Burr & Forman

01.16.2018   |   Articles / Publications

Benedict’s Maritime Bulletin: Opposing Perspectives: Should Fishing Permits be Classified as Appurtenances and Subject to Attachment of a Maritime Lien?

Introduction to Maritime Liens and Appurtenances
Maritime liens arise by operation of law and, pursuant to the Federal Maritime Lien Act of 1910 and its progeny, attach to maritime property or res which may include vessels-along with their engines, equipment and appurtenances-cargo, freight, and subfreights.2 In admiralty, an appurtenance is defined as anything ”essential to the vessel’s navigation, operation, or mission.”3 What qualifies as an ”appurtenance” has been up for debate in recent years, most recently with the issue of whether a fishing permit is ”appurtenant” to a vessel.

What are fishing permits?4
In 1976, Congress enacted the Magnuson Act, later renamed the Magnuson Stevens Act (”MSA”), ”at a
time when overfishing of coastal waters was commonplace, threatening the existence of a number of species of fish.”5 The MSA was enacted in response to overfishing and inadequate conservation measures ”which were threatening future commercial and recreational fishing, as well as the very survival of species.”6

In implementing the MSA, Congress also ”created eight regional fishery management councils composed of state fishery managers, the regional NMFS [National Marine Fisheries Service] fisheries administrator, and qualified fishing industry, academic, and environmental representatives.”7 The councils are charged with efficiently managing the fisheries seaward of the states comprising it in accordance with the conservation directives of the MSA.8 The councils develop fishery management plans (”FMPs”) to outline the rules for each fishery pursuant to the MSA.9

FMPs for most fisheries establish the implementation and issuance of fishing permits as a method of gaining control of the fishery. The fishing history and fishing permits of a vessel are integral to the value of the vessel itself.10 The amount and species of fish that a particular vessel is licensed to catch often depends on that vessel’s fishing history, and certain species cannot be fished at all except by or in place of vessels that have previously held permits to do so.11

Download the full article, “Opposing Perspectives: Should Fishing Permits be Classified as Appurtenances and Subject to Attachment of a Maritime Lien?” written by Kasee Sparks Heisterhagen, Esq. and Kirby Aarsheim, Esq.