FULLER MARINE SERVICES INC v. WESTWARD F/V

Filing 36

ORDER ON MOTION TO REMOVE DEFAULT denying 28 Motion for Removal of Default By JUDGE NANCY TORRESEN. (rmb)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

FULLER MARINE SERVICES, INC.,
Plaintiff,
v.
F/V WESTWARD, official number
690723, gear, tackle, anchors, etc., in
rem,
Defendant.

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) Civil No. 2:15-cv-212-NT
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ORDER ON MOTION TO REMOVE DEFAULT
Two hours before I was to begin a hearing to determine the value of the salvage
lien on the Westward, the owner of the vessel, Dennis Murphy, filed a Motion to
Remove Default. ECF No. 28. The motion raises a number of issues, none of them
sufficient under Rule 60 to set aside the default. Fed. R. Civ. P. 60.
First, Murphy contends that he “recently [became] aware of this action” and
“questions whether he was afforded adequate notice.” Motion to Remove Default 2.1
The statute requiring notice provides that “[a]ctual notice of a civil action brought . .
. to enforce a maritime lien, must be given in the manner directed by the court to . . .
the master or individual in charge of the vessel. 46 U.S.C. § 31325(d)(1)(A). The
motion states that “Mr. Murphy had left the WESTWARD in the care of Dennis

Murphy also states that there is no evidence that the other record lienholders have been
notified of the vessel’s arrest. It is not clear that Murphy has standing to raise claims of the
lienholders. Nevertheless, the record provides evidence that the lienholders were notified by certified
mail. ECF Nos. 21 and 21-1.
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Sheehy, who apparently failed to attend properly to the vessel.” Motion to Remove
Default 2. On June 22, 2015, I had a conference in this case and James Sheehy
appeared by telephone. During that conference, Sheehy stated that he was the
Westward’s agent and was working with the Plaintiff to settle the case and move the
vessel to Portland. The Plaintiff filed an affidavit showing that he sent Sheehy by
certified mail copies of all “pleadings notices and court orders” and that he sent an
additional copy of those documents by certified mail to Murphy c/o Sheehy. ECF Nos.
21 and 21-1. At the conference, Sheehy indicated he had not yet sent the notice of the
suit to Murphy but that he would hunt him down within a week and get him the
information. Two days later, the Plaintiff reported that although he met with Sheehy,
settlement was not achieved. ECF No. 16.
It is clear from the record that Sheehy was serving as the individual in charge
of the vessel while Murphy was working at sea or otherwise unavailable. Therefore,
I find that the Plaintiff met its obligation under section 31325(d)(1)(A) to provide
actual notice to the “master or individual in charge of the vessel.”
Without citing to any authority, Murphy next contends that the salvage lien
does not attach to the vessel’s fishing permits and that the Plaintiff’s salvage claim
is overvalued. Murphy claims that “if the salvor’s claims are overvalued, and the
salvor is permitted to bid based on an overvalued lien at auction, it will stifle the
bidding and will diminish funds available to other lienholders. A better solution is to
allow the vessel to be auctioned, with the value apportioned between vessel and her
‘permits.’” Motion to Remove Default at 2-3. I disagree. In Gowen v. F/V Quality

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One, 244 F.3d 64, 67-70 (1st Cir. 2001), the court held that a vessel’s fishing permits
were appurtenances to the vessel and therefore subject to a lien on the vessel. The
Gowen court made no distinction between contract liens and salvage liens and I see
no reason to do so either.
Accordingly, I find no basis to remove or set aside the default under Rule 60.
CONCLUSION
The Motion to Remove the Default is DENIED.
SO ORDERED.
/s/ Nancy Torresen
United States Chief District Judge
Dated this 24th day of September, 2015.

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