In Re: Kohnechi

Filing 28

ORDER that Claimants' 18 Motion for Judgment on the Pleadings is granted. The Court's 7 Injunction Order is dissolved. The clerk shall enter judgment accordingly and terminate this action. Signed by Judge David G Campbell on 9/16/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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IN THE MATTER OF

No. CV13-08047-PCT-DGC

Mehdi Kohnechi, as the owner of a 2007
Bayliner Bowrider Flight Series F-23 motor
vessel for exoneration from or limitation of
liability,

ORDER

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On July 30, 2013, Katrin Aharon, Kai Aharon, and Shay Aharon (collectively
“Claimants”) filed a motion for judgment on the pleadings. Doc. 18. Petitioner Mehdi
Kohnechi filed a response on August 22, 2013 (Doc. 19), and Plaintiff filed a reply on
September 3, 2013 (Doc. 23).

For the reasons that follow, the Court will grant

Claimants’ motion.1
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Background.
Petitioner is the sole owner of a 2007 Bayliner Bowrider Flight Series F-253

motor vessel (“the vessel”). Doc. 1 ¶ 2. Petitioner alleges that on or about June 26, 2012,
he was operating the vessel on Lake Mohave, Arizona, when a collision occurred with
another vessel upon which Claimants were passengers. Id. ¶ 3. Claimants sustained
injuries as a result of the collision. Id. Anticipating claims against him as a result of the
accident, Petitioner brought a petition in this Court pursuant to the Limitation of Liability
Act, 46 U.S.C. §§ 30501-30512. Id. ¶¶ 6-7.

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The request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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II.

Legal Standard.

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A motion for judgment on the pleadings pursuant to Federal Rule of Civil

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Procedure 12(c) “is properly granted when, taking all the allegations in the non-moving

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party’s pleadings as true, the moving party is entitled to judgment as a matter of law.”

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Fajardo v. County of L.A., 179 F.3d 698, 699 (9th Cir. 1998); see Elvig v. Calvin

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Presbyterian Church, 375 F.3d 951, 955 (9th Cir. 2004) (stating that in ruling on a Rule

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12(c) motion the court must accept as true all allegations in the plaintiff’s complaint and

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treat as false the allegations in the defendant’s answer that contradict the plaintiff’s

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allegations). In other words, dismissal pursuant to Rule 12(c) is inappropriate if the facts

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as pled would entitle the plaintiff to a remedy. Merchants Home Delivery Serv., Inc. v.

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Hall & Co., 50 F.3d 1486, 1488 (9th Cir.1995).

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III.

Analysis.

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The Limitation of Liability Act provides that “the liability of the owner of a vessel

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for any claim . . . shall not exceed the value of the vessel and pending freight” provided

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that the claim arises from “any embezzlement, loss, or destruction of any property, goods,

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or merchandise shipped or put on board the vessel, any loss, damage, or injury by

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collision, or any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or

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incurred, without the privity or knowledge of the owner.” 46 U.S.C. § 30505(a)-(b).

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Claimants contend that Petitioner is not eligible for limitation of liability under the

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statute because he acknowledges that he was operating the boat at the time of the

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accident. Because he was operating the boat, Petitioner has not alleged that the claim

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was “incurred without [his] privity or knowledge.” In re Follett, 172 F. Supp. 304, 305

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(S.D. Tex. 1958) (“[T]here is now ample authority to support the view that the owner

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who operates his own pleasure craft is not entitled to limit, as any occurrence would

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clearly be with his privity or knowledge.”). Petitioner concedes this issue, stating that

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“Since Mr. Kohnechi was operating the vessel involved in this unfortunate accident,

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Petitioner acknowledges ‘privity’ does not appear to be a hurdle for Claimants.” Doc. 19

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at 7 n. 3.

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Petitioner claims he is still entitled to a determination of liability in this Court.

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Petitioner’s argument is built on the two-step inquiry that is normally employed to

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evaluate a petitioner’s eligibility for limited liability. See In re Fun Times Boat Rental &

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Storage, LLC, 431 F. Supp. 2d 993, 997 (D. Ariz. 2006) (citing Walston v. Lambersten,

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349 F.2d 660, 663 (9th Cir. 1965), cert. denied, 382 U.S. 980 (1966)). Under the two-

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step framework, courts first require the claimant to demonstrate that the accident was

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caused by actionable conduct. Id. If the claimant makes such a showing, the burden

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shifts to the Petitioner to show that the actionable conduct or condition was without his

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privity or knowledge. Id. Petitioner argues that this framework requires the Court to first

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make a determination of liability before it can deny the claim for limitation on the basis

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of privity.

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Petitioner’s argument is incorrect. Multiple courts considering petitions under the

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Limitation of Liability Act have concluded that no liability determination is necessary

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when a petitioner cannot claim that he is without privity or knowledge.

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Makowski, 406 F.2d 721,723 (5th Cir. 1969) (“Where no grant of limitation is possible,

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the basis for granting exoneration vanishes.”); In re Marine Sports, Inc., 840 F. Supp. 46,

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49 (D. Md. 1993) (“Because petitioners have admitted that [petitioner] was in control of

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the boat, and that [petitioner] is the President and sole stock-holder of Marine Sports,

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Inc., they have admitted their ‘privity or knowledge’ and thus may not seek exoneration

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and/or limitation of liability.” (internal citations omitted)); In re Ingoglia, 723 F. Supp.

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512, 515 (C.D. Cal. 1989) (“[T]his Court finds that no genuine triable issue exists as to

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the limitation issue. Plaintiff-in-limitation admits that he owns the boat in question and

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that he maintained, controlled and operated the boat at the time of the injury to claimant.

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If there was negligence in the operation of the motorboat, only he could have been guilty

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of it.”) The Court agrees with the analysis of these cases. The two-party inquiry in In re

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Fun Times is employed to “evaluate the shipowner’s eligibility for limited liability.” 431

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F. Supp 2d at 997. Petitioner is ineligible for limited liability based on the privity and

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knowledge issue that he has conceded. As a result, the Court need not engage in the two-

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Fecht v.

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step inquiry.

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IT IS ORDERED:

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1.

Claimants’ motion for judgment on the pleadings (Doc. 18) is granted.

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2.

The Court’s Injunction Order (Doc. 7) is dissolved.

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3.

The clerk shall enter judgment accordingly and terminate this action.

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Dated this 16th day of September, 2013.

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