World Fuel Services Trading v. Hebei Prince Shipping Company

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 2:13-cv-00173-MSD-DEM. [999566487]. [14-1434]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-1434

WORLD FUEL SERVICES TRADING, DMCC, d/b/a Bunkerfuels,
Plaintiff - Appellee,
v.
HEBEI PRINCE SHIPPING COMPANY, LTD.,
Claimant – Appellant,
and
M/V HEBEI SHIJIAZHUANG, her
appurtenances, etc., in rem,

engines,

tackle,

equipment,

Defendant,
T. PARKER HOST, INC.,
Claimant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Mark S. Davis, District
Judge. (2:13-cv-00173-MSD-DEM)

Argued:

January 28, 2015

Decided:

April 17, 2015

Before WILKINSON, AGEE, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Wilkinson and Judge Harris concurred.

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ARGUED: Steven Michael Stancliff, CRENSHAW, WARE & MARTIN,
P.L.C., Norfolk, Virginia, for Appellant.
Mark T. Coberly,
VANDEVENTER BLACK, LLP, Norfolk, Virginia, for Appellee.
ON
BRIEF: James L. Chapman, IV, CRENSHAW, WARE & MARTIN, P.L.C.,
Norfolk, Virginia, for Appellant.
Dustin M. Paul, VANDEVENTER
BLACK, LLP, Norfolk, Virginia, for Appellee.

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AGEE, Circuit Judge:
World Fuel Services Trading, DMCC, (“DMCC”) brought this in
rem action against the M/V HEBEI SHIJIAZHUANG (“the Vessel”)
seeking to enforce a maritime lien for the supply of necessaries
under

the

31342(a).

Federal

Maritime

Lien

Act

(“FMLA”),

46

U.S.C.

§

The district court held that DMCC was entitled to a

maritime lien for the amount due for marine fuel (referred to as
“bunkers”) provided to the Vessel, and granted DMCC’s motion for
summary

Company,

Limited,

(“Hebei Prince”), the owner of the Vessel, appeals.

For the

reasons

judgment.

that

Hebei

follow,

we

Prince

affirm

Shipping

the

judgment

of

the

district

court in favor of DMCC.

I.
A.
To provide context for the underlying dispute, we begin
with a brief review of maritime lien law.

A maritime lien is

“[a] lien on a vessel, given to secure the claim of a creditor
who provided maritime services to the vessel[.]”
Dictionary 1065 (10th ed. 2014).
and

exist[s]

as

a

claim

upon

Black’s Law

“It arises by operation of law
the

property.”

Id.

(quoting

Griffith Price, The Law of Maritime Liens 1 (1940)); see also
Triton Marine Fuels Ltd., S.A. v. M/V PAC. CHUKOTKA, 575 F.3d
409, 416 (4th Cir. 2009) (“‘[M]aritime liens are stricti juris
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and cannot be created by agreement between the parties; instead,
they arise by operation of law, often depending on the nature
and object of the contract.’” (quoting Bominflot, Inc. v. M/V
HENRICH S, 465 F.3d 144, 146 (4th Cir. 2006)).
Congress enacted the FMLA in 1910, which altered several
then-existing common law principles governing when a maritime
lien would arise under United States law.

See id. at 417.

That

initial legislation “provide[d] a single federal statute for the
determination of maritime liens, and by providing this uniform
scheme,

the

statute

confer[red]

domestic

suppliers

of

necessaries with the same lien rights as previously enjoyed only
by foreign suppliers under the common law.”

Id. at 418.

The

next major change to the FMLA occurred in “1971, when Congress
enacted legislation essentially to void ‘no lien’ clauses in
charters, as long as the supplier did not have actual knowledge
of such clause.”

Id. at 418 n.5.

Most recently, the FMLA was

recodified as part of the Commercial Instruments and Maritime
Liens Act, 46 U.S.C. §§ 31301-31343.

For ease of reference,

however, we will continue to refer to the relevant statutes as
the “FMLA.”

“Despite [these] recodifications, the fundamental

purposes underlying the FMLA have remained unchanged.”

Triton

Marine, 575 F.3d at 417-18.
Generally

speaking,

a

maritime

lien

arises

more

readily

under the FMLA than under the laws of other maritime countries.
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E.g., Bominflot, 465 F.3d at 147 (“The United States as well as
a number of civil law nations . . . allow for broader use and
enforcement of maritime liens[.]”).

As a result, which nation’s

law governs a particular maritime contract may be significant in
determining whether, or to what extent, a maritime lien exists.

B.
Hebei Prince, a corporation organized under the laws of
China, owns the Vessel, which is registered in Hong Kong.
Vessel

was

leased

to

a

Greek

corporation,

Tramp

The

Maritime

Enterprises Ltd. (“Tramp Maritime”) under three consecutive time
charters

(maritime

contracts

of

ship

charter)

period from May 23, 2012 to November 28, 2012.

covering

the

The terms of the

time charters prohibited Tramp Maritime from incurring “any lien
or encumbrance” against the Vessel.

(J.A. 86.)

In October 2012, Tramp Maritime emailed Aristades P. Vogas
of

Bunkerfuels

Hellas

in

Athens,

Greece,

to

arrange

for

the

purchase of bunkers to be delivered to the Vessel while it was
docked at a port in the United Arab Emirates.
from

Vogas

Confirmation”)

confirming
identifies

the

transaction

the

“seller”

as

The email reply
(“the

Bunker

“BUNKERFUELS

A

DBA/DIVISION OF WFS Trading DMCC” and the “buyer” as “MV HEBEI
SHIJIAZHUANG

AND

ENTERPRISES LTD.”

HER

OWNERS/OPERATORS

(J.A. 21.)

AND

TRAMP

MARITIME

It also identifies APSCO JEDDAH
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as the “physical supplier” of the bunkers.

(J.A. 21.)

The

Bunker Confirmation further states:
ALL SALES ARE ON THE CREDIT OF THE VSL.
BUYER IS
PRESUMED TO HAVE AUTHORITY TO BIND THE VSL WITH A
MARITIME LIEN. DISCLAIMER STAMPS PLACED BY VSL ON THE
BUNKER RECEIPT WILL HAVE NO EFFECT AND DO NOT WAIVE
THE SELLER’S LIEN.
THIS CONFIRMATION IS GOVERNED BY
AND INCORPORATES BY REFERENCE SELLER’S GENERAL TERMS
AND CONDITIONS IN EFFECT AS OF THE DATE THAT THIS
CONFIRMATION IS ISSUED.
THESE INCORPORATED AND
REFERENCED TERMS CAN BE FOUND AT WWW.WFSCORP.COM.
ALTERNATIVELY, YOU MAY INFORM US IF YOU REQUIRE A COPY
AND SAME WILL BE PROVIDED TO YOU.
(J.A. 21.)
APSCO JEDDAH delivered the bunkers to the Vessel according
to the terms of the Bunker Confirmation.

The Vessel’s chief

engineer signed the delivery notices and attached a “no lien”
stamp,

which

stated

“Bunkering

Services

and

the

bunkers

are

ordered solely for the account of Charterers and not for owners.
Accordingly

no

lien

or

other

claims

Vessel or her owners can arise.”
Tramp

Maritime

whatsoever

against

the

(J.A. 19, 20.)

subsequently

received

an

invoice

for

the

bunkers purporting to be from “BUNKERFUELS A Division of World
Fuel Services Trading, DMCC” requesting payment.

(J.A. 22.)

The invoice stated that the amount due could be wire-transferred
to a Bank of America account for “World Fuel Services Europe,
Ltd.”

(J.A. 22.)

Neither Tramp Maritime nor any other party

paid the invoice.

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DMCC then filed this in rem action in the United States
District Court for the Eastern District of Virginia asserting it
was owed $809,420.50 for the unpaid bunkers, 1 and that it was
entitled to enforce a maritime lien on the Vessel under the
FMLA.

It also moved for the court to issue a maritime warrant

for the arrest of the Vessel, which was expected to port in
Norfolk, Virginia, within fourteen days.

The district court

issued

warrant,

an

order

for

the

maritime

arrest

executed on the Vessel when it docked in Norfolk.

which

was

Hebei Prince

later posted a cash bond so that the Vessel could be released
before resolution of the underlying complaint.
DMCC
opposed.

moved

for

summary

judgment,

which

Hebei

Prince

Hebei Prince then filed a cross-motion for summary

judgment, relying on the same grounds raised in its opposition
to DMCC’s motion.

Challenging nearly every aspect of DMCC’s

claim, Hebei Prince argued:

(1) DMCC was not a party in privity

to the Bunker Confirmation and thus could not assert a maritime
lien;

(2)

contractual

Greek

law

dispute;

should
(3)

apply

the

to

Bunker

every

aspect

Confirmation

of

the

did

not

successfully incorporate the General Terms & Conditions on which
DMCC relied; (4) the General Terms & Conditions could not apply
to DMCC even if DMCC sought to incorporate them; (5) the General
1

This amount reflected the amount due for the bunkers plus
a contract-based administrative fee for past-due sums.
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Conditions’

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choice-of-law

provision

did

not

“choose”

United States statutory maritime law such as the FMLA; (6) DMCC
had

actual

knowledge

of

the

prohibition

of

liens

in

Tramp

Maritime’s time charter and thus could not rely on the FMLA’s
presumption to bind the Vessel; and (7) principles of comity
require rejecting the application of United States law to this
transaction.
In a thorough opinion, the district court rejected all but
one of Hebei Prince’s arguments, and, in any event, that one
area of agreement did not alter the court’s ultimate holding.
See World Fuel Servs. Trading, DMCC v. M/V HEBEI SHIJIAZHUANG,
12 F. Supp. 3d 792 (E.D. Va. 2014).

In sum, the district court

concluded that the Bunker Confirmation successfully incorporated
the General Terms & Conditions DMCC relied upon to establish
that

United

existence
court

and

also

regarding

States

enforcement

held

the

law,

that

including
of

“no

existence

of

a

the

maritime

genuine
a

FMLA,
lien.

issue

maritime

governed

of

lien

The

district

material
in

the

this

fact
matter

[exists and that], as a matter of law, [DMCC was] entitled to a
maritime lien against the [V]essel.”

Id. at 810.

Following briefing and a hearing on the amount of damages
to

be

awarded,

the

district

awarding DMCC $813,740.10.

court

entered

final

judgment

Hebei Prince noted a timely appeal.

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Jurisdiction exists for the reasons discussed below in Section
II.A.

II.
Hebei Prince raises the same arguments on appeal that it
did in the district court.

As for relief, it alternatively

argues that we should dismiss the case for lack of admiralty
jurisdiction,
judgment

to

vacate
DMCC

the

and

district

remand

to

court’s
resolve

award

of

disputed

summary

issues

of

material fact, or vacate the district court’s judgment and enter
final judgment in its favor.
We review the district court’s grant of summary judgment de
novo, applying the same standard as the district court.
Cashion, 720 F.3d 169, 173 (4th Cir. 2013).

FDIC v.

Summary judgment is

appropriate if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).

In addition to construing the evidence

in the light most favorable to Hebei Prince, the non-movant, we
also draw all reasonable inferences in its favor.

Cashion, 720

F.3d at 173.
To the extent Hebei Prince challenges not just the grant of
summary
review

judgment,
legal

but

the

conclusions

district
regarding

9

court’s

jurisdiction,

jurisdiction

de

novo

we
and

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factual findings for clear error.

Flame S.A. v. Freight Bulk

Pte. Ltd., 762 F.3d 352, 356 (4th Cir. 2014).

A.
Throughout its brief, Hebei Prince argues that the district
court

lacked

admiralty

should be dismissed.

jurisdiction

and

therefore

the

case

DMCC responds that Hebei Prince confuses

the district court’s admiralty jurisdiction with the merits of
DMCC’s claim of a maritime lien arising under the FMLA.

We

agree with DMCC.
The Supreme Court noted the distinction, specifically in
the

admiralty

context,

between

establishing

a

court’s

jurisdiction and the determination of the merits of a cause of
action over a century ago in The Resolute, 168 U.S. 437 (1897):
Jurisdiction is the power to adjudicate a case
upon the merits, and dispose of it as justice may
require. As applied to a suit in rem for the breach of
a maritime contract, it presupposes-First that the
contract sued upon is a maritime contract; and second,
that the property proceeded against is within the
lawful custody of the court.
These are the only
requirements necessary to give jurisdiction.
Proper
cognizance of the parties and subject-matter being
conceded, all other matters belong to the merits.
. . . [T]he question of lien or no lien is not one
of jurisdiction, but of merits.
It is true that there can be no decree in rem
against the vessel except for the enforcement of a lien
given by the maritime law . . .; but, if the existence
of such a lien were a question of jurisdiction, then

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nearly every question arising upon the merits could be
made one of jurisdiction.
Id.

at

439-40

language

is

(emphasis

added).

consistent

statements

in

with

the

This

the

admiralty-specific

Supreme

non-admiralty

Court’s

context

general

separating

jurisdictional questions from those concerning the merits of an
action.

E.g., Lexmark Int’l, Inc. v. Static Control Components,

Inc., 134 S. Ct. 1377, 1387 n.4 (2014) (“‘[T]he absence of a
valid

(as

implicate

opposed

to

arguable)

subject-matter

statutory

or

cause

of

jurisdiction,

constitutional

power

to

action

i.e.,

does

the

adjudicate

the

not

court’s
case.’”

(quoting Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535
U.S. 635, 642-43 (2002)).
Here,

Hebei

Prince

acknowledges

Confirmation was a maritime contract.

that

the

Bunker

See Norfolk S. Ry. Co. v.

Kirby, 543 U.S. 14, 24 (2004) (stating that whether a contract
is a “maritime contract,” “depends upon the nature and character
of

the

contract,

reference

to

and

the

maritime

true

criterion

service

or

is

whether

maritime

it

has

transactions”

(internal quotation marks and alteration omitted)).

Similarly,

Hebei Prince does not contest that the Vessel was physically
within the “lawful custody of the court” at the time of its
arrest.
(2d

Cir.

See In re Millennium Seacarriers, Inc., 419 F.3d 83, 94
2005)

(“[S]ubject

matter

11

jurisdiction

lies

in

the

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district court where the vessel or other res is located, but
that jurisdiction does not attach until the vessel is arrested
within

the

jurisdiction.”).

Thus,

under

the

standard

articulated in The Resolute, it is clear that the district court
possessed admiralty jurisdiction. 2

See Logistics Mgmt., Inc. v.

One (1) Pyramid Tent Arena, 86 F.3d 908, 912-13 (9th Cir. 1996)
(conducting this inquiry); see also Wilkins v. Commercial Inv.
Trust Corp., 153 F.3d 1273, 1276 (11th Cir. 1998) (same).
As a result, Hebei Prince’s arguments that DMCC does not
have

an

enforceable

maritime

lien

under

the

FMLA

do

not

implicate admiralty jurisdiction, but rather go to the merits of
DMCC’s action.

The district court had admiralty jurisdiction to

consider DMCC’s claim, and we have jurisdiction over this appeal
under 28 U.S.C. § 1291.

2

The Ninth Circuit has held that admiralty jurisdiction can
arise under the FMLA even where it would not also arise under
common law admiralty jurisdiction. See Ventura Packers, Inc. v.
F/V JEANINE KATHLEEN, 305 F.3d 913, 919 (9th Cir. 2002)
(“Although
a
maritime
contract
may
support
admiralty
jurisdiction, it is not an essential prerequisite to a civil
action in admiralty to enforce a statutory necessaries lien.”).
But see E.S. Binnings, Inc. v. M/V SAUDI RIYADH, 815 F.2d 660
(8th Cir. 1987) (concluding plaintiff could not proceed on a
claim seeking enforcement of an FMLA maritime lien because the
underlying contract was not a maritime contract and so the
district court lacked admiralty jurisdiction), overruled on
other grounds by Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S.
603, 612 (1991).
We need not delve into that question here
because jurisdiction exists in this case under traditional
principles establishing admiralty jurisdiction.
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B.
Before addressing Hebei Prince’s substantive challenges to
the

district

court’s

decision,

we

consider

its

threshhold

arguments as to which country’s law applies to the issues of
contract formation.
In

the

district

court,

Hebei

Prince

argued

that

under

Lauritzen v. Larsen, 345 U.S. 571 (1953), Greek law determined
issues of contract between the parties, including whether DMCC
was in privity of contract to the agreement and whether the
Bunker Confirmation contained a binding choice-of-law provision.
DMCC contended United States law applied, but that it made no
real difference as the principles of contract law were the same
under either country’s law and would lead to the same result in
its favor.

After examining the terms of the Bunker Confirmation

and the parties’ arguments, the district court decided the most
prudent course was to assume that Hebei Prince was correct and
apply

Greek

law

to

any

contract

formation

issues.

As

a

corollary, the district court observed that it would reach the
same

conclusions

on

contract

formation

issues

under

United

particularly

robust

States law as it did applying Greek law.
On

appeal,

the

parties

do

not

make

arguments either as to the district court’s choice of Greek law,
its

articulation

conclusion

that

of
the

Greek
same

contract
analysis
13

law

would

principles,
result

under

or

its

United

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Hebei Prince instead maintains that the court erred

in its application of Greek law to the factual record.
turn,

maintains

that

while

the

district

court

DMCC, in

should

have

applied United States law based strictly on the choice-of-law
provision, it prevails under either country’s law.
In Lauritzen, the Supreme Court set forth several factors
for

federal

courts

sitting

in

admiralty

determining what country’s law governs:

to

consider

in

“(1) the place of the

wrongful act; (2) the law of the flag; (3) the allegiance of the
injured party; (4) the allegiance of the defendant shipowner;
(5) the place of contract; (6) the inaccessibility of a foreign
forum; and (7) the law of the forum.”

Trans-Tec Asia v. M/V

HARMONY CONTAINER, 518 F.3d 1120, 1124 (9th Cir. 2008) (citing
Lauritzen, 345 U.S. at 583-92).
In

Triton

Marine,

however,

we

found

it

unnecessary

to

conduct a Lauritzen choice-of-law analysis because the contract
at issue contained a choice-of-law clause.

See Triton Marine,

575 F.3d at 413; see also Lauritzen, 345 U.S. at 588-89 (“Except
as forbidden by some public policy, the tendency of the law is
to apply in contract matters the law which the parties intended
to apply.”).

Relying on prior Supreme Court and Fourth Circuit

case law, we concluded that “absent compelling reasons of public
policy, a choice-of-law provision in a maritime contract should
be

enforced,”

and

a

Lauritzen
14

choice-of-law

analysis

was

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Triton

Pg: 15 of 39

Marine,

575

F.3d

at

415;

see

also

Bominflot, Inc., 465 F.3d at 148 (holding that the choice of law
question was “made easy” by the party’s contractual provision
agreeing that English law would apply). 3
set

forth

in

Triton

Marine

and

Thus, for the reasons

Bominflot,

Inc.,

a

Lauritzen

choice-of-law analysis is unnecessary in this case.
Moreover,

we

agree

with

the

district

court

that

the

applicable law on the issues of contract formation would be the
same whether Greek or United States law is applied.

As we

discuss in the context of the individual arguments below, Greek
contract law does not differ in any material respect from the

3

The choice-of-law clause at issue in Triton Marine was
located in the body of the contract.
575 F.3d at 413.
In
Bominflot, we avoided the Lauritzen choice-of-law analysis based
on a choice-of-law provision that was incorporated by reference.
465 F.3d at 148; see also Hawkespere Shipping Co., Ltd. v.
Intamex, S.A., 330 F.3d 225, 233 (4th Cir. 2003) (“‘Where the
parties specify in their contractual agreement which law will
apply, admiralty courts will generally give effect to that
choice.’” (quoting Chan v. Soc’y Expeditions, Inc., 123 F.3d
1287, 1297 (9th Cir. 1997)).
These cases thus counsel that if
we applied United States law to the question, we would enforce a
contract’s choice-of-law provision.
Applied here, so long as
the General Terms were successfully incorporated to the Bunker
Confirmation, see analysis infra II.D at 28 n.6, it would govern
the dispute.
Although Hebei Prince asserts various reasons why an
otherwise incorporated choice-of-law provision should not be
enforced against it, none demonstrates a compelling public
policy. For example, we have previously rejected arguments that
enforcing such provisions adversely affects the interests of—and
works a fundamental unfairness against—a vessel owner who was
not
party
to
the
contract
containing
the
choice-of-law
provision. See Triton Marine, 575 F.3d at 413-16.
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corresponding principles of United States law.

For this reason,

too, we need not resolve the choice-of-law question, as it makes
no discernible difference to the relevant analysis in the case
at bar.

See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 838

n.20 (1985) (Stevens, J., concurring in part and dissenting in
part) (“If the laws of both states relevant to the set of facts
are the same, or would produce the same decision in the lawsuit,
there is no real conflict between them.” (quotation marks and
citation omitted)); Hammersmith v. TIG Ins. Co., 480 F.3d 220,
230 (3d Cir. 2007) (stating that a conflict of law analysis is
unnecessary if the laws of each jurisdiction are the same, or
would lead to the same result, because there is no “conflict” in
the law that needs to be resolved); Okmyansky v. Herbalife Int’l
of

Am.,

Inc.,

415

F.3d

154,

158

(1st

Cir.

2005)

(“[W]hen

resolution of a choice-of-law determination would not alter the
disposition
decide

of

which

a

legal

body

of

question,

law

a

reviewing

controls.”);

Fin.

court

One

need

Pub.

Co.

not
v.

Lehman Bros. Special Fin., Inc., 414 F.3d 325, 331 (2d Cir.
2005) (“[W]e [do] not have occasion to embark on a choice-of-law
analysis

in

the

absence

of

an

actual

conflict

between

the

applicable rules of two relevant jurisdictions.”); Cruz v. Am.
Airlines, Inc., 356 F.3d 320, 331-32 (D.C. Cir. 2004) (same);
Modern Equip. Co. v. Cont’l W. Ins. Co., 355 F.3d 1125, 1128 n.7
(8th Cir. 2004) (same); Schneider Nat’l Transp. v. Ford Motor
16

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Co.,

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280

therefore

F.3d

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532,

follow

536

the

Pg: 17 of 39

(5th

Cir.

district

2002)

court’s

(same).
approach

We
in

will
using

principles of Greek law pertaining to contract formation, but
noting the parallel analysis under United States law.

C.
Hebei Prince argues that the district court erred at the
outset of the case as it contends that the record does not
establish

DMCC

as

therefore

without

a

party

any

in

right

the
to

underlying
bring

the

transaction
in

rem

and

action.

Essentially, Hebei Prince contends DMCC was not in privity of
contract with Tramp Maritime because it has not shown that it
was an actual party to the Bunker Confirmation. 4

Consequently,

Hebei Prince posits that DMCC cannot seek to enforce a maritime
lien against the Vessel based on that agreement and that this
problem requires dismissal of the suit or, at the very least,
remand to resolve a genuine issue of material fact as to DMCC’s

4

Hebei Prince acknowledges that the Bunker Confirmation
formed a contract between Tramp Maritime and another entity, but
it disputes that DMCC is that other entity.
In other words,
Hebei Prince asserts that Tramp Maritime entered into an
agreement with Bunkerfuels Hellas or even the entity identified
on the Bunker Confirmation as “BUNKERFUELS A DBA/DIVISION OF WFS
TRADING DMCC,” but that no evidence in the record demonstrated
that DMCC is either related by law to Bunkerfuels Hellas or is
“BUNKERFUELS A DBA/DIVISION OR WFS TRADING DMCC.”
(Cf. J.A.
21.)
17

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standing to bring an action based on the Bunker Confirmation.
We disagree.
Applying principles of Greek agency law, the district court
concluded that Vogas had entered into the agreement with Tramp
Maritime

on

behalf

of

his

principal,

DMCC.

See

World

Fuel

Servs. Trading, 12 F. Supp. 3d at 802 (“The Greek doctrine of
‘ostensible authority’ is much like the agency law recognized in
the United States, where ‘[t]he essential underlying principle
in the agency relationship is the power of an agent to commit
his

principal

(citation

to

business

omitted)).

The

relations
district

with

court

third

parties.’”

emphasized

that

in

contrast to the record DMCC pointed to as evidence that it was
the seller of bunkers to Tramp Maritime, Hebei Prince presented
no

“specific

facts”

supported

in

the

record

that

created

a

“‘genuine issue for trial,’ as to whether [DMCC] was a party to
the

contract.”

See

id.

at

804

(quoting

Celotex

Corp.

v.

Catrett, 477 U.S. 317, 324 (1986)).
We agree with the district court that the record permits no
conclusion

but

that

DMCC

sold

Tramp

Maritime

the

bunkers

specified in the Bunker Confirmation through its agent, Vogas.
Because DMCC filed a verified complaint, it contains a sworn
statement indicating that its contents are “true and correct
based upon [the] personal knowledge and documents available to”
DMCC, and we can treat those components of it as “the equivalent
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an

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opposing

affidavit

Pg: 19 of 39

for

summary

judgment

purposes.”

Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991); see also
Supp. Rules for Admiralty or Maritime Claims R. C(2) (requiring
that the complaint in an in rem action be verified).
18,

containing

the

verification

of

Richard

D.

(See J.A.

McMichael,

“Director of WORLD FUEL SERVICES TRADING, DMCC.)

a

The verified

complaint states that “World Fuel Services Trading, DMCC, d/b/a
Bunkerfuels”
Bunker

entered

into

Confirmation

bunkers

to

the

for

the
its

agreement

Vessel.

memorialized

subcontractor

(J.A.

14.)

APSCO

in

to

Consistent

the

deliver

with

this

assertion, the Bunker Confirmation identifies the seller of the
bunkers as “BUNKERFUELS A DBA/DIVISION OF WFS Trading DMCC.”
(J.A.

21.)

received

Even

after

more

the

clearly,

bunkers

had

the

invoice

been

Tramp

delivered

Maritime

refers

to

“BUNKERFUELS A Division of World Fuel Services Trading, DMCC.”
(J.A. 22.)
While DMCC’s name as specified in the verified complaint is
“World

Fuel

Services

Trading,

DMCC,”

nothing

in

the

record

suggests that the “WFS Trading DMCC” identified on the Bunker
Confirmation
record
DMCC”

refers

evidence
is

“World

to

an

entity

points

to

the

Fuel

Services

other

same

than

DMCC.

conclusion:

Trading,

DMCC,”

All

“WFS
and

the

Trading

“WFS”

is

simply an acronym for “World Fuel Services” rather than a formal
designation of a separate entity.
19

Examples of this practice

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exist throughout this case: the website listed in the Bunker
Confirmation

(www.wfscorp.com)

uses

the

elongated

“World

Fuel

Services” throughout the website, the bunker invoice refers to
both “World Fuel Services” and “WFS,” as do other items in the
record.

(J.A. 21, 22.)

Prince’s

filings

Indeed, in other contexts, even Hebei

use

“WFS”

and

“World

Fuel

Services”

and

deposition

interchangeably.
Furthermore,

in

his

sworn

declaration

testimony, Jos Heijmen, the Senior Vice President of Credit &
Risk Management of World Fuel Services Corporation, explained
the relationship between the various entities.

He stated that

World Fuel Services Corporation is the parent corporation of
“the World Fuel Services Group of Companies,” which includes
DMCC.

(J.A. 252.)

He observed that DMCC “is part of a network

of affiliated and related companies that provide fuel to oceangoing vessels throughout the world, doing business under the
trade

name

‘Bunkerfuels.’”

(J.A.

252.)

He

noted

that

Bunkerfuels Hellas is the Athens, Greece branch of a World Fuel
Services
promotion

subsidiary,
services

suppliers.”

to

and

that

Greek

(J.A. 252.)

it

ship

“provide[s]

marketing

operators/owners

and

and
local

He stated that when a Bunkerfuels

Hellas employee receives a bunker inquiry, the transaction is
automatically

routed

through

“the

World

Fuel’s

affiliated

company located in the geographic region of the world where the
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bunkers will be delivered to the vessel.”

(J.A. 252.)

And he

identified DMCC as World Fuel Service’s “provider of bunker fuel
for ocean-going vessels in the [United Arab Emirates] and the
Middle East,” and that DMCC is organized under the laws of the
United Arab Emirates with its principal place of business in
Dubai.

(J.A. 251.)

Heijmen

also

explained

that

Vogas

is

an

employee

of

Bunkerfuels Hellas, and is authorized “to enter into contracts
with

[Greek

behalf

of

vessel

and

for

operators/owners
the

World

Fuel

like

Tramp

Services

Maritime]

affiliate

on

located

where the ship required and was supplied bunkers,” including
transactions on behalf of DMCC.
stated

that

Vogas

was

(J.A. 252-53.)

authorized

“by

World

He specifically
Fuel

Services

Trading, DMCC, in October 2012 to act and enter on behalf of
World Fuel Services Trading, DMCC into the contract with Tramp
Maritime

Enterprises,

Ltd.

that

is

at

issue

in

this

case.”

(J.A. 253.)
Hebei

Prince’s

attempts

to

ignore

or

explain

testimony amounts to no more than conjecture.

away

this

Without record

evidence to support its assertions, Hebei Prince speculates that
DMCC may not be the entity it purports to be, that documents
cannot mean what they say on their face, and that entities are
not related in the only way they are described above.
Prince’s

parsing

of

Heijmen’s
21

declaration

and

Hebei

deposition

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testimony

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goes

beyond

any

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common-sense

reading

of

those

documents.

In sum, it attempts to manufacture doubt where none

exists

obscure

to

the

transaction at issue.
district

court

did

relationship

between

DMCC

and

the

Based on the record in this case, the

not

err

in

concluding

that

Hebei

Prince

failed to show a genuine issue of material fact as to whether
Vogas entered into the Bunker Confirmation as the agent of the
seller, DMCC.
Lastly, Hebei Prince asserts that even if Vogas was DMCC’s
agent,

that

misleading.”

fact

“was

not

accurately

(Opening Br. 19.)

disclosed

and

was

We readily reject that notion.

The Bunker Confirmation hardly disguises the identity of the
seller, “BUNKERFUELS A DBA/DIVISION OF WFS Trading DMCC.”
21.)

(J.A.

Regardless of the effectiveness of the incorporation by

reference, the Bunker Confirmation also refers to and directs
readers to the “SELLER’S GENERAL TERMS AND CONDITIONS . . .
FOUND

AT

addition,

WWW.WFSCORP.COM.”
the

email

(J.A.

addresses

21

(emphasis

provided

for

added).)

both

Vogas

In
and

Bunkerfuels Hellas contain the domain “wfscorp.com.”

(J.A. 21

(emphasis

provides

added).)

The

Bunker

Confirmation

plainly

notice of Vogas’ association with WFS subsidiary DMCC.
For these reasons, we conclude the district court did not
err in concluding that DMCC was in privity of contract with
Tramp Maritime.

It

follows

that
22

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of

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success on the claim, DMCC could assert a cause of action based
on an alleged breach of the Bunker Confirmation, including a
claim that it had an enforceable maritime lien under the FMLA.

D.
Next,

we

address

whether

the

district

court

erred

in

concluding Greek law would recognize the language contained in
the

Bunker

Service’s

Confirmation

General

Terms

to
&

validly

Conditions

incorporate
(“General

World

Fuel

Terms”).

As

noted, the Bunker Confirmation states it is
GOVERNED BY AND INCORPORATES BY REFERENCE SELLER’S
GENERAL TERMS AND CONDITIONS IN EFFECT AS OF THE DATE
THAT THIS CONFIRMATION IS ISSUED.
THESE INCORPORATED
AND REFERENCED TERMS CAN BE FOUND AT WWW.WFSCORP.COM.
ALTERNATIVELY, YOU MAY INFORM US IF YOU REQUIRE A COPY
AND SAME WILL BE PROVIDED TO YOU.
(J.A. 21.)
The

undisputed

evidence

in

the

record

reflects

that

to

reach the text of the General Terms on wfscorp.com, a user must
click on two more links: either by clicking on a link labeled
“Marine” and then on a second link labeled “Marine Terms and
Conditions,” which contains a .pdf version of the General Terms,
or by hovering over a “By Sea” graphic, clicking on the link
“learn more,” and then clicking on a link labeled “Marine Terms
and Conditions.”

(J.A. 316, 321-28.)

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parties

submitted

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declarations

from

Greek

attorneys

stating their respective opinions on whether and when terms are
incorporated by reference, and whether and when a choice of law
provision
although

is

enforceable

the

attorneys

under

agreed

Greek
about

law.

these

Unsurprisingly,
broader

points

of

Greek law, they disagreed about whether the Bunker Confirmation
satisfied them.
The district court ruled that no genuine issue of material
fact

existed

as

incorporated

to

the

whether

General

the

Bunker

Terms.

Confirmation

Based

on

the

validly

information

provided by both parties, the district court noted that Greek
law

respected

choice

of

law

provisions,

and

also

authorized

contracts to incorporate other documents by reference.
R.

Civ.

P.

44.1

(stating,

in

relevant

part,

See Fed.

that

“[i]n

determining foreign law, the court may consider any relevant
material

or

source,

including

testimony,

whether

or

not

submitted by a party or admissible under the Federal Rules of
Evidence”).
Greek

The district court observed that Hebei Prince’s

attorney

witness

stated

that

such

provisions

must

drafted in “a clear, plain and explicit way” to be valid.
Fuel

Servs.

Trading,

12

F.

Supp.

3d

at

804.

And

it

be

World
also

observed that DMCC’s Greek attorney witness stated that Greek
law recognized that terms can be incorporated by reference so
long

as

the

contracting

parties
24

obtain

knowledge

of

their

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contents or be given the opportunity to obtain such knowledge.
The

court

satisfied

then

held

that

both

of

the

these

Bunker

Confirmation’s

standards.

That

is,

language
it

was

“sufficiently clear and explicit to direct Tramp [Maritime] – as
well as anyone else who received the bunker confirmation – to
the General Terms.”

Id.

The district court also rejected Hebei Prince’s argument
that the General Terms lacked the requisite clarity because the
preamble

did

not

identify

DMCC

by

name.

The

court

first

observed that the preamble to the General Terms provided a nonexclusive list of corporations to which it applied, so DMCC’s
absence had no significance.
preamble

stated

that

the

Then, the court noted that the
General

Terms

applied

to

“‘all

subsidiaries of [WFS],’” and that the record evidence showed
DMCC was a subsidiary of WFS.
stated

that

since

the

Id. at 796.

Bunker

Confirmation

Lastly, the court
incorporated

the

General Terms, DMCC had adopted the document regardless of what
the General Terms preamble purported its applicability to be.
Hebei Prince’s arguments on appeal echo those it made to
the district court, that the Bunker Confirmation did not validly
incorporate the General Terms because it does not identify the
specific internet site where those provisions could be located.
In addition, it asserts that because the preamble to the General

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Terms does not specifically refer to DMCC or Bunkerfuels, the
document does not clearly apply to the transaction at issue.
The

district

court

did

not

err

in

concluding

that

the

Bunker Confirmation validly incorporated the General Terms into
the agreement.

The Bunker Confirmation plainly expresses that

it

the

incorporates

General Terms.

terms

of

another

specific

document,

the

Consequently, Tramp Maritime, along with any

other reader of the Bunker Confirmation, was immediately put on
notice of the existence of a specific additional document that
contained

provisions

Confirmation.

that

were

also

part

of

the

Bunker

In addition, the Bunker Confirmation provides two

means of obtaining a copy of the General Terms: visiting the
wfscorp.com website or asking for a copy.

Although individuals

in search of the General Terms need to click on two internal
links to reach the text, the terms are readily found through
wfscorp.com links identified by such relevant language as “By
Sea,”

“Marine,”

and

“Marine

Terms

and

Conditions.”

See

One

Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258,
266-70 (5th Cir. 2011) (using a similar standard (unambigious,
clear,

specific,

conspicuous,

and

explicit)

for

valid

incorporation by reference to conclude that terms and conditions
available four clicks into the website contained in the contract
were validly incorporated).

Moreover, had any reader asked for

a copy of the referenced document, the text would have been
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readily reviewable in that form as well. 5

On its face, then, the

Bunker Confirmation effectively incorporated the General Terms.
As

the

district

“sufficiently

court

clear

and

concluded,
explicit

the

to

incorporation

direct”

readers

was

to

the

General Terms and it “explicitly offered Tramp [Maritime] ‘the
opportunity to obtain knowledge’ of the General Terms.”

World

Fuel Servs. Trading, 12 F. Supp. 3d at 804.
The language in the preamble to the General Terms does not
alter

this

conclusion.

The

preamble

does

not

purport

to

identify an exhaustive list of entities to which it applies.
Instead,

it

states

that

the

group

of

companies

to

which

it

applies “includes, but is not limited to” certain delineated
companies.
to

“the

(J.A. 23.)
World

Fuel

The preamble also states that it applies
Services

corporation

Marine

Group

of

companies . . . and their respective trade names, subsidiaries,
affiliates

and

branch

offices.

This

list

includes

all

subsidiaries of [WFS] who have sold, are selling or will sell
marine

petroleum

products

and

services,

existence on the effective date.”

whether

(J.A. 23.)

or

not

in

For the reasons

already identified in part II.C, supra, DMCC and Bunkerfuels
fall within the network of WFS marine companies.
5

Accordingly,

Hebei Prince does not contend that it or Tramp Maritime
ever requested a written copy of the General Terms. Nor does it
contend that the website access procedure described above is
inaccurate.
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the General Terms do not create doubt as to their applicability
to

DMCC

or

otherwise

undermine

the

Bunker

Confirmation’s

incorporation of the General Terms by reference. 6

E.
Having

concluded

that

the

Bunker

Confirmation

validly

incorporated the General Terms as part of the formation of the
governing

contract

between

Prince’s

contention

that

the
the

parties,
General

provision does not encompass the FMLA.

we
Terms’

turn

to

Hebei

choice-of-law

In that regard, the

General Terms provide, in pertinent part:
The General Terms and each Transaction shall be
governed by the General Maritime Law of the United
States and, in the event that the General Maritime Law
of the United States is silent on the disputed issue,
the law of the State of Florida, without reference to
any conflict of laws rules which may result in the
application of the laws of another jurisdiction.
The
General Maritime Law of the United States shall apply
with respect to the existence of a maritime lien,
6

Even if we had bypassed Greek law and instead applied
United States law, we would reach the same result and conclude
that the choice-of-law clause was successfully incorporated.
“Under general contract principles, where a contract expressly
refers to and incorporates another instrument in specific terms
which show a clear intent to incorporate that instrument into
the contract, both instruments are to be construed together.”
One Beacon Ins. Co., 648 F.3d at 267 (citing 11 Williston on
Contracts § 30:25 (4th ed. 1999)). For the reasons articulated
above, the parties’ intent here is clearly expressed by the
provisions in the Bunker Confirmation stating that it would be
governed by the General Terms, as well as the language informing
Tramp Maritime (or any reader) of two means of acquiring the
text of the General Terms.
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regardless of the country in which Seller takes legal
action.
(J.A. 34.)
The district court rejected Hebei Prince’s argument that
the phrase “General Maritime Law of the United States” did not
include the FMLA.

Observing that United States maritime law has

developed through both case law and statutes, the district court
noted that “‘when a statute resolves a particular issue, . . .
the general maritime law must comply with that resolution.’”
World

Fuel

Shipbuilding
(2001)).

Servs.,
&

12

Drydock

F.

Supp.

Corp.

3d

v.

at

806

Garris,

(quoting

532

U.S.

Norfolk

811,

817

The court then traced the evolution of the FMLA from

its original enactment in 1910 through its various amendments,
which slowly altered principles previously established in the
“general maritime law” concerning maritime liens under United
States

law.

principles

It
“must”

concluded

that

give

to

way

since

“general

conflicting

maritime”

statutes

where

Congress has spoken on a particular issue, “the General Maritime
Law of the United States” essentially changes to be consistent
with the statutory principles.

Accordingly, the district court

ruled that the General Terms’ choice of “General Maritime Law of
the United States” included the FMLA.

Id. at 807-08.

Citing to various cases and the legislative history of the
FMLA, Hebei Prince contends this was error because the phrase

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“General

Filed: 04/17/2015

Maritime

Law

of

the

Pg: 30 of 39

United

States”

is

generally

construed as a term of art to only encompass maritime case law
rather than maritime statutory law. 7
under

this

conundrum.

construction

of

the

term,

Hebei Prince argues that
DMCC

faces

a

Catch-22

On the one hand, the General Terms would not allow

DMCC to rely on a maritime lien arising under the FMLA because
“General Maritime Law of the United States” excludes statutory
law.

On the other hand, DMCC could not obtain a maritime lien

under

case

law

because

the

FMLA

is

now

the

sole

means

of

obtaining a maritime lien for the provision of necessaries under

7

For example, Hebei Prince observes that the Supreme Court
has frequently distinguished between statutory and general
maritime law. See E. River S.S. Corp. v. Transamerica Delaval,
Inc., 476 U.S. 858, 864 (1986) (“Absent a relevant statute, the
general maritime law, as developed by the judiciary, applies.”).
In addition, it relies on the Fifth Circuit’s discussion in
McBride v. Estis Well Serv., L.L.C., 731 F.3d 505 (5th Cir.
2013), in which the court stated:
There are two primary sources of federal maritime law:
common law developed by federal courts exercising the
maritime authority conferred on them by the Admiralty
Clause of the Constitution (“general maritime law”),
and statutory law enacted by Congress exercising its
authority under the Admiralty Clause and the Commerce
Clause (“statutory maritime law”).
Id. at 507-08. Although it is unrelated to Hebei Prince’s
argument, we note that the panel decision in McBride has
subsequently been vacated in light of the grant of
rehearing en banc, 743 F.3d 458 (5th Cir. 2014), and en
banc decision, 768 F.3d 382 (5th Cir. 2014).
The en banc
dissent still reiterates this same general principle.
768
F.3d at 405 (Higginson, J., dissenting).
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United States law.

Pg: 31 of 39

Consequently, Hebei Prince argues that the

General Terms do not entitle DMCC to a maritime lien.
To

be

sure,

the

General

Terms’

choice-of-law

provision

could have been written in a way that would avoid this question
entirely.

In Triton Marine, for example, the relevant clause

stated that the “agreement shall be governed by and construed in
all particulars by the laws of the United States of America[.]”
575 F.3d at 412.

So, too, the Ninth Circuit has reviewed a

choice-of-law provision that selected “the general maritime laws
of the United States and applicable United States Statutes.”
Flores v. Am. Seafoods Co., 335 F.3d 904, 918 n.8 (9th Cir.
2013).

Either

of

these

constructions

clearly

incorporates

federal statutory maritime laws such as the FMLA.
But even assuming, without deciding, that Hebei Prince’s
reading of the term “General Maritime Law of the United States”
is correct and the FMLA is not part of the “General Maritime Law
of the United States,” Hebei Prince still cannot prevail.

This

is so because the General Terms alternatively provides if the
“General Maritime Law of the United States is silent on the
disputed

issue,

the

law

of

the

State

of

Florida

[governs.]”

(J.A. 34.)
Florida law resolves the issue in favor of DMCC because
Florida law must be deemed to include United States law—by case
law or by statute.

The Supreme Court has long stated that “‘a
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fundamental principle in our system of complex national polity’
mandates

that

‘the

Constitution,

laws,

and

treaties

of

the

United States are as much a part of the law of every state as
its own local laws and Constitution.’”

Fidelity Fed. Sav. &

Loan Ass’n v. de la Cuesta, 458 U.S. 141, 157 (1982) (quoting
Hauenstein v. Lynham, 100 U.S. 483, 490 (1879)).
law

provision

encompasses

directing

federal

us

to

statutory

the

law,

laws

including

of

A choice-ofFlorida

thus

FMLA.

See

the

Atkinson v. General Elec. Credit Corp., 866 F.2d 396, 398-99
(11th Cir. 1989) (concluding, based in part on Fidelity Fed.
Sav. & Loan Ass’n, that “Georgia law includes federal law” where
a choice-of-law provision selected “the laws of the State of
Georgia”

but

was

applicability).

silent

as

to

federal

statutory

law’s

Accordingly, the General Terms’ choice-of-law

provision authorizes DMCC to pursue a maritime lien under the
FMLA.

F.
Hebei Prince alternatively argues that even if the FMLA
applies to the transaction, DMCC is still not entitled to a
maritime

lien

because

it

requirements under the FMLA.
In

relevant

part,

the

has

not

satisfied

all

of

the

Once again, we disagree.
FMLA

provides

that

“a

person

providing necessaries to a vessel on the order of . . . a person
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authorized by the owner” “has a maritime lien on the vessel” and
“may bring a civil action in rem to enforce the lien.”
U.S.C.

§ 31342(a).

charterers

(e.g.,

The
Tramp

FMLA

creates

Maritime)

procure necessaries for” the Vessel.

have

a

46

presumption

such

that

“authority

to

See § 31341(a)(4)(B).

Hebei Prince contends that it produced proof rebutting this
statutory presumption that Tramp Maritime had such authorization
here.

Alternatively, Hebei Prince maintains that the record

demonstrates a genuine issue of material fact as to whether the
presumption applies.

It asserts DMCC had actual knowledge that

Tramp Maritime was not authorized to enter into agreements that
would give rise to a maritime lien against the Vessel and points
to

two

prior

contracts

between

Bunkerfuels

Hellas

and

Tramp

Maritime, where Tramp Maritime had placed no-lien stamps on the
delivery

receipts.

Hebei

Prince

contends

these

prior

acts

provided DMCC cognizable notice that Tramp Maritime could not
procure necessaries in an agreement that would bind the Vessel.
In addition, Hebei Prince maintains that upon seeing the no-lien
stamp affixed to the delivery receipt for the bunkers at issue
here, DMCC’s sub-contractor APSCO could—and should—have engaged
in self-help to immediately reclaim the bunkers.
asserts

DMCC’s

failure

to

take

such

prompt

Hebei Prince

action

following

actual notice of the no-lien provision caused it to waive the
right to a maritime lien.
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We agree with the district court that no triable issue of
fact exists on this issue.

The statutory presumption discussed

above can be rebutted only by proof that the seller had actual
knowledge

that

the

charterer

lacked

the

ability

vessel as part of the contract for necessaries.

to

bind

the

See Triton

Marine, 575 F.3d at 418 n.5 (observing that in 1971 Congress
recodified the FMLA “essentially to void ‘no lien’ clauses in
charters, as long as the supplier did not have actual knowledge
of such clause”); Lake Charles Stevedores, Inc. v. PROFESSOR
VLADIMIR

POPOV

MV,

199

F.3d

220,

224-25

(5th

Cir.

1999)

(discussing cases in the Fifth and Eleventh Circuits holding the
same, as well as recounting the changes in the statute leading
to

this

conclusion).

Put

another

way,

“a

supplier

of

necessaries ordered by a § 31341(a) entity subject to a no-lien
clause not made known to the supplier has a maritime lien.”
Lake Charles Stevedores, 199 F.3d at 225.
None of the evidence Hebei Prince relies on demonstrates
that DMCC had actual knowledge of the no-lien provision in Tramp
Maritime’s charter party.

Hebei Prince does not contend that it

or Tramp Maritime ever notified DMCC or Bunkerfuels Hellas of
the terms of their charter party.

This is so despite the Bunker

Confirmation clearly stating that Tramp Maritime “is presumed to
have

authority

(J.A. 21.)

to

bind

the

[Vessel]

with

a

maritime

lien.”

The Bunker Confirmation thus plainly contemplated
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that a presumption of authority to obligate the Vessel existed,
and there is no evidence that anyone attempted to notify DMCC to
the contrary at any point between Tramp Maritime receiving the
Bunker Confirmation and accepting delivery of the bunkers.
The no-lien stamps affixed to prior delivery notices when
Tramp

Maritime

was

operating

under

prior

charter

parties

is

insufficient to provide actual knowledge of the current charter
party.

Those prior stamps say nothing about the terms of Tramp

Maritime’s charter to operate the Vessel at the time it entered
into the agreement set forth in the Bunker Confirmation.
The primary case Hebei Prince relies upon to satisfy its
burden, Belcher Oil Co. v. M/V GARDENIA, 766 F.2d 1508 (11th
Cir. 1985), materially differs from the facts here.

In Belcher

Oil, the supplier was notified prior to delivery of the bunkers
that the charter party contained a no-lien clause prohibiting
the charterer from obligating the vessel.

Id. at 1510.

Only as

“corroborat[ion]” of this finding of actual knowledge did the
Eleventh Circuit also note that the charterer had put disclaimer
stamps on the bunkering certificates for prior deliveries from
the

same

authority
supplier

seller.
was

However,

only

actually

rebutted

knew

the

the

presumption

because
charterer

clause before delivery of the fuel.

the
was

against

evidence
bound

by

showed
a

lien
the

no-lien

By contrast, there is no

proof in this case that DMCC actually knew that the operative
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charter party contained a no-lien clause.

Accordingly, Hebei

Prince cannot rebut the presumption based on prior contracts
between Tramp Maritime and Bunkerfuels.
Hebei Prince’s second argument fares no better, as the nolien

stamps

affixed

to

the

delivery

notices

did

not

provide

timely actual notice of any no-lien clause in the charter party.
This

is

so

for

at

least

two

reasons.

First,

the

Bunker

Confirmation states that “[d]isclaimer stamps placed by [anyone]
on the bunker receipt will have no effect and do not waive the
seller’s

lien.”

(J.A.

21.)

Despite

this

language,

Tramp

Maritime never contacted DMCC to convey the terms of the charter
party

or

that

it

viewed

the

no-lien

stamps

as

effective.

Moreover, anyone reading the terms of the Bunker Confirmation
would have reason to believe that even if a no-lien stamp was
placed on the delivery receipt, it would be of no effect.

Given

the terms of the Bunker Confirmation, DMCC and its subcontractor
APSCO both had reason to believe that any no-lien stamps were
ineffective.
Second, delivery of the bunkers fulfilled DMCC’s obligation
under the Bunker Confirmation, and notice at that point of the
no-lien provision would be too late to alter the terms of the
existing agreement.

Contrary to Hebei Prince’s assertion, DMCC

was not required to engage in self-help and demand immediate
return of the bunkers upon learning that a no-lien stamp had
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been affixed to the delivery notice.

The out-of-circuit case it

relies on for this assertion is not binding on us.

See Ferromet

Res. v. Chemoil Corp., 5 F.3d 902, 903 (5th Cir. 1993).

More

importantly, the FMLA’s provisions were not at issue before that
court, and it did not discuss the presumption that arises under
§ 31341(a) or what evidence is sufficient to rebut it.

Id.

Ferromet Resources involved a tort claim brought by the
charterer

against

a

supplier

after

the

supplier

of

bunkers

refused to unmoor from alongside the vessel until the delivery
notice was signed without a no-lien stamp.

The Eleventh Circuit

held that a genuine issue of material fact existed as to when
the supplier was notified that the charterer lacked authority to
incur liens.

If it was before delivery, then the charterer

could likely recover damages incurred as a result of the delay
caused by the supplier’s refusal to unmoor.

Id. at 905.

If the

supplier was not notified of the no-lien clause until delivery,
then the supplier may have been entitled to engage in self-help.
Id.

Nothing in Ferromet Resources suggests that a supplier must

engage in self-help or attempt to retrieve delivered bunkers
simply because a no-lien stamp has been placed on the delivery
receipt.
Accordingly, we conclude that § 31341(a)’s presumption of
authority

to

procure

Confirmation transaction.

necessaries

applies

to

the

Bunker

Hebei Prince failed to demonstrate or
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even proffer evidence creating a genuine issue of material fact
as to whether DMCC had actual knowledge of Tramp Maritime’s lack
of authority to bind the Vessel.
Given that the remaining § 31342(a) requirements are either
uncontested or have already been resolved in DMCC’s favor, we
also conclude that DMCC was entitled to bring this action to
enforce a maritime lien against the Vessel.

G.
Hebei

Prince’s

final,

throughout its brief.
respect

to

maritime

comity-themed

argument

echoes

It contends that United States law with
liens

is

so

“out

of

step

with

existing

international conventions and the law of other major maritime
nations” that the Court should find a way to conclude no lien
arose under the facts of this case.

(Opening Br. 51.)

As Hebei

Prince acknowledges, its arguments align with those previously
rejected in other cases, most directly Triton Marine.

“‘[A]

panel of this court cannot overrule, explicitly or implicitly,
the precedent set by a prior panel of this court.
Supreme

Court

or

this

court

sitting

en

banc

can

Only the
do

that.’”

Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 n.2 (4th
Cir. 2002) (quoting Mentavlos v. Anderson, 249 F.3d 301, 312 n.4
(4th Cir. 2001)).

Accordingly, we need not engage this argument

further.
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III.
For the reasons explained above, we affirm the judgment of
the district court granting summary judgment to DMCC.
AFFIRMED

39