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Click here for the full text of this decision FACTS:Two cruise ships, the M/V ENCHANTED ISLE and the M/V ENCHANTED CAPRI were seized in New Orleans after their owner, Commodore, filed for bankruptcy. Several creditors asserted maritime liens against the vessels. Under 46 U.S.C. ��31301 and 31342, anyone furnishing “repairs, supplies, towage, dry-dock, maritime railway “or other necessaries” to a foreign or domestic vessel has a maritime lien on that vessel. Maritime liens for “necessaries” are used to secure creditors who provide supplies that are necessary to keep the ship going. In multiple proceedings, Effjohn International Cruise Holdings, Cusimano Produce Co. and two sureties were unable to bring various claims for maritime liens. Effjohn brought three claims against the ISLE. It brought two together. Then, in a motion to intervene, it sought to bring a third claim for a maritime lien it acquired from former ISLE creditors by assignment and subrogation for approximately 50 cents on the dollar. The motion was denied. Effjohn was successful, however, in securing a default judgment against the Commodore affiliate that owned the ISLE. Cusimano Produce also attempted to intervene to collect approximately $65,000 for produce it supplied the ISLE. When that motion was denied, it moved to set aside the default judgment against the ISLE’s owner, and that motion, too, was denied. Two sureties that issued a Federal Maritime Commission Passenger Vessel Surety Bond that covered pre-paid passenger tickets for both the ISLE and the CAPRI also claimed a maritime lien for necessaries. A consolidated appeal followed. HOLDING:Affirmed. Despite Effjohn’s attempt to call the addition of its third claim an amendment, the court rules it was indeed an attempt to intervene. A court is not bound by how a party labels motions, the court notes, but, more than that, Effjohn was asserting claims it obtained by parties who, if they were brining the claims themselves, would have to do so through intervention. The motion for intervention was not timely, either, the court rules. Whether a motion for intervention is timely is based on a four-part test: 1. how long the putative intervenor knew, or reasonably should have known, of its stake in the action; 2. the prejudice, if any, the existing parties may suffer because the putative intervenor failed to intervene when it knew, or reasonably should have known, of its stake; 3. the prejudice, if any, the putative intervenor may suffer if intervention is not allowed; and 4. any unusual circumstances weighing in favor of, or against, finding timeliness. The court rules only the third element could weigh in favor of intervention, all the rest militate against it. The court rejects Effjohn’s attempt to excuse its delay by citing the events of Sept. 11, 2001, and the fact that its New York office was handling the necessary paperwork. Several of the claims were received by Effjohn well in advance of that date. The court finds Cusimano failed to satisfy the three-part test for good cause to set aside a default judgment: 1. whether the failure to act was willful; 2. whether setting the default aside would prejudice the adversary; and 3. whether a meritorious claim has been presented. Cusimano had actual notice in the form of knowledge of the related action against the CAPRI, a letter from Effjohn about its subrogation claims and a disclosure statement from the ISLE. Though Cusimano had a meritorious claim, the parties who timely filed would be prejudiced by further delay. Because the court determines the district court was within its discretion to refuse to set aside the default, it does not reach the intervention. The court cites with approval the holding in Patricia Haynes & Associates Inc. v. M/V BIG RED BOAT II 2002 A.M.C. 1722(S.D.N.Y. 2002), that merely agreeing to refund passenger monies for unperformed cruises on the vessel was not a maritime contract and thus could not give rise to a maritime lien. “The service to be performed under the bond (reimbursing those who made a deposit for a cruise but never sail) is non-maritime in nature. The bond is a consumer protection measure, with no direct relationship to the operation of the vessel. The bond does not relate to the carriage of passengers; it merely makes good on the owners’ financial obligations by reimbursing the passengers if the cruise is not performed. In sum, there is nothing inherently maritime about the Sureties’ business or the bond. Accordingly, it does not fall within admiralty jurisdiction.” Nor do the sureties have a subrogated maritime lien through subrogation from the passengers their bond covered. The bond creates an executory contract, and the breach of an executory contract does not create a maritime lien, the court holds. OPINION:Barksdale, Circuit Judge.; Smith and Barksdale, Circuit Judges, and DuPlantier, District Judge, sitting by designation.

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