Dietrich v. Key Bank, N. A.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 94-4093

D. C. Docket No. 87-8407-CIV-GONZALEZ

LESLIE S. DIETRICH,

Plaintiff-Counter
Defendant-Appellant,

versus

KEY BANK, N.A.,

Defendant-Counter
Plaintiff-Appellee,

GILMAN YACHT SALES, INC., JEFFREY SHEARER,
CRACKER BOY MARINA, INC.,

Defendants.

Appeal from the United States District Court
for the Southern of Florida

(January 3, 1996)

Before TJOFLAT, Chief Judge, ANDERSON, Circuit Judge, and FAY,
Senior Circuit Judge.

ANDERSON, Circuit Judge:
 This case involves the construction of the Ship Mortgage Act

of 1920, 46 U.S.C.A. §31301-31343 (West Supp. 1995) (former

version at 46 U.S.C.A. §911-984 (West 1995))1 ("the Act"). The

question presented here has not been decided by any other

circuit: whether the provisions for enforcement of the Ship

Mortgage Act set forth at 46 U.S.C.A. §31325 provide the

exclusive procedures for the enforcement of preferred ship

mortgage liens or whether parties to preferred ship mortgages can

contract to use state self-help repossession and resale

procedures. We hold that the Ship Mortgage Act does not prohibit

1
Although the former version was in place and in effect
until January 1, 1989, we refer to the version now in existence,
i.e., 46 U.S.C.A. §31301-31343. In reorganizing the Ship
Mortgage Act, Congress made some substantive changes. However,
none of those changes have any bearing on the issues in this
case. Also important for our analysis is that the coverage of
the Act, i.e., its scope, is substantially the same as before the
1988 Act.

The section of the Act central to the issue in this appeal
is §31325(b). The House Report indicates that the only major
substantive change Congress made to that subsection was "by
allowing a nonadmiralty civil action to be brought against the
mortgagor, comaker, or guarantor for the amount of the
outstanding indebtedness secured by the vessel or any deficiency
in paying off that indebtedness." H.R. Rep. No. 918, 100th
Cong., 2d Sess., at 44 (1988). The report notes that "[t]his
change allows an action to be brought even when the vessel is
outside U.S. jurisdiction. This section will also allow the
action to be brought against the comaker or guarantor of the
mortgage." Id.

2
state self-help enforcement procedures when they are authorized

by the underlying contracts.

I. FACTUAL BACKGROUND

On April 30, 1982, Key Bank, N.A. ("Key Bank") financed

Leslie Deitrich's purchase of a thirty-five foot, 1980 Mako sport

fishing boat. Dietrich signed a security agreement giving Key

Bank a security interest in the boat and promising to repay

$97,300.00 in monthly installments at an annual interest rate of

18%. The security agreement was to protect the lender until the

First Preferred Ship Mortgage was duly recorded. On August 30,

1983, over a year later, Dietrich executed the First Preferred

Ship Mortgage.2 Among other things, that mortgage provided for

payment of the debt on the same monthly installment terms and

with the same interest provided in the security agreement, and

for acceleration of the entire debt in the event of default. In

the summer of 1986, Dietrich defaulted on her note. After

notifying her of the payments she owed, Key Bank accelerated the

note and then peacefully repossessed the vessel in December,
1986. The vessel was then sold by Key Bank in a private sale to

one of three bidders for $40,000.

Afterwards, Dietrich filed suit against Key Bank alleging

breach of contract and conversion,3 and Key Bank filed a

2
The parties agree that the preferred mortgage executed
by Dietrich was validly recorded and had the status of a
preferred mortgage under the statute.
3
Dietrich originally filed suit in Palm Beach County
Circuit Court. The action was removed to the district court.

3
counterclaim seeking a deficiency judgment. Dietrich moved for

partial summary judgment on Key Bank's counterclaim contending

that under the Ship Mortgage Act, Key Bank was prohibited from

using self-help repossession to enforce the preferred mortgage.

She also contended that even if it were lawful to contract for

self-help repossession and resale, the contracts in this case did

not make such provisions. The district court decided that the

contracts between the parties did authorize Key Bank to use

Florida law to repossess peacefully and sell its collateral upon

the debtor's default and that the Ship Mortgage Act did not

prohibit Key Bank from pursuing these contracted for state

remedies.4 After a non-jury trial in December of 1993 on the

remaining claims,5 the district court entered a deficiency

judgment against Dietrich, the amount of which is not at issue in

this appeal.

On appeal, Dietrich reasserts the grounds of her summary

judgment motion. She contends that the Ship Mortgage Act's

statutory enforcement scheme, i.e., foreclosure either in rem or
in personam in admiralty, is the exclusive remedy for default of

a preferred mortgage lien. She also argues that the district

court erred in concluding that the underlying contracts provided

for state self-help repossession and resale remedies.

4
The district court's thoughtful opinion is published.
693 F.Supp. 1112 (S.D. Fla. 1988).
5
These issues included Key Bank's deficiency claim as
well as Deitrich's affirmative defenses that the bank failed to
give proper notice and that the resale of the collateral was not
done in a commercially reasonable manner.

4
 We first address whether the underlying contracts provide

for state law self-help repossession and resale, and then we

determine whether the Ship Mortgage Act precludes such remedies.

II. CONSTRUCTION OF THE UNDERLYING CONTRACTS

Dietrich argues that she did not contract for state law

self-help repossession and resale in the mortgage contracts. Her

argument fails. It is uncontested that once perfected, the terms

of the First Preferred Ship Mortgage governed,6 and that document

contemplated repossession and resale. At least three paragraphs

in the document explicitly mention the availability of

repossession and two mentioned resale after repossession. For

example, Paragraph 20 states:

SALE OR USE OF REPOSSESSED VESSEL. If you repossess
the Vessel, you may, in my name, lease, charter,
operate or otherwise use the Vessel as you think
advisable, being accountable for net profits, if any,
and keep the Vessel free of charge at my premises or
elsewhere, at my expense. For such purpose and subject
to any applicable state regulation, you and your agents
are irrevocably appointed my true and lawful attorneys-
in-fact to make all necessary transfers of the Vessel
upon resale after repossession, in my name and stead.

6
Dietrich contends that the lower court mistakenly
relied on language set forth in the Security Agreement in
determining that she had contracted for self-help remedies.
(Under its "Additional Terms and Conditions", the Security
Agreement stated, "To protect you until a First Preferred Ship
Mortgage is duly recorded, I give you a security interest under
the Uniform Commercial Code in the Vessel and any equipment which
may become a part of the Vessel in the Future....") She argues
that that reliance was misplaced because the Security Agreement
was not binding after the execution of the First Preferred Ship
Mortgage. However, the First Preferred Ship Mortgage itself
allowed for self-help repossession and sale; therefore, her
argument is misplaced.

5
This paragraph unequivocally anticipates both self-help

repossession and self-help resale. Both are provided for under

Florida law. Fla.Stat.Ann. §679.503.7 Furthermore, this

paragraph specifically provides that state regulation would

govern the mortgagee's transfer of vessel upon resale after

repossession. Other language in the document contemplates

repossession and resale. Paragraph 16 of the First Preferred

Ship Mortgage required Dietrich to sign and deliver those

documents to the purchaser which would help the mortgagee "carry

out a resale of the Vessel in the event it becomes necessary for

[the mortgagee] to repossess it." At paragraph 19, the document

set forth how the mortgagor might redeem the vessel should it be

repossessed and stated that the mortgagor's "right to redeem will

end when the repossessed Vessel has been sold."

Thus, we reject Dietrich's argument that the contracts did

not allow for self-help repossession and resale upon default. We

therefore turn to the Ship Mortgage Act issue.

7
Section 679.503, entitled "Secured party's right to
take possession after default" states in part:

Unless otherwise agreed a secured party has on default
the right to take possession of the collateral. In
taking possession a secured party may proceed without
judicial process if this can be done without breach of
the peace or may proceed by action.

Section 679.504, entitled "Secured party's right to dispose of
collateral after default; effect of disposition", states in part:

A secured party after default may sell, lease or
otherwise dispose of any or all of the collateral in
its then condition or following any commercially
reasonable preparation or processing. Any sale of
goods is subject to chapter 672.

6
 III. THE SHIP MORTGAGE ACT OF 1920

A. Background

Before the passage of the Ship Mortgage Act of 1920,

vessel mortgage liens could not be enforced in admiralty court.

See The Thomas Barluum, 293 U.S. 21, 32, 55 S.Ct. 31, 33 (1934).

State court enforcement was ineffective because state courts

could not affect maritime liens. Thus, a ship mortgagee's

security interest was not satisfactorily protected. See id. at

39, 55 S.Ct. at 36 (pointing out that mortgage security on ships

was practically worthless). The Ship Mortgage Act provided a

means through which vessel mortgages could be given a preferred

status and could be enforced in admiralty. The underlying

purpose of the Act was to encourage investment in shipping. See
id. at 40, 55 S.Ct. at 37 (indicating fundamental purpose of

Congress was to promote confidence in ship mortgages); Merchants

& Marine Bank v. The T.E. Welles, 289 F.2d 188, 193-194 (5th Cir.

1961) ("[P]assage of the Ship Mortgage Act came about primarily

from the necessity of affording substantial security to persons
supplying essential financing to the shipping industry.")

The Act itself did at least three important things -- it set

forth the requirements for recording preferred mortgages,

established that only maritime liens would have priority over

ship mortgages, and provided for a means of enforcing preferred

mortgage liens in admiralty.

B. Federal Preemption

7
 Dietrich argues that the statutory provisions for

enforcement of preferred mortgage liens under the Act, 46

U.S.C.A. §31325(b) (formerly 46 U.S.C.A. §§951, 954), are

exclusive remedies and that, as such, they preempt state law

remedies. Specifically, 46 U.S.C.A. §31325(b) provides:

(b) On default of any term of the preferred mortgage,
the mortgage[e] may --

(1) enforce the preferred mortgage lien in a
civil action in rem for a documented vessel, a
vessel to be documented under chapter 121 of this
title, or a foreign vessel; and

(2) enforce a claim for the outstanding
indebtedness secured by the mortgaged vessel in --

(A) a civil action in personam in
admiralty against the mortgagor, maker,
comaker, or guarantor for the amount of the
outstanding indebtedness or any deficiency in
full payment of that indebtedness; and

(B) a civil action against the
mortgagor, maker, comaker, or guarantor for
the amount of the outstanding indebtedness or
any deficiency in full payment of that
indebtedness ....

The statute itself makes no statement with respect to state

law except in §31307, which established that the statute
superseded the provisions of state law conferring liens for

necessaries on vessels insofar as such statutes purported to

create rights of action to be enforced by suits in rem in

admiralty:

This chapter supersedes any State statute conferring a
lien on a vessel to the extent the statute establishes
a claim to be enforced by a civil action in rem against
the vessel for necessaries.

8
46 U.S.C.A. §31307. That limited preemption does not affect the

self-help remedies at issue here. The Ship Mortgage Act contains

no direct expression of congressional intent to preempt state law

allowing for self-help repossession and resale.

The question presented is whether these provisions for

enforcement of preferred mortgage liens preempt state law.

Recently, the Supreme Court stated:

In the absence of an express congressional command,
state law is pre-empted if that law actually conflicts
with federal law [cit.] or if federal law so thoroughly
occupies a legislative field "'as to make reasonable
the inference that Congress left no room for the States
to supplement it.'"

Cipollone v. Liggett Group, Inc., 499 U.S. 935, 112 S.Ct. 2608,

2617 (1992) (citations omitted). Because we find no express

congressional command, we must determine whether state law

actually conflicts with the federal statute or, alternatively,

whether federal law thoroughly occupies the legislative field.

1. Whether State Self-help Repossession and Sale Conflicts
with Federal Law.

We first determine whether state law is preempted
because "'it actually conflicts with a federal statute.'"

International Paper Co. v. Ouellette, 479 U.S. 481, 491, 107
S.Ct. 805, 811 (1987) (quoting Ray v. Atlantic Richfield Co., 435

U.S. 151, 158, 98 S.Ct. 988, 991 (1978)).

"Such a conflict arises when 'compliance with both
federal and state regulations is a physical
impossibility,' ... or when state law stands as an
obstacle to the accomplishment and execution of the
full purposes and objectives of Congress ...."

9
Hillsborough County, Fla. v. Auto. Med., 471 U.S. 710, 713, 105

S.Ct. 2371, 2375 (1985) (citations omitted). In the case at bar,

there is no direct conflict between the state and federal law.

Cf. Nat G. Harrison Overseas Corp. v. American Barge Sun Coaster,

475 F.2d 504, 506 (5th Cir. 1974) (where direct conflict existed

between the state usury laws and the federal statutory provision

that the mortgage may bear such rate of interest as may be agreed

upon); J. Ray McDermott & Co., Inc. v. The Vessel Morning Star,

457 F.2d 815 (5th Cir.) (en banc), cert. denied, 409 U.S. 948, 93

S.Ct. 292 (1972) (where direct conflict existed because under

state law any deficiency judgment was forfeited by conducting a

public sale without an appraisal, whereas under federal law an

appraisal was not required).

The federal statute provides procedures for judicial

foreclosure and sale. As discussed previously, 46 U.S.C.A.

§31325(b) allows for enforcement of a preferred mortgage lien in

a civil action in rem or a civil action in personam and sets

forth procedures for judicial enforcement.8 However, the Act
nowhere describes the procedures to be followed when parties to a

preferred ship mortgage seek to enforce the mortgage using

nonjudicial, self-help remedies. Thus, no direct conflict

exists. 2 Benedict on Admiralty §70f (7th ed. 1995).

8
The Act provides for the termination of all liens
upon a judicial sale in rem, the lien then attaching to the sale
proceeds. 46 U.S.C.A. §31326. Because these remedies are
judicial, any sale held pursuant to these remedies would be
court-ordered and, as such, governed by 28 U.S.C.A. §§2001 and
2004.

10
 It cannot be argued that state law stands as an obstacle to

the full accomplishment of the purposes and objectives of

Congress. The purpose of Congress was to create a means of

enforcing mortgages in admiralty in order to promote ship

financing. Allowing financiers to contract for state law self-

help remedies in addition to their statutory right to foreclose

in admiralty does not undermine this purpose. Rather, allowing

for supplementation through state law furthers the objectives of

Congress by providing another avenue for enforcement of vessel

mortgage liens.

2. Whether the Ship Mortgage Act Occupies the Field

Having determined that the Act did not explicitly

preempt state law, and that there is no conflict between the

state and federal law, we must determine whether Congress

intended to occupy the field. We can infer an "intent to occupy

a given field to the exclusion of state law ... where the

pervasiveness of the federal regulation precludes supplementation

by the States" or "where the federal interest in the field is
sufficiently dominant ...." Schneidewind v. ANR Pipeline Co.,

485 U.S. 293, 300, 108 S.Ct. 1145, 1150 (1988). We can also

infer an intent to preempt where "'the object sought to be

obtained by the federal law and the character of the obligations

imposed by it'" reveal a purpose to preclude the enforcement of

the state laws on the same subject. Id. (citation omitted).

Although enforcement of preferred mortgage liens is a

federal interest, it is not the sort of uniquely federal interest

11
which is so dominant it would create an inference that Congress

intended to preempt state law in that field. Cf. Hines v.

Davidowitz, 312 U.S. 52, 61 S.Ct. 399 (1941) (concluding that

immigration and foreign affairs were such predominant federal

interest). Nor is this a situation in which the enforcement of

state law, i.e., self-help repossession and resale, poses a

serious danger to the administration of the federal program.

Rather, a mortgagee remains free to pursue a federal remedy

notwithstanding the fact that he contracted for the option to use

a state law remedy. As long as the conveyances and sales are

properly recorded with the customs officials, the federal scheme

is not endangered.9
It cannot be said that the object sought to be obtained by

the Act and the character of the obligations imposed reveal a

purpose to preclude enforcement of nonconflicting state law on

the same subject. While it is true that Congress sought to

provide a remedy in an area in which state law was insufficient,

neither the object sought to be obtained by the Act, i.e.,
preferred status of mortgage liens enforceable in admiralty, nor

the obligations imposed by the statute, i.e., various statutory

conditions and documentation requirements, indicate that

Congress's purpose was to preclude state law enforcement of

preferred mortgages in the manner proposed in this case. Cf.

Howard v. Uniroyal, Inc., 719 F.2d 1552 (11th Cir. 1983) ("[P]re-

9
Passing of title by extra-judicial repossession and
resale is provided for in the Coast Guard regulations. 46 C.F.R.
§67.83 (1994).

12
emption and implied private cause of action analyses are distinct

modes of divining Congressional intent.")

The appellant seems to rely on the argument that the

pervasiveness of federal regulation precludes supplementation by

the states. Her argument is undermined by a close look at the

statute itself. The fact that the statute does provide two means

to enforce preferred mortgage liens does not, without more,

indicate that the federal statute is pervasive.10 Compare

International Paper Co. v. Ouellette, 479 U.S. 481, 107 S.Ct. 805

(1987) (finding that Congress intended Clean Water Act to

establish all-encompassing program of water-pollution regulation

where Act applied to all point sources and virtually all bodies

of water) and Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691,
104 S.Ct. 2694 (1984) (deciding FCC occupied field where it

pervasively regulated importation of distant broadcast signals,

signal carriage generally, and technical standards) with Pac. Gas

& Elec. v. St. Energy Resources. Conserv., 461 U.S. 19, 103 S.Ct.

1713 (1983) (finding that despite comprehensiveness in safety
regulations in Atomic Energy Act of 1954, Congress intended

states to retain its other traditional roles in regulating

utilities, and concluding it almost inconceivable that Congress

would leave regulatory vacuum).

10
The statute provides for enforcement in a civil action
in rem and also in a civil action in personam. With respect to
the former, the jurisdiction of the federal courts is exclusive,
but with respect to the latter, there is concurrent jurisdiction
with the state courts.

13
 Because the language of the Act is permissive -- i.e., the

Act uses the permissive "may" rather than exclusive "must" with

respect to its enforcement procedures -- and because the Act is

silent with respect to self-help repossession and resale, we are

drawn to the conclusion that the federal law is not so pervasive

that it thoroughly occupies the field. This reasoning accords

with that of a majority of the cases and treatises which have

squarely addressed the question. See Merchants & Marine Bank v.

T.E. Welles, 289 F.2d 188, 194 (5th Cir. 1961) ("With all of its

statutory protections, [the Ship Mortgage Act] still has

infirmities in contrast to land-based securities" and "the

approach ought to be one of harmony with usual security

principles."); First Federal Sav. F.S.B. v. M/Y Sweet Retreat,
844 F.Supp. 99, 102 (D.R.I. 1994) ("The text of the act indicates

that it is not exclusive."); Maryland National Bank v. Darovec,

820 F.Supp. 1083, 1087 (N.D.Ill. 1993) (concluding that the Act

"stops short of pre-empting extra-judicial repossessions and

private sales"); Pee Dee State Bank v. The F/V Wild Turkey, 1992
A.M.C. (D.S.C. 1991); Southland Financial Corp. v. O/S MARY
EVELYN, 248 F.Supp. 520, 522 (E.D. La. 1965); Chemical Bank v.

United States Lines, S.A. (In Re McLean Ind.), 132 B.R. 271

(Bankr. S.D.N.Y. 1991); Price v. Seattle-First Nat'l Bank, 582

F.Supp. 1568 (W.D. Wash. 1983); see also 8 Benedict on Admiralty

§1.06[C] (7th ed. 1995); Grant, Gilmore & Charles L. Black, Jr.,

The Law of Admiralty, 721 (2d ed. 1975).

14
 The appellant contends that this circuit's precedent

controls and that such precedent has held that the Ship Mortgage

Act is comprehensive and pre-empts state law enforcement

remedies. She cites two cases, J. Ray McDermott & Co., Inc. v.

The Vessel Morning Star, 457 F.2d 815 (5th Cir.) (en banc),11

cert. denied, 409 U.S. 948, 93 S.Ct. 292 (1972), and Nat G.

Harrison Over. Corp. v. American Barge Sun Coaster, 475 F.2d 504

(5th Cir. 1974). However, both cases can be distinguished from

the case at bar.

In J. Ray McDermott, the en banc court addressed whether the
Ship Mortgage Act preempted state law with respect to federal

judicial sales and the resulting deficiency judgments. Id. at

816-17. In that case there was a judicial foreclosure and a

public, judicially-supervised sale; there was no appraisal before

sale. The district court granted a deficiency judgment in favor

of the mortgagee after the judicial sale of a vessel. Id. at

816. The panel of the circuit court on appeal concluded that no

deficiency judgment was due because Louisiana law provided that
the sale of mortgaged property without an appraisal and under a

waiver of appraisal fully satisfies and discharges the debt and

the personal obligation of the debtor, thus forfeiting any

deficiency judgment. Disagreeing with that opinion, the en banc

court concluded that there was no void in the statutory scheme

11
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.
1981) (en banc), this court adopted as binding precedent all of
the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981. Id. at 1209.

15
governing the judicial sale procedure such that supplementation

by state law could be allowed. Id. at 818. The en banc court

noted that the relevant federal statutes, 28 U.S.C.A. §§ 2001,

2004,12 provided all the necessary requisites for judicial sales.

Section 2001 specifically requires appraisal at judicially

supervised private sales, but there was no provision for an

appraisal in judicially-supervised public sales. Having

expressly provided for appraisal in one context and not in

another context, Congress implicitly excluded the necessity for

appraisal at public sales. The en banc court then concluded that

state law could not supplement the comprehensive federal

provisions for sales held pursuant to court order because state

and federal law conflicted. Id. at 818-19.
That holding does not control our decision in this case.

This is not a situation in which a party has attempted to

supplement the provisions governing the judicial sale of a

vessel. Rather, here the mortgagee has chosen to forego judicial

foreclosure and sale altogether, opting instead for a self-help
remedy. Here there is no direct conflict of law. Although the

provisions for judicially supervised sales might be

comprehensive, the statute is silent with regard to self-help

remedies which do not invoke judicial supervision.

12
These two sections, though not referenced in the Ship
Mortgage Act, govern judicial sales by federal courts.

16
 Despite the narrowness of its holding, the J. Ray McDermott

decision did employ broad language in its description of the

scope of the Ship Mortgage Act, specifically the following:

It is clear that Congress intended that the ready
availability of credit to support interstate commerce
should not be impeded by parochial limitations and that
the Act would wholly and completely supersede state law
and practice in every respect.

Id. at 818. Although J. Ray McDermott represents in effect an en

banc decision of this court (sitting then as the former Fifth

Circuit), the quoted language is dicta13 and is not controlling

in this case. J. Ray McDermott involved a judicially-supervised
foreclosure and a direct conflict between federal and state law.

Nor is Nat G. Harrison Overseas Corp., 475 F.2d 504 (5th

Cir. 1974), controlling. The issue in that case was whether the

federal court's deficiency judgment should be purged of interest

and or barred because the mortgage interest was usurious under

the laws of Georgia. The court concluded that U.S.C.A. §926(d)

(the substantive provision is now located at 46 U.S.C.A.

§31322(b)) controlled. That subsection specifically allowed for
"such rate of interest as is agreed by the parties" to the

preferred mortgage. The court noted that state law not only

introduced "'an undesirable lack of uniformity'" into the Act but

that application of state law "flatly conflict[ed] with Section

926(d)". 475 F.2d at 506. Again, though some language of this

case might imply that the Act preempts state law in every

13
See also other dicta to the opposite effect: "state law
may occasionally fill the gaps in an incomplete and less than
perfect maritime system." J. Ray McDermott, 457 F.2d at 818.

17
respect, that is not its holding. Like J. Ray McDermott, Nat G.

Harrison involved a direct conflict between federal and state

law.

Thus, neither J. Ray McDermott nor Nat G. Harrison foreclose

our holding that the Ship Mortgage Act is not pervasive; we hold

that the Act does leave room for the operation of state law self-

help remedies when authorized by contract. We acknowledge that

our holding is in conflict with Bank of American National Trust &

Savings Ass'n v. Fogle, 637 F.Supp. 305 (N.D. Cal. 1985), and

Nate Leasing Co., Inc. v. Wiggins, 789 P.2d 89 (Wash. 1990).
Contrary to our holding, the Fogle court held that the Ship

Mortgage Act exclusively governs all foreclosures of preferred

ship mortgages, and thus preempts any state law provisions

allowing for self-help, nonjudicial foreclosure sales. The Fogle

court reasoned that because the statute provided for private

sales as well as public sales within its procedures for

judicially supervised foreclosure, Congress necessarily intended

to preclude the use of self-help procedures which also include
private sale. In Nate Leasing, the Supreme Court of Washington

followed Fogle and relied upon the dicta in J. Ray McDermott,
which we have now disavowed.

In our opinion, the better reasoned cases support our

holding, and not that of Fogle and Nate Leasing. As noted above,

we see no direct conflict between the state law self-help

provisions and the federal scheme; we disagree with the Fogle

court's suggestion that Congress intended to preclude the use of

18
nonjudicial, self-help remedies merely because Congress permitted

private sales as well as public sales within its overall scheme

of judicially supervised foreclosures. Although the federal

scheme may well be comprehensive with respect to judicial

foreclosure, the Act is silent with respect to self-help

repossession and resale. As noted above, the self-help

repossession and resale procedure poses no threat to the

administration of the federal program, but rather is entirely

consistent with the congressional purpose. The congressional

purpose was to facilitate and promote financing for vessels, and

in particular to provide an effective means for enforcing ship

mortgages. We believe our holding is consistent with and

supportive of that purpose. Our holding merely recognizes the

availability of an optional remedy -- one which may be less

cumbersome and expensive in some circumstances14 -- in addition
to the remedies provided by the federal statute. Nor do we

believe our holding will undermine any congressional goal of

providing uniformity. Not only is the self-help remedy optional,
the relevant state law is now itself largely uniform as a result

of the widespread adoption of the Uniform Commercial Code.

Finally, our holding is supported by the permissive language

used by the federal statute in providing for its foreclosure

remedies. We note also that our holding is supported by leading

treatises on admiralty law. See 2 Benedict on Admiralty §70f

14
Of course, the self-help remedy could not affect
maritime liens, and thus will not be effective in many
situations.

19
(7th ed. 1995) (criticizing15 the reasoning in Fogle and the

dicta in J. Ray McDermott and indicating that the cases holding

that the federal judicial remedies are not exclusive appear to be

better reasoned). Accord, Grant Gilmore and Charles L. Black,

Jr., The Law of Admiralty, 718-27 (2d ed. 1975).16

For the foregoing reasons, we hold that the Ship Mortgage

Act does not prohibit a mortgagee's use of state law self-help

enforcement procedures when the parties have authorized those

procedures by contract.

AFFIRMED.

15
Benedict on Admiralty also recognizes that self-help
repossession and resale was "generally acknowledged as an
available remedy prior to the Fogle decision." Id. at n. 129.
16
In addition, we note that the Coast Guard regulations
apparently recognize the availability of self-help repossession
and resale remedies. See 46 C.F.R. §67.83 ("When title to a
documented vessel has passed by reason of an extra-judicial
repossession and sale, such passage must be established by
...."). Because we reach our interpretation of the Act
independently, we need not decide whether the Coast Guard
regulations are entitled to deference.

20