PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

TRITON MARINE FUELS LTD., S.A., 

Plaintiff-Appellant,

and

BRIDGE OIL, LTD.,

Plaintiff,

and

CRESCENT TOWING AND SALVAGE

COMPANY, INC.; COOPER/T. SMITH

MOORING; CANTON PORT SERVICES  No. 07-1908

LLC; ISS MARINE SERVICES, INC.,

d/b/a Inchcape Shipping Services;

BUNKER HOLDINGS, LTD.,

Intervenors/Plaintiffs,

v.

M/V PACIFIC CHUKOTKA, apparel,

freights, etc., IMO No. 8800224,

Defendant-Appellee,

and 
EMERALD REEFER LINES, LTD.; 

GREEN PACIFIC A/S; EMERALD

REEFER LINES, LLC; INTERTRANSPORT

CO., LLC; INTERTRANSPORT, LTD.,

Defendants, 

and

THE MASTER OF THE M/V PACIFIC

CHUKOTKA,

Garnishee. 

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, District Judge.

(1:06-cv-03346-JFM)

Argued: May 12, 2009

Decided: July 29, 2009

Before SHEDD, Circuit Judge, Joseph F. ANDERSON, Jr.,

United States District Judge for the District of

South Carolina, sitting by designation, and

Martin K. REIDINGER, United States District Judge for the

Western District of North Carolina, sitting by designation.

Reversed and remanded with instructions by published opinion. Judge Reidinger wrote the opinion, in which Judge Shedd

and Judge Anderson joined.

COUNSEL

Geoffrey S. Tobias, OBER, KALER, GRIMES & SHRIVER,

PC, Baltimore, Maryland, for Appellant. David W. Skeen,

2 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
WRIGHT, CONSTABLE & SKEEN, LLP, Baltimore, Maryland, for Appellee.

OPINION

REIDINGER, District Judge:

In this maritime action, Triton Marine Fuels Ltd., S.A.

("Triton"), a Panamanian corporation, alleges that it supplied

the M/V PACIFIC CHUKOTKA ("PACIFIC CHUKOTKA"

or "Vessel") with fuel bunkers in a foreign port but was never

paid. Triton brought an in rem claim against the Vessel in federal district court, asserting a maritime lien under the Federal

Maritime Lien Act, 46 U.S.C.A. § 31342(a) (West 2007)

("FMLA"). Upon a motion for summary judgment filed by the

PACIFIC CHUKOTKA’s owner, Green Pacific A/S ("Green

Pacific"), the district court dismissed Triton’s in rem action

against the Vessel. Triton now appeals, arguing that the district court erred in concluding that a maritime lien did not

arise in favor of Triton under the FMLA. For the reasons that

follow, we reverse the district court’s grant of summary judgment in favor of Green Pacific and remand with instructions

to enter summary judgment in favor of Triton.

I.

The material facts are not in dispute. On December 30,

2005, Green Pacific, a Norwegian company, bareboat chartered1

the PACIFIC CHUKOTKA to Intertransport Company LLC

("Intertransport"), a Russian company. The bareboat charter

provided that Intertransport was to operate and manage the

Vessel in all respects for its own account and to purchase fuel

1Under a bareboat charter, also known as a demise charter, "the shipowner surrenders possession and control of the vessel to the charterer, who

then succeeds to many of the shipowner’s rights and obligations." Black’s

Law Dictionary 250 (8th ed. 2004). 

TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 3
for its own account and at its own expense. The charter further prohibited Intertransport and its agents from incurring

any maritime liens on the Vessel and specifically required the

posting of a notice on the Vessel to the effect that the charterer had no authority to create, incur or permit any such lien.

There is no evidence, however, that any such notice was ever

posted. 

In June 2006, Green Pacific delivered the Vessel to Intertransport, which then sub-chartered the Vessel to Emerald

Reefer Lines, Ltd. ("ERL"), a Cayman Islands corporation

with its principal place of business in Seattle, Washington. At

the time of the subject transaction, the PACIFIC CHUKOTKA was registered provisionally under the laws of Malta

but thereafter sailed under a Russian flag.

The PACIFIC CHUKOTKA was among a number of vessels owned by Green Pacific which delivered cargos of seafood to various destinations, including the United States. In its

capacity as a sub-charterer, ERL operated the vessels and had

the option to purchase them at a later time.

On August 2, 2006, an employee of Ocean Transportation

Services LLC, ERL’s agent in Seattle, sought a supply of fuel

bunkers for the PACIFIC CHUKOTKA to be delivered in

Odessa, Ukraine. The request was sent to Triton Marine Fuels

Canada Inc. ("Triton Canada") a Canadian corporation in

Quebec, Canada, which serves as an agent for Triton. Triton

Canada responded that same day, confirming ERL’s request

for delivery of fuel bunkers by Triton to the Vessel in Odessa

between August 3 and August 8, 2006 ("Bunker Confirmation"). The Bunker Confirmation identifies ERL as the buyer

acting "[o]n behalf of the M/V ‘Pacific Chukotka’ and jointly

and severally her Master, Owners, Managing Owners/Operators, Managers, Disponent Owners, Charterers, and

Agents." (J.A. 030). The Bunker Confirmation also contains

a choice-of-law provision, which states: "This agreement shall

be governed and construed in all particulars by the laws of the

4 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
United States of America, and the parties hereby agree to the

jurisdiction of the United States District Courts." (J.A. 032).

On August 5, 2006, the bunkers were delivered to the

PACIFIC CHUKOTKA in Odessa. That same day, Triton

submitted an invoice to ERL in Seattle requesting payment of

$260,400.00 by November 2, 2006, by telegraphic transfer

through a New York bank to Triton’s account in London.

ERL never paid for the bunkers and is now insolvent. 

On December 15, 2006, Triton filed this in rem action

against the PACIFIC CHUKOTKA in the United States District Court for the District of Maryland, seeking to enforce a

maritime lien under United States law. Thereafter, the Vessel

was arrested while discharging cargo in the port of Baltimore.

In January 2007, Green Pacific posted security to obtain the

Vessel’s release.

Green Pacific moved for summary judgment on Triton’s in

rem claim. Triton, in turn, filed a cross-motion for summary

judgment. The district court, assuming the application of

United States law, concluded that no maritime lien arose as a

result of the bunkers transaction because "the FMLA is not to

be applied extraterritorially to confer a maritime lien upon the

plaintiff." (J.A. 089). Accordingly, the district court granted

Green Pacific’s motion for summary judgment, denied Triton’s motion, and dismissed Triton’s in rem action against the

Vessel. This appeal followed.

II.

We review the district court’s grant of summary judgment

de novo, applying the same standards as those applied by the

district court. Catawba Indian Tribe of S.C. v. City of Rock

Hill, 501 F.3d 368, 370-71 (4th Cir. 2007). Summary judgment is proper "if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genTRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 5
uine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

III.

This appeal requires the Court to address two principal

issues. First, the Court must determine whether the choice-oflaw provision in the Bunker Confirmation is enforceable as it

applies to Triton’s in rem action against the Vessel. Second,

if the choice-of-law provision is enforceable, and United

States law therefore applies, the Court must determine

whether Triton is entitled to a maritime lien under United

States law.

For the following reasons, we conclude that the choice-oflaw provision in the Bunker Confirmation should be enforced

with respect to Triton’s in rem claim against the Vessel. We

further conclude that Triton is entitled to a maritime lien as

a matter of law.

A.

In determining the enforceability of the choice-of-law provision in the contract, we look to principles of federal maritime law. See generally M/S Bremen v. Zapata Off-Shore Co.,

407 U.S. 1 (1972); Richards v. Lloyd’s of London, 135 F.3d

1289, 1292-93 (9th Cir. 1998) (en banc); but see Trans-Tec

Asia v. M/V HARMONY CONTAINER, 518 F.3d 1120, 1124

(9th Cir.) (applying traditional choice-of-law principles to

determine which country’s law determines the validity of

choice-of-law provision in contract), cert. denied, 129 S. Ct.

628 (2008). "In 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)). Where the parties have

specified in their contract which law should apply to their

6 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
transaction, however, "admiralty courts will generally give

effect to that choice." Hawkspere Shipping Co. v. Intamex,

S.A., 330 F.3d 225, 233 (4th Cir. 2003) (quoting Chan, 123

F.3d at 1297). It is well established under federal maritime

law that absent a compelling reason of public policy, a freely

negotiated choice-of-law clause in a maritime contract should

be enforced. See Bremen, 407 U.S. at 12-13 ("There are compelling reasons why a freely negotiated private international

agreement, unaffected by fraud, undue influence, or overweening bargaining power, such as that involved here, should

be given full effect."); Lauritzen, 345 U.S. at 588-89 (1953)

("Except as forbidden by some public policy, the tendency of

the law is to apply in contract matters the law which the parties intended to apply."); Bominflot, Inc. v. M/V HENRICH S,

465 F.3d 144, 148 (4th Cir. 2006) ("Because no ‘other law’

is specified on the face of the contract, and public policy does

not counsel against it, we will respect the parties’ intentions

and apply English law."). 

The parties do not appear to dispute that United States maritime law governs whether the choice-of-law provision is

enforceable. Green Pacific, however, argues three reasons as

to why the choice-of-law provision is unenforceable in this

case: first, that Green Pacific was not a party to the contract

and thus did not assent to such choice of law; second, that it

would be fundamentally unfair to adversely affect Green

Pacific’s rights in its property (the Vessel) based upon a

choice-of-law provision to which it did not agree; and third,

that the choice-of-law provision selecting United States law is

an indirect attempt to do what cannot be done directly, to wit:

create a maritime lien by contract.

1.

Green Pacific first argues that the choice-of-law provision

in the Bunker Confirmation cannot bind Green Pacific or its

property without its knowledge or consent. Green Pacific’s

argument, however, ignores the fact that this case involves an

TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 7
in rem action asserting a maritime lien against the Vessel,

rather than an in personam claim against Green Pacific as the

Vessel’s owner. As such, the relevant inquiry is not whether

the parties to the supply contract had authority to bind the

Vessel owner, but whether the parties had the authority to

bind the Vessel. In the case of a maritime lien, the vessel itself

is viewed as the obligor, regardless of whether the vessel’s

owner is also obligated. See Amstar Corp. v. S/S ALEXANDROS T., 664 F.2d 904, 908-09 (4th Cir. 1981); see also

Black’s Law Dictionary 943 (8th ed. 2004) ("[The maritime

lien] arises by operation of law and exists as a claim upon the

property, secret and invisible.") (quoting Griffith Price, The

Law of Maritime Liens 1 (1940)) (emphasis added). 

As the sub-charterer of the Vessel, ERL had the presumptive authority to bind the Vessel in this case. It is a fundamental tenet of maritime law that "[c]harterers and their agents are

presumed to have authority to bind the vessel by the ordering

of necessaries2." Trans-Tec, 518 F.3d at 1127-28. If it were

not so, charterers could not stray far from a ship’s owner for

fear of being stranded by their inability to secure fuel, repairs

or other necessaries. ERL’s presumptive authority was not

diminished by the existence of a "no lien" clause in Green

Pacific’s charter, as there is nothing in the record to suggest

that Triton had actual knowledge of that provision. See id. at

1129. Accordingly, we conclude that ERL had the authority

to bind the Vessel to the provisions of the Bunker Confirmation, even without Green Pacific’s knowledge or consent. 

2.

In arguing that enforcement of the choice-of-law clause

would adversely affect its property rights, Green Pacific cites

2

"Necessaries" is defined as including "repairs, supplies, towage, and

the use of a dry dock or marine railway." 46 U.S.C.A. § 31301(4) (West

2007). Fuel bunkers are considered necessaries within the meaning of the

FMLA. See Bominflot, 465 F.3d at 147. 

8 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
to cases wherein courts have refused to enforce a maritime

choice-of-law provision on the grounds that the law chosen by

the parties would operate to affect adversely the rights of an

entity which was not a party to the agreement. See, e.g., Rainbow Line, Inc. v. M/V Tequila, 480 F.2d 1024 (2d Cir. 1973);

Redcliffe Americas Ltd. v. M/V Tyson Lykes, 806 F. Supp. 69,

71 (D.S.C. 1992) (citing Rainbow Line), reversed on other

grounds, 996 F.2d 47 (4th Cir. 1993).

There is a split of authority among the circuits as to this

issue, with the Second Circuit’s position in Rainbow Line

being at variance with the position of the Fifth Circuit as

expressed in Liverpool & London S.S. Protection & Indemnity

Association v. QUEEN OF LEMAN MV, 296 F.3d 350 (5th

Cir. 2002), and the Ninth Circuit as recently expressed in

Trans-Tec Asia v. M/V HARMONY CONTAINER, 518 F.3d

1120 (9th Cir.), cert. denied, 129 S. Ct. 628 (2008). The facts

of Trans-Tec are strikingly similar to the instant case. In

Trans-Tec, a foreign supplier entered into a contract with a

charterer of a foreign-flagged vessel for the provision of fuel

bunkers in a South Korean port. Id. at 1122. The contract called for the application of United States law to the transaction.

After the charterer failed to pay for the fuel, the supplier

brought an in rem action in district court against the vessel,

seeking to assert a maritime lien under United States law. Id.

at 1123. The supplier also asserted an in personam claim for

breach of contract against the vessel owner. The district court

concluded that the choice-of-law provision was incorporated

as a term of the contract, but that United States law did not

provide for maritime liens to foreign suppliers servicing

foreign-flagged ships in foreign ports. Id. On appeal, the vessel owner urged the Court not to enforce the choice-of-law

provision, arguing that the transaction was "too foreign" for

United States law to apply. Id. at 1126. The Ninth Circuit

rejected the owner’s argument, noting that this approach

would "ignore[ ] 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." Id.

TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 9
In so holding, the Court relied upon the Fifth Circuit’s decision in QUEEN OF LEMAN. In that case, the Fifth Circuit

upheld a maritime lien asserted by an English insurer against

a vessel for unpaid insurance premiums. Although the insurance contract provided that it was to be governed by English

law, the contract also provided that the insurer could "enforce

its right of lien in any jurisdiction in accordance with local

law in such jurisdiction." 296 F.3d at 353. The Fifth Circuit

concluded that the insurer was entitled to seek a maritime lien

under the FMLA by bringing suit in the Eastern District of

Louisiana, declaring "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. The Ninth Circuit agreed with the Fifth Circuit’s reasoning, stating as follows:

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 [vessel] sailed into a United States port,

results in no fundamental unfairness.

Trans-Tec, 518 F.3d at 1126-27.

We find the reasoning of Trans-Tec and QUEEN OF

LEMAN to be more persuasive than that of Rainbow Line. In

Rainbow Line, the Second Circuit refused to apply the law as

chosen by the contracting parties after engaging in only a cursory analysis and without any reference to the Supreme

Court’s seminal decision in Bremen, which had been handed

down only a year prior. The Ninth Circuit’s opinion in Trans10 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
Tec and the Fifth Circuit’s opinion in QUEEN OF LEMAN,

on the other hand, are not only well-reasoned, but are consistent with the holdings of the Supreme Court in Bremen and

Lauritzen, as well as of this Court, to the effect that absent

compelling reasons of public policy, a choice-of-law provision in a maritime contract should be enforced. See Bremen,

407 U.S. at 12-13; Lauritzen, 345 U.S. at 588-89; Bominflot,

465 F.3d at 148; Hawkspere, 330 F.3d at 233.3

Applying the reasoning of Trans-Tec and QUEEN OF

LEMAN to the present case, we note that the parties agreed to

have their transaction governed by the laws of the United

States, and the Vessel sailed into a United States port. Application of United States law under these circumstances would

not result in any fundamental unfairness to Green Pacific.

Indeed, Green Pacific is not subject to any more prejudice

than it would have been had the sub-charterer elected to

receive necessaries while in a United States port, whereby a

maritime lien unquestionably would have arisen by operation

of United States law.4 Nor would enforcement of this provision create "unnecessary uncertainty" in maritime dealings, as

predicted by the court below. (J.A. 089). To the contrary, as

the Ninth Circuit has noted, "recognition of freely negotiated

contract terms encourages predictability and certainty in the

realm of international maritime transactions." Trans-Tec, 518

F.3d at 1131.

3Additionally, it should be noted that the adversely affected third party

in Rainbow Line was a mortgagee to the vessel’s subsequent owner and

thus was "an entity far removed from the original parties to the charter."

Trans-Tec, 518 F.3d at 1127. Conversely, the third party affected by the

maritime lien in the present case is the ship owner itself, a party that has

a direct contractual relationship with the charterer. For these reasons,

Rainbow Line is also distinguishable on its facts. 

4Additionally, it should be noted that Green Pacific could have taken

any number of steps, including requiring the charterer to post a bond,

demanding a letter of credit or even possibly procuring some sort of insurance, in order to protect its interest in the Vessel from the effects of a maritime lien, but no such actions were apparently taken in this case. 

TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 11
3.

Green Pacific next contends that the choice-of-law provision is unenforceable because under federal maritime law, a

supplier and charterer cannot create a maritime lien by contract. Green Pacific argues that by contractually choosing

United States law, ERL and Triton attempted to do indirectly

what they could not do directly, that is, create a maritime lien.

As this Court has noted, "maritime liens are stricti juris and

cannot be created by agreement between the parties; instead,

they arise by operation of law, often depending on the nature

and object of the contract." Bominflot, 465 F.3d at 146; see

also Redcliffe Americas Ltd. v. M/V Tyson Lykes, 996 F.2d 47,

50 (4th Cir. 1993) (noting that a "maritime lien is a secret one,

arising by operation of law"). By selecting United States law

to govern their transaction, Triton and ERL quite likely contemplated the possibility of a maritime lien arising under

United States law. The inclusion of this choice-of-law provision, however, did not "create[ ] by agreement" any such lien;

the maritime lien would still have to arise by operation of law.

Whether in fact such a lien arose in this case is a separate

issue and one which will be addressed next in our analysis.

B.

Having determined that the choice-of-law provision in the

Bunker Confirmation is enforceable with respect to Triton’s

in rem claim, we now address whether a maritime lien was

created in favor of Triton under United States law.

"As with any question of statutory interpretation, our analysis begins with the plain language of the statute." Jimenez v.

Quarterman, 129 S. Ct. 681, 685 (2009). When analyzing the

meaning of a statute, we must first "determine whether the

language at issue has a plain and unambiguous meaning."

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). Whether

the statutory language is plain and unambiguous "is deter12 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
mined by reference to the language itself, the specific context

in which that language is used, and the broader context of the

statute as a whole." Id. at 341. If the language is plain and

"the intent of Congress is clear and unambiguously expressed

by the statutory language at issue, that would be the end of

our analysis." Zuni Public School Dist. No. 89 v. Department

of Educ., 550 U.S. 81, 93-94 (2007). "It is well established

that ‘when the statute’s language is plain, the sole function of

the courts—at least where the disposition required by the text

is not absurd—is to enforce it according to its terms.’" Lamie

v. U.S. Trustee, 540 U.S. 526, 534 (2004) (quoting Hartford

Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U.S.

1, 6 (2000)).

The FMLA provides, in pertinent part, as follows:

(a) [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.A. § 31342(a) (West 2007).

By its plain language, the FMLA affords a maritime lien to

"a person providing necessaries to a vessel." Id. (emphasis

added). The FMLA does not limit the availability of maritime

liens to American suppliers any more than it limits liens to

American vessels, nor does it require that the provision of

necessaries occur within an American port. As the Court

noted in Trans-Tec:

TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 13
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. 

518 F.3d at 1130. 

Although it is unnecessary to look beyond the plain language of the statute, we note that this interpretation of the

statutory language is consistent with the original purposes of

the FMLA. Prior to 1910, a maritime lien arose under United

States law when necessaries were provided to a vessel in a

port of a foreign country or state, but no such lien arose if the

necessaries were supplied in a port of the vessel’s home state,

unless a lien was authorized by local state law. See The Roanoke, 189 U.S. 185, 193-94 (1903); The Gen. Smith, 17 U.S.

(4 Wheat.) 438, 443 (1819). To address this anomaly, Congress enacted the FMLA. Act of June 23, 1910, ch. 373 § 1,

36 Stat. 604. As the Supreme Court later explained, the purpose of the FMLA was three-fold:

First, to do away with the artificial distinction by

which a maritime lien was given for supplies furnished to a vessel in a port of a foreign country or

state, but denied where the supplies were furnished

in the home port or state. Second, to do away with

the doctrine that, when the owner of a vessel contracts in person for necessaries or is present in the

port when they are ordered, it is presumed that the

materialman did not intend to rely upon the credit of

the vessel, and that hence, no lien arises. Third, to

substitute a single federal statute for the state statutes

in so far as they confer liens for repairs, supplies and

other necessaries.

14 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
Piedmont & Georges Creek Coal Co. v. Seaboard Fisheries

Co., 254 U.S. 1, 11 (1920) (citations omitted). Clearly, even

before the enactment of the FMLA, a maritime lien attached

under federal maritime law upon the provision of necessaries

in a foreign port. The FMLA merely expanded that application to the provision of necessaries in ports of the United

States. Despite numerous recodifications,5 the fundamental

purposes underlying the FMLA have remained unchanged.

The FMLA provides a single federal statute for the determination of maritime liens, and by providing this uniform scheme,

the statute confers domestic suppliers of necessaries with the

same lien rights as previously enjoyed only by foreign suppliers under the common law. 

In concluding that the FMLA protects only American, not

foreign, suppliers, the district court relied on Trinidad

Foundry and Fabricating, Ltd. v. M/V K.A.S. Camilla, 966

F.2d 613 (11th Cir. 1992); Tramp Oil and Marine, Ltd. v. M/V

"Mermaid I", 805 F.2d 42 (1st Cir. 1986); and Trans-Tec Asia

v. M/V HARMONY CONTAINER, 435 F.Supp.2d 1015 (C.D.

Cal. 2005). In each of these cases, the FMLA was found to

be inapplicable because the services or supplies at issue were

rendered by foreign companies in foreign ports. None of the

cases are binding on this Court, nor do we find any of these

cases to be persuasive. These cases ignore the fact that federal

maritime law extended a maritime lien for the provision of

necessaries in foreign ports even before the enactment of the

FMLA, and that the FMLA was intended to provide this rem5

In 1920, the FMLA was recodified as part of the Ship Mortgage Act

of 1920, previously codified at 46 U.S.C.A. §§ 971-75. The substance of

the FMLA remained virtually unchanged until 1971, when Congress

enacted legislation essentially to void "no lien" clauses in charters, as long

as the supplier did not have actual knowledge of such clause. See H.R.

Rep. No. 92-340 (1971), reprinted in 1971 U.S.C.C.A.N. 1363, 1365-66.

In 1988, the FMLA was recodified as part of the Commercial Instruments

and Maritime Liens Act, 46 U.S.C. §§ 31301-31343 (West 2007). This

recodification did not affect any substantive changes to the FMLA. H.R.

Rep. No. 100-918 (1988), reprinted in 1988 U.S.C.C.A.N. 6104, 6141. 

TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 15
edy for American suppliers as well. Furthermore, as previously noted, the Trans-Tec decision cited by the district court

has been reversed by the Ninth Circuit Court of Appeals as to

this issue, and as such, any reliance thereon is misplaced. Furthermore, a close examination of the Trinidad and Tramp Oil

decisions reveals that the pronouncements by these courts that

the FMLA does not apply to foreign suppliers in foreign ports

were merely dicta. In Trinidad, the Eleventh Circuit enforced

a choice-of-law clause calling for the application of English

law and therefore concluded that the FMLA did not apply to

the transaction. 966 F.2d at 615, 617. In Tramp Oil, the First

Circuit held that a British fuel broker, which had no direct

relation to the vessel itself, was not entitled to a "suppliers’

lien" under the FMLA, as it was not a "supplier." 805 F.2d at

46. Additionally, Tramp Oil relies on a misreading of the

FMLA’s legislative history. See id. (citing H.R. Rep. No. 92-

340 (1971), reprinted in 1971 U.S.C.C.A.N. 1363, 1365)

(stating that enactment of amendment would "be of great

assistance to American materialmen in collecting amounts

owed on necessaries") (emphasis added). This "passing reference" to the protection of American suppliers, however,

"hardly overrides the unambiguous language of the statute."

Trans-Tec, 518 F.3d at 1130. 

In rejecting Triton’s maritime lien claim, the district court

expressed concern regarding the extraterritorial application of

the FMLA, finding that there was a lack of material ties

between the transaction and the United States. This case presents no problems of extraterritoriality, however, because

there are a significant number of ties between the United

States and the transaction at issue. ERL has its principal place

of business in the United States and conducted its negotiations

for the bunkers transaction there. Additionally, the fuel procured from Triton enabled the Vessel to travel to the United

States and to deliver its cargos of seafood to a United States

port. Finally, and perhaps most significantly, the parties chose

United States law to govern their transaction. The parties’

agreement to apply United States law to their transaction,

16 TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA
when considered along with the contacts between the transaction and the United States, "put[s] to rest any fears that an

American court is unilaterally imposing the FMLA on other

nations." Id. at 1132.

IV.

For the foregoing reasons, we conclude that the choice-oflaw provision in the Bunker Confirmation should be enforced

and that United States law is therefore applicable to Triton’s

in rem claim against the Vessel. We further conclude that as

a matter of law, a maritime lien arose in favor of Triton under

the FMLA. There being no genuine issue of any material fact,

and having concluded that Triton is entitled to a judgment as

a matter of law, we conclude that the district court erred in

granting summary judgment to Green Pacific and denying

summary judgment to Triton. Accordingly, we reverse the

judgment of the district court and remand with instructions to

enter summary judgment in favor of Triton. See United States

v. St. Louis Univ., 336 F.3d 294, 304 (4th Cir. 2003) (court

of appeals may direct entry of judgment in favor of the appellant where cross-motions for summary judgment have been

filed).

REVERSED AND

REMANDED WITH INSTRUCTIONS

TRITON MARINE FUELS v. M/V PACIFIC CHUKOTKA 17