Logistics Management, Inc., Dba Twi Ocean Logisticsservices, Plaintiff-appellant, v. One (1) Pyramid Tent Arena, in Rem, Defendant-appellee,andpebbles Music, Inc., Claimant-appellee,andchariot Entertainment, Inc.; Diamond Entertainment Ii,inc., Defendants, 86 F.3d 908 (9th Cir. 1996)

We must decide whether a non-vessel-operating common carrier has a maritime lien against cargo in its possession for unpaid freight.

* Logistics Management Inc., dba TWI Ocean Logistic Services ("TWI"), appeals the district court's dismissal for lack of subject matter jurisdiction over TWI's admiralty action seeking to collect tariff charges and to foreclose a maritime lien against an item of cargo: One (1) Pyramid Tent Arena ("the Pyramid"), a five-story modular tent-like structure transported by TWI from England to California.

Pebbles Music, Inc. ("Pebbles") owns the Pyramid. On February 24, 1994, Pebbles leased the Pyramid to Diamond Entertainment II, Inc. ("Diamond"), which is the predecessor in interest to Chariot Entertainment, Inc. ("Chariot"). Under the lease agreement, Diamond assumed responsibility for the costs of transporting the Pyramid from Birmingham, England to the back lot of the Imperial Palace Hotel and Casino in Las Vegas, Nevada for use as the arena for a series of American Gladiators performances.

Appellant TWI, a non-vessel-operating common carrier ("NVOCC"),¹  entered into a contract of carriage with Diamond to transport the Pyramid from England to Las Vegas. TWI issued a combined transport bill of lading, consigned to Diamond, for transport of the Pyramid. The notation "FREIGHT PREPAID" appears on the face page of the bill of lading. The contract provides that " [t]he Carrier [TWI] shall have a lien on the Goods and any documents relating thereto for all sums payable to the Carrier under this Contract...."

TWI contracted with an ocean carrier, Maersk Pacific, Ltd. ("Maersk"), to transport the Pyramid from Felixstowe, England to Newark, New Jersey on Maersk's vessel, the Lauren.²  The Lauren discharged the Pyramid on April 1, 1994, in the Port of Newark, and TWI paid Maersk in full for its ocean transport services.

Six weeks later, the Pyramid was delivered to a rail carrier for transport to Long Beach, California. The Pyramid arrived in Long Beach on June 1, 1994, but TWI refused to deliver the Pyramid to Las Vegas, claiming that Diamond and Chariot failed to pay freight and related charges of more than $250,000.

On June 27, 1994, TWI filed a verified complaint for foreclosure of a maritime lien against the Pyramid in rem, and for collection of tariff charges against Diamond and Chariot in personam. TWI also filed an ex parte application for maritime arrest of the Pyramid. The district court granted the application for maritime arrest, ordering Maersk to be appointed the Pyramid's substitute custodian (in lieu of the U.S. Marshal) pending TWI's action.

In July 1994, intervenor-claimant Pebbles filed a verified claim to the Pyramid and applied for a mandatory injunction against Diamond and Chariot, seeking an order compelling them to pay TWI for the freight and related charges involved in transporting the Pyramid. The district court denied the request for an injunction.

On October 12, 1994, without presenting factual findings or legal analysis, the district court granted Pebbles' motion to dismiss for lack of subject matter jurisdiction (under Federal Rule of Civil Procedure 12(b) (1)) as to TWI's in rem action against the Pyramid, and further ordered the dismissal of TWI's in personam action against Diamond and Chariot. TWI filed a timely notice of appeal.

In August 1995, this court dismissed Diamond and Chariot as appellees for failure to appoint new counsel.

II

As a threshold matter, Pebbles contends that the determination of a valid lien is a prerequisite for jurisdiction over TWI's admiralty action. TWI disagrees. We review de novo the district court's conclusion that it lacked subject matter jurisdiction. Seven Resorts, Inc. v. Cantlen, 57 F.3d 771, 772 (9th Cir. 1995).

In The Rock Island Bridge, 73 U.S. (6 Wall.) 213, 18 L. Ed. 753 (1867), the Supreme Court stated: "The lien and the proceeding in rem are, therefore, correlative-where one exists, the other can be taken, and not otherwise." Id. 73 U.S. at 215; see Grant Gilmore & Charles L. Black, Jr., The Law of Admiralty § 9-19, at 622 (2d ed. 1975) ("In American jurisprudence the existence of a maritime lien is synonymous with the availability of a libel in rem.").

Thirty years after The Rock Island Bridge, the Supreme Court indicated that the minimum requirements for admiralty jurisdiction are the res and a maritime contract. In The Resolute, the Supreme Court stated:

Jurisdiction is the power to adjudicate a case upon the merits, and dispose of it as justice may require. As applied to a suit in rem for the breach of a maritime contract, it presupposes, first, that the contract sued upon is a maritime contract; and, second, that the property proceeded against is within the lawful custody of the court. These are the only requirements necessary to give jurisdiction. Proper cognizance of the parties and subject-matter being conceded, all other matters belong to the merits.

.... In fact, the question of lien or no lien is not one of jurisdiction, but of merits.

It is true that there can be no decree in rem against the vessel except for the enforcement of a lien given by the maritime law, or by a state law; but if the existence of such a lien were a question of jurisdiction, then nearly every question arising upon the merits could be made one of jurisdiction.

The Resolute, 168 U.S. 437, 439-40, 18 S. Ct. 112, 113, 42 L. Ed. 533 (1897).³ 

The Supreme Court's statement that "the question of a lien or no lien is not one of jurisdiction, but of merits" has been cited with approval by this court. See, e.g., Melwire Trading Co. v. M/V Cape Antibes, 811 F.2d 1271, 1273 n. 1 (9th Cir.) ("the Supreme Court held that the question as to whether a maritime lien exists is not one of jurisdiction, but rather involves the merits"), amended on other grounds, 830 F.2d 1083 (9th Cir. 1987); Beverly Hills Nat'l Bank & Trust Co. v. Compania De Navegacione Almirante S.A., Panama, 437 F.2d 301, 305 n. 5 (9th Cir.) ("It is immaterial to admiralty jurisdiction that the claim of lien ultimately failed. ' [T]he question of lien or no lien is not one of jurisdiction, but of merits.' "), cert. denied, 402 U.S. 996, 91 S. Ct. 2173, 29 L. Ed. 2d 161 (1971).

Since TWI's bill of lading, which contains a clause reserving a lien on the cargo for freight, is a maritime contract (involving ocean carriage)⁴  and since the Pyramid is physically within the "lawful custody of the court," TWI satisfied the "only requirements necessary to give jurisdiction." See The Resolute, 168 U.S. at 439, 18 S. Ct. at 113.

Accordingly, the district court erred in dismissing TWI's action against the Pyramid for lack of subject matter jurisdiction. Ordinarily, this conclusion would end our inquiry and necessitate a remand to give the district court an opportunity to consider the legal question of whether an NVOCC such as TWI is entitled to a maritime lien on cargo. However, because the district court dismissed TWI's in rem action on the ground that an NVOCC cannot claim a maritime lien on cargo,⁵  we are in a position to review de novo this purely legal issue, which has been fully briefed on appeal.⁶ 

III

The issue of whether an NVOCC can have a maritime lien on cargo is a matter of first impression nationwide.

* Pebbles argues that TWI is not entitled to a maritime lien on the Pyramid because, as an NVOCC, TWI was not the vessel owner in possession of the cargo and, therefore, lacks standing to assert a maritime lien. We are not persuaded.

Pebbles correctly notes that courts are reluctant to recognize new forms of maritime liens. See Melwire, 811 F.2d at 1273 (citations omitted) ("Maritime liens must be construed 'stricti juris, and cannot be extended by construction, analogy, or inference.' Consequently, ' [t]he only liens recognized today are those created by statute and those historically recognized in maritime law.' ").⁷ 

We do not believe that recognizing an in rem lien on cargo in favor of NVOCCs would appreciably expand the universe of maritime liens. The carrier's lien for ocean freight is well-established and NVOCCs are common carriers regulated by the Federal Maritime Commission ("FMC"). Although TWI neither owned nor operated the vessel transporting the Pyramid, TWI nonetheless assumed responsibility for the transportation as a "carrier" within the meaning of that term in maritime law.

For centuries, courts have held that people who own and operate a vessel have a lien on the cargo transported on their ships. The Bird of Paradise, 72 U.S. (5 Wall.) 545, 555, 18 L. Ed. 662 (1866) ("Legal effect of such a lien is, that the ship-owner, as carrier by water, may retain the goods until the freight is paid, or he may enforce the same by a proceeding in rem in the District Court."); In re 4,885 Bags of Linseed, 66 U.S. (1 Black) 108, 113, 17 L. Ed. 35 (1861) ("The lien of the carrier by water for his freight, under the ordinary bill of lading, although it is maritime, yet it stands upon the same ground with the carrier by land, and arises from his right to retain the possession until the freight is paid, and is lost by an unconditional delivery to the consignee."). Courts later permitted persons who merely operate a vessel (but who do not own it) to assert a lien on the cargo transported on that vessel. T.J. Stevenson & Co. v. 81,193 Bags of Flour, 449 F. Supp. 84, 120 (S.D. Ala. 1976), aff'd in part & rev'd in part, 629 F.2d 338, 375 (5th Cir. 1980) (holding that time charterer who operated a vessel owned by another had maritime lien for unpaid freight); Dominica Mining Co. v. Port Everglades Towing Co., Inc., 318 F. Supp. 500, 506 (S.D. Fla. 1969) (holding that bareboat charterer had lien for unpaid freight), aff'd without opinion, 433 F.2d 986 (5th Cir. 1970). When these later courts did this, they implicitly recognized that it was the carrier's assumption of responsibility for the transport of the cargo that conferred the lien.

NVOCCs assume the same responsibility for the delivery of cargo as do vessel owners or operators. 46 U.S.C.A.App. § 1702(17) (" [an NVOCC is] a common carrier"); 46 U.S.C.A.App. § 1702(6) (A) (" [a common carrier is] a person that ... assumes responsibility for the transportation from the port or point of receipt to the port or point of destination ..."); Fireman's Fund Am. Ins. Co. v. Puerto Rican Forwarding Co., Inc., 492 F.2d 1294, 1295 (1st Cir. 1974) ("although [an NVOCC] may not own the ships on which its customers' goods are physically transported, it nevertheless is the 'carrier' responsible for the through transportation of such goods, including the water portion") (emphasis added). We see no reason to deny NVOCCs the same rights to assert a lien that are possessed by these other carriers. We therefore hold that NVOCCs have an in rem maritime lien for unpaid freight against the cargo they are responsible for transporting.

Moreover, we note that TWI specifically reserved a lien on the Pyramid in its contract of carriage with Diamond. Contractual provisions regarding liens on cargo for freight are enforceable in admiralty. The Bird of Paradise, 72 U.S. at 555 ("Parties ... may frame their contract of affreightment as they please, and of course may employ words to affirm the existence of the maritime lien, or to extend or modify it.... [A]nd where they so agree, the settled rule in this court is, that the law will uphold the agreement and support the lien."); Melwire, 830 F.2d at 1083 (citations omitted) ("It is well-established that breach of a shipping contract may give rise to a maritime lien."); Eric M. Danoff, Provisional Remedies in Admiralty United States, 4 U.S.F. Mar. L.J. 293, 299 (1992) (" [A] lien on the cargo is normally expressly granted in the bills of lading and charter parties. If so, the extent of the relevant lien is governed by the terms of the lien clause.").

Even if TWI has standing to assert a maritime lien, Pebbles contends that the lien was extinguished by the delivery of the Pyramid to the rail carrier and by TWI's full payment to the ocean carrier. These arguments are meritless and will be addressed in turn.

Unlike a maritime lien that attaches to the vessel itself, a lien on cargo for freight is lost by an unqualified delivery of the cargo. 4,885 Bags of Linseed, 66 U.S. at 113 ("if [the shipowner] delivers [the goods], the incumbrances of the lien does not follow them in the hands of the owner or consignee"); Beverly Hills Nat'l Bank, 437 F.2d at 304 (citations omitted) ("It is extinguished by unconditional delivery of the goods.").

However, courts have emphasized that the preservation of the cargo lien does not require that the cargo remain on the vessel. Provided that the carrier has not unconditionally delivered the cargo to the consignee, the carrier may preserve the lien by maintaining actual or constructive possession of the cargo. See 4,885 Bags of Linseed, 66 U.S. at 114 (" [I]t is frequently, perhaps more usually, understood between the parties, that transferring the goods from the ship to the warehouse shall not be regarded as a waiver of the lien, and that the ship-owner reserves the right to proceed in rem to enforce it, if the freight is not paid."); Beverly Hills Nat'l Bank, 437 F.2d at 304 (" [T]he vessel owner's lien on cargo for freight continues only so long as the cargo remains in the owner's actual or constructive possession."); see also 2 Benedict on Admiralty § 23, at 2-19 to 2-20 (7th ed. rev.1995)⁸  (citing The Saturnus, 250 F. 407 (2d Cir.), cert. denied, 247 U.S. 521, 38 S. Ct. 583, 62 L. Ed. 1247 (1918)) ("Such liens are not strictly a privilege, as are liens on ships, but are approximate to the possessory lien of the land carrier and do not survive unconditional delivery of the cargo."); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law § 9-1, at 489-90 (2d ed.1994) (footnote omitted) ("The deposit of the goods in a warehouse will not be considered an unconditional delivery giving up the lien, however, if the evidence shows the parties intended to preserve it.").

TWI preserved its cargo lien by maintaining actual or constructive possession of the Pyramid until the district court granted TWI's application for its arrest.⁹  At no point did TWI deliver the Pyramid, conditionally or unconditionally, to Diamond and Chariot. Accordingly, the fact that the Pyramid was not on board the vessel Lauren when TWI filed its complaint in admiralty poses no bar to the enforcement of TWI's cargo lien.

In addition, by paying Maersk for the freight due on the bill of lading between Maersk and TWI, TWI by no means extinguished its lien for the freight due on its bill of lading with Diamond and Chariot. By definition, NVOCCs such as TWI have an obligation to pay the freight to the actual water carrier, while expecting to receive from the shipper a slightly higher freight. TWI fulfilled its obligation to Maersk, but Diamond and Chariot failed to satisfy their obligation to pay the freight charged by TWI.¹⁰ 

B

Pebbles goes on to contend that the notation "FREIGHT PREPAID" on TWI's bill of lading equitably estops TWI from claiming that Diamond and Chariot did not actually pay the freight. This argument is without merit.

"The estoppel doctrine requires that the consignee be in good faith and rely upon the false bill of lading. Without reliance, the holder of the bill cannot have been harmed by any false description of the goods and cannot recover." 2 Schoenbaum § 10-12, at 56 (footnotes omitted); see Portland Fish Co. v. States S.S. Co., 510 F.2d 628, 633 (9th Cir. 1974) ("absent reliance, there can be no estoppel").

Diamond and Chariot cannot show good faith or detrimental reliance since they did not actually pay the freight to TWI.¹¹  Unlike the shipper who successfully invoked equitable estoppel on "freight prepaid" bills of lading in Mediterranean Shipping Co. v. Elof Hansson, Inc., 693 F. Supp. 80 (S.D.N.Y. 1988), Diamond is not in danger of paying the freight twice. The shipper in Mediterranean Shipping paid all freight charges due on the bills of lading to its supplier in reliance on (1) the carrier marking the bills of lading "freight prepaid," and (2) the supplier paying over to the carrier the freight monies received from the shipper. Id. at 81. However, unbeknownst to the shipper, the supplier terminated its business without transferring the freight monies to the carrier. Id.¹² IV

In its verified complaint, TWI asserted an in personam cause of action against Diamond and Chariot for collection of tariff charges under the Shipping Act of 1984.

In response to Pebbles' motion to dismiss TWI's in rem action against the Pyramid under a cargo lien theory, the district court dismissed not only TWI's in rem lien action, but also TWI's in personam action against Diamond and Chariot. The district court dismissed the latter action even though (1) Pebbles' motion referred only to the in rem action, and (2) Diamond and Chariot never moved to dismiss the in personam action against them. Cf. Melwire, 811 F.2d at 1274 & n. 2 (affirming dismissal of admiralty action in rem, but stressing that this holding "does not affect any action by Melwire in personam against the [vessel owner]").

This court has clearly held "that an implied private cause of action under the Shipping Act allows carriers to sue shippers to collect fees owed pursuant to the published tariffs." Sea-Land Service, Inc. v. Murrey & Son's Co. Inc., 824 F.2d 740, 744 (9th Cir. 1987); see 2 Schoenbaum § 10-6, at 31 n. 1.¹³  Since TWI, as an NVOCC, is "considered a carrier in its relationship with the shipper of the goods,"¹⁴  it follows that TWI has a private right of action under the Shipping Act against Diamond and Chariot to collect tariffs filed by TWI with the FMC.

Accordingly, the district court erred in dismissing TWI's in personam action against Diamond and Chariot under the Shipping Act.

V

For the foregoing reasons, we reverse the district court's dismissal of TWI's in rem and in personam actions, and remand for further proceedings with specific instructions that the district court (1) recognize TWI's lien on the Pyramid, and (2) reinstate TWI's in personam action against Diamond and Chariot.

REVERSED and REMANDED.