James et al v. M/V Eagle Express, #961647 et al

Filing 27

MEMORANDUM OPINION AND ORDER that motion to vacate arrest of vessel 18 is GRANTED, the arrest of the vessel is VACATED and the appointment of Saunders Yachtworks as substitute custodian is RESCINDED. The Court FURTHER ORDERS that the in rem claims against the vessel alleged in the complaint be DISMISSED. Signed by Magistrate Judge William E. Cassady on 7/27/2012. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JENNIFER BUSSLER JAMES and
MELISSA BUSSLER MILLER,
Plaintiffs,

:
CA 12-423-MJ-C

:

v.

:

IN ADMIRALTY

M/V “EAGLE EXPRESS,” #961647, her
:
engines, tackle, furniture, and
appurtenances, etc., In Rem, and GUY H. :
BUSSLER, an individual, EAGLE EXPRESS
CHARTERS, L.L.C., a Mississippi limited :
liability company, and WELLS FARGO
BANK, NATIONAL ASSOCIATION,
:
successor-in-interest to Southeast Bank,
In Personam,
:
Defendants.

:
MEMORANDUM OPINION AND ORDER

Now before the Court is Defendant Eagle Express Charters, L.L.C.’s motion to
vacate the arrest of the M/V “EAGLE EXPRESS” (Official No. 961647) (“the vessel”),
pursuant to Supplemental Admiralty Rule E(4)(f), and brief in support (Docs. 18 & 19),
both filed July 10, 2012; the plaintiffs’ response and brief in opposition (Docs. 21 & 22),
both filed July 18, 2012; and Eagle Express Charters’ reply (Doc. 25), filed July 19, 2012.
A hearing on the motion was conducted by the undersigned on July 20, 2012, and after
a careful review of the parties’ filings and presentations at that hearing, the motion is
GRANTED.
While the Court retains jurisdiction over the in personam claims in this matter
pursuant to 28 U.S.C. § 1332, the in rem claims against the vessel are DISMISSED.

The

arrest of the vessel (see Docs. 12, 13, 15) is VACATED, and accordingly, the
appointment of Saunders Yachtworks as substitute custodian (see Doc. 11) is
RESCINDED. 1

As the parties are no doubt aware, this case was randomly assigned to the
undersigned for all purposes, including trial. (See Doc. 6; see also id. (“In accordance with 28
U.S.C. § 636(c), the Magistrate Judges of this District Court have been designated to conduct any
and all proceedings in a civil case, including a jury or non-jury trial, and to order the entry of a
final judgment, upon the consent of all parties.”).) Inasmuch as the parties, to date, have not
returned to the Clerk of Court a Request for Reassignment to a United States District Judge (see
id.), there presently exists implicit consent to the undersigned conducting all proceedings in this
case. See Roell v. Withrow, 538 U.S. 580, 590 (2003) (“We think the better rule is to accept
implied consent where, as here, the litigant or counsel was made aware of the need for consent
and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate
Judge. Inferring consent in these circumstances thus checks the risk of gamesmanship by
depriving parties of the luxury of waiting for the outcome before denying the magistrate
judge’s authority. Judicial efficiency is served; the Article III right is substantially honored.”);
cf. Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345, 1350-51 (11th Cir. 2007) (finding that an
extended period “of continual participation in pretrial proceedings justifies the inference of
consent from a litigant aware of the need to consent”).
1

Implicit consent notwithstanding, a United States Magistrate Judge, after granting a Writ
of Seizure, possess the authority to vacate the seizure of a vessel and order the immediate
release of a vessel. The procedural background provided by the Fifth Circuit in Bargecarib Inc.
v. Offshore Supply Ships Inc., 168 F.3d 227 (5th Cir. 1999) (on appeal from the Southern District of
Texas), is informative in this regard:
On July 10, BargeCarib filed a Verified Complaint alleging that Offshore
breached the Charter and asserting a maritime lien on the vessel to secure the
performance of the Charter. The complaint asserted an in rem claim against the
Sovereign and an in personam claim against Offshore. The magistrate judge
granted a Writ of Seizure, and the U.S. Marshal arrested the Sovereign.
Offshore filed an emergency motion to vacate the arrest, and Global filed various
motions, including an emergency motion to vacate the arrest and dismiss
BargeCarib’s complaint.
The magistrate judge held a hearing to allow BargeCarib to show probable cause
for the arrest, and found that BargeCarib’s Complaint was factually inaccurate
[because there was no present demand on the defendant]. The magistrate judge
ordered vacature of the seizure and immediate release of the vessel. BargeCarib
objected, claiming that vacating the order was a dispositive action beyond the

2

Applicable Background
On June 28, 2012, the plaintiffs, two sisters, filed their verified complaint (Doc. 1)
to enforce the judgment of the Chancery Court of Harrison County, Mississippi, in In
the Matter of the Estate of Lowell Edward Bussler, regarding the estate of the their deceased
father, against Defendant Guy Bussler, their brother, in the amount of $323,235.33 (id., ¶
12; see also id., ¶¶ 9-14). 2

The verified complaint asserts two bases for jurisdiction:

scope of the magistrate judge’s authority.
released the Sovereign.

The magistrate judge disagreed, and

BargeCarib appealed the magistrate judge’s order to the district court. The
district court vacated the magistrate judge’s order vacating seizure. BargeCarib
then moved for return of the Sovereign. Offshore and Global moved for
reconsideration and objected to the return of the vessel. The district court
granted the motion to reconsider. After reviewing the magistrate judge’s order
de novo, the district court entered an order accepting and adopting the magistrate
judge’s order vacating seizure and denying BargeCarib’s motion for return of the
vessel. . . .
Id. at 229 (footnotes omitted); see also Taino Lines, Inc. v. M/V Constance Pan Atl., 982 F.2d 20, 22
(1st Cir. 1992) (noting that the Magistrate Judge issued an order directing that the vessel be
arrested, pursuant to Supplemental Admiralty Rule C(3); appointed a substitute custodian; and
after conducting a post-arrest hearing, ordered the defendants to post security in a substantial
amount to obtain release of the vessel, pursuant to Supplemental Admiralty Rule E(5)).
Further, in Merchants National Bank of Mobile v. Dredge General G. L. Gillespie, 663 F.2d
1338 (5th Cir. Unit A Dec. 1981)—in which the Fifth Circuit affirmed the constitutionality of
Supplemental Admiralty Rules C and E, concerning in rem seizure of a vessel without a
preliminary judicial hearing, see id. at 1338—Judge Brown noted that “[s]eizure of a vessel
pursuant to a valid lien has been necessary for centuries due to the wandering nature of a ship
in commerce,” and “it is questionable whether a judge or magistrate on a pre-arrest basis could
fairly consider complicated transactions bearing on the ultimate enforcement of the asserted
maritime lien,” id. at 1344 (emphasis added). Neither Rule C nor Rule E mentions “judge” or
“magistrate”; both rules speak only in terms of “the court.” Thus, this decision provides at
least implicit authority for a Magistrate Judge to act on behalf of “the court” in regard to Rules
C and E.
The Chancery Court entered an order in October, 2011 “enjoining Guy Bussler
from transferring or encumbering any interest in inter alia his ownership of Eagle Express
2

3

federal question, pursuant to § 1331—“specifically the existence of a quasi-maritime lien
pursuant to 46 U.S.C. Section 31321”—and complete diversity of the parties, pursuant to
§ 1332.

(Id., ¶¶ 1-2.) Upon the filing of the verified complaint, the Court issued an

order granting a motion to arrest the vessel (Doc. 12; see also Doc. 4), an order
appointing Saunders Yachtworks substitute custodian (Doc. 11; see also Doc. 5), and an
order authorizing the substitute custodian to relocate the vessel to its shipyard (Doc. 15;
see also Doc. 14). 3

On July 10, 2012, Defendant Eagle Express Charters, a Mississippi

limited liability company, filed a verified statement of right or interest in the vessel
(Doc. 16), pursuant to Supplemental Admiralty Rule C(6)(a), and provided the Affidavit
of Kim F. Fulton, one of its members, in support (Doc. 17). Eagle Express also moved,
on that date, for vacation of the arrest of the vessel.

Charters, L.L.C.” and, in November, 2011, a judgment recognizing a collateral assignment upon
the vessel “enjoining Guy Bussler from transferring or encumbering any interest in inter alia his
ownership of Eagle Express Charters[.]” (Id., ¶¶ 9-10.) A notice of claim of lien, based on the
November, 2011 Judgment, was filed with the United States Coast Guard in December, 2011.
(See id., ¶ 11.)
The plaintiffs’ motion for arrest of the vessel (Doc. 4), filed simultaneously with
their verified complaint, requested that—“[p]ursuant to Supplemental Admiralty Rule C(3)(a)”
(id. at 1), which solely addresses arrest of a vessel or other property subject to an action—the
vessel be arrested “and/or” the Court issue a writ of attachment. Despite any confusion
caused by the motion, the plaintiffs did provide a proposed order directing issuance of the writ
of attachment and/or summons pursuant to Supplemental Admiralty Rule B(1) and Local
Admiralty Rule 4. (See Doc. 4-3; see also Doc. 4-4.) The Court’s order granting the motion
(Doc. 12), however, only provided for arrest of the vessel. Nonetheless, the parties have
briefed the Rule B attachment issue, which was also argued at the July 20, 2012 Hearing. And
because the Court herein finds that the plaintiffs lack a valid prima facie admiralty claim and,
thus, they are not entitled to a Rule B attachment, any inadvertent error resulting in the
plaintiffs not receiving an order directing issuance of a writ of attachment and/or summons
pursuant to Supplemental Admiralty Rule B(1) and Local Admiralty Rule 4 is harmless.
3

4

Analysis
A.

Eagle Express Charters does not lack standing to move to vacate the arrest
of the vessel.

Despite failing to brief the issue, the plaintiffs raised at the hearing the possibility
that, due to one of its two 50% owners (Guy Bussler) absconding to Costa Rica, Eagle
Express Charters was powerless to authorize a defense in this lawsuit, including filing
its motion to vacate the arrest of the vessel. Eagle Express Charters, 4 however, has
provided its operating agreement, which provides in part that:
[its] business shall be managed by its Membership, and the Members
acknowledge that every Member is an agent of the Company for purposes
of conducting its business and affairs, and the act of any Member,
including, but not limited to, the execution in the name of the Company of
any instrument for apparently carrying on in the usual way the business
or affairs of the Company, binds the Company . . . .
(Doc. 26, Ex. A, Eagle Express Charters, LLC Limited Liability Company Agreement, ¶
VI.A.)
The operating agreement goes on to provide that certain actions, including
entering into a contract obligating the Company to pay an amount greater than $1,000,
may not be accomplished by a Member acting alone.

However, for purposes of

deciding this motion—and given the circumstances here: a Member of the Company
attempting to vacate the arrest of a vessel that is the Company’s primary asset—the

The limited liability company was formed on March 30, 2004 when Bussler and
Fulton, who each “own 50% of all of the issued and outstanding membership interest” in the
company, executed an operating agreement, which “has not been modified or amended and
remains in full force and effect.” (Doc. 26, July 20, 2012 Fulton Aff., ¶¶ 1-2.)
4

5

Court refuses to speculate as to the agreement between Eagle Express Charters and its
counsel, especially where, relatedly, the operating agreement provides a mechanism for
Members to take “[a]ction required or permitted by applicable law or this Agreement to
be taken at a Members’ meeting” without first conducting a meeting. (See id., ¶ VI.C.)
Therefore, the Court finds that Eagle Express Charters does not lack standing to assert
this motion.
B.

Because the Court lacks in rem jurisdiction over the vessel, its arrest, or
any attachment against it, must be vacated.

There were initially three grounds to keep the vessel under arrest: (1) the
plaintiffs claim a preferred mortgage in the vessel; (2) the plaintiffs have a
“quasi-maritime lien” against the vessel; and (3) the plaintiffs attached the vessel
pursuant to Supplemental Admiralty Rule B.

Because the plaintiffs have conceded (see

Doc. 22 at 7-8) that Eagle Express Charters is correct that their claim of a preferred
mortgage in the vessel “is manifestly without merit” (Doc. 18, ¶¶ 11-12), the Court will
only address the second two grounds.
1.

The state-court-imposed lien against the vessel is unlike a maritime
lien and, as such, cannot be enforced through the arrest of the
vessel in rem.

Judge Rosenbaum, in S & S Diesel Marine Services, Inc. v. M/V F-TROOP, No.
11–60020–CIV, 2011 WL 1899402 (S.D. Fla. May 18, 2011), provided a comprehensive
framework to utilize when determining whether the arrest of a vessel should be
vacated:

6

“A maritime lien is a special property right in a ship given to a creditor by
law as security for a debt or claim, and it attaches the moment the debt
arises.” Crimson Yachts v. Betty Lyn II Motor Yacht, 603 F.3d 864, 868 (11th
Cir. 2010) (internal quotation marks omitted). Maritime liens differ from
common-law liens in that a maritime lien is not merely a security device to
be foreclosed upon by default but, rather, the maritime lien converts the
vessel into the obligor and permits injured parties to proceed against it
directly. Id. The arrest of a vessel in rem is effectuated to enforce a
maritime lien in favor of the party suing the vessel and seeking the arrest.
Industria Nacional Del Papel, CA v. M/V Albert F, 730 F.2d 622, 625 (11th Cir.
1984) (“A court obtains in rem jurisdiction over a vessel when a maritime
lien attaches to the vessel.”).
Following the arrest of a vessel, the owner or other person claiming a right
to the vessel may, pursuant to Supplemental Admiralty Rule E(4)(f), seek
for the court to conduct a hearing and ultimately vacate the arrest. In
this regard, Supplemental Admiralty Rule E(4)(f) provides,
Whenever property is arrested or attached, any person claiming
an interest in it shall be entitled to a prompt hearing at which the
plaintiff shall be required to show why the arrest or attachment
should not be vacated or other relief granted consistent with these
rules.
The purpose of the Rule E(4)(f) hearing is to “afford due process to a
shipowner whose vessel has been arrested without the benefit of a
post-arrest hearing.” Linea Naviera De Cabotaje, C.A. v. Mar Caribe De
Navegacion, C.A., 1999 WL 33218589 at *2 (M.D. Fla. Nov. 17, 1999) (citing
Amstar Corp. v. S/SAlexandros T., 664 F.2d 904, 910–12 (4th Cir. 1981)).
As the Supplemental Admiralty rules do not specify the form of the
post-arrest hearing, the details of the proceeding are left to the Court’s
discretion. Salazar v. Atlantic Sun, 881 F.2d 73, 79 (3d Cir. 1989).
Nevertheless,
[t]he post-arrest hearing is not intended to resolve definitively the
dispute between the parties, but only to make a preliminary
determination whether there were reasonable grounds for issuing
the arrest warrant, and if so, to fix an appropriate bond.
Salazar, 881 F.2d at 79; 20th Century Fox Film Corp. v. M.V. Ship Agencies,
Inc., 992 F. Supp. 1423, 1427 (M.D. Fla. 1997) (quoting Salazar, 881 F.2d at
7

79); George v. A 2005 Donzi Motor Yacht, Hull Identification Number DNAFA
008A505, 2009 WL 3417707, at *1 (S.D. Fla. Oct. 22, 2009) (quoting Salazar,
881 F.2d at 79). Nor should the court conduct a mini-trial at this stage of
the case. See PDS Gaming Corp. v. M/V Ocean Jewell of St. Petersburg, 2007
WL 2988798, at *1 (11th Cir. Oct. 15, 2007).
During the Rule E(4)(f) hearing, the plaintiff must shoulder the burden of
showing why the arrest should not be vacated. Automarine, S.A. v.
Asociacion Nacional de Agencias Distruidoras de Vehiculos, Inc., 2004 WL
5589735, at *1 (S.D. Fla. Aug. 5, 2004); Linea Naviera De Cabotaje, 1999 WL
33218589, at *2. Towards this end, the plaintiff must prove that the arrest
or attachment was supported by “reasonable grounds.” George, 2009 WL
3417707, at *1 (quoting 20th Century Fox Film Corp., 992 F. Supp. at 1427);
Linea Naviera De Cabotaje, 1999 WL 33218589, at *2; Danmar Lines, Ltd. v.
Peticure, LLC, 2009 WL 2135794, at * 2 (N.D. Tex. July 15, 2009). The
plaintiff’s burden is not onerous. George, 2009 WL 3417707, at *1. Rather,
the plaintiff must show only by a preponderance of the evidence that it is
entitled to a valid maritime lien. Id.; Seatrade Group N.V. v. 6,785.5 Metric
Tons of Cement, 2005 WL 3878026, at *2 (S.D. Tex. Dec. 7, 2005); Vinmar Int’l
Ltd. v. M/T Clipper Makishio, 2009 WL 6567104, at *1 (S.D. Tex. Dec. 9,
2009).
Title 46, United States Code, Section 31342 governs the establishment of
maritime liens and provides that “a person providing necessaries to a
vessel on the order of the owner or a person authorized by the owner—(1)
has a maritime lien on the vessel . . . .” The Eleventh Circuit has
construed this provision to require a plaintiff claiming a maritime lien to
prove that “(1) it provided ‘necessaries’ (2) at a reasonable price (3) to the
vessel (4) at the direction of the vessel’s owner or agent.” Sweet Pea
Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1249 (11th Cir. 2005) (citing
S.E.L. Maduro (Fla.), Inc. v. M/V Antonio De Gastaneta, 833 F.2d 1477,1482
(11th Cir. 1987)). The United States Code further defines the term
“necessaries” as including “repairs, supplies, towage, and the use of a dry
dock or marine railway.”
46 U.S.C. § 31301(4).
Taking into
consideration the burden on a plaintiff seeking to uphold an in rem arrest
based on a maritime lien, such a plaintiff must show by a preponderance
of the evidence each of the elements set forth by the Eleventh Circuit in
Sweet Pea.
In determining whether a plaintiff has satisfied its burden of showing
entitlement to a valid maritime lien, a court may consider evidence at the
post-arrest hearing that was not before it at the time of the original
8

attachment in order to determine whether reasonable grounds existed for
the arrest of the vessel. Linea Naviera De Cabotaje, 1999 WL 33218589 at *2.
This circumstance stems from the fact that the court's role at the time of
pre-judgment arrest involves quickly determining whether probable cause
exists for the attachment. Id. at *4. At pre-judgment arrest, a plaintiff
need only produce enough evidence to convince the court that reasonable
grounds exist to “stop the ship.” Id. In contrast, at a post-attachment
hearing, both parties can present additional evidence, including testimony
and affidavits, allowing the court to review a more complete record in
order to decide whether the arrest should continue or be vacated. Id.
Id. at *8-9 (emphasis added and some alteration to internal citations).
While the plaintiffs concede that the lien imposed by the Chancery Court is not a
maritime lien—which, based on the standard set forth above, should end this
inquiry—they rely on Provencher v. Binion & Sims, P.C., 401 F. Supp. 2d 740 (S.D. Tex.
2005), to show that a lien such as the one imposed by the Chancery Court can be
enforced through this Court’s in rem jurisdiction. (See Doc. 22 at 8-9.) The plaintiffs’
argument is unpersuasive.
First, the plaintiffs make no attempt to explain how their lien, which is
indisputably not a maritime lien, can be enforced like a maritime lien, through the
arrest of the vessel in rem.

See S & S Diesel Marine Servs., 2011 WL 1899402, at *8

(noting that “‘[a] maritime lien is a special property right in a ship given to a creditor by
law’” and that such liens “differ from common-law liens [because they] convert[] the
vessel into the obligor and permit[] injured parties to proceed against it directly”
through “[t]he arrest of a vessel in rem”) (quoting Crimson Yachts, 603 F.3d at 868)
(citations omitted and emphasis added); cf. World Fuel Servs., Inc. v. MAGDALENA

9

GREEN M/V, 464 Fed. App’x 339, 341 (5th Cir. Mar. 14, 2012) (per curiam) (“‘[T]he
[Federal Maritime Lien Act] is premised on the concept that a vessel is a distinct entity,
and therefore statutorily liable only for its own debts.’

See Equilease Corp. v. M/V

Sampson, 793 F.2d 598, 602 (5th Cir. 1986) (en banc) (‘The maritime lien concept thus
somewhat personifies a vessel as an entity with potential liabilities independent and
apart from the personal liability of its owner.’). As such, the MAGDALENA cannot be
held liable for other outstanding debts of SESL. Once the MAGDALENA’s debt was
paid, its liability to WFS was extinguished.”).
Moreover, assuming that a non-maritime lien can lead to the arrest of a vessel in
rem, 5 the lien imposed by the Chancery Court is not the same as the lien imposed by the
state court in Provencher.

There, the federal court stressed, repeatedly, that the

state-court judgment was an agreed judgment that clearly evidenced the parties’ intent
to grant a security interest in the vessel, see 401 F. Supp. 2d at 743 (“While the Agreed
Judgment may have been poorly written, the clear intention of the parties was to grant
Defendants a security interest in the Pamina, a documented vessel, to ensure payment
of Plaintiff’s debt.”) (emphasis added), and, as an agreed judgment, it differed from a
“regular state-court judgment” and could be enforced as if it was a contract between the
parties, see id. (“The fact that the Parties specifically mentioned the Pamina as security
for the debt owed to Defendants in an Agreed Judgment—not a regular state-court
The opinion in Provencher does not indicate whether the vessel at issue was
arrested in rem. Further, although it is likely that the court was proceeding under federal
question jurisdiction, there is no explicit indication of that in the court’s opinion.
5

10

judgment—distinguishes this case from those cases holding that a state-court judgment
cannot create a lien on a vessel.”) (citing Fee-Crayton Hardwood Co. v. Richardson-Warren
Co., 18 F.2d 617, 622-23 (W.D. La. 1927) (which the Provencher Court described as
“enforcing equitable lien arising from explicit contractual language”)) (emphasis in
original); see also id. at 743 n.1 (noting that “[t]he Supreme Court has also found that a
state-court judgment alone does not give rise to a maritime lien or even a judgment lien
on personal property” (citing The Lottawanna, 87 U.S. 201 (1873); other citations
omitted); 744 (owner of the vessel “specifically agreed to have the Agreed Judgment
recorded” pursuant to 46 U.S.C. § 31343); id. (“The Parties created a lien against the
Pamina in the Agreed Judgment . . . .”) (emphases added).
Thus, the plaintiffs have failed to satisfy their burden of showing entitlement to a
valid “maritime” lien.
2.

Attachment pursuant to Supplemental Admiralty Rule B fails
because the plaintiffs lack a valid prima facie admiralty claim
against Eagle Express Charters.

The plaintiffs next contend that the vessel should remain under arrest because it
has been properly attached pursuant to Supplemental Admiralty Rule B.

(See, e.g.,

Doc. 22 at 10-12.) See also Madredeus Shipping Co. Ltd. v. Century Bridge Chartering Co.
Ltd., No. 00-414-CIV, 2000 WL 1205336, at *3 (S.D. Fla. Feb. 11, 2000) (“Whereas
Supplemental Rule C provides for arrest, Supplemental Rule B provides for attachment.
Although similar, they are distinguishable.”) (citation omitted).
held,
11

And, as this Court has

[w]hen a defendant moves to vacate an attachment pursuant to
Supplemental Admiralty Rule E(4)(f), the plaintiff bears the burden of
showing that the filing and service requirements of Rules B and E were
met and that 1) it has a valid prima facie admiralty claim against the
defendant; 2) the defendant cannot be found within the district; 3) the
defendant's property may be found within the district; and 4) there is no
statutory or maritime law bar to the attachment. If the plaintiff fails to
demonstrate that it has met the requirements, the Court must vacate the
attachment, but the plaintiff is not required to prove its case, only to meet
a prima facie standard.
Servicio Marina Superior, LLC v. Matrix Int’l Ltd., Civil Action No. 07–0770–KD–C, 2009
WL 734114, at *6 (S.D. Ala. Mar. 17, 2009) (citing Aqua Stoli Shipping Ltd. v. Gardner Smith
Pty Ltd., 460 F.3d 434, 445 (2d Cir. 2006), overruled on other grounds, Shipping Corp. of India
Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 61 (2d Cir. 2009)); see also Equatorial Marine
Fuel Mgmt. Servs. Pte Ltd. v. MISC Berhad, 591 F.3d 1208, 1210 (9th Cir. 2010) (Kozinski,
C.J.) (citing Aqua Stoli for the same four conditions and noting that “[a]t a
Rule E hearing, defendant may argue that the attachment should be vacated because
plaintiff failed to meet one of the four conditions for attachment”) (emphasis added)
(citing, inter alia, FED. R. CIV. P., SUPP. R. E. advisory committee’s note to the 1985
amendments (“Rule E(4)(f) is designed to satisfy the constitutional requirement of due
process by guaranteeing to the ship-owner a prompt post-seizure hearing at which he
can attack the complaint, the arrest, the security demanded, or any other alleged
deficiency in the proceedings.”) (emphasis added)).
As mentioned above, one of the four conditions for Rule B attachment here is
that the plaintiffs must prove that they have “a valid prima facie admiralty claim against

12

[Eagle Express Charters].”

Servicio Marina Superior, 2009 WL 734114, at *6; Equatorial

Marine Fuel Mgmt., 591 F.3d at 1210.

“Where a plaintiff lacks a valid prima facie

admiralty claim, its request for relief pursuant to Rule B must be denied for lack of
subject matter jurisdiction.”

Euro Trust Trading S.A. v. Allgrains U.K. Co., No. 09 Civ.

4483(GEL), 2009 WL 2223581, at *2 (S.D.N.Y. July 27, 2009) (citing Kalafrana Shipping Ltd.
v. Sea Gull Shipping Co. Ltd., 591 F. Supp. 2d 505, 507 (S.D.N.Y. 2008); 28 U.S.C. §
1333(1)).

Importantly, “Rule B provides a specific procedural remedy, not available in

other federal civil cases, in cases that are within the jurisdiction of the federal court
because of their maritime nature.

The availability of the remedy thus turns on the

nature of the federal jurisdiction over the case.”

Id. at *3 (emphasis added).

Accordingly, if a court determines that a plaintiff’s claim is not maritime in nature, the
attachment remedy afforded by Rule B is not available.
“To determine whether [a plaintiff’s] claims sound in admiralty, [courts] look to
whether ‘the principal objective’ of the claimed contract or dealings ‘is maritime
commerce.’” Equatorial Marine Fuel Mgmt., 591 F.3d at 1210 (quoting Norfolk S. Ry. v.
Kirby, 543 U.S. 14, 25 (2004)). And a claim is not maritime in nature if “the subject
matter of the dispute is so attenuated from the business of maritime commerce that it
does not implicate the concerns underlying admiralty and maritime jurisdiction.”
Folksamerica Reinsurance Co. v. Clean Water of N.Y., Inc., 413 F.3d 307, 312 (2d Cir. 2005).

13

Here, put succinctly, just because the plaintiffs’ claim—entitlement to their
brother’s ownership interest in Eagle Express Charters and, accordingly, its primary
asset, the vessel—involves a ship does not make it maritime in nature.
First, as discussed above, the claim emanates solely from a lien imposed
pursuant to a state-court judgment, and a “claim based on [a] state[-]court judgment . . .
does not under any circumstances give rise to maritime liens.” Veverica v. Drill Barge
Buccaneer No. 7, 488 F.2d 880, 885 (5th Cir. 1974) (citing The Willamette Valley, 76 F. 838,
845 (N.D. Cal. 1896) (which held that “a common-law judgment of a state court, though
accompanied with an attempted levy of execution, does not constitute such a lien which
a court of admiralty will recognize . . .”) (citing, in turn, The Lottawanna, 87 U.S. 201
(1873))). 6
Further, even if the non-maritime lien here, which precipitates from the
state-court judgment, was like the state-court judgment in Provencher, which—as
discussed, at length, supra—it is not, and could be interpreted as an “agreement” for the
(forced) sale of the plaintiffs’ brother’s interest in the Mississippi LLC and its vessel, “a
contract solely for the sale of a vessel does not fall within the admiralty jurisdiction.”
Aggelikos Prostatis Corp. v. Shun Da Shipping Group Ltd., 646 F. Supp. 2d 330, 335
(S.D.N.Y. 2009).

Therefore, a plaintiff suing to enforce such a contract would “not have

The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981)
(en banc), adopted as binding precedent all decisions of the former Fifth Circuit issued before
October 1, 1981. See id. at 1209.
6

14

a valid prima facie admiralty claim against [a] defendant . . . , and [any related]
attachment must be vacated.”

Id.

In Aggelikos Prostatis, the court discussed the Supreme Court’s decision in Kirby,
see supra, and applicable Second Circuit and Southern District of New York decisions,
see 646 F. Supp. 2d at 332-35, and noted that
[t]he only marine aspect to the contract [there was] that the object to be
sold was a ship. But in Kirby itself, the Supreme Court instructed that
“[t]o ascertain whether a contract is a maritime one, we cannot look to
whether a ship or other vessel was involved in the dispute . . . .” Kirby,
543 U.S. at 23. Indeed, it would not comport with the “conceptual”
approach dictated by Kirby to categorize contracts that are fundamentally
sales contracts as maritime contracts simply because a ship is involved.
Id. at 334 (internal citation modified).

This is of course also the law in this Circuit. See

Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1166 (11th Cir. 2009) (“[A] contract for the
sale or construction of a ship is not within the federal courts’ admiralty jurisdiction.”)
(citing Richard Bertram & Co. v. The Yacht, Wanda, 447 F.2d 966, 967 (5th Cir. 1971)); see
also The Yacht, Wanda, 447 F.2d at 967-68 (“The mere fact that a ship is involved will not
bring the cause within the jurisdiction of the admiralty court.”); cf. Gulf Coast Shell &
Aggregate LP v. Newlin, 623 F.3d 235, 240 (5th Cir. 2010) (“To determine whether a
contract is maritime, we look to whether the ‘nature of the transaction was maritime’
and ‘whether the services performed under the contract are maritime in nature.’”)
(quoting Exxon Corp. v. Central Gulf Lines, Inc., 500 U.S. 603, 611, 612 (1991)).
Finally, looking at the plaintiffs’ claim here slightly differently, a dispute over
who should have ownership of a vessel, in isolation, “does not relate in any meaningful
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way to commerce on navigable waters or the use of the [vessel] as a [vessel].” Newlin,
623 F.3d at 240.

“As such, [such a] dispute . . . is not cognizable in admiralty.”

Id.

(noting that the transfer of title dispute there was not “merely incidental to a boarder
maritime contract between Gulf Coast and Newlin because [the] dispute [was] based on
a discrete oral agreement (to transfer title) that is the very basis for Gulf Coast’s breach
of contract claim”) (emphasis added).
Thus, the plaintiffs have failed to satisfy their burden to show that all the
requirements for attachment—specifically, the key requirement that they have a valid
prima facie admiralty claim—have been met.
Conclusion
Based on the foregoing, the Court finds that, while it retains jurisdiction over the
in personam claims in this matter pursuant to 28 U.S.C. § 1332, there is no basis, under
either Supplemental Admiralty Rule B or Supplemental Admiralty Rule C, for in rem
jurisdiction. Accordingly, Eagle Express Charters’ motion to vacate the arrest of the
vessel (Doc. 18) is GRANTED, the arrest of the vessel is VACATED, and the
appointment of Saunders Yachtworks as substitute custodian (see Doc. 11) is
RESCINDED.

The Court FURTHER ORDERS that the in rem claims against the

vessel alleged in the Verified Complaint (Doc. 1) be DISMISSED.
DONE and ORDERED this the 27th day of July, 2012.
s/WILLIAM E. CASSADY
UNITED STATES MAGISTRATE JUDGE

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