AN
ACT Relating to abandoned and derelict vessels; amending RCW 88.02.030,
88.02.050, 88.02.040, 79A.65.010, 79A.65.020, 79A.65.030, and 53.08.320; adding
a new section to chapter 35.21 RCW; adding a new section to chapter 35A.21 RCW;
adding a new section to chapter 36.32 RCW; adding a new section to chapter
53.08 RCW; adding a new section to chapter 77.12 RCW; adding a new chapter to
Title 79 RCW; prescribing penalties; and providing an effective date.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW
SECTION. Sec. 1. The
legislature finds that there has been an increase in the number of derelict and
abandoned vessels that are either grounded or anchored upon publicly or
privately owned submerged lands. These vessels are public nuisances and safety
hazards as they often pose hazards to navigation, detract from the aesthetics
of Washington's waterways, and threaten the environment with the potential
release of hazardous materials. The legislature further finds that the costs
associated with the disposal of derelict and abandoned vessels are substantial,
and that in many cases there is no way to track down the current vessel owners
in order to seek compensation. As a result, the costs associated with the
removal of derelict vessels becomes a burden on public entities and the
taxpaying public.
NEW
SECTION. Sec. 2. The
definitions in this section apply throughout this chapter unless the context
clearly requires otherwise.
(1)
"Abandoned vessel" means the vessel's owner is not known or cannot be
located, or if the vessel's owner is known and located but is unwilling to take
control of the vessel, and the vessel has been left, moored, or anchored in the
same area without the express consent, or contrary to the rules, of the owner,
manager, or lessee of the aquatic lands below or on which the vessel is located
for either a period of more than thirty consecutive days or for more than a total
of ninety days in any three hundred sixty-five day period. For the purposes of
this subsection (1) only, "in the same area" means within a radius of
five miles of any location where the vessel was previously moored or anchored
on aquatic lands.
(2)
"Aquatic lands" means all tidelands, shorelands, harbor areas, and
the beds of navigable waters, including lands owned by the state and lands
owned by other public or private entities.
(3)
"Authorized public entity" includes any of the following: The department
of natural resources; the department of fish and wildlife; the parks and
recreation commission; a metropolitan park district; a port district; and any
city, town, or county with ownership, management, or jurisdiction over the
aquatic lands where an abandoned or derelict vessel is located.
(4)
"Department" means the department of natural resources.
(5)
"Derelict vessel" means the vessel's owner is known and can be
located, and exerts control of a vessel that:
(a)
Has been moored, anchored, or otherwise left in the waters of the state or on
public property contrary to RCW 79.01.760 or rules adopted by an authorized
public entity;
(b)
Has been left on private property without authorization of the owner; or
(c)
Has been left for a period of seven consecutive days, and:
(i)
Is sunk or in danger of sinking;
(ii)
Is obstructing a waterway; or
(iii)
Is endangering life or property.
(6)
"Owner" means any natural person, firm, partnership, corporation,
association, government entity, or organization that has a lawful right to
possession of a vessel by purchase, exchange, gift, lease, inheritance, or
legal action whether or not the vessel is subject to a security interest.
(7)
"Vessel" has the same meaning as defined in RCW 53.08.310.
NEW
SECTION. Sec. 3. This
chapter is not intended to limit or constrain the ability and authority of the
authorized public entities to enact and enforce ordinances or other regulations
relating to derelict and abandoned vessels, or to take any actions authorized
by federal or state law in responding to derelict or abandoned vessels. This
chapter is also not intended to be the sole remedy available to authorized
public entities against the owners of derelict and abandoned vessels.
NEW
SECTION. Sec. 4. (1)
An authorized public entity has the authority, subject to the processes and
limitations of this chapter, to store, strip, use, auction, sell, salvage,
scrap, or dispose of an abandoned or derelict vessel found on or above aquatic
lands within the jurisdiction of the authorized public entity. A vessel
disposal must be done in an environmentally sound manner and in accordance with
all federal, state, and local laws, including the state solid waste disposal
provisions provided for in chapter 70.95 RCW. Scuttling or sinking of a vessel
is only permissible after obtaining the express permission of the owner or
owners of the aquatic lands below where the scuttling or sinking would occur,
and obtaining all necessary state and federal permits or licenses.
(2)
The primary responsibility to remove a derelict or abandoned vessel belongs to
the owner, operator, or lessee of the moorage facility or the aquatic lands
where the vessel is located. If the authorized public entity with the primary
responsibility is unwilling or unable to exercise the authority granted by this
section, it may request the department to assume the authorized public entity's
authority for a particular vessel. The department may at its discretion assume
the authorized public entity's authority for a particular vessel after being
requested to do so. For vessels not at a moorage facility, an authorized
public entity with jurisdiction over the aquatic lands where the vessel is
located may, at its discretion, request to assume primary responsibility for
that particular vessel from the owner of the aquatic lands where the vessel is
located.
(3)
The authority granted by this chapter is permissive, and no authorized public
entity has a duty to exercise the authority. No liability attaches to an
authorized public entity that chooses not to exercise this authority.
NEW
SECTION. Sec. 5. (1)
Prior to exercising the authority granted in section 4 of this act, the
authorized public entity must first obtain custody of the vessel. To do so,
the authorized public entity must:
(a)
Mail notice of its intent to obtain custody, at least twenty days prior to
taking custody, to the last known address of the previous owner to register the
vessel in any state or with the federal government and to any lien holders or
secured interests on record. A notice need not be sent to the purported owner
or any other person whose interest in the vessel is not recorded with a state
or federal agency;
(b)
Post notice of its intent clearly on the vessel for thirty days and publish its
intent at least once, more than ten days but less than twenty days prior to taking
custody, in a newspaper of general circulation for the county in which the
vessel is located; and
(c)
Post notice of its intent on the department's internet web site on a page
specifically designated for such notices. If the authorized public entity is
not the department, the department must facilitate the internet posting.
(2)
All notices sent, posted, or published in accordance with this section must, at
a minimum, explain the intent of the authorized public entity to take custody
of the vessel, the rights of the authorized public entity after taking custody
of the vessel as provided in section 4 of this act, the procedures the owner
must follow in order to avoid custody being taken by the authorized public
entity, the procedures the owner must follow in order to reclaim possession
after custody is taken by the authorized public entity, and the financial
liabilities that the owner may incur as provided for in section 7 of this act.
(3)
If a vessel is in immediate danger of sinking, breaking up, or blocking
navigational channels, and the owner of the vessel cannot be located or is
unwilling to assume responsibility for the vessel, an authorized public entity
may tow, beach, or otherwise take temporary possession of the vessel. Before
taking temporary possession of the vessel, the authorized public entity must
make reasonable attempts to consult with the department and the United States
coast guard to ensure that other remedies are not available. The basis for
taking temporary possession of the vessel must be set out in writing by the
authorized public entity within seven days of taking action and be submitted to
the owner, if known, as soon thereafter as is reasonable. Immediately after
taking possession of the vessel, the authorized public entity must initiate the
notice provisions in subsection (1) of this section. The authorized public
entity must complete the notice requirements of subsection (1) of this section
before using or disposing of the vessel as authorized in section 6 of this act.
NEW
SECTION. Sec. 6. (1)
After taking custody of a vessel, the authorized public entity may use or
dispose of the vessel in any appropriate and environmentally sound manner
without further notice to any owners, but must give preference to uses that
derive some monetary benefit from the vessel, either in whole or in scrap. If
no value can be derived from the vessel, the authorized public entity must give
preference to the least costly, environmentally sound, reasonable disposal option.
Any disposal operations must be consistent with the state solid waste disposal
provisions provided for in chapter 70.95 RCW.
(2)
If the authorized public entity chooses to offer the vessel at a public
auction, either a minimum bid may be set or a letter of credit may be required,
or both, to discourage future reabandonment of the vessel.
(3)
Proceeds derived from the sale of the vessel must first be applied to any
administrative costs that are incurred by the authorized public entity during
the notification procedures set forth in section 5 of this act, removal and
disposal costs, and costs associated with environmental damages directly or
indirectly caused by the vessel. If the proceeds derived from the vessel
exceed all administrative costs, removal and disposal costs, and costs
associated with environmental damages directly or indirectly caused by the
vessel, the remaining moneys must be applied to satisfying any liens registered
against the vessel.
(4)
Any value derived from a vessel greater than all liens and costs incurred
reverts to the derelict vessel removal account established in section 11 of
this act.
NEW
SECTION. Sec. 7. (1)
The owner of an abandoned or derelict vessel is responsible for reimbursing an
authorized public entity for all reasonable and auditable costs associated with
the removal or disposal of the owner's vessel under this chapter. These costs
include, but are not limited to, costs incurred exercising the authority
granted in section 4 of this act, all administrative costs incurred by the
authorized public entity during the procedure set forth in section 5 of this
act, removal and disposal costs, and costs associated with environmental
damages directly or indirectly caused by the vessel.
(2)
Reimbursement for costs may be sought from an owner who is identified
subsequent to the vessel's removal and disposal.
(3)
If the full amount of all costs due to the authorized public entity under this
chapter is not paid to the authorized public entity within thirty days after
first notifying the responsible parties of the amounts owed, the authorized
public entity or the department may bring an action in any court of competent
jurisdiction to recover the costs, plus reasonable attorneys' fees and costs
incurred by the authorized public entity.
NEW
SECTION. Sec. 8. An
authorized public entity may enter into a contract with a private company or
individual to carry out the authority granted in this chapter.
NEW
SECTION. Sec. 9. The
rights granted by this chapter are in addition to any other legal rights an
authorized public entity may have to obtain title to, remove, recover, sell, or
dispose of an abandoned or derelict vessel, and in no way does this chapter
alter those rights, or affect the priority of other liens on a vessel.
NEW
SECTION. Sec. 10. A
person seeking to redeem a vessel that is in the custody of an authorized
public entity may commence a lawsuit to contest the authorized public entity's
decision to take custody of the vessel or to contest the amount of
reimbursement owed. The lawsuit must be commenced in the superior court of the
county in which the vessel existed when custody was taken by the authorized
public entity. The lawsuit must be commenced within twenty days of the date
the authorized public entity took custody of the vessel under section 5 of this
act, or the right to a hearing is deemed waived and the vessel's owner is
liable for any costs owed the authorized public entity. In the event of
litigation, the prevailing party is entitled to reasonable attorneys' fees and
costs.
NEW
SECTION. Sec. 11. (1)
The derelict vessel removal account is created in the state treasury. All
receipts from sections 6 and 7 of this act and those moneys specified in RCW
88.02.030 and 88.02.050 must be deposited into the account. Moneys in the account
may only be spent after appropriation. Expenditures from the account shall be
used by the department to reimburse authorized public entities for seventy-five
percent of the total reasonable and auditable administrative, removal,
disposal, and environmental damage costs of abandoned or derelict vessels when
the previous owner is either unknown after a reasonable search effort or
insolvent. During the 2001-2003 biennium, up to forty percent of the
expenditures from the account may be used for administrative expenses of the
department of licensing and department of natural resources in implementing
this chapter. In each subsequent biennium, up to twenty percent of the
expenditures from the account may be used for administrative expenses of the
department of licensing and department of natural resources in implementing
this chapter.
(2)
If the balance of the account reaches one million dollars as of March 1st of
any year, the department must notify the department of licensing and the
collection of any fees associated with this account must be suspended for the
following fiscal year.
(3)
Priority for use of this account is for the removal of derelict and abandoned
vessels that are in danger of sinking, breaking up, or blocking navigation
channels, or that present environmental risks such as leaking fuel or other
hazardous substances. The department must develop criteria, in the form of
informal guidelines, to prioritize removal projects associated with this
chapter, but may not consider whether the applicant is a state or local entity
when prioritizing. The guidelines must also include guidance to the authorized
public entities as to what removal activities and associated costs are
reasonable and eligible for reimbursement.
(4)
The department must keep all authorized public entities apprized of the balance
of the derelict vessel removal account and the funds available for
reimbursement. The guidelines developed by the department must also be made
available to the other authorized public entities. This subsection (4) must be
satisfied by utilizing the least costly method, including maintaining the
information on the department's internet web site, or any other cost-effective
method.
(5)
An authorized public entity may contribute its twenty-five percent of costs
that are not eligible for reimbursement by using in-kind services, including
the use of existing staff, equipment, and volunteers.
(6)
This chapter does not guarantee reimbursement for an authorized public entity.
Authorized public entities seeking certainty in reimbursement prior to taking
action under this chapter may first notify the department of their proposed
action and the estimated total costs. Upon notification by an authorized
public entity, the department must make the authorized public entity aware of
the status of the fund and the likelihood of reimbursement being available.
The department may offer technical assistance and assure reimbursement for up
to two years following the removal action if an assurance is appropriate given
the balance of the fund and the details of the proposed action.
Sec.
12. RCW
88.02.030 and 1998 c 198 s 1 are each amended to read as follows:
Vessel
registration is required under this chapter except for the following:
(1)
Military or public vessels of the United States, except recreational-type
public vessels;
(2)
Vessels owned by a state or subdivision thereof, used principally for
governmental purposes and clearly identifiable as such;
(3)
Vessels either (a) registered or numbered under the laws of a country other
than the United States; or (b) having a valid United States customs service
cruising license issued pursuant to 19 C.F.R. Sec. 4.94. On or before the
sixty-first day of use in the state, any vessel in the state under this
subsection shall obtain an identification document from the department of
licensing, its agents, or subagents indicating when the vessel first came into
the state. At the time of any issuance of an identification document, a ((twenty-five))
thirty dollar identification document fee shall be paid by the vessel
owner to the department of licensing for the cost of providing the
identification document by the department of licensing. Five dollars from
each such transaction must be deposited in the derelict vessel removal account
created in section 11 of this act. Any moneys remaining from the fee after
the payment of costs and the deposit to the derelict vessel removal
account shall be allocated to counties by the state treasurer for approved
boating safety programs under RCW 88.02.045. The department of licensing shall
adopt rules to implement its duties under this subsection, including issuing
and displaying the identification document and collecting the ((twenty-five))
thirty dollar fee;
(4)
Vessels that have been issued a valid number under federal law or by an
approved issuing authority of the state of principal operation. However, a
vessel that is validly registered in another state but that is removed to this
state for principal use is subject to registration under this chapter. The
issuing authority for this state shall recognize the validity of the numbers
previously issued for a period of sixty days after arrival in this state;
(5)
Vessels owned by a nonresident if the vessel is located upon the waters of this
state exclusively for repairs, alteration, or reconstruction, or any testing
related to the repair, alteration, or reconstruction conducted in this state if
an employee of the repair, alteration, or construction facility is on board the
vessel during any testing((: PROVIDED, That)). However, any
vessel owned by a nonresident is located upon the waters of this state
exclusively for repairs, alteration, reconstruction, or testing for a period
longer than sixty days, that the nonresident shall file an affidavit with the
department of revenue verifying the vessel is located upon the waters of this
state for repair, alteration, reconstruction, or testing and shall continue to
file such affidavit every sixty days thereafter, while the vessel is located
upon the waters of this state exclusively for repairs, alteration, reconstruction,
or testing;
(6)
Vessels equipped with propulsion machinery of less than ten horsepower that:
(a)
Are owned by the owner of a vessel for which a valid vessel number has been
issued;
(b)
Display the number of that numbered vessel followed by the suffix "1"
in the manner prescribed by the department; and
(c)
Are used as a tender for direct transportation between that vessel and the
shore and for no other purpose;
(7)
Vessels under sixteen feet in overall length which have no propulsion machinery
of any type or which are not used on waters subject to the jurisdiction of the
United States or on the high seas beyond the territorial seas for vessels owned
in the United States and are powered by propulsion machinery of ten or less
horsepower;
(8)
Vessels with no propulsion machinery of any type for which the primary mode of
propulsion is human power;
(9)
Vessels primarily engaged in commerce which have or are required to have a
valid marine document as a vessel of the United States. Commercial vessels
which the department of revenue determines have the external appearance of
vessels which would otherwise be required to register under this chapter, must
display decals issued annually by the department of revenue that indicate the
vessel's exempt status;
(10)
Vessels primarily engaged in commerce which are owned by a resident of a
country other than the United States; and
(11)
On and after January 1, 1998, vessels owned by a nonresident individual brought
into the state for his or her use or enjoyment while temporarily within the
state for not more than six months in any continuous twelve-month period,
unless the vessel is used in conducting a nontransitory business activity
within the state. However, the vessel must have been issued a valid number
under federal law or by an approved issuing authority of the state of principal
operation. On or before the sixty-first day of use in the state, any vessel
temporarily in the state under this subsection shall obtain an identification
document from the department of licensing, its agents, or subagents indicating
when the vessel first came into the state. An identification document shall be
valid for a period of two months. At the time of any issuance of an
identification document, a twenty-five dollar identification document fee shall
be paid by the vessel owner to the department of licensing for the cost of
providing the identification document by the department of licensing. Any
moneys remaining from the fee after payment of costs shall be allocated to
counties by the state treasurer for approved boating safety programs under RCW
88.02.045. The department of licensing shall adopt rules to implement its
duties under this subsection, including issuing and displaying the
identification document and collecting the twenty-five dollar fee.
Sec.
13. RCW
88.02.050 and 1993 c 244 s 38 are each amended to read as follows:
Application
for a vessel registration shall be made to the department or its authorized
agent in the manner and upon forms prescribed by the department. The
application shall state the name and address of each owner of the vessel and
such other information as may be required by the department, shall be signed by
at least one owner, and shall be accompanied by a vessel registration fee of
ten dollars and fifty cents per year and the excise tax imposed under chapter
82.49 RCW. In addition, two additional dollars must be collected annually
from every vessel registration application. These moneys must be deposited into
the derelict vessel removal account established in section 11 of this act. If
the department of natural resources indicates that the balance of the derelict
vessel removal account reaches one million dollars as of March 1st of any year,
the collection of the two-dollar fee must be suspended for the following fiscal
year. Any fees required for licensing agents under RCW 46.01.140 shall be
in addition to the ten dollar and fifty cent annual registration fee and the
two-dollar derelict vessel fee.
Upon
receipt of the application and the registration fee, the department shall
assign a registration number and issue a decal for each vessel. The
registration number and decal shall be issued and affixed to the vessel in a
manner prescribed by the department consistent with the standard numbering
system for vessels set forth in volume 33, part 174, of the code of federal
regulations. A valid decal affixed as prescribed shall indicate compliance
with the annual registration requirements of this chapter.
The
vessel registrations and decals are valid for a period of one year, except that
the director of licensing may extend or diminish vessel registration periods,
and the decals therefor, for the purpose of staggered renewal periods. For
registration periods of more or less than one year, the department may collect
prorated annual registration fees and excise taxes based upon the number of
months in the registration period. Vessel registrations are renewable every
year in a manner prescribed by the department upon payment of the vessel
registration fee ((and)), excise tax, and the derelict vessel
fee. Upon renewing a vessel registration, the department shall issue a new
decal to be affixed as prescribed by the department.
When
the department issues either a notice to renew a vessel registration or a decal
for a new or renewed vessel registration, it shall also provide information on
the location of marine oil recycling tanks and sewage holding tank pumping
stations. This information will be provided to the department by the state
parks and recreation commission in a form ready for distribution. The form
will be developed and prepared by the state parks and recreation commission
with the cooperation of the department of ecology. The department, the state
parks and recreation commission, and the department of ecology shall enter into
a memorandum of agreement to implement this process.
A
person acquiring a vessel from a dealer or a vessel already validly registered
under this chapter shall, within fifteen days of the acquisition or purchase of
the vessel, apply to the department or its authorized agent for transfer of the
vessel registration, and the application shall be accompanied by a transfer fee
of one dollar.
Sec.
14. RCW
88.02.040 and 1989 c 393 s 12 are each amended to read as follows:
The
department shall provide for the issuance of vessel registrations and may
appoint agents for collecting fees and issuing registration numbers and decals.
General fees for vessel registrations collected by the director shall be
deposited in the general fund: PROVIDED, That any amount above one million one
hundred thousand dollars per fiscal year shall be allocated to counties by the
state treasurer for boating safety/education and law enforcement programs and
the fee collected specifically for the removal and disposal of derelict vessels
must be deposited in the derelict vessel removal account created in section 11
of this act. Eligibility for ((such)) boating safety/education
and law enforcement program allocations shall be contingent upon
approval of the local boating safety program by the state parks and recreation
commission. Fund allocation shall be based on the numbers of registered
vessels by county of moorage. Each benefitting county shall be
responsible for equitable distribution of such allocation to other
jurisdictions with approved boating safety programs within said county. Any
fees not allocated to counties due to the absence of an approved boating safety
program, shall be allocated to the commission for awards to local governments
to offset law enforcement and boating safety impacts of boaters recreating in
jurisdictions other than where registered.
NEW
SECTION. Sec. 15. A
new section is added to chapter 35.21 RCW to read as follows:
Any
city or town has the authority, subject to the processes and limitation
outlined in chapter 79.-- RCW (sections 1 through 11 of this act), to store,
strip, use, auction, sell, salvage, scrap, or dispose of an abandoned or
derelict vessel found on or above publicly or privately owned aquatic lands
within the jurisdiction of the city or town.
NEW
SECTION. Sec. 16. A
new section is added to chapter 35A.21 RCW to read as follows:
A
code city has the authority, subject to the processes and limitation outlined
in chapter 79.-- RCW (sections 1 through 11 of this act), to store, strip, use,
auction, sell, salvage, scrap, or dispose of an abandoned or derelict vessel
found on or above publicly or privately owned aquatic lands within the
jurisdiction of the code city.
NEW
SECTION. Sec. 17. A
new section is added to chapter 36.32 RCW to read as follows:
A
county has the authority, subject to the processes and limitation outlined in
chapter 79.-- RCW (sections 1 through 11 of this act), to store, strip, use,
auction, sell, salvage, scrap, or dispose of an abandoned or derelict vessel
found on or above publicly or privately owned aquatic lands within the
jurisdiction of the county.
NEW
SECTION. Sec. 18. A
new section is added to chapter 53.08 RCW to read as follows:
A
port district has the authority, subject to the processes and limitation
outlined in chapter 79.-- RCW (sections 1 through 11 of this act), to store,
strip, use, auction, sell, salvage, scrap, or dispose of an abandoned or
derelict vessel found on or above publicly or privately owned aquatic lands
within the jurisdiction of the port district.
NEW
SECTION. Sec. 19. A
new section is added to chapter 77.12 RCW to read as follows:
The
director has the authority, subject to the processes and limitation outlined in
chapter 79.-- RCW (sections 1 through 11 of this act), to store, strip, use,
auction, sell, salvage, scrap, or dispose of an abandoned or derelict vessel
found on or above publicly or privately owned aquatic lands within the
jurisdiction of the department.
Sec.
20. RCW
79A.65.010 and 2000 c 11 s 115 are each amended to read as follows:
Unless
the context clearly requires otherwise, the definitions in this section apply
throughout this chapter.
(1)
"Charges" means charges of the commission for moorage and storage,
and all other charges related to the vessel and owing to or that become owing
to the commission, including but not limited to costs of securing, disposing,
or removing vessels, damages to any commission facility, and any costs of sale
and related legal expenses for implementing RCW 79A.65.020 and 79A.65.030.
(2)
"Commission" means the Washington state parks and recreation
commission.
(3)
"Commission facility" means any ((property or)) moorage
facility, as that term is defined in RCW 53.08.310, owned, leased,
operated, managed, or otherwise controlled by the commission or by a person
pursuant to a contract with the commission.
(4)
"Owner" means a person who has a lawful right to possession of a
vessel by purchase, exchange, gift, lease, inheritance, or legal action whether
or not the vessel is subject to a security interest, and shall not include the
holder of a bona fide security interest.
(5)
"Person" means any natural person, firm, partnership, corporation,
association, organization, or any other entity.
(6)(a)
"Registered owner" means any person that is either: (i) Shown as the
owner in a vessel certificate of documentation issued by the secretary of the
United States department of transportation under 46 U.S.C. Sec. 12103; or (ii)
the registered owner or legal owner of a vessel for which a certificate of
title has been issued under chapter 88.02 RCW; or (iii) the owner of a vessel
registered under the vessel registration laws of another state under which laws
the commission can readily identify the ownership of vessels registered with
that state.
(b)
"Registered owner" also includes: (i) Any holder of a security
interest or lien recorded with the United States department of transportation
with respect to a vessel on which a certificate of documentation has been
issued; (ii) any holder of a security interest identified in a certificate of
title for a vessel registered under chapter 88.02 RCW; or (iii) any holder of a
security interest in a vessel where the holder is identified in vessel registration
information of a state with vessel registration laws that fall within (a)(iii)
of this subsection and under which laws the commission can readily determine
the identity of the holder.
(c)
"Registered owner" does not include any vessel owner or holder of a
lien or security interest in a vessel if the vessel does not have visible
information affixed to it (such as name and hailing port or registration
numbers) that will enable the commission to obtain ownership information for
the vessel without incurring unreasonable expense.
(7)
"Registered vessel" means a vessel having a registered owner.
(8)
"Secured vessel" means any vessel that has been secured by the
commission that remains in the commission's possession and control.
(9)
"Unauthorized vessel" means a vessel using a commission facility of
any type whose owner has not paid the required moorage fees or has left the
vessel beyond the posted time limits, or a vessel otherwise present without
permission of the commission.
(10)
"Vessel" means every watercraft or part thereof constructed, used, or
capable of being used as a means of transportation on the water. It includes
any equipment or personal property on the vessel that is used or capable of
being used for the operation, navigation, or maintenance of the vessel.
Sec.
21. RCW
79A.65.020 and 1994 c 51 s 2 are each amended to read as follows:
(1)
The commission may take reasonable measures, including but not limited to the
use of anchors, chains, ropes, and locks, or removal from the water, to secure
unauthorized vessels located at or on a commission facility so that the
unauthorized vessels are in the possession and control of the commission. At
least ten days before securing any unauthorized registered vessel, the
commission shall send notification by registered mail to the last registered
owner or registered owners of the vessel at their last known address or
addresses.
(2)
The commission may take reasonable measures, including but not limited to the
use of anchors, chains, ropes, locks, or removal from the water, to secure any
vessel if the vessel, in the opinion of the commission, is a nuisance, is in
danger of sinking or creating other damage to a commission facility, or is
otherwise a threat to the health, safety, or welfare of the public or
environment at a commission facility. The costs of any such procedure shall be
paid by the vessel's owner.
(3)
At the time of securing any vessel under subsection (1) or (2) of this section,
the commission shall attach to the vessel a readily visible notice or, when
practicable, shall post such notice in a conspicuous location at the commission
facility in the event the vessel is removed from the premises. The notice
shall be of a reasonable size and shall contain the following information:
(a)
The date and time the notice was attached or posted;
(b)
A statement that the vessel has been secured by the commission and that if the
commission's charges, if any, are not paid and the vessel is not removed by
. . . . . . (the thirty-fifth consecutive day
following the date of attachment or posting of the notice), the vessel will be
considered abandoned and will be sold at public auction to satisfy the charges;
(c)
The address and telephone number where additional information may be obtained
concerning the securing of the vessel and conditions for its release; and
(d)
A description of the owner's or secured party's rights under this chapter.
(4)
With respect to registered vessels: Within five days of the date that notice
is attached or posted under subsection (3) of this section, the commission
shall send such notice, by registered mail, to each registered owner.
(5)
If a vessel is secured under subsection (1) or (2) of this section, the owner,
or any person with a legal right to possess the vessel, may claim the vessel
by:
(a)
Making arrangements satisfactory to the commission for the immediate removal of
the vessel from the commission's control or for authorized storage or moorage;
and
(b)
Making payment to the commission of all reasonable charges incurred by the
commission in securing the vessel under subsections (1) and (2) of this section
and of all moorage fees owed to the commission.
(6)
A vessel is considered abandoned if, within the thirty-five day period
following the date of attachment or posting of notice in subsection (3) of this
section, the vessel has not been claimed under subsection (5) of this section.
(7)
If the owner or owners of a vessel are unable to reimburse the commission for
all reasonable charges under subsections (1) and (2) of this section within a
reasonable time, the commission may seek reimbursement of seventy-five percent
of all reasonable and auditable costs from the derelict vessel removal account
established in section 11 of this act.
Sec.
22. RCW
79A.65.030 and 2000 c 11 s 116 are each amended to read as follows:
(1)
The commission may provide for the public sale of vessels considered abandoned
under RCW 79A.65.020. At such sales, the vessels shall be sold for cash to the
highest and best bidder. The commission may establish either a minimum bid
or require a letter of credit, or both, to discourage the future reabandonment
of the vessel.
(2)
Before a vessel is sold, the commission shall make a reasonable effort to
provide notice of sale, at least twenty days before the day of the sale, to
each registered owner of a registered vessel and each owner of an unregistered
vessel. 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 then owing with
respect to the vessel, and a summary of the rights and procedures under this
chapter. A notice of sale shall be published at least once, more than ten but
not more than twenty days before the sale, in a newspaper of general
circulation in the county in which the commission facility is located. This
notice shall include: (a) If known, the name of the vessel and the last owner
and the owner's address; and (b) a reasonable description of the vessel. The
commission may bid all or part of its charges at the sale and may become a
purchaser at the sale.
(3)
Before a vessel is sold, any person seeking to redeem a secured vessel may
commence a lawsuit in the superior court for the county in which the vessel was
secured to contest the commission's decision to secure the vessel or the amount
of charges owing. This lawsuit shall be commenced within fifteen days of the
date the notification was posted under RCW 79A.65.020(3), or the right to a
hearing is deemed waived and the owner is liable for any charges owing the
commission. In the event of litigation, the prevailing party is entitled to
reasonable attorneys' fees and costs.
(4)
The proceeds of a sale under this section shall be applied first to the payment
of the amount of the reasonable charges incurred by the commission and moorage
fees owed to the commission, then to the owner or to satisfy any liens of
record or security interests of record on the vessel in the order of their
priority. If an owner cannot in the exercise of due diligence be located by
the commission within one year of the date of the sale, any excess funds from
the sale, following the satisfaction of any bona fide security interest, shall
revert to the ((department of revenue under chapter 63.29 RCW)) derelict
vessel removal account established in section 11 of this act. If the sale
is for a sum less than the applicable charges, the commission is entitled to
assert a claim for the deficiency against the vessel owner. Nothing in this
section prevents any lien holder or secured party from asserting a claim for
any deficiency owed the lien holder or secured party.
(5)
If no one purchases the vessel at a sale, the commission may proceed to
properly dispose of the vessel in any way the commission considers appropriate,
including, but not limited to, destruction of the vessel or by negotiated
sale. The commission may assert a claim against the owner for any charges
incurred thereby. If the vessel, or any part of the vessel, or any rights to
the vessel, are sold under this subsection, any proceeds from the sale shall be
distributed in the manner provided in subsection (4) of this section.
Sec.
23. RCW
53.08.320 and 1986 c 260 s 2 are each amended to read as follows:
A
moorage facility operator may adopt all ((regulations)) rules
necessary for rental and use of moorage facilities and for the expeditious collection
of port charges. The ((regulations)) rules may also establish
procedures for the enforcement of these ((regulations)) rules by
port district, city, county, metropolitan park district or town personnel. The
((regulations)) rules shall include the following:
(1)
Procedures authorizing moorage facility personnel to take reasonable measures,
including the use of chains, ropes, and locks, or removal from the water, to
secure vessels within the moorage facility so that the vessels are in the
possession and control of the moorage facility operator and cannot be removed
from the moorage facility. These procedures may be used if an owner mooring or
storing a vessel at the moorage 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 the port charges owed or to
commence legal proceedings. Notification shall be by registered mail to the
owner at his or her last known address. In the case of a transient
vessel, or where no address was furnished by the owner, the moorage facility
operator need not give such notice prior to securing the vessel. At the time
of securing the vessel, an authorized moorage facility employee shall attach to
the vessel a readily visible notice. The notice shall be of a reasonable size
and shall contain the following information:
(a)
The date and time the notice was attached;
(b)
A statement that if the account is not paid in full within ninety days from the
time the notice is attached, the vessel may be sold at public auction to
satisfy the port charges; and
(c)
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 by registered mail in order to give the owner the information contained
in the notice.
(2)
Procedures authorizing moorage facility personnel at their discretion to move
moored vessels ashore for storage within properties under the operator's
control or for storage with private persons under their control as bailees of
the moorage facility, if the vessel is, in the opinion of port personnel a
nuisance, if the vessel is in danger of sinking or creating other damage, or is
owing port charges. Costs of any such procedure shall be paid by the vessel's
owner. If the owner is not known, or unable to reimburse the moorage
facility operator for the costs of these procedures, the mooring facility
operators may seek reimbursement of seventy-five percent of all reasonable and
auditable costs from the derelict vessel removal account established in section
11 of this act.
(3)
If a vessel is secured under subsection (1) of this section or moved ashore
under subsection (2) of this section, the owner who is obligated to the moorage
facility operator for port charges may regain possession of the vessel by:
(a)
Making arrangements satisfactory with the moorage facility operator for the
immediate removal of the vessel from the moorage facility or for authorized
moorage; and
(b)
Making payment to the moorage facility operator of all port charges, or by
posting with the moorage facility operator a sufficient cash bond or other
acceptable security, to be held in trust by the moorage facility 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 moorage facility operator shall receive so much of the bond or other
security as is agreed, or as is necessary to satisfy any judgment, costs, and
interest as may be awarded to the moorage facility operator. The balance shall
be refunded immediately to the owner at his or her last known address.
(4)
If a vessel has been secured by the moorage facility operator under subsection
(1) of this section and is not released to the owner under the bonding
provisions of this section within ninety days after notifying or attempting to
notify the owner under subsection (1) of this section, the vessel shall be conclusively
presumed to have been abandoned by the owner.
(5)
If a vessel moored or stored at a moorage facility is abandoned, the moorage
facility operator may, by resolution of its legislative authority, authorize
the public sale of the vessel by authorized personnel to the highest and best
bidder for cash as ((follows:)) prescribed by this subsection (5).
Either a minimum bid may be established or a letter of credit may be required,
or both, to discourage the future reabandonment of the vessel.
(a)
Before the vessel is sold, the owner of the vessel shall be given at least
twenty days' notice of the sale in the manner set forth in subsection (1) of
this section if the name and address of the owner is 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 port charges owed with respect to the vessel.
The notice of sale shall be published at least once, more than ten but not more
than twenty days before the sale, in a newspaper of general circulation in the
county in which the moorage facility is located. Such 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 moorage facility operator may bid
all or part of its port charges at the sale and may become a purchaser at the
sale((;)).
(b)
Before the vessel is sold, any person seeking to redeem an impounded vessel
under this section may commence a lawsuit in the superior court for the county
in which the vessel was impounded to contest the validity of the impoundment or
the amount of the port charges owing. Such lawsuit must be commenced within
ten days of the date the notification was provided pursuant to subsection (1)
of this section, or the right to a hearing shall be deemed waived and the owner
shall be liable for any port charges owing the moorage facility operator. In
the event of litigation, the prevailing party shall be entitled to reasonable
attorneys' fees and costs.
(c)
The proceeds of a sale under this section shall first be applied to the
payment of port charges. The balance, if any, shall be paid to the owner. If
the owner cannot in the exercise of due diligence be located by the moorage
facility operator within one year of the date of the sale, the excess funds
from the sale shall revert to the ((department of revenue pursuant to
chapter 63.29 RCW)) derelict vessel removal account established in
section 11 of this act. If the sale is for a sum less than the applicable
port charges, the moorage facility operator is entitled to assert a claim for a
deficiency.
(d)
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 ten days of sale,
title to the vessel will revert to the moorage facility operator.
(6)
The ((regulations)) rules authorized under this section shall be
enforceable only if the moorage facility has had its tariff containing such ((regulations))
rules conspicuously posted at its moorage facility at all times.
NEW
SECTION. Sec. 24.
Sections 1 through 11 of this act constitute a new chapter in Title 79 RCW.
NEW
SECTION. Sec. 25. If
any provision of this act or its application to any person or circumstance is
held invalid, the remainder of the act or the application of the provision to
other persons or circumstances is not affected.
NEW
SECTION. Sec. 26. This
act takes effect January 1, 2003.
