Federal District Court Opinions
FORTIS BANK v. M/V SHAMROCK, (Me. 2005) 379 F. Supp.2d 2
FORTIS BANK (Nederland) N.V. Plaintiff and Massachusetts
Port Authority, et al. Intervenor Plaintiffs v. M/V
SHAMROCK and Copropri?©t?© Du Navire Shamrock, Defendants and
Comatrans, S.A., SP Container Line SA and SNC Shamrock
Gestion Parties-in-Interest and SPM Line, Inc. and Canship
Ugland, Ltd. Third-Party Defendants. No. 04-CV-147-GZS.
United States District Court, D. Maine. July 29, 2005 West
Page 3
Peter S. Plumb, Murray, Plumb & Murray, Sarah A. McDaniel,
Murray, Plumb & Murray, Thomas C. Newman, Murray, Plumb &
Murray, Portland, ME, for Fortis Bank (Nederland) N.V.
Christine A. Civitano, Wilson, Elser, Moskowitz, Edelman &
Decker LLP, New York, NY, William H. Welte, Welte & Welte,
P.A., Camden, ME, Copropriete Du Navire Shamrock, C/O
Jean-Claude Gour, Pro Se, Comatrans S A, C/O Philippe
Paturel, Marginal Road, Canada, Pro Se, SP Container Line
SA, C/O Philip Paturel, Marginal Road, Canad, Pro Se, SNC
Shamrock Gestion, C/O Philip Paturel, Marginal Road,
Canada, Pro Se, SPM Line Inc, C/O Philip Paturel, Marginal
Road, Halifax, NS, Canada, for Republic of France
Establissement National Des Invalides De La Marine,
Copropriete Du Navire Shamrock, Comatrans S A, SP Container
Line SA, SNC Shamrock Gestion, SPM Line Inc, Intervenor
Plaintiffs.
Mark J. Winter, Drummond & Drummond, LLP, Portland, ME,
for National Maritime Services Inc, Custodian.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
GEORGE Z. SINGAL, District Judge
Before the Court are Plaintiff Fortis Bank’s (“Fortis”)
Motion for Summary Judgment (Docket # 286), Intervenor
Plaintiff Republic of France Establissment National Des
Invalides Del La Marine’s (“ENIM”) Motion for Summary
Judgment (Docket # 353) and Plaintiff Fortis’ Cross-Motion
for Summary Judgment (Docket # 372), which Fortis filed in
response to ENIM’s Motion.
I. STANDARD OF REVIEW
In deciding all of these pending motions for summary
judgment, the Court applies the same basic standard.
Generally, a party is entitled to summary judgment if, on
the record before the Court, it appears “that there is no
genuine issue as to any material fact and that the moving
Page 2 party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). An issue is “genuine” if it could be
resolved in favor of the nonmoving party by a rational fact
finder drawing reasonable inferences. See, e.g., Ward v.
Mass. Health Research Inst., 209 F.3d 29, 32 (1st Cir.
2000). A disputed fact is “material” if it “has the
potential to change the outcome of the suit under governing
law if the dispute over it is resolved favorably to the
nonmovant.” Navarro v. Pfizer Corp., 261 F.3d 90, 93-94
(1st Cir. 2001) (quoting McCarthy v. Northwest Airlines,
Inc., 56 F.3d 313, 315 (1st Cir. 1995).).
In this District, the Court constructs the factual
narrative for purposes of resolving a motion for summary
judgment via its review of the statement of material facts,
which the moving party is required to submit pursuant to
Local Rule 56(b). In accordance with this Local Rule,
“facts contained in a supporting . . . statement of
material facts, if supported by record citations as
required by this rule, shall be deemed admitted unless
properly controverted.” D. Me. Local Rule 56(f).
II. PLAINTIFF FORTIS BANK’S MOTION FOR SUMMARY JUDGMENT
(Docket # 286)
Plaintiff Fortis Bank filed its initial motion for summary
judgment on February 11, 2005 (“Fortis’ Initial Motion for
Summary Judgment”). Two limited objections were filed in
response: one by ENIM (Docket # 309) and another by a group
of intervenors referred to as the “Boston West Page 4
Parties” (Docket # 311).[fn1] In its reply to these
objections, Fortis clarified that through this Motion for
Summary Judgment it was simply asking the Court to resolve
the following legal question: Does Fortis hold a preferred
mortgage lien that may be enforced against the M/V Page 3
Shamrock pursuant to the terms of 46 U.S.C. §
31326?[fn2] As explained below, the answer to this question
is, quite simply, yes. Therefore, the Court GRANTS Fortis’
Initial Motion for Summary Judgment.
A. Factual Background
Notably, none of the limited objections filed to the
pending Motion for Summary Judgment included any opposition
to the Statement of Material Facts submitted by Fortis
(Docket # 287). Thus, the Court deems the facts contained
within this Statement of Material Facts admitted. For
purposes of resolving the question presented by the pending
motion, the Court recounts the following pertinent
undisputed facts:
On December 31, 1998, MeesPierson N.V., a Dutch banking
corporation that later merged with Fortis Bank, entered into
a loan agreement (“Loan Agreement”) with Defaulted
Defendant Copropri?©t?© de Navire Shamrock (“Copropri?©t?©”).
Pursuant to the Loan Agreement, Copropri?©t?© borrowed $11.6
million (USD) for the construction and acquisition of the
M/V Shamrock. In 2000, Fortis merged with MeesPerson N.V.
and became the successor in interest under the Loan
Agreement. One of the security documents required under the
Loan Agreement was a mortgage on the M/V Shamrock. On
December 20, 2000, Copropri?©t?© executed a mortgage on the
M/V Shamrock in favor of Fortis.
This mortgage was executed in French. Because the M/V
Shamrock was a Frenchflagged ship with a port of registry
at Saint Pierre et Miquelon, Republic of France, the
mortgage was registered by the Conservateur des Hypoth?©ques
Maritimes (Register of Maritime Page 4 Mortgages) at the
Service des Douances, Conservation des HypothÄ?quea Martimes
for Saint-Pierre et Miquelon, Republic of France. This
registration took place on December 20, 2000.
By all accounts, Copropri?©t?© defaulted on its payments
under the Loan Agreement in 2001. Although Fortis and
Copropri?©t?© made attempts to rectify this default
informally, Fortis ultimately sent Copropri?©t?© a default
notice in March 2002. Although some payments did follow
after the notice was sent, the payment default was never
fully cured. On September 1, 2003, Copropri?©t?© informed
Fortis that two entities involved in the financing of the
M/V Shamrock had filed for receivership and were to be
liquidated. Under the terms of the Loan Agreement, these
developments represented additional default events. In late
December 2003, Fortis sent Copropri?©t?© a second default
notice citing both the payment default and the bankruptcy
of one of the M/V Shamrock’s associated entities. This
notice was ultimately received by Copropri?©t?© on or about
January 26, 2004.
As of July 5, 2004, Copropri?©t?© remained in default with
the amount owed to Fortis totaling $14,353,119.84 (USD). On
July 9, West Page 5 2004, Fortis sent an acceleration
notice demanding payment of the entire amount owed. On that
same date, Fortis filed this action and obtained a warrant
for the arrest of the M/V Shamrock. Pursuant to that
warrant, the M/V Shamrock was arrested in Portland Harbor
on July 20, 2004. The Court subsequently ordered the
interlocutory sale of the M/V Shamrock and, on November 12,
2004, the M/V Shamrock was sold for $11,050,000.00 (USD) at
a public auction.
B. Discussion
The Ship Mortgage Act, 46 U.S.C. §§
31301-31343, allows for the enforcement of mortgages on
foreign vessels via in rem admiralty actions. See 46 U.S.C.
§ 31325(b)(1). As Page 5 relevant to the pending
motion for summary judgment, Section 31326 of the Ship
Mortgage Act reads:
(a) When a vessel is sold by order of a district court in
a civil action in rem brought to enforce a preferred
mortgage lien or a maritime lien, any claim in the vessel
existing on the date of sale is terminated, including a
possessory common law lien of which a person is deprived
under section 31325(e)(2) of this title, and the vessel is
sold free of all those claims.
(b) Each of the claims terminated under subsection (a) of
this section attaches, in the same amount and in
accordance with their priorities to the proceeds of the
sale, except that —
(1) the preferred mortgage lien, including a preferred
mortgage lien on a foreign vessel whose mortgage has been
guaranteed under title XI of the Merchant Marine Act, 1936
(46 App. U.S.C. 1101 et seq.) has priority over all claims
against the vessel (except for expenses and fees allowed
by the court, costs imposed by the court, and preferred
maritime liens); and
(2) for a foreign vessel whose mortgage has not been
guaranteed under title XI of that Act, the preferred
mortgage lien is subordinate to a maritime lien for
necessaries provided in the United States.
46 U.S.C. § 31326. For purposes of this statute, a
“preferred mortgage” is defined, in relevant part, as “a
mortgage, hypothecation, or similar charge that is
established as a security on a foreign vessel if the
mortgage, hypothecation, or similar charge was executed
under the laws of the foreign country under whose laws the
ownership of the vessel is documented and has been
registered under those laws in a public register at the
port of registry of the vessel or at a central office.” 46
U.S.C. § 31301(6)(B).
In short, the undisputed facts clearly establish that
Plaintiff Fortis Bank is the holder of a preferred mortgage
on the M/V Shamrock and that Fortis is entitled to enforce
its preferred mortgage lien pursuant to 46 U.S.C. §
31326. To the extent the Fortis’ Initial Motion for Summary
Judgment (Docket # 286) sought such a declaration, the
Motion is GRANTED.
The net effect of the ruling on Fortis’ Initial Motion for
Summary Judgment is that Fortis’ preferred mortgage lien is
subordinate to only three other types of claims: (1) any
Page 6 expenses, costs and fees allowed by the Court (also
known as in custodia legis expenses), (2) preferred
maritime liens as defined in 46 U.S.C. § 31301(5),
and (3) maritime liens for necessaries provided in the
United States.
III. INTERVENOR PLAINTIFF ENIM’S MOTION FOR SUMMARY
JUDGMENT (Docket # 353) and PLAINTIFF FORTIS BANK’S
CROSS-MOTION FOR SUMMARY JUDGMENT (Docket # 372)
Intervenor Plaintiff ENIM filed its Motion for Summary
Judgment on April 22, West Page 6 2005. ENIM originally
intervened in this case shortly before the public auction.
As alleged in its Amended Complaint (Docket # 217), ENIM is
a public administrative body created by the French
Government that receives contributions from French crew
members and their employers. These contributions are
managed by ENIM and used to provide various benefits and
pension payments to French crew members. Via its in rem
claim against the M/V Shamrock, ENIM seeks to collect the
contributions allegedly owed based on the wages earned by
French crew members of the M/V Shamrock. In response to
ENIM’s motion, Fortis filed a cross-motion for summary
judgment that essentially asks this Court to find that
ENIM’s claim is subordinate to Fortis’ preferred mortgage
lien.
A. Factual Background
Without repeating the undisputed background facts already
set forth in connection with Fortis’ initial summary
judgment motion, the Court has gleaned the following
additional undisputed material facts from the Statements of
Material Fact, as well as the documents cited therein:
As the common social security regime for crew members
enrolled in the French Merchant Marine, ENIM provides
French crew members with health and life insurance
coverage Page 7 as well as a pension. ENIM funds these
benefits via compulsory contributions from both the crew
member and the shipowner based on a percentage of the crew
member’s gross wages. The obligation to make contributions
to ENIM arises from the employment contract between the
shipowner and the crew member. The shipowner is then
exclusively responsible for payment of both the crew
member’s contributions and the shipowner’s contributions.
ENIM has no recourse against individual crew members if the
shipowner fails to pay ENIM the required contributions.
ENIM generally relies on the declarations of shipowners to
calculate the periods of crew member employment and the
resulting amount of the contribution owed to ENIM. In fact,
in 2003 and 2004, either Comatrans or SPM Shipping filed
declarations with ENIM listing the dates of employment for
each of the French crew members of the M/V Shamrock.
Upon the arrest of the M/V Shamrock, the Court appointed
National Maritime Service, Inc. (“NMS”) as the substitute
custodian of the M/V Shamrock. In this role, NMS managed
and secured all of the services necessary to maintain the
M/V Shamrock from July 20, 2004 through November 18, 2004.
But for the appointment of NMS, the M/V Shamrock would have
remained in the custody of the United States Marshals
Service, which would have been responsible for maintaining
and securing the M/V Shamrock during its period of arrest.
Neither the United States Marshals Service nor NMS were
bound by any employment contracts that existed between crew
members of the M/V Shamrock and Comatrans and/or SPM
Shipping. In fact, those contracts were terminated when the
M/V Shamrock was arrested on July 20, 2005. Nonetheless, in
order to maintain the vessel, NMS continued to employ
certain crew members of the M/V Shamrock. Ultimately, NMS
sought and received approval for all of the expenses
incurred as the substitute custodian of the M/V Shamrock.
These expenses included the wages paid to crew members for
work performed to maintain the M/V Shamrock while the Page
8 vessel was under arrest. Although NMS paid the crew
members directly for their work, it did not make any
contributions to ENIM. For its part, ENIM has not asserted
that it is owed contributions from either West Page 7 NMS
or the United States Marshals Service.
B. Discussion
1. The Choice of Law Question
ENIM asks the Court to apply French law in determining
whether it may recover its compulsory contributions from
the proceeds of the sale of the M/V Shamrock. In support of
their argument, ENIM cites to the mortgage documents signed
by Fortis, which include an unqualified choice of French
law. The parties agree that under French law ENIM’s claim
would share the same priority as a crew wage lien and,
thereby, be superior to Fortis’ preferred mortgage. (See
Nicolas Aff. (Att. to Docket # 370) § 6.) However,
Fortis argues that in the context of this action the
priority of claims is determined via application of the
Ship Mortgage Act, 46 U.S.C. §§ 31301-31343,
rather than French law.
Precedent clearly supports Fortis’ argument. See Payne v.
SS Tropic Breeze, 423 F.2d 236, 238-39 (1st Cir. 1970),
cert. denied, 400 U.S. 964 (1970). In Payne, the First
Circuit held that when vessels were arrested in the United
States the Ship Mortgage Act exclusively governed any
questions regarding the relative priority of maritime liens
and preferred mortgages. Although the Ship Mortgage Act has
undergone revisions since the Payne decision, these
amendments do not affect the reasoning or precedential
value of Payne. See, e.g., Oil Shipping (Bunkering) B.V. v.
Royal Bank of Scotland, 817 F. Supp. 1254, 1262 (E.D. Pa.
1993), aff’d, 10 F.3d 1015 (3d Cir. 1993). Thus, the Court
must resolve the dispute regarding the priority of ENIM’s
claim for compulsory contributions by applying the
provisions of the Ship Mortgage Act. Page 9
Presumably anticipating this holding, ENIM presents two
arguments that its claim for compulsory contributions
precedes Fortis’ preferred mortgage under the provisions of
the Ship Mortgage Act. First, ENIM seeks contributions on
the wages paid by the substitute custodian from July 20,
2004 through November 18, 2004 on the grounds that the
contributions allegedly owed for this period should be
deemed in custodia legis expenses. Second, ENIM suggests
that the contributions it seeks are crew wages thereby
giving rise to a preferred maritime lien. As explained
below, neither of these arguments holds water.
2. ENIM Contributions Do Not Qualify as In Custodia Legis
Expenses
In general, in custodia legis expenses are given the very
highest priority when distributing the proceeds from the
sale of a vessel. “In order to qualify for preferential
treatment as an expense in custodia legis, an expense must
be incurred `upon the authority of the court or its
officer,’ and be `for the common benefit of those
interested in [the] fund.'” Oil Shipping (Bunkering) B.V.
v. Sonmez Denizcilik Ve Ticaret A.S., 10 F.3d 176, 182 (3d
Cir. 1993) (internal citations omitted). In short, the
unquantified but relatively small sum[fn3] now West Page 8
sought by ENIM as in custodia legis expenses does not meet
these qualifications.
There is no evidence on the record that ENIM ever notified
the Court, the United States Marshals Service or NMS that
it believed contributions were due as result of NMS’
decision to employ various crew members of the M/V Shamrock
to maintain the vessel. In addition to its failure to
provide any notice to an entity that had the authority to
approve ENIM contributions, Page 10 the Court notes ENIM
repeatedly failed to object to the wage payments that were
being brought to the attention of the Court and
subsequently approved as in custodia legis expenses.
Specifically, ENIM did not object to any of NMS’
submissions outlining the expenses it was incurring while
the M/V Shamrock was under arrest. (See, e.g., Notice of
Substitute Custodian’s Costs to Date (Docket # 222).)
Notably, these submissions reflect payments to crew members
but no payments to ENIM.
In addition, on February 2, 2005, Fortis Bank and NMS
filed their Joint Motion for Immediate Disbursement of In
Custodia Legis Costs (Docket # 277), which provided a
complete accounting of all of the expenses incurred in
keeping the M/V Shamrock safe and secure for the period it
was under arrest. On February 23, 2005, ENIM filed a
limited objection to this motion (Docket # 294) objecting
only to an insurance policy Fortis had obtained. By failing
to include in this objection any reference to the alleged
inadequacy of the wages disbursed during the period of the
arrest or otherwise filing a separate motion seeking
reimbursement of additional in custodia legis expenses,
ENIM arguably waived any objection to the custodia legis
costs subsequently approved by the Court.
Putting aside for the moment the procedural question of
waiver, ENIM’s silence during the period of arrest means
that any contributions that accrued during the arrest
period were not incurred upon the authority of the Court or
its officer. Because ENIM contributions were not “necessary
to preserve the value of the res,” ENIM should have sought
explicit approval from the Court for the payment of such
contributions.[fn4] Oil Shipping (Bunkering) B.V., 10 F.3d
at 182-83. Page 11 Absent such approval, ENIM acted at its
peril in silently assuming that the Court would later find
these contributions qualified for payment as in custodia
legis expenses. See id. at 181.
ENIM’s argument that the previous approval of wages as in
custodia legis expenses included an implicit approval of
ENIM contributions is simply without merit. Without any
notice that ENIM believed it was entitled to collect
contributions on wages paid to any French crew member who
was employed by NMS, neither the Court nor Fortis had any
reason to believe that by simply approving or consenting to
the payment of crew wages they were implicitly agreeing to
pay compulsory contributions to ENIM in order to protect
and preserve the M/V Shamrock while in the custody of the
United States Marshal. West Page 9
In short, the ENIM contributions belatedly sought as in
custodia legis expenses were neither necessary nor incurred
with proper approval of the Court.[fn5] Although the Court
recognizes that in its discretion it could still award
these contributions preferred status as in custodia legis
expenses upon a finding that “equity and good conscience”
so require, it declines to do so on the facts and arguments
presented. New York Dock Co. v. Poznan, 274 U.S. 117, 122
(1927).
3. ENIM Contributions Do Not Constitute Crew Wages
Finally, the Court addresses head-on the parties’
disagreement regarding whether ENIM contributions are, in
fact, part of the wages owed to the crew of the vessel.
Under the Ship Mortgage Act, Fortis’ preferred mortgage is
subordinate to the wages owed to the crew of the Page 12
M/V Shamrock.[fn6] See 46 U.S.C. §§
31301(5)(D) & 31326(b). Thus, if ENIM could establish that
the contributions it seeks are, in fact, crew wages, ENIM
would have a preferred maritime lien that would be of
higher priority than Fortis’ preferred mortgage.[fn7]
ENIM primarily and problematically relies on French law in
arguing that the contributions it is owed should be treated
as crew wages. Of course, the Court has already ruled that
the priority of claims issue raised by the in rem claims in
the case are to be decided under the Ship Mortgage Act
rather than French law. Nonetheless, ENIM’s repeated
references to French law appear to suggest that the Court
could somehow utilize the Ship Mortgage Act to determine
priority and yet, in the context of this case, determine
the contours of the phrase “wages of the crew of the
vessel” by relying on French law. However, the Court cannot
adopt such an idiosyncratic view of statutory terms.
Rather, in order to achieve the Ship Mortgage Act’s purpose
and promote uniform application of the Act, the Court must
seek out the singular definition of the statutory phrase
that can then be applied to multiple cases.
The Ship Mortgage Act does not contain a explicit
definition of what constitutes the “wages of the crew of
the vessel.” 46 U.S.C. §§ 31301(5)(D).
However, the plain language of the phrase does not suggest
that term necessarily includes additional contributions
owed to third parties West Page 10 or any other
withholdings. Cf. Kesserling v. F/T Artic Hero, No.
A90-492, 1993 U.S. Dist. LEXIS 5782 at *2 (D. Alaska April
16, 1993) (holding that the United States Marshal was Page
13 responsible for paying any payroll taxes due on the
wages paid to eighty-six seamen who worked on a vessel
while it was under arrest). Rather, “wages” more commonly
refers to the compensation that is delivered from an
employer to an individual employee.
Moreover, the overwhelming majority of courts that have
been asked to enforce a preferred maritime lien for
outstanding contributions owed to third parties for the
funding of pension-type plans have held that these
contributions are not crew wages. See, e.g., Banco de
Credito Industrial, S.A. v. Tesoreria General de la
Seguridad Social de Espana, 990 F.2d 827, 837 (5th Cir.
1993) (“Unpaid social insurance or pension contributions
are not “wages of the crew” because they are due to a third
party vicariously through the seamen’s labors; the seamen
themselves have no claim to their employer’s
contributions.”); Prudential Ins. v. United States Lines,
Inc., 915 F.2d 411, 412 (collecting cases that “address[ed]
employer contributions to pension-type benefit plans” and
ultimately “concluded that such contribut ions are not
`wages of the crew'”); Citibank N.A. v. Vessel American
Maine, No. 87 Civ. 7207 (JFK), 1988 WL 61821 at *2
(S.D.N.Y. June 6, 1988) (collecting cases). Following these
cases, the Court declines to find that the contributions
allegedly owed to ENIM are crew wages entitled to priority
as a preferred maritime lien.
Having found that ENIM’s claim for compulsory
contributions does not qualify as an in custodia legis
expense or otherwise qualify as a preferred maritime lien
for the recovery of crew wages, the Court concludes that
ENIM’s in rem claim is subordinate to the preferred
mortgage of Fortis Bank. On this basis, the Court GRANTS
summary judgment in favor of Plaintiff Fortis Bank.
IV. CONCLUSION
For the reasons explained herein, the Court GRANTS Fortis’
Initial Motion for Summary Judgment (Docket # 286). The
Court also DENIES ENIM’s Motion for Summary Judgment Page
14 (Docket # 353) and GRANTS Fortis’ Cross-Motion for
Summary Judgment (Docket # 372). As a result of this latter
ruling, the Court orders that judgment be entered in favor
of the M/V Shamrock on ENIM’s in rem claim.
SO ORDERED.
[fn1] The Boston Parties have since settled all of their
claims thereby mooting their limited objection to the
pending Motion for Summary Judgment.
[fn2] In fact, Fortis’ Motion for Summary Judgment had also
included a request that the Court grant judgment in its
favor on the counterclaims that had been filed by the
Shamrock Defendants. However, the Court dismissed with
prejudice any such counterclaims on March 15, 2005. (See
March 15, 2005 Order (Docket # 321).) Thus, this portion of
Fortis’ Motion for Summary Judgment was moot by the time
Fortis filed its reply.
[fn3] ENIM has acknowledged that “only those expenses for
services or property furnished [to a vessel] after its
seizure by the U.S. Marshal . . . can be considered to have
been incurred while the vessel was in custodia legis.”
(ENIM’s Mem. of Law in Partial Opp. to Joint Mot. for
Disbursement of In Custodia Legis Costs (Docket # 294) at 3
(quoting United States v. M/V Andoris, 570 F. Supp. 413,
416 (E.D. La. 1983)).) Thus, ENIM’s in custodia legis
theory of recovery covers only the time period from July
20, 2004 through November 18, 2004. In connection with the
pending motion, ENIM has not even attempted to quantify how
much of the total amount they are seeking falls under this
theory; however, Fortis represents that the total amount
“does not exceed $27,000.” (Pl.’s Reply to Opp. to
Cross-Mot. for Summ. J. (Docket # 376) at 3 n. 1.)
[fn4] The Court notes that under different circumstances
such payments to preserve benefits might be deemed
necessary to the preservation of the vessel. However, in
this case, there is no evidence that the crew members
employed by NMS during the arrest period demanded such
payments in order to do the work necessary to preserve the
M/V Shamrock.
[fn5] In light of this holding, the Court need not resolve
the apparent dispute regarding whether contributions were,
in fact, incurred. Suffice it to say that, on the current
record, it is not clear that the employment contracts
entered into between NMS and any members of the French
merchant marine on or after July 20, 2005 gave rise to any
obligation to make compulsory contributions to ENIM.
Moreover, there remains another dispute regarding whether
the M/V Shamrock was or should have been considered an
inactive vessel for purposes of ENIM contributions during
all or some portion of its period of arrest.
[fn6] In fact, pursuant to a settlement, the crew,
including those crew members who are enrolled in the French
merchant marine, has already received a lump sum payment
from the proceeds of the auction. (See Order & Finding for
Separate and Final Judgment (Docket # 366) & May 2, 2005
Judgment (Docket # 367).)
[fn7] Notably, it is well settled that a maritime lien
cannot be created for services rendered after the arrest of
the vessel. See, e.g., Oil Shipping (Bunkering) B.V., 817
F. Supp. at 1259-60; see also Thomas J. Schoenbaum,
Admiralty & Maritime Law § 9-1 (4th ed. 2004) (“When
a vessel is `under arrest’ in custodia legis, expenses and
costs incurred cannot create a maritime lien.”) Thus, to
the extent ENIM argues that a preferred maritime lien
exists for unpaid contributions, such a lien would only
cover contributions owed to ENIM prior to July 20, 2004.
Page 1