Chapter 3.28
MOORAGE LIEN ACT
Sections:
Subchapter 1. Generally
Subchapter 2. Procedures
Subchapter 3. Miscellaneous
Subchapter 1. Generally
3.28.010 Definitions.
Unless the context clearly requires otherwise the definitions in this section apply throughout this chapter.
(a) “Charges” means charges of a Tribal moorage facility operator for moorage and storage, all other charges owing to or that become owing under a contract between a vessel owner and the Tribal moorage facility operator, or any costs of sale and related legal expenses for implementing PTC 3.28.030.
(b) “Owner” means every natural person, firm, partnership, corporation, association or organization or their agent, with actual or apparent authority, who expressly or impliedly contracts for use of a moorage facility.
(c) “Transient vessel” means a vessel using a Tribal moorage facility and that belongs to an owner who does not have a moorage agreement with the Tribal moorage facility operator. Transient vessels include, but are not limited to, vessels seeking a harbor or refuge, day use, or overnight use of a Tribal moorage facility on a space-as-available basis.
(d) “Tribal moorage facility” means any properties or facilities owned or operated by a Tribal moorage facility operator that are capable of use for the moorage or storage of vessels.
(e) “Tribal moorage facility operator” means every natural person, firm, partnership, corporation, association, organization, or any other legal entity, employee, or their agent, that owns or operates a Tribal moorage facility.
(f) “Vessel” means every watercraft used or capable of being used as a means of transportation on the water. “Vessel” includes any trailer used for the transportation of watercraft. [Res. 100495 (04/10/95); prior code § 3.07.010]
3.28.020 Jurisdiction.
The Tribal Council, by enacting this chapter, grants jurisdiction to the Puyallup Tribal Court over the subject matter of this chapter. [Res. 100495 (04/10/95); prior code § 3.07.020]
Subchapter 2. Procedures
3.28.030 Securing vessels – Notice – Moving vessels ashore – Regaining possession of abandoned vessels – Public sale.
(a) Any Tribal moorage facility operator may take reasonable measures, including the use of chains, ropes, and locks, or removal from the water, to secure vessels within the Tribal moorage facility so that the vessels are in the possession and control of the operator and cannot be removed from the facility. These procedures may be used if an owner mooring or storing a vessel at the facility fails, after being notified that charges are owing and of the owner’s right to commence legal proceedings to contest that such charges are owing, to pay charges owed or to commence legal proceedings. Notification shall be by two separate letters, one sent by first class mail and one sent by registered mail, to the owner and any lienholder of record at the last known address. In the case of a transient vessel, or where no address was furnished by the owner, the operator need not give notice prior to securing the vessel. At the time of securing the vessel, an operator shall attach to the vessel a readily visible notice. The notice shall be of a reasonable size and shall contain the following information:
(1) The date and time the notice was attached;
(2) A statement that if the account is not paid in full within 90 days from the time the notice is attached the vessel may be sold at auction to satisfy the charges; and
(3) The address and telephone number where additional information may be obtained concerning release of the vessel.
After a vessel is secured, the operator shall make a reasonable effort to notify the owner and any lienholder of record by registered mail in order to give the owner the information contained in the notice.
(b) A Tribal moorage facility operator, at his or her discretion, may move moored vessels ashore for storage within properties under the operator’s control or for storage with a private person under their control as bailees of the Tribal moorage facility, if the vessel is, in the opinion of the operator, a nuisance, in danger of sinking or creating other damage, or is owing charges. The costs of any such procedure shall be paid by the vessel’s owner.
(c) If a vessel is secured under subsection (a) of this section or moved ashore under subsection (b) of this section, the owner who is obligated to the Tribal operator for charges may regain possession of the vessel by:
(1) Making arrangements satisfactory with the operator for the immediate removal of the vessel from the facility or for authorized moorage; and
(2) Making payment to the operator of all charges, or by posting with the operator a sufficient cash bond or other acceptable security, to be held in trust by the operator pending written agreement of the parties with respect to payment by the vessel owner of the amount owing, or pending resolution of the matter of the charges in a civil action in a court of competent jurisdiction. After entry of judgment, including any appeals, in a court of competent jurisdiction, or after the parties reach agreement with respect to payment, the trust shall terminate and the operator shall receive so much of the bond or other security as agreed, or as is necessary, to satisfy any judgment, costs, and interest as may be awarded to the operator. The balance shall be refunded immediately to the owner at the last known address.
(d) If a vessel has been secured by the operator under subsection (a) of this section and is not released to the owner under the bonding provisions of this section within 90 days after notifying or attempting to notify the owner under subsection (a) of this section, the vessel is conclusively presumed to have been abandoned by the owner.
(e) If a vessel moored or stored at a Tribal moorage facility is abandoned, the operator may authorize the public sale of the vessel by authorized personnel to the highest and best bidder for cash as follows:
(1) Before the vessel is sold, the vessel owner and any lienholder of record shall be given at least 20 days notice of the sale in the manner set forth in subsection (a) of this section if the name and address of the owner are known. The notice shall contain the time and place of the sale, a reasonable description of the vessel to be sold, and the amount of charges owed with respect to the vessel. The notice of sale shall be published at least once, more than 10 but not more than 20 days before the sale, in a newspaper of general circulation in the county in which the facility is located. This notice shall include the name of the vessel, if any, the last known owner and address, and a reasonable description of the vessel to be sold. The operator may bid all or part of its charges at the sale and may become a purchaser at the sale.
(2) Before the vessel is sold, any person seeking to redeem an impounded vessel under this section may commence a lawsuit in the Puyallup Tribal Court or the Southern Division (Tacoma) of the United States District Court for the Western District of Washington to contest the validity of the impoundment or the amount of charges owing. This lawsuit must be commenced within 60 days of the date the notification was provided under subsection (a) of this section, or the right to a hearing is deemed waived and the owner is liable for any charges owing the operator. In the event of litigation, the prevailing party is entitled to reasonable attorneys’ fees and costs.
(3) The proceeds of a sale under this section shall be applied first to the payment of any liens superior to the claim for charges, then to payment of the charges, then to satisfy any other liens on the vessel in the order of their priority. The balance, if any, shall be paid to the owner. If the owner cannot in the exercise of due diligence be located by the operator within one year of the date of the sale, the excess funds from the sale shall revert to Marine View Ventures, Inc. If the sale is for a sum less than the applicable charges, the operator is entitled to assert a claim for deficiency; however, the deficiency judgment shall not exceed the moorage fees owed for the previous six-month period.
(4) In the event no one purchases the vessel at a sale, or a vessel is not removed from the premises or other arrangements are not made within 10 days of sale, title to the vessel will revert to the operator.
(f) The rights granted to a Tribal moorage facility operator under this section are in addition to any other legal rights an operator may have to hold and sell a vessel and in no manner does this section alter those rights, or affect the priority of other liens on a vessel. [Amended during 2010 recodification; Res. 100495 (04/10/95); prior code § 3.07.120]
Subchapter 3. Miscellaneous
3.28.040 Severability.
In the event that any one or more of the provisions contained in this chapter shall for any reason be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions herein and this chapter shall be construed as if such invalid, illegal, or unenforceable provision had never been contained therein. [Res. 100495 (04/10/95); prior code § 3.07.210]
3.28.050 Effective date.
This chapter shall take effect on the date approved by the Tribal Council, unless provided otherwise by the approving resolution. [Res. 100495 (04/10/95); prior code § 3.07.220]