Regions Bank v. M/V MAX B et al

Filing 25

Order re: 24 MOTION for Order of Sale -Renewed Motion for Interlocutory Sale of Vessels Under Rule E(9) filed by Regions Bank. The Plaintiff is ORDERED to supplement its motion to verify actual notice as to United Power Systems, LLC and ACBL Transportation Services LLC, and Cooper Marine & Timberlands Corp. It is ORDERED that the motion 24 shall be HELD IN ABEYANCE until such time as Plaintiff files a supplement. Signed by District Judge Kristi K. DuBose on 1/17/2023. (meh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
REGIONS BANK, as Revolving Credit
Lender and as Administrative Agent
and Collateral Agent for REGIONS
COMMERCIAL EQUIPMENT
FINANCE, LLC, as Term Lender,
Plaintiff,
v.
M/V MAXX B, in rem, M/V MISS
ALLISON, in rem, and M/V MISS
LILLIE, in rem,
Defendants.

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CIVIL ACTION 1:22-00365-KD-MU
IN REM

ORDER
This matter is before the Court on the Plaintiff’s Second1 “Motion for Interlocutory Sale of
Vessels under Rule E(9)" for the M/V MAXX B (Official No. 641456), M/V MISS ALLISON
(Official No. 650648), and M/V MISS LILLIE (Official No. 64610) (the Vessels) with evidentiary
submissions in support. (Docs. 23, 24).
I.

Background
On September 14, 2022, Plaintiff filed an in rem admiralty Verified Complaint and Rule 9(h)

maritime claim seeking a warrant of arrest per Supplemental Rule for Admiralty or Maritime Claims
Rule C against the Vessels, citing 28 U.S.C § 1333 and 46 U.S.C. § 31325 as the bases for
jurisdiction (Ship Mortgage Act). (Doc. 1 at 1). In the Verified Complaint, Plaintiff explained that a
February 28, 2020 Credit Agreement executed with Whitaker Marine Group LLC (Whitaker)
resulted in Plaintiff opening a revolving credit and term loan in favor of Whitaker. As security,
Plaintiff and Whitaker executed a First Preferred Fleet Mortgage on February 28, 2020 which
1

Plaintiff styled the filing as "renewed." However because the initial motion was denied, this is
the second such motion

1

identified six (6) secured vessels – including the three (3) vessels at issue in this case. On November
20, 2020, Plaintiff notified Whitaker that it had breached the Credit Agreement and was in default.
On July 19, 2021, Plaintiff and Whitaker executed a Forbearance Agreement through which
Whitaker acknowledged and agreed that the events of default had occurred under the Credit
Agreement and other loan documents. The Forbearance Agreement terminated on July 21, 2021.
Thereafter, Plaintiff filed a Rule C arrest of the Vessels. The terms of the First Preferred Fleet
Mortgage include that when Whitaker defaults, a maritime lien is created against the Vessels in favor
of Plaintiff in the amounts due (alleged to be $6,400,622.74 plus $911,128.57 in interest and other
costs). On September 15, 2022, the motion to arrest the Vessels was granted (Doc. 4), and the
Vessels were arrested on September 16, 2022 (Docs. 7-9).2 On September 28, 2022, Plaintiff filed a
Notice regarding the arrest of the Vessels for publication in the Press Register. (Doc. 13). The
Notice was published in the Press Register September 30, October 7, and October 14, 2022, and
provided: "Notice is hereby given that, pursuant to Supplemental Rule C ... all claims for possession
or an interest in said Vessels are required to be filed with the Clerk of the United States District
Court, Southern District of Alabama, on or before October 28, 2022. Any claimant must file an
Answer within twenty-one (21) days of filing a claim; otherwise, default may be entered and
condemnation ordered." (Doc. 13 at 2).
On October 21, 2022, Plaintiff filed a Rule E(9) Motion for Interlocutory Sale of the Vessels
(including each vessel's respective engines, freight, tackle, appurtenances, apparel, etc.) (Doc. 14).
As grounds, Plaintiff alleges that Whitaker has not procured the release of the Vessels since their
arrest, is causing “unreasonable delay,” and the Vessels are subject to “deterioration, decay, or injury
and incurring disproportionate expense.” Specifically, per Plaintiff:

2

Plaintiff also filed a motion to appoint a substitute custodian which was granted. (Docs. 3, 6).

2

1) Public notice of the action and arrest was published in the Press Register 9/30,
10/7, and 10/14 (Doc. 14-1 (Affidavit Principal Clerk of the Publisher));
2) No claims have been filed by other interested parties;
3) Expenses/costs will be incurred for the safekeeping of said Vessels, which if
allowed to continue until the end of this action will be excessive or disproportionate –
Regions has incurred $15,000 for in custodia legis expenses, plus U.S. Marshal’s
expenses of $7,500, and substitute custodian expenses are being incurred at the rate
of $10,500 per month since September 16, 2022;
4) The Vessels are subject to deterioration, decay, or injury by being detained in
custody - i.e., wasting assets; and
5) The proceeds from the interlocutory sale of the Vessels, if deposited in the
Registry of the Court will serve as an acceptable and desirable substitute for the
Vessels and would eliminate mounting costs and the possibility of damage or wastage
to the Vessels.
On October 28, 2022, non-parties James Elmwood Repair & Maintenance LLC and Paducah River
Fuel Services LLC separately filed Verified Complaints in Intervention asserting their respective
interests in the Vessels. (Docs. 15, 16).
On November 8, 2022, the Court denied Plaintiff's motion stating as follows:
First, The Court is not satisfied that the grounds for the interlocutory sale of the
Vessels are sufficiently stated ... Plaintiff has only made generalized statements of
deterioration (no affidavits, no known issues with the Vessels, no ongoing repairs, no
sudden damage, etc.). Plaintiff has submitted no evidence of decay, injury, or wastage
either. Rather, Plaintiff simply summarily asserts deterioration.
Second, there has not been an unreasonable delay by Whitaker. Case law provides
that at least 4 months must pass since the arrest to justify unreasonable delay by the
vessel owner (i.e., that length of time passed from the arrest and the vessel owner
failed to take any action such as post a bond to secure a vessel's release). Only 35
days had passed from the arrest to the date of Plaintiff's motion.
Third, Plaintiff claims excessive or disproportionate expenses, however, Plaintiff
bases this factor to support a sale on the expectation of such expenses being incurred
in the future -- through the duration of this litigation (not at present). And the
expenses Plaintiff is presently incurring were prompted by, and are a result of, its
motions to arrest the Vessels and to appoint a substitute custodian.
Fourth, Plaintiff initiated this litigation based on the Ship Mortgage Act, 28 U.S.C. §
1333 and 46 U.S.C. § 31325 (Doc. 1 at 1 at ¶1), to enforce its lien against the Vessels

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based on the First Preferred Fleet Mortgage with Whitaker. This means that "actual
notice" of an arrest must be given to the master or individual in charge of the Vessels
per Section 31325(d)(1)(A)-(C): "... Actual notice of a civil action brought .... to
enforce a maritime lien, must be given in the manner directed by the court to-(A) the master or individual in charge of the vessel; (B) any person that recorded
under section 31343(a) or (d) of this title an unexpired notice of a claim of an
undischarged lien on the vessel; and (C) a mortgagee of a mortgage filed or recorded
under section 31321 of this title that is an undischarged mortgage on the vessel."
Here, the type of notice issued to the entity which appears to be the owner of the
Vessels, Whitaker, is unknown. And the Court lacks information as to any other
master or individual in charge of the Vessels. At most, Plaintiff asserts Whitaker "has
been informed of the arrest….” (Doc. 14 at 2); the Marshals' returns of service on the
Arrest (Docs. 7-9) state service was made “by posting on the vessel[s'] bridge[s] a no
trespass notice, writ of arrest, posted signs of writ of arrest[;]" and the only
discernible notification issued, regarding the arrest, was via publication (a generalized
notice) (Doc. 13). This is insufficient notice in this case.
***
Thus, the record is unclear as to whether Plaintiff has complied with Section
31325(d)(1) and provided "actual notice" to the master or individual in charge of the
Vessels. Plaintiff has not provide[d] the Court with proof of service of actual notice.2
Fifth, the deadline for any claims for possession or an interest in the Vessels (October
28, 2022) had not passed when Plaintiff filed its motion (October 21, 2022); thus, the
motion is premature. And on October 28, 2022, non-parties James Elmwood Repair
& Maintenance LLC and Paducah River Fuel Services LLC separately filed Verified
Complaints in Intervention asserting their respective interests in the Vessels. (Docs.
15, 16). See, e.g., Canaveral Port Auth. v. M/V Surfside Princess, 2010 WL
11651212, *2 (M.D. Fla. May 3, 2010) ("... it is premature to order the interlocutory
sale at this juncture while other lien claimants are still filing pleadings and seeking to
intervene to assert their claims. The Court is far from ready to determine the priority
of claims, with parties still seeking to intervene ...
[2] Moreover, to the extent that Plaintiff is intending to foreclose on
the Preferred Mortgage under 46 U.S.C. § 31325(d)(1)(B) (which is
unclear), actual notice of a civil action to foreclose upon a
preferred mortgage “must be given in the manner directed by the
court to . . . any person that recorded under 31343(a) or (d) of this
title an unexpired notice of a claim of an undischarged lien on the
vessel.”
(Doc. 21 at 5-8 (emphasis added)).
On January 3, 2023, Plaintiff filed the Second Motion for interlocutory sale, notifying the
Court of the following:

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•

On November 14, 2022, Plaintiff served the record Owner of the vessels, Whitaker
Marine Group LLC with actual notice of this action and the arrest of the Vessels via
service to its registered agent for service of process (certified mail). (Doc. 23-1). The
Owner, via its appointed Chief Restructuring Officer Joseph E. Vierling submitted an
Affidavit acknowledging receipt of actual notice of this action and of the arrest of the
vessels. (Doc. 23-2 at 2 at ¶7 (Aff. Vierling)).

•

In the Affidavit, Vierling states that based on the consent and authorization of the
company Whitaker and as its CRO, it is in Whitaker's best interest to consent to the
interlocutory sale of the vessels to minimize custodial costs incurred by Plaintiff and
so the maximum amount of sales proceeds may be applied to the Owners'
indebtedness. (Doc. 23-2 at 2 at ¶6).

•

Exhibits 4, 5, and 6 to the Second Motion for interlocutory sale consist of Abstracts
of Title from the National Vessel Documentation Center for the M/V MAXX B, M/V
MISS ALLISON, AND M/V MISS LILLIE, showing the lienholders of record for
each vessel. (Docs. 23-3 to 23-6).3 Per Plaintiff, Exhibits 7, 8, 9, 10, and 11 (Docs.
23-7 to Doc. 23-11) establish actual notice of this action and of the arrest of these
vessels to each lienholder with one (1) exception. The exception is for Service on
Riverview Marina, Inc., 130 Yacht Basin Dr, Demopolis, AL, 36732 was attempted
but service was returned unclaimed on November 3, 2022, and while Plaintiff again
attempted service via its registered service agent on November 10, 2022, such was
returned unclaimed December 5, 2022. (Doc. 23-12)).

•

The only claimants that have filed Complaints in Intervention are James Elmwood
Repair & Maintenance, LLC (Doc. 15...) and Paducah River Fuel Services, LLC
(Doc. 16...). Undersigned counsel has conferred with counsel for both entities, and
neither entity has an objection to the interlocutory sale of the Vessels to reduce the
costs of this action and potential deterioration of the Vessels.

•

Expenses and costs will be incurred for the safekeeping of said Vessels while under
seizure, which expenses if allowed to continue until final termination of this cause
will be excessive or disproportionate.

•

Per the affidavit of Alan Swimmer, President of National Maritime Services, Inc., the
Vessels are subject to deterioration, decay or injury by being detained in custody
during the pendency of this action. (See Ex. 13....) As the court-appointed Substitute
Custodian for the Vessel, Mr. Swimmer is familiar with the current location and
condition of the Vessels. (Id. at ¶ 6.) As stated by Mr. Swimmer, steel-hulled vessels
sitting idly in brackish water without routine maintenance are susceptible to
accelerated deterioration. (Id. ¶7.) In addition, the Vessels have not been properly
conditioned for lay-up status, making their hulls, engines, machinery and electrical
equipment susceptible to accelerated corrosion and general deterioration. (Id.) Such
corrosion and deterioration of the Vessels or their components will reduce the value
3

The Vessels are referenced in the abstracts by their Official Numbers: M/V MAXX B (641456)
(Doc. 23-4), M/V MISS ALLISON (650648) (Doc. 23-5), and M/V MISS LILLIE (64610) (Doc. 23-6).

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of the Vessels at the Marshal’s sale. (Id. at ¶ 8.) Any repairs that are required to
recondition the Vessels for a return to service will decrease the amount that buyers
will be willing to pay to acquire the Vessels, which are thus wasting assets. (Id.)
•

Plaintiff has already incurred approximately $25,000 for in custodia legis expenses,
plus United States Marshal’s expenses of $7,500. Substitute custodian expenses are
being incurred at the rate of approximately $10,500 per month since September 16,
2022.

•

The proceeds from the interlocutory sale of the Vessels, if deposited in the registry of
the Court will serve as an acceptable and desirable substitute for the Vessels and
would, in addition, accomplish the purpose of eliminating mounting costs and the
possibility of damage or wastage to the Vessels.

Based on the foregoing, Plaintiff seeks interlocutory sale of the vessels to minimize expenses.
II.

Conclusions of Law
Per Supplemental Admiralty Rule E(9)(a)(i), a court may order the interlocutory sale of all or

part of an attached or arrested property, with the sales proceeds, or as much of them as will satisfy
the judgment, paid into court to await the court's further orders, if: (A) the attached or arrested
property is perishable, or liable to deterioration, decay, or injury by being detained in custody
pending the action; (B) the expense of keeping the property is excessive or disproportionate; or (C)
there is an unreasonable delay in securing release of the property. To obtain an order for
an interlocutory sale, a plaintiff need only show the existence of one of these three criteria. 20th
Century Fox Film Corp. v. M.V. Ship Agencies, 992 F. Supp. 1434, 1437 (M.D. Fla. 1997)
(citing Silver Star Enterprises, Inc. v. M/V Saramacca, 19 F.3d 1008, 1014 (5th Cir.1994)). Because
Rule E(9) provides for interlocutory sales, it “does not require, or even mention, the resolution of the
merits of any particular claim; instead, the Rule focuses entirely on avoiding the recognized
complications associated with maintaining a vessel under arrest.” Freret Marine Supply v. M/V
Enchanted Capri, 2001 WL 649764, *1 (E.D. La. 2001). See also Merchants Nat'l Bank of Mobile v.
Dredge

General

G.L.

Gillespie, 663

F.2d

6

1338

(5th

Cir.

1981) (affirming

order

of interlocutory sale in action to foreclose preferred ship mortgage). All sales of property must be
made “by the marshal or a deputy marshal, or by other person or organization having the warrant, or
by any other person assigned by the court where the marshal or other person or organization having
the warrant is a party in interest.” Fed. Supp. R. E(9)(b). The proceeds of such sale must be paid
forthwith into the Court's registry to be disposed of according to law. Id.
Concerning claims of deterioration, decay, or injury, courts typically require the moving
party to offer some type of evidence demonstrating that the subject vessel is liable to deterioration,
decay, or injury, rather than allowing the moving party to rely on generalized statements regarding
such conditions in order to support an interlocutory sale. See, e.g., Seacor Marine LLC v. FPC Sea
Striker, 2014 WL 5018888, *3 (M.D. Fla. Oct. 7, 2014) (recognizing that the claimants had offered
no evidence of deterioration, aside from their general assertion that the non-use of the vessel
rendered it susceptible to deterioration and depreciation in value); Merch. Nat'l Bank of Mobile v.
Dredge Gen. G.L. Gillespie, 663 F.2d 1338, 1342 (5th Cir. 1981) (holding the district court's
assessment that the vessels were liable to deterioration was not clearly erroneous where the district
court made “detailed findings” and received expert testimony). Some courts consider diminution-invalue as a factor when evaluating liability to deterioration, decay, or injury. See, e.g., Jaffe v. M/S
BREAKING WIND, 2017 WL 7731867, *6 (S.D. Fla. June 13, 2017) (defendant-vessel was liable to
deterioration, decay, or injury because, among other reasons, there was testimony at a hearing that
the vessel was a “depreciating asset” and contrary evidence was not presented) R&R adopted, 2017
WL 7732306 (S.D. Fla. June 28, 2017).
With regard to unreasonable delay, as a general rule defendants are given at least four (4)
months to bond a vessel absent some other considerations. See, e.g., Bank of Rio Vista v. Vessel
Captain Pete, 2004 WL 2330704, *2 (N.D. Cal. 2004) (citation and internal quotations omitted). See

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also e.g., Vineyard Bank v. M/Y Elizabeth 1, U.S.C.G. Official No. 1130283, 2009 WL 799304
(S.D. Ca. 2009) (holding that the failure to secure the release of a vessel during the four months after
arrest constituted an unreasonable delay); Boland Marine & Mfg. Co., L.L.C. v. A.G. Navajo, 2002
WL 31654856 (E.D. La. 2002) (same); Bollinger Quick Repair, L.L.C. v. Le Pelican M/V, 2000 WL
798497 (E.D. La. 2000) (same); Ferrous Fin. Serv. Co. v. O/S Arctic Producer, 567 F. Supp. 400,
401 (W.D. Wash. 1983) (same). Courts have previously found a 7 month delay since the time of a
vessel's arrest to be unreasonable where an owner had not posted a bond, entered into a stipulation, or
otherwise attempted to secure the release of the vessel under Supplemental Rule E(5). M.D. Moody
& Sons, Inc. v. McLaren, 2012 WL 13136843, *2 (M.D. Fla. July 30, 2012) (“[T]he passage of seven
months since the time of the Endeavor's arrest amounts to an unreasonable delay in securing the
release of the vessel[]”), R&R adopted, 2012 WL 13136840,*1 (M.D. Fla. Nov. 15, 2012); Seacor
Marine LLC, 2014 WL 5018888, *3 (finding an unreasonable delay where the vessel had been in the
substitute custodian's possession for over eight months and the vessel's owner had not “posted bond
or otherwise attempted to secure the release of the Vessel”); 20th Century Fox Film Corp. v. M.V.
Ship Agencies, 992 F. Supp. 1434, 1438 (M.D. Fla. 1997) (“the eight month delay, with no release in
sight and adjudication of the merits of the claim still months away, is 'unreasonable”' and sale is
warranted on that basis. Silver Star Enterprises, Inc. v. M/V Saramacca, 19 F.3d 1008, 1014 (5th
Cir.1994) (seven month delay is unreasonable); Ferrous Financial Services Co. v. O/S Arctic
Producer, 567 F. Supp. 400, 401 (W.D.Wash.1983) (four month delay is unreasonable)[]”).
Upon consideration, the Court finds as follows. First, the Court is satisfied that Plaintiff has
sufficiently supported its prior statements of deterioration of the Vessels with an Affidavit describing
the issues with the Vessels, potential for damage, etc. Specifically, as detailed supra, the Substitute
Custodian's Affidavit (per Mr. Swimmer) asserts that the Vessels are subject to deterioration, decay,

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and potential visitor injury, and that as currently situated (idle in brackish water) they are susceptible
to accelerated corrosion or deterioration which will reduce their value thus becoming depreciating
assets. (Doc. 23-13 (Aff. Swimmer)).
Second, while there has still not been an unreasonable delay by Whitaker (the Owner), the
Owner, via its CRO Vierling, consents to the interlocutory sale of the Vessels. (Doc. 23- at (Aff.
Vierling)). In the Affidavit, Vierling states that based on the consent and authorization of the
company (Whitaker) and as its CRO, it is in Whitaker's best interest to consent to the interlocutory
sale of the vessels to minimize custodial costs incurred by Plaintiff and so the maximum amount of
sales proceeds may be applied to the Owners' indebtedness. (Doc. 23-2 at 2 at ¶6). And Vierling
states he has executed the Affidavit, in part, to evidence the company's consent to the interlocutory
sale of the Vessels. (Id. at ¶7).
Third, while the Court does not agree with Plaintiff's characterization of excessive or
disproportionate expenses based on the expectation of such expenses being incurred in the future
(through the duration of this litigation (not at present)), the undersigned acknowledges the parties'
interest in minimizing expenses as well as in garnering the maximum sales proceeds to be applied to
Whitaker's indebtedness by proceeding with the interlocutory sale.
Fourth, the deadline for any claims for possession or an interest in the Vessels (October 28,
2022) has now passed.

And on October 28, 2022, non-parties James Elmwood Repair &

Maintenance LLC and Paducah River Fuel Services LLC separately filed Verified Complaints in
Intervention asserting their respective interests in the Vessels. (Docs. 15, 16). And per Plaintiff,
those Claimants have no objections to the interlocutory sale of the Vessels, as a means to reduce the
costs of this action and potential deterioration of the Vessels.
Fifth, the Court addresses the "actual notice" required pursuant to the Ship Mortgage Act, 28

9

U.S.C. § 1333 and 46 U.S.C. § 31325 (Doc. 1 at 1 at ¶1) for Plaintiff to enforce its lien against the
Vessels based on the First Preferred Fleet Mortgage with Whitaker Marine Group LLC. Per Plaintiff,
such has been accomplished on Whitaker Marine Group LLC (Section 31325(d)(1)(A)-(C)) by
sending that LLC notice via certified mail. (Doc. 23-2 at 1-2 ¶¶5-7 (Aff. Vierling)). And, more than
14 days have passed since actual notice occurred and Whitaker has not filed a claim in this action but
instead, consents to the interlocutory sale of the vessels. (Id.) Similarly, Plaintiff references Exhibits
7, 8, 9, 10, and 11 (Docs. 23-7 to Doc. 23-11) as providing "actual notice" of this action and of the
arrest of these vessels to each lienholder with one (1) exception -- Riverview Marina, Inc.
Plaintiff asserts that Exhibits 4, 5, and 6 to the Second Motion for interlocutory sale consist
of Abstracts of Title from the National Vessel Documentation Center for the M/V MAXX B, M/V
MISS ALLISON, AND M/V MISS LILLIE, showing the lienholders of record for each vessel.
(Docs. 23-3 to 23-6).4 Per Plaintiff, Exhibits 7, 8, 9, 10, and 11 (Docs. 23-7 to Doc. 23-11) establish
"actual notice" of this action and of the arrest of these vessels to each lienholder with one (1)
exception (Riverview Marina, Inc., 130 Yacht Basin Dr, Demopolis, AL, 36732 was attempted but
service was returned unclaimed on November 3, 2022, and while Plaintiff again attempted service
via its registered service agent on November 10, 2022, such was returned unclaimed December 5,
2022). (Doc. 23-12)).
For the M/V MAXX B (Official No. 641456), the lienholders identified in the 7/25/22
abstract following entry of the Regions Preferred Mortgage (liens which do not appear to have been
satisfied) are: 1) James Elmwood Repair & Maintenance, LLC, 4600 Clarks River Road, Paducah,
KY, 42003 (7/15/21 Notice of Claim of Lien, Lien established 8/18/20) (Doc. 23-4 at 5); 2) United
Power Systems, LLC, 3622 West Main Street, Gray, LA, 70359 (12/17/21 Notice of Claim of Lien,

4

The Vessels are referenced in the abstracts by their Official Numbers: M/V MAXX B (641456)

10

lien established 9/8/20) (Doc. 23-4 at 6); 3) ACBL Transportation Services, LLC, 1701 E. Market
Street, Jeffersonville, IN, 47130 (6/9/22 Notice of Claim of Lien, lien established 1/6/21) (id.); and 4)
Riverview Marina, Inc., 130 Yacht Drive, Demopolis, AL (6/22/22 Notice of Claim of Lien, lien
established 11/8/20) (id.).
For the M/V MISS ALLISON (Official No. 650648), the lienholders identified in the
7/25/22 abstract following entry of the Regions Preferred Mortgage (liens which do not appear to
have been satisfied) are: 1) United Power Systems, LLC, 3622 West Main St., Gray, LA, 70359
(12/17/21 Notice of Lien, lien established 8/19/20) (Doc. 23-5 at 8); and 2) Cooper Marine &
Timberlands Corp., P.O. Box 1566, Mobile, AL 36633 (4/19/21 Notice of Claim of Lien, lien
established 9/29/20) (Doc. 23-5 at 8) with Satisfaction of Claim of Lien "pending" as of 8/4/22 (Doc.
23-5 at 8-9).
For the M/V MISS LILLIE (Official No. 64610), the lienholders identified in the 7/25/22
abstract following entry of the Regions Preferred Mortgage (liens which do not appear to have been
satisfied) are: 1) Paducah River Fuel Services, LLC, 4500 Clarks River Road, Paducah, KY 42003
(7/15/21 Notice of Claim of Lien, lien established 11/20/20) (Doc. 23-6 at 7); 2) United Power
Systems, LLC, 3622 West Main Street, Gray, LA 70359 (12/17/21 Notice of Claim of Lien, lien
established 9/10/20) (Doc. 23-6 at 8); and 3) Riverview Marina, Inc., 130 Yacht Basin Drive,
Demopolis, AL (6/22/22 Notice of Claim of Lien, lien established 10/31/20) (Doc. 23-6 at 8).
As to Paducah River Fuel Services, LLC, and James Elmwood Repair & Maintenance,
LLC, the Court is satisfied they have received actual notice as these entities are intervenors in this
case and are represented by counsel.
As to Whitaker Marine Group LLC, it is clear from the Affidavit of Vierling, that the LLC
and its CRO have actual notice of both this civil action and of the motion for interlocutory sale.
(Doc. 23-4), M/V MISS ALLISON (650648) (Doc. 23-5), and M/V MISS LILLIE (64610) (Doc. 23-6).

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Moreover, per Plaintiff, it was unable to affect service on Riverview Marina, Inc. - a
corporation (Doc. 23-11), and thus, there has been no "actual notice" to this lienholder. However,
Plaintiff explains that it attempted service via certified mail to its registered service agent on
November 10, 2022, but such was returned unclaimed December 5, 2022). (Doc. 23-12)). Indeed, a
review of Doc. 23-12 indicates that Plaintiff attempted to serve the entity via certified mail to
Riverview Marina, Inc. "c/o Fred R. Hansard." The Court is thus satisfied with Plaintiff’s service
efforts as to Riverview Marina, Inc.
In support of its motion as to United Power Systems, LLC and ACBL Transportation
Services LLC, Plaintiff has submitted certified mail return receipt cards: ACBL Transportation
Services, LLC signed by unknown individual "K. Perra" on 10/15/22 (Doc. 23-7) and United Power
Systems, LLC signed by unknown individual "Claire Traylor" on an illegible date (Doc. 23-10 at 1).
In order to establish actual notice, plaintiff needs to confirm on the record that the person who signed
for the mail was an authorized agent of each entity.
Further, Plaintiff has not provided any information regarding listed lienholder Cooper
Marine & Timberlands even though per the abstract, satisfaction of that lien remained pending.
As such, Plaintiff is ORDERED to supplement its motion to verify actual notice (by receipt
of mail by authorized agent) as to United Power Systems, LLC and ACBL Transportation
Services LLC, and Cooper Marine & Timberlands Corp. It is ORDERED that Plaintiff's Second
Motion for Interlocutory Sale of the Vessels (Doc. 24) shall be HELD IN ABEYANCE until such
time as Plaintiff files a supplement.
In the interim, as requested by Plaintiff, because the Vessels are currently afloat, making it
is impossible for potential bidders at any potential Marshal’s sale to inspect the condition of the
Vessels’ hulls (important for determining the value of the Vessels) it is ORDERED that the

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Substitute Custodian is PERMITTED TO SHIFT the Vessels to dry-docks located within the
territorial jurisdiction of this Court, which would allow potential bidders the opportunity to fully
inspect the condition of the Vessels prior to any potential Marshal’s sale.

DONE and ORDERED this the 17th day of January 2023.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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