Americanwest Bank v. P/V Bright and Morning Star, Official No. 635149 et al

Filing 5

ORDER granting 4 Motion to Substitute Custodian and authorizing Movement of Defendant Vessel. H&M Landing is hereby appointed the custodian of said DEFENDANT VESSEL, to retain the same in its custody for possession and safekeeping for the aforem entioned compensation and in accordance with the Declaration of Philip Lobred and the recitals herein contained until further Order of this Court. It is further ordered that Plaintiff's attorney will serve by mail a copy of said Order to the person(s) believed to be the owner(s) of the DEFENDANT VESSEL. Signed by Magistrate Judge William V. Gallo on 6/13/2012. (All non-registered users served via U.S. Mail Service)(mtb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AMERICANWEST BANK, a Washington State
chartered bank,

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Case No. 12-CV-1399 JLS (WVG)
IN ADMIRALTY

Plaintiff,

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v.
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PN BRIGHT AND MORNING STAR, Official
15 No. 635149, AND ALL OF HER ENGINES,
TACKLE, ACCESSORIES, EQUIPMENT,
16 FURNISHINGS AND APPURTENANCES, in
rem, and MORNING STAR CHARTERS, INC., a
17 California corporation, in personam, BENJAMIN
D. GRIFFITH, in personam, SUSAN L.
18 GRIFFITH, in personam, and THE GRIFFITH
REVOCABLE LIVING TRUST DATED
19 JANUARY 12, 1990, in personam,
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ORDER APPOINTING
SUBSTITUTE CUSTODIAN
AND AUTHORIZING
MOVEMENT OF DEFENDANT
VESSEL
F.R.C.P. Supplemental Admiralty
Rules C and E.
46 U.S.C. Sections 30101-31343

Defendants.

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Plaintiff, AMERICANWEST BANK, by and through its attorneys, Brodsky, Micklow,
Bull & Weiss, having appeared and made the following recitals:
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PLAINTIFF filed its Verified Complaint herein praying the DEFENDANT

VESSEL be condemned and sold to pay PLAINTIFFS' demands and for other proper relief.
2.

PLAINTIFF anticipates that after the Court considers PLAINTIFF's Application

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for Appointment of Substitute Custodian and Authorizing Movement of Vessel, an Order will

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issue requiring that the Clerk of this Court issue a Warrant for Arrest of the DEFENDANT
ORDER APPOINTING SUBSTITUTE CUSTODIAN AND
AUTHORIZING MOVEMENT OF DEFENDANT VESSEL

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Case No. l2-CV-1399 ILS (WVG)

1 VESSEL, and commanding the United States Marshal for this District to arrest and take into
2 custody the DEFENDANT VESSEL and to detain her in custody until further Order ofthis Court
3 respecting same.
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It is therefore contemplated that the United States Marshal will arrest the

5 DEFENDANT VESSEL forthwith. Custody by the United States Marshal requires the services
6 ofone or more keepers, and does not include charges for wharfage and the other services usually
7 associated with safekeeping vessels similar to the DEFENDANT VESSEL.
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4.

United Sportfishers of San Diego, Inc., dba H&M Landing, which maintains a

9 private commercial wharf at 2803 Emerson Street, San Diego, California, has agreed to assume
10 the responsibility for safekeeping the said DEFENDANT VESSEL, and to act as her custodian
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until further Order of this Honorable Court.

It will provide, as necessary under the

12 circumstances, the following services for the safekeeping ofthe DEFENDANT VESSEL, at a
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cost not to exceed prevailing rates of the Port of San Diego, and as described below and with

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further particularity in the Declaration ofPhiIip Lobred:

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a.

Assume custody ofthe DEFENDANT VESSEL from the United States Marshal

16 at the place of her arrest (H&M Landing) and maintain and provide wharfage and custodial
17 services for her until further Order ofthe Court, with wharfage services to be charged at the rate
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of$12.00 per foot ofdocumented vessel length (i.e., 95 feet X $12 = $1,140.00 per month), with

19 the custodian component to be charged at the rate of fifty cents ($.50) per foot of documented
20 vessel length per day (i.e., $.50 X 95 = $47.50/day), with labor for required miscellaneous
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required custodial services to be charged at $50.00 per hour, and with electrical services to be

22 charged at actual cost; the above rates shall not exceed those that are usual, customary and
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prevailing in the Port of San Diego;
b.

As soon as possible after assuming custody of the DEFENDANT VESSEL,

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photograph and/or video tape the interior and exterior of the vessel, and prepare a written

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inventory ofkey equipment and property on the vessel which is not installed as part ofthe vessel,

27 with labor for all services to be charged at $50.00 per hour, and with a total cost for the above
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services not to exceed $200.00;
ORDER APPOINTING SUBSTITUTE CUSTODIAN AND
AUTHORIZING MOVEMENT OF DEFENDANT VESSEL

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ClISe No, 12-CV-1399 JLS (WVG)

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c.

Periodically inspect mooring lines/fenders to assure safe and secure mooring;

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In addition to daily inspections of the exterior of the DEFENDANT VESSEL,

3 periodically as deemed prudent under the existing circumstances, but no less than weekly, at the
4 rate of$50.00 per inspection, access the interior ofthe vessel and inspect for watertight integrity,
5 excessive bilge water and fuel lubricant leaks. Ifit is determined that further action is necessary
6 beyond those detailed herein H&M Landing shall notify counsel for the arresting party, so he can
7 seek an appropriate Order from the Court.
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e.

Provide, at usual and customary rates prevailing in the Port of San Diego,

9 additional services such as cleaning, minor maintenance, inspection ofbottom by a diver for the

° purpose ofcleaning and reporting findings regarding underwater hull, metal and zinc conditions,

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as such services are deemed reasonably prudent and necessary .
f.

If PLAINTIFF so requests and agrees to pay the associated additional costs, start

and operate the DEFENDANT VESSEL's engines and other machinery twice monthly, and

14 effect requested repairs as necessary to bring machinery into operational condition.
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g.

Provide other such services as may be required from time-to-time, by further Order

16 of the Court.
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5.

The Substitute Custodian shall not sell the DEFENDANT VESSEL or release her

to anyone and/or let anyone aboard her, other than in the case of emergency or as otherwise

19 directed by the Court.
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6.

PLAINTIFF, by the Declaration ofPhilip Lobred has averred that H&M Landing

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has adequate facilities and supervision at its 2803 Emerson Street, San Diego facility for the

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proper safekeeping of the DEFENDANT VESSEL, and that it maintains insurance policies

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which protect it against occurrences ofnegligence during its custodianship. Those policies are:

24 a policy issued by Great American Insurance Company (Policy No. OMH5335434) providing
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general marine liability coverage with an aggregate limit of$2,000,000.00 and a per occurrence

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limit of $1,000,000.00, and a bumbershoot (excess) policy with an aggregate limit of

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$3,000,000.00. H&M Landing also maintains worker compensation coverage with Zenith

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Insurance Company (No. C069384704). H&M Landing does not maintain hull, machinery or
ORDER APPOINTING SUBSTITUTE CUSTODIAN AND
AUTHORIZING MOVEMENT OF DEFENDANT VESSEL

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Case No. 12-CV-1399 JLS (WVG)

1 protection a indemnity insurance. Further, in said Declaration the Substitute Custodian accepts,
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in accordance with the terms ofthe this Order Appointing Substitute Custodian and Authorizing

3 Movement ofthe Vessel, possession ofthe DEFENDANT VESSEL, her engines, boilers, tackle,
4 apparel, furnishings, appurtenances, etc., and all other necessaries thereunto appertaining and
5 belonging, which is the subject of the action herein.
7.

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PLAINTIFF, in consideration ofthe U.S. Marshal's consentto the substitution of

7 custodian, agrees to release the United States and the Marshal from any and all liability and
8 responsibility arising out of the care and custody of the DEFENDANT VESSEL, her engines,
9 boilers, tackle, apparel, furnishings, appurtenances, etc., and all other necessaries thereunto
10 appertaining and belonging, from the time the United States Marshal transfers possession ofthe
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DEFENDANT VESSEL over to said Substitute Custodian, and said PLAINTIFF further agrees

12 to hold harmless and indemnify the United States and the Marshal from any and all claims
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whatsoever arising out of the Substitute Custodian's possession and safekeeping.

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THEREFORE, IT IS HEREBY ORDERED that the United States Marshal for the

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Southern District be, and is hereby, authorized and directed upon seizure of the DEFENDANT

16 VESSEL, her engines, boilers, tackle, apparel, furnishings, appurtenances, etc., and all other
17 necessaries thereunto appertaining and belonging, pursuant to Warrant for Arrest to be issued
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by the Clerk ofthis Court pursuant to Order ofthe Court, to surrender the possession thereofto

19 the Substitute Custodian named herein, and that upon such surrender the U.S. Marshal shall be
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discharged from its duties and responsibilities for the safekeeping of the DEFENDANT

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VESSEL and held harmless from and against any and all claims whatever arising out of said

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substituted possession and safekeeping.

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IT IS FURTHER ORDERED that H&M Landing be and is hereby appointed the

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custodian of said DEFENDANT VESSEL, to retain the same in its custody for possession and

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safekeeping for the aforementioned compensation and in accordance with the Declaration of

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Philip Lobred and the recitals herein contained until further Order of this Court.

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III
ORDER APPOINTING SUBSTITUTE CUSTODIAN AND
AUTHORIZING MOVEMENT OF DEFENDANT VESSEL

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Case No. I2-CV-1399 JLS (WVG)

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IT IS FURTHER ORDERED that PLAINTIFF's attorney will serve by mail a copy of
said Order to the person(s) believed to be the owner(s) of the DEFENDANT VESSEL.

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4 Dated: June l~2012
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UNITED STATES MAGISTRATE JUDGE

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ORDER APPOINTING SUBSTITUTE CUSTODIAN AND
AUTHORIZING MOVEMENT OF DEFENDANT VESSEL

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Case No. 12-CV-1399 JLS (WVG)