Bominflot, Incorporated; Bominflot Ltd v. THE M/V HENRICH S (IMO NO. 9158513), her engines, tackle, nets, gear, apparel,…

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 BOMINFLOT, INCORPORATED;
BOMINFLOT LTD,
Plaintiffs-Appellants,
v.
THE M/V HENRICH S (IMO NO.
9158513), her engines, tackle, nets,
gear, apparel, appurtenances, etc., in
rem,
Defendant-Appellee, No. 05-2242 
and
HAMBURG SUD, as Successor-in-
Interest to Kien Hung,
Defendant,
and
H+H SCHEPERS REEDEREI GMBH &
CO KG MS HEINRICH S,
Intervenor/Defendant. 
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CA-03-2811-2-PMD)
Argued: May 23, 2006
Decided: October 4, 2006
Before WIDENER, WILLIAMS, and KING, Circuit Judges.

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Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge King concurred. Judge Widener wrote a separate dissent-
ing opinion.
COUNSEL
David B. Marvel, ROBERTSON & HOLLINGSWORTH, Charles-
ton, South Carolina, for Appellants. Julius H. Hines, BUIST,
MOORE, SMYTHE, MCGEE, P.A., Charleston, South Carolina, for
Appellee.
OPINION
WILLIAMS, Circuit Judge:
Appellants Bominflot, Inc. and Bominflot Ltd. (collectively
"Bominflot") appeal a district court order dismissing their maritime
lien claim against Appellee THE M/V HENRICH S ("the Vessel").
We hold that because English law applies to this dispute, Bominflot
cannot enforce a maritime lien against the Vessel. We therefore
affirm the district court.
I.
This case arises out of three provisions of fuel oil, known as "bun-
kers," delivered by Bominflot to the Vessel in February and March
2003.1 Each provision was subject to contractual language contained
in "Bominflot International Group of Companies General Conditions
of Sale and Delivery effective from July 1, 2000" ("General Condi-
tions"). (J.A. at 21-22.) Bominflot is an international conglomerate
organized under the laws of the United States and the United King-
1On February 6, 2003, bunkers in the amount of $202,431.49 were
delivered to the Vessel in South Africa. On February 16, 2003, bunkers
in the amount of $281.581.47 were delivered to the Vessel in Brazil.
Finally, on March 10, 2003, $141.272.33 worth were delivered to the
Vessel in South Africa.
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dom that, among other things, specializes in providing bunkers to ves-
sels. The Vessel, a German-flagged ship owned by German firms,
was — during the time of the relevant bunker deliveries — under time
charter to Kien Hung Shipping Co. Ltd. of Taiwan ("Kien Hung").2
Kien Hung has since become insolvent and has liquidated its assets.
Bominflot alleges that it never received any payment for the bunkers.
On August 28, 2003, Bominflot brought this action in the United
States District Court for the District of South Carolina under 28
U.S.C.A. § 1333 (West 1993) (granting district courts original juris-
diction in civil admiralty cases). Bominflot claimed, inter alia, a mari-
time lien against the Vessel pursuant to Rule C of the Federal
Supplemental Rules of Certain Admiralty and Maritime Claims in
conjunction with the Federal Maritime Lien Act (FMLA), 46
U.S.C.A. § 31342 (West Supp. 2005).3
The district court dismissed the action under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, finding that Bominflot had failed
to state a claim upon which relief may be granted because English law
applied to the dispute and English law does not recognize the exis-
tence of maritime liens for bunkers.
Bominflot timely appealed. We have jurisdiction to review the dis-
trict court’s final order under 28 U.S.C.A. § 1291 (West 1993).
II.
We review de novo the district court’s grant of the Vessel’s
2As part of the time charter, Kien Hung was responsible for any pur-
chases of bunkers. Kien Hung was also bound by the Vessel’s "Non-Lien
Provision Clause," which prohibited Kien Hung from subjecting the Ves-
sel’s owners to any lien "which might have priority over the title and
interest of the Owners." (J.A. at 80.)
3Bominflot amended its complaint by adding an in personam claim
pursuant to Rule B of the Federal Supplemental Rules of Certain Admi-
ralty and Maritime Claims. On October 27, 2005, however, Bominflot
moved to dismiss its Rule B claim on consent and the claim was dis-
missed on October 31, 2005. Bominflot appeals only the district court’s
decision with respect to its Rule C maritime lien claim.
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12(b)(6) motion to dismiss for failure to state a claim upon which
relief can be granted. Davani v. Va. Dep’t of Trans., 434 F.3d 712,
715 (4th Cir. 2006). "[A] Rule 12(b)(6) motion should only be
granted if, after accepting all well-pleaded allegations in the plain-
tiff’s complaint as true and drawing all reasonable factual inferences
from those facts in the plaintiff’s favor, it appears certain that the
plaintiff cannot prove any set of facts in support of his claim entitling
him to relief." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th
Cir. 1999).
Bominflot points to two specific clauses of the General Conditions
in support of its argument that it is entitled to a maritime lien against
the Vessel. The first clause relates to the enforcement of a lien against
the Vessel:
7.14 Products and services delivered under a Contract shall
be made not only on the account of Buyer but also on the
account of the receiving vessel. Buyer warrants that Seller
has the rights to assert and enforce a lien against the receiv-
ing vessel for the amount of the Products and Services pro-
vided, plus without limitation, any other expenses related to
enforcement of the lien.
(J.A. at 22.) The second clause is a choice of law clause and forum
selection provision:
18. Governing Law
18.1 This agreement is subject to the law and jurisdiction of
the courts of England, or other law and jurisdiction as speci-
fied by Seller in the Contract. However, nothing in this
clause shall, in event of breach of the agreement by Buyer,
preclude Seller from taking any such action as it shall in its
sole discretion consider necessary to enforce, safeguard or
secure its rights under the Contract in any court or tribunal
in any state or country.
(J.A. at 22.)
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Bominflot contends that when read together, these clauses required
the district court to apply United States law, which allows for a mari-
time lien for bunkers, even though Section 18.1 states that the con-
tract was subject to the law of England, which does not. As we
explain below, the General Condition clauses cannot be read to pro-
vide that U.S. maritime lien law should have applied. We begin by
explaining — to the extent necessary — the scope and object of mari-
time liens in England and the United States, before reaching the mer-
its of Bominflot’s argument.
A.
A maritime lien serves as a powerful, unusual in rem enforcement
in admiralty:
The maritime lien has been described as one of the most
striking peculiarities of Admiralty law, constituting a charge
upon ships of a nature unknown alike to common law and
equity. It arises by operation of law and exists as a claim
upon the property, secret and invisible. A maritime lien may
be defined as: (1) a privileged claim, (2) upon maritime
property, (3) for service done to it or injury caused by it, (4)
accruing from the moment when the claim attaches, (5) trav-
eling with the property unconditionally, (6) enforced by
means of an action in rem.
Griffith Price, The Law of Maritime Liens 1 (1940), quoted in Black’s
Law Dictionary 943 (8th ed. 2004). "Quite different from a common
law lien, a maritime lien is not simply a security device to be fore-
closed if the owner defaults. The vessel itself is viewed as the obligor
whether or not the owner is also obligated." Amstar Corp. v. S/S Alex-
andros T, 664 F.2d 904, 908-909 (4th Cir. 1981).
Adopted from civil law, 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 con-
tract. See The Steamship Yankee Blade, 60 U.S. 82, 89 (1856) (hold-
ing that maritime liens are "‘stricti juris,’ and cannot be extended by
construction, analogy, or inference"); see also Redcliffe Americas Ltd.
v. M/V Tyson Lykes, 996 F.2d 47, 50 (4th Cir. 1993) (noting that a
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"maritime lien is a secret one, arising by operation of law"). As
explained by Lord Justice Scott in the English case of The Tolten, a
maritime lien "comes into existence automatically without any ante-
cedent formality . . . and confers a true charge upon the ship and
freight of a proprietary kind in favour of the ‘privileged’ creditor. The
charge goes with the ship everywhere, even in the hands of a pur-
chaser for value without notice . . . ." United Afr. Co., Ltd. v. "Tolten",
(1946) 79 Ll. L. Rep. 349, 356.
Because maritime liens confer such a powerful right, most nations
— including England — limit or preclude their application. In
England, admiralty judges traditionally recognized only a select group
of maritime claims subject to maritime liens, "the principal being bot-
tomry,4 salvage, wages, masters’ wages disbursements and liabilities,
and damage." The Ripon City, (1897) P. 226, 242. Notably, claims for
necessaries, including bunkers, are absent from this list. Claims for
necessaries in England have therefore traditionally been "available
only against the property of the person who owes the debt for neces-
saries; and the arrest need not be of the ship in question, but may be
of any property of the defendant within the realm." The Heinrich
Bjorn, (1885) 10 P.D. 44, 54. As such, they are similar to blanket
liens against the debtor’s property, not maritime liens against the ves-
sel that travel with the ship.
The United States as well as a number of civil law nations, how-
ever, allow for broader use and enforcement of maritime liens, includ-
ing the creation of a statutory right to a maritime lien for necessaries,
see 46 U.S.C.A. § 31342 (providing that "a person providing neces-
saries to a vessel on the order of the owner or a person authorized by
the owner . . . has a maritime lien on the vessel"), and William Tetley,
Maritime Liens and Claims 551 (2d ed. 1998) (noting that only a few
nations, including the United States, give a claim for necessaries mar-
itime lien status), which include bunkers, see 46 U.S.C.A. § 31301(4)
4"The bottomry bond is a sort of mortgage on a ship, entered into for
the purpose of raising money in case of necessity in a foreign port. The
advance of communications has caused bottomry . . . bonds to pass virtu-
ally out of use." Black’s Law Dictionary 188 (8th ed. 2004) (quoting
Grant Gilmore & Charles L. Black Jr., The Law of Admiralty § 1-10, at
25 n.85 (2d ed. 1975)) (alterations in original omitted).
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(West Supp. 2005) (defining "necessaries" as "includ[ing] repairs,
supplies, towage and the use of a dry dock or marine railway"). More-
over, Rule C of the Federal Rules of Civil Procedure’s Supplemental
Rules for Certain Admiralty and Maritime Claims provides: "An
action in rem may be brought . . . [t]o enforce any maritime lien . . .
[w]henever a statute of the United States provides for a maritime
action in rem."
The distinction between U.S. and English maritime lien law is cen-
tral to this case because under U.S. law, a company supplying a vessel
with bunkers has a maritime lien on the vessel; whereas under English
law, that company would have only a less powerful statutory right in
rem, which is only a right to arrest the debtor’s ship (or other prop-
erty). See The John G. Stevens, 170 U.S. 113, 117 (1898) ("Claims
for necessaries [in England] do not possess, ab origine, a lien, but
carry only a statutory remedy against the res, which is essentially dif-
ferent." (quoting The Gustaf, (1862) Lush 506, 508)). Thus, in order
to determine whether Bominflot is entitled to a maritime lien for nec-
essaries, we must determine whether English or U.S. law controls.
B.
Ordinarily, this case would pose thorny conflicts of law questions
because of the myriad interests at stake. For example, the Vessel is
a German-flagged ship that is owned by a German company, the time
charterer was Taiwanese, Bominflot is an international conglomerate,
the bunker deliveries were made while the ship was located in South
Africa5 and Brazil,6 and the action was commenced in the United
States.
5South Africa’s maritime lien law is based on English law and does not
recognize a maritime lien for necessaries. See William Tetley, Maritime
Liens and Claims 1371 (2d ed. 1998). Accordingly, Bominflot could not
make a maritime lien claim for the two bunker shipments to South Africa
under South African law.
6Brazil, like many other civil law jurisdictions, recognizes a maritime
lien for necessaries. See William Tetley, Maritime Liens and Claims
1275 (2d ed. 1998). Thus, Bominflot would have a maritime lien claim
for the shipment to Brazil if Brazilian law applied. Although if such an
action was instituted in Brazil, Brazilian courts would likely apply the
law of the flag, see id. at 1276-77, and the claim would fail as German
law does not recognize a maritime lien for necessaries. See id. at 1309.
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This question is made easy, however, by the fact that both parties
agreed to subject the agreement "to the law . . . of England or other
law . . . as specified by [Bominflot] in the Contract." (J.A. at 22.)
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.7 See, e.g., Lauritzen v. Larsen, 345
U.S. 571, 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."); M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 12-13 (1972) ("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."); Hawkspere Shipping Co.
v. Intamex, S.A., 330 F.3d 225, 233 (4th Cir. 2003) ("Where the par-
ties specify in their contractual agreement which law will apply,
admiralty courts will generally give effect to that choice." (internal
quotation marks and alterations omitted)).
Bominflot nonetheless argues that even though English law is
applicable, the General Conditions allow for an exception to English
law in the case of maritime liens. It bases its argument on the fact that
— in addition to the English choice of law clause — different sections
of the General Conditions provide that (1) "[b]uyer warrants that
Seller has the right to assert and enforce a lien against the receiving
vessel," and (2) Bominflot may "enforce, safeguard or secure its
rights under the Contract in any court or tribunal in any state or coun-
try." (J.A. at 22.) Bominflot contends that if we fail to recognize the
application of United States law here, we would render such language
meaningless. See Restatement (Second) of Contracts § 203 (1981)
7Bominflot offers an unconvincing argument that the words "‘subject
to’ only suggest[ ] that English law and jurisdiction may apply, not that
the contract is definitively governed" by English law. (Appellant’s Br. at
18.) Quite the contrary, General Condition 18, under which the choice of
law clause is found, is titled "Governing Law." (J.A. at 22.) Moreover,
the phrase "subject to the law . . . of England" means that the contract
is "placed under authority or control" of English law. Merriam-Webster’s
Collegiate Dictionary 1243 (11th ed. 2003) (first definition of "subject").
In other words — in a choice of law clause — the phrase "subject to"
denotes the same meaning as the phrase "governed by."
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(stating that "an interpretation which gives a reasonable, lawful, and
effective meaning to all the terms is preferred to an interpretation
which leaves a part unreasonable, unlawful, or of no effect").
Bominflot’s argument is based in part on the Fifth Circuit’s deci-
sion in Liverpool & London SS Prot. and Indem. Ass’n Ltd. v. Queen
of Leman MV, 296 F.3d 350 (5th Cir. 2002). In Queen of Leman, the
court held that an insurer could enforce a maritime lien for neces-
saries under United States law even though the contract otherwise cal-
led for the general application of English law. Id. at 355. The
pertinent language of the contract in Queen of Leman provided a right
to "a lien on the ship[ ]." Id. at 353. More important, the contract pro-
vided that the insurer could "enforce its right of lien in any jurisdic-
tion in accordance with local law in such jurisdiction." Id. (emphases
added). The contract then stated that nothing in the contract should
affect the supplier’s ability "to enforce its right of lien on ships or to
otherwise obtain security by seizure, attachment or arrest of assets for
any amounts owed to the [a]ssociation." Id.
Bominflot’s General Conditions notably differ from those consid-
ered in Queen of Leman. The essential difference is that Bominflot’s
General Conditions do not state that lien rights could be enforced "in
accordance with local law," as the contract did in Queen of Leman.
Quite the contrary, the General Conditions fail to provide any excep-
tion to the general English choice of law provision. Bominflot argues,
however, that the General Conditions do as much by allowing it to
"safeguard or secure its rights under the Contract in any court or tri-
bunal in any state or country." (J.A. at 22.) This non-lien-specific pro-
vision, however, is plainly a forum selection clause rather than a
choice of law clause.8 The clause relates only to where, i.e., what
8Bominflot contends that the forum selection clause is useless if it is
not connected with a parallel choice of law exception that allows Bomin-
flot to enforce a maritime lien. This argument is without merit. There are
plenty of reasons to issue a forum selection exception that are uncon-
nected with choice of law concerns. For example, Bominflot may choose
to enforce the General Conditions consistent with English law in jurisdic-
tions other than England because of convenience, because the Vessel is
located in a jurisdiction other than England, or because certain jurisdic-
tions may not respect its choice of law clause.
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forum, Bominflot may bring an action to enforce its rights. But it is
silent concerning which law is to govern.9 Thus, if we are to respect
the intent of the parties as evinced by § 18 of the General Conditions,
English law must apply.
Bominflot, however, further contends that the General Conditions’
buyer’s "warranty" that a lien exists would be read meaningless if we
do not recognize a maritime lien. There are two flaws in this argu-
ment. First, the right to a maritime lien for necessaries under the
FMLA cannot be created through simple warranty. Instead, the right
arises by matter of law when, inter alia, "a person provid[es] neces-
saries to a vessel." 46 U.S.C.A. § 31342. Second, there is nothing in
the language of the General Conditions tending to suggest that the
general lien warranty refers to solely a maritime lien for necessaries
of the sort enforceable under Rule C. The warranty can be read, for
example, to refer to English actions in rem against a ship where the
9Unsurprisingly, since the Fifth Circuit’s decision in Queen of Leman,
district courts have refused to extend its holding by allowing for a mari-
time lien in cases where the contract contained language similar to the
language used here, i.e., broad forum selection clauses in addition to gen-
eral English choice of law clauses. Using almost identical language to
that used by Bominflot, and in a jurisdiction bound by the Fifth Circuit’s
decision in Queen of Leman, the supplier in Marine Oil Trading, Ltd. v.
M/V Sea Charm was allowed to "enforce, safeguard or secure its rights
under the Agreement in any Court or Tribunal in any state or country."
2003 AMC 882, 887 (E.D. La. 2003), available at 2003 WL 292309. The
contract also stated that the supplier "may assert a lien against the vessel
itself." Id. In that case, the court determined that the seller could "assert
its rights under the agreement in any forum," but those rights "remain
expressly determined by English law." Id. Thus, the seller could not
enforce a maritime lien for necessaries. Likewise, in Marine Oil Trading
Ltd. v. Motor Tanker Paros, again under nearly identical contractual lan-
guage to what we have here, the court found that the case was meaning-
fully different from Queen of Leman because the contract the district
court was reviewing was "of sufficient generality that it cannot be inter-
preted as evincing a clear intent to apply non-English maritime lien law."
Id. Moreover, the court pointed out that "it is reasonable to conclude that
most parties contracting for necessaries would not expect a [maritime]
lien to arise where the contract does not invoke American law . . . ." Id.
at 645.
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ship is owned by "the person who would be liable on the claim in an
action in personam." The Yuta Bondarovskaya, (1998) 2 Lloyd’s Rep.
357, 359; see The Heinrich Bjorn, (1885) 10 P.D. 44, 54 (recognizing
— under English law — the existence of an in rem proceeding
"against the property of the person who owes the debt for neces-
saries"); see also North End Oil, Ltd. v. M/V Ocean Confidence, 777
F. Supp. 12, 14 (C.D. Cal 1991) (interpreting similar language "as
statements of the rights that the parties have under the applicable
English law").
Were we to conclude otherwise, we would allow Bominflot to
escape its own choice of law clause through the ambiguity and sloppi-
ness of other provisions of its General Conditions. See Restatement
(Second) of Contracts § 206 (1981) ("[T]hat meaning is generally pre-
ferred which operates against the party who supplies the words or
from whom a writing otherwise proceeds."); see also Marine Oil
Trading Ltd. v. Motor Tanker Paros, 287 F. Supp. 2d 638, 644 (E.D.
Va. 2003) ("When carving out such a unique exception to a blanket
intent to apply English law, a party should be explicit. This is particu-
larly so in light of the disfavored status of maritime liens for neces-
saries in the overwhelming majority of countries."). Nothing in Queen
of Leman is to the contrary. There, the case turned on the Fifth Cir-
cuit’s determination that the contract’s English choice of law clause
was qualified by an "explicit exception" arising in the context of mari-
time liens. Queen of Leman, 296 F.3d at 354. As noted, however,
Bominflot’s contract contains no such explicit exception.10
III.
For the foregoing reasons, we affirm the judgment of the district
court.
10We express no opinion on what the result would have been in this
case had Bominflot’s contract qualified its choice of law provision with
a provision reserving "its right of lien in any jurisdiction in accordance
with local law." Liverpool & London SS Prot. and Indem. Ass’n Ltd. v.
Queen of Leman MV, 296 F.3d 350, 353 (5th Cir. 2002). We note only
that Bominflot’s general conditions do far less than that.
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AFFIRMED
WIDENER, Circuit Judge, dissenting:
I respectfully dissent.
A maritime lien upon a vessel arises by statute and not by contract.
See 46 U.S.C. § 31342(a)(1); Dampskibsselskabet Dannebrog v. Sig-
nal Oil & Gas Co., 310 U.S. 268 (1940). As to the contract at issue
in this case, the majority gives effect to the first sentence in the choice
of law provision and then fails to give the same weight to the second
sentence of the same provision. Even if the contract may be governed
by English law, the provision continues:
However, nothing in this clause shall, in event of breach of
the agreement by Buyer, preclude Seller from taking any
such action as it shall in its sole discretion consider neces-
sary to enforce, safeguard or secure its rights under the Con-
tract in any court or tribunal in any state or country.
The decision of the majority precludes the seller from taking action
to enforce its rights under the contract to deliver the oil. The case of
Dampskibsselskabet Dannebrog v. Signal Oil & Gas Co., 310 U.S.
268 (1940), is very nearly on the same facts as is this case and holds
that under American law a supplier has a lien on the vessel, as well
as, and in addition to, the promise to pay for the oil. See Herbert R.
Baer, Admiralty Law of the Supreme Court § 12-7, at 306 (2d ed.
1969).
Indeed, even if [the seller] is aware that the vessel with
which he is dealing is under charter, he should not be
charged with knowledge of the existence of any ‘no lien’
clause absent affirmative evidence that he had received
express notice from the owner or other reliable source that
the vessel was not to be bound.
Steven F. Friedell, 2 Benedict on Admiralty, ch. III, § 40 (2005).
The only distinction in the governing law clause here and in Liver-
pool & London SS Prot. and Indem. Ass’n Ltd. v. Queen of Leman
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MV, 296 F.3d 350 (5th Cir. 2002), is that the Queen of Leman con-
tract provided that lien rights could be enforced "in accordance with
local law." Here, the contract says that the seller may "enforce, safe-
guard or secure its rights under the Contract in any court or tribunal
in any state or country." The broader right found in this case is bound
to include the more narrow right conferred in Queen of Leman.
Whatever the law governing the contract, we should look to the
American statute as well as the contract to determine the existence of
a maritime lien on the vessel. There is no no-lien provision here as
illustrated in Dampskibsselskabet. I am of opinion the seller in this
case is entitled to a maritime lien against the vessel.
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