UNITED STATES COURT OF APPEALS
For the Fifth Circuit
RACAL SURVEY U.S.A., INC.; NCS INTERNATIONAL,
Plaintiffs - Counter Defendants - Appellees,
M/V COUNT FLEET, her engines, tackle, furniture
& appurtenances in rem; ET AL.,
TIDEWATER MARINE INTERNATIONAL, INC.,
Counter Claimant - Appellant.
RACAL SURVEY U.S.A., INC.; NCS INTERNATIONAL,
M/V COUNT FLEET, her engines, tackle, furniture
& appurtenances in rem, ET AL.,
TIDEWATER MARINE INTERNATIONAL, INC.,
Intervenor Defendant - Appellant - Cross-Appellee,
Intervenor Plaintiff - Appellee - Cross-Appellant.
Appeals from the United States District
For the Western District of Louisiana
October 24, 2000
Before EMILIO M. GARZA, DeMOSS, and STEWART,
DeMOSS, Circuit Judge:
In these consolidated appeals, Tidewater Marine
International, Inc., ("TMI") primarily challenges two of the district court's
rulings arising out of an admiralty dispute. First, TMI argues that the
district court erred in finding a maritime lien in favor of Racal Survey
U.S.A., Inc., and NCS International, Inc., (collectively "Racal") over
various vessels chartered by Coastline Geophysical, Inc., ("Coastline")
from TMI. Second, TMI maintains that the district court improperly denied
TMI a maritime lien over certain seismic equipment sold by Input/Output,
Inc., ("Input") to Coastline.
Because Racal did not rely on the credit of
the arrested vessels or provide any necessaries to those boats, we reverse
the district court's judgment granting a maritime lien in favor of Racal.
We, however, conclude that the district court did not err with respect
to its ruling denying TMI a maritime lien over the seismic equipment sold
by Input and, therefore, affirm the district court's ruling on that issue.
On February 16, 1996, Coastline entered into
a Blanket Time Charter Agreement ("First Charter") with Tidewater Marine,
Inc., ("Tidewater Marine")(1). According
to that charter, Tidewater Marine was to provide vessels suited for offshore
activities in the mineral and oil industry. Those vessels were to embark
on a seismic expedition in the Gulf of Mexico in search of oil and gas.
In conformance with the First Charter, on March 11, 1996, the two parties
executed separate letter agreements for four vessels: 1) the M/V CAMERON
SEAHORSE, 2) the M/V WHITTIE TIDE, 3) the M/V TAYLOR TIDE, and 4) the M/V
To do its seismic operations, Coastline required
certain technical equipment. As a result, it made various inquiries to
Racal, who submitted a proposal to Coastline on February 12, 1996. That
proposal outlined the equipment to be leased and the services to be rendered
to Coastline for its operations. Furthermore, Racal submitted another proposal
on March 25, 1996, which pertained to the sale of certain other equipment
to Coastline. On March 27, 1996, Racal shipped all of the required equipment
to the shipyard for installation. The equipment would allow the four vessels
to coordinate information among themselves to better facilitate the search
for oil and gas. Two of the vessels would lay cable upon the ocean floor
while a third, the source vessel, would send information along the cable
via airgun shots from caterpillar machinery located on the vessel. A fourth
vessel would record the data generated from these airgun shots. In addition
to Racal's equipment, other equipment provided by Input was installed on
the chartered vessels.
After the First Charter terminated, Coastline
executed a second Blanket Time Charter ("Second Charter") on August 13,
1996. Although similar in nature to the earlier charter agreement, the
Second Charter differed in three respects: 1) TMI, not Tidewater Marine,
was the vessel owner; 2) four different vessels would be used; and 3) the
seismic operations would be conducted off the coast of Africa, not in the
Gulf of Mexico. On August 19, 1996, Coastline again agreed to separate
letter agreements for four vessels: 1) the M/V SECRETARIAT, 2) the M/V
COUNT FLEET, 3) the M/V COUNT TURF, and 4) the M/V MILTON TIDE. Between
August 28, 1996, and September 2, 1996, the equipment that had been placed
onto the First Charter vessels was transferred to the four new vessels
at Quality Shipyards, a subsidiary owned by Tidewater.
When the Africa survey concluded, the four
vessels chartered for that trip sailed to Trinidad and Tobago for another
job. During that voyage, the charter between Coastline and TMI terminated
due to non-payment of charter hire, but Coastline's equipment remained
on board. Besides failing to pay TMI, Coastline became insolvent and defaulted
on its payments to Racal and Input.(2) Upon
the return of the Second Charter vessels to the United States, Racal arrested
three of them. TMI secured the release of the vessels and removed and stored
Coastline's equipment. Shortly thereafter, TMI arrested Coastline's equipment,
in some of which Input claimed a UCC security interest, because of Coastline's
non-payment of charter hire.
In district court, Racal filed a motion for
partial summary judgment requesting determination of the validity of its
lien under the Federal Maritime Lien Act ("FMLA"), 46 U.S.C. § 31342.
TMI opposed that motion and filed a cross-motion for summary judgment.
After taking the motions under advisement, the district court ruled in
favor of Racal. Moreover, the district court granted Input's "Application
for Petitioner to Show Cause Instanter or, Alternatively, Motion for Summary
Judgment" and denied TMI's motion for summary judgment seeking recognition
of its claimed maritime lien in the Coastline equipment.
TMI now appeals both of those rulings.
II. STANDARD OF REVIEW
We review a grant or denial of summary judgment
de novo. See Webb v. Cardiothoracic Surgery Assocs., P.A.,
139 F.3d 532, 536 (5th Cir. 1998). Summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with any affidavits filed in support of the motion, show that there is
no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The summary
judgment evidence is reviewed in the light most favorable to the nonmovant.
v. Teachers Ins. & Annuity Ass'n, 114 F.3d 557, 559 (5th Cir.
1997). If the moving party meets its initial burden of showing that there
is no genuine issue, then the burden shifts to the nonmovant to set forth
specific facts showing the existence of a genuine issue. See
R. Civ. P. 56(e). The nonmovant cannot satisfy his summary judgment burden
with conclusional allegations, unsubstantiated assertions, or only a scintilla
of evidence. See Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). If the nonmovant fails to respond, then
summary judgment, if appropriate, shall be entered against that party.
R. Civ. P. 56(e).
Both of TMI's appeals involve the concept
of a maritime lien, a device developed as a necessary incident to the operation
of vessels. Piedmont & George's Creek Coal Co. v. Seaboard Fisheries
Co., 41 S. Ct. 1, 3 (1920). Because a ship moves from place to
place, it is peculiarly subject to vicissitudes that would compel abandonment
of vessel or voyage, unless repairs and supplies are promptly furnished.
Moreover, a ship is often absent from her home port without access to funds
and, as a result, must be able to obtain upon her own account needed repairs
and supplies. Id. That and the resulting need to ensure that
a ship did not sail away from its debts contributed to the creation of
the maritime lien. SeeEquilease Corp. v. M/V SAMPSON, 793
F.2d 598, 602 (5th Cir. 1986) (en banc).
Prior to 1910, however, a maritime lien was
hardly a certainty for the supplier of necessaries because the law was
full of exceptions. Gulf Oil Trading Co. v. M/V CARIBE MAR,
757 F.2d 743, 747 (5th Cir. 1985). To remedy that situation, Congress in
1910 enacted the Federal Maritime Lien Act ("FMLA"), 46 U.S.C. §§
971-975,(3) to bring a degree of uniformity
to the area of maritime liens. Id. The FMLA essentially preempted
the various state statutes with respect to the conferral of maritime liens
for repairs, supplies, and other necessaries.
793 F.2d at 602-03. And it eliminated the distinction that had been drawn
between a vessel in her home port and a vessel in a foreign port. Id.
Before the FMLA, a lien could be given for necessaries furnished to a vessel
in a port of a foreign state if the necessaries were furnished upon the
credit of the vessel, but no such lien could be given for necessaries furnished
in a vessel's home port or state.
Section 971 of the FMLA provided a maritime
lien to "any person furnishing repairs, supplies, towage, 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," and it further stated that the furnishing person
need not "allege or prove that credit was given to the vessel." 46 U.S.C.
§ 971 (superseded 1988). Section 972 created a presumption that the
managing owner, ship's husband, master, or any person to whom the management
of the vessel at the port of supply was intrusted had authority to procure
necessaries. Section 973 added to the individuals presumed to have authority
to procure necessaries under § 972, including those officers and agents
appointed by a charterer, by an owner pro hac vice, or by an agreed purchaser
in possession of the vessel. Although that section broadened the group
of individuals presumed to have authority to procure necessaries, it also
placed a significant limitation and duty upon the supplier of necessaries.
Under § 973, if the furnisher knew, or by exercise of reasonable diligence
could have ascertained, that because of the terms of a charter party, agreement
for sale of the vessel, or for any other reason, the person ordering repairs,
supplies, or other necessaries was without authority to bind the vessel,
then a maritime lien could not attach. In 1971, Congress deleted the "exercise
of reasonable diligence" language because that language had severely hampered
suppliers' ability to obtain a maritime lien.(4)Gulf
Oil, 757 F.2d at 747-48. As for § 974, that section pertained
to a furnisher's ability to waive its right to a maritime lien by agreement
In 1988, Congress superseded the prior version
of the FMLA and enacted new provisions primarily at 46 U.S.C. §§
Silver Star Enters.,
Inc. v. SARAMACCA MV, 82 F.3d 666, 668 n.2 (5th Cir. 1996). The
most significant change was that Congress included a definition for "necessaries."
U.S.C. § 31301(4). Section 31301(4) states that "'necessaries' includes
repairs, supplies, towage, and the use of a dry dock or marine railway."
In the prior version of the FMLA, "necessaries" was not defined, but its
meaning could be derived from the context of § 971, which stated that
a maritime lien could be received for furnishing "repairs, supplies, towage,
use of dry dock or marine railway, or other necessaries." Although §
31301(4) enumerates specific kinds of "necessaries," Congress did not intend
to make any substantive change to the law. See H.R. Rep. No. 100-918
(1988). Indeed, besides some other minor changes in language, such as replacing
the term "furnishing" with the word "providing," little changed substantively.
Silver Star, 82 F.3d at 668 n.2; H.R. Rep. No. 100-98. Accordingly,
much of the case law remains persuasive, if not controlling.
With that history in mind, we now review each
of the claimed maritime liens.
A. Racal v. TMI
In appealing the district court's judgment
finding a maritime lien in favor of Racal over the four vessels used during
the Second Charter, TMI raises several arguments to support reversal. Because
TMI most adamantly contends that Racal does not have a lien over the vessels
because Racal did not rely on the credit of the vessels, we address that
Subsection 31342(a)(3) provides that a person
providing necessaries to a vessel "is not required to allege or prove .
. . that credit was given to the vessel." The prior version of the FMLA
contained a similarly worded statement at § 971. In construing that
prior version, the Supreme Court held that the relevant language only served
to remove from the supplier the burden of proving that it relied on the
credit of the vessel. See
Equilease, 793 F.2d at 605 (interpreting
That is, we must presume that the supplier relied on the credit of the
The FMLA may have created a presumption of
credit based on the vessel, but it did not do away with "the idea of credit
to the vessel being a prerequisite to a lien, and the concomitant principle
that credit to the owner negates the lien." Id. Because under
the FMLA a presumption arises that one providing supplies to a vessel acquires
a maritime lien, the party attacking the presumption must establish that
the personal credit of the owner or the charterer was solely relied upon.
"To meet this burden, evidence must be produced that would permit the inference
that the supplier purposefully intended to forego the lien." Id.
TMI argues that it satisfied that burden and
complied with Fifth Circuit case law, as stated in Equilease.
For support, it points to testimony by Richard Pender, Racal's president:
Q: So you weren't relying on credit of Tidewater
or any of its vessels when you were entering into this contract with Coastline?
. . .
A: Yeah, I mean, our contract was with Coastline.
That was our customer.
. . .
Q: At the time of contracting with Coastline,
you weren't looking to Tidewater or any of its vessels for payment of Coastline's
contract with NCS?
. . .
A: I had no contract with Tidewater.
Q: You had no dealings with Tidewater whatsoever?
A: No. I had no - no.
Racal counters that Pender's testimony does
not aid TMI's position that Racal intended to forego a maritime lien because
the testimony does not specifically indicate that Racal planned to waive
the lien and rely solely on the credit of a party other than the vessel.
According to Racal, Equilease and the cases preceding it
held that a party opposing the maritime lien has the burden to prove that
the supplier looked solely to a party's personal credit. See Equilease,
793 F.2d at 606; see also Point Landing, Inc. v. Alabama Dry
Dock & Shipbuilding Co., 261 F.2d 861, 867 (5th Cir. 1958);
v. M/V SOL DE COPACABANA, 581 F.2d 1204, 1209 (5th Cir. 1978) (quoting
Landing). Because Pender's testimony does not state that Racal
looked solely to Coastline or some entity other than the vessels, Racal
contends that TMI has failed to rebut the presumption.
In Equilease, a financing corporation
instituted foreclosure proceedings on the preferred mortgages of three
chartered vessels. Equilease, 793 F.2d at 600. The charterer's
insurance broker intervened in the proceedings, attempting to recover for
the vessels' unpaid insurance premiums. Id. Among other things,
the insurance broker claimed a maritime lien under the FMLA for the insurance.
The financing corporation charged that insurance did not constitute a necessary
for purposes of the FMLA. Id. Sitting en banc, we held that
insurance constituted a necessary but that the insurance broker failed
to meet the statutory requirement of reliance on the credit of the vessel
when furnishing the insurance. Id. at 607.
In determining that the insurance broker did
not rely on the credit of the vessel, we specifically noted two items from
the record. First, it referred to the testimony of a former manager of
the insurance broker. That testimony revealed that the insurance broker
looked solely to the charterer, the financing corporation, or another party
other than the vessels.
Q: So you are saying you relied only on Dunnamis,
Equilease, and/or Eltra, is that a fair statement?
A: That's a fair statement.
Id. at 606. Second, we found
a statement in the insurance broker's initial appellate brief admitting
to sole reliance on a party other than the vessels. In that brief, the
insurance broker stated, "The Unilease Companies were totally funded for
the operations of the Vessels by Equilease and it was the credit of Equilease
upon which all parties placed total reliance." Id.
In light of the fact that the insurance broker
appeared to rely solely on the credit of entities other than the vessels,
the judgment in Equilease was in keeping with prior Fifth
Circuit case law. But we also concluded in Equilease that
"in the absence of reliance-intention, by presumption, or otherwise-there
is no right to claim a lien." Equilease, 793 F.2d at 606
n.9. Thus, we held that by deliberately choosing not to rely on the credit
of a vessel, a supplier, as a matter of law, purposefully intends to forego
its right to claim a maritime lien. Id.
Here, TMI does not point to any evidence directly
indicating that Racal intended solely to look towards Coastline or some
party other than the vessels for payment, although some items in the record
do suggest such a posture.(6) But Pender's
testimony clearly indicates that Racal did not rely on the credit of the
vessels. Almost nothing is more conclusive than such testimony as to whether
there was reliance. Not even testimony that Racal looked solely to another
party for payment better demonstrates that Racal did not provide the supplies
on the credit of the vessels. When evidence reveals that a supplier looked
solely to a party other than a vessel for payment, we are persuaded that
the supplier was not relying on the credit of the vessels because of the
logical inference that can be derived from that evidence. In the instant
case, we need not trouble ourselves with any inference as the evidence
is directly on point. Accordingly, consistent with
because the testimony explicitly shows that Racal deliberately chose not
to rely on the credit of the four chartered vessels, as a matter of law,
Racal purposefully intended to forego its maritime lien.(7)See
But even if Racal had relied upon the credit
of the vessels, TMI insists that a maritime lien could not have attached
because the equipment and services, which allegedly were necessaries, were
not provided to the vessels. Under § 31342, a supplier of necessaries
must provide those goods or services to a vessel to receive a maritime
lien. Likewise, under § 31342's predecessor statute, a supplier had
to furnish necessaries to a vessel to receive the benefits of a lien. See
46 U.S.C. § 971 (superseded 1988). As previously noted, the change
in terms did not materially alter the law, and we have continued to rely
on case law preceding the recodification to interpret the current statute.
Star, 82 F.3d at 668-69.
The seminal case in this area is the Supreme
Court's decision in Piedmont & George's Creek Coal Co. v. Seaboard
Fisheries Co, 41 S. Ct. 1 (1920). In that case, a coal company
sought a maritime lien on several vessels that had utilized the coal company's
Piedmont, 41 S. Ct. at 2. Under the arrangement
between the coal company and the vessels' prior owner, the coal company
agreed to furnish such coal as would be required to operate the vessels
and the factories of the vessels' prior owner. Id. No coal
was delivered directly to the vessels, and there was no reference on any
invoice to the vessels.
Id. at 2. Instead, the coal was loaded
onto barges, towed to the factories, and then placed in bins to commingle
with coal from sources other than the coal company. Id. Partly
due to those facts, the Supreme Court concluded that the coal company had
not furnished the coal to the vessels and that the vessels' prior owner
had actually furnished the coal. Id. at 4.
Relying on Piedmont and other
circuit's interpretations of § 31342, we recently declined to extend
coverage of the FMLA to bulk cargo containers leased to vessel owners or
See Silver Star, 82 F.3d at 667. In Silver
Star, a cargo container company provided nearly 120 cargo containers
to a shipper that owned and/or chartered several vessels. Id.
When a preferred mortgagee sought to enforce its mortgages against two
of the shipper's vessels, the cargo container company intervened, claiming
maritime lien rights arising from the lease of the containers. Id.
We found no such rights because the cargo container company provided the
containers to the shipper, not to the vessels. Id. at 669.
The lease did not earmark particular containers for service on particular
Id. at 667. The shipper had ultimate authority as
to which vessels the containers were going to be placed. Id.
at 669. And neither the shipper or the cargo container company knew aboard
which ship a particular container would be placed at any given time. Id.
Despite Piedmont and Silver
Star's misgivings about the extension of maritime liens to situations
where necessaries were not apparently designated for specific vessels,
the district court ruled that Racal had provided necessaries to the four
chartered vessels. In so holding, the district court cited as support another
Supreme Court case, Dampskibsselskabet Dannebrog v. Signal Oil &
Gas Co., 60 S. Ct. 937 (1940). There, an oil company contracted
with a shipping company to sell fuel oil to the "vessels owned, chartered,
or operated by W.L. Comyn & Sons." Id. at 938. Later,
two vessels were chartered to W.L. Comyn & Sons, and the oil company
supplied them with fuel oil. Id. Ultimately, the oil company
libeled the two vessels for fuel oil supplied to the vessels on the charterer's
orders. Id. at 939. In acknowledging that a maritime lien
could be asserted against the vessels, the Supreme Court referred to Piedmont
and noted that "the oil was supplied exclusively for the vessels in question,
was delivered directly to the vessels and was so invoiced." Id.
at 942. Comparing that statement with the facts in the instant case, the
district court found that Racal delivered the seismic equipment directly
to the vessels.
We believe that was error. Although the Dampskibsselskabet
court stated that "the oil was supplied exclusively for the vessels in
question, was delivered directly to the vessels and was so invoiced" in
response to the vessels' owners' contention that
precluded a maritime lien from attaching, the owners did not raise the
case to contest whether the oil company had furnished the oil to the vessels.
Rather, the owners pressed
Piedmont because that case, like
theirs, involved a general contract to supply a necessary, and they thought
that Piedmont somehow affected the issue of whether the oil
company had supplied oil upon the charterer's credit and not upon the credit
of the vessels. That is, the holding of
did not actually pertain to whether the oil company had provided fuel oil
to the vessels.
Assuming, though, that the Dampskibsselskabet
court's statement was not dicta, we still conclude that the district court
erred in finding that Racal provided the seismic equipment and services
to the vessels.(8) Contrary to Dampskibsselskabet,
Racal did not supply the equipment and services exclusively for the four
Second Charter vessels. Indeed, Racal and Coastline entered into several
agreements with respect to the services and the leased and sold equipment
months before the Second Charter vessels were ever selected. Racal cannot
fairly say that the alleged necessaries were exclusively provided to the
Second Charter vessels when the equipment, and the attendant services,
was first procured to be placed in unnamed vessels that were later designated
as the First Charter vessels. The equipment was sold or leased to Coastline,
which had control over which vessels the equipment was to be placed. Subsequent
to the Gulf of Mexico operation, Coastline merely transferred the equipment,
and the attendant services, to the Second Charter vessels. Accordingly,
we believe that the instant case more closely parallels the situations
Piedmont and Silver Star and
conclude that Racal's equipment and services were not provided to the vessels.
Because Racal did not provide the equipment
and services, which constituted the alleged necessaries, to the vessels
and because Racal deliberately chose not to rely on the credit of the four
chartered vessels, we find that the district court erred in granting Racal's
summary judgment motion claiming a maritime lien in TMI's Second Charter
vessels.(9) Therefore, we reverse and remand
for proceedings consistent with this opinion.
B. TMI v. Input
TMI's other issue on appeal concerns the district
court's ruling denying TMI a maritime lien over Coastline's equipment despite
Coastline's breach of the charter for non-payment. The district court orally
held that Coastline's equipment was not cargo and declined to extend the
concept of a maritime lien to items other than cargo. In challenging the
district court's decision, TMI contends that a general maritime lien may
be asserted for breach of a charter and that, in any case, Coastline's
equipment was cargo.
Maritime liens are stricti juris and will
not be extended by construction, analogy, or inference. Piedmont,
41 S. Ct. at 4. Moreover, they are largely statutorily created. See
Charles Stevedores, Inc. v. PROFESSOR VLADIMIR POPOV MV, 199 F.3d
220, 224 (5th Cir. 1999), cert. denied, 120 S. Ct. 2006 (2000).
Thus, to determine the validity of a maritime lien, we must normally refer
to statutory law or those liens that have been historically recognized
in maritime law. Id.
Here, TMI's claimed maritime lien clearly
does not come within the province of the FMLA. As for non-statutory maritime
law, TMI has been unable to uncover a single case directly on point that
suggests that a shipowner may assert a maritime lien against the charterer
for items that are not cargo. The cases cited by TMI are inapposite and
actually concern maritime liens in favor of the charterer against the boat
owner. See E.A.S.T., Inc. v. M/V ALAIA, 876 F.2d 1168 (5th
Cir. 1989); International Marine Towing, Inc. v. Southern Leasing
Partners, Ltd., 722 F.2d 126 (5th Cir. 1983). Nor do those cases
extend a maritime lien to items other than cargo for breach of a charter.
The lack of precedential authority and the stricti juris nature of a maritime
lien are damning to TMI's cause, and we conclude that TMI's attempt to
extend the concept of a maritime lien is unavailing.
With respect to TMI's other contention that
Coastline's equipment was cargo, we find no error on the part of the district
court. The evidence clearly indicates that TMI differentiated between cargo
and Coastline's equipment. Furthermore, unlike cargo, much of Coastline's
equipment had to be installed onto the vessels. Accordingly, we affirm
the district court's judgment denying TMI a maritime lien over Coastline's
For the foregoing reasons, we reverse the
district court's judgment granting a maritime lien to Racal and remand
for proceedings consistent with this opinion. As for the district court's
judgment denying TMI a maritime lien on Coastline's equipment, we affirm.
1. Tidewater Marine is
a sister company of TMI. Both Tidewater Marine and TMI are subsidiaries
of Tidewater, Inc. ("Tidewater"). Tidewater Marine operates vessels in
domestic waters while TMI operates vessels in foreign waters. Neither Tidewater
Marine or Tidewater is a party to this litigation.
2. With respect to Coastline's
obligations to Input, they derived from Coastline's failure to pay First
Interstate Bank ("First Interstate"), which had financed Coastline's purchases
from Input. Input had guaranteed those purchases, and after Coastline's
default to First Interstate, Input paid those obligations and took the
place of First Interstate.
3. Congress superseded
that prior version of the FMLA in 1988 and recodified much of it at 46
U.S.C. §§ 31341-31343.
4. Congress also deleted
the reference to knowledge of a prohibition of lien clause as creating
a bar to the formation of a maritime lien. See Gulf Oil,
757 F.2d at 748. In Gulf Oil, however, we concluded that
the deletion of that language did not signify any Congressional desire
to render prohibition of lien clauses completely ineffectual and held that
actual knowledge could still bar a maritime lien. See id.
5. Section 31341 provides
in pertinent part:
(a) The following persons are presumed to
have authority to procure necessaries for a vessel:
(1) the owner;
(2) the master;
(3) a person entrusted with the management
of the vessel at the port of supply; or
(4) an officer or agent appointed by-
(A) the owner;
(B) a charterer;
(C) an owner pro hac vice; or
(D) an agreed buyer in possession of the vessel.
Section 31342 reads in pertinent part:
(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.
6. For example, Racal forwarded
a promissory note to Coastline to finance the purchase of a computer system.
In addition, Racal's lease proposal to Coastline states that Racal would
submit itemized bills to Coastline and that Coastline had to make payment
within 30 days. Of course, neither piece of evidence is sufficient to demonstrate
that Racal solely relied on Coastline's credit. See
261 F.2d at 867.
7. The two other cases
cited by Racal in its brief, Point Landing and Sasportes,
do not sway our view. First, given any conflict between those two cases
and Equilease, the latter controls as an en banc decision.
Second, in neither Point Landing or Sasportes
was there direct evidence indicating that the supplier did not rely upon
the credit of the vessel. Rather, in both cases, the sole reliance element
was emphasized to demonstrate the lack of evidence supporting the view
that the supplier had not relied on the credit of the vessel. If a supplier
solely relied on the credit of a party other than the vessel, then the
only logical inference would be that the supplier did not rely on the credit
of the vessel. But acceptance of a mortgage or a promissory note by the
supplier, as was the case in Point Landing, does not inexorably
lead to the conclusion that the supplier relied solely on the credit of
a party other than the vessel or that the supplier did not rely on the
credit of the vessel. See Point Landing, 261 F.2d at 867.
In the present case, we do not just have evidence of a mortgage or a promissory
note, but specific testimony that Racal did not rely upon the credit of
8. The district court also
found as important the fact that the seismic equipment was installed at
a shipyard that is a subsidiary of TMI's mother corporation. We do not
find that fact to be determinative in reaching our conclusion.
9. TMI raised two other
arguments in support of reversal. In light of our holding, we need not
address those arguments.