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Nurmi Property LLC v. Sourcepoint LLC

United States District Court, S.D. Florida

May 15, 2017

NURMI PROPERTY LLC, Plaintiff,
v.
SOURCEPOINT LLC, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS

          ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE

         THIS CAUSE is before the Court on Plaintiff's Motion for Judgment on the Pleadings and Memorandum of Law [DE 17]. The Court has carefully considered Plaintiff's Motion, Defendant's Response [DE 20], and Plaintiff's Reply [DE 21], and is otherwise fully advised in the premises. For the reasons set forth below, Plaintiff's Motion is DENIED.

         I. INTRODUCTION

         This is an action to remove a maritime lien claim and for declaratory and injunctive relief. Plaintiff Nurmi Property LLC (“Nurmi”) owns the passenger vessel M/V ISLAND BREEZE II. After chartering the vessel from Nurmi, Defendant SourcePoint LLC (“SourcePoint”) served a Notice of Claim of Lien against the vessel in the amount of $3, 000, 000 for certain gaming equipment remaining onboard. Nurmi asserts that SourcePoint's lien claim is invalid under the terms of several written agreements by which the parties are bound. SourcePoint counters that its lien claim arises from a maritime tort and, as such, is not precluded by any agreement. Based on the substance of the pleadings and attachments thereto, the Court concludes that Nurmi is not entitled to judgment as a matter of law.

         II. BACKGROUND [1]

         As the Court has already noted, Nurmi owns the passenger vessel M/V ISLAND BREEZE II. DE 1 ¶ 7; DE 7 ¶ 7. On or about May 15, 2013, Nurmi chartered the vessel to IBI Palm Beach, LLC (“IBI”). DE 1 ¶ 10; DE 7 ¶ 10. In connection with that charter, Nurmi and IBI executed a Charter Purchase Agreement, a copy of which is attached to Nurmi's Verified Complaint. See DE 1-1. The Charter Purchase Agreement contains the following provision:

D. (1) Except for a lien for wages of stevedores wages for the crew of the vessel, general salvage or salvage including contract salvage, and except for maritime tort liens covered (subject to a reasonable deductible) by insurance or protection and indemnity entry, Charterer will not create or suffer to be continued any security interest, lien, encumbrance or charge on the Vessel or any income therefrom. In due course, and in any event within thirty (30) days after the same becomes due and payable, the Charterer will pay or cause to be discharged or make adequate provision for the payment or discharge of all claims or demands which, if not paid or discharged, might result in the creation of a security interest, lien, encumbrance or charge against the Vessel or any income therefrom, and will cause the Vessel to be released or discharged from each such security interest, lien, encumbrance or charge therefor.

Id. at 6-7.[2] Nurmi alleges, and SourcePoint denies, that this no lien clause forbids SourcePoint s lien against the vessel. DE 1 ¶ 11; DE 7 ¶ 11.

         Nurmi further alleges, and SourcePoint denies, that during the charter the vessel was subject to a preferred ship's mortgage, which also contains a provision prohibiting liens. DE 1 ¶¶ 12-13; DE 7 ¶¶ 12-13. A portion of the mortgage between Nurmi and SOUTHBank, dated June 7, 2012, is attached to Nurmi's Verified Complaint. See DE 1-2. The mortgage provides: “Without the prior written consent of Mortgagee there shall not be granted or incurred by any person any Lien [on the vessel], and Shipowner shall not suffer the same to be continued for any period of time whatsoever after the same shall become due and payable.” Id. at 3. The mortgage further requires that Nurmi keep a copy of the mortgage onboard the vessel and prominently display a notice of mortgage reading substantially as follows:

This vessel is encumbered by a preferred marine mortgage in favor of SOUTHBank, a Federal Savings Bank, pursuant to Chapter 313 of Title 46 of the United States Code, as amended. Under the provisions of said mortgage none of the owner, any charterer, the master of this vessel, or any other person has any right, power or authority to create, incur or permit to be imposed upon this vessel any lien, encumbrance, or other charge whatsoever other than for crews' wages or salvage, and such other liens as may be expressly permitted under such preferred mortgage.

Id.

         Nurmi alleges, and SourcePoint denies, that “[a] ‘No Lien' clause under maritime law placed charterer and third parties on notice that the charterer cannot, and owner will not, allow liens to attach or accrue to the vessel and specifically prohibits maritime liens or relying on the credit of the vessel.” DE 1 ¶ 14; DE 7 ¶ 14. Nurmi further alleges, and SourcePoint denies, that a copy of the Charter Purchase Agreement, preferred ship's mortgage, and notice thereof were prominently displayed on the vessel at all relevant times and provided constructive notice to all that no liens against the vessel were permitted. DE 1 ¶¶ 15-17; DE 7 ¶¶ 15-17; DE 1-3 (copy of notice allegedly displayed on vessel).

         At some point during the charter, IBI initiated bankruptcy proceedings. DE 1 ¶¶ 18-19; DE 7 ¶¶ 18-19. The charter of Nurmi's vessel was included among the assets of IBI's bankruptcy estate. DE 1 ¶ 20; DE 7 ¶ 20. On or about November 12, 2013, Nurmi and SourcePoint executed an Attornment Agreement in connection with SourcePoint's becoming a lender to IBI and obtaining a security interest in IBI's rights under the Charter Purchase Agreement. DE 1 ¶ 21; DE 7 ¶ 21. The Attornment Agreement, a copy of which is attached to Nurmi's Verified Complaint, includes the following provision:

6. Release of Lien. Lender hereby releases any lien right Lender may have against the Vessel and or the Non-Removable Goods, Notwithstanding any provision of this Agreement or contained in the Security Interest in the event of a default under the Charter that is not cured by IBI, Lender or Successor Charter, within the applicable cure period, Nurrni shall have the right to cancel the Charter Agreement and retake possession of the Vessel. In the event Nurmi cancels the Charter Agreement and retakes possession of the Vessel, Nurmi shall allow Lender or Successor Charter access to the Vessel to remove the Vessel Equipment and any other assets of IBI described on Exhibit A on the Vessel encumbered by the Security interest.

         DE 1-4 at 3. The Attornment Agreement also provides: “If [SourcePoint] or another party acquires the Charter or succeeds to the interest of IBI under the Charter as a result of foreclosure, a voluntary assignment, through receivership or otherwise . . . then: (i) Nurmi and Successor Charterer [SourcePoint] shall be bound to each other under all the terms, covenants, and conditions of the Charter for the balance of the Charter with the same force and effect as if Successor Charterer [SourcePoint] was the charterer under the Charter, ” with certain exceptions. Id. at 2.

         On or about March 1, 2015, as a result of IBI's default under its loan, SourcePoint took possession of the vessel and became the successor charterer to IBI. DE 1 ¶¶ 20, 22; DE 7 ¶¶ 20, 22. On August 9, 2016-after SourcePoint returned the vessel to Nurmi-SourcePoint served a Notice of Claim of Lien against the vessel, a copy of which is attached to Nurmi's Verified Complaint. DE 1 ¶ 24; DE 7 ¶ 24; DE 1-5. The Notice was also filed on the vessel's abstract of title and represents a cloud on the title of the vessel. DE 1 ¶ 25; DE 7 ¶ 25. SourcePoint's Notice of Claim of Lien indicates that the lien was established on January 9, 2014. See DE 1-5 at 2. The Notice further indicates that the nature of the lien claimed is as follows: “Necessaries supplied to the vessel: slot machines and related gaming equipment, furniture, chips, cards, surveillance cameras, slot tracking system and counting room and kitchen equipment.” Id. The total amount of the lien claimed is $3, 000, 000. Id. Nurmi alleges, and SourcePoint denies, that SourcePoint's lien claim is not valid and must be removed, and that as a result of the wrongful lien claim, Nurmi has been damaged. DE 1 ¶¶ 26-27; DE 7 ¶¶ 26-27.

         Count I of Nurmi's Verified Complaint seeks to remove SourcePoint's lien pursuant to 46 U.S.C. § 31343(c)(2). Nurmi alleges, and SourcePoint denies, that when the lien was allegedly established in January of 2014, and when the lien claim was filed in August of 2016, the vessel was subject to the Charter Purchase Agreement, preferred ship's mortgage, and Attornment Agreement, all of which contained provisions prohibiting SourcePoint's lien, and that SourcePoint had both actual and constructive knowledge of the same. DE 1 ¶¶ 31-33; DE 7 ¶¶ 31-33. Nurmi further alleges, and SourcePoint denies, that on or about July 12, 2016, SourcePoint's counsel sent a letter by email to Nurmi's counsel regarding the return of the vessel from SourcePoint to Nurmi, which stated in part: “All fees have been paid through July 15, and there are no known liens or unpaid wage claims against the vessel.” DE 1 ¶ 35; DE 7 ¶ 35; DE 1-9 (copy of letter). Nurmi alleges, and SourcePoint denies, that this was an intentional misrepresentation, as evidenced by SourcePoint's subsequent Notice of Claim of Lien.[3] DE 1 ¶ 37; DE 7 ¶ 37. Nurmi further alleges, and SourcePoint denies, that SourcePoint has failed to comply with Nurmi's demand that the lien be removed. DE 1 ¶¶ 34, 37; DE 7 ¶¶ 34, 37; DE 1-6 (demand letter). Finally, Nurmi alleges, and SourcePoint denies, that SourcePoint abandoned the vessel and the gaming equipment identified in ...


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