*

Honorable Henry Woods, Senior U.S. District Judge for the

Eastern District of Arkansas, sitting by designation.

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________

No. 96-5278 _______________

D. C. Docket No. 95-7147-CV-WJZ

INBESA AMERICA, INC., a Texas Corporation,

Plaintiff-Appellee,

versus

M/V ANGLIA, a 1977 313-foot general

cargo ship, Lloyds Reg. No. 7601724,

her engines, tackle, cargo, 

appurtenances, etc., in rem,

Defendant-Appellant.

______________________________

Appeal from the United States District Court

for the Southern District of Florida

______________________________

(February 2, 1998)

Before ANDERSON and BIRCH, Circuit Judges, and WOODS*

, Senior

District Judge.
2

BIRCH, Circuit Judge:

In this appeal, we determine whether a contract for various

shipping-related services comes within the federal admiralty

jurisdiction. In granting summary judgment for appellee Inbesa

America, Inc. (“Inbesa”), the district court held that a contract

between Inbesa and the charterer of in rem appellant M/V Anglia

was wholly maritime, thereby bringing all disputes arising under the

contract within the federal admiralty jurisdiction. The Anglia,

however, contends that the contract is not subject to admiralty

jurisdiction because the contract covers a variety of non-maritime

services. We REVERSE and REMAND for further proceedings.

I. BACKGROUND

Inbesa operates a terminal shipping facility in the Port of

Houston, Texas. As part of its business, Inbesa provides shippers

with both docking and cargo-handling services. Although Inbesa’s
3

own employees perform most of Inbesa’s shoreside services, Inbesa

subcontracts all stevedoring to outside companies.

In April 1994, Inbesa entered a “Stevedoring and Terminal

Services Contract” (“the contract”) with Genesis Container Line

(“Genesis”). Under the contract, Inbesa agreed to perform a variety

of services for Genesis’s liner service, including cargo handling,

dockage, and stevedoring. Inbesa then subcontracted its

stevedoring responsibilities to Gulf Stream Maritime, Inc. (“Gulf

Stream”).

In November 1994, the claimant/owner of the Anglia, Reederei

MS Anglia GmBH & Co. KG (“Reederei”), and Genesis entered into

a time charter allowing Genesis to use the Anglia for its liner service.

Thereafter, the Anglia received terminal services from Inbesa from

July through November 1995 under the existing Inbesa-Genesis

contract. Under the contract, Inbesa billed Genesis for six itemized

categories of services with regard to the Anglia: $ 6,708.56 for

dockage; $ 115,688 for stevedoring; $ 6,708.56 for unloading of
1

To avoid arrest of the Anglia, Reederei stipulated with Inbesa to substitute security

for Inbesa’s asserted lien. 

4

break bulk (i.e., un-containerized) cargo from trucks; $ 14,807.50

for stuffing and stripping of break bulk cargo into and out of

containers; $ 5,265.68 for securing cargo within containers; and

$ 28,062.36 for moving cargo through Inbesa’s wharf.

When Genesis failed to pay its bills, Inbesa filed a verified

complaint in rem against the Anglia to foreclose on purported

maritime liens for its services. The Anglia, however, argued that the

district court lacked admiralty jurisdiction because the contract

involved significant non-maritime services.1

 On the parties’ crossmotions for summary judgment, the district court awarded final

judgment to Inbesa against the Anglia for $ 177,389.62 plus

prejudgment interest. The Anglia now appeals.

II. DISCUSSION

Before assessing the validity of Inbesa’s asserted lien, we must

first establish whether we have admiralty jurisdiction over the
2

In this sense, the federal admiralty jurisdiction is coterminus with the right of providers of maritime services to

5

contract from which the lien is purported to arise. See, e.g.,

Ambassador Factors v. RMS, 105 F.3d 1397, 1398-99 (11th Cir.

1997). In order for a contract to fall within the federal admiralty

jurisdiction, it must be wholly maritime in nature, or its non-maritime

elements must be either insignificant or separable without prejudice

to either party. See E.S. Binnings, Inc. v. M/V Saudi Riyadh, 815

F.2d 660, 665 (11th Cir. 1987); 14 Charles Alan Wright et al.,

Federal Practice and Procedure § 3675 (Suppl. 1997) (collecting

cases). To qualify as maritime, moreover, the elements of a contract

must “pertain directly to and be necessary for commerce or

navigation upon navigable waters. . . . The test we apply in deciding

whether the subject matter of a contract is necessary to the

operation, navigation, or management of a ship is a test of

reasonableness, not of absolute necessity.” Ambassador Factors,

105 F.3d at 1399 (quoting Nehring v. Steamship M/V Point Vail, 901

F.2d 1044, 1048 (11th Cir. 1990) (internal quotation omitted).2
maritime liens. See Bradford Marine, Inc. v. M/V Sea Falcon , 64

F.3d 585, 589 (11th Cir. 1995) (“The lien and the proceeding in rem

are . . . correlative--where one exists, the other can be taken,

and not otherwise.” (quoting The Rock Island Bridge, 73 U.S. (6

Wall.) 213, 215, 18 L. Ed. 753 (1867))). Under the Maritime and

Commercial Instruments and Liens Act, “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; [and] (2) may bring a civil action in rem to enforce the

lien . . . .” 46 U.S.C. § 31342(a)(1) & (2) (emphasis added). The

statutory definition of “necessaries,” however, is non-exclusive

and, therefore, not helpful in this particular case. See 46 U.S.C.

§ 31301(4) (“‘necessaries’ includes repairs, supplies, towage, and

the use of a dry dock or marine railway”); Bradford Marine, 64 F.3d

at 589 (statutory definition non-exclusive). 

6

Applying this standard, the Anglia argues that a significant portion of

the services provided by Inbesa under the contract were non-

“necessary,” while Inbesa maintains that its contract services were

wholly maritime. We review the district court’s jurisdictional analysis

de novo. See Sea Vessel, Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir.

1994).

As stated previously, Inbesa asserts a maritime lien on the

Anglia for six itemized categories of services: (1) dockage, (2)

stevedoring, (3) unloading, (4) stuffing and stripping, (5) securing,

and (6) wharfage. Of these claimed services, two, dockage and

stevedoring, are clearly maritime. See Steven F. Friedell, 1
7

Benedict on Admiralty § 213, at 14-21 (7th ed. 1997) (“During the

furnishing, supplying, loading, unloading and repairing of a vessel,

it is necessary that she should lie at wharf, dock or pier . . . . The

pecuniary charge to which vessels are liable for such use of a dock

or wharf is called . . . dockage and is a subject of admiralty

jurisdiction . . . .” (footnotes omitted)) (collecting cases); id. § 215, at

14-25 (“To enable the vessel safely to transport her cargo, it is of the

first importance that the cargo be well stowed . . . . The business of

stowing ships and of breaking out cargo at the port of delivery has

fallen into the hands of . . . stevedores. Their services are maritime.”

(internal footnote omitted)) (collecting cases).

The remaining categories of services provided by Inbesa under

the contract, however, are non-maritime cargo-handling. Despite

Inbesa’s protestations, “it has long been the rule that contracts

involving cargo are maritime only to the extent the cargo is on a ship

or being loaded on or off a ship.” Luvi Trucking, Inc. v. Sea-Land

Serv., Inc., 650 F.2d 371, 373 (1st Cir. 1981) (citing The Moses
3

Inbesa’s citations to Pittson Stevedoring Corp. v.

Dellaventura, 544 F.2d 35, 53 (2d Cir. 1976), aff’d Northeast

Marine Terminal Co., Inc. v. Caputo, 432 U.S. 249, 97 S. Ct. 2348,

53 L. Ed. 2d 320 (1977), are inapposite. In Pittson, the Second

Circuit “liberally” interpreted the “remedial” Longshoreman and

Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 et seq, to cover

longshoremen handling cargo along a pier, thereby providing parity

between longshoremen off-loading cargo containers and longshoremen

stripping such containers. See id. at 51-53. In contrast, Inbesa

seeks in the instant case to assert a lien under the Maritime and

Commercial Instruments and Liens Act, 46 U.S.C. § 31342. Maritime

liens are “governed by the principle ‘stricti juris and will not be

extended by construction, analogy or inference.’” Bradford Marine,

64 F.3d at 589 (quoting Piedmont & George’s Creek Coal Co. V.

Seabord Fisheries Co., 254 U.S. 1, 12, 41 S. Ct. 1, 4, 65 L. Ed. 97

(1920)).

8

Taylor, 71 U.S. (4 Wall.) 411, 18 L. Ed. 397 (1866)).3 Inbesa’s

stripping, stuffing, securing, and unloading of cargo into and out of

containers and trucks was not directly related to the loading or

unloading of a maritime vessel. Cf. Bermuda Express, N.V. v. M/V

Litsa, 872 F.2d 554, 563-64 (3rd Cir. 1989) (movement of cargo

chassis along pier “not directly related to loading or unloading the

vessel”); South Carolina State Ports Auth. v. M/V Tyson Lykes, 837

F. Supp. 1357, 1365 (D.S.C. 1993), aff’d, 67 F.3d 59 (4th Cir. 1995)

(cargo container services not maritime); Green Light Transp., Inc. v.

Ocean Express Lines, Inc., No. 93-1686-CIV, (S.D. Fla. 1994)

(positioning truck under stevedore’s crane not maritime). But see
4

In addition to finding Ceres unpersuasive, we are uncertain

whether the case remains good law within the Fourth Circuit. After

the district court in Ceres issued its opinion, the Fourth Circuit

affirmed Tyson Lykes, which had found shoreside, cargo container

services to be non-maritime. See Tyson Lykes, 837 F. Supp. at

1365, aff’d, 67 F.3d 59. The Fourth Circuit, however, did not

discuss the Tyson Lykes district court’s conclusion that such

services were not maritime.

9

Ceres Marine Terminals, Inc. v. M/V Harmen Oldendorff, 913 F.

Supp. 919, 927 (D. Md. 1995) (holding container stuffing and

stripping to be maritime).4

 Although such services by Inbesa were

no doubt important for Genesis’s business, they were not

“necessary” for the Anglia’s operation. Indeed, all of Inbesa’s cargohandling services took place on land without regard to whether the

Anglia was in port; Inbesa could have unloaded, stuffed, and

secured cargo from trucks into containers before the Anglia arrived,

and then stripped cargo from containers into warehouses or onto

trucks after the Anglia departed. Although we recognize that

circumstances may sometimes arise in which movement of cargo a

short distance away from a ship may be necessary to make room for

additional off-loading, Inbesa has made no such claim of stevedoring

necessity in this case. The fact that it was convenient, as a logistical
10

matter, for Genesis to have Inbesa fill and empty its cargo

containers at Inbesa’s port facilities is not enough to make Inbesa’s

shoreside, cargo-handling services maritime. Cf. Luvi Trucking, 650

F.2d at 373 (“Whether a contract action falls within admiralty

jurisdiction depends upon the subject matter of the contract rather

than the place where the contract . . . is to be performed”). We see

no reason to blur the line between stevedoring and shoreside cargohandling that has long been a useful guide for the district courts in

determining the scope of their admiralty jurisdiction.

For similar reasons, Inbesa’s “wharfage” services, as

idiosyncratically defined by the contract, are also non-maritime.

Normally, the term “wharfage” is used synonymously with “dockage.”

See 1 Benedict § 213, at 14-21. As such, “wharfage” is a maritime

service. See id. Inbesa’s “wharfage” fees, however, reflect charges

for the movement of Genesis’s cargo through Inbesa’s wharf, not

dockage. See R2-33 at 16 (Geiger Depo.) (“Wharfage is a charge

assessed on every ton of cargo that goes through a wharf.”). In fact,
11

Inbesa not only charged Genesis separately for “dockage,” as the

district court noted below, see R3-96 at 5-6, but also listed

“wharfage” under the contract’s heading for terminal cargo-handling

services, see R2-33 Exh. 1 at 2. Inbesa cannot bring shoreside

cargo-handling services within the admiralty jurisdiction simply by relabelling them as “wharfage.”

In sum, we conclude that a significant portion of Inbesa’s

obligations under the contract are non-maritime. Even so, it may be

possible for a federal court to exercise admiralty jurisdiction over the

maritime dockage and stevedoring parts of the contract if they are

separable without prejudice to either party. See Binnings, 815 F.2d

at 665. Unfortunately, neither Inbesa nor the Anglia has addressed

the separability or prejudice issues in their briefs before this court,

and the district court did not have reason, given its ruling that the

contract was wholly maritime, to examine such issues in its order

granting summary judgment. Although the itemized nature of

Inbesa’s invoices and claims suggests to us that the maritime and
5

As we are remanding the case to the district court, we

decline to reach at this time the additional issues raised by the

parties.

12

non-maritime elements of the contract may be separable, we believe

that the prudent course is to remand the case to the district court so

that it may examine the separability and prejudice issues as a court

of the first instance.5

 On remand, the district court should determine,

first, whether Inbesa’s maritime claims under the contract are

capable of separate adjudication and, second, whether separate

adjudication of Inbesa’s claims concerning dockage and stevedoring

would be prejudicial to Inbesa’s or the Anglia’s claims or defenses

regarding the non-maritime contract services.

III. Conclusion

A significant portion of the contract at issue concerns nonmaritime shoreside services. Therefore, we conclude that the

district court erred in exercising admiralty jurisdiction over Inbesa’s

claim for a lien against the Anglia to cover all of Inbesa’s contract
13

services to the vessel. Accordingly, we REVERSE and REMAND

the case to the district court for a determination of whether the

remaining contract services are separable without prejudice as

required for the district court to exercise admiralty jurisdiction.

Should the district court conclude that admiralty jurisdiction does lie

with regard to Inbesa’s claims for maritime dockage and stevedoring

services, it may proceed to determine whether summary judgment

is again appropriate.