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CUMMINS FIN. v. THE VESSEL ROSE OF ROCK RIVER

January 12, 1991

CUMMINS FINANCIAL, INC., Plaintiff,
v.
THE VESSEL ROSE OF ROCK RIVER; Official Number 950640, In Rem MICHAEL L. MAUST and CAROL F. MAUST, jointly and severally, Defendants; BELDING CORPORATION, Defendant/Cross-Plaintiff, v. THE VESSEL ROSE OF ROCK RIVER; Official Number 950640, In Rem MICHAEL L. MAUST and CAROL F. MAUST, jointly and severally, and CUMMINS FINANCIAL, INC., Defendants/Cross-Defendants



The opinion of the court was delivered by: ROSZKOWSKI

 STANLEY J. ROSZKOWSKI, UNITED STATES DISTRICT JUDGE

 Before the court is the motion of Defendants Michael L. and Carol F. Maust (hereinafter "the Mausts"), and the Vessel Rose of Rock River (hereinafter "the Vessel"), to dismiss the counterclaim of Belding Corporation. For the reasons set forth herein, the court denies Defendants' motion.

 BACKGROUND

 On February 21, 1990, Plaintiff Cummins Financial, Inc. (hereinafter "Cummins") filed suit in this court to foreclose on a first preferred ship mortgage which Defendants the Mausts executed to Plaintiff on July 5, 1989. The Vessel is the subject property of this mortgage. The mortgage secured a loan of $ 441,000 which the Mausts received from Cummins. Cummins has demanded payment of the unpaid balance on the note secured by the mortgage, which Cummins claims to be approximately $ 478,308.11. The Mausts acknowledge that Cummins has demanded that they pay on the note, but the Mausts deny that they owe any amount on it. These parties have informed the court that settlement proceedings are underway with regard to this underlying claim.

 On April 25, 1990, the court granted the motion of Belding Corporation (hereinafter "Belding") for leave to file its motion to intervene. Belding claims a maritime lien on the Vessel for providing overland transportation of the Vessel from Ottawa, Illinois to Oregon, Illinois. Defendants the Vessel and the Mausts filed a motion to dismiss Belding's counterclaim on May 22, 1990.

 DISCUSSION

 In analyzing a motion to dismiss, this court will not dismiss a complaint unless it is clear there are no set of facts that Plaintiffs could prove consistent with the pleadings that would entitle them to relief. Hishon v. Kind & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Murphy v. Lane, 833 F.2d 106, 107 (7th Cir. 1987); Vaden v. Village of Maywood, 809 F.2d 361, 363 (7th Cir.), cert. denied, 482 U.S. 908, 96 L. Ed. 2d 381, 107 S. Ct. 2489 (1987). The court will accept all well-pleaded factual allegations in the complaint as true. Vaden, 809 F.2d at 363; Doe v. St. Joseph's Hosp. of Fort Wayne, 788 F.2d 411, 414 (7th Cir. 1986). In addition, this court will view the allegations in a light most favorable to the non-moving party. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), cert. denied, 470 U.S. 1054, 84 L. Ed. 2d 821, 105 S. Ct. 1758 (1985); Wolfolk v. Rivera, 729 F.2d 1114, 1116 (7th Cir. 1984).

 Defendants the Vessel and the Mausts ask the court to dismiss Belding's claim against them for failure to state a claim for relief under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants assert that Belding does not have a maritime lien on the Vessel because the service which Belding provided was not a "necessary" within the meaning of relevant maritime law.

 Federal maritime law provides that a person providing necessaries to a vessel has a maritime lien on the vessel, and may bring a civil action in rem to enforce the lien. 46 U.S.C. § 31342 (1988). Under that statute, "necessaries" includes repairs, supplies, towage, and the use of a dry dock or marine railway. 46 U.S.C. § 31301(4) (1988). Case law defining the scope of "necessaries" is sparse, and the court has found no case on the specific issue of whether overland transportation of a vessel is a "necessary." Some federal courts have interpreted "necessaries" broadly to apply to goods and services provided to a vessel which were necessary to the vessel's continued operation, Chi Shun Hua Steel Co. v. Crest Tankers, Inc., 708 F. Supp. 18, 24 (D.N.H. 1989); to anything furnished to a vessel which is reasonably necessary for the vessel's venture, Flexivan Leasing, Inc. v. M/V C.C. San Francisco, 628 F. Supp. 1077, 1078 (C.D. Cal. 1985), rev'd sub nom., Foss Launch & Tug Co. v. Char China Shipping U.S.A., Ltd., 808 F.2d 697 (9th Cir.), cert. denied, 484 U.S. 828, 108 S. Ct. 96, 98 L. Ed. 2d 57 (1987); and goods which enable a vessel to proceed with its voyage, Tramp Oil & Marine Ltd. v. M/V Mermaid I, 630 F. Supp. 630, 632 (D.P.R. 1986), aff'd, 805 F.2d 42 (1st Cir. 1986).

 A case involving services most analogous to those provided by Belding Corporation is Farrell Ocean Services, Inc. v. United States, 681 F.2d 91 (1st Cir. 1982). There, the First Circuit found that the transportation of vessels from Virginia to Massachusetts for repair constituted "other necessaries" and gave rise to a maritime lien. Id. at 93. The court stated further that transporting the vessels by barge served the same function as "towage", which the maritime statute specifically enumerates as a "necessary" which gives rise to a maritime lien under 46 U.S.C. § 31301(4) (1988). Id. The court reasoned that if the vessels were not transported to the point of repair, they could not be repaired, and their operation would be impaired. Id. Therefore, concluded the court, transporting the vessels by barge for repair was a "necessary" within the meaning of the statutory provision for maritime liens. Id.

 One other federal court concluded that the transport of persons essential to a vessel's operation was a "necessary" giving rise to a maritime lien. Carl Enters. v. Barge Hudson Handler, 475 F. Supp. 42, 46 (S.D. Ala. 1979). In that case, transportation of the vessel's crew members was not by sea but by air. Id. A maritime lien may also arise when the necessary service provided does not move the vessel, but instead keeps it in place. In the case of In re Underwater Completion Team, Inc., 34 Bankr. 206, 210 (Bankr. W.D. La. 1983), the court noted that such a service was a "necessary" because it was reasonably needed for the venture in which the vessel was engaged.


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