2004 | Cited 0 times | D. Maine | February 10, 2004


Defendants F/V Terri and Ruth ("Vessel") and Ruth Ann Stables, Inc.("Stables, Inc.") (both, "Defendants") move for summary judgment againstplaintiff Linda Stewart as to all three counts of the instant verifiedcomplaint in admiralty and against plaintiff Eric Lush (together withStewart, "Plaintiffs") as to Counts II and III. See Defendants' Motionfor Partial Summary Judgment ("Defendants' S/J Motion") (Docket No. 31)at 1; Verified Complaint in Admiralty ("Complaint") (Docket No. 1) ¶¶7-32. Stewart cross-moves for summary judgment as to Count I. SeeMemorandum in Support of Plaintiff Stewart's Motion for Summary Judgment("Plaintiffs' S/J Motion") (Docket No. 33); Complaint ¶¶ 7-9.1 For thereasons that follow, I recommend that the court deny the Defendants'motion as to Count I and grant it as to Counts II and III and grantStewart's motion.Page 2

I. Summary Judgment Standards

Summary judgment is appropriate only if the record shows "that there isno genuine issue as to any material fact and that the moving party isentitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "In thisregard, `material' means that a contested fact has the potential tochange the outcome of the suit under the governing law if the disputeover it is resolved favorably to the nonmovant. By like token, `genuine'means that `the evidence about the fact is such that a reasonable jurycould resolve the point in favor of the nonmoving party.'" Navarro v.Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quoting McCarthy v.Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)).

The party moving for summary judgment must demonstrate an absence ofevidence to support the nonmoving party's case. Celotex Corp. v.Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden ismet, the court must view the record in the light most favorable to thenonmoving party and give that party the benefit of all reasonableinferences in its favor. Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33(1st Cir. 2000). Once the moving party has made a preliminary showingthat no genuine issue of material fact exists, the nonmovant must"produce specific facts, in suitable evidentiary form, to establish thepresence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus.,Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuationomitted); Fed.R.Civ.P. 56(e). "As to any essential factual element of itsclaim on which the nonmovant would bear the burden of proof at trial, itsfailure to come forward with sufficient evidence to generate atrialworthy issue warrants summary judgment to the moving party." In reSpigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuationomitted).Page 3

To the extent that parties cross-move for summary judgment, the courtmust draw all reasonable inferences against granting summary judgment todetermine whether there are genuine issues of material fact to be tried.Continental Grain Co. v. Puerto Rico Maritime Shipping Auth., 972 F.2d 426,429 (1st Cir. 1992). If there are any genuine issues of material fact,both motions must be denied as to the affected issue or issues of law; ifnot, one party is entitled to judgment as a matter of law. 10A CharlesAlan Wright, Arthur R Miller & Mary Kay Kane, Federal Practice andProcedure § 2720, at 336-37 (1998).

II. Factual Context

The parties' statements of material facts, credited to the extenteither admitted or supported by record citations in accordance with LocalRule 56, reveal the following relevant to this recommended decision:2

Stables, Inc. has owned the Vessel since 1985. Plaintiffs' Statement ofMaterial Facts in Support of Plaintiff Stewart's Motion for SummaryJudgment ("Plaintiffs' SMF") (Docket No. 34) ¶ 1-2; Defendants' OpposingStatement of Material Facts ("Defendants' Opposing SMF") (Docket No. 39)¶¶ 1-2. James Finley is president and financial officer of Stables, Inc.and its sole shareholder. Id. ¶¶ 3-4. He therefore is the humanrepresentative of the Defendants. Defendants' Statement of Material Facts("Defendants' SMF"), attached to Defendants' S/J Motion, ¶ 1; Plaintiffs'Opposing Statement of Material Facts ("Plaintiffs' Opposing SMF") (DocketNo. 45) ¶ 1.

In October 2000 the Vessel was berthed at Custom House Wharf inPortland, Maine. Plaintiffs' SMF ¶ 5; Defendants' Opposing SMF ¶ 5. TheVessel did not fish from September 2000 through November 2000. Id. ¶ 6.In October 2000 Finley met with Lush, a fisherman who had previouslyfishedPage 4on the Vessel, to discuss its sale. Id. ¶¶ 7-8. As a result of thediscussion, Finley agreed to sell the Vessel to Lush. Id. ¶ 9.

Finley arranged to have the Vessel surveyed by Mike Monroe. Id. ¶ 10.The survey was commissioned to determine the value of the Vessel forpurposes of the sale. Id. ¶ 11. The Monroe survey valued the Vessel at$90,000 if repairs were completed. Plaintiffs' SMF ¶ 12; Deposition ofMichael J. Monroe ("Monroe Dep."), attached to Defendants' Notice ofAttachments ("Defendants' Notice") (Docket No. 44), at 48-49.3 TheMonroe survey specified repairs needed before the Vessel could bereturned to service as a fishing vessel. Plaintiffs' SMF ¶ 13;Defendants' Opposing SMF ¶ 13. Monroe did not attempt to value anyfishing licenses or permits associated with the Vessel. Defendants' SMF¶ 6; Plaintiffs' Opposing SMF ¶ 6.

After receiving the Monroe survey, Finley agreed to sell the Vessel toLush for $90,000. Plaintiffs' SMF ¶ 15; Defendants' Opposing SMF ¶ 15.Lush agreed to purchase the Vessel for $90,000. Id. ¶ 16. Afteragreement was reached, Lush paid $5,000 as a down payment on the purchaseprice. Id. ¶ 17. At the time the purchase agreement was reached, Lushagreed to become the captain of the Vessel until he purchased it. Id. ¶18. After the agreement was reached, Lush performed and supervisedrepairs to the Vessel. Id. ¶ 19. He served as its captain and wasresponsible for its operation from October 2000 until approximately May2003. Id. ¶ 20. From the time the agreement was reached until January2001, when the Vessel was repaired, Lush supervised and performed repairsat the Maine Shipyard & Marine RailwayPage 5in South Portland ("Shipyard") and at its berth at the Custom HouseWharf. Id. ¶ 21. Finley knew Lush was conducting repairs on the Vesselduring the period from October 2000 to January 2001. Id. ¶ 24.

The monies that Lush spent on repairing and maintaining the Vessel wereobtained through a loan from his girlfriend, Stewart. Defendants' SMF ¶8; Plaintiffs' Opposing SMF ¶ 8. The initial repairs to the Vesselperformed at the Shipyard cost $12,354.55. Plaintiffs' SMF ¶ 126;Defendants' Opposing SMF ¶ 26. Stewart paid the Shipyard $12,354.55 forrepairs performed to the Vessel and use of its railway. Id. ¶ 27.4While the Vessel was being repaired, Lush hired Joe St. Pierre to work onit. Id. ¶ 29. Stewart advanced Lush $7,000 to pay St. Pierre for repairwork he performed on the Vessel. Id. ¶ 30. Lush paid St. Pierre $7,000for the work he performed repairing the Vessel. Id. ¶ 31. While theVessel was being repaired, work was performed by Bill Hubble under Lush'ssupervision. Id. ¶ 32. Stewart advanced Lush $3,000 to pay Hubble forwork performed repairing the Vessel. Id. ¶ 33. Lush paid Hubble $3,000for work he performed repairing the Vessel. Id. ¶ 34. While the Vesselwas being repaired, work was performed by Jerome Sarofeen under Lush'ssupervision. Id. ¶ 35. Stewart advanced Lush $1,000 to pay Sarofeen forwork he performed repairing the Vessel. Id. ¶ 36. Lush paid Sarofeen$1,000 for work he performed repairing the Vessel. Id. ¶ 37. Stewartpaid Sarofeen an additional $500 for repair work at the request of Lush.Id. ¶ 38. While the Vessel was being repaired, work was performed by JimFurbush under Lush's supervision. Id. ¶ 39. Stewart advanced Lush $2,500to pay Furbush for work he performed repairing the Vessel. Id. ¶ 40.Lush paid Furbush $2,500 for work he performed repairing the Vessel. Id.¶ 41. While the Vessel was being repaired, work was performed by EdgarGoogins under Lush'sPage 6supervision. Id. ¶ 42. Stewart advanced Lush $1,500 in cash to payGoogins for repair work he performed on the Vessel. Id. ¶ 43. Lush paidGoogins $1,500 for work he performed on the Vessel. Id. ¶ 44.

From October 2000 until repairs were completed to the Vessel under hissupervision, Lush purchased equipment and supplies he used in repairingthe Vessel. Id. ¶ 45. From October 2000 to January 2001 Lush purchasedequipment and supplies from the following vendors in the amountsspecified: Rite Aid, $54.64; PRC Industrial, $64.93; VIPAuto Discount,$48.23; Portland Glass, $392.89; Handyman Rental, $375.45; Dulux PaintCenters, $88.43; Grinnel Fire Protection, $74.52; K.L. Jack & Co., $20.31;True Value Hardware, $93.46; Shopper's Hardware, $115.31; W.L. Blake,$68.03; American Steel, $1,334.74; NAPA Auto Parts, $58.17; HamiltonMarine, $978.28; Home Depot, $1,660.95; Maine Hardware, $646.54; PortlandWelding Supply, $1,415.20; Hertz Equipment Rental, $963.20; TopshamRental, $50.00; Harbor Propeller, $390.00; Goldstein Steel, $78.75; ChaseLeavitt, $545.38; WalMart, $20.84; Shop and Save, $2.98; Maine PaintService, $13.10; Advantage Gas & Tools, $696.33; Taylor Made Signs,$100.00; New England Detroit Diesel, $81.33; N.C. Hunt, Inc., $91.13;Marriner Lumber, $9.00; and Sears Auto Center, $171.09. Id. ¶ 46. All theequipment and supplies purchased from vendors listed in the precedingparagraph were used in the repair of the Vessel. Plaintiffs' SMF ¶ 47;Lush Aff. ¶ 62.5Page 7

Finley was aware that Lush was purchasing equipment and supplies forrepairs to the Vessel from October 2000 until it resumed fishing inJanuary 2001. Plaintiffs' SMF ¶ 48; Defendants' Opposing SMF ¶ 48.Finley authorized Lush to purchase the supplies needed to repair theVessel. Plaintiffs' SMF ¶ 49; Lush Aff. ¶ 7.6 Lush asked Stewart toadvance the funds needed to purchase equipment and supplies he used forthe repair of the Vessel. Plaintiffs' SMF ¶ 50; Defendants' Opposing SMF¶ 50. Finley was aware that Stewart was advancing the funds to purchaseequipment and supplies to repair the Vessel and had no objection to herdoing so. Id. ¶ 51.7 In January 2001 Stewart wrote Finleyapologizing for late payments she made to Portland Welding. Id. ¶ 53.8Stewart paid $38,562.44 for labor, supplies and equipment for supplies,services and repairs for the Vessel before it resumed fishing in 2001.Plaintiffs' SM ¶ 55; Stewart Aff. ¶ 59.9Page 8

Stewart was at all relevant times Lush's girlfriend. Defendants'Supplemental Statement of Material Facts ("Defendants' Suppl. SMF")(Docket No. 40) ¶ 1; Plaintiffs' Response to Defendants' SupplementalStatement of Material Facts ("Plaintiffs' Reply SMF") (Docket No. 47) ¶1. She did not have any direct agreement or relationship with theDefendants. Id. ¶ 2. Her agreement was with her boyfriend, Lush. Id. Thesubstance of that agreement was that she would lend him the money to fixup the Vessel. Id. Stewart did not furnish repairs, supplies, towage orother necessaries to the Vessel; rather, she merely furnished monies toits captain, Lush. Defendants' Suppl. SMF ¶ 4; Deposition of Linda S.Stewart ("Stewart Dep."), attached to Defendants' S/J Motion, at 13.10Stewart did not participate in the management or control of the Vessel.Plaintiffs' Supplemental Statement of Material Facts (Docket No. 48) ¶2; Stewart Aff. ¶ 6.

Stewart claims that she was neither an owner nor agent of the Vessel.Defendants' Suppl. SMF ¶ 5; Plaintiffs' Reply SMF ¶ 5. She signeda customer information sheet from the Shipyard on November 11, 2000 inwhich she represented to the vendor that she was authorized to bind thevessel and its owner. Defendants' Suppl. SMF ¶ 6; Maine Shipyard& Marine Railway Customer Information sheet, marked as Plaintiff'sExh. 3, attached to Plaintiffs' S/J Motion.11 In a letter datedJanuary 23, 2001 Stewart acknowledged that she was herself involved inthe deal with the Vessel. Defendants' Suppl. SMF ¶ 7; Letter datedJanuary 25, 2001 from Linda Stewart to Jim Finley, marked as Plaintiff'sExh. 42, attached to Plaintiffs' S/J Motion.12 Stewart wrote checksto vendors of goods and services to the Vessel that read,Page 9"L.S. Stewart DBA Fishing Vessel." Defendants' Suppl. SMF ¶ 8;Plaintiffs' Reply SMF ¶ 8. Stewart had telephonic and writtencommunications with Finley regarding debts associated with the Vessel andpurchasing the Vessel. Id. ¶ 9. Beginning in October 2000 Lush toldpeople that he had reached a deal to buy the Vessel. Id. ¶ 11.13

The Defendants never agreed in writing or anywhere else to pay Stewartthe debt that Lush owed her. Defendants' SMF ¶ 11; Plaintiffs' OpposingSMF ¶ 11. Stewart's understanding of the arrangement with Finley wasthat perhaps in three years' time Lush would be able to purchase theVessel; the arrangement was expected to last well beyond one year. Id. ¶12. The arrangement to allow Lush to captain the Vessel and see if hecould make enough money to buy it was never expected to take any lessthan one year. Defendants' SMF ¶ 13; Finley Aff. ¶ 10.14 There neverwas actual agreement on all of the terms of any deal, including time forpayment, interest and rent. Defendants' SMF ¶ 14; Finley Aff. ¶ 11,15No agreement between the Plaintiffs and the Defendants was ever reducedto writing. Defendants' SMF ¶ 15; Plaintiffs' Opposing SMF ¶ 15.

III. Analysis

A. Count I: Maritime Lien (Stewart)

In Count I of their complaint, the Plaintiffs allege that they acquireda maritime lien against the Vessel when they supplied labor andmaterials, parts and equipment for its repair. Complaint ¶¶ 7-9. Stewartseeks summary judgment as to this claim, seeking to enforce her maritimelien for necessaries provided toPage 10the Vessel in the amount of $38,562.44 plus interest and costs. SeePlaintiffs' S/J Motion at 1-2.16 The Defendants oppose summaryjudgment in Stewart's favor and cross-move for summary judgment againsther as to Count I on the basis that she acquired no enforceable maritimelien against the Vessel See Defendants' S/J Motion at 1-2; see generallyDefendants' S/J Opposition.17 The Plaintiffs have the better of theargument.

Per 46 U.S.C. § 31342, "a person providing necessaries to a vessel onthe order of the owner or a person authorized by the owner . . . (1) hasa maritime lien on the vessel; (2) may bring a civil action in rem toenforce the lien; and (3) is not required to allege or prove in the actionthat credit was given to the vessel." 46 U.S.C. § 31342(a). Personspresumed to have authority to procure necessaries for a vessel include (i)the master and (ii) officers or agents appointed by the owner or by anagreed buyer in possession of the vessel. Id. § 31341.

As the Defendants observe, the purpose of this statute is "to benefitAmerican materialmen who supply necessaries to vessels." Defendants' S/JMotion at 2 (quoting Tramp Oil & Marine, Ltd. v. M/V Mermaid I,743 F.2d 48, 51 (1st Cir. 1984)). The Defendants correctly point out thatStewart did not herself supply necessaries to the Vessel; however, it doesnot follow (as they next assert) that she therefore has no maritimelien. See id.Page 11

As the Plaintiffs point out, see Plaintiffs' Memorandum in Oppositionto Defendant's [sic] Motion for Partial Summary Judgment ("Plaintiffs'S/J Opposition") (Docket No. 37) at 2-3, the First Circuit has embraced acorollary to section 31342 known as the "Rule of Advances": [W]e believe that advances that are made for the purpose of allowing a vessel to purchase items covered by § 971 [predecessor to 46 U.S.C. § 31342] give rise to a maritime lien. It is clear that advances made to allow a vessel to discharge lien claims acquire the status of the liens discharged, and we believe it follows that an advance that is made with the purpose of permitting the vessel to purchase supplies and other necessaries must also give rise to a maritime lien.Universal Shipping, Inc. v. The Panamanian Flag Barge, 563 F.2d 483, 484(1st Cir. 1976) (citations omitted); see also, e.g., Tramp Oil & Marine,Ltd. v. M/V Mermaid I, 805 F.2d 42, 45 (1st Cir. 1986) ("[T]he rule ofadvances has three significant requirements: (1) that the money beadvanced to a ship, (2) that it be advanced on the order of the master orsomeone with similar authority, and (3) that the money be used to satisfyan outstanding or future lien claim.").

In response, the Defendants contend that Stewart falls short of meetingthe first two of the three requisites for the application of the Rule ofAdvances. See Defendants' S/J Opposition at 2-4. Alternatively, theyassert that her bid to enforce a maritime Hen fails inasmuch as she doesnot qualify as a "stranger to the vessel." See id. at 4-6. I address eachof these arguments in turn, finding none to have merit:

1. Rule of Advances/Money Advanced to Ship: The Defendants first arguethat the evidence shows that Stewart relied on the personal credit of herboyfriend, Lush, rather than extending credit to the vessel. See id. at2-3. They underscore the undisputed fact that Stewart's agreement to lendmoney for Vessel repairs was with Lush. See id. Nonetheless, as theDefendants recognize, see id. at 2, the party challenging a maritime lienbears the burden of overcoming a presumption that service was supplied onthePage 12credit of the vessel, see, e.g., Farrell Ocean Servs., Inc. v. UnitedStates, 681 F.2d 91, 93 (1st Cir. 1982). The burden is heavy; "[i]t is notenough . . . to show that the supplier relied in part on the credit ofthe owner's agent or the owner." Id. at 93-94. Rather, "[t]he partyentitled to the lien must have taken affirmative actions that manifest aclear intention to forego the lien." Id. at 94 (emphasis in original); seealso, e.g., Equilease Corp. v. M/V Sampson, 793 F.2d 598, 606 (5th Cir.1986) ("To meet this burden, evidence must be produced that would permitthe inference that the supplier purposefully intended to forego thelien. Because of the strong presumption in favor of a maritime lien, itis necessary that a party opposing the lien prove that the creditor . . .deliberately intended to look solely to the owner's personal credit andto forego the valuable privilege afforded it by law.") (citationsomitted).

The Defendants adduce no evidence that Stewart took affirmative actionsmanifesting a clear intention to forgo a maritime lien. While it is clearthat her agreement was with Lush, it is equally clear that in forwardingmoney to him and in paying certain suppliers directly, she deliberatelyadvanced monies for provision of repairs and other necessaries to theVessel. The fact that a supplier (or, in this case, a financier)contracts or deals with a person or entity other than the vessel orvessel owner does not in itself evidence an affirmative intention towaive a maritime lien against that vessel. See, e.g., Ryan-Walsh, Inc.v. M/V Ocean Trader, 930 F. Supp. 210, 221 (D. Md. 1996) ("[I]t is . . .clear, contrary to the claimant's position, that relying on an owner's orcharterer's credit does not, standing alone, amount to the waiver of amaritime lien.");Northem Shipping Co. v. M/V Tivat, Civ. No. 85-2705, 1987WL 28355, at *4 (E.D. Pa. Dec. 18, 1987) ("[A] long relationship ofcontracting with a charterer for the provision of services has no bearingon the analysis of whether the provider of services purposefully intendedto forego its lien."). In short, the Defendants fail to overcome thepresumption that Stewart advanced monies to the Vessel She thereforesatisfies the first of the three requisites of the Rule of Advances.Page 13

2. Rule of Advances/Money Advanced on Proper Authority: The Defendantsnext assert that with respect to one component of the repairs to theVessel — the Shipyard work — the Shipyard did not perform its work on theorder of the master or someone with similar authority but rather at thebehest of Stewart, who admits that she was neither an owner nor an agentof the Vessel. See Defendants' S/J Opposition at 3-4. They reason thatinasmuch as the Shipyard itself accordingly never had a valid maritimelien, Stewart could not have obtained such a lien when she stepped intoits shoes and paid its debt. See id. The parties dispute whether Finleyexpressly authorized the Shipyard work; however, I agree with thePlaintiffs that nothing ultimately turns on this. See Plaintiffs' S/JReply at [4]-[5]. A vessel's owner need not expressly authorize specificservices or supplies to create a maritime lien. See, e.g., Tramp Oil, 805F.2d at 45 (for purposes of Rule of Advances, owner need not have madeexpress request for advance so long as there is basis in record forimplying such an order).

It is undisputed that (i) Finley knew Lush was performing repairs tothe Vessel from October 2000 through January 2001 and authorized him todo so, (ii) Finley knew Stewart was financing those repairs and had noobjection to her doing so, and (iii) the Shipyard performed repair workon the Vessel. Thus, there is basis for implying Finley's order (onbehalf of Stables, Inc.) for the Shipyard work In any event, evenassuming arguendo that Finley cannot be fairly implied to have orderedthe work, Lush can be. As captain of the vessel, entrusted with itsmanagement by its owner, and as a then agreed buyer in possession, Lushqualified as a person on whose authority an order creating a maritimelien could be placed. See, e.g., 46 U.S.C. § 31341 ("Persons presumed tohave authority to procure necessaries for a vessel include (i) the masterand (ii) officers or agents appointed by the owner or by an agreed buyerin possession of the vessel."). There is no dispute that Lush knew aboutand approved the Shipyard work That work thus properly was authorized forpurposes of creation of a maritime lien.Page 14

3. Stranger to the Vessel: The Defendants finally argue that Stewart'smaritime-lien claim fails because she is not a stranger to the Vessel.See Defendants' S/J Opposition at 4-6; see also, e.g., Fulcher's PointPride Seafood, Inc. v. M/V Theodora Maria, 935 F.2d 208, 211 (11th Cir.1991) ("Joint venturers cannot hold maritime liens because they are not`strangers to the vessel'"); Medina v. Marvirazon Campania Naviera, S.A.,533 F. Supp. 1279, 1288 (D. Mass. 1982), aff'd, 709 F.2d 124 (1st Cir.1983) ("[W]hereaparty who would otherwise have a maritime lien has beenheld not entitled to it because of the relation in which he stood to thevessel, he was either (1) a real part owner of her, or (2) occupied afiduciary relation towards her and her owners, or (3) dealt with himselfon her account") (citation and internal quotation marks omitted).18They point out that Stewart (i) represented herself, in a Shipyardcustomer information sheet, as duly authorized to bind the vessel and itsowner, (ii) was the girlfriend of the Vessel's captain and agreed toinvest approximately $40,000 in the Vessel, (iii) had a directrelationship with one of the vendors, (iv) wrote checks labeled "L.S.Stewart DBA Fishing Vessel," and(v) engaged in written and telephoniccommunications with the Defendants regarding the agreement to purchasethe Vessel. See Defendants' S/J Opposition at 5-6.

The Defendants seemingly do not argue, nor could a trier of factreasonably find, that Stewart was a part owner of the Vessel, had anyfiduciary relationship with the Vessel or its owner or engaged inself-dealing on the Vessel's account. See id.19 Instead, theDefendants suggest that Stewart had a personalPage 15financial stake in the Vessel and some degree of control over it, suchthat Stewart and Lush "may be considered `joint venturers' with regardto" the Vessel. See id. at 6 & n. 1. While there is no hard-and-fasttest to discern the existence of such a joint venture, the following havebeen identified in the context of maritime liens as important elements:(i) intention to create a joint venture, (ii) joint control or jointright of control, (iii) joint proprietary interest in the subject matterof the venture, (iv) right to share in the profits and (v) duty to sharein the losses. See, e.g., Fulcher's Point, 935 F.2d at 211. On thecognizable evidence, no reasonable trier of fact could find that Stewartwas a joint venturer with Lush. It is undisputed that Stewart did notparticipate in the management or control of the Vessel. There is noevidence that she and Lush intended to create a joint venture or that shehad either a right to share in the profits or a duty to share in thelosses of any such purported venture. Nor can such an inferencereasonably be drawn merely from her status as Lush's girlfriend. Sheaccordingly was a "stranger to the vessel" rather than a quasi-owner inthe sense contemplated by the caselaw. Compare, e.g., Sasportes v.M/VSolde Copacabana, 581 F.2d 1204, 1209 (5th Cir. 1978) ("[W]hen theseas get rough one who looks, thinks, acts, and profits like an ownercannot retreat to the relatively safe harbor of a maritime lienor, who ofcourse has a claim against the ship itself."); Cantieri Navali Riuniti v.M/V Skyptron, 621 F. Supp. 171, 186 (W.D.La. 1985), aff'd in part,remanded on other grounds, 802 F.2d 160 (5th Cir. 1986) ("It iswell-settled law that a vessel owner, part owner, or joint venturercannot hold a maritime lien on the vessel in which he enjoys such aninterest. More particularly, a joint venturer cannot hold a maritime lienbecause he is not a `stranger to the vessel' but occupies a position akinto that of an owner.") (citations omitted); The Frank Brainerd, 3 F.2d 664,665 (D. Me. 1925) ("The reason for the ["stranger to the vessel"] rule isevident: A part owner owes a part of a stranger's bill, and, where thereare insufficient funds, the part owner should not be entitled to take thefunds from a stranger for the benefit of the part owners.").Page 16

In short, Stewart meets the requisites of the Rule of Advances: themonies in question were (i) advanced to the Vessel, (ii) advanced on theexpress or implicit authority of Finley or Lush, and (iii) used tosatisfy future lien claims. Despite Stewart's dealings with the Vessel,she remained a "stranger" to it and is not barred from enforcing hermaritime lien on that account. The Defendants fail to generate a triableissue whether certain of the monies in question are properly attributableto Vessel repairs. Accordingly, the court should grant the Plaintiffs'motion and deny that of the Defendants for summary judgment as to CountI, entitling Stewart to enforce her maritime lien in the full amountrequested ($38,562.44).

B. Counts II-III: Contract (Stewart)

In Count II of their complaint, the Plaintiffs allege that (i) theyentered into an agreement with Stables, Inc. to purchase the Vessel for$90,000 minus the cost of repairs noted in the Monroe survey, (ii) theycontributed approximately $38,030 in labor and materials to the Vesselrepairs and Stewart paid $5,000 toward the purchase price, (iii)Stables, Inc. has refused to sell the Vessel for the agreed amount, and(iv) based on information and belief, Stables, Inc. has agreed to sellthe Vessel to a third party for $150,000. See Complaint ¶¶ 10-19.20They seek a decree awarding them $103,030-an amount equal to the value oftheir contributions ($43,030) plus the increase in value of the Vesselover the contract price of $90,000 ($60,000). See id. at 5.

The Plaintiffs allege in Count III of their complaint, inter alia, that(i) there is no comparable fishing vessel in the State of Maine for saleon the same terms and conditions as were agreed to with respect to theVessel, (ii) they cannot afford to buy such comparable vessels as areavailable for sale, (iii) all or substantially all of the value of theVessel is the result of efforts they made to fish, manage, operate,repairPage 17and maintain it, and (iv) monetary compensation is inadequate topermit them to purchase a comparable fishing vessel, as a result of whichthey seek a decree ordering Stables, Inc. to sell them the Vessel for theagreed price. See id. ¶¶ 28-32.

The Defendants seek summary judgment as against Stewart with respect toCounts II and III on the ground that it is undisputed that she had noarrangement or agreement whatsoever with Finley or the Defendants. SeeDefendants' S/J Motion at 2. The Plaintiffs concede the point but assertthat Stewart yet has a non-contract-based unjust-enrichment claim thatwould survive were her maritime lien claim dismissed. See Plaintiffs' S/JOpposition at [3]-[4]. The Defendants rightfully rejoin that thePlaintiffs never pleaded such a claim nor moved to amend their pleadingsto add it. See Defendants' S/J Reply at 1-2; see generally Complaint;Docket. Nor do the Plaintiffs — even now — move to amend to add thiscause of action. See Plaintiffs' S/J Opposition at [3]-[4]. As a result,it is not cognizable, and the Defendants' motion for summary judgmentagainst Stewart as to Counts II and III should be granted.21

C. Counts II-III: Contract (Statute of Frauds)

The Defendants finally invoke the Statute of Frauds, 33 M.R.S.A. § 51,in seeking summary judgment against both Lush and Stewart as to Counts IIand III. See Defendants' S/J Motion at 2-3. The Statute of Fraudsprovides, in relevant part, that "[n]o action shall be maintained . . .[u]pon any agreementPage 18that is not to be performed within one year from the making thereof . . .unless the promise, contract or agreement on which such action isbrought, or some memorandum or note thereof, is in writing and signed bythe party to be charged therewith, or by some person thereunto lawfullyauthorized[.]" 33 M.R.S.A. § 51(5).

As the Defendants point out, see Defendants' S/J Motion at 2-3, it isundisputed that the agreement to purchase the Vessel was not reduced to awriting of any kind and was not expected to be performed within one yearof its making. It thus falls within the Statute of Frauds. The Plaintiffsnonetheless argue that two exceptions pertain, based on (i) partialperformance and (ii) waiver by admission of the existence of theagreement. See Plaintiffs' S/J Opposition at [4]-[7].

As the Law Court has articulated the part-performance doctrine, whichis grounded in principles of equitable estoppel: "After having induced orknowingly permitted another to perform in part an agreement, on the faithof its full performance by both parties and for which he could not wellbe compensated except by specific performance, the other shall not insistthat the agreement is void." Landry v. Landry, 641 A.2d 182, 183 (Me.1994) (citations and internal quotation marks omitted); see also, e.g.,Great Hill Fill & Gravel, Inc. v. Shapleigh, 692 A.2d 928, 930 (Me.1997) (describing Landry part-performance doctrine as "based onprinciples of equitable estoppel"). With respect to waiver by admission, aparty "may waive the protection of the statute [of frauds], admit verbalevidence of the contract and become bound by it." Mercierv. Town ofFairfield, 628 A.2d 1053, 1055 (Me. 1993) (citation and internalquotation marks omitted).Page 19

Nonetheless, as the Defendants suggest, there is an important caveat:Both exceptions presuppose the existence of an otherwise valid andenforceable (albeit oral) agreement. See Defendants' S/J Reply at 2-3;Mercier, 628 A.2d at 1055 ("[A] party's admission of all the factsnecessary to establish an oral agreement will render a contract otherwisewithin the statute of frauds enforceable against that party."); Bigelowv. Bigelow, 49 A. 49, 51 (Me. 1901) (first considering, in context ofclaim that part performance took agreement out of Statute of Frauds,whether contract was made); see also, e.g., Ellenwood v. ExxonShippingCo., 984 F.2d 1270, 1281 n.13 (IstCir. 1993) (noting generalcontract-law principles that "a contract must be reasonably certain to beenforceable" and "[a]n estoppel claim similarly must be supported by asufficiently definite promise") (citations and internal quotation marksomitted); Rosenthal v. National Produce Co., 573 A.2d 365, 370 (D.C. 1990)("A contract must be sufficiently definite as to its material terms(which include, e.g., subject matter, price, payment terms, quantity,quality, and duration) that the promises and performance to be renderedby each party are reasonably certain. . . . If the agreement be so vagueand indefinite that it is not possible to collect from it the intentionof the parties, it is void because neither the court nor jury could makea contract for the parties. Such a contract cannot be enforced in equitynor sued upon in law.") (citations and internal quotation marksomitted).

In this case, there is no dispute that Finley (on behalf of Stables,Inc.) agreed to sell the Vessel to Lush for $90,000, and Lush agreed tobuy it for that amount. Nonetheless, I agree that for lack of consensusas to all material terms, no enforceable contract was created. As theDefendants observe, see Defendants' S/J Reply at 3, the evidencediscloses that no agreement (oral or otherwise) was reached with respectto (i) whether fishing permits or licenses were included in the deal,(ii) time for payment, (iii) interest on any "note" being held by theDefendants or (iv) rent for the Vessel.Page 20

"To establish a legally binding agreement the parties must havemutually assented to be bound by all its material terms; the assent mustbe manifested in the contract, either expressly or impliedly; and thecontract must be sufficiently definite to enable the court to determineits exact meaning and fix exactly the legal liabilities of the parties."Stanton v. University of Me. Sys., 773 A.2d 1045, 1050 (Me. 2001)(citation and internal quotation marks omitted). "[C]ourts have somelatitude in supplying reasonable terms where the parties to a contracthave failed to do so." Cote v. Department of Human Servs., 837 A.2d 140,142 n.2 (Me. 2003). "However, before a court supplies any terms, it mustfind that the parties mutually assented to an agreement that, at aminimum, contains terms that enable the court to allocate liability."Id.

Here, in what amounted to a deal that Stables, Inc. would help financeLush's purchase of the Vessel, no agreement was reached with respect tothe manner or timing of payment of the balance due. In the absence of anydefinite agreement as to payment parameters, the court is at a loss todetermine whether and when Lush should be held to have breached theagreement by failure to tender payment, or, conversely, whether and whenStables, Inc. should be held to have breached the agreement by wrongfulrepossession of the Vessel for non-payment. See, e.g., Jordan-MiltonMach., Inc. v. F/V Teresa Marie, II, 978 F.2d 32, 35 (1st Cir. 1992)(applying Maine law; stating, "even if Peacock's statement, `We can dothis deal," could be construed as creating an agreement to providefinancing, this agreement would be unenforceable as being too vague anduncertain to constitute an enforceable contract. There was not anyagreement as to the term of the loan (i.e., when repayment was to beginand end); there was no agreement as to the amount to be repaid each month;nor was there an agreement as to the rate of interest to be charged by alender other than Caterpillar Financial Services."); Bristol Sav. Bank v.Cellino, No. CV91 0504535S, 1993 WL 197872, at *3 (Conn. Super. Ct. June2, 1993), aff'd, 642 A.2d 756 (Conn. App. Ct. 1994) (holdingPage 21alleged agreement by bank to convert construction loan into permanentmortgage too vague and indefinite to be enforceable when it did notcontain basic provisions such as rate of interest, term, amount of timeallowed for payment or amount of monthly payments).

Inasmuch as the oral agreement in issue (i) falls within the Statute ofFrauds and (ii) is in any event too indefinite to be enforceable, theDefendants are entitled to summary judgment as to Counts II and III.See, e.g., Furtak v. Moffett, 671 N.E.2d 827, 830 (Ill.App. Ct. 1996)(alleged oral agreement was incapable of being performed within a yearand thus unenforceable pursuant to the statute of frauds and,alternatively, too vague to be enforceable); Trimble v. WisconsinBuilders, Inc., 241 N.W.2d 409, 415-16 (Wis. 1976) (agreement to sellreal estate failed to satisfy requirements of statute of frauds and was,in any event, so indefinite that it failed to spell out essentialcommitments and obligations of parties).22

IV. Conclusion

For the foregoing reasons, I recommend that the court GRANT thePlaintiffs' motion for summary judgment in favor of Stewart as to CountI, permitting her to enforce a maritime lien against the Vessel in theamount of $38,562.44 plus prejudgment interest, DENY the Defendants'cross-motion for summary judgment against Stewart as to Count I, andGRANT the Defendants' motion for summary judgment against both Plaintiffsas to Counts II and III of the Complaint.


A party may file objections to those specified portions of a magistratejudge's report or proposed findings or recommended decisions enteredpursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by thedistrict court is sought, together with a supporting memorandum andrequest for oral argument before the district judge, if any is sought,within ten (10) days after being served with a copy thereof. A responsivememorandum and any request for oral argument before the district judgeshall be filed within ten (10) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver of theright to de novo review by the district court and to appeal the districtcourt's order.

1. Although Docket No. 33 is titled a "memorandum," I construe it asa motion for summary judgment with incorporated memorandum in supportthereof.

2. The parties properly submitted separate statements of materialfacts in support of and in opposition to each summary-judgment motion;however, inasmuch as those statements substantially overlap, in theinterest of avoiding needless repetition I have melded them into oneunified factual recitation.

3. The Plaintiffs characterize the repairs as "substantial," but thatcharacterization is not fairly supported by the citation given and is inany event disputed by the Defendants, see Defendants' Opposing SMF ¶ 12;Monroe Dep. at 4849, 65, as a result of which I disregard it for purposesof the cross-motions.

4. The parties dispute whether Finley was aware that Stewart hadarranged to pay the Shipyard for repairs to the Vessel. ComparePlaintiffs' SMF ¶ 28; Affidavit of Linda Stewart in Support of Her Motionfor Summary Judgment ("Stewart Aff."), attached to Plaintiffs' S/JMotion, ¶ 15; Affidavit of Plaintiff Eric Lush in Support of PlaintiffStewart's Motion for Summary Judgment ("Lush Aff"), attached toPlaintiffs' S/J Motion, ¶ 14 with Defendants' Opposing SMF ¶ 28;Deposition of James J. Finley, attached to Defendants' Notice, at 92.

5. The Defendants dispute this, citing to an affidavit in which Finleyquestions several of the listed expenditures. See Defendants' OpposingSMF ¶ 47; Supplemental Affidavit of James Finley ("Suppl. Finley Aff."),attached to Defendants' Memorandum in Opposition to Plaintiffs' Motionfor Partial Summary Judgment ("Defendants' S/J Opposition") (Docket No.38), ¶ 2. However, as the Plaintiffs contend, the Defendants do noteffectively controvert the statement. See Plaintiffs' Reply toDefendant's [sic] Memorandum in Opposition to Plaintiff's Motion forPartial Summary Judgment ("Plaintiffs' S/J Reply") (Docket No. 46) at[8]-[9]. The Defendants dispute various expenditures on four grounds:that (i) Finley is unable to verify that some items related to Vesselrepair, (ii) certain items were not found aboard the Vessel, (iii) Finleyis unaware of any use for some of the items on fishing vessels, and (iv)to Finley, the quantity of certain items purchased seems excessive. SeeDefendants' Opposing SMF ¶ 47; Suppl. Finley Aff. ¶ 2. With respect tothe lattertwo points, neither of the two Finley affidavits submitted inconnection with the instant motions establishes that Finley has anyexpertise on the subject of repairs to fishing vessels. See generallyAffidavit of James Finley ("Finley Aff."), attached to Defendants' S/JMotion; Suppl. Finley Aff. Nor does Finley explain the basis for thosebeliefs. Seegenerdfy id. "[C]onclusory allegations, improbableinferences, and unsupported speculation are insufficient to defeatsummary judgment." Magarian v. Hawkins, 321 F.3d 235, 240 (1st Cir. 2003)(citation and internal quotation marks omitted). As to the first point(that Finley is unable to verify certain expenditures), the mere factthat a party lacks sufficient information to controvert a point does notsuffice to raise a trialworthy issue. Finally, as to the second point,the Defendants rely on what amounts to an improbable inference: thatbecause Finley has been unable to locate certain items aboard theVessel, those items never were purchased in connection with Vesselrepairs made several years ago. The items could be missing for any numberof reasons (for example, that they were lost, they malfunctioned or theyare not the sort of item that is kept on board after usage).

6. The Defendants qualify this statement, asserting that whileFinley did authorize Lush to purchase supplies needed to repair theVessel, he authorized him merely to make purchases on his own personalcredit for the benefit of the Vessel, not to make those purchases on thecredit of the Vessel itself. Defendants' Opposing SMF ¶ 49; Suppl.Finley Aff. ¶ 3.

7. The parties dispute whether, in December 2000, Finley urged Stewartto pay for supplies provided to the Vessel by Portland Welding. ComparePlaintiffs' SMF ¶ 52; Stewart Aff. ¶ 63 with Defendants' Opposing SMF¶ 52; Suppl. Finley Aff. ¶ 5.

8. The Plaintiffs' further statement that Finley admits Stewart isentitled to credit for money she advanced to repair the Vessel, seePlaintiffs' SMF ¶ 54, is disregarded inasmuch as it is neither admittednor fairly supported by the citation given.

9. The Defendants dispute this statement, see Defendants' Opposing SMF¶ 55; however, they do not effectively controvert it inasmuch as they relyon paragraph 47 of their opposing statement of material facts, which Ihave found to be ineffective in raising a trialworthy factual issue. Inote that, by my calculations, Stewart's itemized expenses add up to$38,557.76, which is $4.68 less than the claimed total of $38,562.44.However, inasmuch as the Defendants do not effectively controvert thisstatement, it is deemed admitted per Local Rule 56.

10. The Plaintiffs qualify this statement, noting, inter alia, thatStewart also made payments directly to laborers and boatyards. SeePlaintiffs' Reply SMF ¶ 4; see also Plaintiffs' SMF ¶¶ 27, 38; Defendants'Opposing SMF ¶¶ 27, 38.

11. The Plaintiffs qualify this statement, asserting that Stewartsigned this sheet to assure payment of repair bills. Plaintiffs' ReplySMF ¶ 6; Stewart Aff. ¶ 14.

12. The Plaintiffs attempt to qualify this statement, see Plaintiffs'Reply SMF ¶ 7; however, the qualification is unsupported by any recordcitation and is on that basis disregarded.

13. The parties dispute whether Finley, on behalf of the Defendants,ever authorized the services rendered by the Shipyard or agreed to extendthe Vessel's credit for such repair work. Compare Defendants' Suppl. SMF¶ 10; Suppl. Finley Aff. ¶¶ 3-4 with Plaintiffs' Reply SMF K 10; Lush Aff.¶ 14.

14. The Plaintiffs purport to qualify this statement, asserting thatthe purchase was to have occurred earlier if Lush could afford thepayment, see Plaintiffs' Opposing SMF ¶ 13; however, the qualification isdisregarded on the basis that it is not fairly supported by the citationgiven.

15. The Plaintiffs qualify this statement, admitting that no datecertain was agreed for payment but denying that interest and rent wereterms of the owner's agreement to sell the Vessel. See Plaintiffs'Opposing SMF ¶ 14; Stewart Dep. at 18.

16. The Complaint indicates that the Plaintiffs together assert amaritime lien in the amount of $65,091.41. See Complaint ¶ 8.

17. Although the Defendants frame this issue as one of "standing,"see Defendants' S/J Motion at 1, the thrust of their argument is thatStewart does not, as a substantive legal matter, have either a maritimelien in the Vessel or any contractual relationship with the Defendants,see generally id. Stewart meets "the constitutional standing requirementsof Article III: she alleges an actual injury, the injury can fairly betraced to the challenged conduct, and the injury can be redressed by thedeclaratory, injunctive, and monetary relief requested." Weber v.Cranston Sch. Comm., 212 F.3d 41, 47 n.7 (1st Cir. 2000).

18. For good measure, the Defendants contend that Lush likewise doesnot qualify as a stranger to the Vessel. See Defendants' S/J Oppositionat 6. Inasmuch as neither side has moved for summary judgment as againstLush with respect to Count I, I ignore this argument.

19. Stewart's assertion in the Complaint that she was a party to theagreement to purchase the Vessel, see Complaint ¶¶ 10-32, arguably isinconsistent with her argument that she was a stranger to the Vessel;however, those allegations do not constitute evidence for purposes ofsummary judgment, and in any event a party has a right to pleadalternative or seemingly inconsistent claims, see, e.g., In re HemingwayTransport, Inc., 993 F.2d 915, 932 n.22 (1st Cir. 1993) ("A party may setforth two or more statements of a claim or defense alternatively orhypothetically regardless of consistency.') (citations, internalpunctuation and emphasis omitted).

20. In several of paragraphs of Counts II and III, the Complaintrefers to "Plaintiff," singular, rather than "Plaintiffs," plural, seeComplaint ¶¶ (15-18, 22-29, 31; however, inasmuch as appears, bothPlaintiffs press these claims.

21. Even assuming arguendo that the Plaintiffs' opposition to theDefendants' motion for summary judgment could be construed as a motion toamend their complaint pursuant to Federal Rule of Civil Procedure 15(a)to add an unjust-enrichment cause of action, I would recommend itsdenial. The Defendants plausibly complain that they were apprised of theexistence of this claim for the first time on summary judgment, when itwas too late to undertake discovery necessary to confront it. SeeDefendants' S/J Reply at 1-2. The First Circuit has observed that "[t]hefurther along a case is toward trial, the greater the threat of prejudiceand delay when new claims are belatedly added." Executive Leasing Corp.v. Banco Popular de Puerto Rico, 48 F.3d 66, 71 (1st Cir. 1995) (citationand internal quotation marks omitted). The contours of prejudice becomeparticularly apparent in cases, such as this, in which a motion to amendcomes after discovery has closed and summary-judgment motions have beenfiled. See, e.g., Torres-Rios v. LPSLab., Inc., 152 F.3d 11, 16 (1stCir. 1998); Grant v. News Group Boston, Inc., 55 F.3d 1, 6 (1st Cir.1995); Carter v. Supermarkets Gen. Corp., 684 F.2d 187, 192 (1st Cir.1982), disagreed with on other grounds, Burnett v. Grattan, 468 U.S. 42,46 n.9 (1984).

22. Stewart seeks interest — which I construe to mean prejudgmentinterest — as well as costs. See Plaintiffs' S/J Motion at 1-2. Shouldthe court agree with my recommended disposition of Count I, I furtherrecommend that the court award prejudgment interest to compensate her forthe time value of her maritime-lien money. See, e.g., Borges v. Our Ladyof the Sea Corp., 935 F.2d 436, 444 (1st Cir. 1991) ("Prejudgmentinterest on admiralty claims is generally allowed on claims forprejudgment economic harm as compensation for the use of funds to whichthe plaintiff was ultimately judged entitled, but which the defendant hadthe use of prior to judgment") (citation and internal quotation marksomitted). Stewart's request for costs is premature and thus beyond thescope of this recommended decision. I note that requests for costs shouldbe made in accordance with Local Rule 54.3.

Back to top