Bollinger Quick Repair, Inc. v. M/V Goliath

• Decision Date: 28 January 1997
• Docket Number: Civil No. 95-2001-ST.
• Parties: BOLLINGER QUICK REPAIR, INC., Plaintiff, v. M/V GOLIATH, Official No. 553457, her engines, tackle, equipment, and appurtenances, in rem; Gilco Construction Co., in personam, Defendants. KeyCorp Leasing Ltd.; Dennis Brindle; Cascade General, Inc.; and Jones Stevedoring Co., Claimants-Intervenors.
• Court: U.S. District Court — District of Oregon

965 F.Supp. 1448

BOLLINGER QUICK REPAIR, INC., Plaintiff, v. M/V GOLIATH, Official No. 553457, her engines, tackle, equipment, and appurtenances, in rem; Gilco Construction Co., in personam, Defendants.

KeyCorp Leasing Ltd.; Dennis Brindle; Cascade General, Inc.; and Jones Stevedoring Co., Claimants-Intervenors.

Civil No. 95-2001-ST.

United States District Court, D. Oregon.

January 28, 1997.

Kerry J. Shepherd, Bogle & Gates, Portland, OR, for Bollinger Quick Repair Inc.

John R. Dudrey, Williams Fredrickson Stark & Weisensee PC, Portland, OR, for Dennis Brindle.

Daniel F. Knox, Schwabe Williamson & Wyatt, Portland, OR, for M/V Goliath.

Joseph M. Van Leuven, Richard J. Schroeder, Davis Wright Tremaine, Portland, OR, for Keycorp Leasing Ltd.

Darien S. Loiselle, Schwabe Williamson & Wyatt, Portland, OR, for Jones Stevedoring Co.

Guy C. Stephenson, Schwabe Williamson & Wyatt, Portland, OR, for Cascade General Inc.

ORDER

FRYE, District Judge:

The Honorable Janice M. Stewart, United States Magistrate Judge, filed Findings and Recommendation on December 20, 1996. The matter is before this court. See 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). No objections have been timely filed. This relieves me of my obligation to give the factual findings de novo review. Britt v. Simi Valley Unified School Dist., 708 F.2d 452, 454 (9th Cir.1983). Having reviewed the legal principles de novo, I find no error. Accordingly, I ADOPT the Findings and Recommendation of Magistrate Judge Stewart dated December 20, 1996 in its entirety.

IT IS HEREBY ORDERED that the Motion for Partial Summary Judgment by Jones Stevedoring Company (# 69) is GRANTED, and KeyCorp Leasing Ltd.'s Motion for Partial Summary Judgment on Question of Stevedore's Lien (# 71) is DENIED.

FINDINGS AND RECOMMENDATIONS

STEWART, United States Magistrate Judge.

INTRODUCTION

On December 22, 1995, plaintiff, Bollinger Quick Repair, Inc. ("Bollinger"), filed this action in rem against the M/V GOLIATH, and in personam against Gilco Construction Co. ("Gilco"), the former owner of the GOLIATH, in order to collect $55,019 in monies allegedly owed to Bollinger as a result of repairs and materials provided by Bollinger to the GOLIATH in July 1995. Several parties subsequently intervened including: (1) KeyCorp Leasing Ltd. ("KeyCorp"), which holds a preferred marine mortgage interest in the GOLIATH; (2) Jones Stevedoring Company ("Jones Stevedoring"), which claims a maritime lien based on stevedoring services provided in September 1995; (3) Dennis Brindle ("Brindle"), the former master of the GOLIATH, who allegedly is owed unpaid wages and damages for injuries he sustained while in service of the GOLIATH on August 7, 1995; and (4) Cascade General, Inc. ("Cascade"), which provided moorage services to the GOLIATH commencing December 12, 1995.

On March 18, 1996, this court entered an Order directing release of the GOLIATH to KeyCorp pursuant to a Stipulation between Bollinger, KeyCorp, and all other intervenors. A default judgment was entered in favor of Bollinger on April 4, 1996. That default judgment was subsequently assigned to KeyCorp on April 17, 1996.

Now before the court are: (1) the Motion for Partial Summary Judgment by Jones Stevedoring Company (docket # 69); and (2) KeyCorp's Cross-Motion for Partial Summary Judgment on Question of Stevedore's Lien (docket # 71). Jones Stevedoring and KeyCorp each seek a determination of whether Jones Stevedoring is entitled to a maritime lien under the Federal Maritime Lien Act ("FMLA"), 46 U.S.C. § 971, recodified at 46 U.S.C. §§ 31341-43. For the reasons that follow, this court finds that Jones Stevedoring is entitled to a maritime lien under the FMLA and therefore recommends that Jones Stevedoring's motion be granted, and KeyCorp's motion be denied.

UNDISPUTED FACTS

The following undisputed facts are extracted from the parties' statements of facts in their briefs:

1. Gilco, a manufacturer of buildings in Washington state, contracted with the Department of Housing and Urban Development to install manufactured housing units onto certain Indian lands in Alaska.

2. Gilco chose to transport the housing units to Alaska by means of ocean towage and purchased the tugboat GOLIATH specifically for that purpose.

3. The GOLIATH had no decks or cargo holds of its own and, as a result, was physically incapable of independently transporting the housing units. Gilco therefore chartered two barges, the BISMARK and the ZB-335, to hold the housing units. The barges were unmanned, passive tows which had no motive power of their own.

4. Gilco hired Jones Stevedoring to load and lash the housing units for towage to Seattle. Both Gilco and Jones Stevedoring clearly understood that the GOLIATH would perform the towage.

5. The barges were berthed alongside the GOLIATH during the loading process. After Jones Stevedoring completed loading the barges, the barges were connected to the GOLIATH and taken in tow to Alaska.¹

6. Jones Stevedoring claims it is still owed over $86,000, plus interest, costs, and attorney fees, as a result of its loading services.

DISCUSSION

I. Issue Presented

These motions involve a single, narrow issue, namely, whether the stevedoring services provided by Jones Stevedoring qualify for a maritime lien against the GOLIATH under 46 U.S.C. § 31342(a)(1) which states that a person "providing necessaries to a vessel on the order of the owner or a person authorized by the owner ... has a maritime lien on the vessel." Persons having such a lien may bring a civil action in rem to enforce the lien and are not required to allege or prove in the action that credit was given to the vessel. 46 U.S.C. § 31342(a)(2) and (3). It is undisputed that Jones Stevedoring can assert a lien against the two barges. The only question is whether Jones Stevedoring can also assert a lien against the tugboat which transported the barges.

Gilco and Jones Stevedoring both contemplated that Jones Stevedoring would load the housing units, the barges would then be connected to the GOLIATH, and then the entire unit would proceed to Alaska. It is undisputed that this is exactly what transpired.

Jones Stevedoring argues that the intent of the parties, combined with the practical realities and physical limitations of both the GOLIATH and the barges should control. Because the GOLIATH could not transport the housing units without the barges — and vice versa — Jones Stevedoring's services inured to the benefit of(i.e. were "provided to") both. Consequently, Jones Stevedoring is entitled to a maritime lien against the GOLIATH, as well as the barges.

KeyCorp argues that the intent of the parties, as well as the fact that the GOLIATH and the barges actually traveled to Alaska as a unit, are irrelevant. According to KeyCorp, the only pertinent question is on which specific vessel Jones Stevedoring performed "physical tangible services." Because the stevedores "provided loading services to and on the two barges — not to the tugboat" and "did not in any way come into contact with, provide services to, or deliver services on the tugboat," KeyCorp seeks to limit Jones Stevedoring to a maritime lien against the two barges. KeyCorp's Response to Motion for Partial Summary Judgment, p. 6.

Neither party has cited, nor has this court found, a case that has upheld or denied a lien to a stevedore against a tugboat for stevedoring services performed on a barge.² The determination of this novel issue requires this court to interpret the statutory clause "providing necessaries to a vessel." Thus, it is appropriate to begin the analysis by referring to the applicable rule of construction.

II. The Doctrine of Stricti Juris

KeyCorp argues that Jones Stevedoring's claim to a maritime lien is precluded by the doctrine of stricti juris. The doctrine prohibits the recognition of "new forms" of maritime liens and restricts maritime liens to "`those created by statute and those historically recognized in maritime law.'" Logistics Mgmt., Inc. v. One (1) Pyramid Tent Arena, 86 F.3d 908, 913 (9th Cir.1996), quoting Melwire Trading Co., Inc. v. M/V CAPE ANTIBES, 811 F.2d 1271, 1273 (9th Cir.1987).

Stricti juris is premised on the potential for prejudice to other creditors that maritime liens pose by virtue of the fact that they are "secret" to all but the immediate parties:

Because the maritime lien [of the FMLA] is secret and may operate to the prejudice of prior mortgagees and other creditors without notice, it will not be "extended by construction, analogy or inference."

Foss Launch & Tug Co. v. Char Ching Shipping U.S.A., Ltd., 808 F.2d 697, 702 (9th Cir.), cert denied, 484 U.S. 828, 108 S.Ct. 96, 98 L.Ed.2d 57 (1987) ("Foss"), quoting Piedmont & George's Creek Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 12, 41 S.Ct. 1, 4, 65 L.Ed. 97 (1920); see Melwire, 811 F.2d at 1273, quoting Osaka Shosen Kaisha v. Pacific Export Lumber Co., 260 U.S. 490, 499, 43 S.Ct. 172, 174, 67 L.Ed. 364 (1923).

KeyCorp opines that the doctrine of stricti juris makes this case extremely simple. A barge, like a tugboat, is a "vessel." The barges on which the housing units were loaded are the only "vessels" with which Jones Stevedoring's employees had any physical contact. Therefore, the barges are the only vessels to which Jones Stevedoring can claim it provided any necessary services. According to KeyCorp, any broader interpretation would create a new type of lien not contemplated by the FMLA, and therefore is not permitted by the doctrine of stricti juris.

There is no question that Jones Stevedoring is entitled to a maritime lien for its stevedoring services which "are categorized as `necessaries.'" Atlantic & Gulf Stevedores, Inc. v. M/V GRAND LOYALTY, 608 F.2d 197, 201 (5th Cir.1979) ("GRAND LOYALTY"). Instead, this case involves the breadth of the clause "providing necessaries to a vessel." Does the clause contemplate allowance of a lien against a tugboat (the GOLIATH) for...