South Lafourche Bank & Trust Company v. Noonie G M/V. et al

Filing 89

ORDER AND REASONS denying Defendant's 60 Motion to Dismiss for Lack of Jurisdiction. FURTHER ORDERED that the Plaintiff's 59 Motion for Summary Judgment is GRANTED IN PART and DEFERRED IN PART. The Bank's request for a declar ation that the first preferred mortgage dated August 14, 2007 is a valid and subsisting lien upon the Oil Screw M/V NOONIE G, Official Number 620862, her engines, tackle, apparel, etc., and all other necessaries thereunto belonging and appertainin g as described in said preferred mortgage described prior and superior to the interests, liens or claims of any and all persons, firms or corporations whatsoever is GRANTED. The Court defers ruling as to all remaining relief requested by the Bank. Signed by Judge Susie Morgan on 6/19/2017. (clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SOUTH LAFOURCHE BANK & TRUST CO.,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-2880

M/V NOONIE G, in rem, ET AL.,
Defendants

SECTION: “E”

ORDER AND REASONS
Before the Court is a motion to dismiss for lack of subject-matter jurisdiction filed
by Defendants1 and a motion for summary judgment filed by the Plaintiff.2 Both motions
are opposed. For the following reasons, the motion to dismiss for lack of subject-matter
jurisdiction is DENIED and the motion for summary judgment is GRANTED IN PART
and DEFERRED IN PART.
BACKGROUND
Guilbeau Boat Rentals, LLC owns the M/V NOONIE G.3 Todd Guilbeau, on behalf
of Guilbeau Boat Rentals, LLC, executed a first preferred maritime mortgage in the
amount of $900,000 on the M/V NOONIE G (the “mortgage”)4 and a first preferred ship
mortgage note (the “preferred ship mortgage note”) in the amount of $900,000 on August
14, 2007.5 The preferred ship mortgage note was signed by Guilbeau Boat Rentals, LLC
and endorsed in blank by its member/manager, Todd Guilbeau.6 The preferred ship

R. Doc. 60.
R. Doc. 59.
3 R. Doc. 1 at 2.
4 R. Doc. 1-4.
5 R. Doc. 1-3.
6 Id.
1

2

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mortgage note was pledged to secure a line of credit up to a maximum principle amount
of $900,000.7
On March 27, 2014, Guilbeau Boat Rentals, LLC executed a promissory note for
$642,283.09 (the “promissory note”) payable to the order of South Lafourche Bank and
Trust Company (the “Bank”).8 The Bank contends the debt represented by the promissory
note is secured by the mortgage on the M/V NOONIE G and that the mortgage qualifies
as a preferred ship mortgage.9 The Bank alleges Guilbeau Boat Rentals, LLC and Todd
Guilbeau have failed to pay the debt owed to the Bank.10 According to the Bank, no
payments have been made by any of the Defendants, and there now remains due
$639,519.60 plus interest on the promissory note.11 No payment on the principal has been
made since August 26, 2014.12
On July 26, 2016, Allied Shipyard, Inc. filed a complaint in intervention, alleging
it provided to the M/V NOONIE G materials, repair services, and machinery in the sum
of $120,380.73, which remains due despite amicable demand by Allied upon Guilbeau
Boat Rentals, LLC.13

R. Doc. 75-1. The pledge agreement references the first preferred marine mortgage note in the amount of
$900,000.
8 R. Doc. 1-2. The promissory note bears an interest rate of 6.71% annually and is to be paid in 23 monthly
installments of $9,605.91, with the final payment due on March 26, 2016. Id. The promissory note was
signed by Guilbeau Boat Rentals, LLC and by its member/manager, Todd Guilbeau. Id. The promissory
note lists the mortgage as security, and specifically identifies the mortgage as a “Preferred Ship Mortgage”
for $900,000 on the M/V NOONIE G. Id. at 2.
9 R. Doc. 1 at 4. The Court notes the Defendants intended the mortgage to be a preferred ship mortgage
under the Ship Mortgage Act. The Certification of the Meeting of the Members of Guilbeau Boat Rentals,
LLC on August 14, 2007, which is attached to the First Preferred Mortgage, states that Todd Guilbeau, as a
member of Guilbeau Boat Rentals, LLC, effectuates “the issuance of a First Preferred Ship Mortgage to
South Lafourche Bank & Trust Company, to be secured by the M/V NOONIE G in the sum of Nine Hundred
Thousand ($900,000) Dollars.” R. Doc. 1-4 at 6 (emphasis added). The certification is signed by Todd
Guilbeau. Id.
10 R. Doc. 1 at 6.
11 Id.
12 Id.
13 R. Doc. 20.
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On January 30, 2017, the Bank filed a motion for summary judgment, asking the
Court to enter a judgment as follows:
A. In favor of South Lafourche Bank & Trust Company and against the M/V NOONIE
G, Official Number 620862, its engines, tackle, apparel, etc., in rem, Guilbeau Boat
Rentals, LLC, and Todd Guilbeau, in personam, in solido, in the sum of Six
Hundred Thirty Nine Thousand Five Hundred Nineteen and 60/100
($639,519.60) Dollars together with interest at the rate of Six and 71/100 (6.71%)
per cent per annum from September 30, 2015, until paid, plus attorney’s fees and
all costs of these proceedings.
B. In favor of South Lafourche Bank & Trust Company and against the defendant,
Anthony Guilbeau, Jr., in the sum of One Hundred Twenty-Five Thousand
($125,000.00) Dollars, together with legal interest from date of judicial demand
as well as all costs of these proceedings, said judgment to be in solido with the
judgment rendered against the M/V NOONIE G, in rem, and Guilbeau Boat
Rentals, L.L.C., Todd Guilbeau and Lorraine G. Guilbeau, in personam.
C. In favor of South Lafourche Bank & Trust Company and against the defendant,
Lorraine G. Guilbeau, in the sum of One Hundred Twenty-Five Thousand
($125,000.00) Dollars, together with legal interest from date of judicial demand
as well as all costs of these proceedings, said judgment to be in solido with the
judgment rendered against the M/V NOONIE G, in rem, and Guilbeau Boat
Rentals, L.L.C., Todd Guilbeau and Anthony Guilbeau, Jr., in personam.
D. Declaring that the first preferred mortgage dated August 14, 2007 is a valid and
subsisting lien upon the Oil Screw M/V NOONIE G, Official Number 620862, her
engines, tackle, apparel, etc., and all other necessaries thereunto belonging and
appertaining as described in said preferred mortgage described prior and superior
to the interests, liens or claims of any and all persons, firms or corporations
whatsoever.
E. Directing that the M/V NOONIE G, Official Number 620862, its engines, tackle,
apparel, in rem, be sold by the United States Marshal of this District to the highest
bidder, free and clear of all liens and pre-existing claims on said vessel.
F. Declaring that, in the event that South Lafourche Bank & Trust Company is the
successful bidder at the sale of the M/V NOONIE G, Official Number 620862, that
South Lafourche Bank & Trust Company be allowed to substitute its mortgage up
to the value of that mortgage, in lieu of payment for the cash purchase price at the
U.S. Marshal’s sale; South Lafourche Bank & Trust Company to pay, in the event
that it is the successful bidder, the U.S. Marshal’s commission in connection with
the sale.
G. Declaring that all claims against the M/V NOONIE G, Official Number 620862,
except those of South Lafourche Bank & Trust Company be defaulted and barred
by laches.
3

H. For such other and further relief as the Court deems just and equitable.
In its motion for summary judgment, the Bank argues the mortgage is a valid
preferred ship mortgage under the Ship Mortgage Act. The Defendants and the Intervenor
filed oppositions to the motion for summary judgment.14
On February 7, 2017, the Defendants Guilbeau Boat Rentals, LLC (individually and
as owner of the M/V NOONIE G) and Todd Guilbeau, Anthony Guilbeau, Jr. and Lorraine
Guilbeau (collectively, “Defendants”) filed a motion to dismiss for lack of subject-matter
jurisdiction, arguing the mortgage is invalid under Louisiana law, and therefore cannot
be a preferred ship mortgage under the Ship Mortgage Act.15 On April 27, 2017, the Bank
filed its opposition to the Defendants’ motion to dismiss. 16 The Defendants filed a reply
memorandum,17 to which the Bank filed a sur-reply memorandum.18
On May 19, 2017, the Court heard oral argument on both motions.19
LEGAL STANDARDS
I.

Motion to Dismiss for Lack of Subject-Matter Jurisdiction

“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by
statute, they lack the power to adjudicate claims.”20 A motion to dismiss under Federal
Rules of Civil Procedure 12(b)(1) challenges a federal court’s subject-matter jurisdiction.21
Under Rule 12(b)(1), “[a] case is properly dismissed for lack of subject matter jurisdiction

R. Docs. 63, 73.
R. Doc. 60.
16 R. Doc. 75.
17 R. Doc. 79.
18 R. Doc. 82.
19 R. Doc. 83.
20 In re FEMA Trailer Formaldehyde Products Liab. Litig. (Mississippi Plaintiffs), 668 F.3d 281, 286 (5th
Cir. 2012).
21 See Fed. R. Civ. P. 12(b)(1).
14
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when the court lacks the statutory or constitutional power to adjudicate the case.” 22 “Lack
of subject-matter jurisdiction may be found in the complaint alone, the complaint
supplemented by the undisputed facts as evidenced in the record, or the complaint
supplemented by the undisputed facts plus the court’s resolution of the disputed facts.”23
“When, as here, grounds for dismissal may exist under both Rule 12(b)(1) and Rule
12(b)(6), the Court should, if necessary, dismiss only under the former without reaching
the question of failure to state a claim.”24
II.

Summary Judgment

Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”25 “An issue is material if its resolution could affect the outcome of the action.” 26
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrains from making credibility determinations or weighing
the evidence.”27 All reasonable inferences are drawn in favor of the nonmoving party.28
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law.29
If the dispositive issue is one on which the moving party will bear the burden of
persuasion at trial, the moving party “must come forward with evidence which would

Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal
quotation marks and citation omitted).
23 In re FEMA, 668 F.3d at 287.
24 Valdery v. Louisiana Workforce Comm’n, No. 15-01547, 2015 WL 5307390, at *1 (E.D. La. Sept. 10,
2015).
25 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
26 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
27 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
28 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
29 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
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‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” 30 If the
moving party fails to carry this burden, the motion must be denied. If the moving party
successfully carries this burden, the burden of production then shifts to the nonmoving
party to direct the Court’s attention to something in the pleadings or other evidence in the
record setting forth specific facts sufficient to establish that a genuine issue of material
fact does indeed exist.31
If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim.32 When proceeding under the first option, if the
nonmoving party cannot muster sufficient evidence to dispute the movant’s contention
that there are no disputed facts, a trial would be useless, and the moving party is entitled
to summary judgment as a matter of law.33 When, however, the movant is proceeding
under the second option and is seeking summary judgment on the ground that the
nonmovant has no evidence to establish an essential element of the claim, the nonmoving
party may defeat a motion for summary judgment by “calling the Court’s attention to

Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263–64 (5th Cir. 1991) (quoting Golden Rule Ins. Co.
v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991)).
31 Celotex, 477 U.S. at 322–24.
32 Id. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297 (5th Cir. 1987)
(citing Justice Brennan’s statement of the summary judgment standard in Celotex Corp. v. Catrett, 477 U.S.
317, 322–24 (1986), and requiring the movants to submit affirmative evidence to negate an essential
element of the nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient
to establish an essential element); Fano v. O’Neill, 806 F.2d 1262, 1266 (citing Justice Brennan’s dissent in
Celotex, and requiring the movant to make an affirmative presentation to negate the nonmovant’s claims
on summary judgment); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL
PRACTICE AND PROCEDURE §2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority
and dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to
how the standard was applied to the facts of the case.” (internal citations omitted)).
33 First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288–89 (1980);
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986).
30

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supporting evidence already in the record that was overlooked or ignored by the moving
party.”34 Under either scenario, the burden then shifts back to the movant to demonstrate
the inadequacy of the evidence relied upon by the nonmovant.35 If the movant meets this
burden, “the burden of production shifts [back again] to the nonmoving party, who must
either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule
56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided
in Rule 56(f).”36 “Summary judgment should be granted if the nonmoving party fails to
respond in one or more of these ways, or if, after the nonmoving party responds, the court
determines that the moving party has met its ultimate burden of persuading the court that
there is no genuine issue of material fact for trial.”37
LAW AND ANALYSIS
The Bank’s basis for asserting federal admiralty jurisdiction in this matter is that
the mortgage is a preferred ship mortgage under the Ship Mortgage Act.38 In their Rule
12(b)(1) motion to dismiss, Defendants contend this Court does not have subject-matter
jurisdiction to hear this matter because the mortgage is not a preferred ship mortgage. 39
Defendants argue the Ship Mortgage Act does not provide a basis for jurisdiction because
the financing documents on which the Bank relies are structured in the form of a collateral
chattel mortgage, which the Defendants contend is no longer a valid instrument for
mortgaging movable property under Louisiana law.40 Defendants assert that, if the Bank’s

Celotex, 477 U.S. at 332–33.
Id.
36 Celotex, 477 U.S. at 332–33, 333 n.3.
37 Id.; see also First National Bank of Arizona, 391 U.S. at 289.
38 46 U.S.C. § 31301, et seq.; R. Doc. 1 at 2.
39 R. Doc. 60.
40 Id. at 3.
34
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mortgage is not valid under Louisiana law, it is not a valid preferred ship mortgage under
the Ship Mortgage Act.41 If the Bank’s mortgage is not a valid preferred ship mortgage for
the purposes of the Ship Mortgage Act, this Court has no federal question subject-matter
jurisdiction.
The Bank’s motion for summary judgment raises the same issue, as the Bank seeks
a declaration that the mortgage is a valid preferred ship mortgage, enforceable under the
Ship Mortgage Act.42 Because both motions raise the same issue—whether the Bank’s
mortgage is a valid preferred ship mortgage—the Court will consider the motions
together.
The Ship Mortgage Act is an integral part of maritime law.43 Before the passage of
the Ship Mortgage Act, a mortgage on a vessel was practically worthless because the
enforcement of the mortgage was not a maritime matter that could be litigated in
admiralty jurisdiction.44 In response to this problem, Congress passed the Ship Mortgage
Act, which provides for a “preferred ship mortgage” that creates a maritime lien against
the mortgaged vessel.45 The Ship Mortgage Act is designed to “stimulate private
investment in U.S. Shipping and to protect the United States as the principal source of

Id.
R. Doc. 60.
43 See The Thomas Barlum, 193 U.S. 21, 38–42 (1934).
44 Id.; see also 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 9-5 (5 ed. 2011) (“Such mortgages
could be created under state law and enforced in state court, but since the mortgages did not enjoy the
status of a lienholder under federal maritime law, the security of a state law mortgage was often
worthless.”). Before the passage of the Ship Mortgage Act, vessel mortgage liens could not be enforced in
admiralty court, and state-court enforcement was ineffective because state courts could not affect maritime
liens, providing unsatisfactory protection of a ship mortgagee’s security interest. Thomas Barlum, 293 U.S.
at 39. Before the enactment of the Ship Mortgage Act, “ship mortgages were not entitled to enforcement by
maritime liens and were subordinate to all of the many maritime liens a ship might incur.” Governor & Co.
of Bank of Scotland v. Sabay, 211 F.3d 261, 270 (5th Cir. 2000).
45 SCHOENBAUM, at § 9-5.
41

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credit.”46 “The primary purpose of the Ship Mortgage Act is to induce private capital to
invest in shipping” and to “create ‘certainty in financing’ vessels of the United States.”47
In enacting the Ship Mortgage Act, Congress recognized the need for “exclusive
jurisdiction of the admiralty court and uniformity of procedure in ship mortgage
foreclosure proceedings.”48 As a result, although state law may supplement maritime law,
“it must yield when it interferes with [the Ship Mortgage Act’s goals of] harmony and
uniformity, or where it would defeat reasonably settled expectations of maritime
actors.”49 Leaving each state to decide whether a mortgage is valid under the Ship
Mortgage Act disrupts uniformity in maritime law by interfering with maritime actors’
settled expectations.50
The Ship Mortgage Act defines a preferred ship mortgage as one that “(1) includes
the whole of the vessel; (2) is filed in substantial compliance with [46 U.S.C. § 31321];
[and] (3) covers a documented vessel . . . .”51 Section 31321 requires that a preferred ship
mortgage:
(1) identify the vessel;
(2) state the name and address of each party to the instrument;
(3) state, if a mortgage, the amount of the direct or contingent obligations . . . that
is or may become secured by the mortgage, excluding interest, expenses, and fees;
(4) state the interest of the grantor, mortgagor, or assignor to the vessel;

Seattle First Nat’l Bank v. Bluewater P’ship, 772 F.2d 565, 569 (9th Cir. 1985); see also Bank of the Pac.
v. F/V ZOEA, No. 3:15-CV-05758, 2017 WL 823298, at *2 (W.D. Wash. Mar. 2, 2017) (The Ship Mortgage
Act “promotes investments in ships by facilitating vessel financing and by establishing the priority of
preferred ship mortgages in relation to other liens. It was passed to stimulate private investment in U.S.
shipping and to protect the United States as a principal source of credit.”).
47 Chancery Nat’l Bank v. Blue Eagle, 697 F. Supp. 1160, 1161 (W.D. Wash. 1988) (quoting In re Alberto,
823 F.2d 712, 719 (3d Cir. 1987)).
48 J. Ray McDermott & Co. v. Vessel Morning Star, 457 F.2d 815, 817 (5th Cir. 1972).
49 F/V ZOEA, 2017 WL 823298, at *2 (citing Am. Dredging Co. v. Miller, 510 U.S. 443, 447 (1994) and
Persson v. Scotia Prince Cruises, Ltd., 330 F.3d 28, 32 (1st Cir. 2003)).
50 F/V ZOEA, 2017 WL 823298, at *2.
51 46 U.S.C. § 31322.
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(5) state the interest sold, conveyed, mortgaged, or assigned; and
(6) be signed and acknowledged.52
Preferred ship mortgages recorded with the United States Coast Guard have priority over
other types of maritime loans.53
When one of the elements necessary to establish a preferred ship mortgage for the
purposes of the Ship Mortgage Act is questioned, courts may look to state law as
persuasive authority in determining the issue.54 However, as the Fifth Circuit stated in J.
Ray McDermott v. The Vessel Morning Star, when no void exists in the statutory scheme,
it is not necessary to turn to state law, as “to engraft the various nuances of state law onto
federal legislation would introduce an undesirable lack of uniformity in the interpretation
of Congressional enactments and would impede the harmony and uniformity sought by
the [Ship Mortgage] Act.”55 The Ninth Circuit in Seattle First National Bank v. Bluewater
Partnership held—in light of the Ship Mortgage Act’s principle of uniformity—“[s]hip
mortgages will not lose their preferred status where minor discrepancies exist.
Substantial compliance with the Act’s requirements is sufficient.” 56
Although the Defendants have not disputed that the mortgage satisfies
requirements 1, 2, 4, 5 and 6 of Section 31321, they do contend that the third requirement
has not been met because the mortgage does not state the amount of the direct or
contingent obligation that is or may be secured by the mortgage. There is no dispute that

46 U.S.C. § 31321(b).
See 46 U.S.C. § 31321.
54 Southland Fin. Corp. v. Oil Screw Mary Evelyn, 248 F. Supp. 520, 522 (E.D. La. 1965) (“There is no
Federal law of mortgages except such as is contained in specific statutes such as the Ship’s Mortgage Act.
Where voids appear, it is necessary for the Court to look to other sources for its answers. While the Federal
Court may not be bound by State law in such an instance, nevertheless, the State law is the logical place to
look for guidance. Uniformity is to be desired in matters maritime, but a starting point is required before
uniformity can be achieved.”).
55 J. McDermott, 457 F.2d at 818.
56 Seattle First Nat’l Bank, 772 F.2d at 570; see also Chancery Nat’l Bank, 697 F. Supp. at 1161 (finding a
technical error immaterial and therefore insufficient to disqualify the mortgage for preferred status).
52
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the Ship Mortgage Act allows a vessel to be mortgaged to secure present indebtedness as
well as future advances.57 The Ship Mortgage Act simply requires that a preferred ship
mortgage include the amount that “is or may become secured by the mortgage.”58 In
Stewart & Stevenson Services, Inc. v. M/V Chris Way MacMillan, the court held that a
mortgage which, on its face, secured a maximum indebtedness of $3,000,000 was a valid
preferred ship mortgage under the Ship Mortgage Act, even though the debt actually owed
was considerably less than $3,000,000.59 Like the mortgage in Stewart & Stevenson, the
mortgage executed by Guilbeau Boat Rentals, LLC clearly states the maximum amount
that may be secured by the mortgage is $900,000.60 The fact that the actual debt owed is
less does not disqualify the mortgage under the Ship Mortgage Act. The third requirement
of Section 31321 is therefore satisfied.
The Defendants in effect contend that, even if all six requirements are met, the Ship
Mortgage Act imposes an additional requirement for the mortgage to be valid—that the
underlying mortgage be valid under the law of the state in which it was executed. 61 After
conducting a thorough review of the language of the Ship Mortgage Act, applicable case
law, and numerous secondary sources, the Court finds no such requirement.
The Ship Mortgage Act itself includes no requirement that a mortgage on a U.S.registered vessel be valid under the law of a particular state for it to be considered a
preferred ship mortgage. In contrast, in defining “preferred mortgage” on a foreign vessel
for the purposes of the Ship Mortgage Act, the drafters specifically provided that a

See R. Doc. 79; 46 U.S.C. § 31321(b) (a preferred ship mortgage must state the amount “that is or may
become secured by the mortgage”); Stewart v. Stevenson Servs., Inc. v. The M/V Chris Way Macmillan,
890 F. Supp. 552 (N.D. Miss. 1995).
58 46 U.S.C. § 31321(b) (emphasis added).
59 Stewart, 890 F. Supp. at 557–58.
60 R. Doc. 1-4 at 1.
61 R. Doc. 60-1 at 2–3. The Defendants have cited no cases to support their contention that the Ship
Mortgage Act requires a mortgage to be valid under state law to qualify as a preferred ship mortgage.
57

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preferred ship mortgage on a foreign vessel is one that “was executed under the laws of
the foreign country under whose laws the ownership of the vessel is documented and has
been registered under those laws in a public register . . . .” 62 “When Congress includes
particular language in one section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion.”63 Had Congress intended to require that a mortgage on
a ship registered in the United States be validly executed under the laws of a particular
state in order to qualify as a preferred ship mortgage, the Court must presume Congress
would have explicitly done so.
Further, the cases cited by the Defendants are distinguishable from the instant
case. In the cases cited by the Defendants, courts were faced with the question of whether
the various requirements of Section 31321(b) were met. The courts looked to state law as
a guide to resolve the dispute because the Ship Mortgage Act did not provide guidance.
For instance, in ITT Industrial Credit Company v. M/V Richard C, there existed a dispute
with respect to whether the mortgagor was the owner of the vessel that was the subject of
the preferred vessel mortgage.64 Because a preferred ship mortgage is required by Section
31321 to state the interest of the mortgagor of the vessel, and because the Ship Mortgage
Act does not define ownership, the ITT Industries court turned to Louisiana law to
determine whether the mortgagor was the owner of the vessel.65
The Bank’s mortgage meets each of the six requirements of Section 31321 and is a
valid preferred ship mortgage under the Ship Mortgage Act. The Court need not

46 U.S.C. § 31301(6)(B) (emphasis added).
Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002) (quoting Russello v. United States, 464 U.S. 16,
23 (1983)) (internal quotation marks omitted).
64 617 F. Supp. 761 (E.D. La. Sept. 13, 1985).
65 Id. at 764 (“[T]he issue of ownership . . . affect[s] the right of ITT to proceed against the vessel as security
for its debt.”).
62
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determine whether the mortgage would be a valid collateral chattel mortgage under
Louisiana law, as this is not a requirement under the Ship Mortgage Act.66 Accordingly,
the Defendants’ motion to dismiss for lack of subject-matter jurisdiction is denied. The
Court has federal question admiralty jurisdiction pursuant to 46 U.S.C. § 31325(c).
CONCLUSION
IT IS ORDERED that the motion to dismiss for lack of subject-matter
jurisdiction filed by defendants Guilbeau Boat Rentals, LLC, individually, in personam,
and as owner and claimant of the vessel M/V NOONIE G, in rem, and Todd Guilbeau,
Anthony Guilbeau, Jr. and Lorraine Guilbeau,67 is DENIED.
IT IS FURTHER ORDERED that the motion for summary judgment filed by
plaintiff South Lafourche Bank & Trust Co.68 is GRANTED IN PART and DEFERRED
IN PART. The Bank’s request for a declaration that the first preferred mortgage dated
August 14, 2007 is a valid and subsisting lien upon the Oil Screw M/V NOONIE G, Official
Number 620862, her engines, tackle, apparel, etc., and all other necessaries thereunto
belonging and appertaining as described in said preferred mortgage described prior and
superior to the interests, liens or claims of any and all persons, firms or corporations
whatsoever is GRANTED. The Court defers ruling as to all remaining relief requested by
the Bank.
New Orleans, Louisiana, this 19th day of June, 2017.

________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

The Court does not decide the validity of collateral mortgages on movable property after 1990, when
Louisiana adopted the Uniform Commercial Code Article 9.
67 R. Doc. 60.
68 R. Doc. 59.
66

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