FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRANS-TEC ASIA, 

Plaintiff-Appellant,

v. No. 06-55355

M/V HARMONY CONTAINER, its D.C. No.

freights engines apparel and  CV-04-01160-SVW

tackle; SPLENDID SHIPPING

SENDIRIAN BERHAD; MASTER OF THE

M/V HARMONY CONTAINER,

Defendants-Appellees. 

TRANS-TEC ASIA, 

Plaintiff-Appellee,

v.

M/V HARMONY CONTAINER, its

No. 06-55397 freights engines apparel and

tackle; SPLENDID SHIPPING D.C. No.  SENDIRIAN BERHAD, CV-04-01160-SVW

Defendants-Appellants, OPINION

and

MASTER OF THE M/V HARMONY

CONTAINER.

Defendant. 

Appeals from the United States District Court

for the Central District of California

Stephen V. Wilson, District Judge, Presiding

Argued and Submitted

October 16, 2007—Pasadena, California

2253
Filed March 11, 2008

Before: Alex Kozinski, Chief Judge, A. Wallace Tashima

and M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown

2254 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
COUNSEL

J. Stephen Simms, Simms Showers LLP, Baltimore, Maryland, for the appellant.

Gerald L. Gorman, Bradley M. Rose, Kaye Rose & Partners,

LLP, San Diego, California, for the appellee. 

OPINION

McKEOWN, Circuit Judge: 

Like many maritime cases, this case involves a foreignflagged vessel that sailed in and out of United States ports.

And, like many maritime cases, because of the geographic

scope of the high seas,1 United States law may, in some cases,

be applicable to transactions beyond our country’s territorial

waters and borders. And, like many maritime cases, the suit

here arose against the vessel while it was docked in a United

States port. The question we consider is whether a foreign

supplier, by supplying fuel to a foreign-flagged vessel in a

foreign port under an agreement that United States law

applied to the transaction, may obtain a maritime lien under

the Federal Maritime Lien Act, 46 U.S.C. § 31301 et seq.

1The “high seas” is generally defined as “the seas or oceans beyond the

jurisdiction of any country.” Black’s Law Dictionary 1376 (8th ed. 2004).

TRANS-TEC ASIA v. M/V HARMONY CONTAINER 2257
(“FMLA”), on the vessel docked in an American port. The

district court granted summary judgment in favor of the vessel

and its owner and against the fuel provider, holding that the

FMLA did not permit a foreign necessaries provider to obtain

a maritime lien under the circumstances. Based on the plain

language of the statute, coupled with an enforceable choice of

law clause, we conclude that a maritime lien arose under the

FMLA, and we reverse.

BACKGROUND

Splendid Shipping Sendirian Berhad (“Splendid”)2 is a

Malaysian corporation that owns the M/V Harmony Container (“Harmony”), a Malaysian-flagged vessel. In June

2000, Splendid entered into a charter-party with Kien Hung

Shipping Company (“Kien Hung”) for a ten-year charter of

the Harmony. Kien Hung, a Taiwanese corporation, operated

the Harmony in a loop from ports in North and South America to ports in Japan, China, and Korea. In particular, the Harmony made regular stops at Long Beach, California, and Manzanillo, Mexico. 

In early February 2003, one of Kien Hung’s managers

sought a price quote for fuel bunkers. The manager contacted

an agent at Yee Foo Marine Industrial Co. Ltd. (“Yee Foo”),

who requested a price quote from Trans-Tec Asia (“TransTec”), a Singaporean entity. An employee for Trans-Tec

faxed a quote to the Yee Foo agent, who forwarded the quote

to Kien Hung. The Kien Hung manager then faxed back an

order to the Yee Foo agent, who forwarded the order to TransTec. In response, Trans-Tec sent a one-page email confirmation (“Bunker Confirmation”) to Yee Foo for the sale of 1150

metric tons of fuel bunkers to be supplied to the Harmony at

a cost of U.S. $251,850. The Yee Foo agent then forwarded

2

In the parties’ briefs, Splendid’s name is listed as “Splendid Shipping

Sendirian Berhad,” though other documents, such as the district court’s

orders, used “Berhard.” 

2258 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
the Bunker Confirmation to Kien Hung, which did not

respond. 

The Bunker Confirmation named “Kien Hung Shipping Co.

Ltd.” and “The Vsl, Her Master and Owners” as “Buyer,” and

Trans-Tec as “Seller.” It provided that “[t]his confirmation

incorporates Seller’s standard terms and conditions dated 3

January 2000. Pls inform us if you require a copy.” Kien

Hung did not request a copy. 

Trans-Tec’s standard terms and conditions are included in

a document entitled “The Trans-Tec Services Group of Companies General Terms and Conditions” (“Terms and Conditions”). The Terms and Conditions state that “the General

Terms shall apply to every sale of marine petroleum products

(‘Products’) entered into between a particular Trans-Tec

Group company as seller (‘Seller’) and any buyer of such

Products (‘Buyer’).” 

The Terms and Conditions also contained an incorporation

and merger clause (“The Confirmation and the General Terms

. . . taken together, shall constitute the full agreement . . . .”),

and, particularly pertinent here, a choice of law clause, which

stated: 

Seller shall be entitled to assert its lien or attachment

in any country where it finds the vessel. Each Transaction shall be governed by the laws of the United

States and the State of Florida, without reference to

any conflict of laws rules. The laws of the United

States shall apply with respect to the existence of a

maritime lien, regardless of the country in which

Seller takes legal action. 

Trans-Tec delivered the bunkers to the Harmony in Busan,

South Korea, in late February 2003. In May 2003, Kien Hung

went bankrupt, and Trans-Tec was left unpaid for the bunkers.

Hamburg Sud, a German company, bought Kien Hung’s operTRANS-TEC ASIA v. M/V HARMONY CONTAINER 2259
ations, took over the Harmony’s charter, and continued sailing

the vessel to Long Beach, California. Trans-Tec threatened to

arrest the Harmony once it arrived at Long Beach, but the vessel’s insurers posted security to avoid taking the ship out of

operation. 

Trans-Tec filed suit in federal court in Los Angeles, asserting a maritime claim in contract and in tort against the Harmony, a maritime claim in contract against Splendid, a claim

for unjust enrichment against Splendid, and maritime attachment and garnishment of the Harmony and its bunkers.3

 The

district court chose to resolve the dispute in stages. Realizing

that the choice of law issue was the foundational building

block, the court first invited the parties to brief only this issue

with respect to Trans-Tec’s claims regarding a maritime lien

and unjust enrichment. The court then decided that, under

United States law, the choice of law provision was not incorporated as a term of the contract, Splendid was not bound as

a party to the contract, and Malaysian law governed the contract. 

In a later order granting partial summary judgment to

Splendid on its unjust enrichment claim, the district court

informed the parties that it would reconsider its prior decision

that United States law determined incorporation of the choice

of law clause. The court ultimately granted summary judgment against Trans-Tec on the grounds that: (1) Malaysian

law, not United States law, governed contract formation; (2)

under Malaysian law, the United States choice of law clause

was incorporated as a term of the contract; and (3) Trans-Tec

could not obtain a maritime lien on the Harmony because

United States law denied maritime liens to foreign necessaries

3Trans-Tec ultimately dropped its tort claim for conversion against the

Harmony. It also made a quasi in rem claim against Splendid for maritime

attachment and garnishment of the Harmony under Supplemental Rule B

for Certain Admiralty and Maritime Claims. That claim was among those

dismissed and is not part of the appeal. 

2260 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
providers servicing foreign-flagged ships in foreign ports.

Trans-Tec now appeals this decision, and Splendid crossappeals on the basis that the district court should not have

applied the United States choice of law provision to the transaction in any respect. 

During the back-and-forth flurry of summary judgment

motions, Trans-Tec filed an affidavit in which it expressed a

need to conduct discovery to establish that Splendid was a

party to the contract and that Splendid had participated in the

bunker contract. The district court construed Trans-Tec’s affidavit as a motion for additional time to conduct discovery

under Federal Rule of Civil Procedure 56(f), denied the

motion, and later denied Trans-Tec’s motion to reconsider its

ruling. 

ANALYSIS

Trans-Tec’s Terms and Conditions included a choice of law

provision that designated United States law as governing the

existence of a maritime lien. That designation is particularly

significant because the United States is one of a handful of

countries that recognizes a maritime lien for the provision of

necessaries.4 46 U.S.C. § 31342; WILLIAM TETLEY, MARITIME

LIENS AND CLAIMS 551 (2d ed. 1998) (“TETLEY”). Splendid’s

first line of defense is that the choice of law clause was not

a part of the contract between Trans-Tec and Kien Hung.

Alternatively, Splendid urges that the maritime lien does not

apply to the provision of necessaries by a foreign provider.

Our resolution of this appeal proceeds in three steps:5 (1) we

4Fewer than thirty countries, among them the United States and France,

recognize such a lien. See TETLEY at 551 (stating that maritime liens arise

only in the United States, France, and those nations that signed on to the

1926 Brussels Convention, which provides a maritime lien for necessaries

under limited circumstances). 

5We review de novo both the district court’s grant of summary judgment and the legal question whether Trans-Tec’s claims give rise to a maritime lien. Myers v. Am. Triumph F/V, 260 F.3d 1067, 1069 (9th Cir.

2001). 

TRANS-TEC ASIA v. M/V HARMONY CONTAINER 2261
determine the governing law with respect to contract formation; (2) applying the controlling law, we next determine

whether the contract incorporates the choice of law provision;

and (3) finally, if the choice of law provision is incorporated

as a term of the contract, we evaluate whether Trans-Tec

acquired a maritime lien for supplying fuel bunkers to the

Harmony. 

I. DETERMINING THE LAW GOVERNING CONTRACT

FORMATION

[1] Before we can determine the validity of the United

States choice of law provision in the contract between TransTec and Kien Hung, we need to figure out which country’s

law controls the issue of contract formation. Because the

availability of a maritime lien under United States law is the

ultimate question, the temptation is to skip directly to United

States law, as urged by Trans-Tec. That approach, however,

“put[s] the barge before the tug.” See DeNicola v. Cunard

Line, Ltd., 642 F.2d 5, 7 n.2 (1st Cir. 1981). Instead, we consider which country’s law governs the incorporation issue as

if there were no choice of law clause. In other words, we cannot rely on the choice of law provision until we have decided,

as a matter of law, that such a provision was a valid contractual term and was legitimately incorporated into the parties’

contract. 

[2] Both Supreme Court and Ninth Circuit law direct our

analysis. We are guided by the principle that “[i]n the absence

of a contractual choice-of-law clause, federal courts sitting in

admiralty apply federal maritime choice-of-law principles

derived from the Supreme Court’s decision in Lauritzen v.

Larsen, 345 U.S. 571 (1953), and its progeny.” Chan v. Soc’y

Expeditions, Inc., 123 F.3d 1287, 1296 (9th Cir. 1997) (citations omitted). 

In Lauritzen, the Supreme Court identified seven factors

“which, alone or in combination, are generally conceded to

2262 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
influence choice of law to govern a tort claim”:6

 (1) the place

of the wrongful act; (2) the law of the flag; (3) the allegiance

of the injured party; (4) the allegiance of the defendant shipowner; (5) the place of contract; (6) the inaccessibility of a

foreign forum; and (7) the law of the forum. 345 U.S. at 583-

92. We have added that courts should weigh and evaluate all

relevant points of contact between the transaction and the sovereign legal systems that are affected by it, and not simply run

through a mechanical analysis of the Lauritzen factors. Tento,

694 F.2d at 1194-95. Accordingly, we also consider factors

that § 188 of the Restatement identifies as relevant where a

contract lacks a choice of law provision, such as the place of

negotiation of the contract, the place of performance and the

place of business of the parties. See RESTATEMENT (SECOND) OF

CONFLICT OF LAWS § 188 (1971); Gulf Trading & Transp. Co.

v. The Vessel Hoegh Shield, 658 F.2d 363, 366-67 (5th Cir.

Unit A Oct. 1981) (discussing § 188 factors where there was

no choice of law clause). 

[3] In weighing all the points of contact implicated by the

transaction, including the factors set out in Lauritzen and the

Restatement, we agree with the district court’s conclusion that

under maritime conflicts of law principles, Malaysian law

governed the contract formation. Splendid’s nationality and

the Harmony’s flag are “substantial contacts” with Malaysia

that point towards Malaysian law “as the most appropriate for

resolving this litigation.” Tento, 694 F.2d at 1196. No sovereign other than Malaysia boasts such substantial contacts.

That the bunkers were supplied in Busan, South Korea, “was

dictated in large part by the fortuity of the ship’s location and

intended route.” Id. at 1195. Deciding which country consti6Although Lauritzen dealt with tort claims under the Jones Act, the “Supreme Court has extended the Lauritzen approach to ‘guide courts in the

application of maritime law generally.’ ” Gulf Trading & Transp. Co. v.

The M/V Tento, 694 F.2d 1191, 1193 (9th Cir. 1982) (quoting Romero v.

Int’l Terminal Operating Co., 358 U.S. 354, 382 (1959) (citations omitted)). 

TRANS-TEC ASIA v. M/V HARMONY CONTAINER 2263
tuted the “place of contract” or the place where negotiation of

the contract occurred is a thorny inquiry, and does not weigh

in favor of applying any one sovereign’s law, as the bunker

contract was formed through a series of emails and facsimiles

sent by Trans-Tec and Kien Hung through Yee Foo, TransTec’s Taiwanese intermediary, at a time when the Harmony

was docked in Hong Kong. To be sure, the Singaporean

nationality of Trans-Tec, the “injured party,” is a relevant

point of contact. However, standing alone, it fails to outweigh

the nature and quality of the Malaysian contacts: the Harmony’s Malaysian flag and Splendid’s Malaysian nationality. 

II. APPLYING MALAYSIAN LAW TO CONTRACT FORMATION

Malaysian law, which relies heavily on English law,7

instructs us to examine the parties’ language and conduct in

determining whether the parties intended to incorporate the

Terms and Conditions into their contract, even though no

copy of that document was exchanged in the flurry of emails

and faxes that preceded the refueling. We conclude that the

clear and specific language of the Bunker Confirmation, coupled with Kien Hung’s acceptance of the fuel bunkers without

protest after receiving the Bunker Confirmation, reflect that

the contract incorporated the Terms and Conditions as a matter of Malaysian law. 

[4] The only relevant Malaysian case makes crystal-clear

that Malaysian courts accord dispositive weight to the “words

and actings” of the parties in deciding whether they intended

to incorporate a clause. Bauer Sdn Bhd v. Daewoo Corp.,

(Malaysian Court of Appeal 1999) 4 MLJ 545, 560. In Bauer,

the Malaysian court held that an arbitration clause from a previous work order was not incorporated into later work orders

in part because there was an absence of “the language that is

7

See TETLEY at 1331 (stating that Malaysian maritime law is primarily

English maritime law). 

2264 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
necessary to reasonably support the finding of an intention to

incorporate.” Id.

[5] In addition, under Malaysian law, “a term may be incorporated not only by words but also by conduct.” Id. at 559.

The court in Bauer found instructive an English case involving the incorporation of disputed terms. Id. (citing British

Crane Hire v. Ipswich Plant Hire Ltd., [1975] Q.B. 303

(Eng.)). Even though one party had not expressed assent to

the terms, “the common understanding which is to be derived

from the conduct of the parties,” i.e., the acceptance of goods

without protesting the subsequently mailed conditions, indicated that those terms were incorporated into the contract.

British Crane, [1975] Q.B. at 311. 

[6] Here, both the contract language and the parties’ conduct support the conclusion that Trans-Tec’s Terms and Conditions were incorporated into the bunker contract. The

documents at issue are the Kien Hung order and the Bunker

Confirmation. In response to Kien Hung’s order, the Bunker

Confirmation email unambiguously stated that “[t]his confirmation incorporates seller’s standard terms and conditions

dated 3 January 2000.” That language “reasonably support[s]

the finding of an intention to incorporate” the Terms and Conditions. Bauer, 4 MLJ at 560. 

[7] Kien Hung’s conduct also demonstrates that the parties

intended to incorporate the Terms and Conditions. See id.

Kien Hung neither objected to, nor requested a copy of, the

Terms and Conditions after receiving the Bunker Confirmation, even though the Bunker Confirmation expressly stated,

“Pls inform us if you require a copy” of the Terms and Conditions. A Kien Hung manager received the Bunker Confirmation one week before Kien Hung accepted delivery of TransTec’s fuel bunkers in Busan, giving Kien Hung sufficient time

to request the Terms and Conditions, reject any or all of them,

or change course entirely. The district court correctly concluded that under Malaysian law, the parties’ language and

TRANS-TEC ASIA v. M/V HARMONY CONTAINER 2265
conduct demonstrated that the Terms and Conditions, including the United States choice of law provision, were incorporated as a term of the bunker contract. 

III. GIVING EFFECT TO THE UNITED STATES CHOICE OF LAW

PROVISION

Having determined that the United States choice of law

provision was a term of the contract, we address Splendid’s

argument that we should not give effect to that provision

because the transaction is “too foreign” to apply United States

law. To take Splendid’s approach would steer us off course

because it ignores both the long-recognized principle of honoring the expectations of the parties to a contract and the

scope of a maritime lien under the FMLA. 

A. RECOGNITION OF THE CHOICE OF LAW PROVISION

[8] Absent a strong showing that it should be set aside, the

parties’ choice of law provision, as part of a “freely negotiated private international agreement, unaffected by fraud,

undue influence, or overweening bargaining power . . . should

be given full effect.” M/S Bremen v. Zapata Off-Shore Co.,

407 U.S. 1, 12-13 (1972). This presumption in favor of

enforcing contract provisions encourages predictability in the

law, particularly in the international arena. See RESTATEMENT

§ 187(2) cmt. e (stating that predictability is best served “by

letting the parties choose the law to govern the validity of the

contract and the rights created thereby”). 

That this transaction involved multiple foreign points of

contact does not dissuade us from recognizing the parties’

agreed-upon law and jurisdiction. In Liverpool & London S.S.

Protection & Indemnity Association v. Queen of Leman MV,

296 F.3d 350 (5th Cir. 2002), the Fifth Circuit upheld a maritime lien asserted by an English insurer against a vessel

whose insurance premiums had gone unpaid. Even though the

insurance contract was governed by English law, the court

2266 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
honored a provision in the contract that the insurer could “enforce its right of lien in any jurisdiction in accordance with

local law in such jurisdiction.” Id. at 353. By bringing suit in

the Eastern District of Louisiana, the insurer was entitled to

seek a maritime lien under the FMLA, as United States law

was the “local law.” The Fifth Circuit declared that “there is

nothing absurd about applying the law of the jurisdiction into

which the ship sails, as the ship’s presence in the jurisdiction

represents a substantial contact.” Id. at 354. 

[9] Queen of Leman thus counsels that where foreign parties have specified that they want United States law to determine the existence of a maritime lien in a transaction

involving multiple foreign points of contact, and the ship has

sailed into the United States, it is reasonable to uphold the

choice of American law. That a maritime lien might exist on

the vessel under United States law, but would not exist under

Malaysian law, was a consequence obviously contemplated

by the contracting parties, and because the Harmony sailed

into a United States port, results in no fundamental unfairness.8

We agree with the Fifth Circuit’s holding in Queen of

Leman, but recognize that it is in tension with the Second Circuit’s view in Rainbow Line, Inc. v. M/V Tequila, 480 F.2d

1024 (2d Cir. 1973). There, the court refused to apply a

United States choice of law clause to decide whether a charterer was entitled to a maritime lien because application of

United States law would have adversely affected the rights of

a third-party creditor. Id. at 1026. Rather than apply the charter’s choice of law clause, the Second Circuit conducted a

Lauritzen analysis to determine which country’s law governed

8Our holding in Tento supports this conclusion. 694 F.2d 1191. There,

in the absence of an express choice of law, we conducted a Lauritzen analysis and held that United States law properly applied, notwithstanding the

“foreignness” of the transaction: the vessel and its owner were Norwegian,

the fuel supplier was Italian, and the fuel was provided in an Italian port.

Id. at 1196. 

TRANS-TEC ASIA v. M/V HARMONY CONTAINER 2267
the existence of a maritime lien. Id. at 1026-27. It is worth

noting that the adversely affected party involved in Rainbow

Line was a third-party lender to a subsequent owner of the

vessel, an entity far removed from the original parties to the

charter. For the reasons previously stated, we prefer the Fifth

Circuit’s rule in Queen of Leman. 

A Canadian court that recently faced a similar choice of

law provision and an array of foreign players applied the parties’ choice of United States law and recognized the existence

of a maritime lien under the FMLA. Kirgan Holding S.A. v.

Ship Panamax Leader, [2002] F.C. 1235 (Can.), reprinted in

2002 A.M.C. 2917. Although Canadian law has no precedential value here, the decision is instructive, particularly in light

of the relatively uncharted waters presented by this appeal.

The court upheld the parties’ chosen law, even though, as

Splendid would put it, all the points of contact involved were

“foreign”: the supplier was Panamanian, the vessel was registered under the flags of Malta and Cyprus, the vessel owner

was Maltese, the charterer was Caribbean, and the provision

of fuel bunkers occurred in Malta. The only contact that the

transaction had with Canada, whose law does not provide for

a maritime lien for the supply of necessaries, was that the vessel was arrested in a Quebec port. The Canadian court concluded that the provision should be respected. Id. We agree

with that conclusion and now turn our focus to the FMLA. 

B. APPLICATION OF THE FMLA

According to United States maritime lien law, “a person

providing necessaries to a vessel on the order of the owner or

a person authorized by the owner . . . has a maritime lien on

the vessel” and “may bring a civil action in rem to enforce the

lien.” 46 U.S.C. § 31342. Splendid’s siren song about the presumption against extraterritorial application of United States

law fails to distract us from reaching the clear-cut conclusion

that the FMLA’s plain language demands: A maritime lien

2268 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
arose in favor of Trans-Tec because it provided necessaries9

to the Harmony on the order of the Harmony’s charterer.

Charterers and their agents are presumed to have authority to

bind the vessel by the ordering of necessaries. Id. § 31341;

see also TETLEY at 602-03; THOMAS J. SCHOENBAUM, ADMIRALTY

AND MARITIME LAW § 9-3 (4th ed. 2004) (“SCHOENBAUM”). As

our decision rests in part on the unique nature of the remedy

sought in this case, we offer a brief primer on maritime liens.

1. BACKGROUND ON MARITIME LIENS IN THE UNITED STATES

[10] A maritime lien is “one of the most striking peculiarities of Admiralty law, constituting a charge upon ships of a

nature unknown alike to common law and equity.” Black’s

Law Dictionary 943 (8th ed. 2004) (quoting GRIFFITH PRICE,

THE LAW OF MARITIME LIENS 1 (1940)). It has been defined as:

“(1) a privileged claim, (2) upon maritime property, (3) for

service done to it or injury caused by it, (4) accruing from the

moment when the claim attaches, (5) travelling with the property unconditionally, (6) enforced by means of an action in

rem.” Id. (quoting Price at 1). The lien gives the creditor the

right to appropriate the vessel, have it sold, and be repaid the

debt from the proceeds of the sale. Equilease, 793 F.2d at

602. 

The maritime lien serves the “dual purpose of keeping

ships moving in commerce while not allowing them to escape

their debts by sailing away.” Id. In other words, a maritime

lien may be considered “a right based upon the legal fiction

that the ship is the wrongdoer—the ship itself caused the loss

and can be called to the bar to make good the loss.” SCHOENBAUM § 9-1 (emphasis added). 

9Fuel bunkers are “necessaries” within the meaning of § 31342, as they

were “useful” to the Harmony and “enable[d] her to perform her particular

function.” See Equilease Corp. v. M/V Sampson, 793 F.2d 598, 603 (5th

Cir. 1986) (en banc); accord Bominflot, Inc. v. The M/V Henrich S, 465

F.3d 144, 147 (4th Cir. 2006); Hoegh Shield, 658 F.2d at 367. 

TRANS-TEC ASIA v. M/V HARMONY CONTAINER 2269
The United States, through common law and statute, has

long recognized and enforced maritime liens. Id. As reflected

in the earliest Supreme Court cases on maritime liens, this

remedy was premised on concern for the vessel. Throughout

the nineteenth century, the Court recognized that maritime

liens could arise for the provision of necessaries in “foreign

ports,” or ports that were not the vessel’s home port, in order

to keep the vessel fit for sail. See, e.g., The St. Jago de Cuba,

22 U.S. (9 Wheat.) 409, 416-18 (1824) (stating that the “consideration that controls every other” is that “[t]he vessel must

get on”); The Gen. Smith, 17 U.S. (4 Wheat.) 438, 443 (1819).

Conferring a lien on the vessel to “material-men” ensured the

continued maintenance of vessels by encouraging suppliers to

provide necessaries in foreign ports. See The J.E. Rumbell,

148 U.S. 1, 9 (1893) (observing that maritime liens for necessaries furnished “to keep a vessel fit for sea” took precedence

over all other claims except seamen’s wages or salvage). 

Before 1910, when the FMLA was first enacted, an odd

distinction existed in the American law of maritime liens: a

maritime lien arose for the provision of necessaries in a port

in a foreign country or foreign state, but no lien arose if necessaries were supplied in the vessel’s home port. The Roanoke, 189 U.S. 185, 193-94 (1903); The Gen. Smith, 17 U.S.

at 443. As a consequence of this anomaly, a lien on a vessel

for the provision of supplies in a port of the vessel’s home

state could arise only if there were state legislation to that

effect. The Gen. Smith, 17 U.S. at 443. The significant variance among the state statutes was of concern to the Supreme

Court. Lucian Y. Ray, Maritime Contract Liens, 47 TUL. L.

REV. 587, 589 (1973). In 1874, Justice Bradley, writing for

the Court, hinted that Congress “might adopt a uniform rule

for the whole country” to govern maritime liens. The Lottawanna, 88 U.S. (21 Wall.) 558, 577 (1874) (Bradley, J.). 

Congress responded in 1910 by passing the FMLA. Act of

June 23, 1910, ch. 373, § 1, 36 Stat. 604. The legislative purpose was three-fold: (1) to overrule the home port doctrine;

2270 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
(2) to nullify the doctrine that, when a vessel’s owner contracted in person for necessaries or was present in the port

when they were ordered, it was presumed that the supplier did

not intend to rely upon the vessel’s credit, such that a lien did

not arise; and (3) to substitute a single federal maritime statute

for the varying state statutes dealing with necessaries. Piedmont & Georges Creek Coal Co. v. Seaboard Fisheries Co.,

254 U.S. 1, 11 (1920); see also Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, 271-72 (1940)

(stating that the FMLA’s purpose was to “simplify and clarify

the rules as to maritime liens as to which there had been much

confusion”). In addition, the FMLA, by favoring suppliers

regardless of where necessaries were provided, was intended

to boost a faltering merchant marine industry. Equilease, 793

F.2d at 602. In effect, the FMLA “was intended to operate in

aid of those who supply necessaries to ships and it correspondingly restricted the rights of the owners of the vessels.”

Dampskibsselskabet, 310 U.S. at 273. 

In 1920, Congress codified the FMLA as part of the Ship

Mortgage Act of 1920, 46 U.S.C. §§ 971-75, but the substance of the lien law was left virtually unchanged until 1971.

TETLEY at 604. Under the original legislation, a vessel owner’s

insertion of a “no lien” clause in the charter-party prohibited

suppliers from obtaining a lien if a provider “knew, or by

exercise of reasonable diligence could have ascertained” that

no lien would be available. Id. (emphasis omitted). Under the

1971 amendments, the “reasonable diligence” standard was

dropped in favor of an “actual knowledge” standard. The legislation thus voids a “no lien” clause, as long as the supplier

did not have knowledge of the clause. H.R. REP. NO. 92-340

(1971), reprinted in 1971 U.S.C.C.A.N. 1363. Therefore,

even though the charter-party between Splendid and Kien

Hung forbade Kien Hung from incurring liens on the Harmony, that fact, standing alone, does not prevent Trans-Tec

from obtaining a maritime lien in this case, as nothing in the

record indicates that Trans-Tec knew of the provision. 

TRANS-TEC ASIA v. M/V HARMONY CONTAINER 2271
In 1988, Congress repealed all previous maritime lien statutes and recodified the prior law on maritime liens as part of

the Commercial Instruments and Maritime Liens Act. Pub. L.

No. 100-710 (1988), 102 Stat. 4735 (codified at 46 U.S.C.

§ 31301 et seq.). Congressional reports indicated that the new

law was not intended to make any substantive changes to the

FMLA, and the lien provisions are still generally referred to

as “the FMLA.” H.R. REP. NO. 100-918 (1988), reprinted in

1988 U.S.C.C.A.N. 6104, 6107, 6141; TETLEY at 587-88. 

2. APPLICATION OF THE FMLA 

[11] The language of the FMLA is clear and unambiguous:

[A] person providing necessaries to a vessel on the

order of the owner or a person authorized by the

owner— 

(1) has a maritime lien on the vessel; 

(2) may bring a civil action in rem to

enforce the lien; and 

(3) is not required to allege or prove in

the action that credit was given to the

vessel. 

46 U.S.C. § 31342. The statute imposes no restriction on the

nationality or other identity of the supplier or the vessel, and

no geographic restriction on the place of provision of the necessaries. Splendid endeavors to shoehorn the FMLA into a

narrower statute than it is by arguing that the FMLA does not

give a maritime lien to a foreign necessaries provider for the

provision of supplies to a foreign vessel in a foreign port.

However, we are not persuaded by Splendid’s constrained and

unsupported view of United States maritime lien law. 

[12] In accord with Supreme Court teachings, see, e.g.,

Leocal v. Ashcroft, 543 U.S. 1, 8 (2004), we begin our analy2272 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
sis with the language of the statute. “[A] person providing

necessaries” means any person, not only an “American person.” The FMLA, by its plain language, is not restricted in

application to United States citizens, American companies, or

companies doing business in the United States. Though Congress may have had American suppliers in mind, the statute,

on its face, recognizes a maritime lien in favor of any person

providing necessaries. 

Although we need not look beyond the plain language of

the statute, we address Splendid’s argument that the House

Report’s mention of “American materialmen” is reason to

deny Trans-Tec a maritime lien. See H. REP. NO. 92-340

(1971), reprinted in 1971 U.S.C.C.A.N. 1363 (stating that

enactment would “be of great assistance to American materialmen in collecting amounts owed on necessaries”). Splendid

fails to point out that the Report did not exclude foreign

“materialmen” from its reach, and the Committee’s reasons

for protecting American suppliers extend to foreign suppliers,

as well: 

Granting the materialman a lien encourages the

prompt furnishing of necessaries to vessels so that

they can be speedily turned around and put to sea.

This is especially significant today when the emphasis on vessel performance is reduced port time and

increased speed. 

Id. Given Congress’s expressed hope that the amended Act

would “encourage[ ] the prompt furnishing of necessaries to

vessels so that they can be turned around and put to sea,” id.,

it would undo Congress’s aim to recognize maritime liens

only in favor of American materialmen. In any event, this

passing reference hardly overrides the unambiguous language

of the statute. 

The statute also states that a maritime lien arises upon the

provision of necessaries to “a vessel.” Again, the statute’s lanTRANS-TEC ASIA v. M/V HARMONY CONTAINER 2273
guage is not limited to American vessels. Though § 31342

mentions only “a vessel,” the “inference to be drawn from the

legislative history is that section 31342 will be interpreted

similarly to former sect. 971,” which stated that the lien

applied to “any vessel, whether foreign or domestic.” TETLEY

at 597. An abundance of case law has recognized a maritime

lien under the FMLA where necessaries have been provided

to a foreign-flagged vessel. See, e.g., Hoegh Shield, 658 F.2d

at 368 (holding that maritime lien arose on Norwegian vessel); Loginter S.A. v. M/V Nobility, 177 F. Supp. 2d 411, 415

(D. Md. 2001) (Maltese vessel); Mobil Sales & Supply Corp.

v. The Vessel Panamax Venus, 1986 A.M.C 420, 423 (C.D.

Cal. 1985) (Liberian vessel). 

Finally, the statute does not discriminate between the provision of necessaries in the vessel’s home port and a foreign

port. As previously noted, Congress expressly jettisoned the

“home port doctrine” with the passage of the FMLA in 1910,

thus allowing maritime liens regardless of whether necessaries were provided in the vessel’s home port or in a foreign

port. See TETLEY at 597. Cases in the wake of the FMLA’s

passage have faithfully recognized maritime liens where necessaries have been provided in foreign ports. See, e.g., Ryan

Walsh, Inc. v. M/V Ocean Trader, 930 F. Supp. 210, 219 (D.

Md. 1996) (oil provided to vessel in Indonesia); Mobil Sales,

1986 A.M.C. at 423 (oil provided to vessel in China and

Japan). In sum, putting together the pieces of this statutory

puzzle makes evident that because Trans-Tec provided necessaries to the Harmony on the order of its charterer, a maritime

lien arose in favor of Trans-Tec. 

Splendid posits that applying the FMLA to a foreign supplier providing necessaries in a foreign locale to a foreign flag

vessel would somehow result in the “extraterritorial” application of United States maritime lien law. Splendid’s argument

obscures several important points, including the nature of

admiralty law and the high seas, the parties’ agreement to

apply United States maritime lien law, and the fact that the

2274 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
Harmony routinely sailed into a United States port and was

subject to in rem jurisdiction in California when the Harmony’s insurers posted a bond to avoid its seizure. 

Nothing in the statute supports Splendid’s argument that

the FMLA does not apply to situations involving a foreign

vessel, a foreign supplier, and provision in a foreign port.

Other courts facing similar scenarios have given the FMLA

the fair reading that its plain language demands, and have

found no reason to narrow it. See, e.g., Queen of Leman, 296

F.3d at 352-53 (stating that if United States law applied, the

FMLA would create a maritime lien for the insurance provided); Kirgan Holding, [2002] F.C. 1235 (holding that a

maritime lien arose under the FMLA for the provision of fuel

bunkers to a foreign-flagged vessel in Malta). 

Hardly any area of law could be viewed as more extraterritorial than admiralty law. It is well settled that the admiralty

jurisdiction of United States courts extends to the high seas:

“The traditional domain of admiralty jurisdiction is, of course,

the sea . . . .” SCHOENBAUM § 3-3. Save for inland navigable

waters, ports, and a few other locations, admiralty jurisdiction

by definition extends beyond United States territorial boundaries. Tethering United States maritime lien law to situations

involving only American-flagged vessels, American suppliers, or American ports would threaten the ability of foreign

vessels to move freely from port to port without the fear of

going without necessaries. See The St. Jago de Cuba, 22 U.S.

at 416 (stating that “the consideration that controls every

other” is that “[t]he vessel must get on”). 

Splendid argues that extension of the FMLA to “completely

foreign transactions” seriously interferes with other nations’

regulation of their commercial affairs because United States

law allows for maritime liens for the provision of necessaries,

and most other nations do not. But recognizing a maritime

lien on the Harmony does not interfere with Malaysian law,

which we applied at the outset to incorporate the United

TRANS-TEC ASIA v. M/V HARMONY CONTAINER 2275
States choice of law provision, or the law of any other nation

implicated in this transaction. This case presents no extraterritorial “problem” of the ilk that has troubled the Supreme

Court because here the parties chose United States law to control their transaction, and the vessel sailed to a United States

port. Cf. F. Hoffman-La Roche Ltd. v. Empagran S.A., 542

U.S. 155 (2004) (holding that foreign vitamin distributors

could not bring a claim under the Foreign Trade Antitrust

Improvements Act for solely foreign injury). Our conclusion

does not curb the sovereignty of any other nation, or another

country’s ability to regulate its maritime affairs. In fact, recognition of freely negotiated contract terms encourages predictability and certainty in the realm of international maritime

transactions.10

Splendid also has forgotten the crucial fact that this transaction was not “completely foreign.” The subject of this in rem

action is the vessel Harmony. Between October 2002 and

March 2003, the Harmony transported $48.9 million in goods

to and from Long Beach, California. That the Harmony was

docked at Long Beach at the time that Trans-Tec filed suit

was not mere happenstance: Long Beach was a regular stop

on the Harmony’s route. These contacts with the United

States, along with the parties’ express agreement to apply

United States maritime lien law, put to rest any fears that an

American court is unilaterally imposing the FMLA on other

nations. 

10Given that approximately thirty nations recognize a maritime lien for

the provision of necessaries, other countries have options, if desired, to

address this circumstance. For example, a country could simply prohibit

contracting parties from choosing United States or foreign maritime lien

law in their contracts. Alternatively, national law could require charterers

to inform suppliers of existing no-lien clauses in the charter-party. And,

in the private arena, ship owners could take steps to give suppliers notice

of the no-lien provisions, thus effecting actual notice of the provisions and

preventing charterers from burdening the ship with maritime liens. See 46

U.S.C. § 31341 (stating that charterers are only presumed to have authority to bind the vessel). 

2276 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
Our reliance on the plain language of the statute is all the

more justified when one considers that the tangled web of

American case law11 that bears on this issue is not particularly

helpful in sorting out the answer. Compare Conti Lines S.A.

v. MV Baroness V, 1992 A.M.C. 681, 683 (M.D. Fla. 1991)

(holding that the “plain language of the statute and the history

of the Federal Maritime Lien Act” allow foreign necessaries

providers to obtain maritime liens) with Swedish Telecom

Radio v. M/V Discovery I, 712 F. Supp. 1542, 1548 (S.D. Fla.

1989) (stating that the FMLA “was not intended to provide

maritime liens for goods and services where . . . they are supplied by foreign companies in foreign ports”) (citations omitted). 

Both the district court and Splendid rely on an Eleventh

Circuit case, Trinidad Foundry & Fabricating, Ltd. v. M/V

K.A.S. Camilla, 966 F.2d 613 (11th Cir. 1992), as the foundation for their conclusion that the FMLA does not apply to this

transaction.12 The most telling aspect of Trinidad is that the

court acknowledged that the FMLA was not even in play:

“§ 31342 is not even applicable to this case because, as we

11We appreciate the straightforward approach of the Canadian federal

court that evaluated a strikingly similar situation in Kirgan Holding,

[2002] F.C. 1235, reprinted in 2006 A.M.C. 812. After first deciding to

enforce the parties’ United States choice of law clause, the court determined that under the FMLA, a maritime lien arose in favor of the necessaries provider, without discussing any “extraterritorial” implications of

doing so. Id. Despite Splendid’s assertion that the case was overruled by

J.P. Morgan Chase Bank v. Mystras Maritime Corp., [2006] F.C. 409,

Kirgan was merely distinguished on its facts. Though the outcomes of the

two cases are difficult if not impossible to reconcile, we are persuaded by

Kirgan. 

12The district court also cited to BENEDICT ON ADMIRALTY, which states

that there is no maritime lien under the FMLA for a supplier of goods and

services to a foreign flag vessel in a foreign port. 2 BENEDICT ON ADMIRALTY § 38, at 3-35 (7th ed. 1997). See also SCHOENBAUM § 9-8. Neither

treatise addresses the circumstances of a contractual choice of FMLA as

controlling law and neither offers any substantive analysis, instead basing

its reasoning on Trinidad. 

TRANS-TEC ASIA v. M/V HARMONY CONTAINER 2277
have already held, English law governs.” Id. at 617. In Trinidad, a Trinidadian corporation made repairs to a Norwegian

vessel whose owners failed to pay. Id. at 614. Despite the contractual designation of English law, which does not recognize

a maritime lien for repairs, the supplier sought a maritime lien

under the FMLA. The court stated that “§ 31342 does not provide for a maritime lien for goods and services supplied by a

foreign plaintiff to foreign flag vessels in foreign ports.” Id.

at 617 (citing Tramp Oil & Marine, Ltd. v. M/V Mermaid I,

805 F.2d 42, 46 (1st Cir. 1986); Swedish Telecom, 712 F.

Supp. at 1545-46). Having already determined that United

States law was not applicable, the court’s commentary—

without any analysis—on § 31342 could hardly be less persuasive. One can argue about what is or is not dictum,13 but

it seems to us that a clearer case than this one cannot be

found. Not only did the court recognize that United States law

did not apply, but it did not even analyze § 31342, the statute

at issue here. 

The two cases cited as authority in Trinidad do not bolster

its stray commentary. The plaintiff in Tramp was an English

fuel broker that hired an American supplier to provide oil to

a vessel. 805 F.2d at 44. Tramp paid the supplier, but Tramp

was never paid, so it sought a maritime lien against the vessel.

The First Circuit stated that under the FMLA, a supplier

would be entitled to a maritime lien for providing fuel to the

vessel. Id. However, because it was the intermediary that was

unpaid, and not the fuel supplier, the FMLA did not apply to

give the broker the “suppliers’ rights to the lien”: “We therefore think it unnecessary to protect American suppliers, and

unfair to the vessel, to extend the availability of a maritime

13See, e.g., United States v. Johnson, 256 F.3d 895, 914-16 (9th Cir.

2001) (en banc) (Kozinski, J., concurring); United States v. Crawley, 837

F.2d 291, 293 (7th Cir. 1988) (Posner, J.) (defining dictum as “not a fully

measured judicial pronouncement . . . not likely to be relied on by readers,

and . . . may not have been part of the decision that resolved the case or

controversy on which the court’s jurisdiction depended (if a federal

court)”). 

2278 TRANS-TEC ASIA v. M/V HARMONY CONTAINER
lien directly to an intermediate broker unknown to the vessel.”

Id. at 44, 46. The location and nationality of the supplier were

not at issue. Instead, the lack of a relationship between the

vessel and the intermediate broker meant that the broker could

not obtain a maritime lien for merely arranging the provision

of fuel to the vessel. Id. at 46 (noting that extending the suppliers’ lien to intermediate brokers “could radically change

the presuppositions of maritime commerce”). Tramp thus

sheds no light here. 

[13] Similarly, the Eleventh Circuit misread Swedish Telecom, the other case cited in Trinidad. As in Trinidad, the

court ultimately decided that Swedish law—not United States

law—governed the transaction. Nonetheless, as in Trinidad,

the court offered the totally irrelevant view that “a foreign

supplier of goods is precluded from acquiring a lien under the

federal Act even if it supplies goods or services in an American port.” Swedish Telecom, 712 F. Supp. at 1546. We are left

with the firm conclusion that Trinidad is a house of cards that

quickly tumbles with even the gentlest examination. Here,

where the contract specified that “the laws of the United

States” were to determine the existence of a maritime lien, our

reliance on the plain language of the United States statute,

rather than a case applying English law, comports with predictable judicial reasoning. 

IV. DISCOVERY DISPUTE

[14] The district court did not abuse its discretion by refusing Trans-Tec’s request under Rule 56(f) for more time to

take discovery. Trans-Tec has not shown that it diligently pursued its previous discovery opportunities, nor that further discovery is likely to produce evidence that would preclude

summary judgment. See Qualls v. Blue Cross of Cal., Inc., 22

F.3d 839, 844 (9th Cir. 1994).

CONCLUSION

We agree with the district court’s conclusions that Malaysian law governs the issue of contract formation, and that

TRANS-TEC ASIA v. M/V HARMONY CONTAINER 2279
under Malaysian law, the United States choice of law provision was incorporated as a term of the bunker sale contract.

We reverse the district court’s holding that no maritime lien

arose under the FMLA, and remand for proceedings in accordance with our decision. 

REVERSED in part, AFFIRMED in part, and

REMANDED. Each party shall bear its own costs on

appeal.

2280 TRANS-TEC ASIA v. M/V HARMONY CONTAINER