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ATLANTIC & GULF STEVEDORES, INC. v. M.V. ROSA ROTH

July 17, 1984

ATLANTIC AND GULF STEVEDORES, INC., Plaintiff, against M.V. ROSA ROTH, etc., Defendant.


The opinion of the court was delivered by: KNAPP

MEMORANDUM & ORDER

WHITMAN KNAPP, D.J.

 Plaintiff, a stevedoring company, has brought this action in rem against the defendant vessel whose cargo it discharged at the behest of a time charterer. At issue before us now is whether or not -- and to what extent -- plaintiff has established a maritime lien against the vessel for this work. Plaintiff and defendant have both moved for summary judgment.

 The applicable statutes governing maritime liens are as follows:

 Any person furnishing repair, supplies, towage, use of a drydock or marine railway, or other necessaries to any vesel, whether foreign or domestic, upon the order of the owner of such vessel, or of a person authorized by the owner, shall have a maritime lien on the vessel. . . .

 46 U.S.C. § 971.

 The following persons shall be presumed to have authority from the owner to procure repairs, supplies, towage, use of dry dock or marine railway, and other necessaries for the vessel: The managing owner, ship's husband, master, or any person to whom the management of the vessel at the port of supply is intrusted. . . .

 46 U.S.C. § 972.

 The officers and agents of a vessel specified in section 972 of this title shall be taken to include such officers and agents when appointed by a charterer . . .

 46 U.S.C. § 973.

 The vessel was chartered on a time-charter basis to Cape Lines, Ltd., which is not a party to this action. Cape Lines and three consignees of the cargo engaged plaintiff to discharge the ship's cargo at the port of Houston, Texas. The three consignees requested that discharge of their cargo be performed on a "straight-time" basis, i.e., without overtime work; however, Cape Lines' agent, Norton Lilly, ordered plaintiff to discharge its cargo on an overtime basis. In addition to the time spent discharging the cargo -- including overtime -- plaintiff charged Norton Lilly for certain periods when the longshoremen performed no discharging work, including "detention time" (time for which the stevedores were hired but could not work on account of inclement weather); "guarantee time" (periods for which the stevedores must be paid pursuant to their collective bargaining agreements with the International Longshoremen's Association); and time spent opening the vessel's hatches. Plaintiff presented its work vouchers to the vessel's captain, who stamped them with a legend indicating that any maritime lien would be disavowed. No such disavowal had previously been indicated.

 Cape Lines never paid the stevedoring charges; plaintiff has never pursued any remedies against it, electing instead to proceed against the vessel on the theory that the services provided were "necessaries" which the charterer's agent was authorized to incur and thus that a maritime lien had been established.

 To begin, we note that Cape Lines and Norton Lilly do fall under the presumption of § 973, supra, which presumption cannot be rebutted by a disclaimer made after the work was performed. *fn1" We thus pass to the second part of our inquiry: whether the services rendered by plaintiff vessel are "other necessaries" to the vessel under § 971.

 Defendant presents two related arguments in support of its motion: first, that none of the services was performed "to" the vessel, i.e., that the vessel did not benefit from them; *fn2" and second, that even if the vessel did benefit, the overtime, detention time, guarantee time and time spent to open the hatches ("non-work time") ...


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