Zitano v. F/V Diamond Girl

963 F. Supp. 109, 1997 WL 285426
CourtDistrict Court, D. Rhode Island
DecidedMay 6, 1997
DocketCivil Action No. 96-130B
StatusPublished
Cited by1 cases

This text of 963 F. Supp. 109 (Zitano v. F/V Diamond Girl) is published on Counsel Stack Legal Research, covering District Court, D. Rhode Island primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zitano v. F/V Diamond Girl, 963 F. Supp. 109, 1997 WL 285426 (D.R.I. 1997).

Opinion

OPINION

FRANCIS J. BOYLE, Senior District Judge.

Plaintiff Bruce Zitano brought this action to foreclose on a maritime Ken against the defendant vessel F/V DIAMOND GIRL, pursuant to Rule C of the Supplemental Rules for Admiralty and Maritime Claims. See F.R.C.P. 9. Jurisdiction is founded upon 28 U.S.C. § 1333, which grants original jurisdiction to the district courts in “[a]ny civil case of admiralty or maritime jurisdiction.” 28 U.S.C. § 1333(1). The first issue to be determined is whether the loan made by plaintiff was a “necessary” so as to create a maritime Ken against the vessel. If the loan did create a maritime Ken, it must be determined whether that Ken may be enforced or whether it is barred by the doctrine of laches.

I. Background

In 1985, the F/V DIAMOND GIRL, a ninety-four foot off-shore lobster boat, was owned by Diamond Girl, Ltd., a corporation. At that time, the vessel was docked at Tiverton, Rhode Island; it is docked presently at Portsmouth, Rhode Island. In late 1985, Gilbert Guimond, president of Diamond Girl, Ltd., negotiated a loan from the plaintiff in connection with the vessel. Simultaneously, the plaintiff was engaged in discussions with Gilbert Guimond’s brother and business partner, Richard Guimond, about purchasing Richard Guimond’s share of Diamond Girl, Ltd. The purchase of Richard Guimond’s share was never completed.

On November 19, 1985, the plaintiff made a loan to Diamond Girl, Ltd. in the amount of $30,000.00, upon agreement of Diamond Girl, Ltd. to repay the same, with interest thereon, at the rate often percent (10%) per annum. Plaintiffs understanding was that the [111]*111loan was to be used to pay the monthly insurance premium for the F/V DIAMOND GIRL. Both plaintiff and Gilbert Guimond expected that the loan would be repaid from the profits of the F/V DIAMOND GIRL’s fishing efforts. Mr. Guimond contends that the purpose of the loan was to pay the monthly insurance premium for the F/V DIAMOND GIRL and three other fishing vessels owned by Diamond Girl, Ltd., all of which were insured under the same policy. As a result of the loan, the insurance policy was maintained. Only two interest payments were made on the loan, one for $304.14 and the other for $254.82.

In June 1986 plaintiff brought an action in Rhode Island Superior Court against Gilbert Guimond, Richard Guimond, and Diamond Girl, Ltd. to recover the unpaid portions of the principal and interest on the loan. While this action was pending, the F/V DIAMOND GIRL was sold on October 7, 1987, to Gem Fish Corporation for consideration consisting of one hundred dollars and assumption of existing mortgages. One year thereafter, on October 18,1988, the Rhode Island Superior Court issued an order granting plaintiffs motion for summary judgment as to defendant Diamond Girl, Ltd., but denied it as to defendants Gilbert Guimond and Richard Guimond. The order was not appealed and no judgment was entered. At the time of the order, there were no assets available to satisfy a judgment because Diamond Girl Ltd. no longer existed and its assets, including the F/V DIAMOND GIRL, had been sold. On July 24, 1992, Diamond Girl Fisheries, Inc. purchased the F/V DIAMOND GIRL from Gem Fish Corporation for good and valuable consideration.

Plaintiff testified that he had borrowed the thirty thousand dollars from his father-in-law and has since repaid him. Plaintiff recorded his lien on September 3, 1992, more than a month after the sale of the vessel to Diamond Girl Fisheries, Inc. Three and one-half years later, this action was brought.

Plaintiff testified that in 1987, he learned of the first sale of the F/V DIAMOND GIRL. He also testified that he “probably” became aware in 1992 of the second transfer of the vessel.

Jean LeComte is the president of Diamond Girl Fisheries, Inc., the current owner of the vessel. He testified that he did not know the plaintiff personally and had no knowledge of the plaintiffs lien against the F/V DIAMOND GIRL when the vessel was purchased from Gem Fish Corporation in July 1992.

Gilbert Guimond was the President of Diamond Girl, Ltd. and it was he who negotiated the loan from plaintiff In a response to an interrogatory in the state court action, submitted under oath, he stated that the purpose of the loan was to pay insurance premiums for F/V DIAMOND GIRL. From the time of this sale to the present time he has acted as “shore boss” for the vessel, ordering provisions, supervising and providing maintenance, paying her bills and arranging the sale of her catch. He is paid a salary for his services. In June 1993, he paid fifty thousand dollars to acquire a 25% interest in Diamond Girl Fisheries, Inc.

II. Insurance as a Necessary for the Operation of the Vessel

46 U.S.C. § 31342 in part states that a person “... providing necessaries to a vessel ...” has a maritime lien. 46 U.S.C. § 31342 (1997). This section is a recodification of existing law and is not intended substantively to change maritime law. Bradford Marine Inc. v. M/V Sea Falcon, 64 F.3d 585, 588 n. 4 (11th Cir.1995). Plaintiff contends that the loan to purchase insurance was a “necessary” provided to the F/V DIAMOND GIRL so as to create a maritime lien on the vessel. Defendant asserts that the payment of $30,000 was a corporate loan and not a “necessary” so as to create a maritime lien.

A person providing “necessaries” to a vessel on the order of the owner or a person authorized by the owner has a maritime lien on the vessel and may bring a civil action in rem to enforce the lien. 46 U.S.C. § 31301(4), §§ 31341-31343. “Necessaries” generally include any “repairs, supplies, tow-age, and the use of a dry dock or marine railway.” 46 U.S.C. § 31301(4). Historically, the term “necessaries” did not include loans to purchase insurance as insurance was perceived as being for the benefit of the [112]*112owner and not as a benefit to the vessel. There has been a more recent trend, however, including as necessaries goods, services and intangibles that a careful and provident owner would provide to enable a vessel to continue to perform well the functions for which she has been designed and engaged. Farrell Ocean Services, Inc. v. United States, 681 F.2d 91, 92-93 (1st Cir.1982); Payne v. S.S. Tropic Breeze, 423 F.2d 236, 241 (1st Cir.1970). The Fifth Circuit has held that because insurance is essential to keep a vessel in commerce, it qualifies as a “necessary.” Equilease Corp. v. M/V Sampson, 793 F.2d 598, 604 (5th Cir.1986).

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963 F. Supp. 109, 1997 WL 285426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zitano-v-fv-diamond-girl-rid-1997.