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Document Type

Comment

Abstract

Fishermen going out to the Northeast's famed fishing grounds over the last several years have been pulling in large catches of once-ailing groundfish after more than a decade of decline. Many fishermen, and even scientists and fishery managers, say that there are more fish in the ocean now than at any other point in recent memory. However, despite the plentiful landings, total landings are down in some ports from years past due to stiff regulations that strictly curtail the areas that can be fished and the total number of days that a fisherman can be at sea. This regulatory framework was put in place in an effort to limit the number of fish caught to a more sustainable level. Indeed, the increased landings that individual fishing boats are realizing indicate that the framework appears to be working, at least to a degree. The fisheries of the Northeast, however, still find themselves in a precarious position. Though the stocks of the principal groundfish appear to be rebounding, they remain quite low and in need of more time to rebuild. To sustain their current growth, the fisheries must stay closely monitored, and perhaps more importantly, minimally fished. Towards this goal, the National Marine Fisheries Service (NMFS), the federal agency that oversees all commercial fishing in the Exclusive Economic Zone (EEZ), issued a proposed set of rules in March 2002 that would curtail commercial fishing more drastically than it has been in the past. While the fisheries remain tenuously balanced between collapse and recovery, the fishermen who try to make their livings from those fisheries find themselves in an even more precarious position. New rules limiting days at sea may well be necessary for the preservation of ailing fish stocks, but they put yet another strain on the livelihoods of fishermen. Fishermen hoping to stay in business face considerable challenges from regulatory bodies like NMFS, depleted fish stocks, and competition from within an extremely tight industry. Because fishing is often a "boom or bust" industry, leaving fishermen without cash for long periods of time, fishermen are often highly leveraged and rely on credit for the extension of services and supplies. Fishermen need boats; and boats need adequate supplies, wharfage, and repair from shipyards and other facilities. Many of the fishermen who have been strapped for cash in these last years of heavy restrictions on days at sea and total allowable catch have had to pay for these goods and services on credit. The credit supplied by shipyards and other creditors gives rise to a maritime lien, the ungainly sea creature that will be the subject of this Comment. A maritime lien gives a creditor, in the event of a default or other defined trigger such as tort, the right to arrest and sell a vessel so that the creditor can collect on her debts. What's more, it is not only the vessel that is sold when a maritime lien is enforced; it is the vessel's appurtenances as well. Appurtenances include a vessel's sails, equipment, and anything that makes the vessel a "going concern." Recently, the First Circuit ruled that fishing permits were so integral to a vessel that the permits should be considered appurtenances and thus be sold with the vessel when a creditor enforces a maritime lien. This decision may prove to have far reaching implications for the commercial fishing industry. This Comment will address the issue of maritime liens and the recent designation of fishing permits as appurtenances to those liens. The First Circuit case of Gowen, Inc. v. F/V Quality One will be analyzed as a current example of the issues and problems associated with that designation. This Comment maintains that the inclusion of fishing permits as appurtenances to maritime liens may endanger fishermen's livelihoods more than it benefits the creditors who extend goods and services to fishermen on credit. It will also argue that the inclusion of fishing permits is not required by case law or by any existing statute. To the contrary, it would be more equitable and less restrictive to treat fishing permits not as appurtenances, but as a distinct piece of property, to be treated as collateral in a separate maritime lien, enforced only if the value of the vessel itself is not equal to or greater than the value of the goods and/or services extended. Finally, it is important to mention what this Comment will not cover. The universe of maritime liens is intricately tied to both the law of admiralty and the law of secured transactions. It is my intention to provide a brief overview of maritime liens, fishing permits, and the separate regulatory regimes that control them for the purpose of elucidating and taking issue with the Gowen court's connection between fishing permits and maritime liens.

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