Oliver et al v. M/V Barbary Coast et al

Filing 155

Order entered that upon consideration of the foregoing and the specific issues raised in Midsouths Objection, it is ORDERED that Substitute Custodian Southern Marine shall, on or before November 28, 2011, file a Supplement to its motion (Doc. 137) as set out. No further briefing shall be permitted. The Court will take Southern Marines Motion for Disbursement of Custodial Fees, as Supplemented, under submission on November 29, 2011, after which time an Order formally ruling on the requested fees shall issue. Signed by Judge Kristi K. DuBose on 11/18/2011. (mca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARC E. OLIVER, d/b/a GULF COAST
ENVIRONMENTAL AND RECOVERY,
And T.M. JEMISON CONSTRUCTION
CO. INC. d/b/a JEMISON MARINE, INC.,
Plaintiffs,

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CA 11-0223-KD-C

MIDSOUTH BANK, N.A.,
Plaintiff/Counter-Defendant

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IN ADMIRALTY
In Personam and In Rem

vs.

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M/V BARBARY COAST, her engines,
tackle, furniture, and appurtenances, etc.,
:
In Rem, and RODD CAIRNS, an
individual, and ATCHAFALAYA MARINE,:
LLC, In personam,
Defendants/Counter-Plaintiffs/
Third-Party Plaintiffs,
:
vs.

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EAGLE RIVER TOWING, L.L.C., p/k/a or
a/k/a EAGLE INLAND TOWING,
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA,
LOUISIANA LIMESTONE & LOGISTICS,
L.L.C., and CURTIS BUFORD,
Third-Party Defendants.

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ORDER
This matter is before the Court on Substitute Custodian Southern Marine’s “Motion to
Disburse Custodial Fees” (Doc. 121) and Intervenor-Plaintiff Midsouth Bank, N.A.’s Objection
thereto (Doc. 137).
In its motion, Southern Marine seeks recovery of the following custodial fees: 1) $340.00
for the installation of a high water bilge alarm; 2) $1,055.00 for the removal of excessive water/oil
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mixture in the bilge; 3) $32,500.00 for boom rental; 4) $32,500.00 for storage warfage; and 5)
$265.00 for the costs to list the US Marshal as an additional insured on the insurance policy.
Southern Marine’s request for payment for the high water bilge alarm and removal of
excessive water/oil mixture were previously approved by U.S. Magistrate Judge Cassady, and
Midsouth has no objection to same; thus, these expenses appear to be recoverable. Additionally,
Midsouth has not objected to the costs for Southern Marine to list the U.S. Marshal as an additional
insured and thus, that expense appears to be unopposed and recoverable. Moreover, in its
Objection, Midsouth contends that Southern Marine “should have to account” for “unresolved
claims” consisting of two (2) broken antennas on the vessel and the difference in the amounts of
diesel fuel on the vessel. (Doc. 137 at 8-9). Midsouth has not established any entitlement, as
purchaser of the vessel, to an accounting for such “unresolved claims.” As such, to the extent
Midsouth seeks these claims as in custodia legis expenses, they do not appear to be recoverable.
Further, Southern Marine has provided no explanation for the expenses associated with the
boom rental or storage warfage. Midsouth objects to same, claiming that these expenses are
excessive, lack merit, and have been requested in an untimely manner. The record reveals as
well, that U.S. Magistrate Judge Cassady did not previously approve these expenses. Southern
Marine bears the burden of establishing that the expenses were “reasonably incurred” during
custodia legis and “necessary to preserve the value of the res” (i.e., for the common benefit of
those interested in the fund administered by the Court such that they should be paid from the fund
as an “expense of justice”) -- particularly given that it did not previously obtain authorization from
the Court. See, e.g., Adams Offshore, Ltd. v. Con-Dive, LLC, Slip Copy, 2011 WL 1882640, *6
(S.D. Al. May 17, 2011); Standard Fed. Bank, N.A. v. M/Y PLEASURES, 2003 WL 22722077 ,

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*4-5 (S.D. Fla. Jul. 24, 2003); Oil Shipping (Bunkering) B.V. v. Sonmez Denizcilik, 10 F.3d 176,
182-183 (3rd Cir. 1993); Bender Welding & Machine Co., Inc. v. M/V SOVEREIGN OPAL, 415
F. Supp. 772, 773 (S.D. Ala. 1976).
Accordingly, upon consideration of the foregoing and the specific issues raised in
Midsouth’s Objection, it is ORDERED that Substitute Custodian Southern Marine shall, on or
before November 28, 2011, file a Supplement to its motion (Doc. 137) explaining the basis for the
requested boom and storage warfage expenses, their “necessary” nature, and how such expenses
were “reasonably incurred” (including attaching as exhibits any/all documentation in support of its
claim). No further briefing shall be permitted.
The Court will take Southern Marine’s Motion for Disbursement of Custodial Fees, as
Supplemented, under submission on November 29, 2011, after which time an Order formally
ruling on the requested fees shall issue.
DONE and ORDERED this the 18th day of November 2011.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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