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Enforcement in rem is possible against both American and foreign ships. As in most other countries,
however, no lien may be asserted in the U.S. against a "public vessel".(203) Arrest or seizure of any vessel owned, demise chartered or operated by the U.S. Government, as well as the creation of any lien against a public vessel, are prohibited by the Public Vessels Act(204) and the Suits in Admiralty Act.(205)
202. 46 U.S. Code sect. 31325(a) and (b)(1) (re the preferred mortgage lien); sect. 31301(5) and 31326(b) (1) (re preferred maritime liens) and sect. 31342(a)(1) and (2) (re maritime liens for necessaries). See also Supplemental Rule C(1)(a), permitting an action in rem to enforce any maritime lien. 203. 46 U.S. Code sects. 30101(3) and 31342(b). 204. 46 U.S. Code Appx. sect. 788 et seq. 205. 46 U.S. Code Appx. sect. 742 et seq. See also Tetley, M.L.C. at pp. 597-598 and 943 and generally at Chap. 32 "State (Crown) Liability and Immunity at pp. 1187-1210, especially at pp. 1199-1205 (re the U.S.). 46a USC § 741. Exemption of United States vessels and cargoes from arrest or seizure No vessel owned by the United States or by any corporation in which the United States or its representatives shall own the entire outstanding capital stock or in the possession of the United States or of such corporation or operated by or for the United States or such corporation, and no cargo owned or possessed by the United States or by such corporation, shall after March 9, 1920, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions: Provided, That this chapter shall not apply to the Panama Canal Commission. Arthur’s comment. Since all Real Property and Financial Property is either pledged or hypothecated to the UNITED STATES INC, TO OFFSET THE BANKRUPTCY, IS CARGO OF THE STRAW PERSON (PUBLIC VESSEL), SUBJECT TO LIBEL IN PERSONAM? (Mar. 9, 1920, ch. 95, § 1, 41 Stat. 525; Sept. 26, 1950, ch. 1049, § 2(a)(2), 64 Stat. 1038; Pub. L. 96-70, § 3(b)(5), Sept. 27, 1979, 93 Stat. 455.) Is the “ Straw Man” a “public vessel”??? If it is then it says arrest, seizure and the forming of a lien are prohibited !!! What does 46 USC 30101(3) and 31342 (b) say ?? 46 U.S.C. 30101 (2002). DEFINITIONS. In this subtitle_ (1) _documented vessel_ means a vessel documented under chapter 121 of this title; (2) _foreign vessel_ means a vessel of foreign registry or operated under the authority of a foreign
country; (3) _public vessel_ means (except in chapter 315 of this title) a vessel that is owned, demise chartered, or operated by the United States Government or a government of a foreign country; (4) _recreational vessel_ means a vessel_ (A) operated primarily for pleasure; or (B) leased, rented, or demise chartered to another for the latters pleasure; (5) _seaman_ means a master or a crewmember of a vessel in operation;
(6) _State_ means a State of the United States, Guam, Puerto Rico, the Virgin Islands, American Samoa, the District of Columbia, the Northern Mariana Islands, and any other territory or possession of the United States; (7) _State vessel_ means a vessel owned or demise chartered by the government of a State or an authority or a political subdivision of a State; (8) _United States_, when used in a geographic sense, means the States of the United States, Guam, Puerto Rico, the Virgin Islands, American Samoa, the District of Columbia, the Northern Mariana Islands, and any other territory or possession of the United States; and (9) _vessel of the United States_ means a vessel documented under chapter 121 of this title, numbered under chapter 123 of this title, or titled under the law of a State. It looks like from these definitions the “straw man” would fit as a “public vessel” as it created and numbered under the laws of the United States
46 U.S.C. 31342 (b)
As taken from text from: United States Court of Appeals, Eleventh Circuit. No. 93-9006. TURECAMO OF SAVANNAH, INC., Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. Nov. 1, 1994. In 1989, Congress deleted the parenthetical phrase excepting public vessels and placed the exception in a separate subsection as follows: (a) Except as provided in subsection (b) of this section, a person providing necessaries to a vessel on the order of the owner or a person authorized by the owner– (1) has a maritime lien on the vessel;
(2) may bring a civil action in rem to enforce the lien; and (3) is not required to allege or prove in the action that credit was given to the vessel. (b) This section does not apply to a public vessel. 46 U.S.C. § 31342 (emphasis added). Representative Robert W. Davis explained the reason for amending the statute: Likewise, we have clarified provisions relating to maritime liens against public vessels. Although I felt that we had taken [care] of any uncertainty last year, we have rewritten section 31342 to clarify once and for all the fact that a claim may not be brought either in personal [sic] or in rem on a maritime lien theory against a public vessel. Okay, are judges as foreign agents, Esquires not registered with the Secretary of State public vessel protected under 46 U.S.C. § 31342? 135 CONG.REC. 9184 (daily ed. Nov. 20, 1989). The legislative history further provides: Section 31342 has been rewritten by deleting the parenthetical provisions relating to excluding public vessels from the application of the existing law and replacing it with a new subsection (b) to assure clarity. This is not a substantive change but simply makes more explicit the long established rule of law prohibiting maritime liens against public vessels. It further clarifies the existing law that a claim may not be brought either in personam or in rem on a maritime lien theory against a public vessel. This section does not affect a cause of action against the United States based on a valid maritime contract. How about enforcing a contract based in overt fraud? 135 CONG.REC. 9312 (daily ed. Nov. 21, 1989) (emphasis added). It seems that there are two possible maritime liens: One based upon a valid contract. One based upon a theory!!! Public Vessels are exempt from “theory” liens. I conclude that if the contract is not in evidence it must be a “theory” and as such the “Straw Man” is exempt… Is it possible that the “straw man” has an exemption from arrest, seizure and lien … it certainly appears so!!! NOW HOW do we get the contract entered into evidence??? OR ON the contrary if it is not evidenced can we PRESUME it is “theory”????
46 USC sect 788
§ 788. Lien not created against public vessels Nothing contained in this chapter shall be construed to recognize the existence of or as creating a lien against any public vessel of the United States. (Mar. 3, 1925, ch. 428, § 8, 43 Stat. 1113.) Special Note by Arthur-Edward: The straw person being a public vessel with cargo pledged or hypothecated to the UNITED STATES INC. BECOMES A VESSEL WITH CARGO OF THE UNITED STATES INC. INTERESTING!
46 USC sect 742
§ 742. Libel in personam In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States or against such corporation. Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found. In case the United States or such corporation shall file a libel in rem or in personam in any district, a cross libel in personam may be filed or a set-off claimed against the United States or such corporation with the same force and effect as if the libel had been filed by a private party. Upon application of either party the cause may, in the discretion of the court, be transferred to any other district court of the UnitedStates. (Mar. 9, 1920, ch. 95, § 2, 41 Stat. 525; Pub. L. 86-770, § 3, Sept. 13, 1960, 74 Stat. 912; Pub. L. 104-324, title XI, § 1105, Oct. 19, 1996, 110 Stat. 3967.) REFERENCES IN TEXT Such corporation, referred to in text, probably means a corporation mentioned in section 741 of this Appendix. AMENDMENTS 1996--Pub. L. 104-324 struck out "The libelant shall forthwith serve a copy of his cross libel on the United States attorney for such district and mail a copy thereof by registered mail to the Attorney General of the United States, and shall file a sworn return of such service and mailing. Such service and mailing shall constitute valid service on the United States and such corporation." after "liability is found." 1960--Pub. L. 86-770 amended first sentence by substituting "owned or possessed" for "owned and possessed" and ", any appropriate nonjury proceeding" for "at the time of the commencement of the action herein provided for, a libel", inserting "or if a private person or property were involved" and striking out "as the case may be, provided that such vessel is employed as a merchant vessel or is a tugboat operated by such corporation" after "such corporation". EFFECTIVE DATE OF 1960 AMENDMENT Section 4 of Pub. L. 86-770 provided in part that: "The amendment made by section 3 [amending this section] shall apply to any case or proceeding brought after the date of enactment of this Act [Sept. 13, 1960]."
FEDERAL RULES OF CIVIL PROCEDURE Admiralty and maritime rules of practice (which included libel procedures) were superseded, and civil and admiralty procedures in United States district courts were unified, effective July 1, 1966, see rule 1 and Supplemental Rules for Certain Admiralty and Maritime Claims, Title 28, Appendix, Judiciary and Judicial Procedure. CROSS REFERENCES Actions on war risk insurance claims, see section 1292 of this Appendix. SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 745, 749, 1242 of this Appendix.
Title 18 USC sec 7
Extract of the United States Code, Title 18, Secs 7 - 493. TITLE 18 - CRIMES AND CRIMINAL PROCEDURE PART I - CRIMES CHAPTER 1 - GENERAL PROVISIONS Sec. 7. Special maritime and territorial jurisdiction of the United States defined The term ''special maritime and territorial jurisdiction of the United States'', as used in this title, includes: (1) The high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State, and any vessel belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or of any State, Territory, District, or possession thereof, (2) Any vessel registered, licensed, or enrolled under the laws of the United States, (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. (4) Any island, rock, or key containing deposits of guano (seabird doodoo), which may, at the discretion of the President, be considered as appertaining to the United States. (5) Any aircraft belonging in whole or in part to the United States, or any citizen thereof, or to any corporation created by or under the laws of the United States, or any State, Territory, district, or possession thereof, Title 18 does not conflict with anything in Title 46 ( as you would expect) I think Title 18 confirms and clarifies the scope of an admiralty action ( and reaffirms the “straw man” standing and thus
the exemption )
Executory contract doctrine- The American general maritime law (infra) principle that no maritime lien (infra) arises from the breach of an unexecuted contract. Such a contract gives rise only to an action in personam, and not to an action in rem. For example, no maritime lien arises for breach of a seaman's employment contract unless the seaman has performed some work on board; nor does a lien exist for the supply of necessaries (infra)which have not been furnished to the ship. See Tetley, M.L.C., 2 Ed., 1998 at pp. 298, 596 an >From tetleys glossary
Personification theory - A theory of maritime liens (supra), particularly popular in the United States, which understands such liens as rights against a ship, treated as being a person. See Tetley, M.L.C., 2 Ed., 1998 at pp. 53-55. COGSA - Carriage of Goods by Sea Act, 1936, 46 U.S. Code sects. 1301 et seq. The American statute enacting the Hague Rules (infra). See text: Tetley, M.C.C., 3 Ed., 1988 at pp. 1199-1210. See also Senate COGSA '99, (infra)).
Common venture- A basic theme in maritime law, reflecting the understanding of maritime commerce as a joint undertaking on the part of shippers (infra), carriers (supra) and consignees (infra); shipowners and charterers; and their respective insurers, who (directly or indirectly) confront the perils of the sea together, and who should therefore share both the profits and the risks attendant upon their combined operation. The common venture principle is evident in fields such as the carriage of goods (the Hague, Hague/Visby and Hamburg Rules (infra) all providing for the sharing of risks of seagoing transportation as between shippers and consignees, on the one hand, and carriers on the other), as well as in general average (infra) and marine insurance. The old Admiralty rule requiring damages to be divided equally in the event of a ship collision (supra), was also founded upon the common venture concept. See Tetley, M.L.C., 2 Ed., 1998 at pp. 440, 473; Int'l C. of L., 994 at p. 478; Tetley, Int'l. M. & A. L., 2003 at pp. 53-54. Now, Lewis, it appears to this Man, a common venture is with the Unted States and the Straw person holding cargo hypothericated to the bankruptcy are on a common venture. Since My straw person is ship wrecked by crooked foreign agents, The United States should share in this ship wreck or wake up and defend the cargo. Now we both know it is hypothecated no matter who steals it, but, You see, within the documentation supporting the hypothecation, a remedy must be provided. Could this be it. Your Straw person was ship wreck also, was it not?
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