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News Notes No. 5 |
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Marineliens.com
sends our e-newsletter each month to approximately 3,50,000
marine industry professionals.
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Recent California decision holds
that the federal Maritime Lien act establishes an independent
source of admiralty jurisdiction for Marine Liens
On September 11, 2002, the 9th Circuit Court
of Appeals in California held that Federal Maritime
Lien Act [FMLA] by itself justifies admiralty jurisdiction
if the lien claimant can establish that he/she/it provided
necessaries. Admiralty jurisdiction is required in order
to bring a case against a vessel and have the vessel
arrested to enforce a lien under federal law.
In this case, three vessel owners from Alaska decided
to pool their power and create the Independent Fisherman�s
Cooperative (IFC). IFC processed the fish it caught
by itself and sold it for more money. The IFC sent its
three ships to the Santa Barbara/ Ventura squid fishing
season in 1996-97. It had never participated in this
fishing season and contracted with Ventura Packers,
Inc for assistance. Ventura Packers assisted with arranging
priority dock access, off loading, and locating cold
processors and storage. Ventura Packers was to be paid
for its services, but never was. It filed suit against
the vessels directly and their owners alleging it had
a lien under the FMLA. The district court found that
there was no admiralty jurisdiction and dismissed the
case. The 9th Circuit itself did not determine whether
there was admiralty jurisdiction in this case, but rather
sent the case back to the district court with instructions
to follow its holding that FMLA creates an independent
source of admiralty jurisdiction.
Accordingly, if you have a lien claim because you provided
(1) necessaries[1] (2) to a vessel and
(3) on the order of the owner or a person authorized
by the owner, in all likelihood you will be able to
proceed in federal court and enforce your lien under
the court�s admiralty jurisdiction. The citation for
this case is Ventura Packers Inc. v. F/V Jeanine
Kathleen, et. al. 2002 U.S. App. LEXIS 18644 (2002).
Submitted by:
Wayne F. Emard, Esq.
Lisa A. Corman, Esq.
Emard, Danoff, Port & Tamulski, LLP
49 Stevenson St., Ste. 400
San Francisco, CA 94105
www.edptlaw.com
[1]
Necessaries are: repairs, supplies, towage, the use
of a dry dock or marine railway, or anything that facilitates
or enables a vessel to perform its occupation.
Show Season kicks off
September starts the fall boat show season.
Early reports indicate attendance is up from year 2000
in both Europe and America. We wish all of you great
success this Fall and look forward to meeting you at
the shows. Our show schedule is as follows:
| Unites
States |
| Date |
Show |
Location |
Booth |
| Oct.
3-6 |
IBEX-U |
Holiday
Inn By the Bay, Portland, Me |
22 |
| Oct.
3-6 |
In
Water Show |
Liberty
Landing Marina, Jersey City, NJ |
127 |
| Oct.
27-30 |
Marina/Boatyard |
Radisson/Bahia
Mar � Ft.Lauderdale, Fl |
19 |
| Oct.
31-11/4 |
Boat
Show |
Ft
Lauderdale Convention Ctr, Fl. |
3027
|
| Nov.
6-7 |
IBEX-U
S |
Seattle,
Wa |
35 |
| Nov.
14-16 |
Fish
Expo/Workboat |
Seattle,
Wa |
2325 |
| Dec.
4-6 |
Workboat |
Ernest
N Memorial Conv Ctr. New Orleans |
2202 |
| Europe |
| Date |
Show |
Location |
Booth |
| Nov.
19-21 |
METS |
RAI
Convention Ctr. Amsterdam |
11.268 |
Others will be announced as wait lists allow and applications
are approved.
The new New Jersey/New York
International In-Water Boat Show is fast
approaching [October 3rd]
and should prove to be a good show. The location should
prove beneficial from many aspects. The accessibility,
parking, lodgings and the spectacular view of the City
of New York. When in the New York region, one often
thinks of fine dining. We have singled out a restaurant
worthy of mention, Caf� Matisse, for a number of reasons.
It is rated as a Manhattan quality restaurant with New
Jersey prices, lodged in Rutherford, New Jersey about
a 12 �15 minute ride from the boat show. The menu and
directions can be viewed on their web site as www.cafematisse.com
. It is a dining experience your special customer will
not forget. Caution � reservations only! Bon appetite.
THE COMMERCIAL SHOWS IBEX U
and IBEX 2003
The Essential Boatbuilding Education, Sourcing & Communications
Event Comes to YOU!
Portland, Maine - October
3-4, 2002
Seattle, Washington - November 6-7, 2002
These shows are a must for professional boat builders,
designers, repairers, surveyors, and boatyard & marina
operators. For more information about the seminar series,
or to register for a FREE exhibit hall pass go to: www.ibexshow.com
This event is for the TRADE ONLY. Only marine industry
professionals admitted.
Bulletin board for "invisible liens-
helps many facets of the marine industry
AS PUBLISHED IN THE AUGUST ISSUE OF THE NATIOINAL
MARINE BANKERS NEWSLETTER by Peggy Boddenreider of Duetche
Financial Services
A new web-based bulletin board, www.marineliens.com,
has been launched to help find such invisible maritime
liens. David Hayward, 26-year owner of New England Marine
Documentation, has designed the site to allow marine
contractors, suppliers, and lenders to post claims against
specific vessels for nonpayment of goods and/or services.
He says the Internet provides the perfect worldwide
platform for a central posting facility, allowing access
from anywhere, anytime. The text on the site is translated
into eight different languages covering the most active
areas of the world�s seafaring population. Claimants
are encouraged to post all valid claims and to update
the site when a claim has been paid and released. Because
the service is free to claimants, participation is rapidly
expanding, Hayward reports.
Those interested in investigating vessels� backgrounds
-- lenders, vessel documentation services, brokers,
and buyers -- can search the online database by entering
identifiers unique to the vessel. A $20 per search charge
is assessed to the searcher only if the boat is located
in the database[and user wishes to see if the boat has
a claim against it]. A state or federal lien search
is still recommended, but searching this new site will
reduce the risk of an �invisible� lien appearing after
a mortgage is recorded, Hayward asserts. For more information
on www.marineliens.com,
visit the Web site or contact Hayward directly at 781-858-
Passive
vs Aggressive approach to collecting Maritime Dept -
Analysis - Part 1
The collection of maritime debt is obviously
not a new concept and there are various ways in which
a vendor may proceed to collect on overdue invoices.
We will address the various methods over the next several
issues of our newsletter.
Method One:
The first method is to do nothing and wait for the debtor
to do the right thing and step up and settle up. This
method has been practiced by the marine industry for
100 years. During these years vendors or contractors
continue to send invoices and merely wait for his money
to materialize. From 26 years experience in the marine
industry we have found less than 5% of the bills are
paid using this method. Ultimately contractors write
off the receivables and go about business. Why do vendors
not pursue outstanding invoices? The sentiment is that
vendors do not want to offend customers for fear of
loosing them.
How do customers feel? We have found that customers
will react in one of several ways. When the delinquent
customers need more work done and is questioned on the
old invoices they pretends that the work was never invoiced
and later forgot the bill. Another routine is avoidance.
To avoid the discomfort of facing the vendor or contractor,
the delinquent customer will approach a new vendor with
whom he has no debt and the cycle starts again. Sound
familiar? You are not alone! What has been gain by allowing
the debt to go unpaid? How many have followed this method
and have given up and written off receivables?
In the next issue we will look at another method of
collecting on maritime debt.
Historical Perspectives
are oftentimes interesting and help add depth to our
current day understanding of countries and regions and
their development. Much of our current day shipping
of products are either originating or transported through
the Southeast Asian region. Yachtsmen from all around
the globe are being lured to the region by its beauty
and folklore, thanks in part to the America�s Cup campaign.
We are including in this and the next edition an excerpt
from a presentation given by Pandji Hadinoto, a contributing
attorney in the Southeast Asian region.
Legal history of Indonesian Archipelago
Part 1
By Pandji R. Hadinoto, Attorney at Law,
Jakarta, Indonesia
The term of Ancient Silk Road was started since early
Anno Domine from the Eastern Area of Indonesian Archipelago
called as North Maluku to the West Europe which performs
the intercontinental multi trade route on fairly trading
atmosphere and since 15th C the Iberian (Spain and
Portuguese) started to perform the interocean single
trade route, driven by ratification of Charter of
Inter Cartera, Thordesilas, 1493 AD by Paus Alexandria.
Talking about Maritime means talking about the Father
of International Law, Huigh De Groot or Hugo Grotius,
a Dutch legal scholar (1583-1645 AD). He promoted
idea that seas should be free for the innocent use
and mutual benefit of all, Mare Liberum or Freedom
of the Seas (1609 AD). Ironically, the State General
of the United Provinces of Holland, Zeeland, Utrecht,
Guelderland, Overijssel, Groningen and Friesland which
is known now as the Netherland, legitimated a state-owned
company (Verenigde Oost-Indische Compagnie abbreviated
as VOC) by issuing a charter in March 20th, 1602 AD,
to give special rights to monopolize trade and ocean-going
route, to gain sovereignity as an overseas representative
state that maintains armed-forces, declares war and
makes treaty of peace, conquers overseas regions and
governs that regions, issues its own coins and collects
various taxes. Although this legitimation is against
that Mare Liberum, the Dutch Government was continued
to exist in the Indonesian Archipelago by forming
the Netherland Indie after the bankruptcy of the VOC
in late 1799 AD.
These 17,508 islands of what now [is] known as managed
by the Republic of Indonesia which stretched 5,110
km long from West to Eastern boundary and 1,888 km
from North to Southern boundary, in early AD was written
in Jataka book, India, as Suvannabhumi (gold island)
and in Ramayana book as Yavadvipa (gold and silver
island) and Suvarnadvipa (gold island). The first
European indicated this group of islands in a navigation
book named as Periplous tes Erythras written by Strabo
and Plinius then followed in 2nd AD by another one
titled as Geographike Hyphegesis made by Claudius
Ptolomaeus, that described Argryre Chora (silver country),
Chryse Chora (gold country), Chryse Chersonesos (gold
peninsula) and Iabadiou (iaba = yawa and diou = dvipa
= island). This "iaba" is closely comparable with
the first legal source known as stone inscription
of Canggal, Central Java, 732 AD that mentioned the
term of Yawa;
Between 320 to 455 AD the term of Dvipantara is used
in the literatures of ancient Hindu i.e. Ramayana
book that written during the Ruler of India, named
as King Gupta, Gangga River, India. Dvipa means islands
and antara means between, thus Dvipantara means island
between continentals of India and China;
During the reception of ancient Hindu by the ancient
Javanese, then Dvipantara translated as Nusantara
(stone inscription of Gunung Wilis, 1269 AD, issued
during the Ruler of Singosari, named as King Kartanegara,
its capital city in Kediri, East Java, 1269 - 1292
AD) as well as written by Mpu Prapanca in Negarakertagama
(1365 AD) during the empire of Majapahit, its capital
city in Trowulan, Mojokerto, East Java, 1293 - 1525
AD under the meaning of other islands outside Java
island. The History of Malay used Nusa Tamara; Manuel
Elgodinho de Eredia, a Portuguese Cartograph, used
Nusantara to name his global map made in 1601.
Russel Jones wrote in Archipel 6 Magazine, Etudes
interdiciplinaires sur le monde insulindien, SECMI,
1973 AD, a.f ".as Nusantara which is modern Javanese
for "archipelago", and is used in Bahasa Indonesia
to denote the Archipelago. The respectable antiquity
of Nusantara is attested, for it occurs in the 14th
century Negarakertagama, though there in the sense
of "other islands", that is, excluding Java. It did
not refer to what we now know as Indonesia; indeed
it is of questionable value to speak of such a concept
as Indonesia prior to Dutch colonisation. After being
reintroduced by Brandes the name Nusantara was taken
up by E. F. Douwes Dekker in the 1920's and for a
time was used as an appellation for the Netherlands
Indie in some circles";
In view of language and nation sciences, Nusantara
means island world stretches from Madagaskar to Fiji
islands, which also named by Pater W, Schmidt as Austronesia
in 1906, referring also to the area managed by the
empire of Sriwijaya, its capital city in Karanganyar,
Palembang, South Sumatera, 392 - 1406 AD;
Today Nusantara is used to formulate the national
perspective of Indonesia,Wawasan Nusantara and in
strategic defence point of view it is expressed as
Indra Jaya and Astra Jaya. Since March 22nd, 1973,
through the Decree of People's Assembly No. IV/MPR/1973,
Nusantara is used in relation with legal term to express
the law of Nusantara ocean. On the other hand, the
term of Indonesia is used in relation with legal term
since August 18th, 1945 as stated in the Basic Law
of Republic of Indonesia, UUD1945;
To be Continued in the Next
Edition
Enforcement of foreign court & arbitration
awards in Turkey - Part 1
a. Competency of courts, interpretation
of arbitration & jurisdiction clauses and securities
of foreign claimants
The so-called
�Code for Rules Regarding International Procedure� (�M�HUK�)
governs the competency of Turkish Courts as well as
enforcement of the foreign court or arbitration awards
and recognition of the foreign court awards.
According M�HUK art.27, the international competency
of a Turkish Court will be determined by the domestic
rules in respect the competency. On the other hand the
parties of a contract can agree to bring their disputes
to a foreign state court, provided that the competency
is not falling within the scope of compulsory competence
and not in violation with the principle of public order.
There are specific areas in Turkish Law, on which there
is a compulsory competence of Turkish Courts, but none
of them are maritime related. In 1998, the Supreme Court
agreed that parties may authorise a court in a foreign
jurisdiction, (by a jurisdiction agreement or a clause)
except in cases involving public order and exclusive
power. Therefore this order seems to be well settled
presently.
There is a broad interpretation of the validity of foreign
arbitration clauses for bill of lading holders under
Turkish law. Therefore a Turkish Court will declare
itself as not competent, if the bill of lading contains
a clause such as �all
other conditions, including arbitration clause, as per
charterparty� There has been a recent
tendency towards a narrower interpretation, in strict
compliance with the relevant law to which the parties
are subject.
As per the article 32, the foreign claimants launching
their cases or joining to cases launched already are
subject to provide security for legal expenses and possible
losses on the opponents, the amount of such security
will be assessed by the court. On the other hand there
are some bilateral agreements between the states for
avoidance of security, therefore if the foreigner is
a citizen of such state, he may be exempted from security.
b. Enforcing foreign court
awards in Turkey
According the art.34 of M�HUK, a foreign court award
can be enforced in Turkey, only if the award is final
according to the laws of the foreign state and also
dependent on a decision to be given by a competent Turkish
Court, which is to be determined as per the residence
of the party against whom the award is to be enforced.
(art.35) If this party has no residence within Turkey,
this case can be launched at a court located in Istanbul,
Ankara or Izmir.
Articles of 35 and 36 are setting the standards for
the application for enforcing of a foreign court award,
which is to be made by presenting a submission to the
competent court. It should contain the details of the
parties as well as the legal representatives, the details
of the award, such as the state, court, and the file
number, as well as the approved text and the translated
text and an official document which is showing that
the award has been finalized as per the foreign jurisdiction
and the related translated text.
For the enforcement decision, following conditions have
to be met: (art.38)
- There should be a bilateral agreement
between Turkey and the issuing state of the award
or a regulation or a practice based on reciprocity
which enables the Turkish Court awards to be enforced
in same state.
- The award should not fall within the
scope of compulsory competence of Turkish
Courts.
- The award should not be expressly
against public order.
- The award should not be objected by the
party, against whom the enforcement is
requested, on the grounds that he has not
been notified of the proceeding or
represented during the proceeding or if
the award has been issued in default on
his absence,
- The award, regarding personal rights,
should not be objected by a Turkish
Citizen, against whom the enforcement is
requested, on the grounds that the
competent jurisdiction has not been used
as per Turkish rules in respect of
conflict of laws.
According art.39, the opponent party can make objections
against the request for the enforcement only as per
the above mentioned points or that the award is fully
or partly enforced or there is a reason which avoids
the enforcement. (This means that the opponent party
can not discuss the material points, such as his blame
or amount of claim)
After receiving and evaluating the necessary documents
and hearing the objections of the opponent party as
well as the responses by the applying party, the court
can decide either for a full or part enforcement of
the foreign court award or it may refuse the request
of the enforcement. (art.40)
The foreign court awards to be enforced in Turkey are
executed in the same manner as Turkish Court awards.
(art.42)
The decision of enforcement or refusing the enforcement
is subject to appeal as per general rules of law. Appeal
will stop the execution.
To be continued in the next
issue
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