                                  UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                     No. 18-1236


SPM MANAGEMENT LLC, trading as Salt Ponds Marina Resort; NORTH 37
MANAGEMENT LLC,

                   Plaintiffs - Appellees,

             v.

MOTOR YACHT SEA AYRE V, OFFICIAL NO. 923838, a/k/a SEA AYRE IV,
her engines, tackle, equipment, etc., in rem,

                   Defendant - Appellant,

             and

DOLORES K. AYRES; ELIZABETH AYRES KERR,

                   Claimants - Appellants,


LECLAIR RYAN, A Professional Corporation,

                   Movant.


Appeal from the United States District Court for the Eastern District of Virginia, at
Newport News. Robert G. Doumar, Senior District Judge. (4:16-cv-00168-RGD-RJK)


Submitted: November 30, 2018                            Decided: December 20, 2018


Before DUNCAN and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.


Walter D. Kelley, Jr., HAUSFELD, LLP, Washington, D.C.; James S. McNider, III,
JAMES S. MCNIDER, III, PLC, Hampton, Virginia, for Appellants. Lisa M. Ernest,
FIDELITY NATIONAL LAW GROUP, Vienna, Virginia; Mark T. Coberly, W. Thomas
Chappell, VANDEVENTER BLACK LLP, Norfolk, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Dolores K. Ayres and Elizabeth Ayres Kerr (“Claimants”) appeal the district

court’s order awarding a maritime lien against their yacht, the Sea Ayre V. The district

court held that Plaintiffs SPM Management LLC and North 37 Management LLC had

established their right to charge the Sea Ayre V for dockage, and the court imposed a

maritime lien on the yacht in the amount of $10,124.80. We have reviewed the record

and find no reversible error. 1 Accordingly, we affirm the order and judgment of the

district court.

       “Compensation for wharfage may be claimed upon an express or an implied

contract, . . . and when the wharf is used without any . . . agreement, the contract is

implied, and the proprietor is entitled to recover what is just and reasonable for the use of

his property and the benefit conferred.” Ex parte Easton, 95 U.S. 68, 73 (1877); see

Humphreys Rys., Inc. v. F/V Nils S, 603 F. Supp. 95, 97-99 (E.D. Va. 1984). An implied

wharfage contract “gives to the proprietor of the wharf a maritime lien on the ship or

vessel for his security,” pursuant to 46 U.S.C. § 31342 (2012). Easton, 95 U.S. at 75-76.

Plaintiffs must have the right to rent the berth occupied by the seized vessel. See Port

Laudania Terminal, Inc. v. Barge Sun Coaster, 453 F.2d 1308, 1309 (5th Cir. 1972).

       1
         In the appeal of a bench trial, we review findings of fact for clear error and
conclusions of law de novo. See Tatum v. RJR Pension Inv. Comm., 761 F.3d 346, 357
(4th Cir. 2014). The Supreme Court has recognized that “[p]iers and docks [are]
consistently deemed extensions of land” and that “[t]he gangplank has served as a rough
dividing line between the state and maritime regimes.” Victory Carriers, Inc. v. Law,
404 U.S. 202, 206-07 (1971). Thus, the district court correctly applied Virginia state law
to determine ownership of the Additional Land 15 parcel.


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       First, Claimants contest Plaintiffs’ implied dockage contract by arguing that

Plaintiffs failed to adequately establish that the T-head floating dock was in fact located

within the Additional Land 15 parcel. The district court found that “the Western half of

the T-head is clearly outside Units E-1 through E-8 and inside Additional Land 15. Any

boat docked at the T-head would thus be located within Additional Land 15 and tie up to

that portion of the floating pier located within Additional Land 15.” (J.A. 979; see

J.A. 567, 598). 2 Contrary to Claimants’ assertion, the district court correctly relied on the

recorded plat of E Dock without contemporary survey evidence of the T-head’s location.

Claimants point to language indicating that the plat is “for convenience of reference

only,” (J.A. 499), but that language merely provides that the plat is subject to change, not

that the plat is imprecise. Furthermore, Claimants’ own authority recognizes that a

recorded plat is sufficient to “locate[ ] the land in dispute within the clear description of

[the] deed.” Smith v. Bailey, 127 S.E. 89, 92 (Va. 1925).

       Claimants also argue that Plaintiffs failed “to locate E Dock vis-à-vis [Additional

Land 15] during the relevant time period” because “E Dock is a floating structure, and the

courts have long recognized that waterfronts are dynamic environments where things can

and do shift over time.” (Appellants’ Br. at 12 n.4). But as the district court held, “[t]he

plat plainly uses dotted lines to reflect the location of the floating pier.” (J.A. 978-79).

Moreover, the plat clearly shows the measurements and latitude and longitude boundary

lines of the respective properties. Despite the inherent uncertainty of the waterfront

       2
           “J.A.” refers to the joint appendix filed by the parties.


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environment, the record plainly shows that the seaward side of the T-head floating dock

was located within the Additional Land 15 parcel. Therefore, it was not clear error for

the district court to find that the Sea Ayre V was docked in the Additional Land 15 parcel.

       Second, Claimants contend that even if the Sea Ayre V was docked in the

Additional Land 15 parcel, Plaintiffs have not established their ownership of that parcel,

nullifying the implied dockage contract.      Claimants raise two distinct arguments in

support of this claim: that Claimants in fact own the parcel as a fixture or an accession to

E Dock, and that no party can assert an ownership claim to any portion of E Dock due to

the Commonwealth of Virginia’s sovereign ownership of subaqueous lands. Claimants

did not raise the former argument at trial, so it was not preserved for appeal. See

Helton v. AT&T, Inc., 709 F.3d 343, 360 (4th Cir. 2013); United States v. One 1971

Mercedes Benz, 542 F.2d 912, 915 (4th Cir. 1976).

       With regard to the latter argument, the Commonwealth owns the subaqueous land

within its jurisdiction, Va. Code Ann. § 28.2-1200 (2016), and is entitled to control

stationary objects above the subaqueous bottom, Virginia Marine Resources Commission

v. Chincoteague Inn, 757 S.E.2d 1, 9-10 (Va. 2014). But the Commonwealth also has

liberal authority to issue permits for projects over its subaqueous lands. Va. Code Ann.

§§ 28.2-1203, 1204, 1205 (2016). Thus, Plaintiffs’ ownership claim to the Additional

Land 15 parcel does not implicate the subaqueous bed of the waterway but rather the

water area above it, as designated in the recorded plat and reflected in the chain of title

presented at trial. As the district court correctly held, the Commonwealth’s ownership of

subaqueous land does not prevent Plaintiffs from asserting an implied dockage contract.

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To the contrary, the record supports the district court’s conclusion that “Plaintiffs

presented perfect paper title that fixed the boundaries of all parties’ real property to the

land and improvements.” (J.A. 979). Plaintiffs have presented undisputed lay, expert,

and written testimony showing that they are the current record title owner of the

Additional Land 15 parcel. As the district court noted, Claimants could have disputed

this evidence or filed a quiet title action, but they have not done so. Thus, Plaintiffs are

entitled to an implied dockage contract and maritime lien to recover the unpaid rent. See

Easton, 95 U.S. at 73; see also 46 U.S.C. § 31342.

       Accordingly, we affirm the order and judgment of the district court. We dispense

with oral argument because the facts and legal contentions are adequately presented in

the materials before this court and argument would not aid the decisional process.

                                                                               AFFIRMED




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