has limited applicability to this to this pending appeal and in fact all of the authority that's been coming down from district courts and circuit courts around the country have limited to no applicability to the pending appeal because of one very important case which is still the binding precedent of this circuit that can lucky decision well let's talk about yes yeah that's a real outlier isn't it i don't i don't agree i don't agree on it and the reason why is because the court set forth in that case two very distinct manners in which a physical supplier such as bunker holdings could establish its entitlement to li the first was through the origination of the order of the necessaries in this case bunkers from someone authorized to do so all the decisions from the second circuit the barclays decision the eleventh circuit the various district court decisions have focused on something that's not actually in dispute i that in the ninth circuit there was an agreement there was an admission that bulk for to originate of the order in that case  fuel was notified and i'm quoting that it had been nominated by the owner of the can like you to supply the vessel there you have a direct delegation of authority nomination you don't have that here you just have the general contractor rule do you not you know your honor of two things i would say about that one is the fact that that was a tell ex received from someone that was in a s did reference that it was an authorization here there was also an authorization there's a shit was that the authorization came from the actual owner of the vessel it wasn't an additional step removed from a charter yang ming through its managing company yang ming transport authorized o w bunkers to arrange for the supply of bunkers to the yank why am success but that isn't that the general contractor issue that i mentioned a few moments ago i think the distinction your honor is that in the general contractor line of cases you have a general contractor that's hired to do a certain service or necessaries to the vessel and then those general contractor they they were asked to get some fuel they weren't told who to get it from what what it cost etc etc i was up to them they had a series of transactions that they entered into and if you're like four or five additional people involved including of course your client but the order came from them it didn't come from the owner of the vessel did it in this case your honor there were only three parties there was yang ming the owner of the vessel row w b far east and then our client bunker holdings ok i what i'm there for into there were you had to get some people in russia you got some other people in the interim and so i everybody i realize the main parties are three but yeah the reality is there was nobody from yang meaning that said cases because of the way that bunker supplies are handled in a way that's the reason why we have the general contractor rule you don't get lean ins if you're a general contractor unless you have an express direction and express authorization from the owner of the vessel and i don't see that here what am i missing your honor i think that what is key to this case is the fact that there were in the record established in the record at the district court there are several references to how this supply was actually going to take place the first of which is yang mings supplier who are in the represent author representative who ordered the bunkers from the supply team and general affairs of yang transport mr allen wing directed oh to be far east to arrange for the bunkers far east sent through a series of correspondence and actual confirmation which said that the bunkers would be supplied in the port of in the port in russia by an identified supplier and that's that at the record at one fifteen  d one twenty four through one twenty five to be supplied by trans bunker and identified on that document that i assessed would be the local port agent transponder is a trade name on the correspondence between the far east and bunker holdings the e mail addresses are b h at trans bunkered dot com well i don't want to take like my colleagues time here if they want to w they say it's an outlier unusual facts and they all fall back on the general contractor rule why why isn't the reasoning of the second and the eleventh circuit one that we should drop that went on t criticism but the fact that this circuit does not have the same has not taken the same approach as the second and the eleventh and even the fifth circuit in the late trial stevedoring case with respect to an explicit requirement for the owner of the vessel or the person with the authorized with the ability to bind the vessel to specifically select the  if you want to call middleman or the actual physical supplier here there's another element to kin lucky which is still good law in this circuit and was not a bridge or sor that these bunkers were supplied on the order of the owner the master has that implied authority and here in the record we had several items which demonstrate an acknowledgement and notice to the vessel to the vessels agent its master and chief engineer including but not limited to the actual bunkered delivery receipts which had the terms and conditions incorporated into them we also had a series of documents which are required under russian port authority documents identifying that the bunkers were being provided on order of the owner and were signed for by the master are you arguing that implied authority that you are arguing that old bilby had implied  then engaged the ultimate physical supply marine fuels in tampa to provide bunkers to the vessel so that is one part of it and understood what judge smith as articulated with the fact that the other courts have come down and said well can lucky is that's all fine and while but we're not following that there's a second aspect to ken lucky which the other circuits have not addressed they've not addressed it in any substance they haven't rejected or said that it's an outlier and that is the fact that the master of the can lock the master of the can lock in that case had the authority to bind the vessel here the master of the y m success and the chief engineer who signed for all the documentation saying that they were going to receive the exact bunkers that were ordered by the owner of the vessel it was a certain quantity that the the owner directed it was a certain type of fuel that the owner directed the only thing that they didn't specifically direct was who was going to provide that but they had notice that it was coming from the transponder group and they had an express an implied notice that it was certainly not coming from the far east which was located in singapore when this vessel was going to one of three ports in russia and was ultimately supplied in russia this is a new argument from my perspective are you saying that the officers on the shelf when loaded the bunker fuel in russia authorize the fuel portland right well port of portland does make a distinction but it was a factual distinction that wasn't present in ken lucky or here in that case there was there was actually a factual identification by the ninth circuit that there was no direct contact between the officers and the port of portland for the purposes of establishing a potential lien i mean in that case it was the port of portland that decided to take that risk  to allow the vessel to remain there without investigating whether or not the payments that it was receiving should be applied to the particular vessel there is a lot of distinctions between that case did you argue this before the district court them talking about the fact that the opposite or master the master on the ship by signing for the fuel basically circumvented all of the general contractors and everybody had just the same as he went to a gas station and you know filled up his his ship that what you're saying not quite your honor because i think you actually need the factual predicated of the fact that there was an order that originated from the owner  the master would have that authority in a situation where there was no contract whatsoever if it was something to save the crew or the vessel or the cargo that could happen here they go hand in hand i would like to reserve and i have one question are you saying no to sequels authorities that basically would you say i'm sorry your honor didn't notice equals authority no i'm not saying that notice equals authority but that the but that the notice is enough under the facts of this case to establish that everyone involved in the transaction knew that these bunkers were being supplied by bunker holdings through its agent in russia you want t so we'll hear from ms holland good morning good morning may it please the court i'm appearing on behalf of the motor vessel why am success and the client claimant yang liberia court pursuant to rule eight and i'm delighted that bunker holdings began with the second circuit opinion in the world of maritime law we are often referring to cases from ten twenty thirty even one hundred years ago those are citations and it is very rare in my world that we actually have a case on point that is issue the day before oral argument clearly we disagree that this case is not applicable here in fact  it is right on point we had cited to the district court opinion in our briefing two years ago what the second circuit did was to affirm the district court's decision tonight a maritime lien claim for from the supplier seps because it could not satisfy this third requirement of the maritime lien act the court has seen the the opinion which we submitted yesterday in the case that bar judge settle correctly stated and apply the rule in the ninth circuit and what he said this is that eight was simply put to obtain a maritime lien against the y m that would you like to give us your best reading as to why i can like you should have should not control in this case or have no bearing as far as the outcome certainly your honor as members courts since ken lucky having knowledge the ken lucky case turned on the facts of the case it turned on the admission by the vessel interests that the lien claimant marine fuel had sold the fuel  and we know under the specific statement of the maritime lien act under specific terms i should say that a sub charter is one of the parties presumed to be able to bind the vessel there's no need to then look to agency and that's what the court said that's why this court said this court did not throw out the agency requirement this court said it was unnecessary and pull up the language actually the court said it was a necessary for marine fuel to establish agency because the apologies had already admitted that the fuel and bunkers were sold to bulk first the sub charter or so in that case the admission by the vessel entrance established a th element of the maritime lien act and there was no reason to then have to look to agency but to read ken lucky the way that bunker holdings would read it it would read the agency requirement right out of the act and if that's what this court intended to do it would not have used the agency language that it used in the port of portland case the following year and in fact in ten lucky itself it refers there's a statement we look to principles of agency to interpret the acts reference to agents and bunker holdings cannot fit under any of the presumed categories here the presumed the parties are presumed so they have to be able to establish agency or as a subcontractor as your honor has noted noted there's also the the additional exception that we have seen in the cases which is if in fact  specifically nominated if the vessel owner says you know w bunker go out and hire this particular fuel supplier and that there is no evidence as i understand it in the record that express ly engaged bunker holdings to provide fuel for th that the vessel owner did not express right resurrect road that's that's correct your honor as far as the vessel owner was concerned it really didn't care where the fuel comes from and in fact what  did was to ask bunker bunker to provide fuel in russian ports for a several month period of time that was the contract that was entered and then when the specific ship was was re is any reference anywhere to bunker holdings is there any is there anything in the record that suggests that the requirement of the vessel owner to proposal or a request for the specific requirement was not even limited to this vessel but rather it was for a period of time in russian ports for any of its vessels would  make a difference in this particular case even if we didn't have the general agency rule well it does your honor i mean certainly there is subsequent to that a specific request for fuel for this vessel ok in a particular port on a particular date ok out and a particular price is agreed upon but there is i would disagree that there is any knowledge and in fact the undisputed facts show that yang meaning had no knowledge whatsoever of bunker holdings involvement in this transaction and in fact none of the documentation refers to bunker holdings none of the documentation that was provided to young man and transponder by the way is that is not a fact it's in the record in fact bunker holdings attempted at the last moment to to insert that fact into a brief in the lower court in judge settle struck it from the record so there is no evidence of any kind of connection or agency there  and in in fact there was no reference to bunker holdings throughout all of the facts that are undisputed in the district court with respect to the conversation that you had regarding the receipt of the of the fuel by the chief engineer or master by the vessel itself this particular issue is that particular decision which is it two thirty nine f supp third six seventy four and this is at page six eighty nine she she addresses this claim that is made by many of the physical suppliers in those cases and what she says is this does not establish a direct relationship between the suppliers and the vessels all of these interactions receiving the fuel actually having the hoes come up to the ship and sign in a bunker certificate or bank receipt excuse me concern the performance of existing obligations of you and physical suppliers none of these communications purport to create a new  contract i might also add that bunker holdings finds itself in in a difficult position here because it does not even sit in the in the position of one of these physical suppliers th party and the barge that brought the fuel to our to the why and success was baltic traders it was not bunker holdings bunghole bunker holdings was an intermediary subcontractor here so unlike all of the physical suppliers in the other cases that are unsuccessfully trying to establish a lien based on the argument the bunker holdings made here this morning bunker holdings can't even claim to be that party so it's all putting aside for a moment the clearlake shipping case the only way that the argument from your perspective the argument that opposing counsel has made about the actual receipt of the fuel would be if the russian company that actually supplied the fuel made the claim that is a fair statement because biker holding yourself didn't actually deliver the fuel well as i pointed out it's there are they are even further removed in fact those  suppliers the baltic trader making is that that does not satisfy the maritime lien act either you know dollar wise i recognize that the cost issue is not the biggest issue in the case but would you mind speaking to that for a bit certainly  we're talking about the award of costs to my client certainly the district court had broad discretion to award costs and the local civil long haul just to help me with the authority question right whether the district court had authority to award these types of costs from a statutory standpoint right i recognize that the local rule purports to grant the authority but i'm talking about that  the authority from the supreme court that the western just of washington had to to create this local rule that was later in time than one nine hundred twenty in in fact if inconsistent would apply here in and in fact by specifically stating that the court shall here the court shall up the taxing costs the following rules shall be observed and that the specific provision we applied here reasonable premiums paid on undertakings or bonds or security stipulations shall be allowed and we know under the rules and under the statute the federal statute on cos that the award of costs is favored and is there is why discretion and latitude particularly enamel to cases well ok maybe admiralty cases are a special situation but just as a general matter what you said earlier i don't think is correct the supreme court in our court of made very clear that unless costs are listed in one of the six or so subcategories in one nine hundred twenty they may not be awarded under all fifty four day period that that in other words the cost  is there a special rule no but there is wide latitude in it is what that the cost we are talking about here is is this is the practice in maritime lean ship arrests cases well known that letters of undertaking are posted to allow for the release of the ship and if we're going to say unless we're going to invalidate the local rule and say that the court can't follow its stand and in fact it is reasonable because what happened here is that the in order to in fact it benefitted bunker holdings that it didn't have to pay custodial costs for a year and a half to get this ship released so we have a merit lists or rest of the ship it's tied up for a year b c d for a week between christmas and new years which already has cost millions of dollars to the to the vessel owner  when it's released it is this follows normal procedures in the industry to post a letter of undertaking a from a international p n i club which in fact contrary to what was argued by bunker holdings in fact is considered very good security and you would be more worried about a ship that could not obtain such such as security to get the ship release this is the cost and it was a reasonable cost because it was actually less than the premium no one's disputing that it or at least i don't think that's dispute ok but so are you saying that it is a routine practice in district courts across the country that when a ship owner takes out any kind of a security to get the vessel release that that is a cost of the cost for the premiums or the letter of undertaking that that is awarded to us as a cost i can't speak to that your honor because i don't know about the other local civil rules i only know that here in the western district washington that is part of our local civil rule and we can in fact receive the as a cost the security just to be just to be sure following up on that watford question had no letter of  stowed into the for the for the birthing for everything and then what they try to do is recover that at the end of the case should they win right but otherwise but otherwise the arresting party in this case by her holdings bear all of the costs related which would be i gather potentially many times greater than the cost of the letter of understanding the letter of undertaking was just what were we claimed was the interest that we incurred by virtue of having to post the collateral to get that undertaking from the p and i club which was approximately fifty five thousand dollars for the period of time that the that the case was pending before the order was issued one last question if you think that a plaintiff has recover the cost of having to take out the letter of undertaking as well that's why it seems to me that would be the right way to try to recover this cost not maybe through fifty four day it i akin to begin a whole new lawsuit and two in terms of what it takes to prove wrongful arrest that's a different calculation if you will then then what are the allowable costs here when we were brought in had to defend this arrest when in fact a maritime lien did not exist and as an casa in any case you know we don't get back our  fees we don't get the costs along the way but these are the few things that we are allowed by the court in this case by the local civil following up on this in an action for wrongful arrest which i gather is what it's called could you recover your attorney fees and what are denominated costs here as well as other related expenses of the ship being tied up at the dock if you did and it been a take of longer but is that possible the case time just briefly address the point we were just talking about with respect to cost and as we relied upon our brief this application of this local rule is in directly contrary to twenty  only be allowed where same have been furnished by reason of the express requirement of law rule or a court order none of which were present here now the argument has been made after the fact that while this benefited the plaintiffs because it allowed the vessel to be released  immediately you didn't occur additional custodial costs obeidi the way it would be less than an actual bond premium would have been but that's all after the fact and something that didn't actually require this all unionized it is the one who insisted upon the ships being arrested right yes your honor so it just seems to me at that point it's you know you know with that carries with it they're not going to want the ship to stay there for a year and they're going to get it released by posting some form of security and the court is going to either approve or not approve that but  that's what happened here right your honor but one thing i would say to just distinguish and differentiate is that the only type of substitute security in the district western district of washington or in fact around the country that a court can order a plaintiff to accept is either substitute cash into the registry of the court or a proof surety bond here the plaintiff took the lesser form of security in the form of an alloy you as an attempt to work with the right but at a cost you forced it on the other side that you didn't have to do that you wanted to protect the the ability to recover if you were to prevail you foresee that costs and there's other side and you lost there's nothing shocking about requiring your client to pay that provided that there is some statutory authorization for them so i just think your argument that front is hopeless maybe you have an argument on that this is just not an authorized cost but the the argument that somehow this is different approve the letter of undertaking your honor and that's one of the aspects of how these cases there's generally a quid pro quo for the release of the rest and something else to be substituted in its place so the court did approve it at the time that the yellow you was sought agreed to inform and posted under the order of the court there was absolutely no indication or knowledge by our client that opponents were taking out a loan or paying interest or anything else that they subsequently sought by nature of this cost application none of which is actually authorized by statute on the federal rules of civil procedure did you oppose the court's order on the basis that it was not permitted by nine thank you both very helpful as you might imagine we don't have a lot of admiralty cases but they're interesting so thank you very much the case just argued is submit