TRADITION. INNOVATION. SUCCESS.

Transcription

1 TRADITION. INNOVATION. SUCCESS. Dial In: 1 (866) Participation Code:

2 VESSEL FINANCING AND ENFORCING MARITIME CLAIMS Paul N. Vance & Leon H. Rittenberg III September 20, 2011

3 Please note that all phones are muted during the presentation Dial *0 at any time for technical support Use the Chat feature on the right-hand side of your screen to submit questions Questions will be answered at the end of the presentation BEFORE WE GET STARTED

4 1) MARITIME LIEN CLAIMS 2) RECORDATION OF LIENS 3) ENFORCEMENT OF LIENS AND PRIORITY 4) SHIP MORTGAGES 5) TITLE XI FINANCING 6) CAPITAL CONSTRUCTION FUND 7) CONSTRUCTION RESERVE FUND TOPICS TO BE DISCUSSED

5 MARITIME LIEN CLAIMS

6 MARITIME LIENS often arise from contract claims involving vessels. They also arise from tort claims involving the operation of a vessel. Maritime Tort Claims arise from collisions or other damage to property, personal injuries, death, and a failure to pay maintenance and cure (quasi-contractual claim). Maritime liens are a creation of general maritime law. In contract cases they may be reciprocal. Maritime Lien Claims

7 FOR EXAMPLE: Contracts of carriage provide an example of a reciprocal lien - a vessel lien to the shipper for unearned freight, a lien on cargo to the carrier for unpaid freight - this lien for unpaid freight also runs to a NVOCC Non-Vessel Operating Common Carrier (often seen in situations where a Combined Transport Bill of Lading [1]). Maritime liens are often secret - arise under operation of law and in many circumstances need not be recorded to be valid and enforceable. To enforce a maritime lien, jurisdiction lies exclusively in the federal courts. Maritime Lien Claims Continued [1] Logistics Management, Inc. v. One (1) Pyramid Tent Area, 86 F.3d 908 (9th Cir. 1996)

8 CAVEAT: Even though a vessel is involved, the claim may not be a maritime claim. For example, a vessel hull under construction is not considered a vessel for purposes of establishing maritime liens likewise, a vessel construction contract is not considered a maritime contract. Also, certain contracts involving a vessel are not wholly maritime, involving nonmaritime obligations, which are not severable. No maritime jurisdiction would arise under those contracts, unless a federal statute, like the Federal Maritime Lien Act, provides the basis for maritime jurisdiction, as well as the lien. [1] For example, although a maritime contract may support admiralty jurisdiction, it is not an essential prerequisite to a civil action in admiralty to enforce a statutory necessaries lien. [2] Maritime Lien Claims Continued [1] Ventura Packers, Inc. v. F/V JEANINE KATHLEEN, 305 F.3d 913 (9th Cir. 2002) (Federal Maritime Lien Act) [2] Id. at 920

9 FEDERAL MARITIME LIEN ACT 46 U.S.C. Sec , et. seq.: Provides Liens for Necessaries The Act specifically states that necessaries includes repairs, supplies, towage, and the use of a dry dock or marine railway. The term necessaries is now construed broadly to include almost any good or service necessary for the voyage or work the vessel is undertaking. Maritime Lien Claims Continued

10 IF THE CLAIMANT: 1. provides necessaries; 2. to a ship; 3. on the order of the Owners or someone authorized by the Owners, Then it may bring an action in admiralty to enforce the necessaries lien.[1] Maritime Lien Claims Continued [1] Id. at 921

11 The Act also defines who can bind the vessel through the ordering of goods or supplies these parties include: 1. the Owner; 2. the Master; 3. the person entrusted with the management of the vessel at the port of supply; 4. an Officer or Agent appointed by the owner, charterer, an owner pro hac vice, or an agreed buyer in possession of the vessel.[1] Maritime Lien Claims Continued [1] 46 U.S.C. Sec

12 The Federal Maritime Lien Act supersedes any State statute conferring a lien on a vessel to the extent the statute establishes a claim to be enforced by a civil action in rem against the vessel for necessaries. (46 USC Sec ) Since construction of a vessel is not a maritime contract, Federal Maritime Lien Act does not supersede state liens for materials, labor or other claims relating to vessel construction. Maritime Lien Claims Continued

13 RECORDATION OF LIENS

14 RECORDATION OF LIENS Available only for documented vessels, or for vessels which have applied for documentation. Under this statute, vessels less than five tons cannot be documented. For the lien to be recorded, it must: 1. state the nature of the lien; 2. state the date the lien established; 3. state the amount of the lien; 4. state the name and address of the person; and 5. be signed and acknowledged [1] Recordation of Liens [1] 46 U.S.C. Sec

15 A notice of claim of lien expires three years after the date the lien was established, as stated in the notice. This does not alter the law pertaining to maritime liens - including the doctrine of latches. Significantly, the three-year expiration date does not establish a three-year period of limitation of actions for the lien - this period depends upon the circumstances and equities of each case under the maritime doctrine of latches. Due to the secret nature of such liens, their enforcement must be diligently pursued for the liens to remain collectible. For example, a maritime lien for necessaries may expire before the analogous state law period for limitation of actions if the vessel has been sold to a third party without notice of the lien. Recordation of Liens Continued

16 ENFORCEMENT OF LIENS & PRIORITY

17 The ranking of maritime liens was primarily established by admiralty courts, with the exception of certain provisions of the Ship Mortgage Act establishing the ranking of preferred mortgages. A PREFERRED MARITIME LIEN is defined to mean a lien on a vessel that arises before a preferred mortgage filed under Sections and of Title 46. The ship mortgage is primed by all prior maritime liens. To promote the extension of credit for goods and services supplied to vessels, the lien last incurred is paid first; monies left over are used to satisfy older liens for necessaries. Enforcement of Liens & Priority

18 GENERAL RANKING OF MARITIME LIENS 1. Expenses of justice during custodia legis (not regarded as a lien but given first priority); 2. Seaman s wages liens (including those of masters) for wages, maintenance and cure, and for wages of longshoremen directly employed by the vessel; 3. Salvage and general average liens; 4. Tort liens, including personal injuries and death; 5. Pre-mortgage maritime liens for necessaries; 6. Preferred ship mortgage liens; 7. Liens for necessaries under 46 U.S.C (4), and 31342; 8. State-created liens of a maritime nature; 9. Liens for penalties and forfeitures for violation of federal statutes; 10. Preferred non-maritime liens, including tax liens; 11. Attachment liens under Supplemental Admiralty Rule B (attachment as a means of establishing jurisdiction) Enforcement of Liens & Priority Continued

19 EXCLUSIVE FEDERAL ADMIRALTY JURISDICTION for a lien to be enforced in an in rem procedure, first the vessel must be seized by the U.S. Marshal. This can prove expensive, requiring that a significant deposit be deposited with the Marshal s Office to pay for custodia legis expenses. Alternatively, to avoid seizure a bond may be deposited (or letter of undertaking, if agreeable to the claimant). Once the vessel is seized, the owner may make a special appearance, file his claim of interest in the vessel, and effect the release of the vessel through posting of a bond (or through the acceptance of an Letter of Undertaking). Enforcement of Liens & Priority Continued

20 Risk of accepting Letter of Undertaking - if the party securing the letter of undertaking becomes insolvent, your client s lien is lost. If the owner does not appear, notice of the seizure is published in the newspaper giving additional time for the owner to file his claim of interest and to file an answer to the Complaint. After these additional delays have expired, a default may be issued, and the vessel sold and maritime liens satisfied from the sale proceeds. The Marshal s sale is confirmed by the Court. A Marshal s sale and subsequent court confirmation eliminates all maritime liens on the vessel. Enforcement of Liens & Priority Continued

21 SHIP MORTGAGES

22 A FIRST PREFERRED SHIP S MORTGAGE is a mortgage recorded against a vessel documented with the United States Coast Guard. It is protected under the Ship's Mortgage Act, and takes precedence over all liens other than preferred Maritime Liens. The First Preferred Ship's Mortgage secures not only the note described, but also any future extensions or advances against the vessel. Ship Mortgages

23 TITLE XI FINANCING

24 The TITLE XI PROGRAM provides for a full faith and credit guarantee by the United States Government for loans to construct vessels in the U.S. The program, established pursuant to 46 USC Chapter 537, provides for a full faith and credit guarantee by the U.S. Government of debt obligations issued by (1) U.S. or foreign shipowners for the purpose of financing or refinancing either U.S. flag vessels or eligible export vessels constructed, reconstructed or reconditioned in U.S. shipyards and (2) U.S. shipyards for the purpose of financing advanced shipbuilding technology and modern shipbuilding technology. The Program is administered by the Secretary of Transportation acting by and through the Maritime Administrator. Title XI Financing

25 CAPITAL CONSTRUCTION FUND

26 THE CAPITAL CONSTRUCTION FUND (CCF) program is designed to encourage owners of U.S. flagged vessels to accumulate sufficient capital to acquire additional vessels by offering tax incentives. Once your application is approved, you will enter into a formal CCF agreement with the Maritime Administration. Capital Construction Fund

27 TO DISCUSS: CCF Deposits CCF Withdrawals Qualified Agreement Vessels Penalties Investment Restrictions Reporting Requirements Termination Capital Construction Fund To Discuss

28 CONSTRUCTION RESERVE FUND

29 THE CONSTRUCTION RESERVE FUND (CRF) is a U.S. Maritime Administration Program that provides tax deferral benefits to owners and operators of U.S. flagged vessels. The CRF permits eligible parties to defer the tax on gains from the sale or exchange of vessels, as long as the proceeds are then reinvested in new vessels within approximately a three year period. It is similar to an extended 1031 exchange. In doing so, the CRF seeks to promote the construction, reconstruction, reconditioning, or acquisition of U.S. flagged vessels. Construction Reserve Fund

30 TO DISCUSS: Eligibility Requirements Application Guidelines and Establishing a CRF Benefits Requirements for New Vessels/New Vessel Defined Time Limits Penalties Reporting Requirements Construction Reserve Fund - To Discuss

31 PAUL N. VANCE D: O: LEON H. RITTENBERG III D: O: QUESTIONS? CONTACT US.