PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1189

FLAME S.A.,

Plaintiff - Appellee,

v.

FREIGHT BULK PTE. LTD.,

Defendant - Appellant,

and

INDUSTRIAL CARRIERS, INC.; VISTA SHIPPING, INC.; VIKTOR 

BARANSKIY; GLORY WEALTH SHIPPING PTE LTD.,

Defendants.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Robert G. Doumar, Senior 

District Judge. (2:13-cv-00658-RGD-LRL)

Argued: May 14, 2014 Decided: August 5, 2014

Before WILKINSON, AGEE, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in 

which Judge Wilkinson and Judge Diaz joined. Judge Wilkinson 

wrote a separate concurring opinion. 

ARGUED: Charles Alan Rothfeld, MAYER BROWN, LLP, Washington, 

D.C., for Appellant. William Robert Bennett, III, BLANK ROME 

LLP, New York, New York, for Appellee. ON BRIEF: Carmine R. 
2

Zarlenga, Richard Caldarone, Paul W. Hughes, MAYER BROWN LLP, 

Washington, D.C., for Appellant. Alan M. Weigel, Lauren B. 

Wilgus, Nicholas R. Tambone, BLANK ROME LLP, New York, New York, 

for Appellee.
3

AGEE, Circuit Judge:

Freight Bulk Pte. Ltd. (“Freight Bulk”) appeals from the 

district court’s order denying its motion to vacate a writ of 

maritime attachment previously issued in favor of Flame S.A. 

(“Flame”) under Supplemental Rule B of the Federal Rules of 

Civil Procedure (“Rule B”). Flame filed a verified complaint in 

the Eastern District of Virginia seeking attachment of a

shipping vessel for purposes of satisfying an English judgment, 

the underlying basis of which was a claim for breach of certain 

Forward Freight Swap Agreements (“FFAs”). The district court 

denied Freight Bulk’s motion to vacate after concluding that its 

jurisdiction was determined by reference to federal, rather than 

English, law and that the FFAs are maritime contracts under 

federal law. For the reasons set forth below, we affirm the 

decision of the district court.

I.

In 2008, Flame, an integrated shipping and trading company

organized under the laws of Switzerland and headquartered in 

Lugano, Switzerland, entered into four FFAs with Industrial 

Carriers, Inc. (“ICI”), a corporation organized under the laws 
4

of a foreign country and registered to do business in the state 

of New York.1

FFAs are similar to futures or hedging contracts tied to 

the spread between a specified rate and market shipping prices 

at a future date. To act as a diversification against the 

vagaries of future maritime price fluctuations, shippers like 

Flame may enter into FFAs with another party although any entity 

could be a contracting party even if unrelated to the maritime 

industry. The FFAs in this case identified particular shipping 

routes listed in a specified maritime freight index, the Baltic 

Panamax Index, which provides market freight rates for the 

maritime industry. The shipping services contemplated in an FFA 

would likely never be performed by the parties who would usually 

settle the contract by exchanging cash, as the parties intended 

in this case.

FFAs can be complicated financial transactions, but we 

found the Second Circuit’s description of how FFAs work in 

D’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., No. 11-3473-

cv, 2014 WL 2609648 (2d Cir. June 12, 2014), an easy to follow 

narrative of the type of agreement at issue here:

 1 Three of the FFAs specified Flame as the seller and ICI as 

the buyer. The fourth was the reverse, with ICI as seller and 

Flame as the buyer. The record reflects only that ICI was a 

foreign corporation, but does not identify its country of 

origin.
5

A major risk of an ocean carrier’s business 

is that a slowdown in worldwide commercial 

activity will lead to diminution in 

shipments of cargo, causing vessels to make 

expensive voyages partially empty or, in 

more extreme circumstances, to lay idle. The 

rates carriers charge for carriage of goods 

fall during such slowdowns. . . . As a way 

of offsetting losses from its vessels being 

underemployed or idle during such a 

slowdown, [a carrier may] enter[] into 

futures contracts on international shipping 

rates. These contracts, sometimes called 

“forward freight agreements” or “FFAs,” 

specify a base rate (the “contract rate”) 

for a hypothetical shipment of specified 

goods over specified routes and future dates 

for comparison of the contract rate with the 

market rates on such future dates. If on a 

specified future date the market rate is 

above the contract rate, then the party that 

took the downside of the agreement must pay 

the other party the difference. If on the 

future date the market rate is below the 

contract rate, the party that took the 

upside of the contract must pay the other 

party the difference. Profits realized from 

such contracts as rates fall will increase 

[the carrier’s] revenues when demand is low, 

counteracting its losses from 

underemployment. Conversely, the losses on 

such contracts will decrease [the carrier’s]

net revenues when demand is high and rates 

rise.

D’Amico, 2014 WL 2609648, at *1.

In September 2008, freight rates in the international 

shipping market entered a steep decline, causing ICI to become 

financially distressed. In October 2008, ICI voluntarily 

petitioned for bankruptcy in Greece, which constituted an Event 

of Default under the terms of the FFAs. Under the FFAs, ICI owed 
6

Flame a substantial amount based on the difference between the 

contract and market rates.

In November 2010, Flame brought suit against ICI in the 

High Court of Justice, Queen’s Bench Division, Commercial Court 

in London, England (the “English Court”), alleging breaches of 

the FFAs and seeking monetary damages. The English Court entered 

judgment against ICI on December 13, 2010 in the amount of 

$19,907,118.36 (the “English judgment”).

After obtaining the English judgment against ICI, Flame 

moved for recognition and enforcement of that judgment in the 

United States District Court for the Southern District of New 

York.2 ICI appeared before the district court and moved to 

dismiss for failure to state a claim, arguing that it did not 

have notice of the action in the English Court. The district 

court denied ICI’s motion. ICI’s counsel subsequently filed a 

motion to withdraw as counsel, which the district court granted. 

When granting the withdrawal motion, the district court warned 

ICI that it must obtain new counsel or face a default judgment. 

ICI failed to obtain substitute counsel, and the court entered 

 2 No federal statute provides for the recognition of foreign 

judgments. Instead, federal courts generally recognize judgments 

of foreign courts out of comity. See Hilton v. Guyot, 159 U.S. 

113, 163–64, 202–03 (1895).
7

default judgment on October 4, 2011,3 recognizing the English 

judgment in favor of Flame.

On October 17, 2013, Flame registered the judgment of the 

Southern District of New York in the United States District 

Court for the Eastern District of Virginia pursuant to 28 U.S.C. 

§ 1963. Flame then filed a verified complaint seeking an Order 

of Attachment against the shipping vessel M/V CAPE VIEWER (the 

“CAPE VIEWER”), docked at Norfolk, Virginia, pursuant to Rule B. 

Flame sought attachment of the CAPE VIEWER, which is owned by 

Freight Bulk, on the theory that Freight Bulk is the alter ego 

of ICI. The district court issued an attachment order, which was 

timely served on Freight Bulk.

Freight Bulk then appeared and moved the district court to 

vacate the Order of Attachment pursuant to supplemental Rule 

E(4)(f), arguing that the court lacked subject matter 

jurisdiction to enter the order. In particular, Freight Bulk 

contended that (1) the district court should apply English law 

in determining whether the FFAs are maritime contracts; and (2) 

regardless of the court’s choice of law, FFAs are not maritime 

contracts. Because Flame invoked only the court’s maritime 

 3 The United States District Court for the Southern District 

of New York entered default judgment in recognition of the wellestablished rule that “‘a corporation may appear in the federal 

courts only through licensed counsel.’” See In re Under Seal, 

749 F.3d 276, 290 n.17 (4th Cir. 2014).
8

jurisdiction in its complaint, Freight Bulk argued that in the 

absence of a valid maritime claim the district court lacked 

subject matter jurisdiction and had no authority to enter the 

Rule B Order of Attachment. 

After several hearings on Freight Bulk’s motion to vacate,

the district court denied that motion with respect to Freight 

Bulk’s jurisdictional arguments.4 Specifically, the district 

court concluded that it had properly exercised its admiralty 

jurisdiction over the case because federal law, rather than 

English law, controlled that issue. The district court 

determined that FFAs are maritime contracts under federal law.

“However, considering the complexities and uncertainties 

involved . . . and the importance of clarifying the procedural 

issues presented,” the district court certified the matter for 

expedited appeal to this Court. Flame S.A. v. Industrial 

Carriers, Inc., No. 2:13-cv-658, 2014 WL 108897, at *4 (E.D. Va. 

 4 In its Rule E(4)(f) motion to vacate, Freight Bulk also 

asserted that Flame’s Complaint failed to set forth a legally 

sufficient basis upon which to pierce Freight Bulk’s corporate 

veil. The district court withheld ruling on this separate issue 

of whether Flame properly pled that Freight Bulk is the 

corporate alter ego of ICI. As that question was not decided by 

the district court, it is not before us on appeal, and we offer 

no opinion on the issue.
9

Jan. 10, 2014). Freight Bulk then sought permission to file an 

interlocutory appeal, which this Court granted.5

II.

This case presents two distinct issues on appeal, both of 

which concern the court’s subject matter jurisdiction. First, we 

must determine whether federal law or foreign law controls our 

jurisdictional inquiry. Second, we must consider whether the 

FFAs at issue in this case are maritime contracts under the 

controlling law, establishing whether the district court could 

properly exercise admiralty jurisdiction in this case. We review 

the district court’s legal conclusions regarding its own subject 

matter jurisdiction de novo. See Vitol, S.A. v. Primerose 

Shipping Co., 708 F.3d 527, 533 (4th Cir. 2013). “We review the 

district court’s factual findings with respect to jurisdiction 

for clear error.” Velasco v. Gov’t of Indon., 370 F.3d 392, 398 

(4th Cir. 2004).

 5 Section 1292(b) of 28 U.S.C. allows for the interlocutory 

appeal of an otherwise unappealable order when a district court 

judge certifies that the order “involves a controlling question 

of law as to which there is substantial ground for difference of 

opinion and that an immediate appeal from the order may 

materially advance the ultimate termination of the litigation.”
10

III.

A.

“The judicial Power [of the United States] extend[s] . . . 

to all Cases of admiralty and maritime Jurisdiction.” U.S. 

Const. art. III, § 2. In addition to this constitutional grant 

of original jurisdiction to the federal courts over admiralty 

matters, Congress has made plain the federal courts’ exclusive 

authority over admiralty cases first with the Judiciary Act of 

1789 and presently in 28 U.S.C. § 1333. That statute provides 

that “The district courts shall have original jurisdiction, 

exclusive of the courts of the States, of: (1) Any civil case of 

admiralty or maritime jurisdiction, saving to suitors in all 

cases all other remedies to which they are otherwise entitled.”

28 U.S.C. § 1333; see Judiciary Act of 1789, § 9, Ch. 20, 1 

Stat. 73, 76–77.

Since the Founding, the Supreme Court has made clear the 

authority and primacy of the federal courts in matters of 

admiralty particularly as relates to the recognition of foreign 

admiralty judgments.

It is well recognized that federal 

courts in the United States possess 

jurisdiction in admiralty over claims to 

enforce a foreign admiralty judgment. See, 

e.g., 1 Benedict on Admiralty § 106 

(“[A]dmiralty jurisdiction in the United 

States may be broadly stated as extending to 

... any claim to enforce a judgment of a 

foreign admiralty court.”). Even in the 
11

earliest days of the Republic, the Supreme 

Court *534 confirmed that the courts of the

United States possess jurisdiction to 

recognize the admiralty decrees of foreign 

admiralty courts. See Penhallow v. Doane's 

Adm'rs, 3 U.S. (3 Dall.) 53, 97, 1 L. Ed. 

507 (1795) (Iredell, J.) (“It was clearly 

shown at the bar, that a Court of Admiralty, 

in one nation, can carry into effect the 

determination of the [C]ourt of Admiralty of 

another.”).

Vitol, 708 F.3d at 533–34.

To proceed on a request for a Rule B writ of maritime 

attachment, the plaintiff must have a claim against the 

defendant that is cognizable in admiralty. See Vitol, 708 F.3d 

at 533–34 (considering whether the court had admiralty 

jurisdiction over a request for attachment under Rule B). In the 

case before us, the initial issue is whether United States 

courts apply the law of the foreign jurisdiction that rendered 

the judgment to determine if the claim is cognizable in 

admiralty or whether the maritime law of the United States 

determines the admiralty status of that claim.

As the district court recognized, the distinction between 

English and American law is determinative in the case at bar.

It is apparent to the Court that under 

English law the [FFAs] would not be maritime 

contracts and as a result the English 

judgment in this matter would not be an 

admiralty judgment. Therefore, if English 

law were used in addressing this Rule B 

attachment, no admiralty jurisdiction would 

exist. 
12

Under federal law, however, it appears 

that the [FFAs] in question would certainly 

be maritime contracts.

Flame, 2014 WL 108897, at *3. Thus, the district court concluded 

“if federal law is applied, then this Court has admiralty 

jurisdiction. If English law is applied, there is no admiralty 

jurisdiction.” Id. at *1.

Both before the district court and on appeal, Freight Bulk 

has argued that a claim to enforce a foreign judgment falls 

within a federal court’s admiralty and maritime jurisdiction 

only if the claim underlying the foreign judgment would be 

considered a maritime claim under the laws of the foreign 

jurisdiction that rendered the judgment. The district court 

rejected Freight Bulk’s argument and concluded that the maritime 

nature of a claim to enforce a foreign judgment must be 

determined under the laws of the United States. The district 

court characterized the issue as “a question of choice of law on 

a procedural issue” and noted that “[g]enerally, procedural 

questions in federal court are governed by federal law,” which 

led it to its ultimate conclusion that “federal law should 

inform this Court’s determination of whether it has admiralty 

jurisdiction.” Flame, 2014 WL 108897, at *2, *3.

The district court determined that there was no directly 

applicable Fourth Circuit precedent on the issue despite Freight 

Bulk’s argument that our prior decision in Vitol dictated a 
13

result in its favor. In the absence of controlling authority, 

the district court looked to analogous precedent from the 

Supreme Court in Norfolk Southern Railway v. Kirby, 543 U.S. 14 

(2004), and the Second Circuit’s opinion in Blue Whale Corp. v. 

Grand China Shipping Development Co., 722 F.3d 488 (2d Cir. 

2013). In our review of the district court’s decision and the 

arguments presented to us, we first examine the impact of Vitol

and then consider the application of other precedent.

B.

Freight Bulk contends that our prior opinion in Vitol

requires holding that a claim’s characterization under foreign 

law controls our jurisdictional inquiry. We disagree. Freight 

Bulk’s reliance on Vitol is misplaced.

In Vitol, we considered whether a district court’s Rule B 

attachment order to enforce a foreign admiralty judgment was 

properly issued. 708 F.3d at 533. The defendants-appellees in 

Vitol (the companies owning or controlling the vessel) argued 

that the district court lacked admiralty jurisdiction because 

the plaintiff-appellant (the company seeking Rule B attachment 

and judgment holder) elected to pursue its cause of action in 

the English Commercial Court rather than the Admiralty Court 

(both part of the English High Court of Justice). In the Vitol

appellants’ view this choice of forum in England made the 
14

foreign judgment obtained a non-admiralty judgment.6 Id. at 534. 

We rejected that argument:

[The appellee ship owners] ask this Court to 

hold that the choice of forum in England, 

not the subject matter of the underlying 

claim, is dispositive of whether 

jurisdiction lies with the district court 

pursuant to 28 U.S.C. § 1333. In other 

words, [appellees] contend that [the] choice 

of forum in the English Commercial Court for 

an otherwise valid admiralty claim there 

divests any resulting judgment of its 

admiralty character in this country so it 

can no longer be considered as an admiralty 

matter. We find this argument unpersuasive 

and unsupported.

The approach advocated by [appellees], 

which looks purely to form at the expense of 

substance, is unsupported by citation to any 

case as authority for its position. Indeed, 

the dispositive question is not whether the 

English Judgment issued from an “admiralty 

court,” but rather, whether the claim itself 

is maritime in nature.

Id. at 535 (emphasis added).

The issue Freight Bulk now raises, whether federal or 

foreign law applies when characterizing a foreign judgment as an 

admiralty judgment for purposes of federal jurisdiction, was not 

an issue in Vitol. As the Second Circuit recognized in D’Amico:

the Vitol decision did not constitute a 

precedent on the question whether the 

maritime character of the claim under U.S. 

 6 The parties in Vitol did not dispute that the claim at 

issue was a maritime claim under either federal law or English 

law or that the English court had jurisdiction to render its 

judgment. See Vitol, 708 F.3d at 533–35.
15

law is pertinent, both because the Vitol

court never considered the question whether 

U.S. law should be consulted, and because 

the answer would have been the same under 

either British or U.S. law, as the 

underlying claim (breach of the warranty of 

seaworthiness) is maritime in both nations. 

Vitol never considered whether the maritime 

character of the underlying claim under U.S. 

law standards justifies the exercise of 

federal admiralty jurisdiction.

2014 WL 2609648, at *6. Vitol resolved the isolated issue raised 

in that case and no more. Freight Bulk’s argument to the 

contrary is without merit.

C.

Supreme Court precedent strongly indicates that federal law 

should control our determination of whether a claim, such as the 

FFA dispute in this case, sounds in admiralty. Although the 

Supreme Court has not directly addressed the issue, its opinion 

in Kirby offers guidance. 

In Kirby, the Supreme Court considered whether federal or 

state law governed the interpretation of two maritime contracts. 

543 U.S. at 22–23. The Court concluded that “[w]hen a contract 

is a maritime one, and the dispute is not inherently local, 

federal law controls the contract interpretation.” Id. In 

reaching this conclusion, the Supreme Court explained that 

Article III’s purpose in granting admiralty jurisdiction to the 

federal courts was to provide for the uniformity of maritime law 
16

throughout the country, including the uniform interpretation of 

maritime contracts. Id. at 28.

It certainly could not have been the 

intention [of Article III] to place the rule 

and limits of maritime law under the 

disposal and regulation of the several 

States, as that would have defeated the 

uniformity and consistency at which the 

Constitution aimed on all subjects of a 

commercial character affecting the 

intercourse of the States with each other or 

with foreign states.

Id. at 28–29; see also Ins. Co. v. Dunham, 78 U.S. (11 Wall.) 1, 

24 (1870) (holding that “the admiralty and maritime jurisdiction 

of the United States is not limited either by the restraining 

statutes or the judicial prohibitions of England, but is to be 

interpreted by a more enlarged view of its essential nature and 

objects”). As the district court observed, based upon the 

constitutional principle of uniformity in the maritime context, 

“it could not have been the intention of Article III’s grant of 

admiralty jurisdiction to place the rules and limits of maritime 

law under the disposal and regulation of foreign states.” Flame, 

2014 WL 108897, at *2 n.2.

This conclusion was bolstered by the Second Circuit’s 

opinion in Blue Whale, which is instructive in part. While 

seemingly on point, the Blue Whale decision discusses the 

similar, but ultimately distinct, issue of whether a plaintiff 

“has a valid prima facie admiralty claim” for purposes of 
17

satisfying the four-factor test for issuing a Rule B attachment 

adopted in Aqua Stoli Shipping Ltd. v. Gardner Smith Pty Ltd., 

460 F.3d 434 (2d Cir. 2006). Blue Whale, 722 F.3d at 493. The 

Second Circuit split its inquiry into two parts: (1) whether the 

plaintiff alleged a claim sounding in admiralty, and (2) whether 

that claim is prima facie valid. Id. Recognizing a “split of 

authority” in the Southern District of New York, the Second 

Circuit reached the choice-of-law issue even though “[n]either 

party disputed that [the plaintiff] had alleged a claim sounding 

in admiralty and that the court had maritime jurisdiction.” Id.

at 491. The court explained:

Despite the divide, what is clear is that 

federal law controls the procedural inquiry, 

namely, whether a plaintiff’s claim sounds 

in admiralty. This question is inherently 

procedural by virtue of its relationship to 

the courts’ subject matter jurisdiction and, 

thus, is controlled by federal maritime 

law. . . . We hold that federal maritime law 

governs whether a claim sounds in admiralty.

Id. at 494–95.7 Thus, while helpful, the Second Circuit’s 

treatment of the issue in Blue Whale is only analogous 

precedent.

After briefing and oral argument in the case at bar, the 

Second Circuit decided D’Amico which does directly address the 

jurisdictional question before us. In D’Amico, the holder of an 

 7 The court then proceeded to the second part of its 

inquiry, which is not relevant to this case.
18

English judgment sought attachment under Rule B invoking the 

district court’s admiralty jurisdiction. 2014 WL 2609648, at *1. 

The district court concluded that it lacked jurisdiction because 

“the maritime nature of [a] claim must be determined by 

reference to the law of the nation that rendered the judgment,”

and under the laws of England, “the claim underlying the 

judgment was not deemed maritime in English law.” Id. at *2.

The Second Circuit vacated the judgment of the district 

court, holding that “a suit to enforce a foreign judgment may be 

heard in the federal admiralty jurisdiction under § 1333 if the 

claim underlying the judgment would be deemed maritime under 

U.S. law.” Id. at *9. In a thorough analysis, the D’Amico court 

persuasively concluded that choice of law principles support 

using federal law because “[t]he question whether a claim 

belongs in one or another court is jurisdictional and 

procedural,” and “[u]nder choice of law principles, the law of 

the forum state is used for such a question.” Id. at *8.8

The Second Circuit in D’Amico reached the same conclusion 

that Kirby leads us to: that by extending federal jurisdiction 

to “all Cases of admiralty and maritime Jurisdiction,” “the 

Framers of the Constitution and Congress wanted to ensure that 

 8 In the district court and before us, Freight Bulk relied 

on the decision from the Southern District of New York in 

D’Amico. Now that the Second Circuit has reversed that decision, 

Freight Bulk is left with scant authority for its argument.
19

matters deemed maritime under our laws have access to our 

federal courts.” Id. at *7. As the D’Amico court explained:

The policy of the United States to place 

maritime matters in the federal courts is so 

strong that § 1333 makes federal court 

jurisdiction exclusive. Although, as a 

general proposition, there is widespread 

agreement throughout the world which kinds of 

matters are maritime and which are not, there 

is no assurance that some other nation might 

not define its own maritime jurisdiction more 

broadly, or more narrowly, than we do. It 

seems reasonable to assume that the Framers 

of the Constitution and Congress wanted to 

ensure that matters deemed maritime under our 

laws have access to our federal courts. There 

is no reason to suppose that the Founders or 

Congress would have wished to exclude from 

the admiralty jurisdiction matters that U.S. 

law deems maritime, merely because another 

nation does not consider them maritime. The 

fact that some nation, unlike ours, does not 

reserve a special jurisdiction for maritime 

matters, or classify maritime matters as 

subject to a discrete body of laws, does not 

derogate from the policies of our law to 

provide for the adjudication of matters we 

regard as maritime in our federal courts.

Id. at *7.

Based on the Supreme Court’s reasoning in Kirby and the onpoint and persuasive opinion in D’Amico, we hold that federal 

law, rather than foreign law, controls the procedural inquiry 

into whether a foreign judgment is a maritime judgment. Thus, a 

claim to enforce a foreign maritime judgment is within the 

admiralty subject matter jurisdiction of United States courts 
20

when the claim underlying the judgment would be an admiralty or 

maritime claim under federal law.

IV.

A.

Having determined that federal law controls our 

jurisdictional inquiry, we must now consider whether the FFAs at 

issue in this case are maritime contracts under federal law. If 

the FFAs are not maritime contracts, then the district court’s 

admiralty jurisdiction could not be invoked.

“The boundaries of admiralty jurisdiction over contracts—as 

opposed to torts or crimes—being conceptual rather than spatial, 

have always been difficult to draw.” Kossick v. United Fruit 

Co., 365 U.S. 731, 735 (1961). Whether a contract is maritime 

depends not upon “whether a ship or other vessel was involved in 

the dispute.” Kirby, 543 U.S. at 23. “Instead, the answer 

‘depends upon . . . the nature and character of the contract,’ 

and the true criterion is whether it has ‘reference to maritime 

service or maritime transactions.’” Id. at 24; see 1-XII 

Benedict on Admiralty § 182 (providing that “a contract relating 

to a ship in its use as such, or to commerce or navigation on 

navigable waters, or to transportation by sea or to maritime 

employment is subject to maritime law and the case is one of 

admiralty jurisdiction”).
21

In consideration of this question, the district court 

stated, “Under federal law, it is clear that the question of 

whether the [FFAs] are maritime contracts is answered in the 

affirmative,” citing a number of decisions holding that certain 

FFAs are maritime contracts. Flame, 2014 WL 108897, at *3. Thus, 

the district court seemingly made a broad holding that all FFAs 

are maritime contracts under federal law.

However, other language in the district court’s opinion

indicates that its holding is more nuanced and specific to the 

FFAs in this case. For example, the district court observed that

“Flame’s use of [FFAs] appears to have been primarily for 

hedging the risks inherent in their shipping business” and that 

“the [FFAs] in question would certainly be maritime contracts,”

which Freight Bulk also challenges. Id. (emphasis added). The 

district court then seemed to express a case-specific holding

that “the FFAs in question (and Flame’s underlying claim) are 

maritime contracts.” Id.

Ultimately, we need not resolve whether all FFAs are 

maritime contracts as a matter of law or remand the case for 

further consideration. Instead, because the district court made 

factual findings limited to the FFAs involved here, we affirm 

the district court’s judgment with respect to the FFAs at issue 

in this case. We leave to another case the issue of whether all 

FFAs are maritime contracts as a matter of law.
22

B.

On appeal, Freight Bulk argues that the FFAs cannot be 

maritime contracts because they have no connection to any 

particular vessel or to the transport of any particular cargo. 

Freight Bulk points out that the FFAs at issue in this case 

could be settled only with cash and not by delivery (i.e., 

performance of an actual shipment across the designated route). 

And Freight Bulk posits that FFAs cannot be maritime contracts 

because they are nothing more than financial bets on the 

direction of the freight shipping market.

First, with respect to Freight Bulk’s argument that the 

FFAs have no connection to any particular vessel or shipment, 

the Supreme Court has directly held that a maritime contract 

need not refer to any particular vessel. See Kirby, 543 U.S. at 

23 (“To ascertain whether a contract is a maritime one, we 

cannot look to whether a ship or other vessel was involved in 

the dispute.”). Nor do maritime contracts need to refer to any 

particular shipment. See generally Folksam. Reinsurance Co. v. 

Clean Water of N.Y., Inc., 413 F.3d 307 (2d Cir. 2005) (holding 

that an insurance contract providing coverage for losses 

sustained to vessels while undergoing repairs is a maritime 

contract). In fact, several district courts have concluded that 

FFAs are maritime contracts regardless of the fact that they do 

not refer to any particular vessels or shipments because “the 
23

purpose of the [FFA] is to facilitate maritime commerce.” Flame 

S.A. v. M/V Lynx, No. 10-00278, 2010 U.S. Dist. LEXIS 145880, at 

*9 (E.D. Tex. June 22, 2010); see Transfield ER Futures Ltd. v. 

Deiulemar Shipping S.P.A., Nos. 11-00099, 11-00754, 2012 WL 

123286, at *3 (E.D. La. Jan. 17, 2012) (concluding that “the 

very essence of these FFAs concerns commitments to perform 

shipping services in the future” and that the FFA contracts, 

like those at issue in this case, provided “contract routes, 

contract months, contract quantity, the date upon which payment 

was due for such services and contract rates that would govern 

each particular contract”). Thus, the fact that the FFAs in this 

case did not refer to a particular vessel or a particular voyage 

is not dispositive.

Second, the fact that the FFAs could be settled only with 

cash also does not defeat the conclusion that these FFAs are 

maritime contracts. Again, marine insurance contracts are 

usually maritime contracts as a matter of law. See Dunham, 78 

U.S. (11 Wall.) at 30-36. Marine insurance contracts cover risks 

inherent in maritime transportation, and, like the FFAs in this 

case, marine insurance contracts call for the payment of cash 

rather than the execution of a maritime shipment. See Int’l Sea 

Food Ltd. v. M/V Campeche, 566 F.2d 482, 485 (5th Cir. 1978); 16 

Williston on Contracts § 49:28 (4th ed. 2014 supp.). Thus, that 
24

the FFAs call for cash settlement does not preclude the 

conclusion that they are maritime contracts.

Lastly, as Freight Bulk points out, while in some cases 

financial speculators could enter into an FFA on either side of 

the transaction, we need not resolve the global issue of whether 

all FFAs are maritime contracts. In this case, there is no 

dispute that both Flame and ICI are shipping companies

principally engaged in maritime commerce. It thus follows, as 

the district court found, that Flame and ICI did not create the 

FFAs as mere financial speculators, but as a component of their 

shipping businesses. The district court expressly found that the 

parties entered into the FFAs “primarily for hedging the risks 

inherent in their shipping business,” a finding that Freight 

Bulk fails to demonstrate is clearly erroneous.9 Flame, 2014 WL 

108897, at *3.

We therefore hold that the district court did not err in 

concluding that the FFAs at issue in this case are maritime 

 9 Freight Bulk contests this finding by arguing that Flame 

was listed as the seller on some of the FFAs and thus could not 

have been using the FFAs as a hedge. However, Freight Bulk does 

not contest that the FFAs listing Flame as the seller were used 

by the parties as hedges in their shipping businesses or that 

both Flame and ICI are chiefly engaged in the business of 

international shipping. Thus, consistent with the district 

court’s finding, all of the FFAs here were used “primarily for 

hedging the risks inherent in” international shipping regardless 

of which party was listed as the buyer or seller on each 

instrument.
25

contracts. Accordingly, the district court had subject matter 

jurisdiction to adjudicate the matter before it.10

V.

For the foregoing reasons, we affirm the district court’s 

decision.

AFFIRMED

 10 We note that our holding is consistent with that of a 

number of out-of-circuit district courts that have considered 

whether similar FFAs are maritime contracts under federal law. 

See Transfield, 2012 WL 123286, at *3; Flame, 2010 U.S. Dist. 

LEXIS 145880, at *12; Primera, 2010 WL 481075, at *2; Brave Bulk 

Transport Ltd. v. Spot On Shipping Ltd., No. 07 Civ. 4546(CM), 

2007 WL 3255823, at *2 (S.D.N.Y. Oct. 30, 2007).
26

WILKINSON, Circuit Judge, concurring:

I readily concur in Judge Agee’s fine opinion in this case. 

Notwithstanding my respect for English law, and in full 

agreement with the majority opinion, I write to underscore my 

conviction that the availability of federal admiralty 

jurisdiction simply must be determined by domestic, rather than 

foreign, law.

First, applying the law of the forum -- here, federal court 

-- accords with basic choice-of-law principles. In Blue Whale 

Corp. v. Grand China Shipping Development Co., 722 F.3d 488, 494 

(2d Cir. 2013), the Second Circuit held that the question of 

whether a claim “sounds in admiralty” is “inherently procedural 

by virtue of its relationship to the courts’ subject matter 

jurisdiction,” that jurisdiction being, in the Second Circuit’s 

view, a procedural matter. Because courts generally apply their 

own procedural law, the jurisdictional issue “is controlled” by 

the law of the forum: federal maritime law.

In fact, the argument for applying domestic law is even 

stronger than the Second Circuit suggested. Rules of 

jurisdiction are conceptually distinct from rules of procedure; 

the former determine whether a court is competent to hear a 

particular case, whereas the latter govern how the court is to 

hear it. See Bowles v. Russell, 551 U.S. 205, 210-11 (2007); 
27

Scott Dodson, In Search of Removal Jurisdiction, 102 Nw. U. L. 

Rev. 55, 59-60 (2008).

Therefore, a court could theoretically import foreign 

procedure, just as it might use foreign substantive law as its 

rule of decision. Strictly speaking, however, it is incoherent 

to speak of adopting foreign law to decide the jurisdictional 

question. Jurisdiction is the sovereign grant of authority to 

make legally binding rules or determinations in a particular 

situation. To allow foreign law to dictate the availability of 

subject-matter jurisdiction would be to divest the Constitution 

and Congress of their sovereign authority to decide the extent 

of the power of the judicial branch. In other words, federal 

courts would no longer be acting as courts of the United States, 

since their power would be exercised pursuant to a grant of 

authority from a different sovereign -- here, the foreign 

jurisdiction. It would, as Justice Story recognized in a 

related context, “annihilate the sovereignty and equality of the 

nations,” and violate the principle that “every nation must 

judge for itself, what is its true duty in the administration of 

justice.” Joseph Story, Commentaries on the Conflict of Laws

§§ 32, 34 (1834).

Second, considerations of administrability counsel in favor 

of using domestic, rather than foreign, law to determine 

subject-matter jurisdiction. Even if we limit ourselves to the 
28

many major maritime commercial powers, that would still require 

courts seeking to determine jurisdiction to analyze a different 

body of foreign law every time a contract with a different 

choice-of-forum or -law clause or every time a judgment from a 

different rendering jurisdiction came before them. See D’Amico 

Dry Ltd. v. Primera Maritime (Hellas) Ltd., No. 11-3473-cv, 2014 

WL 2609648, at *8 (2d Cir. June 12, 2014). To make matters 

worse, other countries may not have the same conceptual 

frameworks for determining jurisdiction or maritime status as we 

do. This will often make asking whether a contract or judgment 

is maritime under their law for the purposes of our requirements 

of subject-matter jurisdiction anything but an apples-to-apples 

analysis, if not entirely meaningless.

Not only would this inquiry be incongruous, it would also 

impose an immense administrative burden on the judicial process. 

Our own law distinguishing maritime from non-maritime contracts 

has frequently been pilloried as opaque and arbitrary. See, 

e.g., Charles L. Black, Jr., Admiralty Jurisdiction: Critique 

and Suggestions, 50 Colum. L. Rev. 259, 264 (1950) (“The attempt 

to project some ‘principle’ is best left alone. There is about 

as much ‘principle’ as there is in a list of irregular verbs.”). 

To force courts and litigants down the rabbit hole of 

incorporating the law of various foreign countries at the 

jurisdictional stage would only make matters worse. See
29

D’Amico, 2014 WL 2609648, at *8. Limiting the inquiry to the 

maritime status of a contract or judgment under domestic law is 

the best and most administrable option.

Third, applying domestic law in this case accords with the 

Constitution’s and Congress’s vesting of admiralty jurisdiction 

in federal courts. Imagine what would happen if we held that 

foreign law controlled the jurisdictional inquiry here. The 

federal court would lack admiralty jurisdiction and appellee 

would likely thus have to file suit in state court. (The same 

situation would occur if the parties were U.S. but non-diverse.) 

Thus, the state court would probably be the only available forum 

to hear the claim and the special procedures associated with 

federal admiralty jurisdiction might not be available.

None of this is to say that state courts are incapable of 

properly adjudicating maritime issues. But it does fly in the 

face of the Constitution’s vesting of subject-matter 

jurisdiction in Article III courts over “all Cases of admiralty 

and maritime Jurisdiction,” U.S. Const. art. III, § 2, cl. 1 

(emphasis added), and Congress’s grant to federal district 

courts, virtually unchanged since the Judiciary Act of 1789, of 

subject-matter jurisdiction over “[a]ny civil case of admiralty 

or maritime jurisdiction,” 28 U.S.C. § 1333(1) (emphasis added). 

Whether to promote greater uniformity in maritime law or to 

ensure the vindication of American maritime interests, the 
30

Framers clearly wanted federal courts to possess admiralty 

jurisdiction over those cases that the courts believed to be 

maritime in nature. See D’Amico, 2014 WL 2609648, at *7. 

Allowing foreign law to control the jurisdictional inquiry would 

subvert this goal and constrict the space that federal courts, 

already sandwiched between foreign and state law, possess to sit 

in admiralty.

Fourth and finally, applying domestic rather than foreign 

law in determining subject-matter jurisdiction advances the 

national policy goals of the Constitution’s grant of admiralty 

jurisdiction to federal courts: the “advantages resulting to the 

commerce and navigation of the United States.” DeLovio v. Boit, 

7 F. Cas. 418, 443 (C.C.D. Mass. 1815) (No. 3776) (Story, J.); 

see also Sisson v. Ruby, 497 U.S. 358, 367 (1990) (“The 

fundamental interest giving rise to maritime jurisdiction is the 

protection of maritime commerce . . . .”) (internal quotation 

marks omitted). This is because, in determining what counts as 

advancing the United States’ maritime interests, we must by 

necessity refer to our own conception of what counts as 

“maritime”; after all, “we have a maritime law of our own.” The 

Lottawanna, 88 U.S. 558, 574 (1874). Although this particular 

contract is between two non-U.S. parties engaging in a private 

financial transaction, the United States still has an interest 

in providing a forum for this type of contract, especially since 
31

U.S. parties to a similar arrangement would benefit from being 

able to seek enforcement.

Appellant argues that international comity requires us to 

use foreign law to determine subject-matter jurisdiction. See

Appellant’s Br. at 18 & n.6. It notes that, in the interests of 

international comity, federal courts exercise admiralty 

jurisdiction over judgments issued by foreign tribunals sitting 

in admiralty, even if the judgments would not otherwise be 

treated as maritime under U.S. law. See Int’l Sea Food Ltd. v. 

M/V Campeche, 566 F.2d 482, 485 (5th Cir. 1978); see also Vitol, 

S.A. v. Primrose Shipping Co., 708 F.3d 527, 536 & n.4 (4th Cir. 

2013).

Appellant would have us extend this rule and declare that 

federal courts must refuse to assert admiralty jurisdiction over 

contracts or judgments characterized as non-maritime by their 

rendering forums. Neither logic nor comity dictates this 

result. Just because we accept the foreign characterization of 

a dispute for the purpose of exercising admiralty jurisdiction –

- a jurisdictional expansion -- does not mean that we must also 

accept it for the purpose of refusing to hear a case in 

admiralty -- a jurisdictional contraction. The former 

accommodation is supported by considerations of international 

comity; the latter is not.
32

Comity is satisfied as long as one court enforces the 

judgment of another court. Thus, it should not matter to the 

rendering court under what technical head of jurisdiction its 

judgment is ultimately enforced, at least where, as here, there 

is no indication that the rendering forum intended its judgment 

to be effectuated in only a particular way. See D’Amico, 2014 

WL 2609648, at *8. It is hard to fathom the British High Court 

of Justice caring what jurisdictional subclause of Article III, 

Section 2 the federal court invokes to enforce the judgment. It 

should be enough that a plaintiff in possession of a favorable 

English judgment is given the maximum constitutionally 

permissible freedom to choose his preferred forum -– here, a 

federal court sitting in admiralty. If anything, such a rule 

enhances, rather than diminishes, comity. It may also make it 

easier for U.S. parties to enforce contracts such as the one 

here in foreign maritime courts.

To be sure, foreign law is not irrelevant to the 

determination of whether federal admiralty jurisdiction exists. 

The status of the contract or judgment under foreign law informs 

the inquiry in important ways. The question of whether a legal 

issue is maritime in nature is not an exercise in logic chopping 

wholly internal to the conceptual schemas of American 

jurisprudence; instead, it asks whether, as a practical matter, 

the “principal objective of [the] contract is maritime 
33

commerce.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 25 (2004). 

The reasoned judgments of experienced jurists, foreign or 

domestic, on this issue are due respectful consideration by 

federal courts. Additionally, whether other countries 

characterize a contract as maritime might have collateral 

consequences that may affect its real-world impact on maritime 

commerce -- for example, in terms of how the contract is 

interpreted overseas or what procedures its interpretations are 

afforded.

Nevertheless, the ultimate question of whether a contract 

or judgment is maritime for the purpose of supporting federal 

admiralty jurisdiction must, for the reasons explained above, be 

answered by reference to domestic rather than foreign law. 

While foreign law may or may not be instructive under the 

circumstances, it cannot determine the subject matter 

jurisdiction of an American court. And, as ably demonstrated in 

Judge Agee’s majority opinion, the contract here has a 

“genuinely salty flavor.” Kossick v. United Fruit Co., 365 U.S. 

731, 742 (1961). Thus, federal admiralty jurisdiction properly 

lies.