In the age of computers and digital media, the pen and paper still reign supreme—in most yacht transactions anyway. The yacht industry is one of the most “technologically averse” industries to work in. While a global economy increasingly connected by the internet has led to a gradual increase in cross-border yacht transactions, there has been less than comparable development in the use of digital closings in the yacht space. The primary reasons for this are two-fold.
First, professionals in the yacht space have been limited by external factors that may prevent them from being able to issue or accept digital closing documents. Flag states and registries, for example, are one of those external limiting factors, as many still require original or “wet ink” documents to register and flag a yacht. Second, there is a general lack of experience and comfort utilizing or accepting digital documents among yacht professionals because many just do not know whether the use of digital closing documents is ‘legal’ or will work.
Although we are still quite some time away from digital closings becoming the industry standard way to close yacht transactions, the goal of this article is to raise your awareness of a digital closing tool that you should consider making part of your closing toolkit, which could help you turn a seemingly difficult transaction (in terms of logistics and timing) into one with less road bumps.
Remote Online Notarization
One tool that is becoming more widely available and accepted in the industry is the use of remote online notarization, which allows a notary to affix their digital seal to a document where the notary and the participants are in different locations. Remote online notarization in the US requires the use of a specially commissioned notary known as a remote online notary (RON). Generally, a RON is required to use a digital signing room that has audio-video recording capabilities, allows for identity verification of the signer, and they are required to maintain audio-video records of the notarization process. You should be aware that the notarization process is more involved and more secure than simply hopping on your preferred video chat platform and having the participants execute the documents before a notary through digital means.
All RONs are Not the Same
RONs are authorised under the laws of their respective jurisdiction and the laws governing RON capabilities can vary significantly. For example, a Florida RON (as is the case in most US states), must use a specialized platform for identity verification of the participants. As of the date of this article, the participants must have a US Social Security Number (SSN) in order for the RON to verify their identities. The process normally involves the RON uploading the personal information of the participants to a third-party platform that then sends a short questionnaire to the participants to verify their identities based on public records. The participants then have a couple of minutes to correctly answer a majority of the questions or their identity verification fails and they are unable to have the RON notarize the document.
Virginia RONs Can Notarize Documents for Almost Anyone
On the other hand, Virginia RONs are not limited by the same identity verification process as Florida RONs. Virginia law provides for a remote online notarization procedure similar to a traditional’ notarization and is likely what you would envision as the process in your mind. A participant before a Virginia RON is not required to provide a US SSN to verify their identity, but instead is required to submit copies of their driver’s license or passport to the RON for review prior to the signing session and then during the signing session they are required to display their credentials in the recorded audio-video signing room, take an oath before the RON confirming their identity, and sign an affirmation attesting to their identity and the remote online notarization procedure.
Because Virginia RONs utilize a procedure for verifying the identity of the participants similar to a traditional in-person notarization, Virginia RONs have more flexibility on who they can notarize documents for. In the case of foreign nationals without a US SSN, Virginia RONs are not as restricted as RONs from other states and are generally able to notarize documents for them.
Be Careful, eNotarization is Not the Same
It is important to understand that remote online notarization should not be confused with eNotarization. The latter requires the notary to observe all the formalities of a traditional notarization (participants and notary physically present in the same room for identity verification), but the notary is affixing their digital seal to a digital document. While the result is ultimately the same, the process is totally different and a notary in an eNoatarization may not be credentialed as a RON. Be cautious of a party that proposes eNotarization handled by a notary that is not a RON as such notaries generally do not have the ability to notarize documents for participants not physically present before them.
Benefits of Remote Online Notarization
So, why should you care? Why not just keep doing things the way we have always done them? The simple answer is that transaction costs and time are significantly reduced with remote online notarization. In the case of many cross-border transactions, remote online notarization allows parties to forego the need to get local notaries (which in some countries can be a logistical nightmare) who require documents be prepared in their native language. The process virtually (pun absolutely intended) cuts out: (1) the need to have documents translated; (2) the subsequent requirement to have those translated documents apostilled; and (3) the need to utilize an international courier, which removes the risk the documents are delayed or worse —lost. These benefits result in notable cost reductions and can reduce document preparation and delivery times by a number of weeks in some circumstances.
Additionally, even if you are flagging a yacht with a registry that does not accept digital documents, remote online notarization can still make your transaction exponentially smoother. How, you might ask? Well, let’s assume you have a buyer or seller who is unable to appear before a traditional notary. You can have that person (or entity) issue a power of attorney before the RON to nominate someone who can sign the original documents needed for the transaction on their behalf. It can be as simple as that!
I would caution, however, that some registries may ask for an “original” power of attorney. So, I recommend you reach out to the registry beforehand to confirm this is okay before proceeding. In my experience though, many registries will accept digital powers of attorney so long as the document was executed in accordance with the laws of the jurisdiction.
To conclude, remote online notarization provides avenues previously unavailable for closing cross-border yacht transactions. The reduction in costs and time to complete a transaction are significant and worth the time investment to do your own research to explore whether remote online notarization will work for you on a particular transaction.
Adrian Karborani is an attorney in the Yacht Law, Corporate, Real Estate, and Litigation Departments of Robert Allen Law, an international boutique law firm with a dynamic practice in the yacht industry. For more information about Adrian and Robert Allen Law, please visit www.robertallenlaw.com.