694 F.2d 1191 (9th Cir. 1982), 80-4151, Gulf Trading & Transp. Co. v. M/V Tento
|Docket Nº:||80-4151, 80-4158 and 80-4176.|
|Citation:||694 F.2d 1191|
|Party Name:||GULF TRADING & TRANSPORTATION CO., and Permal Shipping Co., Plaintiffs-Appellees, v. The M/V TENTO, her engines, tackle, boilers, etc., in rem, Defendant, I/S NOREXIM, Claimant-Appellant.|
|Case Date:||December 20, 1982|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted Sept. 15, 1981.
D. Thomas McCune, Lillick, McHose & Charles, San Francisco, Cal., for claimant-appellant.
Eric Danoff, Graham & James, San Francisco, Cal., for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of California.
Before KENNEDY and TANG, Circuit Judges, and HOFFMAN, [*] District Judge.
KENNEDY, Circuit Judge:
This case presents certain choice of law questions respecting maritime liens. Liens were filed against the M/V Tento (Tento) when it docked at the Port of Stockton, in the Eastern District of California. The underlying claims arose from two separate transactions, the first with Gulf Trading & Transportation Company (Gulf), the second with Permal Shipping Company (Permal).
The Tento is a Norwegian flag vessel owned by I/S Norexim (Norexim), a Norwegian corporation. Norexim placed the Tento under time charter to Aspen Steamship Company (Aspen), and Aspen subchartered to Coin, S.A. (Coin). Both Coin and Aspen operated from New York City. Norexim's charter to Aspen provided that United States law would govern certain aspects of the agreement and that the charterer was responsible for obtaining the Tento's fuel oil. The Tento had made a significant number of voyages to United States ports in the past 1 and on the voyage giving rise to the claim it embarked from the United States for the Suez Canal.
While Tento was enroute, Coin decided to refuel it in Italy, and the Gulf transaction resulted. One Rodriguez acted for a New York based company that had served as an agent for Coin. At Coin's instance, Rodriguez asked a fuel broker in New York City to order oil for the Tento to be bunkered in Italy. The broker contacted Gulf Oil Corporation at its New York sales office and made an oral contract for sale and delivery of fuel oil.
Gulf, a Delaware corporation, used an Italian company, AGIP, to deliver the fuel oil in Italy. Gulf paid AGIP and charged the Tento $105,447.46. As one might predict at this point, neither Coin, as subcharterer, nor Norexim, as owner, paid the invoice.
The second transaction was with Permal, a New York corporation. Again on Coin's behalf, Rodriguez requested Permal in New York City to advance approximately $40,000 for the Tento's Suez Canal transit. Permal complied and sent invoices, but $12,376.91 is still owing.
Gulf and Permal initiated in rem actions against the Tento by arresting the vessel in Stockton, California. The charter having terminated, Norexim was operating the vessel. The vessel posted security and Norexim appeared to defend the actions against the vessel. Gulf asserted a maritime lien for the fuel oil, and Permal asserted a maritime lien for the canal expenses.
Here and in the district court, Norexim contended that Italian and Egyptian law govern the Gulf and Permal transactions respectively, and that under those laws the owner's vessel is not subject to liens for expenses incurred by the sub-charterer. 2 It
argued Italian and Egyptian law control because the correct choice of law is determined by a single point of contact for the separate transactions, namely, the country where the supplies were obtained. In the alternative, Norexim asserted that even if the choice of law were made by weighing all the points of contact in each transaction, Italian law rules the Gulf transaction and Egyptian law the Permal one. Rejecting Norexim's arguments, the district court determined United States law applies to each transaction, and we affirm.
In Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), the Supreme Court was required to resolve a choice of law question in a maritime tort suit under the Jones Act. The Court adopted an approach similar to the second Restatement of Conflicts. See Restatement (Second) of Conflict of Laws Sec. 6 (1971). The Court's approach was to set forth the points of contact between the transaction and various jurisdictions and to weigh and evaluate them. Id. at 582, 73 S.Ct. at 928. Its review included the place of the wrongful act, the flag of the ships, allegiance or domicile of the injured seaman, allegiance of the shipowner, place of signing the employment contract, accessibility of a foreign court, and the law of the forum.
In a subsequent decision, the Supreme Court declared that the factors in Lauritzen were not exhaustive. Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 309, 90 S.Ct. 1731, 1734, 26 L.Ed.2d 252 (1970). 3 The vessel's "base of operations," that is, the shipowner's center of management and the location most benefited economically by the business of the vessel, 4 is also relevant. Id. at 309, 90 S.Ct. at 1734. The Supreme Court has extended the Lauritzen approach to "guide courts in the application of maritime law generally." Romero v. International Terminal Operating...
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