46 U.S.C. § 31330 — Penalties

Page 286 TITLE 46—SHIPPING [§ 31328 [§ 31328. Repealed. Pub. L. 104–324, title XI, § 1113(b)(1), Oct. 19, 1996, 110 Stat. 3970] Section, Pub. L. 100–710, title I, § 102(c), Nov. 23, 1988, 102 Stat. 4746, related to limitations on parties serving as trustees of mortgaged vessel interests. § 31329. Court sales of documented vessels (a) A documented vessel may be sold by order of a district court only to— (1) a person eligible to own a documented vessel under section 12103 of this title; or (2) a mortgagee of that vessel. (b) When a vessel is sold to a mortgagee not el- igible to own a documented vessel— (1) the vessel must be held by the mortgagee for resale; (2) the vessel held by the mortgagee is sub- ject to chapter 563 of this title; and (3) the sale of the vessel to the mortgagee is not a sale to a person not a citizen of the United States under section 12132 of this title. (c) Unless waived by the Secretary of Trans- portation, a person purchasing a vessel by court order under subsection (a)(1) of this section or from a mortgagee under subsection (a)(2) of this section must document the vessel under chapter 121 of this title. (d) The vessel may be operated by the mort- gagee not eligible to own a documented vessel only with the approval of the Secretary of Transportation. (e) A sale of a vessel contrary to this section is void. (f) This section does not apply to a docu- mented vessel that has been operated only for pleasure. (Pub. L. 100–710, title I, § 102(c), Nov. 23, 1988, 102 Stat. 4747; Pub. L. 104–324, title XI, § 1118, Oct. 19, 1996, 110 Stat. 3973; Pub. L. 109–304, § 15(32), Oct. 6, 2006, 120 Stat. 1704; Pub. L. 111–281, title IX, § 913(c), Oct. 15, 2010, 124 Stat. 3017.) HISTORICAL AND REVISION NOTES Revised section Source section (U.S. Code) 31329 ............................................ 46:961(f) Section 31329 sets out certain restrictions on the court sale of a documented vessel. Section 31329(a) restricts the sale only to a person eli- gible to own a documented vessel under section 12102 of title 46 or to the mortgagee, which may be a trustee acting as a holder of a preferred mortgage on a docu- mented vessel for the benefit of a person not eligible to be the holder of a preferred mortgage on that vessel. Section 31329(b) sets out conditions on the sale to a trustee acting as a holder of a preferred mortgage on a documented vessel for the benefit of a person not eligi- ble to be the holder of a preferred mortgage on that vessel. First, the vessel must be held by the trustee for resale. Second, while being held for resale, the vessel is subject to requisition or purchase during a national emergency under section 902 of the Merchant Marine Act, 1936 (46 App. U.S.C. 1242). And third, the sale of the vessel to the trustee is not a sale foreign within the terms of the First Proviso of section 27 of the Merchant Marine Act, 1920 (46 App. U.S.C. 883). Section 31329(c) requires a person that is eligible to document the vessel that purchases a vessel from the court to document the vessel. This subsection also re- quires the person purchasing the vessel from the trust- ee to document it, thereby restricting to whom the trustee can sell the vessel. Many documented vessels have no national defense utility, such as recreational vessels and fishing vessels. Therefore, both of these re- strictions can be waived by the Secretary. As pre- viously discussed, these waivers can be on a case-by- case basis or with a blanket waiver. Section 31329(d) prohibits a trustee from operating the vessel without the approval of the Secretary. Section 31329(e) voids any sale that is done contrary to this section. HOUSE FLOOR STATEMENT Under section 31329(d) a vessel may be operated by the trustee only with the approval of the Secretary. Under current law a vessel may be documented by a trust if all of the members of the trust are citizens of the United States. If the trust buying the vessel at the court sale includes foreign investors, the vessel cannot be documented. The Committee intends in this section that the vessel will only be ‘‘operated’’ in a mainte- nance manner, but not in a commercial service. Editorial Notes AMENDMENTS 2010—Subsec. (d). Pub. L. 111–281 substituted ‘‘Sec- retary of Transportation’’ for ‘‘Secretary’’. 2006—Subsec. (a)(1). Pub. L. 109–304, § 15(32)(A), sub- stituted ‘‘section 12103’’ for ‘‘section 12102’’. Subsec. (b)(2). Pub. L. 109–304, § 15(32)(B)(i), sub- stituted ‘‘chapter 563 of this title’’ for ‘‘section 902 of the Merchant Marine Act, 1936 (46 App. U.S.C. 1242)’’. Subsec. (b)(3). Pub. L. 109–304, § 15(32)(B)(ii), sub- stituted ‘‘sale to a person not a citizen of the United States under section 12132 of this title’’ for ‘‘sale for- eign within the terms of the first proviso of section 27 of the Merchant Marine Act, 1920 (46 App. U.S.C. 883)’’. 1996—Subsec. (f). Pub. L. 104–324 added subsec. (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1989, with certain exceptions and qualifications, see section 107 of Pub. L. 100–710, set out as a note under section 31301 of this title. § 31330. Penalties (a)(1) A mortgagor shall be fined under title 18, imprisoned for not more than 2 years, or both, if the mortgagor— (A) with intent to defraud, does not disclose an obligation on a vessel as required by sec- tion 31323(a) of this title; (B) with intent to defraud, incurs a contrac- tual obligation in violation of section 31323(b) of this title; or (C) with intent to hinder or defraud an exist- ing or future creditor of the mortgagor or a lienor of the vessel, files a mortgage with the Secretary. (2) A mortgagor is liable to the United States Government for a civil penalty of not more than $10,000 if the mortgagor— (A) does not disclose an obligation on a ves- sel as required by section 31323(a) of this title; (B) incurs a contractual obligation in viola- tion of section 31323(b) of this title; or (C) files with the Secretary a mortgage made not in good faith. (b)(1) A person that knowingly violates section 31329 of this title shall be fined under title 18, imprisoned for not more than 3 years, or both. (2) A person violating section 31329 of this title is liable to the Government for a civil penalty of not more than $25,000. Page 287 TITLE 46—SHIPPING § 31342 (3) A vessel involved in a violation under sec- tion 31329 of this title and its equipment may be seized by, and forfeited to, the Government. (c) If a person not an individual violates this section, the president or chief executive of the person also is subject to any penalty provided under this section. (Pub. L. 100–710, title I, § 102(c), Nov. 23, 1988, 102 Stat. 4747; Pub. L. 104–324, title XI, § 1113(b)(2), Oct. 19, 1996, 110 Stat. 3970; Pub. L. 111–281, title IX, § 913(a)(1), (d), Oct. 15, 2010, 124 Stat. 3017.) HISTORICAL AND REVISION NOTES Revised section Source section (U.S. Code) 31330(a) ........................................ 46:941(b) (1st sentence) 31330(b) ........................................ New 31330(c) ........................................ 46:941(b) (1st sentence) Section 31330(a) provides for criminal penalties for not disclosing obligations, incurring contractual obli- gations in violation of section 31323(b), and filing a mortgage made not in good faith. This subsection makes a substantive change to law by adding civil pen- alties and by making it a crime to record with the Sec- retary of Transportation a mortgage made not in good faith with the intent to hinder an existing or future creditor of the mortgagor or a lienor of the vessel. This is done since the affidavit of good faith has been elimi- nated from the elements of a preferred mortgage. Section 31330(b) adds criminal and civil penalties for violating the sale and trust requirements under sec- tions 31328 and 31329. It also makes a vessel and its equipment involved in those violations subject to sei- zure by the Government. Section 31330(c) makes the president or chief execu- tive officer of a corporation or association liable as a mortgagor for the penalties under this section. HOUSE FLOOR STATEMENT Subsection (a) of this section adds criminal and civil penalties for a preferred mortgagor’s failure to carry out certain requirements under chapter 313 of title 46 (as enacted by this Act). Editorial Notes AMENDMENTS 2010—Subsec. (a)(1)(B). Pub. L. 111–281, § 913(d)(1)(A), inserted ‘‘or’’ after semicolon. Subsec. (a)(1)(C). Pub. L. 111–281, § 913(d)(1)(B), sub- stituted ‘‘Secretary.’’ for ‘‘Secretary; or’’. Pub. L. 111–281, § 913(a)(1), struck out ‘‘of Transpor- tation’’ after ‘‘Secretary’’. Subsec. (a)(1)(D). Pub. L. 111–281, § 913(d)(1)(C), struck out subpar. (D) which read as follows: ‘‘with intent to defraud, does not comply with section 31321(h) of this title.’’ Subsec. (a)(2)(B) to (D). Pub. L. 111–281, § 913(d)(2), in- serted ‘‘or’’ at end of subpar. (B), substituted ‘‘faith.’’ for ‘‘faith; or’’ at end of subpar. (C), and struck out sub- par. (D) which read as follows: ‘‘does not comply with section 31321(h) of this title.’’ 1996—Subsec. (b). Pub. L. 104–324 struck out ‘‘31328 or’’ before ‘‘31329’’ in pars. (1) to (3). Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1989, with certain exceptions and qualifications, see section 107 of Pub. L. 100–710, set out as a note under section 31301 of this title. SUBCHAPTER III—MARITIME LIENS § 31341. Persons presumed to have authority to procure necessaries (a) The following persons are presumed to have authority to procure necessaries for a ves- sel: (1) the owner; (2) the master; (3) a person entrusted with the management of the vessel at the port of supply; or (4) an officer or agent appointed by— (A) the owner; (B) a charterer; (C) an owner pro hac vice; or (D) an agreed buyer in possession of the vessel. (b) A person tortiously or unlawfully in pos- session or charge of a vessel has no authority to procure necessaries for the vessel. (Pub. L. 100–710, title I, § 102(c), Nov. 23, 1988, 102 Stat. 4748; Pub. L. 101–225, title III, § 303(5), Dec. 12, 1989, 103 Stat. 1924.) HISTORICAL AND REVISION NOTES Revised section Source section (U.S. Code) 31341(a) ........................................ 46:972 (1st sentence), 973 31341(b) ........................................ 46:972 (2d sentence) Section 31341(a) lists those persons who are presumed to have authority to procure necessaries for a vessel. These include the owner, master, or a manager at the port of supply; and an officer or agent appointed by the owner, charterer, owner pro hac vice, or buyer in posses- sion of the vessel. This subsection makes no sub- stantive change to law. Section 31341(b) provides that any person that is tortiously or unlawfully in possession of or in charge of a vessel has no authority to procure necessaries. This subsection makes no substantive change to law. Editorial Notes AMENDMENTS 1989—Subsec. (a)(3). Pub. L. 101–225 substituted ‘‘man- agement’’ for ‘‘mangement’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1989, with certain exceptions and qualifications, see section 107 of Pub. L. 100–710, set out as a note under section 31301 of this title. § 31342. Establishing maritime liens (a) Except as provided in subsection (b) of this section, a person providing necessaries to a ves- sel on the order of the owner or a person author- ized 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 ves- sel. (Pub. L. 100–710, title I, § 102(c), Nov. 23, 1988, 102 Stat. 4748; Pub. L. 101–225, title III, § 303(6), Dec. 12, 1989, 103 Stat. 1924.)