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    News Notes No. 1
    News Notes No. 2
    News Notes No. 3
    News Notes No. 4
    News Notes No. 5
    News Notes No. 6
    News Notes No. 7
    News Notes No. 8
       
       
 
 News Notes No. 5
 
Marineliens.com sends our e-newsletter each month to approximately 3,50,000 marine industry professionals.

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.

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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, Café 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.

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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-

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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.

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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

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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” (“MÖHUK”) 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 MÖHUK 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 MÖHUK, 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)
  1. 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.  
  1. The award should not fall within the scope of compulsory competence of Turkish Courts.
  1. The award should not be expressly against public order.
  1. 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,
  1. 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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