DOG ABOARD

ed. The instrument that is recorded with the Coast Guard is a “Notice of Claim of Lien,” not a “lien.”

Under most circumstances, the filing and recording of a NCL with the Coast Guard has absolutely no legal effect. In our reader’s case, they did not “somehow manage to get a lien” as she suggests in her inquiry. The owner of the other boat (or their attorney) simply filled out some paperwork and sent it to the Coast Guard for recording. The Coast Guard takes no position as to whether a recorded NCL is filed in support of a valid lien. They accept everything for recording as long as it includes a statement from the claimant that it is being filed in good faith and the claimant’s signature is notarized.

A NCL has no legal effect, but it does have a practical effect - - - it “clouds” the title. The recorded NCL may have no legal effect, but a prospective lender or buyer of the boat will not want to deal with it. So, it does make it harder to sell the boat or get a mortgage.

Unfortunately, there is another side to this. It is true that the recording of a NCL has no legal effect. But a claimant may still have a valid lien, regardless of whether anything has been filed with the Coast Guard. When our reader asked about the boat being “arrested,” she was referring to the most common method for enforcing a maritime lien. As noted above, it requires the filing of a lawsuit in Federal Court and the issuance of a warrant for the “civil arrest” of the vessel. The U.S. Marshals execute the warrant by taking the boat into custody. The boat is then held by a commercial custodian while the lawsuit moves forward like any Federal Court lawsuit.

In a lien foreclosure lawsuit, the boat may be seized (“arrested”) without filing anything with the Coast Guard, as long as the person with the claim states facts under penalty of perjury that would, if proven in court, give rise to a valid lien. Filing and recording a Notice of Claim of Lien with the Coast Guard is not a prerequisite to arresting a boat. In fact, most vessel arrests proceed without recording an NCL. The arresting party prefers a “sneak attack”, so the boat does not escape in the middle of the night.

Our reader’s question about whether maritime law allows a boat to be arrested when no money is owed is not really asked in the right way. A vessel arrest is conducted at the beginning of a lawsuit that is filed in Federal Court. The purpose of the arrest is to secure the boat as collateral before the lawsuit is initiated. The plaintiff in the lawsuit will claim that he or she is owed money, but we don’t really know how much is owed at that time, and we won’t know until the end of the lawsuit. If a court decides that no money is owed, the boat will be returned to the boat owners, and they may be able to recover some of their costs.

Finally, a maritime lien will travel with the boat after it is sold, even if the seller or buyer had no knowledge of the claim. Most yacht purchase agreements include language requiring the seller to indemnify the buyer against any claims that arose prior to the sale of the boat. Our reader will therefore probably be responsible for the defense of this claim, even though she no longer owns the boat.

This is one of those cases where I emphasize the importance of qualified legal representation. This is a complicated legal minefield that warrants the hiring of an experienced maritime attorney. But as noted at the top of this article, your first call in a case like this should be to your insurance broker or agent.

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.

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.

Fax (949) 660-6172

EDITORIAL/CREATIVE (949) 660-6150

Editor and Publisher Duncan McIntosh, Jr. duncan@goboating.com

General Manager Kathleen Ford kathleen@goboating.com (949) 519-4745

Editor Katherine Clements katherine@goboating.com

Graphic Artist Meredith V. Ewell

Contributors

J.R. Johnson, Bob Vanian, Catherine French, David Weil, Capt. Pat Rains

ADVERTISING SALES (949) 660-6150 Fax: (949) 660-6172

Susanne Kirkham-Diaz (949) 503-7693 susanne@goboating.com

CLASSIFIED ADVERTISING (800) 887-1615

Jon Sorenson jon@goboating.com

SUBSCRIPTION SERVICES (800) 887-1615 jon@goboating.com

THE LOG ONLINE AND NEWSLETTERS thelog.com

Newsletters To subscribe to the Log's Newsletter, go to thelog.com

The Log, San Diego Log and FishRap are registered trademarks of Duncan McIntosh Co. Inc. Copyright 2023, all rights reserved. No part may be reproduced in any form without the prior written permission of the publisher.