Bonanni Ship Supply, Inc. v. U.S.

• Decision Date: 07 May 1992
• Docket Number: 91-3267,Nos. 90-4085,s. 90-4085
• Parties: , 38 Cont.Cas.Fed. (CCH) P 76,322 BONANNI SHIP SUPPLY, INC., Plaintiff-Appellant, v. UNITED STATES of America, as owner of U.S.N.S. RIGEL, its engines, tackle, apparel, etc., in rem, M/V PAUL BUNYON, its engines, tackle, apparel, etc., in rem, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1558

959 F.2d 1558

1992 A.M.C. 2165, 38 Cont.Cas.Fed. (CCH) P 76,322

BONANNI SHIP SUPPLY, INC., Plaintiff-Appellant, v. UNITED STATES of America, as owner of U.S.N.S. RIGEL, its

engines, tackle, apparel, etc., in rem, M/V PAUL

BUNYON, its engines, tackle, apparel,

etc., in rem, Defendants-Appellees.

Nos. 90-4085, 91-3267.

United States Court of Appeals, Eleventh Circuit.

May 7, 1992.

Jack C. Rinard, David F. Pope, MacFarlane, Ferguson, Allison & Kelly, Tampa, Fla., for plaintiff-appellant.

Robert Genzman, U.S. Atty., Karla Spaulding, Warren A. Zimmerman, Asst. U.S. Attys., U.S. Attorney's Office, Tampa, Fla., for defendants-appellees.

Appeals from the United States District Court for the Middle District of Florida.

Before KRAVITCH and EDMONDSON, Circuit Judges, and HENDERSON, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

In this admiralty case, plaintiff-appellant Bonanni Ship Supply, Inc. filed suit to recover money allegedly owed Bonanni by the defendant-appellee United States for repair services on a U.S. naval vessel, and sought to impose a maritime lien on that vessel under the Maritime Commercial Instruments and Liens Act ("MCILA"), codified at 46 U.S.C.A. § 31301-31343 (West Supp.1991). The district court granted the United States' motion to dismiss or, in the alternative, for summary judgment, and denied Bonanni's motion to vacate the judgment. Bonanni appeals both these rulings, claiming that, contrary to the district court's conclusion, the MCILA does not preclude the enforcement of a maritime lien for repairs on a public vessel. We agree with Bonanni that the MCILA does not per se preclude the imposition of a maritime lien on a public vessel; we affirm the district court's decision, however, because Bonanni failed to sustain its burden on summary judgment of proving that it was a maritime lienor entitled to relief under the MCILA.

I. BACKGROUND

The USNS RIGEL is a public vessel owned by the United States and operated by the United States Navy's Military Sealift Command, Atlantic ("MSC Atlantic") in Bayonne, New Jersey. ¹ To maintain ships such as the RIGEL, the Government contracts with private shipyards for repair services. Each shipyard seeking to provide such services must enter into a master contract with the Government; specific repairs to particular vessels are governed by job orders issued by MSC Atlantic pursuant to a competitive bidding process to a shipyard possessing a master contract. Gulf-Tampa Dry Dock Company ("Gulf-Tampa") possessed such a master contract, No. N000033-85-H-0371.

On August 28, 1987, MSC Atlantic, through its contracting officer, Arthur Amses, issued Job Order No. N62381-87-JO-002 to Gulf-Tampa for certain repairs to the USNS RIGEL. Item 608 of the job order called for Gulf-Tampa to inspect, test, repack and arrange for Coast Guard certification of the RIGEL's 10 life rafts. Gulf-Tampa's bid on this item was for $5,410, and listed no subcontractor to perform any work on the RIGEL's life rafts. Bonanni, however, performed the work required in Item 608. The parties stipulated that no written contract existed between Bonanni and the United States regarding work to be done on the RIGEL. They also stipulated that no verbal agreement existed regarding any such work, and that none of the Government officers authorized to direct contractors or subcontractors to furnish any work on the RIGEL had so directed Bonanni. ² There is no evidence in the record as to whether or not the Government was aware of Bonanni's performance, or whether or not the Government directly inspected Bonanni's work or otherwise gave its tacit approval to Bonanni's actions either prior to or after completion of work on the RIGEL.

Gulf-Tampa successfully completed the job order and was paid in full by the contracting officer. Bonanni subsequently submitted an invoice to "USNS RIGEL c/o Gulf-Tampa Dry Dock" in the amount of $10,606.21. The Government refused to pay Bonanni for its work on the RIGEL's life rafts; Gulf-Tampa also apparently has refused to pay Bonanni for its work. ³

Bonanni then filed a "Complaint In Rem " against the United States as owner of the USNS RIGEL, alleging subject matter jurisdiction pursuant to the Suits in Admiralty Act ("SAA"), 46 U.S.C.App. §§ 741-752. ⁴ Bonanni alleged that it had furnished supplies, repairs and other necessaries to the RIGEL, for which items there was then due and owing $10,606.21. Plaintiff specifically asserted a maritime lien against the RIGEL. ⁵

The Government moved to dismiss Bonanni's complaint on substantive and jurisdictional grounds or, in the alternative, for summary judgment. The Government argued that section 102 of the MCILA, ⁶ 46 U.S.C.A. § 31342, upon which Bonanni's lien theory of recovery was based, precluded the imposition of maritime liens on public vessels and therefore deprived Bonanni of a cause of action against the United States based on in rem principles. The Government also contended that even if section 102 of the MCILA did not foreclose Bonanni's action on account of the RIGEL's status as a public vessel, plaintiff was not a maritime lienor entitled to relief under that section because it had not provided necessaries or services to the vessel on the order of the owner or a person authorized by the owner. Finally, the Government contended that plaintiff's failure to exhaust administrative remedies as required by the Contract Disputes Act ("CDA"), 41 U.S.C. §§ 601-613, deprived the district court of subject matter jurisdiction over the case and therefore mandated dismissal or summary judgment in favor of the Government.

The United States District Court for the Middle District of Florida granted the Government's motion. Bonanni Ship Supply v. United States, case no. 89-1132-CIV-T-17(B) (M.D.Fla. September 26, 1990) (hereinafter "September 26 Order"). The court agreed with the Government that section 102 of the MCILA did not support recovery by Bonanni on in rem principles. The court held that the only recourse available to an admiralty plaintiff in Bonanni's position was an in personam action on a contract with the Government, and that the absence of a contractual relationship between Bonanni and the United States foreclosed that option in this case. The court entered judgment in favor of the Government on September 27, 1990.

Bonanni then moved to vacate the district court's judgment, arguing that this court's decision in Stevens Technical Services, Inc. v. United States, 913 F.2d 1521 (11th Cir.1990), mandated that the district court's judgment against Bonanni be set aside. The district court denied Bonanni's motion on the grounds that the recodification of existing commercial maritime law in the MCILA rendered Stevens Technical inapplicable. Bonanni Ship Supply, case no. 89-1132-CIV-T-17(B) (M.D.Fla. January 18, 1991). Bonanni appeals both the district court's order granting summary judgment against Bonanni (case no. 90-4085) and the district court's denial of Bonanni's motion to vacate the judgment in light of Stevens, supra (case no. 91-3267). We have consolidated the two appeals.

II. ANALYSIS

Although styled a "Complaint In Rem," Bonanni's action against the United States is essentially an action in personam against the Government to recover damages through the use of an in rem (lien) theory of recovery. The questions before this court are: (1) whether Bonanni's failure to exhaust administrative remedies pursuant to the CDA deprived the district court of subject matter jurisdiction; and (2) whether the MCILA supports an in personam action against the United States based on in rem principles. We review de novo appellee's jurisdictional argument. Local Union 72 v. John Payne Co., Inc., 850 F.2d 1535, 1537 (11th Cir.1988). We also review de novo a district court's grant of summary judgment, Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir.1990), applying the same legal standards that bound the district court. Earley v. Champion Intern. Corp., 907 F.2d 1077, 1080 (11th Cir.1990). We note that this court may affirm the district court where the judgment entered is correct on any legal ground regardless of the grounds addressed, adopted or rejected by the district court. Dandridge v. Williams, 397 U.S. 471, 475, 90 S.Ct. 1153, 1156, 25 L.Ed.2d 491 (1970); Greenwood Utilities Commission v. Hodel, 764 F.2d 1459 (11th Cir.1985).

A. The Contract Disputes Act ("CDA")

The United States contends as a threshold matter that Bonanni's failure to exhaust administrative remedies under the CDA deprived the district court of its subject matter jurisdiction over this case. In essence, the Government argues that the CDA requires all claims by a Government contractor to be submitted to a contracting officer for decision before the Government waives its immunity from such claims, and that Bonanni's failure to make any submissions to the contracting officer responsible for the RIGEL amounted to a jurisdictional defect and mandated dismissal of the case.

The Government's contention is without merit. Although the CDA provides for a waiver of sovereign immunity from contract claims against the Government based on procurement of services, the SAA and the Public Vessels Act ("PVA"), 46 U.S.C.App. §§ 781-790, which form the jurisdictional basis for Bonanni's suit in this case, ⁷ also provide for a waiver of sovereign immunity, without requiring that the plaintiff exhaust its administrative remedies. This court addressed this very issue in Marine Coatings of Alabama v. United States, rejecting the Government's argument in that case that "the CDA imposes a restrictive limitation on the scope of the SAA's and PVA's waiver of immunity." Marine Coatings, 932 F.2d at 1377. The Marine Coatings court viewed the jurisdictional grant in the SAA and the PVA as independent of the grant contained in the CDA. The court concluded:

The ... CDA waive[s] immunity, but there is no need to apply [it] if another method of bringing suit is...