EXXON CORPORATION, PETITIONER V. CENTRAL GULF LINES, INC., ET AL.

   No. 90-34

   In The Supreme Court Of The United States

   October Term, 1990

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Second Circuit

   Brief For The United States As Amicus Curiae

   This brief is submitted in response to the Court's invitation to
the Solicitor General to express the views of the United States.

           TABLE OF CONTENTS
   Question Presented
   Statement
   Discussion
   Conclusion

                          QUESTION PRESENTED

   Whether an agent who procures and pays for necessary maritime
supplies for a vessel in maritime commerce is entitled to assert a
maritime lien against the vessel.

                               STATEMENT

   1. For 40 years, petitioner Exxon Corporation was Waterman
Steamship Corporation's exclusive worldwide supplier of bunker fuel
oil.  Pursuant to contract, petitioner supplied the fuel to Waterman
vessels either directly or, when Waterman vessels called at ports
where petitioner did not maintain its own bunker stations, through
local suppliers.  When a local supplier was used, the fuel was
delivered by the local supplier directly to the vessel;  petitioner
paid the supplier and then billed Waterman.  Pet. App. A23-A24.

   The vessel M/V Green Harbour ex William Hooper ("the Hooper") is a
United States flag ship owned by respondent Central Gulf Lines, Inc.
Waterman chartered the vessel for use in its common carrier service
between United States ports and ports in the Middle East.  On October
26, 1983, Arabian Marine Operating Co., Ltd., a local supplier of fuel
at the port in Jeddah, Saudi Arabia, delivered 4,242.47 tons of bunker
fuel to the Hooper, as contemplated by the agreement between
petitioner and Waterman.  Petitioner accordingly paid Arabian Marine
for the fuel, and then billed Waterman for its $763,644 cost.  Pet.
App. A24-A25.

   2. Waterman, however, was insolvent;  on December 1, 1983, the
company sought reorganization under Chapter 11 of the bankruptcy laws.
 During reorganization proceedings, respondents Central Gulf agreed
that, should a court hold the Hooper liable in rem for the cost of the
bunker fuel, respondent would assume personal liability for the cost
of the fuel.  Respondent provided petitioner with a letter of credit,
as security for this promise.  Pet. App. A25.

   After a reorganization plan for Waterman was confirmed in June
1986, petitioner was permitted to pursue its claim for the cost of
supplying bunker fuel to the Hooper.  Accordingly, it commenced this
lawsuit in federal district court against both Central Gulf and the
Hooper.  Pet. App. A25.  Petitioner urged that its agreement with
Waterman to procure bunker fuel in Saudi Arabia fell within the
district court's admiralty jurisdiction, and therefore claimed to have
a maritime lien upon the Hooper, pursuant to the Federal Maritime Lien
Act, 46 U.S.C. 971 (1982 & Supp. V 1987).

   3. The district court recognized (Pet. App. A27, A30-A31) that as a
prerequisite to the existence of a maritime lien, the subject matter
of the contract in dispute must fall within the court's admiralty
jurisdiction.  The court noted that "(w)hile admiralty jurisdiction
provides 'fairly complete coverage of the primary operational and
service contracts of the shipping industry,' there still exist 'a few
anomalous exceptions' * * * (including) the rule that agency contracts
under which a party agrees to solicit or procure freight, passengers,
crew, or supplies for a vessel are not maritime contracts." Id. at
A28, quoting G. Gilmore & C. Black, The Law of Admiralty Section 1-10
(2d ed. 1975).  The district court observed (Pet. App. A28) that the
Second Circuit, in Peralta Shipping Corp. v. Smith & Johnson
(Shipping) Corp., 739 F.2d 798 (1984), cert. denied, 470 U.S. 1031
(1985), had refused to discard this exception, finding itself bound by
this Court's decision in Minturn v. Maynard, 58 U.S. (17 How.) 477
(1855).  Applying "the principles enunciated in Peralta" to the facts
of this case (Pet. App. A29), the district court concluded that the
agreement whereby petitioner arranged for the provision of fuel to
Waterman's vessels at Jeddah constituted an agency contract (id. at
A29-A30), and that there was no legitimate basis for distinguishing
the general agency, or husbanding, contract at issue in Peralta /1/
from the bunkering agreement here (id. at A31).

   The court denied petitioner's motion for reconsideration (Pet. App.
A3-A21), observing that although the Minturn rule had "suffered some
erosion in other circuits," the Second Circuit had refused to depart
from Minturn absent action by this Court (id. at A11-A12).  The
district court rejected petitioner's argument that in procuring
bunkering services for Waterman, it was acting as a special and not a
general agent (id. at A13);  it then went on to observe that the
Second Circuit had refused to distinguish special agency agreements
from general ones, and that in any event, special agents that provide
preliminary services are outside the admiralty jurisdiction (id. at
A13-A14).  /2/ It specifically held that the "services performed by
(petitioner at Jeddah) were merely preliminary." (id. at A17).  /3/

   4. The court of appeals affirmed, "substantially for the reasons
given in (the district court's) two thorough opinions" (Pet. App. A2).

                              DISCUSSION

   In reaching the conclusion challenged by petitioner, the courts
below relied to a significant extent on this Court's decision in
Minturn v. Maynard, 58 U.S. (17 How.) 477 (1855).  That decision,
largely unexplained and perhaps questionable even when written, has
been much criticized by courts and commentators, and its probable
rationale may well be inconsistent with subsequent developments in
admiralty jurisdiction.  Moreover, the decision has spawned
considerable confusion in the lower courts, which are in disagreement
over its meaning and over the relevant distinctions to be drawn in
determining the scope of admiralty jurisdiction.  Although it is not
certain that this case would have been decided differently in any
other circuit, we submit that it is nevertheless an appropriate
vehicle for considering the present validity and reach of the Minturn
decision.  We therefore recommend that the petition for a writ of
certiorari be granted.

   1. Justice Story observed early in the nineteenth century that the
admiralty jurisdiction of the United States includes "all contracts
(wheresoever they may be made or executed, or whatsoever may be the
form of the stipulations) which relate to the navigation, business or
commerce of the sea." De Lovio v. Boit, 7 F. Cas. 418, 444 (C.C.D.
Mass. 1815) (No. 3,776).  Whether a contract is governed by maritime
law thus depends on the subject matter of the agreement.  See North
Pacific S.S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U.S.
119, 125 (1919) ("in matters of contract it depends upon the subject
matter * * * the true criterion being the nature of the contract, as
to whether it have reference to maritime service or maritime
transactions");  Kossick v. United Fruit Co., 365 U.S. 731, 736 (1961)
("The only question is whether the transaction related to ships and
vessels, masters and mariners as agents of commerce.").  Accord, e.g.,
Hamburg-Amerika Line v. Gulf Puerto Rico Lines, Inc., 579 F.2d 115,
118 (1st Cir. 1978);  Owens-Illinois, Inc. v. United States Dist.
Court, 698 F.2d 967, 970 (9th Cir. 1983);  CTI-Container Leasing Corp,
v. Oceanic Operations Corp., 682 F.2d 377, 379 (2d Cir. 1982).  /4/

   Minturn v. Maynard, supra, has been read to establish an "agency"
exception to this general rule.  The libellant in Minturn was both a
general agent and a broker;  he sued in personam to recover from a
vessel's owners money he had spent in procuring ship's services and
supplies.  This Court dismissed the suit in a brief opinion, finding
"nothing in the nature of a maritime contract in the case." 58 U.S.
(17 How.) at 477.  The Court's entire explanation for this conclusion
(ibid.) was this:

      The libel shows nothing but a demand for a balance of accounts
      between agent and principal, for which an action in assumpsit,
      in a common law court, is the proper remedy.  That the money
      advanced and paid for respondents was, in whole or in part, to
      pay bills due by a steamboat for repairs or supplies, will not
      make the transaction maritime, or give the libellant a remedy in
      admiralty.  Nor does the local law of California, which
      authorized an attachment of vessels for supplies or repairs,
      extend to the balance of accounts between agent and principal,
      who have never dealt on the credit, pledge, or security of the
      vessel.

   Analysis of Minturn should proceed from an understanding of its
historical context.  In colonial times, only contracts entered into on
the high seas and to be performed on the high seas were deemed within
admiralty's jurisdiction in England.  See Coke, The Fourth Part of the
Institutes of the Laws of England Concerning the Jurisdiction of the
Courts 137 (6th ed.) (London 1681);  Robertson, Admiralty and
Federalism 56-58 (1970);  De Lovio v. Boit, at 421.

   England's narrow interpretation of admiralty jurisdiction was
rejected in America's colonial courts and subsequently in the courts
of the United States.  See generally, De Lovio v. Boit, supra.
However, the principle that admiralty jurisdiction was limited to the
high seas, and only so far inland as the ebb and flow of the tides,
remained a viable doctrine in this country during the first half of
the nineteenth century.  /5/ For example, Justice Story, writing for
this Court, adhered to the so-called "tidewater limitation," i.e.,
that admiralty jurisdiction extended only so far as the sea and the
tidewaters, "as far as the tide flows." See The Steamboat Thomas
Jefferson, 23 U.S. (10 Wheat.) 428, 429 (1825);  United States v.
Coombs, 37 U.S. (12 Pet. 72, 76 (1838).  Writing in 1848, Justice
Nelson encapsulated American admiralty law's suzerainty over matters
of contract as follows (New Jersey Steam Navigation Co. v. Merchant's
Bank, 47 U.S. (6 How.) 344, 392 (1848) (emphasis added)):

      On looking into the several cases in admiralty which have come
      before this court, and in which its jurisdiction was involved,
      or came under its observation, it will be found that the inquiry
      has been, not into the jurisdiction of the court of admiralty in
      England, but into the nature and subject matter of the contract,
      whether it was a maritime contract, and the service a maritime
      service, to be performed upon the sea, or upon waters within the
      ebb and flow of the tide.

   Thus, as Professor Moore has noted, "some remnant of the
restrictive English mentality regarding the admiralty appears to have
been present in the minds of the court that decided the early cases."
7A J. Moore & A. Palaez, Moore's Federal Practice Paragraph .250, at
3004-3005 n.10 (2d ed. 1985).  The Minturn Court's decision may be an
example of this tendency, reflecting the fact that the contract there
at issue was not one to be performed on the high seas, or within the
ebb and flow of the tide.

   Alternatively, one commentator has remarked that at the time
Minturn was decided, it was deemed necessary to have a lien interest
in a vessel before a contract would be considered maritime.  See Note,
General Agency Agreements and Admiralty Jurisdiction, 17 Conn. L. Rev.
595, 603 (1985).  The Minturn Court specifically noted that the "agent
and principal (there involved) ha(d) never dealt on the credit,
pledge, or security of the vessel," 58 U.S. (17 How.) at 477, i.e.,
the libellant never had a lien interest in the vessel.  That fact may
thus have provided a basis for the Court's rejection of admiralty
jurisdiction.

   Both of these possible rationales for Minturn were rejected by this
Court shortly after Minturn was decided.  In 1851, three years after
Minturn, this Court held in The Propeller Genesee Chief v. Fitzhugh,
53 U.S. (12 How.) 443, that admiralty jurisdiction extended to all
navigable waters, and was not limited to waters within the ebb and
flow of the tide.  In Insurance Co. v. Dunham, 78 U.S. (11 Wall.) 1,
26 (1871), the Court held that "as to contracts * * * the true
criterion is the nature and subject-matter of the contract, as whether
it was a maritime contract, having reference to maritime service or
maritime transactions," and established that a contract may be
maritime, and give rise to a right to sue on the contract in personam,
even when the contract does not create a lien.  Minturn therefore
rests on concepts long abandoned in American admiralty law.  /6/

   Despite these developments in the law of admiralty, Minturn has
stood for almost 140 years without reconsideration by the Court.  Not
surprisingly, however, it has been repeatedly criticized by
commentators.  Professor Moore has observed that the Minturn rule is
an unfortunate anomaly:  "Quite clearly, such (general agency)
agreements are an integral part of, and in furtherance of, maritime
commerce and, consequently, should be cognizable within the admiralty
jurisdiction of the district courts." 7A J. Moore & Palaez, Moore's
Federal Practice Paragraph .250, at 3006 (2d ed. 1985).  And
Professors Gilmore and Black have characterized the general agency
exception as "of dubious defensibility," and predicted "that the
Supreme Court, when the issue reaches it, will hold 'general agency'
and other vessel agreements within the jurisdiction -- along with
actions for accountings on them." G. Gilmore & C. Black, The Law of
Admiralty 28, n. 94b (2d ed. 1975).  /7/

   2. In light of these criticisms, this Court's reconsideration of
the Minturn decision might well be warranted, even in the absence of
any disagreement over its meaning in the lower courts.  But such
disagreement does exist.  As Justice Blackmun, joined by Justice
Marshall, noted in dissenting from the denial of certiorari in
Peralta, Minturn is an exception to admiralty jurisdiction "that has
been applied inconsistently and that has created unnecessary confusion
in the federal courts." 470 U.S. at 1031-1032.  Since "uniformity and
predictability in the maritime industry were the ends sought in the
Constitution when federal-court maritime jurisdiction was created in
the first instance," this inconsistency is particularly inappropriate
in the admiralty context (id. at 1034).  /8/ Accordingly, the instant
decision -- and others rendered since the decision in Peralta -- serve
to buttress the need for review by this Court.

   As evidenced by this decision, the Second Circuit remains committed
to the view that under Minturn, agency agreements are excluded from
admiralty jurisdiction.  See Pet. App. A11-A16, A31;  accord Peralta
Shipping Corp. v. Smith & Johnson (Shipping) Corp., 739 F.2d 798,
802-804 (2d Cir. 1984), cert. denied, 470 U.S. 1031 (1985);  Admiralty
Oriental Line v. Atlantic Gulf & Oriental S.S. Co., 88 F.2d 26, 27 (2d
Cir. 1937).  Cf. Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d
293, 301-302 (2d Cir. 1987);  Cory Bros. & Co. v. United States, 51
F.2d 1010, 1012 (2d Cir. 1931).  /9/ Although it has stated that it
would "welcome" the overruling of Minturn (Peralta, 739 F.2d at 804),
the Second Circuit has rejected a variety of distinctions that limit
the impact of that decision in other circuits, noting -- with some
accuracy -- that "such hair-splitting distinctions would blur, if not
oliterate, a rather clear admiralty demarcation" (ibid.).  /10/
Moreover, in this case the district court found no reason to
distinguish the agreement at issue here -- to procure bunkering
services -- from a general agency contract (Pet. App. A31, A16-A17),
and the court of appeals agreed (id. at A2).

   At the other end of the spectrum, the Fifth Circuit has refused to
recognize any rule excluding agency agreements from admiralty
jurisdiction.  In Hadjipateras v. Pacifica, S.A., 290 F.2d 697, 703
(1961), the Fifth Circuit held that an action for breach of an agency
contract for the management and operation of a vessel is within the
admiralty jurisdiction, since "the contract is everything classically
known as a maritime contract.  It concerns a ship.  It relates not
only to a ship;  its very purpose is to effectuate the physical,
economic operation and employment of a vessel." In so holding, the
court observed that Minturn merely forecloses admiralty jurisdiction
over an action for "an accounting as such" (290 F.2d at 704 & n.15).
/11/

   Similarly, the Ninth Circuit, in Hinkins Steamship Agency v.
Freighters, Inc., 498 F.2d 411 (1974), questioned Minturn's continued
validity (id. at 412), and found the agency agreement at issue there
to be a maritime contract.  The Ninth Circuit emphasized that although
the husbanding agent had "procured (maritime services) and did not
perform them directly, * * * (the facts that) their performance was
its direct responsibility, that the services were clearly maritime and
necessary for the continuing voyage, and that (the agent) was directly
engaged in supervision, makes (the service) maritime and the contract
sued upon a maritime contract" -- particularly since the agreement was
limited to a specific voyage /12/ and "there was repeated attendance
on board the vessel" by the agent.  Ibid.  /13/

   The circuits are thus in disagreement about whether admiralty
jurisdiction extends to certain types of contracts -- for example,
although the Second Circuit in Admiral Oriental Line, found a
"managing operator" agency contract was not within admiralty
jurisdiction, the Ninth Circuit in Hinkins reached a contrary result,
precisely because the contract before it provided for direct
management services.  See Peralta, 739 F.2d at 804.  And there is
little doubt, in light of Admiral Oriental Line and Peralta, that the
Second Circuit would have reached a different result from that reached
by the Fifth Circuit in Hadjipateras.  Moreover, Hadjipateras itself
at least suggests that the Fifth Circuit would find the typical
husbanding agreement -- like the one at issue in Peralta, for example
-- to be subject to admiralty jurisdiction, although it has not
apparently had occasion to do so to date.  See note 11, supra.

   It is not certain that the present case would have been decided
differently had it arisen in any other circuit.  /14/ The agreement
under which petitioner procured and paid for the bunkering services
provided to the Hooper did not provide for any direct management of
Waterman's ships by petitioner, as did the Hadjipateras agreement.
/15/ And many of the factors found significant by the Ninth Circuit in
Hinkins in establishing admiralty jurisdiction are absent in this
case.  /16/ (But the results of the Ninth Circuit decisions cited at
note 13, supra, do appear to be more directly in conflict with the
decision below.)

   Even if this Court were to decide in this case that agency
agreements are not per se excluded from admiralty jurisdiction,
difficult questions would remain.  For example, many agency agreements
would undoubtedly properly be excluded from admiralty jurisdiction on
the ground that they provide for services that are merely preliminary
to maritime transactions.  See, e.g., S. Friedell, Benedict On
Admiralty Section 183 (7th ed. 1989).  /17/

   Nevertheless, we believe this case is an appropriate vehicle for
reconsideration of the Court's holding in Minturn and for resolution,
at least in part, of the conflict in approach among the circuits.
First, and most important, the courts below plainly thought themselves
constrained by Minturn -- in ways in which other circuits would not --
from determining whether and to what extent agency agreements fall
within admiralty jurisdiction.  /18/ Second, if this Court determines
that agency agreements are not necessarily precluded from the scope of
admiralty, the Second Circuit in this case, as well as other circuits
in comparable cases, will be free to focus on whether a particular
agency agreement falls outside admiralty jurisdiction because it is
truly "preliminary" and not simply because it involves an
agent-principal relationship.  See notes 2, 17, supra.

   The Court may eventually conclude that on balance, the interests of
certainty and predictability are best served by reaffirming the
longstanding Minturn rule.  Cf. Sisson v. Ruby, 110 S. Ct. at 2901 &
n.4 (Scalia, J., concurring).  But even if the Court ultimately so
concludes, the controversy over the desirability of that rule, and the
disagreement over its precise scope, warrant review by this Court.
See 470 U.S. 1031 (1985) (Blackmun, J., dissenting from the denial of
certiorari in Peralta).

   In sum, we believe that the continuing validity and, if valid, the
scope of the Minturn decision is ripe for review by this Court, and
that this case presents an appropriate vehicle for that review.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   DAVID L. SHAPIRO

      Deputy Solicitor General

   HARRIET S. SHAPIRO

      Assistant to the Solicitor General

   ROBERT S. GREENSPAN

   RICHARD A. OLDERMAN

      Attorneys

   DECEMBER 1990

   /1/ "(G)eneral agency contracts that call for 'husbanding' a vessel
(involve) arranging for the performance of the various services that
are preliminary to maritime movement." Peralta Shipping Corp. v. Smith
& Johnson (Shipping) Corp., 470 U.S. 1031 (1985) (Blackmun, J.,
dissenting from denial of certiorari).  Thus, in Peralta, the
agreement under consideration "provided services such as arranging for
fuel, water, provisions, customs clearance, and stevedoring," mostly
to be performed by others than the contracting parties.  Pet. App.
A28-A29.

   /2/ The district court rejected petitioner's invitation to
"disentangle the preliminary contract rule from the general agency
rule," observing that "the agency exception to maritime jurisdiction
is less of an anomaly when viewed as a subset of the preliminary
contract doctrine." Pet. App. A16-A17.  See id. at A29 (quoting The
Thames, 10 F. 848 (S.D. N.Y. 1881)):

      The distinction between preliminary services leading to a
      maritime contract and such contracts themselves ha(s) been
      affirmed in this country from the first, and not yet departed
      from.  It furnishes a distinction capable of somewhat easy
      application.  If it be broken down, I do not perceive any other
      dividing line for excluding from the admiralty many other sorts
      of claims which have a reference, more or less near or remote,
      to navigation and commerce.  If the broker of a charter-party be
      admitted, the insurance broker must follow, -- the drayman, the
      expressman, and all others who perform services having reference
      to a voyage either in contemplation or executed.

   /3/ The district court also rejected petitioner's claim that it was
entitled to an admiralty lien by virtue of subrogation (Pet. App.
A18-A21).  Petitioner does not seek further review of that claim.

   /4/ Nevertheless, as this Court has noted, "(t)he boundaries of
admiralty jurisdiction over contracts -- as opposed to torts or crimes
-- being conceptual rather than spatial, have always been difficult to
draw." Kossick v. United Fruit Co., 365 U.S. 731, 735 (1961).  See S.
Friedell, Benedict on Admiralty Section 183, at 12-8 (7th ed. 1989)
("principles used to define maritime contracts * * * (are) easier to
state than to apply").  It is therefore not surprising that decisions
marking this boundary are difficult to reconcile.  It has been held,
for example, that a contract to repair a vessel is maritime, New
Bedford Dry Dock Co. v. Purdy, 258 U.S. 96 (1922), yet a contract to
build a vessel is not, Thames Towboat Co. v. The Schooner "Francis
McDonald", 254 U.S. 242 (1920), People's Ferry Co. v. Beers, 61 U.S.
(20 How.) 393 (1858);  and while a lease of cargo containers for use
on a ship is maritime, CTI-Container Leasing v. Oceanic Operations,
supra, as is a contract to purchase equipment for a ship, e.g.,
Radiomarine Corp. v. Gulf Northern Co., 394 F. Supp. 381 (E.D. Mo.
1975) (radio and radar systems), a contract to purchase a vessel is
not.  Economou v. Bates, 222 F. Supp. 988 (S.D.N.Y. 1963).  Cf. Sisson
v. Ruby, 110 S. Ct. 2892, 2901 & n.4 (1990) (Justice Scalia, joined by
Justice White, concurring in result and noting "(t)he impossibility of
drawing a principled line with respect to what, in addition to the
fact that the contract relates to a vessel * * * is needed in order to
make the contract itself 'maritime.'").

   /5/ Observance of this principle may have been in part due to a
concern for State's rights.  In 1826, Chancellor Kent observed that

      If the admiralty and maritime jurisdiction of the district
      courts embrace all maritime contracts, then suits upon policies
      of insurance, charter-parties, maritime hypothecations,
      contracts for building, repairing, supplying, and navigating
      ships, and contracts between part owners of ships, must be tried
      in the admiralty by a single judge, to the exclusion of the
      trial by jury;  and the state courts would be divested, at one
      stroke, of a vast field of commercial jurisdiction.  (1 Kent,
      Commentaries, 372 (12th ed. 1873)).

   /6/ Those concepts appear to have been abandoned in English
admiralty law as well.  An English admiralty court today would find a
contract for the supply of fuel to a ship well within its
jurisdiction.  See Supreme Court Act 1981, Section 20(2)(m), 51
Halsbury's Statutes of England 612-613 (3d ed. 1981) (extending
admiralty jurisdiction to maintenance);  The D'Vora, 2 All E.R. 1127
(P.1952) (holding that fuel is clearly material supplied to a ship for
its operation).

   /7/ See also S. Friedell, Benedict on Admiralty Section 183, at
12-9 (7th ed. 1989) (noting that "general agency agreements * * * are
'intimately related to the shipping industry and would warrant
inclusion within admiralty,'" quoting Peralta).  C. Black, Admiralty
Jurisdiction:  Critique and Suggestions, 50 Colum. L. Rev. 259, 274
(1950) (suggesting that admiralty jurisdiction should extend to all
cases "involving the enforcement, policing or adjustment of business
arrangements as a practical matter primarily concerned with sea, lake
and river transport");  Hough, Admiralty Jurisdiction Of Late Years,
37 Harv. L. Rev. 529 (1924);  Note, General Agency Agreements and
Admiralty Jurisdiction, 17 Conn. L. Rev. 595, 627 (1985) (suggesting
that general agency agreements should be within admiralty jurisdiction
unless agent merely procures, but does not perform or pay for services
or supplies).

   /8/ See also Sisson v. Ruby, 110 S. Ct. 2892, 2898 (1990) ("The
need for uniform rules of maritime conduct and liability is not
limited to navigation, but extends at least to any other activities
traditionally undertaken by vessels, commercial or non-commercial".);
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920);  3
Elliot's Debates on the Federal Constitution 532, 571 (2d ed. 1836).

   /9/ The Eleventh circuit agrees with the Second. E.S. Binnings,
Inc. v. M/V Saudi Riyadh, 815 F.2d 660, 662-665 (11th Cir. 1987).

   /10/ In Peralta (739 F.2d at 803-804), the Second Circuit refused
to "subdivid(e) the category of general agency contracts based on the
degree of importance of the services rendered by the agent or on the
extent of supervision of performance," as the Ninth Circuit "arguably"
did in Hinkins Steamship Agency v. Freighters Inc., 498 F.2d 411
(1974).  The Second Circuit also criticized the Hinkins distinction
between general and special agency agreements (739 F.2d at 803 n. 4).
Accord Continental Cameras Co. v. FOA & Son Corp., 658 F. Supp. 287,
289 (S.D.N.Y.), aff'd, 831 F.2d 45 (2d Cir. 1987);  Pet. App. A13-A16.

   /11/ The Eleventh Circuit has suggested that Hadjipateras must be
read in light of the particular provisions of the contract before the
court in that case, noting that "(t)he agreement involved in
Hadjipateras was a vessel management agreement, not a general agency
agreement.  The core of that agreement was the actual physical
operation of the vessel by the agent." E.S. Binnings, Inc. v. M/V
Saudi Riyadh, 815 F.2d 660, 664 (1987).  See also CTI-Container
Leasing Corp. v. Oceanic Operations Corp., 682 F.2d 377, 380 n.4 (2d
Cir. 1982) (Hadjipateras establishes that "a contract for managing a
ship is within (admiralty jurisdiction)").  The Fifth Circuit's
citations to Hadjipateras in the admiralty context have simply
referred to it as authority for the proposition that admiralty courts
may award equitable relief.  See, e.g., Inland Credit Corp. v. M/T Bow
Egret, 552 F.2d 1148, 1153 n.6 (1977);  Cates v. United States, 451
F.2d 411, 414 n.8 (1971);  Florida Bahamas Lines Ltd. v. Steel Barge
"Star 800", 433 F.2d 1243, 1247 (1970).  Nevertheless, it is by no
means clear that the Fifth Circuit would limit its holding in
Hadjipateras in the manner suggested by the Eleventh Circuit.

   /12/ The Eleventh Circuit in Binnings relied on this distinction,
noting that in Hinkins, the contract was for "service as husbanding
agent * * * for one ship in connection with a specific voyage, * * *
(where) the husbanding services were supervised directly by the
husbanding agent." 815 F.2d at 665.  A subsequent citation to Hinkins
in the Ninth Circuit characterizes it as holding that a "contract
relating to a ship in its use as such, or to commerce or navigation on
navigable waters, is subject to maritime law and falls under admiralty
jurisdiction." Foss Launch & Tug Co. v. Char Ching Shipping, 808 F.2d
697, 699 (1987).

   /13/ In an earlier case, The Golden Gate v. Associated Oil Co., 52
F.2d 397 (1931), the Ninth Circuit, without citing Minturn, the
preliminary contract rule, or the related cases, affirmed a decree in
rem against the Golden Gate for the value of oil furnished to it by
libellant, finding it "immaterial" that delivery of the oil was made
by a third party, "(i)nasmuch as the contract of sale was between the
libellant and the charterer, and the supplies were furnished by the
libellant pursuant thereto." 52 F.2d at 400.  See also Gulf Trading &
Transp. Co. v. M/V Tento, 694 F.2d 1191 (9th Cir. 1982) (apparently
assuming that under U.S. law, fuel broker may assert admiralty lien
for fuel it procured and paid for).  Similarly, although the First
Circuit has not discussed the issue, it noted in Tramp Oil & Marine,
Ltd. v. M/V Mermaid I, 805 F.2d 42, 44 (1st Cir. 1986) -- in a
situation in which Exxon "caused Colonial Oil Industries, Inc.
(Colonial) to supply * * * oil to the Mermaid," -- that "(n)o one
disputes that Exxon and Colonial, as direct suppliers of the fuel to
the Mermaid, would be entitled to a maritime lien." That issue was not
in dispute, since both Exxon and colonial had been paid in full.

   /14/ In the district court, petitioner strenuously contested the
characterization of its agreement to procure bunkering services for
Waterman as an agency contract, but it does not renew that objection
in this Court.  We accordingly accept, for purposes of our analysis,
the district court's conclusion that the relevant contractual
provisions established that petitioner was acting as Waterman's agent
in procuring bunkering services where it did not have the appropriate
facilities to provide those services directly.

   /15/ Even assuming that the Fifth Circuit would, if faced with an
appropriate case, adhere to its broad language in Hadjipateras, it
might conclude that this case involves a suit for "an accounting as
such," still foreclosed by Minturn.  290 F.2d at 704.  Like the
appellant in Minturn, petitioner simply seeks recovery of sums
allegedly "advanced and paid for respondents * * * to pay bills due by
a (vessel) for * * * supplies." 58 U.S. at 477.

   /16/ Petitioner engaged in no direct supervision of Waterman's
vessels, had no direct relationship to any specific vessel or voyage,
and, although it procured and paid for the bunkering services, title
to the oil provided passed directly from Arabian Marine, the supplier,
to Waterman.  On the other hand, although the district court in the
present case was "persuaded that (petitioner) was Waterman's general
agent with respect to fuel supplies," (Pet. App. A13), a circuit
anxious to assert admiralty jurisdiction and finding the distinction
useful might well have focused on the fact that the dispute concerned
only the provision of fuel to the Hooper at Jeddah, and might
therefore have concluded that a special agency agreement was at issue.

   /17/ The Second Circuit has consistently viewed the general agency
rule it derives from Minturn as a particular application of the
preliminary contract rule.  See Pet. App. A16-A17.  It has, moreover,
noted that "(t)he distinction between 'preliminary' and maritime
contracts has also become somewhat blurred." Peralta, 739 F.2d at 803
n.4.  The district court, observing that "(i)t would be inappropriate
for me to disentangle the preliminary contract rule from the general
agency rule," concluded that "the services performed by (petitoner)
were merely preliminary." Pet. App. A16-A17.  If this Court should
overturn Minturn, thus "disentangling" the general agency issue, it
would be appropriate for the courts below to reconsider the
preliminary contract issue.  The question would be whether the present
contract, under which petitioner not only procured but also paid for
the delivery of fuel to Watemrman's vessel, is any more "preliminary"
than an arrangement under which petitioner itself sold the oil to
Waterman -- an arrangement that the district court recognized as
falling within admiralty jurisdiction.  Pet. App. A33.

   /18/ The continuing existence of this constraint could well
encourage forum shopping by those wishing to assert a maritime lien,
in the belief that the chances of succeeding in that effort are
greater in the Fifth or Ninth Circuits.