TTT Stevedores of Texas, Inc. v. M/V Jagat Vijeta

• Decision Date: 04 February 1983
• Docket Number: No. 81-2233,81-2233
• Citation: 696 F.2d 1135
• Parties: TTT STEVEDORES OF TEXAS, INC., Plaintiff-Appellant, v. M/V JAGAT VIJETA, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1135

696 F.2d 1135

TTT STEVEDORES OF TEXAS, INC., Plaintiff-Appellant, v. M/V JAGAT VIJETA, etc., et al., Defendants-Appellees.

No. 81-2233.

United States Court of Appeals, Fifth Circuit.

Feb. 4, 1983.

As Amended on Denial of Rehearing April 7, 1983.

Robert Eikel, Houston, Tex., for plaintiff-appellant.

F.L. Benckenstein, Beaumont, Tex., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before BROWN and RANDALL, Circuit Judges, and DUPLANTIER^*, District Judge.

JOHN R. BROWN, Circuit Judge:

TTT Stevedores filed suit against the M/V JAGAT VIJETA in rem, and her owner in personam to recover unpaid stevedoring charges incurred during the loading of the M/V JAGAT VIJETA in Beaumont and Orange, Texas. Because we find that TTT Stevedores did not have actual knowledge of a "no lien" provision in the charterparty or that Kontozanis Shipping, Inc., was acting as an agent for Clay Bridge Shipping, Inc., we reverse.

Pack-Men: The Tale of TTT Stevedores

The M/V JAGAT VIJETA is a vessel owned by Dempo Steamships, Ltd. (Dempo). The vessel was time chartered to Clay Bridge Shipping, Inc. (Clay). Clay had appointed Kontozanis Shipping, Inc. (Kontozanis) as its agent to obtain stevedoring services for the vessel in Beaumont and Orange. Dempo had appointed TTT Ship Agencies (TTT Agencies) as its protective agent in Beaumont and Orange. TTT Agencies was also acting as agent for TTT Stevedores.

As agent for Clay, Kontozanis contracted with TTT Agencies to provide stevedoring services to the vessel. TTT Agencies appointed TTT Stevedores to load the vessel. The stevedoring contract called for a tonnage rate plus certain extras such as detentions to be billed at cost.

Loading of the vessel began after notice of readiness was tendered. The stevedores directed that the vessel's cargo loading gear be used in the married or union purchase configuration. The master locked the winches into the second or slower gear. TTT Stevedores wrote the master stating that there was a delay in loading caused by the operation of the winches in a slower gear and the failure of some of the winches to work properly. TTT Stevedores had a survey performed on the winches allegedly confirming that the winches were working slowly and not working up to capacity. TTT Stevedores contacted Kontozanis several times requesting additional compensation for the difficulties with the winches.

The entire stevedoring bill was not paid. TTT Stevedores filed suit to recover the unpaid stevedoring charges incurred in loading the M/V JAGAT VIJETA against the ship in rem and Dempo, the owner, in personam. TTT Stevedores also sued Kontozanis in personam alleging that it was the vessel's charterer.

The actual charterer, Clay, and Kontozanis filed an answer alleging that Kontozanis acted merely as Clay's manager, and denying liability. At trial, TTT Stevedores amended its complaint to add Clay as a defendant, alleging that Kontozanis acted "as a managing agent for its principal [Clay], disclosed or undisclosed." The central issues at trial were whether TTT Stevedores knew that Clay rather than Kontozanis was the actual charterer, and whether it knew of the charter provision that no liens could be imposed against the vessel by the charterer. TTT Stevedores' Beaumont representative, Klahn, testified that he dealt solely with Kontozanis and its representative and did not know that Clay was the charterer until trial. Anderson, controller for both TTT Stevedores and TTT Agencies, also testified at trial. He testified that TTT Stevedores and TTT Agencies are separate corporations, with separate management and offices, although they have the same owners. TTT Agencies was TTT Stevedores' general agent, the agent for Kontozanis in this transaction, and the general agent for Dempo. Nothing in the record shows that comptroller Anderson knew that Clay was the charterer until after suit was filed. Anderson also expected Kontozanis to pay the bills of TTT Stevedores and TTT Agencies as charterer.

Garza, an employee of TTT Agencies, but not of TTT Stevedores, testified that as Dempo's agent he received in January of 1979 a copy of the charterparty from Dempo to be delivered to the vessel's master. Garza read the charterparty and from that was aware that it contained a no lien clause. He testified that as of January 22, 1979, he knew that Clay was the charterer but that Dempo had told him to give the charterparty only to the master, and that that was what he had done. There was no testimony that Garza ever communicated to TTT Stevedores that Clay was the charterer or that the charterparty contained a no lien clause.

Despite this evidence, the district court, 509 F.Supp. 1072, held that TTT Stevedores could not recover from Kontozanis because it was an agent for Clay, a disclosed principal of which Garza had knowledge. The court also denied TTT Stevedores recovery for delay caused by the broken winches because the contract specifically permitted it to hire other cranes if needed and to bill them at cost. TTT Stevedores having failed to do this, the court held that these additional costs were properly charges for detentions. Finally, the court held that TTT Stevedores had failed to prove that the amounts it claimed were fair and reasonable.

In addition to deciding the claims of TTT Stevedores, the court held that it was liable to Dempo for wrongful seizure of the vessel because Garza's knowledge of the no lien clause could be imputed to TTT Stevedores. On the basis of these findings, TTT Stevedores appeals.

TTT Stevedores' Appeal: Pack-Men Piqued

TTT Stevedores argues first that the district court erred in finding that TTT Agencies had actual knowledge of a no lien provision in the charterparty and that such knowledge could be imputed to TTT Stevedores. Second, it asserts that the district court's finding that the charterer, Clay, was a disclosed principal was clearly erroneous. Both of these inquiries are rooted in the knowledge acquired by Garza. Next, it argues that the court erred in denying recovery for the extra charges resulting from loading delays caused by the winches and in denying full recovery for the additional extra charges claimed. Finally, TTT Stevedores argues that it was error to permit the vessel owner to recover for wrongful seizure of the vessel.

A. Knowledge of the No Lien Provision: Pack-Men Percipient?

TTT Stevedores' first objection to the district court's decision is its denial of recovery in rem from the vessel and Dempo. It argues that the in rem statutory lien afforded the supplier of necessaries to a ship can be defeated only where it is established that the supplier has actual knowledge of the existence of a no lien provision in the charterparty. Since it asserts that there was no such knowledge here, it argues that the court's holding that the knowledge of Garza, an employee of TTT Agencies, could be imputed to TTT Stevedores was clearly erroneous.

Determination of this issue necessarily involves three inquiries. First, it must be determined whether a maritime lien arose on the vessel. There is no question that supplying stevedoring services gives rise to a maritime lien under 46 U.S.C. Sec. 971. See Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, 273, 60 S.Ct. 937, 940, 84 L.Ed. 1197, 1200 (1940), A.M.C. 647, 650; Gulf Trading & Transportation Co. v. M/V HOEGH SHIELD, 658 F.2d 363, 368 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2932, 73 L.Ed.2d 1332 (1982). Thus, a maritime lien against the vessel arose at the time of the contract for stevedoring services.

Having determined the existence of a maritime lien, we can now turn to the second inquiry necessary for the determination of this matter. Appellees, the vessel and Dempo, argue that the maritime lien against the vessel was waived by a "no lien" provision in the charterparty agreement. They suggest that there is evidence in the record that TTT Agencies had actual knowledge of the "no lien" provision and that this knowledge was imputed to TTT Stevedores. We cannot agree.

Our examination of the record reveals that the only testimony which indicates that TTT Stevedores might have had knowledge of the no lien provision was the testimony of Garza, an employee of TTT Agencies. The trial court held that since Garza had examined the charterparty agreement, he knew that Kontozanis was acting as an agent for Clay and that the agreement contained a no lien provision. Because TTT Stevedores and TTT Agencies had common owners and because TTT Agencies was also acting as an agent for TTT Stevedores, the trial court held that Garza's knowledge could be imputed to TTT Stevedores.

If we examine Garza's testimony closely, we see that no such interpretation is warranted. Garza testified that he received the charterparty agreement on the 22d of January. Therefore, neither Garza nor TTT Stevedores can be charged with knowledge of the no lien provision or the participation of Clay before that date. The fact is, however, that the contract was made on January 6, 1979, over two weeks earlier. Thus, on the basis of the record before us, TTT Stevedores could have had no knowledge, imputed or otherwise, at the time it entered into the contract to provide stevedoring services. For that reason, we hold that the conclusion of the District Court that TTT Stevedores was liable to Dempo for wrongful seizure of the vessel because it knew of the no lien clause is clearly erroneous. ¹

Given the existence of a valid maritime lien, we can turn to the third inquiry necessary for the determination of TTT Stevedores' liability to Dempo. This inquiry centers on whether Dempo and the vessel have satisfied their burden of establishing that the personal credit of the owner or charterer was solely relied upon. If it was, then TTT Stevedores waived its lien and could not have lawfully seized the vessel.

In Gulf Trading, 658 F.2d at 368, we...