Author: G. William Birkhead|
Date: May 4, 2001
FORMAL REPORT OF THE COMMITTEE ON FISHERIES*
The committee last met in May of 2000, at which
time we discussed the new regulations pertaining to the American Fisheries
Act which becomes effective on October 1, 2001. The amended regulations
developed as mandated by the passage of P.L. 105–277 were published as
a final rule in Federal Register, Vol. 65, No. 236 of December 7, 2000.
The regulations change the citizenship requirements and certain mortgage
restrictions for fishing vessels. Fishing vessels of 100 and more feet
in length will be administered by the Maritime Administration, while fishing
vessels of less than 100 feet will be administered by the Coast Guard.
The new restrictions are set forth in 46 CFR § 67.21(f)(1)-(5).
The First Circuit Court of Appeals recently decided
an issue of first impression which may have far reaching ramifications
regarding admiralty procedural practice under the Supplemental Rules, as
well as uniformity issues. In Gowen, Inc. v. F/V QUALITY ONE, 2001 WL 293208
(1st Cir. 2001), the First Circuit held that abstract fishing
rights are appurtenances of a vessel subject to the maritime liens against
the vessel. The case was an appeal from the decision of the U.S. District
Court of Maine, reported at 2000 AMC 2225 (D.Me. 2000), wherein the court
reasoned that abstract fishing rights were analogous to tangible equipment
and other appurtenances which add value to the vessel and are necessary
for the accomplishment of the vessel’s mission.
However the court’s rationale may be interpreted
as granting a maritime lien against the fishing rights which, arguably,
could be enforced pursuant to an in rem proceeding against the fishing
rights. Presumably, the National Marine Fisheries Service would be served
with process as the entity in control or possession of this “intangible
property,” as set forth in Supplemental Rule C(3). By doing so, a lien
holder could deprive a fishing vessel of its fishing rights and, effectively,
tie up the vessel without ever having it seized by the marshal. There are
also concerns whether a maritime lien would follow the fishing rights to
another vessel to which the rights are transferred.
The court’s holding also raises uniformity concerns
in light of its stated rationale that the fishing rights are appurtenances
because they are necessary for the accomplishment of the vessel’s mission.
Because the fishing rights are only necessary in a particular geographical
region and for a particular species, their definition as an appurtenance
would be contingent upon the location of the vessel. In other words, what
may be an appurtenance in Cape Cod Bay may not be an appurtenance in the
Gulf of Mexico. These issues will be discussed during the committee’s meeting
on May 3, 2001.