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 (1^st 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.