law21103

Chapter 103

2021 -- H 5759 SUBSTITUTE A
Enacted 07/01/2021

A N A C T

RELATING TO PROPERTY -- DRY DOCK FACILITIES

Introduced By: Representative Joseph J. Solomon

Date Introduced: February 24, 2021

It is enacted by the General Assembly as follows:

SECTION 1. Sections 34-46-2, 34-46-4, 34-46-5 and 34-46-6 of the General Laws in

Chapter 34-46 entitled "Dry Dock Facilities" are hereby amended to read as follows:

34-46-2. Definitions.

As used in this chapter, the following words shall have the following meanings unless the

context clearly indicates otherwise:

(1) "Default" means the failure to pay obligations incurred by the storage of a vessel and

associated charges.

(2) "Dry dock" means any space and/or real property designed and/or used for the purpose

of renting or leasing storage space for vessels.

(3) "Facility" means a marina, boatyard, or marine repair facility that provides, as part of

its commercial operation, the storage of vessels.

(4) "Last known address" means that address provided by the owner in the latest rental

storage agreement or the address provided by the owner in a subsequent notice of a change of

address.

(5) "Lien holder" means a person holding a security interest.

(6) "Operator" means the proprietor, operator, lessor, or sublessor of a dry dock facility,

his or her agent, or any other person authorized by him or her to manage the facility or to receive

rent from the owner under a rental agreement.

(7) "Owner" means a person, other than a lienholder, having a property interest in or title

to a vessel. The term includes a person entitled to use or have possession of a vessel subject to an

interest in another person, reserved, or created by agreement and securing payment or performance

of an obligation, but it does not include a lessee under a lease not intended as security.

(8) "Personal property" means movable property not affixed to land and includes, but is

not limited to equipment, goods, furniture, and household items whether affixed to the vessel or

not.

(9) "Rental Storage agreement" means any written agreement or lease that establishes or

modifies the terms, conditions, rules, or any other provisions concerning the storage of a vessel in

a dry dock facility.

(10) "Vessel" means every description of watercraft used or capable of being used as a

means of transportation on water and any personal property located thereon and shall include its

appurtenances.

34-46-4. Notice of lien.

(a) A vessel owner must be notified of the lien created by this chapter before enforcement

of the lien by a facility operator. Notification of the lien created by this chapter is satisfied by:

(1) Written storage agreement. A written storage agreement signed by the vessel owner

that includes a notice of the lien created by this chapter the following language in bold, capitalized

font: "BEWARE -- THE VESSEL AND ITS CONTENTS MAY BE SOLD AT PUBLIC

AUCTION FOR FAILURE TO PAY STORAGE CHARGES PURSUANT TO THE DRY DOCK

FACILITIES ACT, CHAPTER 46 OF TITLE 34."; or

(2) Written notice of lien. Written notification of the lien sent by the facility operator to the

last known address of the vessel owner and, where applicable, to the last known address of the

person or entity the facility operator has on record as being responsible for the vessel, if different

from the vessel's registered owner to the vessel owner.

(b) A facility operator who does not have a written storage agreement that includes a notice

of the lien created by this chapter may not initiate an enforcement action under § 34-46-5 until

thirty (30) days after the written notice of a lien required by subdivision (a)(2) is delivered to the

vessel owner delivery of written notice of the lien pursuant to this chapter.

34-46-5. Enforcement of lien.

A facility operator may enforce a lien created by this chapter only if the vessel owner has

been notified of the lien as required by § 34-46-4 notice requirement set forth in § 34-46-4 is

satisfied.

(1) Sale -- Use of proceeds.

(i) If a vessel owner is in default for a period of more than ninety (90) days, a facility

operator may enforce a lien by selling the stored vessel at a commercially reasonable public sale

for cash. As used in this section, "commercially reasonable" shall have the same meaning as in the

Uniform Commercial Code. The proceeds of the sale shall be applied in the following order:

(A) To the reasonable expenses of the sale incurred by the facility operator including, but

not limited to, reasonable attorneys' fees, legal expenses, and expenses of advertisement;

(B) To the satisfaction of the lien created by this chapter;

be paid in the order of priority; and

(D) To the extent that the proceeds of sale exceed the sum of the foregoing, the surplus

must be paid by the facility operator to the vessel owner. Where the surplus is not collected within

thirty (30) days of the sale, the facility operator shall provide the funds to the general treasurer as

unclaimed property.

(ii) If proceeds of the sale are not sufficient to satisfy the vessel owner's outstanding

obligations to the facility operator or any lienholder of record, the vessel owner remains liable to

the facility operator and/or lienholder for the deficiency.

(2) Advertisement -- Notice of default. Before conducting a sale under this section, the

facility operator shall:

(i) Personally serve a notice of default on the vessel owner if the vessel owner is a Rhode

Island resident, and where applicable, . If the vessel owner is not a Rhode Island resident, notice

shall be in accordance with subdivision (7). The facility operator shall provide a copy of the notice

to each lienholder of record. The notice must include: personally serve a notice of default on the

person or entity the facility operator has on record as being responsible for the vessel if different

from the vessel's registered owner, if the person or entity is a Rhode Island resident.

(A) After a licensed process server makes three (3) attempts at personal service on different

days and at different times of the day at the last known address of the vessel owner and the person

or entity the facility operator has on record as being responsible for the vessel if different than that

of the vessel's registered owner, service will be deemed effectuated by leaving a copy of the notice

of default in the door of the residence and mailing a copy of the notice of default in accordance

with subsection (7) of this section.

(B) The licensed process server will provide an affidavit detailing the attempts at personal

service including the date, time, and location of each attempt, efforts to find an alternate address

for service, where and when the notice was left, and the mailing of the notice. The notice will be

deemed delivered on the date the notice is left at the residence.

(ii) In the event that either the vessel owner or the person or entity the facility operator has

on record as being responsible for the vessel if different from the vessel's registered owner are not

Rhode Island resident(s), notice shall be in accordance with subsection (7) of this section. The

facility operator shall provide a copy of the notice to each lienholder of record. In addition, the

facility operator shall affix a copy of the notice of default on the outside of the vessel in a manner

where it can be reasonably seen.

(iii) The notice of default must include:

(A) A statement that the vessel is subject to a lien held by the facility operator;

(B) A statement of the facility operator's claim indicating the charges due on the date of

the notice, the amount of any additional charges that will or may become due before the date of

sale, and the date those additional charges will become due;

(40) thirty (30) days after the date the last notice of default required hereunder is delivered to the

vessel owner or the person or entity the facility operator has on record as being reasonable

responsible for the vessel;

(D) A statement that unless the claim is paid within the time stated the vessel will be sold,

specifying the time and place of the sale; and

(E) The name, street address, and telephone number of the facility operator, or the facility

operator's designated agent, whom the vessel owner or the person or entity the facility operator has

on record as being responsible for the vessel may contact to respond to the notice;.

(ii)(iv) After the expiration of the forty (40) thirty-(30) day (30) period set forth in

subdivision (2)(i)(C) subsection (2)(iii)(C) of this section, the facility operator shall publish an

advertisement of the sale once a week for two (2) consecutive weeks in a newspaper of general

circulation in the area where the sale is to be held and of general circulation in the state. The

advertisement must include a general description of the vessel, the name of the vessel owner, and,

if applicable, the person or entity the facility operator has on record as being responsible for the

vessel and the date, time, and place of the sale. The date of the sale must be more than fifteen (15)

days after the date the first advertisement of the sale is published. In addition, the facility operator

shall affix a copy of the advertisement on the outside of the vessel in a manner where it can be

reasonably seen.

(3) Location of sale. A sale under this chapter must shall be held at the facility or at the

nearest suitable location.

(4) Purchasers. A purchaser of a vessel sold at a sale pursuant to this chapter takes the

vessel free and clear of any rights of persons against whom the lien was valid and all other

lienholders of record.

(5) Facility operator liability. If the facility operator complies with the provisions of this

chapter, the facility operator's liability is as follows:

(i) To a lienholder of record, the facility operator's liability is limited to payment from the

net proceeds received from the sale of the vessel pursuant to § 34-46-5 this section; and

(ii) To the vessel owner, the facility operator's liability is limited to the net proceeds

received from the sale of the vessel after payment in full of all lienholders of record pursuant to

this section.

(6) Denying access to storage facility. A facility operator may deny a vessel owner who

has been notified under § 34-46-4 access to the storage facility, except that the vessel owner or

responsible party is entitled to access to the facility during normal business hours for the purpose

of satisfying the lien or viewing and verifying the condition of the vessel.

(7) Notices. Except as otherwise provided in subdivision subsection (2)(i), all notices

required by this chapter must be sent by registered or certified mail, return receipt requested must

be served by registered or certified mail, return receipt requested, or by a recognized commercial

courier with proof of signed-for delivery. Notices sent to a facility operator must be sent to the

facility operator's business address or to the address of the facility operator's designated

representative. Notices to a vessel owner or the person or entity the facility operator has on record

as being responsible for the vessel must be sent to the vessel owner at the vessel owner's person's

or entity's last known address. Notices to a lienholder of record must be sent to the address of the

lienholder as provided in the public filings that serve to perfect the lienholder's interest in the vessel.

The lienholder's identity and address that the department of environmental management has in its

records shall be provided to the facility operator upon written request and certification that the

request is made solely for the purposes of complying with the provisions of this chapter. Notices

Except as otherwise provided by this chapter, notices are considered delivered on the date the return

receipt or proof of delivery is signed or, if the notice is undeliverable, the date the post office or

commercial courier last attempts to deliver the notice.

34-46-6. Cessation of enforcement actions.

A facility operator shall cease enforcement actions immediately upon any of the following:

(1) Payment by owner. The vessel owner pays the facility operator the full amount

necessary to satisfy the lien on the date payment is tendered. At any time before the conclusion of

a sale conducted under this chapter, the vessel owner may redeem the vessel by paying the full

amount necessary to satisfy the lien of the lien on the date payment is tendered;

(2) Payment by other lienholders. A person other than the facility operator who has a lien

on the vessel pays the facility operator the full amount necessary to satisfy the lien held by the

facility operator. Upon payment by a lienholder of record, the facility operator shall hold the vessel

for the benefit of and at the direction of that lienholder and may not deliver possession of the vessel

to the vessel owner. Unless the facility operator and the lienholder enter into a new storage

agreement, the lienholder shall arrange removal of the vessel from the facility forthwith; or

(3) Initiation of Civil Action. An owner of a vessel or one claiming ownership rights in the

vessel files in a court of competent jurisdiction and serves on the facility operator, not less than ten

(10) days before the scheduled date of sale, a complaint against the facility operator relating to the

obligations incurred by the storage of the vessel or any claims related to the vessel and in such

complaint objects to the enforcement of the lien and sets forth the legal reasons why the lien should

not be enforced. The enforcement action shall not resume until either the civil action is resolved or

the court enters an order permitting the enforcement action to proceed.

SECTION 2. Section 34-46-7 of the General Laws in Chapter 34-46 entitled "Dry Dock

Facilities" is hereby repealed.

34-46-7. Rental agreements -- Notice of this chapter.

All rental agreements which are subject to this chapter shall contain clear and conspicuous

language as follows: "BEWARE -- THE VESSEL AND ITS CONTENTS MAY BE SOLD AT

PUBLIC AUCTION FOR FAILURE TO PAY STORAGE CHARGES."

SECTION 3. This act shall take effect upon passage.

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LC002096/SUB A/2

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