reasoning was carried
forward in Osaka Shosen Kaisha v. Pacific Export Lumber Co. (The Saigon
Maru), 43 S.Ct. 172 (1923), which held that "[t]he contract of affreightment
itself creates no lien, and this court has consistently declared that the
obligation between ship and cargo is mutual and reciprocal and does not
attach until the cargo is on board or in the master's custody." Id.
at 174. See also Krauss Bros. Lumber Co. v. Dimon S.S. Corp., 54
S.Ct. 105, 106 (1933).
4. We acknowledge that
Alaia only applies to "a breach only of the time charter qua
time charter and not of a contract of affreightment evidenced by
a time charter." Alaia, 876 F.2d at 1177 (emphasis in original).
After reviewing the record, the time charter agreement, the complaint in
intervention, and our prior opinion in BargeCarib's claim, nothing appears
which suggests that this was merely a contract of affreightment evidenced
by a time charter.
5. "There has been little
priority litigation even at the trial court level since, roughly, the 1920's."
Gilmore & Black at 736. "In a priority case today, the most recent
authority on any point will probably be a case decided by a District Judge
thirty or forty or fifty years ago." Id. at 737.
6. Appellants attempt to
characterize the Kopac holding as
dictum, but we note that
the proceeds of the sale were distributed according to the court's holding
on priority. Kopac, 638 F. Supp. at 93.
7. This language was quoted
in Governor and Co. of Bank of Scotland v. Sabay, 211 F.3d 261,
268 (5th Cir. 2000). The district court also makes a similar statement
in European-American Banking Corp. v. M/S Rosaria, 486 F. Supp.
245, 255 (S.D. Miss. 1978).
8. We note that the lender
has no responsibility to search for obligations beyond those reported by
the shipowner under the duty established in 46 U.S.C. § 31323. Pascagoula
Dock Station v. Merchants and Marine Bank, 271 F.2d 53 (5th Cir. 1959).
