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By Glen T. Oxton by Glen T Vol. 17, No. 2 Second Quarter 2019 Joshua S. Force, Editor-in-Chief Robert J. Zapf, Managing Editor EPRESENTATIVE ORTGAGEES IN Inside This Issue R M PREFERRED SHIP MORTGAGES REPRESENTATIVE MORTGAGEES IN * PREFERRED SHIP MORTGAGES By Glen T. Oxton By Glen T. Oxton .............................................. 65 Ship mortgage law in the United States (and in the Marshall Islands, Liberia and Vanuatu, which have MANAGING EDITOR’S INTRODUCTORY NOTE adopted the general maritime law of the United States) Robert J. Zapf .................................................... 67 is often difficult to ascertain. The relevant statutes lack WINDOW ON WASHINGTON detail, leaving many questions unanswered. As courts often say, there is no federal law of mortgages. Instead, By Bryant E. Gardner ........................................ 74 courts look to analogous state laws to interpret the AVOIDING A JURY TRIAL FOR JONES ACT federal mortgage statute. As a consequence, change in SEAMEN’S INJURY CLAIMS: IT CAN BE DONE! the practice of ship finance occurs slowly. Rules are followed and forms are used because things have By Marissa M. Henderson, Esq......................... 82 always been done that way, and outdated theories enjoy RECENT DEVELOPMENTS ............................. 90 an unjustifiably long lifespan. TABLE OF CASES ....................................... 107 Two notions that ought to be retired are the fiction that a BENEDICT’S MARITIME BULLETIN EDITORIAL ship mortgage transfers title in the vessel to the mort- BOARD....................................................... 110 gagee and its corollary that only a trustee and not a mere agent may be a representative mortgagee for multiple CONTRIBUTING AUTHORS TO THIS ISSUE.... 112 lenders. The corollary is said to result from the fictional transfer of title in the vessel to the mortgagee, and that an agent may not hold title to property.1 The first proposition reflects obsolete chattel mortgage law, and the second is simply wrong. Ship mortgages have evolved from a * A graduate of Dartmouth College and Vanderbilt Law School, former naval officer, former partner in Healy & Baillie, LLP and Blank Rome, LLP, Glen Oxton handles mari- time transactions from Mamaroneck, New York. 1 The latter might be based on the concept that an agent cannot be the record owner of a vessel because the statute requires the owner’s name to be recorded. A mortgage lien, however, does not convey title to the mortgagee, as discussed below. (Continued on page 68) 17 Benedict’s Maritime Bulletin 66 Second Quarter 2019 EDITORIAL BOARD Joshua S. Force Robert J. Zapf Dr. Frank L. Wiswall, Jr., Editor Emeritus Bruce A. King Dr. James C. Kraska Dr. Norman A. Martinez- Gutie´rrez Francis X. Nolan, III Anthony J. Pruzinsky REPORTERS/ ASSOCIATE EDITORS Lizabeth L. Burrell Edward V. Cattell, Jr. Matthew A. Marion Marc Marling Howard M. McCormack Michael B. McCauley Graydon S. Staring JoAnne Zawitoski COLUMNIST Bryant E. Gardner EDITORIAL STAFF James Codella Practice Area Director Cathy Seidenberg Legal Editor A NOTE ON CITATION: The correct citation form for this publication is: 17 BENEDICT’S MAR.BULL. [65] (Second Quarter 2019) This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal or other expert assistance is required, the services of a competent professional should be sought. From the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations. Copyright ß 2019 LexisNexis Matthew Bender. LexisNexis, the knowledge burst logo, and Michie are trademarks of Reed Elsevier Properties Inc., used under license. Matthew Bender is a registered trademark of Matthew Bender Properties. 17 Benedict’s Maritime Bulletin 67 Second Quarter 2019 MANAGING EDITOR’S INTRODUCTORY NOTE We begin this edition with an interesting article by Glen Oxton on the slow changing law and practice relating to ship mortgages. Glen points out that many forms in current use invoke concepts that are outdated and no longer reflective of the law, including the concept that a mortgage transfers title to the mortgagee, and that there can be no representative mortgagees. Glen reviews the history behind these concepts and discusses the current law that does away with these archaic concepts. Our next offering is our usual column by Bryant Gardner, ‘‘Window on Washington.’’ This time, Bryant gives a very detailed review of current Chinese outlook, practices, and intentions with respect to advancing its interests in the South and East China Seas. He also gives a detailed look at U.S. and international reactions to these ambitious Chinese plans. Next we present a very interesting article by Marissa Henderson on developments in the way seaman personal injury claims can be handled and how the exposure to large awards against owners and their insurers can be managed and reduced. Both defense and plaintiffs’ counsel should be aware of this more recent approach to the handling of these claims. Last but not least, we conclude with the Recent Development case summaries. We are grateful to all those who take the time and effort to bring us these summaries of developments in maritime law. Once again, we encourage our readers to submit photos, artwork, poems, or thought pieces to enhance the enjoyment of reading our publication. As always, we hope you find this edition interesting and informative, and ask you to consider contributing an article or note for publication to educate, enlighten, and entertain us. Robert J. Zapf 17 Benedict’s Maritime Bulletin 68 Second Quarter 2019 REPRESENTATIVE MORTGAGEES IN PREFERRED SHIP MORTGAGES By Glen T. Oxton (Continued from page 65) chattel mortgage title theory to a more modern and Chattel mortgages were based on the title theory: realistic lien theory2 under which an agent may serve A chattel mortgage is an instrument by which as a representative mortgagee.3 As Professor Lloyd the title to personal chattels is transferred to a noted in 1923: mortgagee as security for the payment of a debt ...with a condition that upon payment... [T]he mortgage of to-day does not mean the the title shall revest in the mortgagor; but if the same thing to the parties that it did to their debt is not paid ...the title becomes absolute in ancestors when borrowing money to go to law in the mortgagee.’’6 the Crusades. The creditor’s security is no 4 longer physical but legal. In distinguishing mortgages in real property, the authors said: A. Background There is a manifest difference between a mort- The law of mortgages has been shaped by two competing gage of real and a mortgage of personal theories: the title theory and the lien theory. Under the property. The former is merely a security for title theory, the mortgage is viewed as a conveyance of the debt; the mortgagee has only a chattel title to the mortgagee with the owner having a right of interest, and the freehold remains in the mort- possession until an event of default occurs. Upon default, gagor. A chattel mortgage, however, is more the owner may redeem the mortgage by paying the than a mere lien or security. By the latter the indebtedness or lose all rights to the vessel. Under the legal title to the property is transferred, subject lien theory the mortgage is seen as creating a statutory to be defeated by the payment of the mortgage lien in favor of the mortgagee that is enforceable if a debt.7 default occurs. The mortgagee’s title in the chattel was acknowledged In the late 19th century security interests in personal to be only theoretical: property were governed by chattel mortgage law. Chattel mortgages on ships existed at that time but they Before default in the condition of the mort- were considered non-maritime obligations that were not gage, the legal title to the mortgaged chattels enforceable in admiralty even though they had to be is in the mortgagee. ... But while this is so recorded in the office of the collector of customs.5 technically and theoretically, yet practically, the substantial title remains in the mortgagor with all the incidents of legal title. He retains the use, control and benefit of the property subject to the mortgage. When entitled to 2 This is illustrated by South Lafourche Bank & Trust Co. v. M/V Noonie G, 2017 U.S. Dist. LEXIS 93748 (E.D. La., June possession before default, he can exercise 19, 2017) (the ‘‘NOONIE G’’) discussed below. many powers which ordinarily accompany 3 An agent as a representative ship mortgagee has been upheld the legal title to property. He may maintain in two bankruptcy decisions: In re Muma Services, Inc., 322 an action for conversion against any wrong- B.R. 541, 2005 Bankr. LEXIS 494 (Bankr. D. Del., March 30, 2005); In re Dixie Pellets, LLC, 2010 Bankr. LEXIS 5624 doer taking the property even against the (Bankr. N.D. Ala., May 13, 2010), discussed below. mortgagee; he may sell the mortgaged property 4 William H. Lloyd, Mortgages-The Genesis of the Lien Theory, 32 Yale L.J. 233, 246 (1923). 5 The Law of Chattel Mortgages and Conditional Sales, 6 Griffin and Curtis, 2d Ed. 1916 (Cornell University Library Chattel Mortgages at 2. Digital Collection) at 189-95 (‘‘Chattel Mortgages’’). 7 Id. 17 Benedict’s Maritime Bulletin 69 Second Quarter 2019 and convey good title subject to the mortgage; York Trust Co. v. S.S. Westhampton,11 the Court held and, in many cases, the property may be seized that the mortgagee ‘‘holds legal title to the mortgaged and sold by virtue of an execution against property, the SS. WESTHAMPTON.’’ But the Court did him.8 not expressly acknowledge the fiction or discuss the fact that title to the vessel also appeared to be in the regis- In any case, the transfer of title to the mortgagee cannot tered owner.
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