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\par No. 95-525
\par 
\par IN THE SUPREME COURT OF THE UNITED STATES
\par 
\par OCTOBER TERM, 1995
\par 
\par UNITED STATES OF AMERICA, PETITIONER
\par 
\par v.
\par 
\par TURECAMO OF SAVANNAH, INC.
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS 
\par FOR THE ELEVENTH CIRCUIT
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par Department of Justice 
\par Washington, D.C. 20530
\par (202) 514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States
\par 
\par OCTOBER TERM, 1995
\par 
\par No. 95-525
\par 
\par UNITED STATES OF AMERICA, PETITIONER
\par 
\par  v.
\par 
\par TURECAMO OF SAVANNAH, INC.
\par 
\par ON PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE ELEVENTH CIRCUIT
\par 
\par REPLY BRIEF FOR THE UNITED STATES
\par 
\par 1. The panel of the court of appeals below specified
\par five analytical flaws underlying the circuit precedent
\par it was bound to follow when interpreting 46 U.S.C.
\par 31342 (Supp. V 1993) and the public vessel exemption
\par to that Section in the Maritime Commercial Instru-
\par ments and Liens Act (MCILA), 46 U.S.C. 31301 et seq.
\par Pet. App. 11a-14a. The panel suggested that, in light
\par of the legal unsoundness of the circuit precedent, the
\par court of appeals should reconsider the issue en banc.
\par Ibid. 
\par Respondent claims, to the contrary, that "the law
\par in this area is relatively well-settled." Br. in Opp. 16.
\par As its only support for that contention, respondent
\par quotes a statement by the court of appeals that
\par 
\par (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2
\par 
\par "Congress `has expressly stated its intent'" and "it is
\par inappropriate to second-guess Congress' view of
\par existing law." Ibid. (quoting Pet. App. 12a-13a). But
\par Congress's express intent, as found by the court of
\par appeals in the quoted passage, is directly contrary to
\par respondent's view of the law. As the court of appeals
\par noted, Congress intended to prohibit, not to permit,
\par in personam actions under Section 31342 against the
\par United States based on in rem principles. See Pet.
\par App. 12a-13a & n.9.
\par Respondent attempts to defend the statutory inter-
\par pretation that was applied by the court of appeals,
\par despite the fact that that interpretation is incon-
\par sistent with the statute's plain text, structure and
\par history. The linchpin of respondent's argument is a
\par statement in the legislative history of the MCILA
\par that the 1988 enactment of the MCILA was intended
\par to make "no substantive change to law." See Br. in
\par Opp. 3, 7, 8, 10, 11. Respondent relies on this state-
\par ment to contend that the MCILA must be interpreted
\par to permit in personam actions based on in rem
\par principles because of respondent's view that the
\par earlier law permitted such actions. Ibid. But the
\par statement in the legislative history that no sub-
\par stantive change was intended was made before the
\par statutory provision at issue in this case was added to
\par the Act.  That statement could not have been
\par referring to the statutory language at issue here
\par because that language was not yet in the proposed
\par statute. This point is the first among those listed by
\par the court of appeals as flaws in the statutory analysis
\par of the circuit precedent. Pet. App. 11a-12a.
\par Respondent's assertions that later statements sup-
\par porting petitioner's statutory interpretation are
\par "ambiguous" or "confusing" (see Br. in Opp. 7, 8, 10)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3
\par 
\par are inaccurate.  There is nothing ambiguous about
\par the statement that "we have rewritten Section 31342
\par to clarify once and for all the fact that a claim may not
\par be brought either in personal or in rem on a maritime
\par lien theory against a public vessel," or the statement
\par that "[i]t further clarifies the existing law that a
\par claim may not be brought either in personam or in
\par rem on a maritime lien theory against a public
\par vessel." See 135 Cong. Rec. H9184, H9183 (daily ed.
\par Nov. 20, 1989); id. at 30,803. Reversal of the court of
\par appeals' ruling is required in order to vindicate that
\par clear congressional intent.
\par 2. Respondent errs when it states that, prior to
\par the enactment of the MCILA, "a provider of necessar-
\par ies to a United States vessel had an unquestioned
\par right to pursue an in personam action, based on in
\par rem principles, against the United States." Br. in
\par Opp. 4. Respondent cites only Stevens Technical
\par Services, Inc. v. United States, 913 F.2d 1521 (llth
\par Cir. 1990) to support this point. Ibid. 1 When the
\par MCILA was enacted in 1988 however, Stevens Tech-
\par nical was not vet decided. The MCILA could not have
\par 
\par ___________________(footnotes)
\par 
\par 1 Respondent also refers to a "longstanding substantive
\par right-to pursue in personam actions in accordance with in
\par rem principles" and to "preexisting decisional authority"
\par which permitted such actions, but does not cite any authority
\par that authorized such an action in the case of a provider of
\par necessaries to a public vessel. Br. in Opp. 7. Respondent cites,
\par instead, two other statutes that waive the United States'
\par sovereign immunity against certain suits and have been
\par interpreted to permit in personam actions based on in rem
\par principles.  Those statutes do not, however, create any
\par substantive causes of action and do not provide a maritime lien
\par cause of action to a company because it provided necessaries to
\par a public vessel.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par the MCILA was enacted.  The court of appeals
\par correctly demonstrated that the law in this area was
\par not settled at the time the MCILA was enacted. See
\par Pet. App. 12a-13a.
\par Respondent suggests that Congress enacted and
\par then amended Section 31342 merely to prohibit in
\par rem actions against public vessels, but not to prohibit,
\par in personarm actions based on in rem principles.
\par That suggestion makes no sense inasmuch as in rem
\par maritime lien actions against public vessels have been
\par forbidden for more than 70 years. See Pet. 20.
\par 3. This case does not present a question of consti-
\par tutional significance. Br. in Opp. 16. It is, however, a
\par case in which the court of appeals has "so far departed
\par from the accepted and usual course of judicial pro-
\par ceedings" that review and reversal by this Court are
\par warranted. See Sup. Ct. R. 10(a). Despite sugges-
\par tions by two of its panels, 2 the Eleventh Circuit has
\par declined to give en bane reconsideration to circuit
\par precedent that erroneously interprets a federal
\par statute.
\par Failure of the Court to reverse the Eleventh Cir-
\par cuit will leave in place a legally unsound interpre-
\par tation of the MCILA in a jurisdiction that gives rise
\par to a significant amount of maritime activity. The
\par 
\par ___________________(footnotes)      
\par 
\par 2 In addition to the panel below, the panel of the court of
\par appeals in the earlier case cited as binding precedent by the
\par court below also had expressed dissatisfaction with the law of
\par the circuit. It believed itself bound by an even earlier circuit
\par precedent to permit in personam actions, despite Congress'
\par express intent to prohibit such actions. See Pet. 16-17 & n .6;
\par Bonanni Ship Supply, Inc. v. United States, 959 F.2d 1558,
\par 1563 (1lth Cir, 1992). That panel also unsuccessfully suggested
\par rehearing en bane because circuit precedent conflicted with
\par congressional intent. See Pet. 16-17 n.6.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 5
\par 
\par issue in this case, either in the context of the MCILA
\par or its predecessor statute, has reached the Eleventh
\par Circuit four times in the past five years.  See
\par Bonanni Ship Supply, Inc. v. United States, 959 F.2d
\par 1558 (1992); Marine Coatings of Alabama, Inc. v.
\par United States,"932 F.2d 1370 (1991); Stevens Techni-
\par cal Services, Inc. v. United States, 913 F.2d 1521
\par (1990). The Eleventh Circuit's refusal to reconsider
\par the issue en bane leaves no avenue of relief other than
\par reversal by this Court.
\par For the foregoing reasons and those set forth in the
\par petition, the petition for a writ of certiorari should be
\par granted. The Court may wish to consider summary
\par reversal.
\par Respectfully submitted.
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par NOVEMBER 1995
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par No. 95-525
\par 
\par IN THE SUPREME COURT OF THE UNITED STATES
\par 
\par OCTOBER TERM, 1995
\par 
\par UNITED STATES OF AMERICA, PETITIONER
\par 
\par v.
\par 
\par TURECAMO OF SAVANNAH, INC.
\par 
\par PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS 
\par FOR THE ELEVENTH CIRCUIT
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par FRANK W. HUNGER
\par Assistant Attorney General
\par 
\par PAUL BENDER
\par Deputy Solicitor General
\par 
\par BETH S. BRINKMANN
\par Assistant to the Solicitor General
\par 
\par MARK STERN 
\par MATTHEW M. COLLETTE
\par Attorneys
\par 
\par Department of Justice
\par Washington, D.C. 20530
\par (202) 514-2217
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par QUESTION PRESENTED
\par 
\par Whether the Maritime Commercial Instruments and
\par Liens Act, 46 U.S.C. 31301 et seq., prohibits a cause of
\par action against the United States to- enforce a maritime
\par lien against a public vessel under 46 U.S.C. 31342
\par (Supp. v 1993).
\par 
\par (I)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par .
\par II
\par 
\par PARTIES TO THE PROCEEDINGS
\par 
\par The United States was the appellant in the pro-
\par ceeding below and respondent Turecamo of Savannah,
\par Inc., was the appellee.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par TABLE OF CONTENTS
\par 
\par Page
\par 
\par Opinions below  . . . 1. 
\par Jurisdiction  . . . . 1
\par Statutory provisions involved  . . . .2 
\par Statement  . . . . 2
\par Reasons for granting the petition  . . . .11 
\par Conclusion  . . . . 23
\par Appendix A  . . . . 1a
\par Appendix B  . . . . 15a
\par Appendix C  . . . . 28a
\par Appendix D  . . . . 30a
\par Appendix E  . . . . 31a
\par 
\par TABLE OF AUTHORITIES
\par 
\par Cases:
\par 
\par Bonanni Ship Supply, Inc. v. United States,
\par 959 F.2d 1558 (llth Cir. 1992)  . . . . 2, 6, 7, 8
\par                  12, 16, 17, 19
\par Brown v. GSA, 425 U. S. 820 (1976)  . . . .  10, 12, 20
\par Canadian Aviator, Ltd. v. United States,
\par 324 U.S. 215 (1945)  . . . . 11, 20
\par Cannon v. University of Chicago, 441 U.S. 677
\par (1979)  . . . . 12, 20
\par E.J. Bartells Co. v. Northwest Marine, Inc.,
\par 1994 WL 476189, 1994 A.M.C. 1057 (W.D. Wash.
\par 1994)  . . . . 20
\par Exxon Co., Intl  v. United States, No. 91-5697
\par (D.N.J. Dec. 14, 1994)  . . . .21. 
\par FarWest Steel Corp. v. Barge Sea-Span, 828
\par F.2d 522 (9th Cir. 1987), cert. denied, 485 U.S.
\par 1034 (1988)  . . . . 13
\par Hiller Systems, Inc. v. AK Engineering, Inc.,
\par No. 92-12429K (D.Mass. Sept. 27, 1993)  . . . .21 
\par Hopeman Bros., Inc. v. USNS Concord, No.
\par CIV. A. 2:95CV91, 1995 WL 548453 (E.D. Va.
\par Sept. 6, 1995)  . . . . 20
\par 
\par (III)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par IV
\par 
\par Cases-Continued:              
\par 
\par Page
\par 
\par ITO Corp. v. United States, 1990 WL 129200,
\par 1990 A.M.C. 1439 (S.D. Tex. 1990)  . . . .  7, 21
\par Jan C. Uiterwyk Co. v. MV Mare Arabico,
\par 459 F. Supp.) 1325 (D. Md. 1978)  . . . .   13
\par Marine Coatings of Alabama, Inc. v. United
\par States, 932 F.2d 1370 (llth Cir. 1991 . . . . 6, 16, 19
\par Pactherm, Inc. v. United States, Nos. 92-5022
\par & 93-0990, 1994 WL 327334 (N.D. Cal. June 13,
\par 1994)  . . . .   21
\par River & Offshore Servs. Co. v. United States,
\par 651 F. Supp. 276 (E.D, La. 1987) . . . .11
\par Sipco Services & Marine, Inc. V. Bethlehem
\par Steel Corp., 892 F. Supp. 129 (D. Md. 19951  . . . .   20
\par Stevens Technical Services, Inc. v. United
\par States, 913 F.2d 1521 (11th Cir. 1990)  . . . . 4, 6, 16, 19
\par 
\par Statutes:
\par 
\par Act of June 5, 1920, ch. 250, 30, subsee P,
\par 41 Stat. 1005  . . . .    3
\par Act of Nov. 23, 1988, Pub. L. No. 100-710, 102
\par   Stat 4735:
\par    102(c), 102 Stat. 4748  . . . .  4, 15
\par    107, 102 Stat. 4752  . . . .    3
\par Federal Maritime Lien Act of 1920, 46 U.S.C.
\par App. 971 et seq. (SUPP. V 1987 (repealed)  . . . .    2
\par   46 U.S.C. App. 971  . . . .    3
\par   46 U.S.C. App. 971-973  . . . .    8
\par Foreign Soverign Immunities Act. of 1976,
\par 28 U.S.C. 1602 et seq . . . .    8
\par Maritime Commercial Instruments and Liens
\par Act, 46 U.S.C. 31301 et seq . . . .  2, 11
\par   46 U.S.C. 30101(3)  . . . .   4
\par   46 U.S.C. 31341  . . . .  2,  31a
\par   46 U.S.C. 31342 (1988)  . . . .  2, 4, 15
\par   46 U.S.C. 31342 (Supp. v 1993)  . . . .   passim, 31a
\par   46 U.S.C. 31342(a) (Supp. V 1993)  . . . . 5, 13, 31a
\par   46 U.S.C. 31342(a)(l) (Supp. V 1993)   5, 13, 14, 31a
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par V
\par 
\par Statutes-Continued:              
\par 
\par Page
\par 
\par   46 U.S.C. 31342 (a)(2) (Supp. V 1993)  . . . . 5, 13, 14, 31a
\par   46 U.S.C. 31342(b) (SUPP. V 1993)  . . . .  4, 5, 6,
\par                                                         13, 14, 15, 32a
\par Public Vessels Act of 1925, 46 U.S.C. App. 781
\par et seq . . . . 2, 3, 33a
\par   46 U.S.C. App. 788  . . . . 8, 20, 33a
\par Suits in Admiralty Act of 1920, 46 U.S.C. App.
\par 741 et seq . . . . 2, 3, 32a
\par   46 U.S.C. App. 741  . . . .  8, 32a
\par   46 U.S.C. App. 742  . . . . 6, 20, 32a
\par   46 U.S.C. App. 743  . . . .  6, 32a
\par 33 U.S.C. 891d(c) (Supp. V 1993)  . . . .   22
\par 50 U.S.C. App. 1744(c) (Supp. V 1993)  . . . .   22
\par 
\par Miscellaneous:
\par 
\par 135 Cong. Rec.:
\par   p. H9183 (daily ed. Nov. 20, 1989)  . . . . 11, 16, 19
\par   p. H9184 (daily ed. Nov. 20, 1989)  . . . . 11, 15, 19
\par   p. 30,803 (1989)  . . . .  10, 11, 16, 19
\par H.R. Rep. No. 918, 100th Cong., 2d Sess.
\par (1988)  . . . .  8, 10, 14, 17, 18
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par In the Supreme Court of the United States
\par 
\par OCTOBER TERM, 1995
\par 
\par  No.
\par 
\par UNITED STATES OF AMERICA, PETITIONER
\par 
\par v.
\par 
\par TURECAMO OF SAVANNAH, INC.
\par                                                  
\par PETITION FOR A WRIT OF CERTIORARI
\par TO THE UNITED STATES COURT OF APPEALS
\par FOR THE ELEVENTH CIRCUIT
\par 
\par The Solicitor General, on behalf of the United
\par States of America, respectfully petitions for a writ of
\par certiorari to review the judgment of the United
\par States Court of Appeals for the Eleventh Circuit in
\par this case.
\par 
\par OPINIONS BELOW
\par 
\par The opinion of the court of appeals (App., infra, la-
\par 14a) is reported at 36 F.3d 1083. The opinion of the
\par district court (App., infra, 15a-27a) is reported at 824
\par F. Supp. 1069.
\par 
\par JURISDICTION
\par 
\par The court of appeals entered its judgment on
\par November 1, 1994, and denied a petition for rehearing
\par on June 30, 1995. App., infra, 28a-29a. The jurisdic-
\par tion of this Court is invoked under 28 U.S.C. 1254(1).
\par 
\par (1)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2
\par 
\par STATUTORY PROVISIONS INVOLVED
\par 
\par Pertinent provisions of the Maritime Commercial
\par Instruments and Liens Act (46 U.S.C. 31301 et seq.),
\par the Suits in Admiralty Act of 1920 (46 U.S.C. App. 741
\par et seq.), and the Public Vessels Act of 1925 (46 U.S.C.
\par App. 781 et seq.), are reprinted at App., infra, 31a-33a.
\par 
\par  STATEMENT
\par 
\par This case concerns whether the Maritime Com-
\par mercial Instruments and Liens Act, 46 U.S.C. 31301
\par et seq. (MCILA), - prohibits a cause of action against
\par the United States- to enforce a maritime lien against a
\par public vessel under 46 U.S.C. 21342 (Supp. V 1993).
\par The court of appeals held such a cause of action to be
\par permissible. The court believed itself bound to follow
\par its prior decision in Bonanni Ship Supply, Inc. v.
\par United States, 959 F.2d 1558 (llth Cir. 1992), which
\par held that a maritime lien against a public vessel is
\par authorized under Section 31342 and can be enforced
\par through an in personam action in which in rem
\par principles apply. In doing so, the court of appeals
\par acknowledged that the Bonanni ruling appeared to
\par be contrary to the express intent of Congress. In
\par Bonanni itself, the court of appeals recognized that,
\par in enacting the MCILA, Congress clearly intended to
\par prohibit maritime lien actions against the United
\par States. The Bonanni panel ruled otherwise on the
\par basis of circuit precedent that predated the- MCILA.
\par 1. In 1988, Congress enacted the Maritime Com 
\par mercial Instruments and Liens Act, 46 U.S.C. 31301
\par et seq. (MCILA), as part of its ongoing revision
\par and consolidation of United States maritime laws.
\par Sections 31341 and 31342 were enacted to replace the
\par Federal Maritime Lien Act of 1920, 46 U.S.C. App.
\par 971 et seq. (Supp. V 1987) (MLA), which was repealed
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3
\par 
\par effective January 1, 1989, when the MCILA went
\par into effect. Act of Nov. 23, 1988, Pub. L. No. 100-710,
\par $107,102 Stat. 4752.
\par Prior to enactment of the MCILA, the MLA
\par governed causes of action based on maritime liens
\par against public and private vessels. The MLA had been
\par enacted in 1920 to provide a maritime lien, and a cause
\par of action to enforce the lien, to persons who furnished
\par repairs, towage or other "necessaries" to a vessel.
\par The MLA did not distinguish between private vessels
\par and vessels owned by the United States:
\par 
\par Any person furnishing repairs, supplies, towage,
\par use of dry dock or marine railway, or other
\par necessaries, to any vessel, whether foreign or
\par domestic, upon the order of the owner of. such
\par vessel, or of a person authorized by the owner,
\par shall have a maritime lien on the vessel, which
\par may be enforced by suit in rem, and it shall not be
\par necessary to allege or prove that credit was given
\par to the vessel.
\par 
\par Act of June 5, 1920, ch. 250, 30, subset. P, 41 Stat.
\par 1005, formerly codified at 46 U.S.C. App. 971 (Supp. V
\par 1987).
\par The MLA specified that the maritime lien it
\par created could be enforced through an in rem action
\par against the vessel to which the services had been
\par provided. 41 Stat. 1005. Such in rem actions were
\par limited to suits against private vessels because in
\par rem actions against United States vessels were not
\par included within Congress's waiver of sovereign
\par immunity for admiralty actions. In light of the Suits
\par in Admiralty Act of 1920, 46 U.S.C. App. 741 et seq.,
\par and the Public Vessels Act of 1925, 46 U.S.C. App. 781
\par et seq., the MLA had been interpreted to permit only
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4
\par 
\par actions in personam against the United States that
\par could proceed based on in rem principles, except that
\par no United States vessel could be arrested or seized.
\par Stevens Technical Services, Inc. v. United States, 913
\par F.2d 1521 (11th Cir. 1990).
\par In 1988, Congress repealed the MLA and replaced it
\par with the MCILA, which explicitly exempted public
\par vessels 1 from its maritime lien provision.  As en-
\par acted in 1988, the MCILA provided, in relevant part:
\par 
\par 31342. Establishing maritime liens
\par 
\par   A person providing necessaries to a vessel
\par (except a public vessel) on the order of a person
\par listed in section 31341 of this title or a person
\par authorized by the owner-
\par 
\par      (1) has a maritime lien on the vessel;
\par      (2) may bring a civil action in rem to
\par    enforce the lien; and
\par      (3) is not required to allege or prove
\par    in the action that credit was given to the
\par    vessel.
\par 
\par Act of Nov. 23, 1988, Pub. L. No. 100-710,  102(c), 102
\par Stat. 4748, formerly codified at 46 U.S.C. 31342 (1988)
\par (emphasis added).
\par In 1989, Congress amended Section 31342 to make
\par the explicit public vessel exemption even clearer.
\par Congress replaced the parenthetical in the first
\par clause of Section 31342 with a new and separate
\par subsection (b) that exempts public vessels from
\par 
\par ___________________(footnotes)
\par                                           
\par 1 The MCILA defines "public vessel" to mean a vessel
\par that is owned, demise chartered, or operated by the United
\par States Government or a government of a foreign country."
\par 46 U.S.C. 30101(3).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par          
\par 5
\par 
\par Section 31342. Section 31342, as amended in 1989,
\par thus now provides:
\par   
\par 31342. Establishing maritime liens
\par 
\par    (a) Except as provided in subsection (b) of
\par   this section, a person providing necessaries to a
\par   vessel on the order of the owner or a person
\par   authorized by the owner-
\par      (1) has a maritime lien on the vessel
\par      (2) may bring a civil action in rem to
\par    enforce the lien; and
\par      (3) is not required to allege or prove
\par    in the action that credit was given to the
\par    vessel.
\par     (b) This section does not apply to a public
\par   vessel.
\par 
\par 46 U.S.C. 31342 (Supp. V 1993) (emphasis added).
\par 2. a. Respondent Turecamo of Savannah, Inc., is a
\par Georgia corporation engaged in the business of
\par towing oceangoing and other vessels. In the fall of
\par 1990, the United States sought to have a vessel it
\par owned, the YFNB-33 Seacon, towed from Mayport,
\par Florida, to the United States naval facility in
\par Portsmouth, Virginia. The Department of Defense,
\par Military Traffic Management Command, entered into
\par a contract of carriage with Panocean Marine, Inc.
\par (PMI). PMI, through its subsidiary Project Logis-
\par tics & Transportation, Inc., contracted with Ture-
\par camo for the. services of Turecamo's tugboat, the
\par Cynthia Turecamo, to perform the tow. The United
\par States knew of, and approved, the use of the Cynthia
\par Turecamo, which then towed the Seacon from May-
\par port to Portsmouth. App., infra, 3a.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par  6
\par 
\par The United States paid PMI in full. Gov't C.A.
\par Br. 11. Turecamo submitted an invoice to project
\par Logistics for $55,800, but was paid only $20,800. App.,
\par infra, 3a.
\par Turecamo thereafter brought this action in the
\par United States District Court for the Southern
\par District of Georgia against the United States, as
\par owner of the Seacon, to recover the balance of $35,000.
\par Turecamo alleged that it had a maritime lien against
\par the Seacon because it had provided "necessaries" to
\par the Seacon within the meaning of Section 31342, and
\par therefore had an in personam action based on in rem
\par principles against the United States under 46 U.S.C.
\par App. 742,743. Respondent filed a motion for summary
\par judgment contending that it was entitled to judgment
\par because the district court was bound by Bonanni
\par Ship Supply, Inc. v. United States, 959 F.2d 1558
\par (1lth Cir. 1992), Marine Coatings of Alabama, Inc. v.
\par United States, 932 F.2d 1370 (1lth Cir. 1991), and
\par Stevens Technical Services, Inc. v. United States, 913
\par F.2d 1521 (llth Cir. 1990), in which the Eleventh
\par Circuit had held that a maritime lien against a public
\par vessel can arise under the MLA and the MCILA and
\par can be enforced through an in personam action based
\par on in rem principles. 2
\par The United States asserted that respondent failed
\par to state a claim upon which relief could be granted and
\par that the court lacked subject matter jurisdiction over
\par the suit by reason of Section 31342(b) of the MCII.A.
\par 
\par ___________________(footnotes)
\par                        
\par 2 Respondent apparently did not seek to recover the
\par unpaid balance from PMI and Project Logistics through a
\par contract action.  Nor did respondent attempt to establish
\par contractual privity with the government or pursue contractual
\par remedies against it.. Gov't C.A. Br. 11.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7
\par 
\par Gov't Ans. 2. The United States did not dispute the
\par material facts alleged 3 but opposed summary judg-
\par ment on the basis of the express exemption of public
\par vessels from the coverage of Section 31342. The
\par United States also relied on the legislative history
\par of the MCILA as confirming Congress's intention
\par to prohibit maritime liens against public vessels
\par regardless of whether such liens were enforced
\par through in personam or in rem proceedings. Opp. to
\par Mot. for Summ. J. 3-5, also citing ITO Corp. v. United
\par States, 1990 WL 129200, 1990 A.M.C. 1439 (S.D. Tex.
\par 1990). The government recognized that Bonanni
\par supported respondent's position, but pointed out that
\par Bonanni relied on Stevens Technical and Marine
\par Coatings, which were decided under the MCILA'S
\par predecessor statute, the MLA. These cases could not
\par be reconciled with the text or background of the
\par MCILA and, in any event, were wrongly decided. Opp.
\par to Mot. for Summ. J. 6.
\par The district court adhered to the court of appeals'
\par holding in Bonanni that "the MCILA `does not
\par preclude the imposition of maritime liens on public
\par vessels where an admiralty plaintiff sues the United
\par States in personam on principles of in rem lia-
\par bility.'" App., infra, 17a, quoting Bonanni, 959 F.2d
\par at 1564. The district court recounted the evolution of
\par Eleventh Circuit case law leading up to Bonanni.
\par The district court explained that, in Stevens
\par 
\par ___________________(footnotes)
\par 
\par 3 The parties do not dispute that the towing service
\par provided by Turecamo was a "necessary" within the meaning
\par of the MCILA, that the government approved the use of
\par Turecamo's tugboat to perform the service, and that the
\par government accepted the towed vessel upon delivery. App.,
\par infra, 25a-26a.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 8
\par 
\par Technical, the court of appeals held that. a sub-
\par contractor who had provided necessaries to a public
\par vessel was granted maritime lien against the public
\par vessel by the MLA, 46 U.S.C. App. 971-973 (Supp. V
\par 1987) (repealed 19%8), and could enforce it through an
\par in personam action against the government based on
\par in rem principles of liability. App., infra 23a. The
\par Stevens Technical court held that such an action was
\par not barred by a provision of the Public Vessels Act
\par of 1925 (PVA), 46 U.S.C. App. 788, that refuses to
\par recognize liens against public vessels, or by a pro-
\par vision of the Suits in Admiralty Act of 1920 (SAA), 46
\par U.S.C. App. 741, that prohibits the arrest or seizure
\par of any United States vessel. App., infra, 22a-23a. In
\par Marine Coatings, the court of appeals reaffirmed its
\par Stevens Technical ruling that the SAA and the PVA
\par do not bar enforcement of maritime liens against
\par public vessels under the MLA. Id. at 23a-24a.
\par The district court observed that, after repeal of
\par the MLA in 1988 and enactment of the MCILA, the
\par Eleventh Circuit in Bonanni addressed whether the
\par Stevens Technical/Marine Coatings rationale still
\par applied in light of the explicit provision in the MCILA
\par stating that its maritime lien provision does not apply
\par to public vessels 46 U.S.C. 31342 (Supp. V 1993). The
\par Bonanni court relied on an excerpt from the 1988
\par legislative history of the MCILA that stated that
\par Section 31342 "ma[de] no substantive change to law,"
\par and did not supersede the PVA, the Foreign Sov-
\par ereign Immunities Act of 1976, or the SAA, "on
\par bringing an in rent action against a public vessel."
\par App., infra, 24a-25a, quoting Bonanni, 959 F.2d at
\par 1562; H.R. Rep. No. 918, 100th Gong., 2d Sess. 48
\par (1988"). The Bonanni court reasoned that, because
\par Congress did not intend to alter the substantive
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 9
\par 
\par rights of parties through enactment of the MCILA,
\par the court was still bound to apply the interpretation
\par of preexisting law set forth in Stevens Technical and
\par Marine Coatings.
\par The district court granted respondent summary
\par judgment, notwithstanding the fact that respondent
\par "acknowledges that the existence of a maritime lien
\par against a public vessel under the MCILA is expressly
\par prohibited." App., infra, 17a. The court emphasized
\par that the government had presented "persuasive
\par evidence that, arguably, Congress' intent was to
\par ensure that a lien against a public vessel be
\par foreclosed," and that, "[i]f the law of this jurisdiction
\par is incorrect, it is for the United States Supreme
\par Court or the Eleventh Circuit, en bane, to so state."
\par Id. at 27a.
\par b. The court of appeals affirmed on the ground
\par that it, like the district court, was bound to follow
\par Bonanni. The panel analyzed the flawed reasoning
\par underlying Bonanni, however, and suggested that
\par the court of appeals reconsider Bonanni en bane.
\par App., infra, la-14a.4 The panel listed five reasons why
\par Bonanni should be reconsidered:
\par (1) The Bonanni panel relied on a statement in
\par the legislative history of Section 31342 indicating
\par that the Section "makes no substantive change in
\par the law," without realizing that the statement was
\par 
\par ___________________(footnotes)                                        
\par                       
\par 4 The United States sought initial hearing of this case en
\par bane to consider the overruling of Bonanni, but the court of
\par appeals denied that request. App., infra, 30a. At the request
\par of the panel, oral argument focused on whether the issue
\par presented merited en bane review. The parties submitted
\par supplemental letter briefs addressing the question. Id. at 1 la
\par n.7.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 10
\par 
\par written at a time before the public vessel exemption
\par was added to Section 31342.  App., infra, lla-12a,
\par citing H.R. Rep. No. 918, supra, at 8. The panel in-
\par dicated that "[p]erhaps the [Bonanni] panel would
\par have reached a different result" if this fact had been
\par brought to its attention. App., infra, 12a.
\par (2) Although the MCILA generally was intended
\par to codify existing maritime law, the 1988 legisla-
\par tive report also indicated that the MCILA "does in
\par fact make a great many substantive changes to the
\par present law." App., infra, 12a, quoting H.R. Rep. No.
\par 918, supra, at 15.
\par (3) When Congress amended the MCILA in 1989,
\par it emphasized its. intent. that "a claim may not be
\par brought either in personam or in rem on a maritime
\par lien theory against a public vessel." App., infra, 12a,
\par quoting 135 Cong. Rec. 30,803 (1989).
\par (4) The Bonanni panel itself recognized that
\par Congress intended to codify a prohibition against both
\par in personam and in rem actions asserting maritime
\par liens against public vessels. App., infra, 12a-13a &
\par n.9. The Bonanni panel should not have second-
\par guessed Congress's view as to what the law was
\par prior to enactment of the MCILA because Congress
\par expressly stated what it intended the MCILA to
\par accomplish. Congress's intent, even if based on an
\par erroneous interpretation of prior law, should gov-
\par ern because "the relevant inquiry is not whether
\par Congress correctly perceived the then state of the
\par law, but rather what its perception of the state of the
\par law was." Id. at 13a, quoting Brown v. GSA, 425 U.S.
\par 820, 828 (1976)."
\par 
\par ___________________(footnotes) 
\par                            
\par 5  The panel below pointed out that, even if Congress's view
\par of the law as it existed before the MCILA was incorrect,
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 11
\par 
\par (5) Regardless of the correctness of Congress's
\par interpretation of existing law at the time it enacted
\par the MCILA, when Congress amended the MCILA in
\par 1989, it made clear its intent that "a claim may not be
\par brought either in personam or in rem on a maritime
\par lien theory against a public vessel." App., infra, 13a-
\par 14a, citing 135 Gong. Rec. 30,803 (1989); id. at H9183
\par (daily ed. Nov. 20, 1989); id. at H9184 (daily ed. Nov. 20,
\par 1989).
\par The United States filed a petition for rehearing en
\par bane on November 21, 1994. The court of appeals
\par denied the petition on June 30, 1995. App., infra, 28a-
\par 29a.
\par 
\par   REASONS FOR GRANTING THE PETITION
\par 
\par The court of appeals erred in holding that the
\par Maritime Commercial Instruments and Liens Act, 46
\par U.S.C. 31301 et seq. (MCILA), permits enforcement of
\par a maritime lien against a public vessel under 46
\par U.S.C. 31342 (Supp. V 1993) so long as the suit is an
\par in person am action against the United States. The
\par                
\par ___________________(footnotes)        
\par                                             
\par Congress's interpretation was a reasonable one. App., infra,
\par 13a. When Congress expressed its view of the law at the time
\par of its 1988 enactment of the MCILA, the Eleventh Circuit case
\par law construing pre-MCILA law did not exist. The Stevens
\par Technical and Marine Coatings cases were both decided af-
\par ter the enactment of the MCILA although both involved
\par application of pre-MCILA law. At the time Congress enacted
\par the MCILA, the only decision casting doubt on the in-
\par applicability of maritime liens to public vessels was Canadian
\par Aviator, Ltd. v. United States, 32.4 U.S. 215 (1945), which
\par involved a tort claim for negligence. In addition, one year
\par before enactment of the MCILA, a federal district court had
\par held that the PVA prohibited liens against public vessels. See
\par River & Offshore Servs.  Co. v. United States, 651 F. Supp. 276,
\par 281 (E.D. La. 1987).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par          
\par 12
\par 
\par United States would thereby be subject to double
\par liability whenever it pays its contractor in full but
\par where the contractor does not, in turn, pay a
\par subcontractor. Under the court of appeals' decision,
\par the United States would be held liable for payment to
\par the subcontractor under a maritime lien despite the
\par absence of any contractual or tort liability. The plain
\par language, structure, and history of the MCILA
\par evidence Congress's intent to prohibit maritime liens
\par against public vessels, whether enforceable through
\par in personam or in rem, proceedings.
\par The ruling by the court below rests entirely on
\par Eleventh Circuit precedent, Bonanni Skip Supply,
\par Inc. v. United States, 959 F.2d 1558 (1992), that was
\par wrongly decided. Neither the panel of the tout of
\par appeals nor the district court in this case indicated
\par agreement with the reasoning underlying Bonanni.
\par Indeed, both courts recognized the existence of per-
\par suasive arguments that Bonanni should be overruled.
\par The Bonanni panel itself expressed dissatisfac-
\par tion with its decision, which it believed to be com-
\par pelled by circuit. precedent. The Bonanni panel
\par acknowledged that its decision appeared contrary
\par to the clear and expressed intent of Congress to
\par exempt public vessels from maritime liens. By inter-
\par preting the MCILA according to the Eleventh Cir-
\par cuit's pre-MCJLA precedents, instead of Congress's
\par language and evident intent, we believe that the
\par Bonanni court disregarded the well-established
\par principle that "the relevant inquiry is not whether
\par Congress correctly perceived the then state of the
\par law, but rather what [Congress's] perception of the
\par state of the law was." Brown v. GSA, 425 U.S. 820,
\par 828 (1976); Cannon v. University of Chicago, 441 U.S.
\par 677,710-711 (1979).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 13
\par 
\par In view of the clarity of the relevant statutory
\par language, the Court may wish to consider summary
\par reversal. The court of appeals' failure to rehear this
\par case or Bonanni en banc, despite suggestions to do
\par so by the panel opinions in both cases, indicates that
\par action by this Court is the only remaining judicial
\par avenue available to vindicate Congress's intent. The
\par issue is an important one. The potential for mari-
\par time lien liability under the MCILA created by the
\par Eleventh Circuit extends to contracts for supplies,
\par service, and repairs on more than 1,000 public vessels
\par involving millions of dollars annually.
\par 1. The MCILA establishes a cause of action for a
\par maritime lien against a vessel in favor of a party that
\par provides "necessaries" to the vessel.  46 U.S.C.
\par 31342(a) (1) (Supp. V 1993). The statute also author-
\par izes an in rem action to enforce the lien. 46 U.S.C.
\par 31342(a)(2) (Supp. V 1993); see Farwest Steel Corp. v.
\par Barge Sea-Span, 828 F.2d 522, 524 (9th Cir. 1987),
\par cert. denied, 485 U.S. 1034 (1988); Jan C. Uiterwyk
\par Co. v. MV Mare Arabico, 459 F. Supp. 1325, 1328 (D.
\par Md. 1978). Section 31342 does not, however, establish
\par a cause of action on a maritime lien against a public
\par vessel; on the contrary, it expressly and unambig-
\par uously excludes public vessels from its coverage.
\par Subsection (b) of Section 31342 thus states that
\par "[t]his section does not apply to a public vessel." 46
\par U.S.C. 31342(b) (Supp. V 1993). That exemption ap-
\par plies to all of Section 31342, including the clause that
\par creates the maritime lien cause of action. The text of
\par the statute provides:
\par   (a) Except as provided in subsection (b) of this
\par section, a person providing necessaries to a vessel
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 14
\par 
\par on the order of the owner or a person authorized
\par by the owner-
\par 
\par    (1) has a maritime lien on the vessel;
\par    (2) may bring a civil action in rem to
\par   enforce the lien; and
\par    (3) is not required to allege or prove in the
\par   action that credit was given to the vessel.
\par   (b) This section does not apply to a public
\par vessel.
\par 46 U.S.C. 31342  (Supp. V 1993) (emphasis added).
\par Thus. there is no maritime lien available under
\par Section 31342 against a public vessel and no in rem
\par principle of liability upon which to base an action
\par against the United States.
\par The text and history of Section 31342 as initially
\par enacted in 1988, as well as the history of' the 1989
\par amendment, confirm that Congress intended to ex-
\par empt public vessels from maritime liens, whether
\par enforceable through in rem or in personam suits.
\par The original version of Section 31342 in the 1988 bill
\par did not include any exemption for public vessels. See
\par H.R. Rep. No. 918, supra, at 8. In a letter to the
\par House of Representatives, responding to a request for
\par its views on the House bill, the Department of Justice
\par expressed concern about the proposed Section 31342
\par for that reason.  The Department asserted that,
\par Section 31342 should be amended to include language
\par explicitly exempting public vessels from maritime
\par liens. The Department explained that the amendment
\par was needed to "ensure that no claim for maritime
\par liens could be asserted against public vessels * * *
\par for any reason." H.R. Rep. No. 918, supra, at 56.
\par Congress thereafter modified Section 31342 accord-
\par ingly, and, as enacted in 1988, it provided:
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 15
\par 
\par 31342. Establishing maritime liens
\par 
\par    A person providing necessaries to a vessel
\par   (except a public vessel) on the order of a person
\par   listed in section 31341 of this title or a person
\par   authorized by the owner-
\par     (1) has a maritime lien on the vessel;
\par     (2) may bring a civil action in rem to
\par    enforce the lien, and
\par     (3) is not required to allege or prove in
\par    the action that credit was given to the vessel.
\par 
\par Act of NOV. 23, 1988, Pub. L. No. 100-710,  102(c),
\par 102 Stat. 4748.
\par The current version of Section 31342 came into
\par being as a result of a technical amendment the follow-
\par ing year intended to make the public vessel exemption
\par even clearer. Congress replaced the parenthetical in
\par the first clause of Section 31342 with a new and
\par separate subsection (b) that exempts public vessels
\par from Section 31342. One of the sponsors of the
\par legislation explained the reason behind the 1989
\par amendment:
\par 
\par [W]e have clarified provisions relating to mari-
\par time liens against public vessels. Although I felt
\par that we had taken care of any uncertainty last
\par year, we have rewritten section 31342 to clarify
\par once and for all the fact that a claim may not be
\par brought either in personal [sic] or in rem on a
\par maritime lien theory against a public vessel.
\par 
\par 135 Cong. Rec. H9184 (daily ed. Nov. 20, 1989)
\par (emphasis added). Another sponsor of the measure
\par explained that:
\par 
\par   Section 31342 has been rewritten by deleting the
\par parenthetical provisions relating to excluding
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 16
\par 
\par public vessels from the application of the existing
\par law and replacing it with a new subsection (b) to
\par assure clarity. This is not a substantive change
\par but simply makes more explicit the long es-
\par tablished rule of law prohibiting maritime liens
\par against public vessels.  It further clarifies the
\par existing law that a claim may not be brought
\par either in personam or in rem on a maritime lien
\par theory against a public vessel.
\par 
\par Id. at 30,803 (1989) (emphasis added); see id. at H9183
\par (daily ed. Nov. 20, 1989).
\par 2. The decision below is based on the Eleventh
\par Circuit's erroneous interpretation of the MCILA
\par in Bonanni Ship Supply, Inc. v. United States, 959
\par F.2d 1558 (1992).  In Bonanni, the court of appeals
\par concluded that it was compelled to interpret the
\par MCILA in the same manner as it had interpreted
\par the MCILA'S predecessor statute, the MLA. In two
\par decisions, the circuit had interpreted the MLA to
\par permit a cause of action for a maritime lien against a
\par public vessel so. long as the action proceeded in
\par personam based on in rem principles and did not
\par involve the arrest or seizure of a public vessel.
\par Marine Coatings of Alabama, Inc. v. United States,
\par 932 F.2d 1370 (llth Cir. 1991); Stevens Technics/
\par Services, Inc. v  United States, 913 F.2d 1521 (llth
\par Cir. 1990). The court reached this conclusion in
\par Bonanni despite the fact that it conflicted with the
\par plain language of the public vessel exemption in
\par Section 31342 and the evident congressional intent 6
\par 
\par ___________________(footnotes)
\par                 
\par 6 The Bonanni panel recognized that its decision appeared
\par to be inconsistent with congressional intent: "Given the clear
\par desire of Congress to exempt public vessels from coverage
\par under the maritime lien provisions of the MCILA, * * *
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 17
\par 
\par a. The Bonanni court misconstrued Congress's
\par intent in enacting Section 31342 by relying on an
\par incomplete reading of the legislative history of the
\par 1988 enactment of the MCILA. The court's analysis
\par hinged on a statement in the committee report that
\par Section 31342 "ma[de] no substantive change to law."
\par 959 F.2d at 156.2-1563, quoting H.R. Rep. No. 918,
\par supra, at 48.  That committee report addressed
\par an early version of Section 31342 that differed
\par substantially in relevant respects from the version
\par that was ultimately enacted. The early version that
\par is the subject of the report was couched in terms
\par similar to the predecessor statute, the MLA, and, like
\par the MLA, it did not exclude or even mention public
\par vessels. See H.R. Rep. No. 918, supra, at 8. -As
\par described above, the public vessel exemption was
\par added later at the suggestion of the Department of
\par Justice. Thus, the report's statement that- Section
\par 31342 did not make any substantive changes in the law
\par did not refer to the public vessel exemption that was
\par later added to Section 31342. The court of appeals in
\par the present case recognized that the Bonanni court
\par seemed not to realize that that statement was written
\par at a time before the public vessel exemption was added
\par to Section 31342, and suggested that "[p]erhaps the
\par [Bonanni] panel would have reached a different
\par 
\par ___________________(footnotes)    
\par 
\par reconsideration of the rule announced in Stevens Technical and
\par Marine Coatings by this court en bane may be in order." 959
\par F.2d at 1564 n.11. One panel member concurred only in the
\par result in Bonanni. See id. at 1565. The United States did not
\par seek review by this Court of the interpretational error in
\par Bonanni because the government prevailed on other grounds.
\par See id. at 1564-1565.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 18
\par 
\par result" if this fact had been brought to its attention.
\par App., infra, 12a.
\par The Bonanni court relied on a misreading of the
\par legislative history of the MCILA to reach a con-
\par clusion contrary to the plain text of the statute
\par despite the fact that the committee report upon which
\par it relied anticipated and attempted to prevent just this
\par type of analysis. In discussing the fact that the 1988
\par legislation was part of an ongoing revision and
\par codification of federal maritime law, the committee
\par noted that although the bill, "as introduced, purported
\par to make no substantive change in the law," the bill, as
\par reported, "in fact ma[de] a great many substantive
\par changes to the present law."  H.R. Rep. No. 918,
\par supra, at 15. The committee then explained, in terms
\par equally applicable  to textual changes made in later
\par versions of the bill, that
\par 
\par [t]he Committee intends and hopes that the
\par interpretation of the laws as codified and enacted
\par by this bill will be based on the language [ofl the
\par bill itself. The bill, as reported, is based on that
\par premise. There should, therefore, be little or no
\par occasion to refer to the statutes being repealed to
\par interpret the provisions of this bill.
\par 
\par The Committee also feels, as the courts have
\par held, that the literal language of the statute should
\par control the disposition of the cases. There is no
\par mandate in logic or case laws for reliance on
\par legislative history to reach a result contrary to
\par the plain meaning of the statute, particularly
\par where that plain meaning is in no way unreason-
\par able.
\par 
\par Id. at 15-16.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 19
\par 
\par Congress's intent is also evident from the 1989
\par statutory amendment. Congress acted in 1989 to
\par clarify what was perceived to be ambiguity in the 1988
\par Act regarding maritime liens against public vessels.
\par As set forth more fully above, sponsors of the leg-
\par islation stated that the amendment was to clarify
\par "once and for all" the fact that a claim may not be
\par brought either in personam or in rem on a-maritime
\par lien theory against a public vessel. 135 Gong. Rec.
\par H9184 (daily ed. Nov. 20, 1989); id. at H9183 (daily
\par ed. Nov. 20, 1989) (amendment "further clarifies the
\par existing law that a claim may not be brought either in
\par personam or in rem on a maritime lien theory against
\par a public vessel"); id. at 30,803.
\par b. The Bonanni panel also erred when it chose to
\par follow circuit precedent regarding the meaning of a
\par predecessor statute, rather than the text and evi-
\par dent purpose of the new statute. The Bonanni
\par panel recognized that the Eleventh Circuit's prior
\par decisions appeared to differ from Congress's under-
\par standing of the meaning of the MLA at the time
\par it enacted the MCILA.  Under Eleventh Circuit
\par precedent, the MLA was interpreted to allow in
\par personam suits against the" United States based on
\par in rem principles. See Stevens Technical Services,
\par Inc. v. United States, 913 F.2d 1521 (llth Cir. 1990);
\par Marine Coatings of Alabama, Inc. v. United States,
\par 932 F.2d 1370 (1lth Cir. 1991). The Bonanni panel
\par understood that the legislative history of the MCILA
\par suggested that Congress did not agree with that
\par interpretation. The Bonanni court nonetheless ad-
\par hered to its own precedents which had "rejected the
\par very rule that Congress had perceived to be in force
\par when it enacted the MCILA." 959 F.2d at 1563. The
\par court's application of that case law, instead of
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 20
\par 
\par Congress's  evident understanding and  intent,
\par contravened the well-established principle that, when
\par interpreting a federal statute and Congress's
\par reference at the time of enactment to earlier law, "the
\par relevant inquiry is not whether Congress correctly
\par perceived the then state of the law, but rather what
\par [Congress's] perception of the state of the law was."
\par Brown, 425 U.S. at 828; Cannon, 441 U.S. at 710-711.
\par c. The Bonanni panel's reasoning also renders the
\par 1988 addition of the public vessel exemption and the
\par 1989 amendment meaningless. It has been undisputed
\par for over 70 years that a claimant may not bring an in
\par rem maritime lien action against a public vessel. See
\par Canadian Aviator, Ltd. v. United States, 324 U.S.
\par 215,219-220 (1945). The United States has not waived
\par its sovereign immunity from such suits.  See 46
\par U.S.C. App. 742, 788. Under the Bonanni panel's
\par reasoning, Congress changed the text of the maritime
\par lien statute-not once, but twice-simply to codify a
\par rule that already existed.
\par All the district courts, but one, that have addressed
\par the issue in this case have rejected the Bonanni
\par reasoning. Hopeman Bros., Inc. v. USNS Concord,
\par No. Civ. A. 2:95CV91, 1995 WL 548453, at 2 (E.D. Va.
\par Sept. 6, 1995) (finding Bonanni "not convincing" and
\par concluding that "Section 31342 could not be more
\par unambiguous" in not allowing imposition of a mari-
\par time lien against a public vessel); Sipco Services &
\par Marine, Inc. v. Bethlehem Steel Corp., 892 F. Supp.
\par 129, 130 (D. Md. 1995) (declaring that "Bonanni is
\par entirely unsound" and concluding that "Bonanni's
\par reed is insufficient support for the assertion of a `lien
\par against the United States"); E.J. Bartells Co. v.
\par Northwest Marine, Inc., 1994 WL 476189, 1994 A.M.C.
\par 1057,1059 (W,D. Wash. 1994) (MCILA "eliminated the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 21
\par 
\par maritime claim which could hang on the SAA or PVA
\par hooks"); Pactherm, Inc. v. United States, Nos. 92-5022
\par & 93-0990, 1994 WL 327334 (N.D. Cal. June 13, 1994);
\par Exxon Co., Int'l v. United States, No. 91-5697 (D.N.J.
\par Dec. 14, 1994); ITO Corp. v. United States, 1990 WL
\par 129200,1990 A.M.C. 1439 (S.D. Tex. 1990).
\par The one contrary ruling is Hiller Systems, Inc. v.
\par AK Engineering, Inc., No. 92-12429K (D. Mass. Sept.
\par 27, 1993). The district court there held that the
\par MCILA did not prohibit the bringing of an in
\par personam action against the United States based on
\par in rem principles of liability arising out of maritime
\par liens under Section 31342. The Hiller court relied on
\par the same two erroneous legal determinations that
\par underlie Bonanni. The Hiller court acknowledged
\par that Congress may have intended to prohibit in
\par personam actions based on a maritime lien action
\par when it enacted Section 31342, but the court declined
\par to adhere to that intent because it believed Con-
\par gress "was mistaken in the assumed premise of its
\par legislation action." Slip op. 10. The government did
\par not seek further review in Hiller because" the
\par complaint was dismissed on other grounds.
\par 3. The issue in this case is one of importance to
\par the United States because the maritime. lien liability
\par under the court of appeals' reasoning will extend to
\par contracts for the provision of supplies, services, and
\par repairs for more than 1,000 public vessels.  Those
\par supplies and services cost millions of dollars annually
\par to procure. See App., infra, 11a n.7 Gov't C.A. Supp.
\par Ltr. Br. 1-5. Public vessels affected include vessels
\par operated by the Coast Guard, the Navy, the Mili-
\par tary Sealift Command, the National Oceanic and
\par Atmospheric Association, and the Maritime Admin-
\par istration, which maintains the National Defense
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 22
\par 
\par Reserve Fleet. Id. at 2. The court of appeals
\par correctly  noted that existing  statutory  and
\par regulatory requirements make it difficult for the
\par government to protect itself in many circumstances
\par against the possibility of double liability created by
\par the ruling below. Such double liability would arise
\par when the government pays its contractor in full, but
\par where the contractor does not, in turn, pay a
\par subcontractor. Under the court of appeals' decision,
\par the subcontractor would have a lien enforceable
\par against the United States despite the absence of any
\par contractual or tort liability. In some circumstances,
\par moreover. the government is prevented by statute
\par from requiring a government contractor to post a
\par bond to ensure that the contractor pays any
\par subcontractors it engages. See App., infra, 1 la n.7:
\par 33 U.S.C. 891d(c) (supp. V 1993); 50 U.S.C. App.
\par 1744(C) (Supp. v 1993).
\par Because of the substantial maritime activity in the
\par area encompassed by the Eleventh Circuit, cases are
\par likely to arise more frequently there than in most
\par other circuits. Neither of the courts below expressed
\par agreement with the Eleventh Circuit precedent they
\par deemed themselves bound to apply. The Eleventh
\par Circuit itself expressed dissatisfaction with its in-
\par terpretation of the MCILA at the time of its initial
\par ruling in Bonanni. The circuit's failure to rehear
\par this case and the Bonanni case en banc, despite
\par suggestions to do so in both panel opinions and
\par requests by the United States in both cases, indicates
\par that action by this Court is the only remaining
\par judicial avenue available to obtain relief from the
\par erroneous circuit precedent. In view of the clarity of
\par the governing statutory language, the Court may
\par wish to consider summary reversal.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 23
\par 
\par CONCLUSION
\par 
\par The petition for a writ of certiorari should be
\par granted. The Court may wish to consider summary
\par reversal.
\par 
\par Respectfully submitted.
\par 
\par DREW S. DAYS, III
\par Solicitor General
\par 
\par FRANK W. HUNGER
\par Assistant Attorney General
\par 
\par PAUL BENDER
\par Deputy Solicitor General
\par 
\par BETH S. BRINKMANN
\par Assistant to the Solicitor General
\par 
\par MARK STERN
\par MATTHEW M. COLLETTE
\par Attorneys
\par 
\par SEPTEMBER 1995
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par APPENDIX A
\par 
\par UNITED STATES COURT OF APPEALS
\par FOR THE ELEVENTH CIRCUIT
\par 
\par 
\par No. 93-9006
\par 
\par TURECAMO OF SAVANNAH, INC.,
\par   PLAINTIFF-APPELLEE
\par 
\par      v.
\par 
\par UNITED STATES OF AMERICA,
\par Defendant-Appellant
\par 
\par Appeal from the United States District Court
\par for the Southern District of Georgia        
\par  
\par [FILED Nov. 1, 1994]
\par 
\par                                                            
\par Before: BIRCH and CARNES, Circuit "Judges, and
\par     BLACKBURN *, District Judge.
\par 
\par BLACKBURN, District Judge:
\par 
\par Plaintiff-appellee Turecamo of Savannah, Inc.
\par ("Turecamo") filed suit pursuant to the Suits in
\par Admiralty Act ("SAA")) 46 U.S.C. App. 741-752
\par                                        
\par                                                 
\par ___________________(footnotes)
\par   
\par * Honorable Sharon Lovelace Blackburn, U.S. District
\par Judge for the Northern District of Alabama, sitting by desig-
\par nation.
\par 
\par (la)
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 2a
\par 
\par (1988), 1 to recover money allegedly owed Turecamo
\par by the defendant-appellant United States for towing
\par services for a United States naval vessel. The dis-
\par trict court granted Turecamo's motion for summary
\par judgment and entered judgment in favor of Turecamo
\par and against the United States. The United States
\par appeals this ruling, asserting that the Maritime
\par Commercial Instruments and Lien Act ("MCILA"),
\par 46 U.S.C. 531301-31343 (1988), prohibits a cause of
\par action against the United States to enforce a
\par maritime lien against a public vessel, Because we are
\par bound to follow the precedent set in Bonanni Ship
\par Supply v. United States, 959 F.2d 1558 (llth
\par Cir.1992), 2 we affirm the district court's decision,
\par However, as discussed infra, reconsideration of the
\par holding in Bonanni, might be appropriate for en bane
\par review by this court.
\par 
\par ___________________(footnotes)
\par 
\par 1  46 U. S. C. APP.  742 provides:
\par 
\par In cases where if such vessel were privately owned or
\par operated, or if such cargo were privately owned or pos-
\par sessed, or if a private person or property were involved, a
\par proceeding in admiralty could be maintained, any appro-
\par priate nonjury proceeding in personam may be brought
\par against the United States. , . . Such suits shall be brought
\par in the district court of the United States for the district in
\par which the parties so suing, or any of them, reside or have
\par their principal place of business in the United States, or in
\par which the vessel or cargo charged with liability is found.
\par 
\par 2 See United States v. Thomas, 916 F.2d 647, 652 n. 6 (1lth
\par Cir.1990); Garay v. Carnival Cruise Line, 904 F.2d 1527, 1534 n.
\par 10 (11th Cir.1990), cert. denied, 498 U.S. 1119, 111 S. Ct. 1072,
\par 112 L. Ed.2d 1178 (1991).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 3a
\par 
\par I. BACKGROUND
\par 
\par The facts of this case are not disputed. Turecamo, a
\par Georgia corporation doing business in Savannah,
\par Georgia, is engaged in the business of towing
\par oceangoing and other vessels. The YFNB-33 Seacon
\par is a public vessel owned by the United States. In the
\par fall of 1990, the Government sought to have the
\par YFNB-33 Seacon towed from Mayport, Florida, to the
\par United States naval facility in Portsmouth, Virginia.
\par In order to have the vessel towed, the Government,
\par through the offices of the Department of Defense,
\par Military Traffic Management Command, entered into
\par a contract of carriage with Panocean Marine, Inc.
\par ("PMI").  PMI's subsidiary, Project Logistics &
\par Transportation, Inc. ("Project Logistics") contracted
\par with Turecamo for the services of Turecamo's tug,
\par the Cynthia Turecamo.  Government personnel
\par approved the use of the Cynthia Turecamo for the
\par tow, and Turecamo towed the YFNB-33 Seacon from
\par Mayport, Florida, to Portsmouth, Virginia, in accor-
\par dance with the terms of United States Government
\par Bill of Lading D-1383500. Pursuant to its contract
\par with Project Logistics, Turecamo was to receive
\par $55,800 for its towing services; however, Turecamo
\par was paid only $20,800.
\par Turecamo then filed a Complaint against the
\par United States, as owner of the YFNB-33 Seacon, to
\par recover the balance due of $35,000,3 alleging that the
\par 
\par ___________________(footnotes)
\par 
\par 3 In its Complaint, Turecamo asserted that it was still owed
\par $35,800. The court assumes that this was a typographical error
\par because the Affidavit of Edward G. Cawthon, Vice President
\par and General Manager of Turecamo, states that Turecamo is
\par owed $35,000. In addition, this comports with the other figures
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 4a
\par 
\par district court had jurisdiction pursuant to 28 U.S.C.
\par 1333 and 28 U.S.C. 1331. Turecamo asserted that
\par by providing the towing services for the Govern-
\par ment's vessel, it had provided necessaries to the
\par vessel within the meaning of 46 U.S.C.  31342, and
\par therefore had an in personam action pursuant to 46
\par U.S.C. App.  742.  4
\par Turecamo moved for summary judgment on the
\par ground that Eleventh Circuit precedent' holds that a
\par ship repair subcontractor has a maritime lien for
\par necessaries provided to public vessels where the
\par subcontractor contracted with a general contractor
\par which has contracted with the United States for
\par performance of those subject services. Turecamo
\par further asserts that if the subcontractor is not paid
\par by the general contractor, the subcontractor has a
\par right to proceed in personam against the United
\par States by relying on in rem principles to establish
\par liability for unpaid debts owed by the contractor to
\par the subcontractor.
\par The United States District Court for the Southern
\par District of Georgia granted Turecamo's motion. See
\par Turecamo of Savannah, Inc. v. United States, 824
\par 
\par ___________________(footnotes)
\par 
\par in the complaint-that the invoice for services was for $55,800,
\par and that Turecamo was paid $20,800.
\par 4 Turecamo asserted that, pursuant to 46 U.S.C. App. 743,
\par its action proceeds in accordance with principles of action in
\par rem against the vessel for whom the necessaries have been
\par provided.
\par 5 The Eleventh Circuit precedent cited by Turecamo
\par included Bonanni Ship Supply v. United States, 959 F.2d 1558
\par (1992); Marine Coatings v. United States, 932 F.2d 1370 (1991);
\par and Stevens Technical Servs. v. United States, 913 F.2d 1521
\par (1990).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par           
\par 5a
\par 
\par F.Supp. 1069 (S.D.Ga.1993). The court agreed that
\par Turecamo had met its burden of demonstrating the
\par existence of a maritime lien under the MCILA and
\par held that Turecamo was therefore entitled to recover
\par in personam, utilizing principles of in rem liability.
\par The court entered judgment in favor of Turecamo on
\par June 18, 1993. The Government filed a Notice of
\par Appeal on August 9,1993.
\par 
\par        11. ANALYSIS
\par 
\par The issue before this court is whether the MCILA
\par supports an in personam action against the United
\par States based cm in rem principles. We review de novo
\par a district court's grant of summary judgment. Batey
\par v. Stone, 24 F.3d 1330, 1333 (llth Cir.1994). In
\par reviewing a grant of summary judgment, we apply the
\par same legal standard that bound the district court.
\par Tittle v. Jefferson County Comm'n, 10 F.3d 1535
\par (llth Cir. 1994).
\par The Government contends that the MCILA
\par precludes a cause of action against the United States
\par based on a maritime lien theory. It provides:
\par 
\par   (a) Except as provided in subsection (b) of this
\par   section, a person providing necessaries to a vessel on
\par   the order of the owner or a person authorized by the
\par   owner-
\par 
\par    (1) has a maritime lien on the vessel;
\par 
\par    (2) may bring a civil action in rem to
\par   enforce the lien; and
\par 
\par    (3) is not required to allege or prove in the
\par   action that credit was given to the vessel.
\par 
\par   (b) This section does not apply to a public vessel.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 6a
\par 
\par 46 U.S.C. $31342 (emphasis added). Therefore, the
\par Government contends that the existence of a
\par maritime lien against a public vessel under the
\par MCILA is expressly prohibited. In Bonanni, al-
\par though the court noted that "the MCILA on its face
\par appears to preclude the imposition of a maritime lien
\par on a public vessel," the court held that the MCILA
\par does not `\{preclude the imposition of maritime liens on
\par public vessels where an admiralty plaintiff sues the
\par United States in personam on principles of in rem
\par liability." 959 F.2d at 1562, 1564. The Government
\par acknowledges that Bonanni controls, but argues that
\par the panel was incorrect and should be overruled by
\par the court en bane.
\par 
\par A. Bonanni's Interpretation of the MCILA
\par 
\par To determine whether the MCILA precludes impos-
\par ing a maritime lien on a public vessel, this court in
\par Bonanni determined first, that Congress did not
\par intend to effect a change in the substantive law
\par regarding maritime liens when it enacted the
\par MCILA, and, second, that prior to the enactment of
\par the MCILA, this circuit permitted imposing a mari-
\par time lien on a public vessel under existing maritime
\par law. In holding that Congress did not intend to change
\par substantive admiralty law, the Bonanni panel relied
\par on the legislative history of 46 U.S.C. 31342, which
\par provided in part that section 31342 made no sub-
\par stantive change to the law. 959 F.2d at 1562. The
\par Bonanni panel therefore concluded that this court's
\par interpretations of substantive admiralty law prior to
\par the enactment of the MCILA bind courts of this
\par circuit interpreting the MCILA. Id. at 1563-64.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 7a
\par 
\par In examining whether this circuit permitted im-
\par posing maritime liens on a public vessel prior to the
\par enactment of the MCILA the Bonanni panel noted
\par that this court, in Marine Coatings v. United States,
\par 932 F.2d 1370 (11th Cir.1991), and Stevens Technical
\par Services v. United States, 913 F.2d 1521 (11th
\par Cir. 1990), "rejected the very rule that Congress had
\par perceived to be in force when it enacted the MCILA,
\par and . . . acknowledged the availability of in personam
\par actions against the United States on in rem princi-
\par ples of liability." 959 F.2d at 1563. The court further
\par stated:
\par 
\par Although Congress may have thought when it
\par enacted the MCILA that existing federal law
\par precluded imposition of a maritime lien on a public
\par vessel, this circuit's interpretations of that law,
\par in particular the "no lien" clause of the PVA,
\par state otherwise. A reading of the MCILA that
\par does not preclude the imposition of a maritime lien
\par against a public vessel, and only prohibits the
\par arrest and seizure of the vessel as a means of
\par effecting recovery against we Government, is
\par both plausible and fully consistent with Stevens
\par and Marine Coatings.
\par 
\par Id. (footnote omitted). Therefore, the court concluded
\par that the MCILA does not preclude the imposition of
\par maritime liens on public vessels where an admiralty
\par plaintiff sues the United States in personam- on
\par principles of in rem liability. Id. at 1564.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 8a
\par 
\par B. Legislative History of the MCILA
\par 
\par In 1988, Congress enacted the MCILA. 46 U.S.C.
\par 531342 originally provided:
\par 
\par   (a) A person providing necessaries to a vessel (except
\par   a public vessel) on the order of a person listed in
\par   section 31341 of this title or a person authorized by the
\par   owner-
\par 
\par    (1) has a maritime lien on the vessel;
\par 
\par    (2) may bring a civil action in rem to
\par   enforce the lien; and
\par 
\par    (3) is not required to allege or prove in the
\par   action that credit was given to the vessel.
\par 
\par Pub.L. No. 100-710, 102 Stat. 4748 (1988) (emphasis
\par added). The legislative history of this section states
\par that "[t]his section- makes no substantive change to
\par law. This section does not supersede the prohibition
\par under the Public Vessels Act, the Foreign Sovereign
\par Immunities Act, or the Suits in Admiralty Act, on
\par bringing an in rem action against a public vessel."
\par H.R.Rep. No. 918, 100th (Cong., 2d Sess. 7, reprinted
\par in 1988 U.S.C.C.A.N. 6104, 6141. However, this
\par statement was written at a time when the provision
\par did not expressly exclude public vessels.  See
\par H.R. Rep. No. 918, 100th Cong., 2d Sess. 7, at 8 (1988)?
\par 
\par ___________________(footnotes) 
\par                                         
\par 6 The public vessels exclusion was added later at the
\par suggestion of the Justice Department. See H.R.Rep. No. 918,
\par 100th Cong., 2d Sess. 7, reprinted in 1988 U.S.C.C.A.N. 6104,
\par 6149.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 9a
\par 
\par In 1989, Congress deleted the parenthetical phrase
\par excepting public vessels and placed the exception in a
\par separate subsection as follows:
\par 
\par   (a) Except as provided in subsection (b) of this
\par   section, a person providing necessaries to a
\par   vessel on the order of the owner or a person
\par   authorized by the owner-
\par 
\par (1) has a maritime lien on the vessel;
\par 
\par (2) may bring a civil action in rem to
\par enforce the lien; and
\par 
\par (3) is not required to allege or prove in the
\par action that credit was given to the vessel.
\par 
\par   (b) This section does not apply to a public vessel.
\par 
\par 46 U.S.C. 31342 (emphasis added). Representative
\par Robert W. Davis explained the reason for amending
\par the statute:
\par 
\par Likewise, we have clarified provisions relating to
\par maritime liens against public vessels. Although I
\par felt that we had taken [care] of any uncertainty
\par last year, we have rewritten section 31342 to
\par clarify once and for all the fact that a claim may
\par not be brought either in personal [sic] or in rem
\par on a maritime lien theory against a public vessel.
\par 
\par 135 CONG.REC. 9184 (daily ed. Nov. 20, 1989). The
\par legislative history further provides:
\par 
\par Section 31342 has been rewritten by deleting the
\par parenthetical provisions relating to excluding
\par public vessels from the application of the existing
\par law and replacing it with a new subsection (b) to
\par assure clarity.  This is not a substantive
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 1Oa
\par 
\par change but simply makes more explicit the
\par long established rule of law prohibiting
\par maritime liens against public vessels. It
\par further clarifies the existing law that a claim
\par may not be brought either in personam or in
\par rem on a maritime lien theory against a
\par public vessel. This section does not affect a
\par cause of action against the United States based on
\par a valid maritime contract.
\par 
\par 135 CONG.REC. 9312- (daily ed. Nov. 21. 1989) (emphasis
\par added).
\par 
\par C. Application to Present Action
\par 
\par Because of this court's decision in Bonanni, the
\par district court was correct in granting Turecamo's
\par motion for summary judgment. Turecamo has satis-
\par fied the requirements of the MCILA, 46 U.S.C.
\par 31341; that is, Turecamo has demonstrated that PMI
\par and its subsidiary, Project Logistics were authorized
\par to act for the vessel owner by showing the following
\par (1) Performance of towing services is a necessary
\par within the meaning of the MCI LA, 46 U.S.C. 31341
\par and 31342; (2) Government personnel approved the use
\par of the tug, Cynthia Turecamo; and (3) the Govern-
\par ment accepted the -vessel upon delivery. Therefore,
\par based upon existing Eleventh Circuit precedent, the
\par district court correctly concluded that Turecamo had
\par sustained its burden of demonstrating the existence
\par of a maritime lien under the MCILA, and that
\par Turecamo was thus entitled to recover in personam
\par utilizing principles of in rem liability.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 11a
\par 
\par However, the rule announced in Bonanni may be
\par appropriate for en bane reconsideration for the fol-
\par lowing reasons:
\par 1. As explained supra, the portion of section
\par 31342's legislative history stating that the maritime
\par lien provision "makes no substantive change in the
\par law" was written at a time that the provision did not
\par expressly exclude public vessels. See H.R. Rep. No.
\par 918, 100th Cong., 2d Sess. 7, at 8 (1988). 8 It does not
\par 
\par  ___________________(footnotes)
\par 
\par 7 At the court's request, oral argument focused on whether
\par this issue was of such importance to merit en bane review. The
\par Government emphasized that Congress thought the issue was
\par important enough to amend the Act to clarify the law. The
\par court requested that the parties submit letter briefs on whether
\par this issue was worthy of utilizing the en bane resources of the
\par Eleventh Circuit. The Government has responded that "the
\par potential for maritime lien liability extends to over 1,000 public
\par vessels, and therefore involves a substantial amount of money ."
\par As an example, the Government cited unpublished statistics
\par which include that the United States Coast Guard entered into
\par 214 contracts for necessaries in fiscal year 1993, for estimated
\par expenditures of over $51 million. The Government further
\par informed the court that there are currently eight pending
\par cases involving this issue with over one million dollars at stake.
\par In fact, the Government pointed out that the present case is
\par the fourth case in the past five years in which this issue has
\par been before the Eleventh Circuit. The Government also asserts
\par that existing statutory and regulatory requirements make it
\par extremely difficult for the Government to protect itself from
\par the prospect of paying twice for necessary services and repairs
\par to public vessels. For example, in many cases the Government
\par is precluded by statute from requiring the prime contractor to
\par post a bond to ensure that subcontractors will be paid. See, e.g.,
\par 33 U.S.C.A.  891d(c) (West Supp.1994); 50 U. S. C. A.App.
\par 1744(c) (West 1990).
\par s As noted supra at footnote 6, the public vessels exclusion
\par was added later at the suggestion of the Justice Department.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 12a
\par 
\par appear that this was pointed out to the panel deciding
\par Bonanni. Perhaps the panel would have reached a
\par different result had the Government in that case
\par educated the court on the timing of that statement in
\par the enactment of the statute.
\par 2. Although generally the MCILA was aimed at
\par codifying existing maritime law, Congress stated
\par that the Act also -made a great many substantive
\par changes. See H.R.Rep. No. 918, 100th Cong., 2d Sess.
\par 7, reprinted in 1988 U.S.C.C.A. 6104, 6108-09 ("The
\par Committee wants to make it clear, however, that the
\par bill as reported does in fact make a great many
\par substantive changes to the present law. . . . The
\par Committee intends and hopes that the interpretation
\par of the laws as codified and enacted by this bill will be
\par based on the language off [sic] the bill itself . . . . 
\par There is no mandate in logic or case laws for reliance
\par on legislative history to reach a result contrary to
\par the plain meaning of the statute, particularly where
\par that plain meaning is in no way unreasonable.")
\par 3. The legislative history behind the 1989
\par amendment emphasizes Congress' intent that "a
\par claim may not be brought either in personam or in
\par rem on a maritime lien theory against a public
\par vessel." See 135 Cong. REC. 9312 (daily ed. Nov. 21,
\par 1989).
\par 4. Because Congress has expressly stated its
\par intent, 9 it is inappropriate to second-guess Congress'
\par 
\par ___________________(footnotes)
\par 
\par See H. R.Rep. No. 918, 100th Cong., 2d Sess. 7, reprinted in 1988
\par U.S.C.C.A.N. 6104, 6149.
\par 9  The Bonanni panel acknowledged that Congress intended
\par to codify a rule prohibiting both in personam and in rem
\par actions asserting maritime liens against public vessels. See
\par Bonannir 959 F.2d at 1563 ("In enacting section 102 of the
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 13a
\par 
\par view of existing law. See Brown v. General Servs.
\par Admin., 425 U.S. 820, 828, 96 S. Ct. 1961, 1966, 48
\par L.Ed.2d 402 (1976) ("Whether that understanding of
\par Congress was in some ultimate sense incorrect" is not
\par what is important. . . . For the relevant inquiry is not
\par whether Congress correctly perceived the then state
\par of the law, but rather what its perception of the state
\par of the law was.").  Also, assuming Congress did
\par incorrectly interpret the state of the existing law,
\par such interpretation was not unreasonable. As the
\par Bonanni panel acknowledged, Stevens Technical and
\par Marine Coatings were both decided after the 1988
\par Act and the 1989 amendment. At the time Congress
\par enacted the MCILA, Canadian Aviator v. United
\par States, 324 U.S. 215,65 S. Ct. 639,89 L.Ed. 901 (1945)
\par (which involved a tort claim for negligence), was the
\par only decision casting doubt on the perception of
\par Congress.  In addition, one year before Congress
\par enacted the MCILA, a district court had stated that
\par "46 U.S.C. 788 [of the Public Vessels- Act] forbids
\par liens against public vessels." River & Offshore
\par Servs. Co. v. United States, 651 "F. Supp. 276, 281
\par (E.D.La.1987). Therefore, one can see how Congress
\par could have misinterpreted the existing law.
\par 5. Even if Congress misinterpreted the existing
\par law, Congress has now made it clear that a claim may
\par 
\par ___________________(footnotes)
\par 
\par MCILA, Congress was in essence reasserting what it perceived
\par to be a longstanding rule against the imposition of maritime
\par liens against public vessels. . . . This court in Stevens and
\par Marine Coatings, however, has rejected the very rule that
\par Congress had perceived to be in force when it enacted the
\par MCILA, and `has acknowledged the availability of in personam
\par actions against the United States on in rem principles of
\par liability.").
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par          
\par 14a
\par 
\par not be brought on a maritime lien theory against a
\par public vessel. See 135 CONG. REC. 9312 (daily ed. Nov.
\par 21, 1989); see also 135 CONG. REC. 9183 (daily ed. Nov.
\par 20, 1989); 135 Cong. Rec.  9184 (daily ed. Nov. 20, 1989).
\par 
\par        III. CONCLUSION
\par 
\par Following Bonanni, the district court properly
\par granted Turecamo's Motion for Summary Judgment.
\par Therefore, we AFFIRM.
\par 
\par 
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 15a
\par 
\par      APPENDIX B
\par 
\par UNITED STATES DISTRICT COURT
\par SOUTHERN DISTRICT OF GEORGIA
\par    SAVANNAH DIVISION
\par 
\par 
\par CIV. A. No. CV492-250
\par 
\par TURECAMO OF SAVANNAH, INC.
\par 
\par v.
\par 
\par UNITED STATES OF AMERICA
\par 
\par 
\par [FILED: JUNE 18, 1993]
\par 
\par 
\par ORDER
\par 
\par ALAIMO, Senior District Judge.
\par 
\par On September 24, 1992, Plaintiff, Turecamo of
\par Savannah, Inc. ("Turecamo"), filed this admiralty and
\par maritime claim, pursuant to the Suits in Admiralty
\par Act ("the SAA"), 46 U.S.C. app. 741-52 (1988), and
\par the Maritime Commercial Instruments and Liens Act
\par ("the MCILA"), 46 U.S.C.  31301-31343 (1988).
\par Turecamo alleges the existence of a maritime lien
\par against a United States Navy vessel as the result of
\par towing services that Turecamo performed.  This
\par action is presently before the Court on a motion by
\par Turecamo for summary judgment, pursuant "to Rule
\par 56 of the Federal Rules of Civil Procedure. Specifi-
\par cally, Turecamo contends that there are no genuine
\par issues of material fact in dispute and, thus, summary
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 16a
\par 
\par judgment is appropriate as a matter of law. For the
\par reasons discussed below, summary judgment will be
\par GRANTED in favor of Turecamo.
\par FACTS
\par Turecamo, a Georgia corporation doing business in
\par Savannah, Georgia, is engaged in the business of
\par towing oceangoing vessels. (Compl. at 1). Defendant,
\par through the Unite & States Navy, is the owner of the
\par vessel YFNB-33 SEACON, which in November of
\par 1990 was moored in Mayport, Florida. On November
\par 21, 1990, Defendant, through the offices of the
\par Department of Defense, Military Traffic Management
\par Command, entered  into a contract with Panocean
\par Marine, Inc. ("PMI"), a Louisiana corporation, to have
\par the YFNB-33 SEACON towed from Mayport, Florida,
\par to the United States naval facility in Portsmouth,
\par Virginia. Id. at 2.
\par To carry out its obligation, PMI, through its parent
\par corporation, Project Logistics and Transportation,
\par Inc. ("Project Logistics"), entered into a contract
\par with Turecamo for the services of Turecamo's tug,
\par the CYNTHIA TURECAMO. Id. Turecamo con-
\par tends, and the Government does not challenge, that
\par the nomination of the CYNTHIA TURECAMO to
\par perform the tow was with the express knowledge and
\par approval of Defendant. Id. Accordingly, pursuant to
\par the terms of the United States Government bill of
\par lading number D-1383500, which expressly designates
\par the CYNTHIA TURECAMO as the towing vessel,
\par Turecamo properly towed the vessel to the designated
\par facility in Portsmouth, Virginia, in early December
\par of 1990. Id. Turecamo sent Project Logistics an
\par invoice for $55,800 for the towage; however, Turecamo
\par was paid only $20,800 for its services. As such,
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 17a
\par 
\par Turecamo initiated this present case to recover the
\par balance.
\par In the instant action, Turecamo acknowledges that
\par the existence of a maritime lien against a public
\par vessel under the MCILA is expressly prohibited. 46
\par U.S.C.  31342(b) (1988). Nevertheless, Turecamo
\par argues that the language of the MCILA not-  
\par withstanding, the Eleventh Circuit has recognized
\par that the MCILA "does not preclude the imposition of
\par maritime liens on public vessels where an admiralty
\par plaintiff sues the United States in personam on
\par principles of in rem liability." Bonanni Ship Supply,
\par Inc. v. United States, 959 F.2d 1558, 1564 (1lth
\par Cir.1992). See also Marine Coatings of Alabama, Inc.
\par v. United States, 932 F.2d 1370 (llth Cir.1991);
\par Stevens Technical Servs., Inc. v. United States, 913
\par F.2d 1521 (llth Cir.1990). Relying upon this line of
\par cases, Turecamo brings the present in personam
\par action, in accordance with principles of actions in
\par rem, against the YFNB-33 SEACON, the vessel for
\par which the services have been provided. (Compl. at 3).
\par In its motion for summary judgment, Turecamo
\par contends that there are no genuine issues of material
\par fact in dispute. Turecamo claims that it provided
\par "necessaries" for the YFNB-33 SEACON by towing
\par the vessel to Portsmouth, Virginia. See" "46 U.S.C.
\par $31342 (1988). In addition, Turecamo asserts that
\par Defendant's personnel approved of the use of the
\par CYNTHIA TURECAMO, which is a necessary
\par requirement in order for a subcontractor to pursue an
\par action against the owner. See 46 U.S.C. 31341 and
\par 31342 (1988); see also Stevens Technical, 913 F.2d at
\par 1534-35. Accordingly, Turecamo claims that it has
\par met all of the requirements to pursue an in personam
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 18a
\par 
\par action using- principles of in rem liability and, thus,
\par summary judgment in its favor is appropriate, In
\par response, Defendant does not contest the facts
\par presented by Turecamo. (Def.'s Opposition to P1.'s
\par Mot. for Summ.J. at 1). Instead, Defendant merely
\par argues that the MCILA is clear that a maritime lien
\par may not be pursued against a public vessel. As such,
\par Defendant contends that the Eleventh Circuit cases
\par are wrongly decided and should not be followed.
\par 
\par DISCUSSION
\par 
\par I. Standard for Summary Judgment
\par 
\par Summary judgment requires the movant to
\par establish the absence of genuine issues of material
\par fact, such that the movant is entitled to judgment as a
\par matter of law. Fed. R. Civ.P. 56(c); Adickes v. S.H.
\par Kress & Co., 398 U.S. 144, 153, 90 S. Ct. 1598, 1605,26
\par L.Ed.2d 142 (1970). Summary judgment is also proper
\par "against a party who fails to make a showing
\par sufficient to establish the existence of an element
\par essential to that party's ease, and on which that party
\par will bear the burden of proof at trial." Celotex Corp. v.
\par Catrett, 477 U. S.' 317, 322, 106 S. Ct. 2548, 2552, 91
\par L.Ed.2d 265 (1986). The non-moving party to a
\par summary judgment motion need make this showing
\par only after the moving party has satisfied its burden.
\par Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (llth
\par Cir.1991). The court should consider the pleadings,
\par depositions and affidavits in the case before reaching
\par its decision, Fed. R. Civ.P. 56(c), and all reasonable
\par inferences will be made in favor of the non-movant.
\par Adickes, 398 U.S. at 158-59, 90  S. Ct. at 1609.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 19a
\par 
\par II. Maritime Lien
\par 
\par A. Statutory Framework
\par 
\par 1. Waiver of Sovereign Immunity
\par 
\par As a waiver of the United States' sovereign
\par immunity, Congress, in 1920, passed the SAA "which
\par provided generally that a `libel in personam' for
\par damages could be filed against the government in any
\par case where, if the government merchant vessel were
\par privately owned or operated, a `proceeding in
\par admiralty' could be maintained."  1 Canadian Aviator
\par Ltd. v. United States, 324 U.S. 215,220,65 S. Ct. 639,
\par 642, 89 L.Ed. 901 (1945). See 46 U.S.C. app.  742
\par (1988). The SAA explicitly states, however, that no
\par vessel owned by the United States "shall . . . be
\par subject to arrest or seizure by judicial process in the
\par United States or its possessions." 46 U.S.C. app. 741
\par (1988).
\par Subsequently, in 1925, Congress expanded the
\par waiver of sovereign immunity in the SAA, which at
\par that time was limited to "merchant" vessels, to
\par include all "public" vessels. This expansion occurred
\par via passage of the Public Vessels Act ("the PVA")
\par (now codified at 46 U.S.C. app. 781-90 (1988)). The
\par PVA provides:
\par 
\par ___________________(footnotes)
\par                                         .  
\par 1 In 1960, the SAA was amended to delete the clause
\par requiring that the vessel be employed as a "merchant vessel."
\par This amendment was enacted to eliminate the controversy over
\par when a vessel constituted a "merchant vessel."  Stevens
\par Technical Servs., Inc. v. United States, 913 F.2d 1521, 1528
\par (llth Cir.1990). As a result, the SAA now "covers all vessels
\par owned or operated by the government, whether acting in the
\par capacity of a typical freight-earning ship or in the capacity of a
\par public vessel under control of military authorities." Id.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 20a
\par 
\par A libel action in personam in admiralty may be
\par brought against the United States, or a petition
\par impleading the United States, for damages caused
\par by a public vessel of the United States, and for
\par compensation for towage and salvage services,
\par including contract salvage, rendered to a public
\par vessel of the United States . . . . 
\par 
\par 46 U.S.C. app.  781 (1988). Similar to the SAA,
\par however, the PVA contains a provision stating that
\par "[n]othing in this chapter shall be construed to
\par recognize the existence of or as creating a lien
\par against any public vessel of the United States." 46
\par U.S.C. app. 788 (1988).
\par 
\par 2. Statutory Creation of Maritime Lien
\par 
\par In 1910. Congress passed the now-repealed Federal
\par Maritime Lien Act ("FMLA"), which in part provided:
\par 
\par [a]ny person furnishing repairs, supplies, towage,
\par use of dry dock or marine railway, or other
\par necessaries, to any vessel, whether foreign or
\par domestic, upon the order of the owner of such
\par vessel, or of a person authorized by the owner,
\par shall have a maritime lien on the vessel, which
\par may be enforced by suit in rem, and it shall not be
\par necessary to allege or prove that credit was given
\par to the vessel.
\par 
\par Act of June 23, 1910, c. 373$1, 36 Stat. 604 (repealed
\par 1988). The act "significantly broadened] the number
\par and variety of maritime liens that [could] arise by
\par contract,[providing] a statutory right to a lien for the
\par named items of repairs, supplies, towage, and
\par drydocking, as well as any other `necessaries' of all
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 21a
\par 
\par kinds." Thomas J. Schoenbaum, Admiralty and
\par Maritime Law 8-3, at 256 (1987).
\par In "1988, `the FMLA was repealed" by Congress and
\par recodified as the MCILA, which became effective
\par January 1, 1989. The MCILA, as amended, provides in    -.
\par part:
\par (a) Except as provided in subsection (b) of this
\par section, a person providing necessaries to a vessel
\par on the order of the owner or a person authorized by
\par the owner-
\par 
\par (1) has a maritime lien on the vessel;
\par 
\par (2) may bring a civil action in rem to
\par enforce the lien; and
\par 
\par (3) is not required to allege or prove in
\par the action that credit was given to the
\par vessel.
\par 
\par (b) This section does not apply to a public vessel.
\par 
\par 46 U.S.C. 531342 (1988). Accordingly, except for the
\par addition of subsection (b), which explicitly states that
\par the section does not apply to public vessels, the
\par MCILA essentially contains the same provisions for
\par creating a maritime lien as the former FMLA.
\par 
\par B. Eleventh Circuit Precedent
\par 
\par In Stevens Technical Servs., Inc., v. United States,
\par 913 F.2d 1521 (llth Cir.1990), the Eleventh Circuit
\par first addressed the issue of whether or not a
\par subcontractor, which performed repairs on a public
\par vessel, could pursue an action under a maritime lien
\par theory against the United States for payment on the
\par repairs. In Stevens Technical, the plaintiff subcon-
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 22a
\par 
\par tractor contracted with the prime contractor to
\par perform repairs on a public vessel of the United
\par States. Id. at 1525. The prime contractor's contract
\par was accepted and approved by government agencies
\par and included notice that the plaintiff subcontractor
\par would perform significant work. Id.  After the
\par completion of the work, the prime contractor failed to
\par reimburse the subcontractor for the full balance. Id.
\par at 1526. As a result, the subcontractor filed an in
\par personam action against the prime contractor and an
\par in rem action against the United States, as the
\par owner of the vessel Id. After a bench trial, judgment
\par was entered against the prime contractor for the
\par amount due; however, the claim against the United
\par States was dismissed upon a finding that an in rem
\par action could not be pursued against the United
\par States. Id.
\par Upon appeal, the Eleventh Circuit thoroughly dis-
\par cussed the history of the SAA and the PVA. The
\par court concluded that the prohibition against "arrest
\par or seizure" of a public vessel in the SAA was
\par substantially the same as the prohibition against the
\par creation of "a lien against any public vessel" under
\par the PVA. Id. at 1524; see also 46 U.S.C. app. 741 and
\par 788 (1988). The court found that the only limitation
\par these provisions were intended to provide were
\par against the seizure or arrest of a government vessel. 2
\par Stevens Technical, 913 F.2d at 1524. Otherwise, the
\par 
\par 
\par ___________________(footnotes)
\par                                      
\par 2 The court stated that these provisions:
\par are in no sense a prohibition on the creation or existence of
\par a maritime lien. They each assure that there can be no
\par arrest or seizure of a government vessel.
\par Stevens Technical, 913 F.2d at 1524.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 23a
\par 
\par statutes " `impose on the United States the same
\par liability (apart from seizure or arrest under a libel
\par in rem) as is imposed by the admiralty law on the
\par private ship owner . . . . '" Id. (quoting Canadian
\par Aviator, Ltd. v. United States, 324 U.S. 215,228, 65
\par S. Ct. 639, "646, 89 L.Ed. 901 (1945)). Accordingly, the
\par court found that the plaintiff could pursue an "in
\par personam [action] against the government to be
\par determined on principles of both in personam and in
\par rem liability under the maritime law." Id.
\par Having found that the plaintiff could pursue an in
\par personam action against the government, using in
\par rem principles of liability, the court addressed
\par whether the plaintiff, in fact, had a maritime" lien
\par against the government under the FMLA. Id. at
\par 1534-37. The court found that the repairs performed
\par by the plaintiff subcontractor constituted "necessar-
\par ies" under the FMLA. In addition, the court con-
\par cluded that "the repairs performed by [the plaintiff
\par subcontractor] were ordered by authorized persons,
\par performed by [the plaintiff, and accepted by
\par authorized persons so that [the plaintiff became a
\par lienor under $$971-73" of the FMLA, and there was
\par no waiver of the lien. Id. at 1537.
\par Under a similar set of facts, the Eleventh Circuit
\par returned to this issue in Marine Coatings of
\par Alabama, Inc. v. United States, 932 F.2d 1370 (llth
\par Cir.1991). The court summarized the case by stating
\par that:
\par 
\par [t]he gist of the complaint was that although [the
\par plaintiff subcontractor] was filing an in personam
\par action to recover damages [for nonpayment on
\par ship repairs performed], it was relying on the
\par [FMLA] (which contains an in rem provision
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 24a
\par 
\par similar to a common law mechanic's lien) to attach
\par a lien to the three ships in order to secure
\par payment of the amounts owed.
\par 
\par Id, at 1373. The court rejected the government's
\par challenge to such a proceeding and, relying upon
\par Stevens Technical, stated that "[t]he law of our
\par circuit is that the SAA and PVA permit the use of the
\par libel in personam on principles of in rem liability
\par notwithstanding the no lien clause located at 46
\par U. S.C. App. 788." Id. at 1375. AS such, the case was 
\par reversed and remanded for further proceedings by the
\par district court. Id. at 1377.
\par After the repeal of the FMLA in 1988 and the
\par recodification under the MCILA, it was unclear
\par whether the Stevens Technical-Marine Coatings
\par rationale still applied in the Eleventh Circuit. The
\par uncertainty was heightened due to the explicit
\par inclusion in the MCILA that 46 U.S.C. 31342 "does
\par not apply to [ ] public vessel[sl." See 46 U.S.C.
\par 31342(b) (1988). The Eleventh Circuit addressed
\par this issue in Bonanni Ship Supply, Inc. v. United
\par States, 959 F.2d 1558 (llth Cir.1992). The court noted
\par that:
\par 
\par [t]he legislative history of section 31342 of the
\par MCILA states that `(t)his section makes no
\par substantive change to law. This section does not
\par supersede the prohibition under [the PVA], the
\par Foreign Sovereign Immunities Act, or [the SAA],
\par on bringing an in rem action against a public
\par vessel.'
\par 
\par Id. at 1562 (quoting H.Rep. No. 100-918, reprinted at 7
\par U.S. C.C.AN., 100th Cong., 2d Sess. 6104, 6141 (1988)
\par (emphasis added)), Accordingly, the court found that:
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 25a
\par 
\par because Congress did not purport to alter the
\par rights and obligations of parties under preexist-
\par ing admiralty law when it enacted the MCI LA,
\par and because we are bound to apply this court's
\par interpretations of the preexisting law in Stevens
\par [Technical] and Marine Coatings unless other-
\par wise directed by the United States Supreme
\par Court or the Eleventh Circuit en bane, we hold
\par here that the district court erred in interpreting
\par the MCILA to preclude the imposition of maritime
\par liens on public vessels where an admiralty
\par plaintiff sues the United States in  personam on
\par principles of in rem liability.
\par 
\par Id. at 1563-64.
\par 
\par C. Application to Present Action
\par 
\par In the present action, there is no dispute as to the
\par material facts. Turecamo towed Defendant's vessel to
\par Portsmouth, Virginia, and, therefore, as required by
\par the MCILA, Turecamo provided "necessaries" to the
\par YFNB-33 SEACON. 46 U.S.C. 31342 (1988). In
\par addition, Defendant's personnel were aware of the
\par subcontract between Turecamo and Project Logis-
\par tics. Defendant's personnel approved of the use of the
\par tug, the CYNTHIA TURECAMO, as evidenced by
\par the bill of lading.  Finally, Defendant's personnel
\par accepted the delivery of the YFNB-33 SEACON from
\par Turecamo. These factors support the requirement,
\par under 46 U.S.C.  31342, that the necessaries be
\par provided on order of the owner or a person authorized
\par by the owner. See Stevens Technical, 913 F.2d at
\par 1534-36 see also 46 U.S.C. 31341 (1988)(listing those
\par persons presumed to have authority to procure
\par necessaries as including the owner, master or
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 26a
\par 
\par "person[s] entrusted with the management of the
\par vessel at the port of supply"). Based upon these facts,
\par this Court finds that Turecamo has met its burden of
\par demonstrating the existence of a maritime lien under
\par the MCILA and, thus, Turecamo is entitled to recover
\par in personam, utilizing principles of in rem liability.
\par Notwithstanding its failure to contest Turecamo's
\par statement of material facts, Defendant contends that
\par Turecamo is not entitled to summary judgment
\par because Congress' intent in enacting the MCILA was
\par clearly not to allow the establishment of a lien
\par against a public vessel. -Defendant argues that the
\par enactment of the MCILA was a change in the law
\par from the FMLA, and the Eleventh Circuit's Bonanni
\par ruling was incorrect. As support, Defendant cites the
\par following legislative. history, related to the addition of
\par subsection (b) to 46 U.S.C. 531342, which states:
\par 
\par [s]ection 31342 has been rewritten by deleting the
\par parenthetical provisions relating to excluding
\par public vessels from the application of the existing
\par law and replacing it with a new subsection (b) to
\par assure clarity. This is not a substantive change
\par but simply makes more explicit the long estab-
\par lished rule of. law prohibiting maritime liens
\par against public vessels.  It further clarifies the
\par existing law that a claim may not be brought
\par either in personam or in rem on a maritime lien
\par theory against a public vessel. This section does
\par not affect a cause of action against the United
\par States based on a valid maritime contract.
\par 
\par 10lst Cong., 1st Sess., 135 Cong.Rec. 9308, 9312
\par (1989) (House Committee on Merchant Marine and
\par Fisheries' section-by-section analysis of H.R. 2459,
\par Coast Guard Authorization Act of 1989).
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 27a
\par 
\par While Defendant has presented persuasive evidence
\par that, arguably, Congress' intent was to ensure that a
\par lien against a public vessel be foreclosed, this Court
\par is not free, as Defendant suggests, to ignore the clear
\par ruling of the Eleventh Circuit.  If the law of this
\par jurisdiction is incorrect, it is for the United States
\par Supreme Court or the Eleventh Circuit, en banc, to
\par so state. Bonanni, 959 F.2d at 1564. This Court,
\par therefore, is bound by the interpretation of the
\par Eleventh Circuit regarding the MCILA. Id. at 1563.
\par Accordingly, Turecamo's motion for summary judg-
\par ment will be granted.
\par 
\par CONCLUSION
\par 
\par For the foregoing reasons, summary judgment is
\par hereby GRANTED in favor of Turecamo. The Clerk
\par of Court is directed to enter an appropriate judgment
\par in favor of Plaintiff, Turecamo.
\par 
\par SO ORDERED.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 28a
\par 
\par APPENDIX C
\par 
\par IN THE UNITED STATES COURT OF APPEALS
\par    FOR THE ELEVENTH CIRCUIT
\par 
\par No. 93-9006
\par 
\par TURECAMO OF SAVANNAH, INC.,
\par   PLAINTIFF-APPELLEE
\par 
\par versus
\par 
\par UNITED STATES OF AMERICA,
\par DEFENDANT-APPELLANT
\par 
\par On Appeal from the United States District Court
\par   for the Southern District of Georgia
\par 
\par [FILED June 30, 1995]
\par 
\par ON PETITION(S) FOR REHEARING AND
\par SUGGESTIONS OF REHEARING EN BANC
\par 
\par Before: BIRCH and CARNES, Circuit Judges, and
\par      BLACKBURN*, District Judge.
\par 
\par PER CURIAM:
\par 
\par ( X ) The Petition(s) for Rehearing are DENIED and
\par no member of this panel nor other Judge in regular
\par active service on the Court having requested that the
\par 
\par ___________________(footnotes)
\par 
\par * Honorable Sharon Lovelace B1ackburn, U.S. District
\par Judge for the Northern District of Alabama, sitting by
\par designation.
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 29a
\par 
\par Court be polled on rehearing en bane (Rule 35,
\par Federal Rules of Appellate Procedure: Eleventh
\par Circuit Rule 35-5), the Suggestion(s) of Rehearing
\par En Bane are DENIED.
\par 
\par (  ) The petition(s) for Rehearing are DENIED and
\par the Court having been polled at the request of one of
\par the members of the Court and a majority of the
\par Circuit Judges who are in regular active service not
\par having voted in favor of it (Rule 35, Federal Rules of
\par Appellate Procedure: Eleventh Circuit Rule 35-5). the
\par Suggestion(s) of Rehearing En Banc age also           
\par DENIED.       
\par (  ) A member of the Court in active service having
\par requested a poll of the reconsideration of this cause
\par en bane, and a majority of the judges in active service
\par not having voted in favor of it, Rehearing En Bane is
\par DENIED.
\par 
\par ENTERED FOR THE COURT:
\par 
\par 
\par UNITED STATES CIRCUIT JUDGE
\par 
\par ---------------------------------------- Page Break ----------------------------------------
\par 
\par 30a
\par 
\par         APPENDIX D
\par 
\par IN THE UNITED STATES COURT OF APPEALS
\par    FOR THE ELEVENTH CIRCUIT
\par 
\par         No. 93-9006
\par 
\par     TURECAMO OF SAVANNAH, INC.,
\par       PLAINTIFF-APPELLEE
\par 
\par          versus
\par 
\par     UNITED STATES OF AMERICA,
\par      DEFENDANT-APPELLANT
\par 
\par       [FILED March 10, 1994]
\par 
\par ON SUGGESTION OF HEARING EN BANC
\par 
\par Before  TJOFLAT, Chief Judge, DUBINA and
\par      BLACK, Circuit Judges.
\par 
\par No Judge in regular service on the Court having
\par requested that the Court be polled on hearing en bane
\par (Rule 35, Federal Rules of Appellate Procedure;
\par Eleventh Circuit Rule 35-5), the Suggestion of
\par Hearing En Bane is DENTED.
\par 
\par ENTERED FOR THE COURT:
\par 
\par /s/ Susan H. Black
\par UNITED STATES CIRCUIT JUDGE
\par 
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\par 
\par 31a
\par 
\par APPENDIX E
\par 
\par The Maritime and Commercial Instruments and
\par Liens Act, 46 U. S. Cl. 31341-31342 (1988 & Supp. V
\par 1993), provides in relevant part:
\par 
\par 31341. Persons presumed to have authority to
\par    procure necessaries
\par 
\par (a) The following persons are presumed to have
\par authority to procure necessaries for a vessel:
\par 
\par (1) the owner;
\par (2) the master;
\par (3) a person entrusted with the manage-
\par ment of the vessel at the port of supply; or
\par (4) an officer or agent appointed by-
\par   (A) the owner;
\par   (B) a charterer;
\par   (C) an owner pro hac vice; or
\par   (D) an agreed buyer in possession of the
\par vessel.
\par 
\par (b) A person tortuously or unlawfully in pos-
\par session or charge of a vessel has no authority to
\par procure necessaries for the vessel.
\par 
\par 31342. Establishing maritime liens
\par 
\par   (a) Except as provided in subsection (b) of this
\par section, a person providing necessaries to a vessel
\par on the order of the owner or a person authorized
\par by the owner-
\par 
\par (1) has a maritime lien on the vessel;
\par (2) may bring a civil action in rem to
\par enforce the lien and
\par 
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\par 
\par 32a
\par 
\par    (3) is not required to allege or prove in the
\par   action that credit was given to the vessel.
\par   (b) This section does not apply to a public ves-
\par sel.
\par 
\par The Suits in Admiralty Act of 1920, 46 U.S.C. App.
\par 741-752, provides in relevant part:
\par 
\par 741. Exemption of United States vessels and car-
\par    goes from arrest or seizure
\par 
\par   No vessel owned by the United States * * *
\par shall * * *, in view of the provision herein made
\par for a libel in personam, be subject to arrest or
\par seizure by judicial process in the United States
\par ***
\par 
\par 742. Libel in personam
\par 
\par   In cases where if such vessel were privately
\par owned or operated, * * * a proceeding in
\par admiralty could be maintained, any appropriate
\par nonjury proceeding in personam may be brought
\par against the United States * * *.
\par 
\par 743. Procedure in cases of libel in personam
\par 
\par    Such suits shall proceed and shall be heard
\par and determined according to the principles of law
\par and to the rules of practice obtaining in like cases
\par between private parties. * * * If the libelant so
\par elects in his libel, the suit may proceed in
\par accordance with the principles of libels in rem
\par wherever it shall appear that had the vessel or
\par cargo been privately owned and possessed a libel in
\par rem might have been maintained. Election so to
\par proceed shall not preclude the libelant in any
\par 
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\par 
\par 33a
\par 
\par proper case from seeking relief in personam in the
\par same suit. * * *.
\par 
\par The Public Vessels Act of 1925, 46 U.S.C. App. 781-
\par 790, provides in relevant part:
\par 
\par 781 Libel in admiralty against or impleader of
\par   United States
\par 
\par A libel in personam in admiralty may be
\par brought against the United States * * * for
\par damages caused by a public vessel of the United
\par States, and for compensation for towage and
\par salvage services, including contract salvage,
\par rendered to a public vessel of the United States
\par ***
\par 
\par 788. Lien not created against public vessels
\par 
\par Nothing contained in this chapter shall be
\par construed to recognize the existence of or as
\par creating a lien against any public vessel of the
\par United States.
\par 
\par 
\par }