World Fuel Services Trading v. Hebei Prince Shipping Company , 783 F.3d 507 ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1434
WORLD FUEL SERVICES TRADING, DMCC, d/b/a Bunkerfuels,
Plaintiff - Appellee,
v.
HEBEI PRINCE SHIPPING COMPANY, LTD.,
Claimant – Appellant,
and
M/V HEBEI SHIJIAZHUANG, her engines, tackle, equipment,
appurtenances, etc., in rem,
Defendant,
T. PARKER HOST, INC.,
Claimant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:13-cv-00173-MSD-DEM)
Argued: January 28, 2015 Decided: April 17, 2015
Before WILKINSON, AGEE, and HARRIS, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge Wilkinson and Judge Harris concurred.
ARGUED: Steven Michael Stancliff, CRENSHAW, WARE & MARTIN,
P.L.C., Norfolk, Virginia, for Appellant. Mark T. Coberly,
VANDEVENTER BLACK, LLP, Norfolk, Virginia, for Appellee. ON
BRIEF: James L. Chapman, IV, CRENSHAW, WARE & MARTIN, P.L.C.,
Norfolk, Virginia, for Appellant. Dustin M. Paul, VANDEVENTER
BLACK, LLP, Norfolk, Virginia, for Appellee.
2
AGEE, Circuit Judge:
World Fuel Services Trading, DMCC, (“DMCC”) brought this in
rem action against the M/V HEBEI SHIJIAZHUANG (“the Vessel”)
seeking to enforce a maritime lien for the supply of necessaries
under the Federal Maritime Lien Act (“FMLA”), 46 U.S.C. §
31342(a). The district court held that DMCC was entitled to a
maritime lien for the amount due for marine fuel (referred to as
“bunkers”) provided to the Vessel, and granted DMCC’s motion for
summary judgment. Hebei Prince Shipping Company, Limited,
(“Hebei Prince”), the owner of the Vessel, appeals. For the
reasons that follow, we affirm the judgment of the district
court in favor of DMCC.
I.
A.
To provide context for the underlying dispute, we begin
with a brief review of maritime lien law. A maritime lien is
“[a] lien on a vessel, given to secure the claim of a creditor
who provided maritime services to the vessel[.]” Black’s Law
Dictionary 1065 (10th ed. 2014). “It arises by operation of law
and exist[s] as a claim upon the property.” Id. (quoting
Griffith Price, The Law of Maritime Liens 1 (1940)); see also
Triton Marine Fuels Ltd., S.A. v. M/V PAC. CHUKOTKA, 575 F.3d
409, 416 (4th Cir. 2009) (“‘[M]aritime liens are stricti juris
3
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 contract.’” (quoting Bominflot, Inc. v. M/V
HENRICH S, 465 F.3d 144, 146 (4th Cir. 2006)).
Congress enacted the FMLA in 1910, which altered several
then-existing common law principles governing when a maritime
lien would arise under United States law. See id. at 417. That
initial legislation “provide[d] a single federal statute for the
determination of maritime liens, and by providing this uniform
scheme, the statute confer[red] domestic suppliers of
necessaries with the same lien rights as previously enjoyed only
by foreign suppliers under the common law.” Id. at 418. The
next major change to the FMLA occurred in “1971, when Congress
enacted legislation essentially to void ‘no lien’ clauses in
charters, as long as the supplier did not have actual knowledge
of such clause.” Id. at 418 n.5. Most recently, the FMLA was
recodified as part of the Commercial Instruments and Maritime
Liens Act, 46 U.S.C. §§ 31301-31343. For ease of reference,
however, we will continue to refer to the relevant statutes as
the “FMLA.” “Despite [these] recodifications, the fundamental
purposes underlying the FMLA have remained unchanged.” Triton
Marine, 575 F.3d at 417-18.
Generally speaking, a maritime lien arises more readily
under the FMLA than under the laws of other maritime countries.
4
E.g., Bominflot, 465 F.3d at 147 (“The United States as well as
a number of civil law nations . . . allow for broader use and
enforcement of maritime liens[.]”). As a result, which nation’s
law governs a particular maritime contract may be significant in
determining whether, or to what extent, a maritime lien exists.
B.
Hebei Prince, a corporation organized under the laws of
China, owns the Vessel, which is registered in Hong Kong. The
Vessel was leased to a Greek corporation, Tramp Maritime
Enterprises Ltd. (“Tramp Maritime”) under three consecutive time
charters (maritime contracts of ship charter) covering the
period from May 23, 2012 to November 28, 2012. The terms of the
time charters prohibited Tramp Maritime from incurring “any lien
or encumbrance” against the Vessel. (J.A. 86.)
In October 2012, Tramp Maritime emailed Aristades P. Vogas
of Bunkerfuels Hellas in Athens, Greece, to arrange for the
purchase of bunkers to be delivered to the Vessel while it was
docked at a port in the United Arab Emirates. The email reply
from Vogas confirming the transaction (“the Bunker
Confirmation”) identifies the “seller” as “BUNKERFUELS A
DBA/DIVISION OF WFS Trading DMCC” and the “buyer” as “MV HEBEI
SHIJIAZHUANG AND HER OWNERS/OPERATORS AND TRAMP MARITIME
ENTERPRISES LTD.” (J.A. 21.) It also identifies APSCO JEDDAH
5
as the “physical supplier” of the bunkers. (J.A. 21.) The
Bunker Confirmation further states:
ALL SALES ARE ON THE CREDIT OF THE VSL. BUYER IS
PRESUMED TO HAVE AUTHORITY TO BIND THE VSL WITH A
MARITIME LIEN. DISCLAIMER STAMPS PLACED BY VSL ON THE
BUNKER RECEIPT WILL HAVE NO EFFECT AND DO NOT WAIVE
THE SELLER’S LIEN. THIS CONFIRMATION IS GOVERNED BY
AND INCORPORATES BY REFERENCE SELLER’S GENERAL TERMS
AND CONDITIONS IN EFFECT AS OF THE DATE THAT THIS
CONFIRMATION IS ISSUED. THESE INCORPORATED AND
REFERENCED TERMS CAN BE FOUND AT WWW.WFSCORP.COM.
ALTERNATIVELY, YOU MAY INFORM US IF YOU REQUIRE A COPY
AND SAME WILL BE PROVIDED TO YOU.
(J.A. 21.)
APSCO JEDDAH delivered the bunkers to the Vessel according
to the terms of the Bunker Confirmation. The Vessel’s chief
engineer signed the delivery notices and attached a “no lien”
stamp, which stated “Bunkering Services and the bunkers are
ordered solely for the account of Charterers and not for owners.
Accordingly no lien or other claims whatsoever against the
Vessel or her owners can arise.” (J.A. 19, 20.)
Tramp Maritime subsequently received an invoice for the
bunkers purporting to be from “BUNKERFUELS A Division of World
Fuel Services Trading, DMCC” requesting payment. (J.A. 22.)
The invoice stated that the amount due could be wire-transferred
to a Bank of America account for “World Fuel Services Europe,
Ltd.” (J.A. 22.) Neither Tramp Maritime nor any other party
paid the invoice.
6
DMCC then filed this in rem action in the United States
District Court for the Eastern District of Virginia asserting it
was owed $809,420.50 for the unpaid bunkers, 1 and that it was
entitled to enforce a maritime lien on the Vessel under the
FMLA. It also moved for the court to issue a maritime warrant
for the arrest of the Vessel, which was expected to port in
Norfolk, Virginia, within fourteen days. The district court
issued an order for the maritime arrest warrant, which was
executed on the Vessel when it docked in Norfolk. Hebei Prince
later posted a cash bond so that the Vessel could be released
before resolution of the underlying complaint.
DMCC moved for summary judgment, which Hebei Prince
opposed. Hebei Prince then filed a cross-motion for summary
judgment, relying on the same grounds raised in its opposition
to DMCC’s motion. Challenging nearly every aspect of DMCC’s
claim, Hebei Prince argued: (1) DMCC was not a party in privity
to the Bunker Confirmation and thus could not assert a maritime
lien; (2) Greek law should apply to every aspect of the
contractual dispute; (3) the Bunker Confirmation did not
successfully incorporate the General Terms & Conditions on which
DMCC relied; (4) the General Terms & Conditions could not apply
to DMCC even if DMCC sought to incorporate them; (5) the General
1
This amount reflected the amount due for the bunkers plus
a contract-based administrative fee for past-due sums.
7
Terms & Conditions’ choice-of-law provision did not “choose”
United States statutory maritime law such as the FMLA; (6) DMCC
had actual knowledge of the prohibition of liens in Tramp
Maritime’s time charter and thus could not rely on the FMLA’s
presumption to bind the Vessel; and (7) principles of comity
require rejecting the application of United States law to this
transaction.
In a thorough opinion, the district court rejected all but
one of Hebei Prince’s arguments, and, in any event, that one
area of agreement did not alter the court’s ultimate holding.
See World Fuel Servs. Trading, DMCC v. M/V HEBEI SHIJIAZHUANG,
12 F. Supp. 3d 792 (E.D. Va. 2014). In sum, the district court
concluded that the Bunker Confirmation successfully incorporated
the General Terms & Conditions DMCC relied upon to establish
that United States law, including the FMLA, governed the
existence and enforcement of a maritime lien. The district
court also held that “no genuine issue of material fact
regarding the existence of a maritime lien in this matter
[exists and that], as a matter of law, [DMCC was] entitled to a
maritime lien against the [V]essel.” Id. at 810.
Following briefing and a hearing on the amount of damages
to be awarded, the district court entered final judgment
awarding DMCC $813,740.10. Hebei Prince noted a timely appeal.
8
Jurisdiction exists for the reasons discussed below in Section
II.A.
II.
Hebei Prince raises the same arguments on appeal that it
did in the district court. As for relief, it alternatively
argues that we should dismiss the case for lack of admiralty
jurisdiction, vacate the district court’s award of summary
judgment to DMCC and remand to resolve disputed issues of
material fact, or vacate the district court’s judgment and enter
final judgment in its favor.
We review the district court’s grant of summary judgment de
novo, applying the same standard as the district court. FDIC v.
Cashion, 720 F.3d 169, 173 (4th Cir. 2013). Summary judgment is
appropriate if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). In addition to construing the evidence
in the light most favorable to Hebei Prince, the non-movant, we
also draw all reasonable inferences in its favor. Cashion, 720
F.3d at 173.
To the extent Hebei Prince challenges not just the grant of
summary judgment, but the district court’s jurisdiction, we
review legal conclusions regarding jurisdiction de novo and
9
factual findings for clear error. Flame S.A. v. Freight Bulk
Pte. Ltd., 762 F.3d 352, 356 (4th Cir. 2014).
A.
Throughout its brief, Hebei Prince argues that the district
court lacked admiralty jurisdiction and therefore the case
should be dismissed. DMCC responds that Hebei Prince confuses
the district court’s admiralty jurisdiction with the merits of
DMCC’s claim of a maritime lien arising under the FMLA. We
agree with DMCC.
The Supreme Court noted the distinction, specifically in
the admiralty context, between establishing a court’s
jurisdiction and the determination of the merits of a cause of
action over a century ago in The Resolute, 168 U.S. 437 (1897):
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.
. . . [T]he 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 . . .; but, if the existence
of such a lien were a question of jurisdiction, then
10
nearly every question arising upon the merits could be
made one of jurisdiction.
Id. at 439-40 (emphasis added). This admiralty-specific
language is consistent with the Supreme Court’s general
statements in the non-admiralty context separating
jurisdictional questions from those concerning the merits of an
action. E.g., Lexmark Int’l, Inc. v. Static Control Components,
Inc., 134 S. Ct. 1377, 1387 n.4 (2014) (“‘[T]he absence of a
valid (as opposed to arguable) cause of action does not
implicate subject-matter jurisdiction, i.e., the court’s
statutory or constitutional power to adjudicate the case.’”
(quoting Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535
U.S. 635, 642-43 (2002)).
Here, Hebei Prince acknowledges that the Bunker
Confirmation was a maritime contract. See Norfolk S. Ry. Co. v.
Kirby, 543 U.S. 14, 24 (2004) (stating that whether a contract
is a “maritime contract,” “depends upon the nature and character
of the contract, and the true criterion is whether it has
reference to maritime service or maritime transactions”
(internal quotation marks and alteration omitted)). Similarly,
Hebei Prince does not contest that the Vessel was physically
within the “lawful custody of the court” at the time of its
arrest. See In re Millennium Seacarriers, Inc., 419 F.3d 83, 94
(2d Cir. 2005) (“[S]ubject matter jurisdiction lies in the
11
district court where the vessel or other res is located, but
that jurisdiction does not attach until the vessel is arrested
within the jurisdiction.”). Thus, under the standard
articulated in The Resolute, it is clear that the district court
possessed admiralty jurisdiction. 2 See Logistics Mgmt., Inc. v.
One (1) Pyramid Tent Arena, 86 F.3d 908, 912-13 (9th Cir. 1996)
(conducting this inquiry); see also Wilkins v. Commercial Inv.
Trust Corp., 153 F.3d 1273, 1276 (11th Cir. 1998) (same).
As a result, Hebei Prince’s arguments that DMCC does not
have an enforceable maritime lien under the FMLA do not
implicate admiralty jurisdiction, but rather go to the merits of
DMCC’s action. The district court had admiralty jurisdiction to
consider DMCC’s claim, and we have jurisdiction over this appeal
under 28 U.S.C. § 1291.
2
The Ninth Circuit has held that admiralty jurisdiction can
arise under the FMLA even where it would not also arise under
common law admiralty jurisdiction. See Ventura Packers, Inc. v.
F/V JEANINE KATHLEEN, 305 F.3d 913, 919 (9th Cir. 2002)
(“Although a maritime contract may support admiralty
jurisdiction, it is not an essential prerequisite to a civil
action in admiralty to enforce a statutory necessaries lien.”).
But see E.S. Binnings, Inc. v. M/V SAUDI RIYADH, 815 F.2d 660
(8th Cir. 1987) (concluding plaintiff could not proceed on a
claim seeking enforcement of an FMLA maritime lien because the
underlying contract was not a maritime contract and so the
district court lacked admiralty jurisdiction), overruled on
other grounds by Exxon Corp. v. Cent. Gulf Lines, Inc., 500 U.S.
603, 612 (1991). We need not delve into that question here
because jurisdiction exists in this case under traditional
principles establishing admiralty jurisdiction.
12
B.
Before addressing Hebei Prince’s substantive challenges to
the district court’s decision, we consider its threshhold
arguments as to which country’s law applies to the issues of
contract formation.
In the district court, Hebei Prince argued that under
Lauritzen v. Larsen, 345 U.S. 571 (1953), Greek law determined
issues of contract between the parties, including whether DMCC
was in privity of contract to the agreement and whether the
Bunker Confirmation contained a binding choice-of-law provision.
DMCC contended United States law applied, but that it made no
real difference as the principles of contract law were the same
under either country’s law and would lead to the same result in
its favor. After examining the terms of the Bunker Confirmation
and the parties’ arguments, the district court decided the most
prudent course was to assume that Hebei Prince was correct and
apply Greek law to any contract formation issues. As a
corollary, the district court observed that it would reach the
same conclusions on contract formation issues under United
States law as it did applying Greek law.
On appeal, the parties do not make particularly robust
arguments either as to the district court’s choice of Greek law,
its articulation of Greek contract law principles, or its
conclusion that the same analysis would result under United
13
States law. Hebei Prince instead maintains that the court erred
in its application of Greek law to the factual record. DMCC, in
turn, maintains that while the district court should have
applied United States law based strictly on the choice-of-law
provision, it prevails under either country’s law.
In Lauritzen, the Supreme Court set forth several factors
for federal courts sitting in admiralty to consider in
determining what country’s law governs: “(1) the place of the
wrongful act; (2) the law of the flag; (3) the allegiance of the
injured party; (4) the allegiance of the defendant shipowner;
(5) the place of contract; (6) the inaccessibility of a foreign
forum; and (7) the law of the forum.” Trans-Tec Asia v. M/V
HARMONY CONTAINER, 518 F.3d 1120, 1124 (9th Cir. 2008) (citing
Lauritzen, 345 U.S. at 583-92).
In Triton Marine, however, we found it unnecessary to
conduct a Lauritzen choice-of-law analysis because the contract
at issue contained a choice-of-law clause. See Triton Marine,
575 F.3d at 413; see also Lauritzen, 345 U.S. at 588-89 (“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.”). Relying on prior Supreme Court and Fourth Circuit
case law, we concluded that “absent compelling reasons of public
policy, a choice-of-law provision in a maritime contract should
be enforced,” and a Lauritzen choice-of-law analysis was
14
unnecessary. Triton Marine, 575 F.3d at 415; see also
Bominflot, Inc., 465 F.3d at 148 (holding that the choice of law
question was “made easy” by the party’s contractual provision
agreeing that English law would apply). 3 Thus, for the reasons
set forth in Triton Marine and Bominflot, Inc., a Lauritzen
choice-of-law analysis is unnecessary in this case.
Moreover, we agree with the district court that the
applicable law on the issues of contract formation would be the
same whether Greek or United States law is applied. As we
discuss in the context of the individual arguments below, Greek
contract law does not differ in any material respect from the
3
The choice-of-law clause at issue in Triton Marine was
located in the body of the contract. 575 F.3d at 413. In
Bominflot, we avoided the Lauritzen choice-of-law analysis based
on a choice-of-law provision that was incorporated by reference.
465 F.3d at 148; see also Hawkespere Shipping Co., Ltd. v.
Intamex, S.A., 330 F.3d 225, 233 (4th Cir. 2003) (“‘Where the
parties specify in their contractual agreement which law will
apply, admiralty courts will generally give effect to that
choice.’” (quoting Chan v. Soc’y Expeditions, Inc., 123 F.3d
1287, 1297 (9th Cir. 1997)). These cases thus counsel that if
we applied United States law to the question, we would enforce a
contract’s choice-of-law provision. Applied here, so long as
the General Terms were successfully incorporated to the Bunker
Confirmation, see analysis infra II.D at 28 n.6, it would govern
the dispute.
Although Hebei Prince asserts various reasons why an
otherwise incorporated choice-of-law provision should not be
enforced against it, none demonstrates a compelling public
policy. For example, we have previously rejected arguments that
enforcing such provisions adversely affects the interests of—and
works a fundamental unfairness against—a vessel owner who was
not party to the contract containing the choice-of-law
provision. See Triton Marine, 575 F.3d at 413-16.
15
corresponding principles of United States law. For this reason,
too, we need not resolve the choice-of-law question, as it makes
no discernible difference to the relevant analysis in the case
at bar. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 838
n.20 (1985) (Stevens, J., concurring in part and dissenting in
part) (“If the laws of both states relevant to the set of facts
are the same, or would produce the same decision in the lawsuit,
there is no real conflict between them.” (quotation marks and
citation omitted)); Hammersmith v. TIG Ins. Co., 480 F.3d 220,
230 (3d Cir. 2007) (stating that a conflict of law analysis is
unnecessary if the laws of each jurisdiction are the same, or
would lead to the same result, because there is no “conflict” in
the law that needs to be resolved); Okmyansky v. Herbalife Int’l
of Am., Inc., 415 F.3d 154, 158 (1st Cir. 2005) (“[W]hen
resolution of a choice-of-law determination would not alter the
disposition of a legal question, a reviewing court need not
decide which body of law controls.”); Fin. One Pub. Co. v.
Lehman Bros. Special Fin., Inc., 414 F.3d 325, 331 (2d Cir.
2005) (“[W]e [do] not have occasion to embark on a choice-of-law
analysis in the absence of an actual conflict between the
applicable rules of two relevant jurisdictions.”); Cruz v. Am.
Airlines, Inc., 356 F.3d 320, 331-32 (D.C. Cir. 2004) (same);
Modern Equip. Co. v. Cont’l W. Ins. Co., 355 F.3d 1125, 1128 n.7
(8th Cir. 2004) (same); Schneider Nat’l Transp. v. Ford Motor
16
Co., 280 F.3d 532, 536 (5th Cir. 2002) (same). We will
therefore follow the district court’s approach in using
principles of Greek law pertaining to contract formation, but
noting the parallel analysis under United States law.
C.
Hebei Prince argues that the district court erred at the
outset of the case as it contends that the record does not
establish DMCC as a party in the underlying transaction and
therefore without any right to bring the in rem action.
Essentially, Hebei Prince contends DMCC was not in privity of
contract with Tramp Maritime because it has not shown that it
was an actual party to the Bunker Confirmation. 4 Consequently,
Hebei Prince posits that DMCC cannot seek to enforce a maritime
lien against the Vessel based on that agreement and that this
problem requires dismissal of the suit or, at the very least,
remand to resolve a genuine issue of material fact as to DMCC’s
4
Hebei Prince acknowledges that the Bunker Confirmation
formed a contract between Tramp Maritime and another entity, but
it disputes that DMCC is that other entity. In other words,
Hebei Prince asserts that Tramp Maritime entered into an
agreement with Bunkerfuels Hellas or even the entity identified
on the Bunker Confirmation as “BUNKERFUELS A DBA/DIVISION OF WFS
TRADING DMCC,” but that no evidence in the record demonstrated
that DMCC is either related by law to Bunkerfuels Hellas or is
“BUNKERFUELS A DBA/DIVISION OR WFS TRADING DMCC.” (Cf. J.A.
21.)
17
standing to bring an action based on the Bunker Confirmation.
We disagree.
Applying principles of Greek agency law, the district court
concluded that Vogas had entered into the agreement with Tramp
Maritime on behalf of his principal, DMCC. See World Fuel
Servs. Trading, 12 F. Supp. 3d at 802 (“The Greek doctrine of
‘ostensible authority’ is much like the agency law recognized in
the United States, where ‘[t]he essential underlying principle
in the agency relationship is the power of an agent to commit
his principal to business relations with third parties.’”
(citation omitted)). The district court emphasized that in
contrast to the record DMCC pointed to as evidence that it was
the seller of bunkers to Tramp Maritime, Hebei Prince presented
no “specific facts” supported in the record that created a
“‘genuine issue for trial,’ as to whether [DMCC] was a party to
the contract.” See id. at 804 (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986)).
We agree with the district court that the record permits no
conclusion but that DMCC sold Tramp Maritime the bunkers
specified in the Bunker Confirmation through its agent, Vogas.
Because DMCC filed a verified complaint, it contains a sworn
statement indicating that its contents are “true and correct
based upon [the] personal knowledge and documents available to”
DMCC, and we can treat those components of it as “the equivalent
18
of an opposing affidavit for summary judgment purposes.”
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991); see also
Supp. Rules for Admiralty or Maritime Claims R. C(2) (requiring
that the complaint in an in rem action be verified). (See J.A.
18, containing the verification of Richard D. McMichael, a
“Director of WORLD FUEL SERVICES TRADING, DMCC.) The verified
complaint states that “World Fuel Services Trading, DMCC, d/b/a
Bunkerfuels” entered into the agreement memorialized in the
Bunker Confirmation for its subcontractor APSCO to deliver
bunkers to the Vessel. (J.A. 14.) Consistent with this
assertion, the Bunker Confirmation identifies the seller of the
bunkers as “BUNKERFUELS A DBA/DIVISION OF WFS Trading DMCC.”
(J.A. 21.) Even more clearly, the invoice Tramp Maritime
received after the bunkers had been delivered refers to
“BUNKERFUELS A Division of World Fuel Services Trading, DMCC.”
(J.A. 22.)
While DMCC’s name as specified in the verified complaint is
“World Fuel Services Trading, DMCC,” nothing in the record
suggests that the “WFS Trading DMCC” identified on the Bunker
Confirmation refers to an entity other than DMCC. All the
record evidence points to the same conclusion: “WFS Trading
DMCC” is “World Fuel Services Trading, DMCC,” and “WFS” is
simply an acronym for “World Fuel Services” rather than a formal
designation of a separate entity. Examples of this practice
19
exist throughout this case: the website listed in the Bunker
Confirmation (www.wfscorp.com) uses the elongated “World Fuel
Services” throughout the website, the bunker invoice refers to
both “World Fuel Services” and “WFS,” as do other items in the
record. (J.A. 21, 22.) Indeed, in other contexts, even Hebei
Prince’s filings use “WFS” and “World Fuel Services”
interchangeably.
Furthermore, in his sworn declaration and deposition
testimony, Jos Heijmen, the Senior Vice President of Credit &
Risk Management of World Fuel Services Corporation, explained
the relationship between the various entities. He stated that
World Fuel Services Corporation is the parent corporation of
“the World Fuel Services Group of Companies,” which includes
DMCC. (J.A. 252.) He observed that DMCC “is part of a network
of affiliated and related companies that provide fuel to ocean-
going vessels throughout the world, doing business under the
trade name ‘Bunkerfuels.’” (J.A. 252.) He noted that
Bunkerfuels Hellas is the Athens, Greece branch of a World Fuel
Services subsidiary, and that it “provide[s] marketing and
promotion services to Greek ship operators/owners and local
suppliers.” (J.A. 252.) He stated that when a Bunkerfuels
Hellas employee receives a bunker inquiry, the transaction is
automatically routed through “the World Fuel’s affiliated
company located in the geographic region of the world where the
20
bunkers will be delivered to the vessel.” (J.A. 252.) And he
identified DMCC as World Fuel Service’s “provider of bunker fuel
for ocean-going vessels in the [United Arab Emirates] and the
Middle East,” and that DMCC is organized under the laws of the
United Arab Emirates with its principal place of business in
Dubai. (J.A. 251.)
Heijmen also explained that Vogas is an employee of
Bunkerfuels Hellas, and is authorized “to enter into contracts
with [Greek vessel operators/owners like Tramp Maritime] on
behalf of and for the World Fuel Services affiliate located
where the ship required and was supplied bunkers,” including
transactions on behalf of DMCC. (J.A. 252-53.) He specifically
stated that Vogas was authorized “by World Fuel Services
Trading, DMCC, in October 2012 to act and enter on behalf of
World Fuel Services Trading, DMCC into the contract with Tramp
Maritime Enterprises, Ltd. that is at issue in this case.”
(J.A. 253.)
Hebei Prince’s attempts to ignore or explain away this
testimony amounts to no more than conjecture. Without record
evidence to support its assertions, Hebei Prince speculates that
DMCC may not be the entity it purports to be, that documents
cannot mean what they say on their face, and that entities are
not related in the only way they are described above. Hebei
Prince’s parsing of Heijmen’s declaration and deposition
21
testimony goes beyond any common-sense reading of those
documents. In sum, it attempts to manufacture doubt where none
exists to obscure the relationship between DMCC and the
transaction at issue. Based on the record in this case, the
district court did not err in concluding that Hebei Prince
failed to show a genuine issue of material fact as to whether
Vogas entered into the Bunker Confirmation as the agent of the
seller, DMCC.
Lastly, Hebei Prince asserts that even if Vogas was DMCC’s
agent, that fact “was not accurately disclosed and was
misleading.” (Opening Br. 19.) We readily reject that notion.
The Bunker Confirmation hardly disguises the identity of the
seller, “BUNKERFUELS A DBA/DIVISION OF WFS Trading DMCC.” (J.A.
21.) Regardless of the effectiveness of the incorporation by
reference, the Bunker Confirmation also refers to and directs
readers to the “SELLER’S GENERAL TERMS AND CONDITIONS . . .
FOUND AT WWW.WFSCORP.COM.” (J.A. 21 (emphasis added).) In
addition, the email addresses provided for both Vogas and
Bunkerfuels Hellas contain the domain “wfscorp.com.” (J.A. 21
(emphasis added).) The Bunker Confirmation plainly provides
notice of Vogas’ association with WFS subsidiary DMCC.
For these reasons, we conclude the district court did not
err in concluding that DMCC was in privity of contract with
Tramp Maritime. It follows that regardless of its eventual
22
success on the claim, DMCC could assert a cause of action based
on an alleged breach of the Bunker Confirmation, including a
claim that it had an enforceable maritime lien under the FMLA.
D.
Next, we address whether the district court erred in
concluding Greek law would recognize the language contained in
the Bunker Confirmation to validly incorporate World Fuel
Service’s General Terms & Conditions (“General Terms”). As
noted, the Bunker Confirmation states it is
GOVERNED BY AND INCORPORATES BY REFERENCE SELLER’S
GENERAL TERMS AND CONDITIONS IN EFFECT AS OF THE DATE
THAT THIS CONFIRMATION IS ISSUED. THESE INCORPORATED
AND REFERENCED TERMS CAN BE FOUND AT WWW.WFSCORP.COM.
ALTERNATIVELY, YOU MAY INFORM US IF YOU REQUIRE A COPY
AND SAME WILL BE PROVIDED TO YOU.
(J.A. 21.)
The undisputed evidence in the record reflects that to
reach the text of the General Terms on wfscorp.com, a user must
click on two more links: either by clicking on a link labeled
“Marine” and then on a second link labeled “Marine Terms and
Conditions,” which contains a .pdf version of the General Terms,
or by hovering over a “By Sea” graphic, clicking on the link
“learn more,” and then clicking on a link labeled “Marine Terms
and Conditions.” (J.A. 316, 321-28.)
23
The parties submitted declarations from Greek attorneys
stating their respective opinions on whether and when terms are
incorporated by reference, and whether and when a choice of law
provision is enforceable under Greek law. Unsurprisingly,
although the attorneys agreed about these broader points of
Greek law, they disagreed about whether the Bunker Confirmation
satisfied them.
The district court ruled that no genuine issue of material
fact existed as to whether the Bunker Confirmation validly
incorporated the General Terms. Based on the information
provided by both parties, the district court noted that Greek
law respected choice of law provisions, and also authorized
contracts to incorporate other documents by reference. See Fed.
R. Civ. P. 44.1 (stating, in relevant part, that “[i]n
determining foreign law, the court may consider any relevant
material or source, including testimony, whether or not
submitted by a party or admissible under the Federal Rules of
Evidence”). The district court observed that Hebei Prince’s
Greek attorney witness stated that such provisions must be
drafted in “a clear, plain and explicit way” to be valid. World
Fuel Servs. Trading, 12 F. Supp. 3d at 804. And it also
observed that DMCC’s Greek attorney witness stated that Greek
law recognized that terms can be incorporated by reference so
long as the contracting parties obtain knowledge of their
24
contents or be given the opportunity to obtain such knowledge.
The court then held that the Bunker Confirmation’s language
satisfied both of these standards. That is, it was
“sufficiently clear and explicit to direct Tramp [Maritime] – as
well as anyone else who received the bunker confirmation – to
the General Terms.” Id.
The district court also rejected Hebei Prince’s argument
that the General Terms lacked the requisite clarity because the
preamble did not identify DMCC by name. The court first
observed that the preamble to the General Terms provided a non-
exclusive list of corporations to which it applied, so DMCC’s
absence had no significance. Then, the court noted that the
preamble stated that the General Terms applied to “‘all
subsidiaries of [WFS],’” and that the record evidence showed
DMCC was a subsidiary of WFS. Id. at 796. Lastly, the court
stated that since the Bunker Confirmation incorporated the
General Terms, DMCC had adopted the document regardless of what
the General Terms preamble purported its applicability to be.
Hebei Prince’s arguments on appeal echo those it made to
the district court, that the Bunker Confirmation did not validly
incorporate the General Terms because it does not identify the
specific internet site where those provisions could be located.
In addition, it asserts that because the preamble to the General
25
Terms does not specifically refer to DMCC or Bunkerfuels, the
document does not clearly apply to the transaction at issue.
The district court did not err in concluding that the
Bunker Confirmation validly incorporated the General Terms into
the agreement. The Bunker Confirmation plainly expresses that
it incorporates the terms of another specific document, the
General Terms. Consequently, Tramp Maritime, along with any
other reader of the Bunker Confirmation, was immediately put on
notice of the existence of a specific additional document that
contained provisions that were also part of the Bunker
Confirmation. In addition, the Bunker Confirmation provides two
means of obtaining a copy of the General Terms: visiting the
wfscorp.com website or asking for a copy. Although individuals
in search of the General Terms need to click on two internal
links to reach the text, the terms are readily found through
wfscorp.com links identified by such relevant language as “By
Sea,” “Marine,” and “Marine Terms and Conditions.” See One
Beacon Ins. Co. v. Crowley Marine Servs., Inc., 648 F.3d 258,
266-70 (5th Cir. 2011) (using a similar standard (unambigious,
clear, specific, conspicuous, and explicit) for valid
incorporation by reference to conclude that terms and conditions
available four clicks into the website contained in the contract
were validly incorporated). Moreover, had any reader asked for
a copy of the referenced document, the text would have been
26
readily reviewable in that form as well. 5 On its face, then, the
Bunker Confirmation effectively incorporated the General Terms.
As the district court concluded, the incorporation was
“sufficiently clear and explicit to direct” readers to the
General Terms and it “explicitly offered Tramp [Maritime] ‘the
opportunity to obtain knowledge’ of the General Terms.” World
Fuel Servs. Trading, 12 F. Supp. 3d at 804.
The language in the preamble to the General Terms does not
alter this conclusion. The preamble does not purport to
identify an exhaustive list of entities to which it applies.
Instead, it states that the group of companies to which it
applies “includes, but is not limited to” certain delineated
companies. (J.A. 23.) The preamble also states that it applies
to “the World Fuel Services corporation Marine Group of
companies . . . and their respective trade names, subsidiaries,
affiliates and branch offices. This list includes all
subsidiaries of [WFS] who have sold, are selling or will sell
marine petroleum products and services, whether or not in
existence on the effective date.” (J.A. 23.) For the reasons
already identified in part II.C, supra, DMCC and Bunkerfuels
fall within the network of WFS marine companies. Accordingly,
5
Hebei Prince does not contend that it or Tramp Maritime
ever requested a written copy of the General Terms. Nor does it
contend that the website access procedure described above is
inaccurate.
27
the General Terms do not create doubt as to their applicability
to DMCC or otherwise undermine the Bunker Confirmation’s
incorporation of the General Terms by reference. 6
E.
Having concluded that the Bunker Confirmation validly
incorporated the General Terms as part of the formation of the
governing contract between the parties, we turn to Hebei
Prince’s contention that the General Terms’ choice-of-law
provision does not encompass the FMLA. In that regard, the
General Terms provide, in pertinent part:
The General Terms and each Transaction shall be
governed by the General Maritime Law of the United
States and, in the event that the General Maritime Law
of the United States is silent on the disputed issue,
the law of the State of Florida, without reference to
any conflict of laws rules which may result in the
application of the laws of another jurisdiction. The
General Maritime Law of the United States shall apply
with respect to the existence of a maritime lien,
6
Even if we had bypassed Greek law and instead applied
United States law, we would reach the same result and conclude
that the choice-of-law clause was successfully incorporated.
“Under general contract principles, where a contract expressly
refers to and incorporates another instrument in specific terms
which show a clear intent to incorporate that instrument into
the contract, both instruments are to be construed together.”
One Beacon Ins. Co., 648 F.3d at 267 (citing 11 Williston on
Contracts § 30:25 (4th ed. 1999)). For the reasons articulated
above, the parties’ intent here is clearly expressed by the
provisions in the Bunker Confirmation stating that it would be
governed by the General Terms, as well as the language informing
Tramp Maritime (or any reader) of two means of acquiring the
text of the General Terms.
28
regardless of the country in which Seller takes legal
action.
(J.A. 34.)
The district court rejected Hebei Prince’s argument that
the phrase “General Maritime Law of the United States” did not
include the FMLA. Observing that United States maritime law has
developed through both case law and statutes, the district court
noted that “‘when a statute resolves a particular issue, . . .
the general maritime law must comply with that resolution.’”
World Fuel Servs., 12 F. Supp. 3d at 806 (quoting Norfolk
Shipbuilding & Drydock Corp. v. Garris, 532 U.S. 811, 817
(2001)). The court then traced the evolution of the FMLA from
its original enactment in 1910 through its various amendments,
which slowly altered principles previously established in the
“general maritime law” concerning maritime liens under United
States law. It concluded that since “general maritime”
principles “must” give way to conflicting statutes where
Congress has spoken on a particular issue, “the General Maritime
Law of the United States” essentially changes to be consistent
with the statutory principles. Accordingly, the district court
ruled that the General Terms’ choice of “General Maritime Law of
the United States” included the FMLA. Id. at 807-08.
Citing to various cases and the legislative history of the
FMLA, Hebei Prince contends this was error because the phrase
29
“General Maritime Law of the United States” is generally
construed as a term of art to only encompass maritime case law
rather than maritime statutory law. 7 Hebei Prince argues that
under this construction of the term, DMCC faces a Catch-22
conundrum. On the one hand, the General Terms would not allow
DMCC to rely on a maritime lien arising under the FMLA because
“General Maritime Law of the United States” excludes statutory
law. On the other hand, DMCC could not obtain a maritime lien
under case law because the FMLA is now the sole means of
obtaining a maritime lien for the provision of necessaries under
7
For example, Hebei Prince observes that the Supreme Court
has frequently distinguished between statutory and general
maritime law. See E. River S.S. Corp. v. Transamerica Delaval,
Inc., 476 U.S. 858, 864 (1986) (“Absent a relevant statute, the
general maritime law, as developed by the judiciary, applies.”).
In addition, it relies on the Fifth Circuit’s discussion in
McBride v. Estis Well Serv., L.L.C., 731 F.3d 505 (5th Cir.
2013), in which the court stated:
There are two primary sources of federal maritime law:
common law developed by federal courts exercising the
maritime authority conferred on them by the Admiralty
Clause of the Constitution (“general maritime law”),
and statutory law enacted by Congress exercising its
authority under the Admiralty Clause and the Commerce
Clause (“statutory maritime law”).
Id. at 507-08. Although it is unrelated to Hebei Prince’s
argument, we note that the panel decision in McBride has
subsequently been vacated in light of the grant of
rehearing en banc, 743 F.3d 458 (5th Cir. 2014), and en
banc decision, 768 F.3d 382 (5th Cir. 2014). The en banc
dissent still reiterates this same general principle. 768
F.3d at 405 (Higginson, J., dissenting).
30
United States law. Consequently, Hebei Prince argues that the
General Terms do not entitle DMCC to a maritime lien.
To be sure, the General Terms’ choice-of-law provision
could have been written in a way that would avoid this question
entirely. In Triton Marine, for example, the relevant clause
stated that the “agreement shall be governed by and construed in
all particulars by the laws of the United States of America[.]”
575 F.3d at 412. So, too, the Ninth Circuit has reviewed a
choice-of-law provision that selected “the general maritime laws
of the United States and applicable United States Statutes.”
Flores v. Am. Seafoods Co., 335 F.3d 904, 918 n.8 (9th Cir.
2013). Either of these constructions clearly incorporates
federal statutory maritime laws such as the FMLA.
But even assuming, without deciding, that Hebei Prince’s
reading of the term “General Maritime Law of the United States”
is correct and the FMLA is not part of the “General Maritime Law
of the United States,” Hebei Prince still cannot prevail. This
is so because the General Terms alternatively provides if the
“General Maritime Law of the United States is silent on the
disputed issue, the law of the State of Florida [governs.]”
(J.A. 34.)
Florida law resolves the issue in favor of DMCC because
Florida law must be deemed to include United States law—by case
law or by statute. The Supreme Court has long stated that “‘a
31
fundamental principle in our system of complex national polity’
mandates that ‘the Constitution, laws, and treaties of the
United States are as much a part of the law of every state as
its own local laws and Constitution.’” Fidelity Fed. Sav. &
Loan Ass’n v. de la Cuesta, 458 U.S. 141, 157 (1982) (quoting
Hauenstein v. Lynham, 100 U.S. 483, 490 (1879)). A choice-of-
law provision directing us to the laws of Florida thus
encompasses federal statutory law, including the FMLA. See
Atkinson v. General Elec. Credit Corp., 866 F.2d 396, 398-99
(11th Cir. 1989) (concluding, based in part on Fidelity Fed.
Sav. & Loan Ass’n, that “Georgia law includes federal law” where
a choice-of-law provision selected “the laws of the State of
Georgia” but was silent as to federal statutory law’s
applicability). Accordingly, the General Terms’ choice-of-law
provision authorizes DMCC to pursue a maritime lien under the
FMLA.
F.
Hebei Prince alternatively argues that even if the FMLA
applies to the transaction, DMCC is still not entitled to a
maritime lien because it has not satisfied all of the
requirements under the FMLA. Once again, we disagree.
In relevant part, the FMLA provides that “a person
providing necessaries to a vessel on the order of . . . a person
32
authorized by the owner” “has a maritime lien on the vessel” and
“may bring a civil action in rem to enforce the lien.” 46
U.S.C. § 31342(a). The FMLA creates a presumption that
charterers (e.g., Tramp Maritime) have such “authority to
procure necessaries for” the Vessel. See § 31341(a)(4)(B).
Hebei Prince contends that it produced proof rebutting this
statutory presumption that Tramp Maritime had such authorization
here. Alternatively, Hebei Prince maintains that the record
demonstrates a genuine issue of material fact as to whether the
presumption applies. It asserts DMCC had actual knowledge that
Tramp Maritime was not authorized to enter into agreements that
would give rise to a maritime lien against the Vessel and points
to two prior contracts between Bunkerfuels Hellas and Tramp
Maritime, where Tramp Maritime had placed no-lien stamps on the
delivery receipts. Hebei Prince contends these prior acts
provided DMCC cognizable notice that Tramp Maritime could not
procure necessaries in an agreement that would bind the Vessel.
In addition, Hebei Prince maintains that upon seeing the no-lien
stamp affixed to the delivery receipt for the bunkers at issue
here, DMCC’s sub-contractor APSCO could—and should—have engaged
in self-help to immediately reclaim the bunkers. Hebei Prince
asserts DMCC’s failure to take such prompt action following
actual notice of the no-lien provision caused it to waive the
right to a maritime lien.
33
We agree with the district court that no triable issue of
fact exists on this issue. The statutory presumption discussed
above can be rebutted only by proof that the seller had actual
knowledge that the charterer lacked the ability to bind the
vessel as part of the contract for necessaries. See Triton
Marine, 575 F.3d at 418 n.5 (observing that in 1971 Congress
recodified the FMLA “essentially to void ‘no lien’ clauses in
charters, as long as the supplier did not have actual knowledge
of such clause”); Lake Charles Stevedores, Inc. v. PROFESSOR
VLADIMIR POPOV MV, 199 F.3d 220, 224-25 (5th Cir. 1999)
(discussing cases in the Fifth and Eleventh Circuits holding the
same, as well as recounting the changes in the statute leading
to this conclusion). Put another way, “a supplier of
necessaries ordered by a § 31341(a) entity subject to a no-lien
clause not made known to the supplier has a maritime lien.”
Lake Charles Stevedores, 199 F.3d at 225.
None of the evidence Hebei Prince relies on demonstrates
that DMCC had actual knowledge of the no-lien provision in Tramp
Maritime’s charter party. Hebei Prince does not contend that it
or Tramp Maritime ever notified DMCC or Bunkerfuels Hellas of
the terms of their charter party. This is so despite the Bunker
Confirmation clearly stating that Tramp Maritime “is presumed to
have authority to bind the [Vessel] with a maritime lien.”
(J.A. 21.) The Bunker Confirmation thus plainly contemplated
34
that a presumption of authority to obligate the Vessel existed,
and there is no evidence that anyone attempted to notify DMCC to
the contrary at any point between Tramp Maritime receiving the
Bunker Confirmation and accepting delivery of the bunkers.
The no-lien stamps affixed to prior delivery notices when
Tramp Maritime was operating under prior charter parties is
insufficient to provide actual knowledge of the current charter
party. Those prior stamps say nothing about the terms of Tramp
Maritime’s charter to operate the Vessel at the time it entered
into the agreement set forth in the Bunker Confirmation.
The primary case Hebei Prince relies upon to satisfy its
burden, Belcher Oil Co. v. M/V GARDENIA, 766 F.2d 1508 (11th
Cir. 1985), materially differs from the facts here. In Belcher
Oil, the supplier was notified prior to delivery of the bunkers
that the charter party contained a no-lien clause prohibiting
the charterer from obligating the vessel. Id. at 1510. Only as
“corroborat[ion]” of this finding of actual knowledge did the
Eleventh Circuit also note that the charterer had put disclaimer
stamps on the bunkering certificates for prior deliveries from
the same seller. However, the presumption against lien
authority was only rebutted because the evidence showed the
supplier actually knew the charterer was bound by a no-lien
clause before delivery of the fuel. By contrast, there is no
proof in this case that DMCC actually knew that the operative
35
charter party contained a no-lien clause. Accordingly, Hebei
Prince cannot rebut the presumption based on prior contracts
between Tramp Maritime and Bunkerfuels.
Hebei Prince’s second argument fares no better, as the no-
lien stamps affixed to the delivery notices did not provide
timely actual notice of any no-lien clause in the charter party.
This is so for at least two reasons. First, the Bunker
Confirmation states that “[d]isclaimer stamps placed by [anyone]
on the bunker receipt will have no effect and do not waive the
seller’s lien.” (J.A. 21.) Despite this language, Tramp
Maritime never contacted DMCC to convey the terms of the charter
party or that it viewed the no-lien stamps as effective.
Moreover, anyone reading the terms of the Bunker Confirmation
would have reason to believe that even if a no-lien stamp was
placed on the delivery receipt, it would be of no effect. Given
the terms of the Bunker Confirmation, DMCC and its subcontractor
APSCO both had reason to believe that any no-lien stamps were
ineffective.
Second, delivery of the bunkers fulfilled DMCC’s obligation
under the Bunker Confirmation, and notice at that point of the
no-lien provision would be too late to alter the terms of the
existing agreement. Contrary to Hebei Prince’s assertion, DMCC
was not required to engage in self-help and demand immediate
return of the bunkers upon learning that a no-lien stamp had
36
been affixed to the delivery notice. The out-of-circuit case it
relies on for this assertion is not binding on us. See Ferromet
Res. v. Chemoil Corp., 5 F.3d 902, 903 (5th Cir. 1993). More
importantly, the FMLA’s provisions were not at issue before that
court, and it did not discuss the presumption that arises under
§ 31341(a) or what evidence is sufficient to rebut it. Id.
Ferromet Resources involved a tort claim brought by the
charterer against a supplier after the supplier of bunkers
refused to unmoor from alongside the vessel until the delivery
notice was signed without a no-lien stamp. The Eleventh Circuit
held that a genuine issue of material fact existed as to when
the supplier was notified that the charterer lacked authority to
incur liens. If it was before delivery, then the charterer
could likely recover damages incurred as a result of the delay
caused by the supplier’s refusal to unmoor. Id. at 905. If the
supplier was not notified of the no-lien clause until delivery,
then the supplier may have been entitled to engage in self-help.
Id. Nothing in Ferromet Resources suggests that a supplier must
engage in self-help or attempt to retrieve delivered bunkers
simply because a no-lien stamp has been placed on the delivery
receipt.
Accordingly, we conclude that § 31341(a)’s presumption of
authority to procure necessaries applies to the Bunker
Confirmation transaction. Hebei Prince failed to demonstrate or
37
even proffer evidence creating a genuine issue of material fact
as to whether DMCC had actual knowledge of Tramp Maritime’s lack
of authority to bind the Vessel.
Given that the remaining § 31342(a) requirements are either
uncontested or have already been resolved in DMCC’s favor, we
also conclude that DMCC was entitled to bring this action to
enforce a maritime lien against the Vessel.
G.
Hebei Prince’s final, comity-themed argument echoes
throughout its brief. It contends that United States law with
respect to maritime liens is so “out of step with existing
international conventions and the law of other major maritime
nations” that the Court should find a way to conclude no lien
arose under the facts of this case. (Opening Br. 51.) As Hebei
Prince acknowledges, its arguments align with those previously
rejected in other cases, most directly Triton Marine. “‘[A]
panel of this court cannot overrule, explicitly or implicitly,
the precedent set by a prior panel of this court. Only the
Supreme Court or this court sitting en banc can do that.’”
Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 n.2 (4th
Cir. 2002) (quoting Mentavlos v. Anderson, 249 F.3d 301, 312 n.4
(4th Cir. 2001)). Accordingly, we need not engage this argument
further.
38
III.
For the reasons explained above, we affirm the judgment of
the district court granting summary judgment to DMCC.
AFFIRMED
39