31 minute read
Ask an Attorney
LEGAL ADVICE ask a maritime attorney
By David Weil
2C
2C DARKI filed a lien against a yacht for unpaid wages, what next? BKGND
QUESTION: I would like some legal advice for how to enforce a maritime lien. I am a former crew member of a large American yacht that failed to pay me when I left the boat over two months ago. I recorded a maritime lien against the vessel through an online service but my claim remains unpaid. What are the next steps for collecting my unpaid wages after recording the lien?
David Weil is the managing attorney at Weil & Associates (www.weilmaritime.com) in Seal Beach. He is certified as a Specialist in Admiralty and Maritime Law by the State Bar of California Board of Legal Specialization and a “Proctor in Admiralty” Member of the Maritime Law Association of the United States, an adjunct professor of Admiralty Law, and former legal counsel to the California Yacht Brokers Association. If you have a maritime law question for Weil, he can be contacted at 562-799-5508, through his website at www.weilmaritime.com, or via email at dweil@weilmaritime.com.
BW ANSWER: This question is a bit more complicated than our reader might expect. Consider the following.
First, as we have discussed many times in this column, foreclosing on a maritime lien is extremely expensive, and the cost may easily exceed the amount of our reader’s claim against the vessel. The foreclosure process requires the filing of a lawsuit in U.S. District Court in the judicial district where the vessel is located, seeking a warrant for the “civil arrest” of the vessel by the US Marshals. The Marshals require a deposit of $5,000 to $20,000 depending on the type of boat and the rules of that particular district.
After the arrest, the Marshals will transfer custody of the vessel to a com-
Please see ATTORNEY, PAGE 11
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LATEST NEWS UPDATES blips on the radar
By Jordan B. Darling
Queen Mary Comes Under Long Beach City’s Control
WHAT HAPPENED: On May 14, the City of Long Beach filed an Objection to Sale of Leases with the court when the current lease-holder for the Queen Mary, Urban Commons Queensway LLC, a Long Beach-based travel company that has held the lease since 2016, filed for bankruptcy.
Also, in May of this year, the city inspected the Queen Mary and determined that the cost for repairs would be between $41 and $58 million. On June 4 Urban Commons Queensway LLC surrendered its interest in the lease and the responsibility of the property back to the city. For the first time in 40 years, Long Beach was back in control of the Queen Mary.
On June 8 the city approved a $2 million short-term caretaking agreement with Evolution Hospitality, the current on-ship operator, which costs about $300,000 a month to keep the ship running and provide basic maintenance.
The city also approved $500,000 to Moffat and Nicol to develop engineering and design repair work; immediate repairs are expected to cost $5 million. The city is still looking to hold the previous leaseholder responsible for lease violations and the bankruptcy is expected to continue into August.
The Queen Mary will continue to remain closed to the public until repairs are made.
WHAT’S ON TAP:
On July 20 the city council met for a study session to receive a presentation about several options for preserving the Queen Mary or scraping.
Moffat and Nicol, a Long Beachbased engineering consulting firm, laid out five options for moving forward.
Preserving the Queen Mary where it is; deconstructing the ship at its current location; towing the ship to another location for deconstruction; complete a set of repairs and then tow the ship overseas to a recycling facility, or sink the ship to make an artificial reef.
In almost every scenario the cost for the repairs topped over $100 million and each scenario was presented with its own challenges.
Towing the ship to a new location would require that the ship has the structural integrity to be moved, restoring it would require the city to put in $5 million every year aside from the initial $25-$50 million.
For now, the next steps for the city and the harbor are to work together to create an assessment of alternatives for a long-term solution, which John Keisler, director for economic development with the city, estimates to take up to 90 days before they can return to the council with projected costs.
Ideally, short-term goals also include completing critical repairs to the ship so they can reopen for tourists in 2022, and a continued partnership with the harbor to negotiate agreements for hotel and special event operations on Pier H, which could include a transfer of Pier H to the port.
For more information see the city council website at https://bit.ly/3j2qG1P.
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Historic Sailboat Journeys Again
The Pequod, a 28-foot sailboat, was originally skippered by Hernán Álvarez Forn who became the first Argentinian to sail from Argentina to Antarctica in 1987.
By: JORDAN B. DARLING
BUENOS AIRES, ARGENTINA—It is a three-month and 4,000-mile journey by sailboat between Buenos Aries, Argentina, and Deception Island in the Antarctic. The journey covers miles of sea including, a journey across Drake’s Passage with 10 to 15-foot swells and strong northwestern winds.
The Pequod, a 28-foot sailboat, made the journey for the first time in 1987 with skipper and well-known Argentinian skipper Hernán Álvarez Forn and made it again in 2021 with new skipper Manuel Pardi.
Pardi and his crew of two left their homeport of Buenos Aires on the first day of 2021 and returned three months later after completing the harrowing journey to the volcanic island just off the Antarctic Peninsula.
“When we arrived at Deception Island, it was an incredible moment it was a big euphoric time for me and for the Pequod because of the journey there was plenty of obstacles and things broken and it was very hard for us to get there,” said Manuel Pardi, skipper of the Pequod. “…When we arrived, it was like we did it… it was amazing and unforgettable for all of us.”
The island is an active volcano in the South Shetland Islands shaped like a horse-shoe and covered in barren volcanic slopes, steaming beaches, and ash-layered glaciers. The island is open to the sea through a narrow channel at Neptune’s Bellows and forms a naturally sheltered harbor, according to the Deception Island Antarctic Specially Man-
Please see ANTARCTICA, PAGE 9 Pardi and his two crew members made the 4,000mile journey from Bueno Aires to Antarctica and back on wind and electric power.
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From page 8 aged Area website.
Pardi’s journey didn’t begin the day he left on the Pequod, he was an avid sailor in his youth and loved to be out on the water in a boat, but life took a turn for the busier and his dream of sailing on a large adventure was put on hold.
Three years ago, Pardi began the journey of a lifetime simply by picking up a book. Forn wrote about his journey to the Antarctic in “Antarktikos” and Pardi was reading the book when he came across an ad for the Pequod, the boat in the book.
“I got a sail ad on the internet and the Pequod, which was his boat was for sale,” said Pardi. “Completely rusted and with openings in the hull and things to restore and well that happened to me that I was reading a book and I go to the ad for the boat of the book and you know… well then I bought the Pequod and I decided to it was going to be my boat to do the adventure that I was reading about and that was my project.”
Pardi bought the boat, met Forn, and began repairing and restoring the boat to its original condition.
During the repairs, Pardi made another unique decision that would set him apart from the original journey, he would make the trip with zero-carbon emissions.
“I said I want to go to Antarctica with zero-carbon emissions… I will go to a place that it is unpolluted and pristine and I want to go electrical,” said Pardi.
Pardi removed the old diesel engine which was leaking oil and equipped the boat with a Torqeedo all-electric auxiliary propulsion system, which could be recharged using wind and solar energy.
Unfortunately, Hernán Álvarez Forn passed away in November of 2020 at the age of 94 just months before Pardi was set to make the journey.
Forn’s family asked Pardi to let Forn make the journey to Antarctica one more time so Pardi could scatter his ashes.
“The family asked me to take the ashes to Antarctica it was like honor or well something that I could accomplish and make and it was something remarkable to tell,” said Pardi.
Pardi’s journey is being turned into a documentary by Fede Peretti, for more information see http://pequod.com. ar/#antartida.
Fast Facts
From page 4
sport. After running up a dominant point total, Northam disqualified himself from the meaningless final race and celebrated his victory by quaffing several glasses of vodka – an act, he later admitted, that left him a tad wobbly atop the medal stand.
Atlanta, 1996: Boardsailer Lee LaiShan won Hong Kong’s first-ever Olympic medal in the colony’s 44-year history of competing at the Games. Lai-Shan won the women’s Mistral class over prerace favorite and 1992 gold medalist Barbara Kendall of New Zealand. She also racked up more than $1 million in endorsements after her victory.
Beijing, 2008: The ISAF has called the 2008 Beijing Olympic Games a landmark Olympics for the sport of sailing. It was the first time the medal race format was used at the Games, featuring the top ten competitors competing in a final double-points race. It was also the first time China won a sailing medal, when Jian Yin took women’s RS:X gold. Italy’s Alessandra Sensini became the first female sailor to earn four Olympic medals. Lithuania took home its first ever Olympic sailing medal when Gintare Volungeviciute claimed silver in Laser Radial. While Great Britain led the medal tally with six, the U.S. took home two medals – Zach Railey’s silver in the Finn and Anna Tunnicliffe’s gold in Laser Radial’s Olympic debut.
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Mexico Eases Enforcement in Vaquita Zero-Tolerance Area
Mexico has created a tierbased enforcement guide for the zero-tolerance area in the Upper Gulf of California, the habitat for the critically endangered vaquita.
By: JORDAN B. DARLING
LA PAZ, MEXICO— On July 9 Mexico released a document detailing a tierbased enforcement system for the zero-tolerance area in the Upper Gulf of California, the only known habitat of the critically endangered porpoise, the vaquita. The recent announcement details Mexico’s plan for enforcing the Zero Tolerance Area and the Refuge Area for the Protection of the Vaquita Marina plan that was released on Sept. 24, 2020, which created a zero-tolerance of fishing within the vaquita habitat.
The initial agreement created an almost 140-mile zero-tolerance area to protect the vaquita, this banned the use of gillnets in the area and any type of fishing vessel.
When the initial agreement was released, Mexico promised to release a set of enforcement procedures and triggers for that enforcement at a later date.
The vaquita is one of seven porpoise species on the planet and is considered one of the rarest marine mammal species in the world with the last species count at just 10 porpoises, which is a drastic decline from the over 500 individuals in the 1990s. The vaquita is facing a distinct threat from the use of gillnets in their only known habitat the Upper Gulf of California.
“There is no evidence that vaquita are being preyed upon by other species,” said Zak Smith, director of international wildlife conservation with the Natural Resource Defense Council. “There is no other evidence that they have lack of food or that there is any other explanation for their dramatic decline other than getting caught and drowning in gillnets which are illegal in Mexico but entirely unenforced.”
According to Smith, fishermen in Mexico use the gillnets to catch shrimp and totoaba, a large fish species only native to the Gulf of California and has been internationally illegal since its placement on the Endangered Species List in 1975, even though gillnet fishing has been banned in the vaquita habitat since 2017, and in the 2020 document, the use of gillnets was banned in and around the habitat.
Mexico’s current enforcement system is broken up into tiers based on the number of boats and gillnets that are observed in the zero-tolerance area.
The enforcement rules allow up to 20 boats in the area and up to 100 meters of gillnets before beginning any enforcement, at the minimum 20 boats in the area leads to surveillance and the availability of 60 percent of resources that are earmarked for the gulf and 100 meters of gillnets leads to search and recovery efforts but not enforcement.
Mexico designated a zero-tolerance are in Sept. 2020, the zone is roughly 140 miles.
The vaquita is the smallest species of porpoise in the world and is only found in the Upper Gulf of California
Please see MEXICO, PAGE 11
Attorney
From page 6
mercial custodian, and it will remain in their custody during the pendency of the lawsuit unless released upon the filing of a bond or other security by the owner. Commercial custodians submit a monthly bill to the plaintiff for their services, and they will require a significant deposit before the lawsuit is filed. And then of course there are the attorney’s fees. The attorney will spend a lot of time on the case, even if the claim is not disputed, and that translates to significant legal fees. If the claim is disputed, all costs will increase dramatically. The vessel may eventually be sold at auction, and the sale proceeds may be applied to the out-of-pocket expenses for the marshal and the custodian, but attorney fees may not be recoverable.
Our reader indicated that he recorded a lien through an online service, but this will have little or no effect on the process.
First, the Coast Guard’s National Vessel Documentation Center (“NVDC”) requires all claims that are accepted for recording to include the claimant’s notarized signature. I am not personally aware of an online service that assists with the recording of these claims, but the requirement of a notarized signature will complicate any online procedure.
Second, a maritime lien, fundamentally, is a device to secure payment for services provided to the vessel. But the existence of a maritime lien, and the recording of a maritime lien with the Coast Guard, does nothing to actually procure payment. Maritime liens do not need to be recorded anywhere, and their recording has no legal effect. If the services associated with the claim give rise to a valid maritime lien, the lien is valid without recording, and the civil arrest procedure discussed above may proceed as described, without recording anything.
The only reason to record a lien is to provide notice to the vessel owner, other creditors, and prospective buyers if the vessel is for sale, advising that a claimant is asserting a lien against the vessel. This is very effective if a sale of the vessel is pending, since the new owner does not want to be burdened with the claim. But as noted above it otherwise serves no purpose.
In light of the foregoing, because of the expense of a foreclosure and the minimal legal-effect of recording a lien, our reader may want to consider other options. The lack of a practical and inexpensive maritime remedy does not mean that he has no legal recourse, he may consider filing a lawsuit against the owners in state court for breach of contract. The maritime nature of the contract allows him to pursue the vessel in Federal Court, but this does not preclude him from filing suit in state court. The only real differences are that the claimant cannot seize the vessel when the lawsuit is initially filed in state court, and a state court judge cannot order the sale of a vessel to be free of all possible claims from anywhere in the world. But the claimant may nonetheless sue the owner in state court, and if he prevails, he may enforce his judgment against the defendant’s assets, which may eventually include the vessel.
David Weil is licensed to practice law in the state of California and as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.
Mexico
From page 10
The strongest enforcement is if 60 to 65 boats are observed in the area three times a month Mexico will close the area and prohibit any type of fishing, the first time this occurs there will be a closure of up to 3-nautical miles for seven days, the second occurrence in 30 days will result in closure for 30 days, and so on and so forth.
If more than 500 meters of gillnets are recovered in the area Mexico will follow the same pattern of closures.
“For an area where there are supposed to be no boats to start with that, they will start increasing enforcement when the illegal activity reaches a certain threshold,” said Smith. “And if that threshold increases it like basically its 20 boats, then it’s 50 boats you know they will increase their enforcement when the problem, of course, is any gillnet in the vaquita habitat threatens the survival of the species that is the conclusion of scientists.”
In March 2020, the U.S. National Marine Fisheries Service announced that there was going to be a ban on imports of Mexican shrimp and other seafood caught in the vaquita habitat with the hope that the ban would place pressure on the Mexican government to stop the use of gillnets in that area.
For further information see the Natural Resource Defense Council website at https://www.nrdc.org/, or to read the official document from Mexico see https:// bit.ly/2UYEB0H.
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State of California Grants Scripps $35 Million for New Coastal Vessel
The new vessel will be a hybrid-hydrogen research vessel to replace the current research vessel the Robert Gordon Sproul.
By: JORDAN B. DARLING
SAN DIEGO— In a July 23 press release the University of California, San Diego revealed the Scripps Institution of Oceanography had been granted $35 million from the State of California to build a hydrogen-hybrid coastal research vessel.
According to Bruce Applegate, the associate director for the Scripps Institution of Oceanography, the new vessel will be a replacement for the 40-year-old Robert Gordon Sproul.
“This is intended to replace our little workhorse vessel named Robert Gordon Sproul, which is a 125-foot converted oil field supply vessel,” said Applegate. “And so, the primary mission that ship serves it’s really our little workhorse for taking students to sea here at Scripps Institution of Oceanography but also throughout California.”
The institution takes upwards of 400 students to sea throughout the year as part of supplementary education for lab work, but the vessel is also a part of a wider network that is open to scientists throughout California.
“Folks who are supported by the National Science Foundation, the National Oceanography Atmospheric Administration, and U.S. Geological Survey all have access to ships like Sproul,” said Applegate. “And eventually the new ship, which is operated within the U.S. Academic Research Fleet so it’s not just as at Scripps. We are a part of a much larger fleet of vessels that are organized through UNOLS which is the University-National Oceanographic Laboratory System.”
The new ship is also a part of the institution’s zero-carbon emissions goal and will have the ability to operate 75 percent of missions without generating carbon emissions.
In 2017 the institution began feasibility studies in partnership with Sandia National Labs, a federal research lab, to explore hydrogen energy systems as an option for maritime energy. The goal was to explore reducing CO2 emissions as well as other pollutants and potentially create systems that were carbon neutral or even carbon-free on a large scale.
“We did a couple of feasibility studies just to see,” said Applegate. “...Our first study was could you build a truly carbon-free zero-emission vessel using something other than fossil fuels using technology that existed at the time. We started that project in 2017 and the answer was yes sure you could and we looked at not just the technical aspects of the propulsion but everything from safety, could you bunker the thing, how do you get fuel, can it be, what was the regulatory framework look like, all of that.”
The team took a couple of trips around the design cycle before coming up with a plan for a hybrid system that would utilize a hydrogen fuel cell system using polymer electrolyte membrane fuel cells (PEM).
The fuel cells use hydrogen mixed with oxygen and air to produce electricity and pure water and according to the Department of Energy website, the fuel cells produce almost zero-carbon emissions.
The conceptual plans for the vessel have a smaller hull which means that the vessel would not be capable of carrying as much hydrogen as is needed to meet the 2,500-mile range used on trips, the addition of a second fuel system, a diesel, and electric system, would allow the vessel to reach the mission goal.
The vessel is in the conceptual stage and the institution has set a threeyear schedule to have the vessel up and running.
“We got a pretty aggressive schedule here,” said Applegate. “We’re saying we are going to do it in three the money gets here in October so you know we’ve got a conceptual design and we have conceptual renderings and drawings but really we need to spend the first year or so going through this and coming up with detailed designs so that’s the first step.” Currently, the institution is putting together a set of teams for leadership and construction before engaging with naval architects.
Applegate thinks this project could be a step forward in creating a zero-carbon emission future for maritime.
“I think there is a lot potential for this kind of power system to scale upward and be something that can be used on much longer duration and endurance vessels much bigger vessels as well,” said Applegate. “And really that’s key for decarbonizing maritime is moving away from fossil fuels to something like hydrogen that when produced at scale can be done sustainably with no carbon impact whatsoever.”
One of the items discussed in the panel was creating and conserving things like bridges and corridors that connect pieces of habitat together allowing wildlife to cross.
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California 30x30 Biodiversity Panel
The California Natural Resources Agency will be presenting its Pathways to 30x30 document in Feb. 2022.
By: JORDAN B. DARLING
CALIFORNIA— On July 27 the California Natural Resources Agency hosted the third panel in a series of five community panels planned to go throughout the summer, addressing various topics on California’s path to 30x30 and defense against climate change. This particular panel Advancing 30x30 and Protecting Biodiversity focused on the best way to protect biodiversity in California through conservation.
“The purpose of these topical advisory panels is to address key topics and questions to support the development of the Pathways to 30x30 document and the CA nature geographic information system,” said Mark Gold, secretary for biodiversity and habitat from the California Natural Resources Agency, in the discussion.
In October 2020 Governor Gavin Newson signed executive agreement N-82-20, which committed the state of California to conserve 30 percent of the state’s coastal waters and lands by 2030, this enlisted California’s network of natural and working lands into fighting against climate change.
In response to this the California Natural Resources Agency is creating a document, Pathways to 30x30, detailing opportunities and strategies to achieve 30x30 and is in the process of developing the CA Nature Geographic Information System. CA Nature GIS will be a publicly accessible system that will inform the 30x30 Pathways document and will provide insight on where biodiversity is richest and most threatened; how climate change will impact ecosystems; where landscapes can accelerate natural carbon removal and protect climate-vulnerable communities; where lands provide public access for recreation and where such access is restricted.
The panel recommended six pathways for conservation that covered the use of metrics to capture biodiversity and prioritize lands and coastal waters that need protection; target conservation approaches towards specific at-risk species and significant ecosystems in California; prioritizing the protection and restoration of landscape connectivity, things like corridors that would connect pieces of habitat disturbed by development; leveraging data to understand native species and the effect of climate change; implementing conservation methods on working landscapes and in urban areas not just in protected lands parks; partnerships with California Native American tribes to ensure effective and longterm management strategies.
The white paper released by the panel stressed that designating lands coastal waters for protection is just the beginning in the push for conservation and changing climate.
According to California Natural Resources Agency, the purpose of these panels is more than just reading off the white paper, but it is to engage the community to create a document and a pathway to 30x30 that is sustainable and well researched.
They encourage public comment, which can be done by preregistering for the public speaking portion of the panels on the website or sending comments in through email, post, or leaving a voicemail.
“We are looking for specific ideas on the types of programs that should be included and expanded upon and referrals to any organization doing relevant work propel us closer to the goals for 30 by 30. We want to hear from as many participants as possible… If you have additional input, you can send an email to californianature@resources.ca.gov, you can send in regular mail or you can leave a voice message at 1(800) 417-0668.”
This is the third of the five panels, there will be two more held this summer on August 10, Conservation of Lands which will go over the definitions and the parameters of land conservation for 30x30.
August 17, the agency will host the Conservation of Coastal Waters panel which will also provide definitions and parameters for conserving California’s water.
To read the white paper released by the panel see https://bit.ly/3rGVKYT, for more information on the panels see https://resources.ca.gov/, and to watch the most recent panel or catch up on previous panels see https://bit.ly/2VflaAv.
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Port of Los Angeles to Host LA Fleet Week Sept. 3 - 6
By: LINDSEY GLASGOW
SAN PEDRO — The Port of Los Angeles’s end of summer tradition is back and will be held in-person as long as COVID-19 protocols allow. The annual LA Fleet Week will be held over the Labor Day weekend, Sept. 3 through 6, and will feature public ship tours, military equipment demonstrations, live entertainment, educational activities, exhibits, and more.
The event honors the United States Sea Services and the men and women who presently serve or have served in the armed forces and aims to connect Southern Californians with these personnel, individuals, servicemen and women.
Ship tours will be offered each day of the event as will live entertainment, including a performance from drummers Ravidrums and Rick Allen of Def Leppard on Saturday, Sept 4. On Sunday Sept. 5, there will be a galley wars culinary cook-off competition.
The event will also feature various exhibits, including a STEM Expo Village geared toward middle and high school students who are interested in STEMrelated careers; Family Fun Zone with chalk art, crafts, water activities, scavenger hunt, and more; First Responders Village with emergency service organizations and fi rst responders providing education about their services, demonstrating their capabilities in response to major disasters, showcasing their department assets, and recruiting for current and future job opportunities; Military Village with an outdoor display of historic and modern military vehicles and equipment and photo opportunities; and other general exhibitors with family-friendly displays from a variety of products and services.
The event is free for the public to attend and will be held at the LA Waterfront. For more information about LA Fleet Week, including updates on the schedule of events, visit the offi cial website at lafl eetweek.com.
Los Angeles Fleet Week Facebook photo U.S. Coast Guard medium endurance cutter USCGC ALERT (WMEC-630) docks at the LA Waterfront for LA Fleet Week in 2019. The annual event honors the United States Sea Services and features public ship tours, military equipment demonstrations, live entertainment, educational activities, exhibits, and more.
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