               In re: CONTAINER APPLICATIONS INTERNATIONAL, INC., Debtor.

                      Container Applications International, Inc., Plaintiff-Appellant,
                                                     v.

                          Lykes Bros. Steamship Co., Inc., Defendant-Appellee.

                                              No. 00-11565.
                                     United States Court of Appeals,

                                             Eleventh Circuit.

                                              Nov. 22, 2000.

Appeal from the United States District Court for the Middle District of Florida.(No. 97-01680-CV-T-25A),
Henry Lee Adams, Jr., Judge.

Before CARNES and BARKETT, Circuit Judges, and POLLAK*, District Judge.

        BARKETT, Circuit Judge:

        Container Applications International, Inc. ("CAI") appeals from a summary judgment granted by the
bankruptcy court, and affirmed by the district court, in favor of Lykes Bros. Steamship Co., Inc. ("Lykes")

disallowing maritime liens asserted by CAI against vessels owned by Lykes, pursuant to the Federal Maritime

Lien Act, 46 U.S.C. § 31341 et seq. (the "FMLA"). We affirm.

                                            BACKGROUND

        The relevant facts are undisputed.     CAI leases and sells cargo containers that are used by

transportation companies to transport goods, and Lykes is a shipping company providing cargo service
throughout the world. In February 1993, CAI and Lykes entered into an agreement whereby CAI would lease
cargo containers in bulk to Lykes for use in its shipping business. The lease agreement provided that the

leased containers would be used only on vessels owned and/or operated by Lykes and would be used for

oceanic transportation of goods and land transport in connection with the oceanic transportation.
        From time to time Lykes picked up containers leased from CAI at locations throughout the world.

No container was delivered directly to any of Lykes' vessels, nor did any of the lease documents "earmark"
containers to any one vessel or otherwise make reference to any vessel. While the lease required Lykes to

maintain tracking reports showing exactly which containers were used on which vessels and for how many

days, neither Lykes nor CAI knew at the time of commencement of the lease on which vessels the containers


   *
     Honorable Louis H. Pollak, U.S. District Judge for the Eastern District of Pennsylvania, sitting by
designation.
would be used and Lykes, in its complete discretion, determined upon which vessels or vehicles to place the
containers.

         Lykes filed a petition for bankruptcy in October 1995. At the time of filing, it owed CAI a

substantial amount for outstanding rental fees on the leased containers. In the bankruptcy court, CAI asserted

maritime liens1 against various vessels owned by Lykes based upon each vessel's usage of CAI's containers.
In defending against the liens, Lykes argued that maritime liens can be asserted under the FMLA only when
the containers are either provided directly to or are earmarked for specific vessels and cannot be claimed for

containers furnished in bulk to fleet owners who then decide upon which ships the containers will be placed.

The bankruptcy court agreed with Lykes and disallowed CAI's liens on the vessels. The district court

affirmed, and CAI now appeals. We review the bankruptcy and district court's conclusions of law de novo.

See American Dredging Co. v. Lambert, 153 F.3d 1292, 1295 (11th Cir.1998).

                                                 DISCUSSION
        CAI asserts its maritime liens pursuant to the FMLA, which provides in relevant part:
        (a) Except as provided in subsection (b) of this section, a person providing necessaries to a vessel on
        the order of the owner or a person authorized by the owner—

        (1) has a maritime lien on the vessel;
        (2) may bring a civil action in rem to enforce the lien; and
        (3) is not required to allege or prove in the action that credit was given to the vessel.

46 U.S.C. § 31342(a).2
         The parties do not dispute that containers are "necessaries"3 or that Lykes owned the vessels in
question and ordered the containers. The sole issue for our determination is whether CAI "provided" the


    1
     "A maritime lien is '[a] special property right in a ship given to a creditor by law as security for a
debt or claim subsisting from the moment the debt arises[.]' " Galehead, Inc. v. M/V Anglia, 183 F.3d
1242, 1247 (11th Cir.1999) (citing Black's Law Dictionary 969 (6th ed.1990)).
    2
     In 1989, 46 U.S.C. § 31342 superseded 46 U.S.C. § 971 without significant change. Section 971 had
used the verb "furnishing" rather than "providing." Cases discussed herein that arose before 1989 discuss
Section 971, but neither the parties nor earlier case law suggests that the word change is significant to the
issue in this case.
    3
     The term "necessaries" "has been liberally construed to include ... 'goods or services that are useful to
the vessel, keep her out of danger, and enable her to perform her particular function. Necessaries are the
things that a prudent owner would provide to enable a ship to perform well the functions for which she
has been engaged.' " Bradford Marine, Inc. v. M/V Sea Falcon, 64 F.3d 585, 589 (11th Cir.1995)
(quoting Equilease Corp. v. M/V Sampson, 793 F.2d 598, 603 (5th Cir.) (en banc), cert. denied, 479 U.S.
984, 107 S.Ct. 570, 93 L.Ed.2d 575 (1986)).
containers to the vessels within the meaning of the statute when it leased the containers in bulk to Lykes

without reference to any vessels.

        The seminal Supreme Court case on this question is Piedmont & George's Creek Coal Co. v.

Seaboard Fisheries Co., 254 U.S. 1, 41 S.Ct. 1, 65 L.Ed. 97 (1920). In Piedmont, a coal dealer supplied coal

to an oil company for use at its oil refineries and on its fleet of fishing vessels. The coal was not designated

"for any particular vessel or even for the vessels then comprising the fleet." Id. at 13, 41 S.Ct. 1. Rather, the

coal was placed in bins at the oil company's factory where it was intermingled with other coal purchased by
the oil company and then at various times used on the oil company's ships. The coal was billed to the oil

company, the invoices did not reference the vessels, and the oil company controlled the distribution of the

coal to its vessels. Id. at 7-8, 41 S.Ct. 1. As in this case, the question in Piedmont was whether, under the

facts of the case, the coal was "furnished" or provided to the vessels by the party seeking the lien, pursuant

to the meaning of the FMLA.4 The Court disallowed the lien, holding that the coal had not been provided to
the vessels by the coal company asserting the lien, but rather by the oil company to whom the coal had been

sold.

        Four other circuits have subsequently applied Piedmont to the specific situation before us, that is, to

the lease of containers in bulk to a shipping company which decides when, where, and how it will use the
containers within its fleet of ships. All four circuits have held that under such circumstances the supplier has

not "provided" necessaries to the vessel within the meaning of the FMLA. See Silver Star Enterprises, Inc.

v. Saramacca MV, 82 F.3d 666 (5th Cir.1996); Redcliffe Americas Ltd. v. M/V Tyson Lykes, 996 F.2d 47 (4th

Cir.1993); Itel Containers Int'l. Corp. v. Atlanttrafik Express Service, Ltd., 982 F.2d 765 (2d Cir.1992); Foss

Launch & Tug Co. v. Char Ching Shipping U.S.A., 808 F.2d 697 (9th Cir.1987), cert denied, 484 U.S. 828,

108 S.Ct. 96, 98 L.Ed.2d 57 (1987).

        Moreover, numerous other courts have cited to Piedmont for the proposition that the term "providing

necessaries to a vessel" in the FMLA requires that there be a direct connection between the provider of

necessaries and a specific vessel. See e.g., Jeffrey v. Henderson Bros., Inc., 193 F.2d 589, 593-94 (4th

Cir.1951) (recognizing a lien where merchandise used to repair machinery for cleaning coal was supplied to

a single vessel and the invoices asserted that the goods were intended for this operation); The Everosa;



    4
     See supra footnote 1 (46 U.S.C. § 31342 superseded 46 U.S.C. § 971 replacing the term "furnishing"
with the term "providing").
Southern Coal and Coke Co. v. Kugniecibas, 93 F.2d 732, 734-35 (1st Cir.1937) (recognizing a lien and

distinguishing Piedmont based on the fact that the coal "was sent to a particular vessel, loaded on her by the

coal company's representative and paid for by her master by drafts on the charterer to order of the coal

company"); Bankers Trust Co. v. Hudson River Day Line, 93 F.2d 457, 458 (2d Cir.1937) (denying maritime

liens to a supplier of oil and holding that necessaries, though delivered in mass to the owner of the fleet under

a single contract, must be expressly ordered for the use of named vessels in specified portions); Carr v.

George E. Warren Corp., 2 F.2d 333, 334 (4th Cir.1924) (recognizing a lien and distinguishing Piedmont

based on the fact that "85 percent of the coal was sold directly for use of the steamers named, and so billed

to the vessels, and received and used by them"); Christiana Marine Service Corp. v. THE HERCULES, 1991

AMC 1274 (E.D.Pa.1990) (recognizing a towing company's lien where all towing services were provided to

a single vessel and the invoice reflected that all services were to be provided to that vessel); Northern

Shipping Co. v. M/V Tivat, 1988 AMC 1468 (E.D.Pa.1987) (noting that in Piedmont there was no "attempt

to designate the particular vessel to receive any portion or component of the goods" and recognizing a lien

where stevedoring, berthing and wharfage services were "furnished" directly to the vessel); Atlantic Steamer

Supply Co. v. The SS Tradewind, 153 F.Supp. 354, 363-64 (D.Md.1957) (recognizing a lien where

advertisement was furnished to a vessel and citing Piedmont for the proposition that "necessaries are

furnished to the vessel only when they are ordered for a particular vessel and thereafter are either actually put

on board or brought within the control of the ship's officers is settled law"); The American Eagle, 30 F.2d

293, 295 (D.Del.1929) (holding that a coal supplier "furnishes" coal to vessels if "the supplies, though
delivered in mass to the owner of the fleet under a single contract, are expressly ordered by the owner and
delivered to him by the supplyman for the use of named vessels in specified portions, and are promptly

delivered to the named vessels by their owner").

        However, two district courts in the Eleventh Circuit have rejected a restrictive reading of the FMLA's

requirements for the creation of a maritime lien.5 In Transamerica ICS, Inc. v. M/V Panatlantic, 1984 AMC


    5
     Other courts, including one circuit court, that have been critical of a restrictive reading of the
FMLA's requirements for the creation of a maritime lien have been overruled to the extent that those
courts suggest that earmarking necessaries is not a prerequisite to creation of a maritime lien. Compare
Equilease Corp. v. M/V Sampson, 793 F.2d 598, 603 (5th Cir.1986) (rejecting a literal interpretation of
"furnishing" and holding that the FMLA does not require actual delivery of necessaries to a vessel), with
Silver Star Enters., Inc. v. Saramacca MV, 82 F.3d 666, 669-70 (5th Cir.1996) (distinguishing Equilease
and holding that maritime lien was not available where containers were leased in bulk and not
earmarked), and Orbis Marine Enterprises, Inc. v. TEC Marine Lines, Ltd., 692 F.Supp. 280, 283-84
(S.D.N.Y.1988) (holding that earmarking is not a prerequisite to the creation of a maritime lien) with Itel
489 (S.D.Fla.1983), the district court suggested that "it may not be essential, and indeed may not be desirable,

that the container ... be earmarked for a particular vessel." Id. at 490. Similarly, the court in Triton Container

International Limited v. M/S ITAPAGE, 774 F.Supp. 1349 (M.D.Fla.1990), relying on Transamerica, held

that "it is not necessary that a container be identified with a particular vessel." Id. at 1350-51.

        CAI argues that we should follow Transamerica and disregard the cases from our sister circuits,

arguing that these circuits have erroneously interpreted Piedmont to hold that pre-delivery earmarking of

supplies for a specific vessel is a prerequisite to a maritime lien. CAI argues that not only do these cases

erroneously interpret Piedmont, but that their holdings are in conflict with Piedmont. CAI suggests that two

factors were critical to the Court's decision in Piedmont, both of which distinguish it from the case at hand.

First, because the coal had been co-mingled with coal from other sources in Piedmont, it was impossible to

determine whether the coal ultimately delivered to the vessels was the same coal for which the debt was owed.

In contrast, CAI argues, it is undisputed that the containers used on Lykes' vessels actually belonged to CAI.
Second, the coal furnished to the vessels was coal to which the oil corporation had acquired title. As a result,

the coal dealer lost control to determine how the coal would be used. In this case, Lykes merely leased the
containers and, under the lease agreement, Lykes did not have unfettered discretion to use the containers as
it saw fit because the lease limited their use to Lykes' vessels and only for the purpose of "oceanic

transportation of goods and ... land transportation incidental thereto." CAI argues that in light of these

distinctions, Piedmont does not dictate the result in this case.

        We find that CAI reads Piedmont much too narrowly and that these distinctions are insignificant to

the Supreme Court's rationale and to its holding. The fact that the coal had been co-mingled or that the oil

company had obtained sole title to the coal was not a dispositive factor in the court's decision. Rather, in
interpreting the FMLA, the Court focused on whether there was a direct connection between the provider or

furnisher of the necessaries and the vessel itself.

        The Court expressly noted that "the difficulty here is not in failure to show that the coal was furnished

to the vessels but in failure to prove that it was furnished by the libelant." 254 U.S. at 5, 41 S.Ct. 1. In



Containers Int'l. Corp. v. Atlanttrafik Express Service, Ltd., 982 F.2d 765, 768 (2d Cir.1992) (holding that
a lease of containers to a fleet of vessels did not create a maritime lien on those vessels). See also,
Redcliffe Americas, Ltd. v. M/V Tyson Lykes, 806 F.Supp. 69 (D.S.C.1992), rev'd 996 F.2d 47 (4th
Cir.1993) (district court holding that earmarking is not a prerequisite to the creation of a maritime lien and
finding that the maritime lien extended to containers leased in bulk to a fleet owner reversed by the
Fourth Circuit).
Piedmont, the coal was sold in bulk to the oil company without any reference to a specific vessel. In this

case, CAI likewise leased the containers in bulk to Lykes without any reference to any specific vessel. In

both cases, the supplier had no choice in determining which, if any, vessels would use their product. Thus,

no direct connection existed between CAI, which furnished the containers, and any of the ships upon which
Lykes ultimately placed the containers.

        As was the Ninth Circuit in Foss Launch, we are persuaded that the universal application of Piedmont

to require a narrow construction of the term "providing" is further supported by Dampskibsselskabet

Dannebrog v. Signal Oil & Gas Co., 310 U.S. 268, 60 S.Ct. 937, 84 L.Ed. 1197 (1940). See Foss Launch,

808 F.2d at 701-02. In that case, the Supreme Court affirmed a maritime lien in favor of an oil supplier only

after it had distinguished Piedmont:

        The difficulty which blocked recovery by the Coal Company [in Piedmont ] was "solely that it did
        not furnish coal to the vessels". There "was no understanding when the contract was made, or when
        the coal was delivered by the libelant, that any part of it was for any particular vessel or even for the
        vessels then composing the fleet. And it was clearly understood that the purchasing corporation
        would apply part of the coal to a nonmaritime use". In the instant case, the oil was supplied
        exclusively for the vessels in question, was delivered directly to the vessels and was so invoiced; and
        there was nothing in the general contract to the effect that the supplies were to be furnished upon the
        exclusive credit of [the vessel's owner] and not also upon the credit of the vessels.

Id. at 276-77, 41 S.Ct. 1 (internal citations omitted).

        The Court in Piedmont read the relevant provision in the FMLA narrowly, holding that the coal

company had failed to prove that it "furnished" the coal to the ships upon which it seeks a lien. Id. at 4, 41

S.Ct. 1 ("the difficulty facing the Coal Company [in Piedmont ] was solely that it did not furnish coal to the

vessels upon which it asserts a maritime lien, and there is nothing in the Act ... which removes that obstacle").

The Court was urged, as are we, to interpret the relevant provision of the FMLA in a more expansive and
liberal manner to permit the lien. However, the Court recognized that maritime liens are disfavored in the

law because they are secret ones that might operate to the prejudice of prior mortgagees or of purchasers
without notice, and held that the FMLA "is therefore stricti juris and will not be extended by construction,

analogy or inference." Id.

         CAI argues, however, that our precedent requires that we interpret all provisions of the FMLA

liberally, relying on Atlantic & Gulf Stevedores v. M/V Grand Loyalty, 608 F.2d 197 (5th Cir.1979).6 CAI



    6
     In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc ), the Eleventh Circuit adopted
as binding precedent all Fifth Circuit decisions handed down prior to the close of business on September
30, 1981.
suggests that in Grand Loyalty the former Fifth Circuit held that the FMLA should be interpreted broadly to

permit the liens asserted by CAI. We do not find this to be the holding in Grand Loyalty and we do not find

Grand Loyalty applicable to these circumstances. Stricti juris is a rule of construction employed in certain

instances to discern legislative intent in an ambiguous provision. Rather than rejecting the view that maritime

liens are subject to the doctrine of stricti juris, the court expressly noted that "[i]t is, of course, nigh onto

hornbook law that maritime liens are to be strictly construed." Id. at 200-01. Grand Loyalty simply held that

it was unnecessary to apply this rule of construction because it was clear that Congress intended, through the

1971 amendments, to make it easier and more certain for stevedores performing traditional services to be

protected.

        More importantly, Grand Loyalty did not involve an interpretation of the very same provision that

the Supreme Court construed narrowly under the doctrine of stricti juris. The court in Grand Loyalty was

interpreting the meaning of certain provisions of sections 971 and 972 in light of the new 1971 amendments.

Id. at 200 ("We, perforce, must focus on the meaning of 'any person to whom management of the vessel at

the port of supply is intrusted,' § 972; 'person authorized by the owner,' § 971; and 'other necessaries', §§
971 and 972"). In light of the specific directive of the Supreme Court as it relates to the very same provision

at issue here, we reject CAI's contention that the rule of stricti juris does not govern this provision of the

FMLA and that we should liberally construe it to permit CAI's lien.

        Thus, we agree with our sister circuits and hold that, under the dictates of Piedmont, cargo containers

leased in bulk to the owner of a group of vessels for unrestricted use on board the vessels in that group, are
not "provided" to any particular vessel within the meaning of 46 U.S.C. § 31342(a). In this case, CAI neither
physically delivered the containers to the vessels nor did it direct Lykes to distribute the containers to

particular vessels. CAI merely made containers available to Lykes for its use, and Lykes had sole discretion
to decide whether to place any of the containers on board any particular vessel. Thus, CAI did not "provide"

necessaries to the liened vessels within the meaning of the FMLA. For all of the foregoing reasons, the order

of the district court, disallowing the maritime liens asserted by CAI against Lykes, is

        AFFIRMED.
        POLLAK, District Judge, concurring.

        I concur in the judgment of the court, and I join its opinion. I add a brief word to make a rather

simple point.
        The court finds that the Supreme Court's opinion of eighty years ago, in Piedmont & George's Creek

Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 41 S.Ct. 1, 65 L.Ed. 97 (1920), remains the authoritative

construction of the pertinent portion of the Federal Maritime Lien Act (FMLA). I agree. The Piedmont

opinion was written by Justice Brandeis and the Supreme Court was unanimous. It would take a very strong

showing that the Supreme Court has, in some subsequent case, undercut, or substantially limited, the

Piedmont opinion, before any lower court could decline to follow it. But there is no evidence that the

Supreme Court has weakened Piedmont. To the contrary, as the court today points out, the Supreme Court,

in 1940, had occasion to refer to Piedmont, and did so in a way that evidenced Piedmont 's continuing vitality.

In Dampskibsselskabet v. Signal Oil Co., 310 U.S. 268, 276-77, 60 S.Ct. 937, 84 L.Ed. 1197 (1940), Chief

Justice Hughes, speaking for the unanimous Court, distinguished Piedmont from the case then before the

Court; but the discussion of Piedmont manifested unhesitating acceptance of the principles Justice Brandeis

had announced twenty years before.

        The only real question before this court today is whether the language of Piedmont—which dealt with

supplying coal in bulk to a company that used some, but not all, of the coal on its fishing vessels—has valid

application to the case at bar, which involves the leasing of cargo containers to a shipping company under
an agreement which, as the court aptly summarizes it, "provided that the leased containers would be used only

on vessels owned and/or operated by [the shipping company] and would be used for oceanic transportation

of goods and land transport in connection with the oceanic transportation." Leasing cargo containers to a
shipping company is not a unique, or even an unusual, transaction. As the court makes clear, essentially the
same transaction has been considered, in the context of the FMLA, by four other courts of appeals, and all

four were guided by Piedmont to the conclusion that no FMLA maritime lien had attached.

        It may reasonably be asked whether the policy reasons that led the Piedmont Court to find, with

respect to the somewhat clumsy transaction framed by the particular facts of that case, that there was no
maritime lien—a lien of a sort that the Court deemed "secret" and that "may operate to the prejudice of prior

mortgagees or of purchasers without notice," 254 U.S. at 12, 41 S.Ct. 1—are of comparable force in the

context of the apparently mature system of large-scale leasing of cargo containers illustrated by the case at
bar. But the answer to that question is not one that a court is likely to be in a position to make an informed

judgment about on the basis of a record and briefs presented in litigation. It is the sort of question that

members of Congress—after considering the testimony of those versed in shipping-industry practices and the
operation of the relevant credit structures—would be better equipped to answer than judges are.

        Pending congressional review of the pertinent portion of FMLA, the course of judicial prudence is

for this court—acknowledging that at least for the time being Piedmont provides doctrinal guidance—to align

itself with the four courts of appeals that have already rejected the claim of a maritime lien in the context of

leased cargo containers.
