United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                      REVISED JANUARY 19, 2005
               IN THE UNITED STATES COURT OF APPEALS        December 8, 2004

                       FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                 Clerk

                       ____________________

                           No. 03-30598
                       ____________________


CHEMBULK TRADING LLC
               Plaintiff - Appellee

v.

CHEMEX LTD
               Defendant
_________________________________________________________________

NOVOROSSIYSK SHIPPING COMPANY
               Plaintiff - Appellant

v.

CHEMEX LTD, Etc
               Defendant
________________________________________________________________

           Appeal from the United States District Court
               for the Eastern District of Louisiana
_________________________________________________________________

Before KING, Chief Judge, SMITH and EMILIO M. GARZA, Circuit
Judges.

KING, Chief Judge:

     The district court granted Defendant-Appellee Chembulk’s

motion for summary judgment, and Plaintiff-Appellant Novorossiysk

appeals.   For the following reasons, we REVERSE.

                           I. BACKGROUND

     On May 30, 2001, Novorossiysk Shipping Co. (Novorossiysk)
entered into a time-charter party1 with Chemex Ltd. (Chemex) to

charter its ship, the M/V Tuapse, to Chemex.       The time-charter

party granted Novorossiysk a lien on “all cargoes and all

freights for any amounts due under this charter.”       On August 29,

2002, Chemex entered into a voyage-charter party2 with Westway

Trading Co. (Westway) to subcharter the M/V Tuapse to Westway.

In return, Westway was to pay Chemex freight, ten percent of

which was payable at the end of the voyage.      In a separate

transaction on August 29, Chembulk Trading, Inc. (Chembulk)

voyage-chartered the M/V Chembulk Clipper to Chemex.       Chemex

failed to pay both the full amount of hire and demurrage

($500,000) it owed Novorossiysk and the freight ($147,000.01) and

demurrage ($36,449.65) it owed Chembulk.

        On October 1, 2002, Novorossiysk faxed a notice to Westway

stating that it was exercising its right to a lien on “all


    1
            A “time-charter” is a contract to hire a ship for a fixed
period of time under which the shipowner or charterer is
compensated with hire. The quantity of cargo carried is usually
irrelevant to the hire paid to the shipowner. Atl. Richfield Co.
v. Good Hope Refineries, Inc., 

, 871 (5th Cir. 1979);
GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY § 4-1 (2d ed.
1975) [hereinafter GILMORE & BLACK]. Generally, a charter party is
a contract for the use of a ship that belongs to another. GILMORE
& BLACK, § 4-1.
        2
          A “voyage charter” is a contract to hire a ship for a
specific voyage or voyages under which the shipowner or charterer
is compensated with freight. See Gulfgate Marine Transp. Co. v.
Dampskibsselskabet Svendborg, 

, 1192 n.3 (5th Cir.
1994); Atl. Richfield 

. The amount of freight
paid is generally dependant on the amount of cargo actually loaded
onto the vessel. Id.; GILMORE & BLACK, § 4-9.

                                   2
freight and sub-freights” pursuant to the Novorossiysk-Chemex

time-charter party.    Novorossiysk requested that Westway remit

the remaining ten-percent balance of freight (the “Westway

Freight”), which Westway had not yet paid to Chemex, directly to

Novorossiysk.   On October 2, 2002, Chembulk sought a Writ of

Maritime Attachment and Garnishment against the Westway Freight

pursuant to Rule B of the Supplemental Rules for Certain

Admiralty and Maritime Claims.    On October 4, 2002, Novorossiysk

also sought a Writ of Maritime Attachment and Garnishment against

the Westway Freight.

     Both the Chembulk and Novorossiysk attachment suits were

consolidated.   Westway then filed a complaint for interpleader,

whereupon the district court consolidated all three suits.     The

district court granted Westway leave to deposit $31,533.55 (the

full amount of the Westway Freight) into the court’s registry,

discharged it from the lawsuit, and relieved it of all claims

regarding that amount.

     On January 21, 2003, Chembulk moved to stay the consolidated

proceedings pending arbitration of its claim against Chemex in

accordance with an arbitration clause in the Chembulk-Chemex

voyage charter.   Novorossiysk opposed Chembulk’s motion and

cross-motioned for summary judgment, alleging that its lien-

claimant status gave it priority over Chembulk’s Rule B

attachment.   In response, Chembulk also moved for summary

judgment, arguing that Novorossiysk did not have a maritime lien

                                  3
but was merely a Rule B claimant whose claim was preempted by

Chembulk’s earlier Rule B attachment.    Further, Chembulk argued

that even if Novorossiysk did have a lien, it could not assert

priority in an in personam Rule B attachment proceeding since

maritime liens can only be asserted in in rem proceedings.

Subsequently, the district court granted Novorossiysk leave to

amend its complaint to add an in rem claim to the Westway Freight

under Rule C of the Supplemental Rules for Certain Admiralty and

Maritime Claims.

     On February 18, 2003, Chemex (and its managing agent,

Brookwater) relinquished all rights to the Westway Freight.

Based on that, the district court dismissed as moot Chembulk’s

motion to stay pending arbitration.    Therefore, the sole issue

before the court was whether Novorossiysk or Chembulk was

entitled to the Westway Freight--i.e., whether Novorossiysk had a

maritime lien on the Westway Freight giving it priority over

Chembulk’s Rule B attachment.    On March 31, 2003, the district

court initially denied both parties’ motions for summary judgment

so that Chembulk could respond to Novorossiysk’s in rem claim.

However, the parties asked the court to decide the motion on the

existing record.

     On May 27, 2003, the district court granted Chembulk’s

motion for summary judgment.    The district court found as a

matter of law that the Westway Freight was properly characterized

as “subfreights” rather than “freights” because it represented

                                  4
the amount that “Westway (a third party payor/subcharterer of the

M/V TUAPSE) agreed to pay Chemex for the shipment of cargo.”

Chembulk Trading L.L.C. v. Chemex Ltd., 

, 1445 (E.D.

La. 2003).   Consequently, the district court concluded that the

Novorossiysk-Chemex time-charter party did not give Novorossiysk

a maritime lien over the Westway Freight because it provided a

lien on “all freights” and not “subfreights.”     The district court

thus treated the case as that of two competing Rule B attachments

and, accordingly, held that Chembulk had priority since it was

the first to attach the Westway Freight.

     On June 11, 2003, the district court stayed the disbursement

of the Westway Freight pending appeal.     The issue before us on

appeal is whether the language in the Novorossiysk-Chemex time

charter provided Novorossiysk with a valid maritime lien over the

Westway Freight defeating Chembulk’s Rule B attachment.

                          II. DISCUSSION

A.   Introduction

     The district court’s holding would certainly encourage

precision in drafting charter parties.     Indeed, had the charter

at hand specifically used the term “subfreights,” this whole

litigation could have been avoided.   However, while the district

court’s reasoning seems logical, in the absence of any meaningful

evidence that the terms “freights” and “subfreights” are legally,

or by custom and usage, mutually exclusive, we are bound by


                                 5
principles of contract interpretation under federal maritime law.

We therefore hold that the district court’s interpretation of the

“all freights” language in the Novorossiysk-Chemex time charter

was erroneous as a matter of law.

B.       Standard of Review

         We review the district court’s grant of summary judgment de

novo, applying the same standards used by the district court.

Vulcan Materials Co. v. City of Tehuacana, 

, 886 (5th

Cir. 2004).      Summary judgment is proper when there is no genuine

issue of material fact and the moving party is entitled to

judgment as a matter of law.      FED. R. CIV. P. 56(c); Vulcan

Materials 

.

         We also review the district court’s legal conclusions de

novo.      Triad Elec. & Controls, Inc. v. Power Sys. Eng’g, Inc.,

, 186 (5th Cir. 1997).      The interpretation of an

unambiguous contract3 presents a question of law, and thus, it is

subject to our de novo review.      

Exxon Corp. v.

Crosby-Mississippi Res., Ltd., 

, 1481 (5th Cir. 1995)

(per curiam).      Therefore, we review the district court’s

interpretation of the “all freights” language in the

     3
          Chembulk asserts, and Novorossiysk does not dispute, that
the Novorossiysk-Chemex time charter is unambiguous. The fact that
Novorossiysk and Chembulk dispute the meaning of the term “all
freights” does not by itself make the charter ambiguous.       See
Broad v. Rockwell Int’l Corp., 

, 948, 955 (5th Cir.
1981) (en banc) (concluding that the district court correctly
interpreted an indenture as unambiguous even though the parties
disputed the construction of its terms).

                                    6
Novorossiysk-Chemex time charter de novo.

                             C. Analysis

     Under general principles of maritime law, claimants with

maritime liens are entitled to preference and priority over

attaching creditors.   Triton Container Int’l, Ltd v. Baltic

Shipping Co., 

, 2965-67 (E.D. La. 1995).      As between

two Rule B attaching creditors, however, the first to attach has

priority.   

  Therefore, as the district court noted,

if Novorossiysk has a valid maritime lien over the Westway

Freight, its claim takes priority over Chembulk’s Rule B

attachment.   If Novorossiysk does not have a lien, then

Chembulk’s claim takes priority because Chembulk was the first

attaching creditor.

     Shipowners, as a general rule, have a lien upon the cargo

owned by the charterer for compensation not yet paid.      See Bird

of Paradise, 

, 554 (1866); Arochem Corp. v. Wilomi,

Inc., 

, 499 (5th Cir. 1992).    Accordingly,

Novorossiysk would traditionally have a lien on any cargo owned

by Chemex for any hire or demurrage Chemex owed to Novorossiysk.

In contrast, when the cargo is not owned by the charterer, a

shipowner generally does not have a lien on the cargo.      See

Finora Co., Inc v. Amitie Shipping, Ltd., 

, 213 (4th

Cir. 1995).   The charter between the shipowner and the charterer,

however, may provide for a lien on any freights owed by the cargo



                                  7
owner to the charterer.     

general conditions

are necessary for a shipowner to maintain a lien against such a

third person.     First, the shipowner must have a contractual right

to assert the lien; second, the shipowner must properly perfect

the lien.”     Biehl & Co., Inc. v. Apollonia Holding, Inc., 693 F.

Supp. 457, 465 (E.D. La. 1988); accord Toro Shipping Corp. v.

Bacon-McMillan Veneer Mfg. Co., 

, 930 (5th Cir.

1966).     Novorossiysk states, and Chembulk does not dispute, that

Novorossiysk perfected whatever lien rights it had by faxing

notice of its lien to Westway on October 1, 2002.4     We therefore

turn to whether Novorossiysk had a contractual right to assert a

lien against the Westway Freight.

        A shipowner’s contractual right to assert a lien against

freight owed by a third party arises by an express provision in

the charter party granting the shipowner a lien on such freight.

Marine Traders, Inc. v. Seasons Navigation Corp., 

,

806 (2d Cir. 1970).     The lien provision, as it appears in most

form charters, is usually phrased as: “the owners [meaning the

owners of the vessel] shall have a lien upon all cargoes and all


    4
          At oral argument, Chembulk asserted that it argued in its
brief that Novorossiysk did not meet the notice element. However,
in its brief, Chembulk only disputed the notice requirement as to
Novorossiysk’s lien-on-cargo argument, not Novorossiysk’s lien-on-
subfreights argument. Specifically, Chembulk argued in its brief
that the letter Novorossiysk sent to Westway did not give notice
because it did not assert a lien on cargo, but only on “freights”
and “subfreights.” Accordingly, the parties are not in dispute as
to the notice required to assert a lien on subfreight.

                                   8
subfreight for charter money due under this charter."   Am. Steel

Barge Co. v. Chesapeake & O. Coal Agency Co., 

, 671

(1st Cir. 1902) (emphasis added) (alteration in original); see

also United States v. Freights, Etc., of S.S. Mount Shasta, 

, 469 (1927); Toro Shipping 

;

Cornish Shipping Ltd. v. Int’l Nederlanden Bank N.V., 

, 500 (2d Cir. 1995).   On the other hand, the lien clause in

the Novorossiysk-Chemex time charter provides that “[o]wners

shall have a lien upon all cargoes and all freights for any

amounts due under this charter.” (emphasis added).   The issue

before us is one of contractual interpretation--whether the term

“all freights” is sufficiently explicit to grant a contractual

right to assert a lien over freight owed by a third party (i.e.,

subfreight), specifically, the Westway Freight.

     A basic principle of contract interpretation in admiralty

law is to interpret, to the extent possible, all the terms in a

contract without rendering any of them meaningless or

superfluous.   Foster Wheeler Energy Corp. v. An Ning Jiang MV,

03-30038, 

, at *3 (5th Cir. Sept. 13, 2004);

Capozziello v. Brasileiro, 

, 1159 (2d Cir. 1971).

Freight is the compensation paid under a voyage charter for the

use of a ship to carry goods.   

.    Hence,

we could construe “all freights” to provide a lien on the

compensation Novorossiysk was being paid for chartering its ship

to Chemex.   This interpretation, however, would basically give

                                 9
Novorossiysk a lien on the compensation it was owed--effectively

securing the debt with the debt itself.     Interpreting the term

“all freights” in this way, therefore, would render it

meaningless and superfluous because it is useless to assert a

security interest in the very debt owed.5    Unless there is no

alternative, a clause should not be interpreted such that it is

rendered meaningless.    

.6

       The alternative, and more viable interpretation, is that the

term “all freights” provides Novorossiysk with a lien on the

compensation Chemex was being paid to ship Westway’s goods--the

Westway Freight.    This interpretation has the virtue of not

rendering the term “all freights” meaningless or superfluous and




       5
          Moreover, as discussed above, under the terms of the
Novorossiysk-Chemex time-charter party, Novorossiysk earned “hire,”
not “freight.” Thus, the term “all freights,” in the context of
this particular time charter, would not normally be construed to
refer to the compensation Novorossiysk was to receive thereunder.
   6
          Chembulk argues that the Novorossiysk-Chemex time charter
should be construed against Novorossiysk, and thus since
Novorossiysk did not include the term “subfreights,” it should not
have a lien on the Westway Freight. That argument, however, is
unavailing. A contract is construed against the drafting party
only when it is ambiguous. See Empire Fire & Marine Ins. Co. v.
Brantley Trucking, Inc., 

, 681 (5th Cir. 2000). The
Novorossiysk-Chemex time charter, however, is not ambiguous because
its language as a whole is clear, explicit, and leads to no absurd
consequences, and as such it can be given only one reasonable
interpretation. See Mobil Exploration & Producing v. A-Z/Grant
Int'l Co., 

(E.D. La. 1992) (citing Nat’l Union Fire
Ins. Co. v. Circle, Inc., 

, 989 (5th Cir. 1990) (per
curiam)). Therefore, we do not construe the time charter against
Novorossiysk.

                                 10
is consistent with the definition of “freight.”7

     Moreover, the definition of “subfreights” leads us to the

conclusion that the phrase “all freights” could properly include

“subfreights.”   “Subfreights” has been defined in many different

ways, but essentially it is the compensation paid to someone

other than a shipowner for the carriage of goods or the hire of a

ship.    Cornish Shipping 

n.1 (defining

“subfreights” as “amounts that third-party payors . . . contract

to pay directly to the charterer for the hire of the ship or the

transport of goods” (emphasis added)); Am. Steel Barge 

(“‘subfreights’ . . . embraces all freights which a

charterer stipulates to receive for the carriage of goods”

(emphasis added));   ERIC SULLIVAN, MARINE ENCYCLOPAEDIC DICTIONARY 413

(2d ed. 1988) [hereinafter SULLIVAN] (“[f]reight payable by the

sub-contractor, normally to the charterer” (emphasis added)).

Thus, the person paying the compensation (or subfreight) is not a

party to the shipowner-charterer transaction but is, rather, a

party to a subsequent transaction with the charterer.

Nevertheless, both freight and subfreight are the compensation

earned for the carriage of goods, and the only difference between

     7
          Chembulk argues that the clause is not meaningless
because it was included to secure a lien on cargo for freight.
However, the language in the time charter makes clear that the
clause attempts to provide a lien on “all cargoes and all freights
for any amounts due under this charter.” (emphasis added). Thus,
as this particular clause is structured and worded, it explicitly
provides a lien on all freights payable, not simply a lien on the
cargo for the freight owed.

                                  11
the two is that freight is a more general term describing

compensation payable, whereas subfreight is compensation payable

to someone other than the shipowner.           See Toro Shipping 

; Am. Steel Barge 

; Cornish

Shipping 

n.1; SULLIVAN, at 413.

      We acknowledge that the term “subfreights” is commonly used

in charters to provide a lien over freights owed by a third party

(subfreight).        See generally Freights, Etc., of S.S. Mount

; Toro Shipping 

;

Cornish Shipping 

(analyzing charters

containing the term “subfreights”).          We also recognize that many

courts use the term “subfreights” when referring to amounts owed

by a third party to a charterer.           See Freights, Etc., of S.S.

Mount 

; Toro Shipping 

; Cornish Shipping 

.          It does not follow,

however, that the term “subfreight” is, by custom and usage, the

only way to refer to compensation owed by a third party to a

charterer.

      In addition to the charter at hand, there are other charters

which use the term “all freights” in their lien clauses.            See 2C

BENEDICT   ON   ADMIRALTY 17-66.10, 17-80.15 (7th ed., rev. 1974)

(displaying the Gastime and Intertanktime 80 form time charters,

both of which provide a lien upon cargoes “and all freights for

any amounts due under this Charter”).          Moreover, many courts, in

this circuit and others, have regularly used the terms “freight”

                                      12
and “subfreight” interchangeably.      Toro Shipping 

(“[t]he District Court found that [the third party] had

paid the full price of the cargo and freight”) (emphasis added));

see also Cornish Shipping 

(“the shipowner[]

gave notice to . . . the consignee[] that it was exercising its

lien before [the consignee] took the final steps necessary to

authorize payment of ‘freight’ charges to . . . the charterer[].”

(emphasis added)); Tarstar Shipping Co. v. Century Shipline,

Ltd., 

, 838 (2d Cir. 1979) (“the charter party

provided ‘(t)hat the Owners shall have a lien upon all cargoes,

and all subfreights for any amounts due under this Charter . . .

.’ [The charterer] defaulted on the second hire payment . . . .

This event triggered [the shipowner’s] attempt to enforce its

contractual lien on the freights” (first and second alterations

in original) (emphasis added)); Union Industrielle Et Maritime v.

Nimpex Int’l, Inc., 

, 930 (7th Cir. 1972) (“[p]ayment

by [sub-charterer] to [charterer] before the lien arose,

extinguished all claims by [shipowner] to any freights related to

this cargo.” (emphasis added)).    Even the Supreme Court has used

the terms “freights” and “subfreights” interchangeably.     Freights

of S.S. Mount 

(“[I]f it be conceded

that the Admiralty Court has jurisdiction to enforce a lien on

sub-freights by a proceeding in rem . . . we do not perceive how

the Court can be deprived of jurisdiction merely by an answer

denying that such freights are due.”).     Therefore, we conclude

                                  13
that the term “subfreights” has not become, by custom and usage,

the only way to refer to compensation payable by a third party to

a charterer.8

     We therefore hold, as a matter of interpretation of the

Novorossiysk-Chemex time-charter party, that a lien on “all

freights” is sufficiently explicit to provide a lien on

subfreights.    That interpretation of the charter party is

compelled by the fact that it provides the only way to give

meaning to the term “all freights” in the charter party.

Accordingly, Novorossiysk has a valid maritime lien over the

Westway Freight pursuant to the “all freights” language in the

Novorossiysk-Chemex time charter.     Novorossiysk’s lien therefore

takes priority over Chembulk’s Rule B attachment.9

                           III. Conclusion

     We therefore REVERSE the judgment of the district court

denying Novorossiysk’s motion for summary judgment and granting

Chembulk’s motion for summary judgment, and we REMAND for further

proceedings not inconsistent with this opinion.

     8
          The term “freight” has many meanings depending on the
context in which it is used: “[t]he word freight, when not used in
a sense to imply the burden or loading of the ship, or the cargo
which she has on board, is the hire agreed upon between the owner
or master for the carriage of goods from one port or place to
another.” Brittan v. Barnaby, 

, 533 (1858).
    9
          Novorossiysk also argued on appeal that it had a lien on
the cargo for the Westway Freight pursuant to the “all cargoes”
language in the Novorossiysk-Chemex time charter.      We do not
consider this argument, however, since we find in favor of
Novorossiysk based on the “all freights” language.

                                 14
ENDRECORD




            15
GARZA, Circuit Judge, dissenting:

     The majority opinion holds that the term “all freights” must

be construed to include “subfreights” based on the “the

principles of contract interpretation under federal maritime

law.”

However, in doing so, the majority violates the basic “canon of

contractual interpretation that requires words and phrases in a

contract to be given their plain meanings.”    Cleere Drilling Co.

v. Dominion Exploration & Production, Inc.351 F.3d 642 (5th Cir.

2003).   There is no dispute that the terms freight and

subfreights have very specific and distinct meanings in the

context of admiralty contracts.    Indeed, the majority

acknowledges this distinction finding that “the term

‘subfreights’ is commonly used in charters to provide a lien over

freights owed by a third-party.”

     Nevertheless, the majority seeks to expand the definition,

and ultimately redefine, the term “all freights” so that the term

is not rendered superfluous.   In the process, the majority is

rejecting established caselaw from other circuits spanning the

past century.   See Cornish Shipping Ltd. v. Int'l Nederlanden

Bank N.V., 

, 502 (2d Cir.1995) (citing Marine Traders,

Inc. v. Seasons Navigation Corp., 

, 806 (2d Cir.1970)

(“To secure payments of freight due from a charterer of its ship,

a shipowner may create, by express provision in the charter

party, a lien on the subfreights earned by the vessel.”)
(emphasis added); and    Am. Steel Barge Co. v. Chesapeake & O.

Coal Agency Co., 

, 672 (1st Cir. 1902) (“it cannot

reasonably be questioned that ‘subfreights,’ which is an

expression in common use and easily understood, embraces all

freights which a charterer stipulates to receive for the carriage

of goods.”).   The majority also ignores the fundamental rule of

contract interpretation that requires us to look to the intent of

the parties “at the time of entering into the contract regardless

of any events occurring afterward.” 17 AM JUR. 2D Contracts § 345

(2004).   Here, the majority has determined that the term “all

freights” in fact refers to the freight promised under the

charter between Westway and Chemex.    However, there is no

evidence in the record that the Westway charter existed or was

even contemplated of at the time Novorossiysk entered into its

charter with Chemex.    Unless Novorossiysk had knowledge of this

future charter, I find it difficult to see how the majority’s

decision can be a “more viable interpretation” of the contract.

     This is a case involving a simple contractual error for

which there is no judicial recourse.     Novorossiysk was well

aware at the time it entered into the charter with Chemex of the

clear distinction between freights and subfreights.     If it

wanted to exercise a lien over the freight promised by Westway,

Novorossiysk could (and arguably should) have expressly stated so

in its contract.   For whatever reason, it chose not to avail


                                 17
itself of this opportunity and, instead of taking responsibility

for its clear error, has sought savior through judicial

intervention.   Indeed,   it is disingenuous for Novorossiysk to

argue that the term “all freights” is broad enough to include

“subfreights” when it specifically stated in its notice to

Westway that it was exercising its right to a lien on “all

freight and sub-freights.”    Clearly, if Novorossiysk truly

believed that the term “all freights” was broad enough to include

“subfreights”, it would not have felt compelled to specify in its

notice of its lien on the subfreight owed by Westway.

     The majority agrees that the district court’s holding would

encourage “precision in drafting charter parties” but then

subsequently rejects this contention with its holding.    I

believe, however, such diligence is not an unreasonable

expectation.    To rule otherwise would encourage parties to draft

their contracts riddled with errors with the knowledge that the

court will step in and correct any problems that ensue as result

of sloppy drafting.   Unfortunately, it is not the responsibility

of the courts to save parties from their mistakes and any

indication otherwise should be clearly avoided.     Accordingly, I

respectfully DISSENT.




                                 18