one of the three vessels that were subject to seizure of court below the appellants are effectively to see g g entities and those are part of a geophysical company that was conducting a geophysical survey off the coast of louisiana in two thousand the maritime law and the extent to which are the limitations upon which must be imposed depending on how necessaries are defined and here this is not a typical maritime lean necessary skase because what this court has experience in the last couple of decades including the equities case as well as the golden princess case is an expansion of maritime liens and whether they apply to certain intangible issues which i support the function of a vessel as it applies the waters and is engaged in maritime commerce here we are dealing with bunkers with fuel which for the last one hundred years the united states supreme court has recognized as being a necessary under both general maritime law before the federal maritime lien act in the commercial instruments lane that was it was an act then and then subsequent to it and that that began with  united states supreme court case in the piedmont didn't involve fuel oil which is the modern iteration or a more modern iteration of what propelled vessel it dealt with coal and the supplying of coal in support of a vessels function but i think it is essential to look back to those very simple precepts of what it necessary is as announced by the supreme court in the piedmont and that is whether it is something that is necessary for a vessel to move from place to place to move from place to place and that was now yes or the judge found obviously knows this area of law well and and his order cited multiple decisions the most recent one being the st circuit no plus star case do you remember the decision the judge found relied on i'd do i don't recall and i can look at it in a moment what was involved in the nova starr and i don't know that's the ferryboats going up in the nova scotia area right then and and he cites it appropriately for the fact that linens on the boat were deemed necessary now linens don't help that boat move from place to place so his body of cases where advertising is unnecessary linen is unnecessary containers on a container ship are necessary might suggest that the ruling here was correct that necessary doesn't just mean necessary to propel i think the no start a solution as well as the act will ease decision are appropriate expansions of what can should be considered necessary under maritime law when you look at what is needed for that vessel to perform its function so when you have a fair or not propulsion it's perform its function no true and but that though i did not want to lose sight of the fact that we are dealing with here is fuel for propulsion so go again to the nova start case or equities or others where you look at either intangible issues like insurance or something that it is not considered to be traditionally maritime like liquor for passengers or linens on beds affair my oversimplifying to say your rule of law then is necessary for that ship not necessary for the ship that it's going to is that is that the simple proposition that is a simple proposition and when you look at the supreme court decisions in terms of the use of fuel and which vessel it is necessary for that is an absolutely fundamental question that has to be answered in this case so hypothetically been the seismic the vessels there there may be a lean with respect to those gospels as to the fuel that's going to go in because they're going to use it to propel them absolutely and here we have support missiles who with the possible exception of the lily for not using that fuel for their own ship correct not merely not using it for their own propulsion not using it for the ship but they are physically incapable of using that fuel for their own propulsion there is no mechanism in order to get that martin energy fuel from the cargo tanks of the bourbon patrol or the o e m s resolution into th day tanks of those two vessels and therefore it can not propel the vessels under the uncut uncontested facts is present well i wish that the exception had i'm sorry the necessary head had remained as clear cut as the supreme court opinion one hundred years ago but when all the sudden you're reading these cases that talk about advertising for the vessel linen of the vessel and you can say yeah but that's  ships and you have to have passengers on a cruise ship all of a sudden we're no longer tied to necessary for the ship's propulsion all those ships safety for example if the ship runs  aground and doesn't have the funds to be repaired but it's got to be repaired to get from bora bora to new york city you know it borrows money and there's a lien on the bussell so distinct how do you how do you rationalize these cases that if i had to use upon going so far overboard and now we're talking about advertising and lending then and just bartell ago i agree with you but i think the way you posited the question to me answers the question and that is necessary needs to be associated with the vessel subject to seizure but it could be something to syria to both and then you get into the lily situation right i don't know no i don't well i think we ought to get into the lily because it does require i think some further discussion but with the bourbons betrayal you know mr one best resolution for example test if they cannot if they can't even transfer the fuel of their day to and they are physically incapable of using the fuel propulsion that under the cargo tanks and the date tanks and this was an aberration at least in terms of this geophysical survey it was a new captain aboard the lily who was not supposed to be transferring that fuel from the cargo tanks to the day tanks but he did and did a very modest amount important thing was its approximately twelve thousand gallons and the fuel aboard the vessel at the time it arrived in port to show was more than that so that we have a circumstance where a vessel shows up a and the question becomes does that vessel have the fuel and cables and anchors and water for its own crew sufficient in order for it to accomplish its voyage and here it was uncontested in the court below that the miss lily did and when she has import food and board we would be talking about a very different circumstance here if under the other unusual circumstances that miss lilly where she had to actually take three trips off shore due to weather conditions in order to transfer the volumes in her cargo tanks to the seismic vessels offshore had it been a circumstance where she burned more fuel than what she had on board when she arrived in port to show off i would be probably not making the argument before you right now and it might be a slight variation of the extent that fuel was used for propulsion it would produce presumably the unnecessary to the miss lily would that be that right if the fuel was required for her her to her drops off shore i would agree that would be unnecessary for her propulsion but she had sufficient fuel on board in order to make the journeys off shore to the saw vessels those volumes were transferred to the seismic vessels before she had ever consumed the fuel that she already had on board and under a strictly jurist interpretation of maritime liens which are a secret lien which attaches now as a as an operational flaw that it shouldn't be extended where the uncontested facts below show that she already had enough fuel and other equipment on board to wear her voyage did not need any additional fuel and i  has spread quite considerably it is does your position require us to distinguish or disagree with any other circuit and in particular i'm wondering about this judge found citation to the th circuit  launch case i believe no one frankly i was thankful that we had a one day bench trial affectively to establish that the facts were uncontested you know because it is at that trial that facts were disclosed by mr containers put onto a vessel in order for it to carry cargo and without those containers it could not carry the cargo which was the function of that vessel and so the th circuit in false maritime says the resolution didn't have containers on that vessel those vessels either the bourbon patrol was originally constructed as a seismic support us it had dry good refrigerated and freezer containers built into  or messed resolution miss lilly did not and prior to the seismic operations off the coast of louisiana c g g provisioned containers on the oil mess resolution and on the miss lily so that she could perform her function of and dry goods refrigerated goods and frozen goods out to the seismic fleet and the provisioning of those containers had they not been paid for would have given rise to a maritime lien undervalue just for clarity in the record when you're saying the provisioning of those containers to a white person they would think you're putting meat into the container what you're saying is they provided the combiners correct now on the what is your response to the fact that by the very fact the fuel was provided to these vessels and the maritime law was was maintained that in effect there was a contract in which the lien was agreed to and that we should give some object to with all of its poker supplies it's bunker certificates i mean these are unilateral certificates that are issued for which it specifically states that we are hereby not waiving any maryla any maritime lien that attaches as a matter of law and that was relevant to the issue of whether whether martin energy had waived its lien because here we had an additional very peculiar set of facts were see g g used to buy this fuel for its seismically and separately for the supply boats directly from the market and the question arose at trial of whether they waive that lee and by contracting with a bunker which really has inspired a remarkable amount of litigation when it went into bankruptcy so bunkers have become a new dish or topic throughout all the circuit courts including this one with the larry marketing but that is a waiver issue that we did not raise on appeal i think that is appropriately something that was within the fact finding of judge fallon and we did not raise the issue of waiver before the court but that's simply related to the waiver issue only and i think maritime law is exceptionally clear that you cannot create maritime liens for necessary by contract it is by operation of has alleged themselves and did in the court below that it has a lien for these supplies because seismic nestles on the seismic vessels because it was contractually required to supply that fuel to c g g and it therefore went to france and it seized the geo celtic and c g g had to release that vessel and paid for the fuel here so this was a very odd circumstance where we had competing claims for this but this is also another strange case in which typically some a company like c g g or an owner of the supply vessels here will simply place into the registry of the court the amount that's in dispute between o w bowker and more energy to fight out who had in order to commit the vessel to the purchase of the fuel the problem was is that we couldn't put the money into the registry of the court because the vessels that were subject to seizure were the ones that didn't have the liens attached to the liens attached by operation of maritime law to the seismic vessels because it was those vessels that consumed the fuel it very interesting you have time for bottle i will i will save a few bottles have you very much thank you respond to the to the examples provided by someone i think i'll respond as your own or did it beginning of mr d as his argument that since the institution of the maritime lien act the scope of that establishes the general parameter which is whether the good or service enables the vessel to perform its particular function and that is very broad equities our court realigned itself with other circuits in specific situations where something is necessary to a destination vest on and in i'm thinking particularly  ninety six silver star case judge garwood judge jones went out of their way to say other courts are expansively interpretation necessary but one thing it's not is if it's going to another vessel then it's necessary that we're not is that while it may well be necessary to divest all that it's going to that does not necessarily mean that it is not also necessary to the vessel to which it is provided you know we distinguish this case from the general provision of cargo cargo supplied to a vessel that travels through another destination st of all is probably not even provided to the vessel within the maritime weena it is certainly well not provided to st of all the owner of the supply vessel was the same as the owner of the seismic vessel so it's there was no bill of lading issued it was not a case of shipping fuel to a distant owner purchaser it was supplied to the owner of the ships into which it was pumped if it met the other tests of cargo if there were no other because you fergie's the fuel to the size as i just found found that the purpose of those vessels went far beyond that in my marriage purpose of those vessels was to hover around the seismic fleet and be prepared to tow them if they lost steerage or or a propulsion but their general purpose was to service that fleet and to supply fuel as and when needed the record shows in particular that the miss lilly did not just go from port fourchon out to a ship and drop off the fuel it dropped off fuel to three different ships over a period of two different ships on three different occasions over a period of sixteen days so just as your land based gas station cannot carry out its particular function without fuel in its tanks so did found found that these vessels these floating gas stations could not perform their function and as service vessels for the seismic fleet only what your best cases because what i think one thing that i'm struggling with the movie other in the resort is that when we read the cases we see but everything in those cases that i really do is with respect to that vessel and not to another vessel so what's your best case for this lean with respect to items that are that are provided to a vessel but for another  have a case pacifically dealing with that scenario i think you have to look at as i believe he says the for these particular function of the supplied bessel in this case the support  degree were time of the th circuit case the fos maritime case which talked about a lien with respect to the containers themselves right and so i get that if you are providing the container itself and writing money for the is that because faucet is there's a lien on the container somehow that implies there is not a lien on the contents of the container and that we believe is a non sequitur you have to look at whether the contents of the container are being supplied to enable the supply vessel to carry out its particular function now with just with a cargo ship generally yes containers why wouldn't the principle that you're arguing for mean  time cargo is delivered to a vessel to take to another vessel alina tach as to the carrying vessel with respect to the cargo well the main reasons are twofold st of all i don't believe that that is provided to the vessel ok and secondly it is very unlikely that it is provided to divest all on the order of the owner or an authorized agent were i but let's take a hypothetical then where the cargo is provided to the vessel because the owner of the supply vessel is the same as the destination bustle and it's on the order of the owner of those two busses so that removes your distinctions well then we have we bring up the question of is the supplier relying on the credit of the vessel when he knows that the vessel is nearby that the goods supplied are mere cargo internet case he would have a bill of lading he would know what the destination was he would know that that destination  not i guess it could be an offshore russell but there are those distinctions and finally there's a possibility that cargo is simply too disconnected from the vessel itself and we have necessary and in both of those cases it was cause of the attenuated relationship between the objects supplied and the vessel and i think that would probably cover the ordinary cargo situation so in summary we think that the key to this case is judge found finding that the vessels served more than a transport function they serve a general service function that included parading as floating gas stations that is providing general services and the record showed that those services included the ferrying of personnel back and forth data tapes groceries equipment machine parts fuel and that those vessels were at least in the case of the st to burn petrol in your own mess resolution specifically configured for that purpose in the case of the mis lowly retrofit if you will for that purpose so we think that the evidence supports judge filings finding that the particular function of the ships was broader than just transporting  respect to the miss lilly's is there a fact finding that the amount of fuel delivered to the vessel the miss lily was probably this wrong sufficient for the delivery to the destination seismographs fact finding on that and i'm what i'm reason i'm asking is of course because of the diversion there was not there were some stipulated facts in the pretrial order and though i think it may have been in the pretrial order mr diaz can correct me if i'm wrong that the miss willy had on board sufficient fuel for its own needs now let me if i may explain to you why i believe that's immaterial in the ordinary case a fuel ship being provided with fuel for its own propulsion the test for a necessary does not include whether the vehicle already has on board sufficient fuel to reach its destination that would be an  unworkable task you pull up to my dock and i say before i can deliver fuel to you i need to know how much is in your tanks and where you're going how much fuel it's going to take you to get where you're going and if you've already got enough fuel on board to reach your next port the support of us well but let me talk about the state of martin's knowledge of that scenario martin didn't know that these were support vessels for the seismic fleet they did know that in at times they were ferrying fuel to the seismic tests but the evidence from martin's perspective which shows fallon was entitle to credit was that they did not know as to any fuel delivery whether that fuel was going to be consumed by the vessel or whether it was going to be transported and if so to which seismic best and was the source of the principle is the knowledge of the into t providing that is determine there is no case that says that in so many words but there are cases that speak to equities for example says it is the present apparent want of the bus ride i was about to ask you about that doesn't does that not cut against your argument that i want of the vessel and not the expectations of the one it's provided we have it has to be a necessary for these vessels we can see that the mere fact it is going to be transported and eventually delivered to some other vessel does not necessarily preclude its being necessary of this vessel you have to apply the general test looking at the particular function of these vessels and just as the liquor is going to be consumed by the passengers or the linens are going to be used by the passengers and that does not disqualify those goods and services from being necessaries if they're necessary to  the function of the particular vessel here we believe these seismic vessels were the customers if you will of the support vessels just as the passengers or what you what have been my favorite cases one involving fumigation of passengers baggage and that was held to be unnecessary what case is that oh we did not cited in our brief i'm sorry fumigation fumigation of passenger baggage and the theory was if i'm going to have a passenger ship i can't have it crawling with berman so in order for me to carry out my particular function i have to fumigate the passenger's baggage in that that's unnecessary and so it seems like to me that the basic analogy you're saying you're drawing is that if me bunker we need fuel o w bunker goes in gets too close gives them to see g g and c g says pick back up there was evidence to that effect there was also evidence from the same witnesses witness that it was different that it was a standing order c g o w bunker pic the company with the lowest price the district court was decided was empowered to resolve that factual dispute and he resolved it in our favor the testimony and exhibits that he quoted supported the notion that on a case by case basis c g g selected the provider of the fuel that falls squarely within the court's general contractor test and will cover it here unless the court has questions but we also argue in the brief that in the alternative it was supported under the middleman test where you bunker was acting as c d s age now on the pre judgment interest give us your your spiel why didn't take effect thirty days from date of purchase since that was what the contract provided well the answer is and just the broad discretion of the district court well we are entitled to be compensated for the loss of use of the funds corresponding to the fuel not necessarily for the loss of use of the funds corresponding to  bunker's failure to pay its invoice we surrendered the fuel on day zero even though w bunker wasn't obligated to pay us until day thirty dollars and in fact never paid us have been without the use of that fuel from daisy would you agree to that you agreed you not going to get paid to thirty days we agreed with o w bunker that they could pay us after thirty days but we didn't have any such agreement with c g g and the standard is loss of use of funds and as it happened we lost will be very brief and take most of those organs in the reverse order on the pre judgment interest while a minor issue i do believe that by virtue of the invoices that martin energy issued for the sale of its own bunkers that the thirty days defines when the last use of the funds began martin has never contended that they themselves if not sold it to a bunker or to see g g or another party would literally used to fuel burn the fuel themselves they would sell it to another party and sell it pursuant to the terms of their sales contract which applies regardless of who the end of the is and those funds become due and owing within thirty days secondly on the passengers aboard a vessel who are consuming alcohol who are using the linens who are the recipients of all of the extensions of necessaries they are all on board the vessel to which t attaches and it is a stretch of the imagination to define these very large seismic vessels as being somehow a can to a customer on the support us and in fact the court the supr piedmont says you cannot extend maritime liens by analogy and not only is that an analogy clearly but it is a stretch of the imagination applying an analogy these are separate vessel these are seismic vessels that are consuming the fuel for propulsion one of those seismic vessels which was seized in france and for which c g g paid for the fuel issue here and that that distinction and i think it is an absolutely critical distinction on which vessel actually consume the fuel for which it is necessary has to be answered and it's not a stretch of the necessaries definition here bunker's have always considered to be necessaries but the question is whether whether it is unnecessary for the for the vessel that is subject to seizure and they were not necessary for the propulsion and consumption by the that was very similar not a legal conclusion that was similar but a factual one where supply vessels are going from the port and taking food fuel that the th circuit addressed and taking it out to the falcon drill rig and the th circuit found that the provisioning in that and the use of the supply vessels to transport those goods was a necessary because otherwise those that fuel that food that water that drilling fluid would never get out to the falcon drilling what the court didn't address because it wasn't before them at the time but it is quite clear from the decision i believe that the fuel and the water and the food that was aboard that those supply vessels that went to the falcon drilling rig  necessary for the drilling rig it was a jack up and as a traditional vessel you know under longstanding precedent of this court draw a distinction there distinguish you know there's some force to your argument well these people on the bus and you got t believe that advertising is a bit of a stretch but it's a bit of a stretch for that vessel for that vessel and its passengers being aborted not for another vessel for which those passengers are destined or for for which that vessel may be carrying supplies to another destination i think that i don't need to overcome that hurdle because it is a bit of a stretch under maritime law because the advertising is for the vessel that was subject to seizure and about another image just now and sort of pressed which is these ships wouldn't even exist if they were carrying fuel no cargo vessel would no cargo vessel could operate in a profit situation but that doesn't mean it doesn't have the necessaries and order to function at a profit so let's take the circumstance of an articulated barge that applies the mississippi river it has its own fuel its own cable and it has its tanks where it picks up refine products at various refineries along the mississippi river sometimes it picks up a number six low sulphur fuel that it itself burns and takes it somewhere else is it capable of that particular function does it have its own fuel its own tanks its own personnel its own food its own water in order to accomplish it before the cargo is ever taken on board absolutely but maritime lanes are not extended for the fulfillment of a voyage it is