Electra Yacht of Newport, Inc. v. S/V Mousetrap, Cayman Island Official No. 743804,a JFA Chantier Navala Sailing Vessel of Approximately 33.5 Meters in Length

Filing 5

ORDER granting 3 Motion to Appoint Custodian, granting 2 Motion for Issuance of Warrant in Rem. Signed by Judge Larry Alan Burns on 3/23/17. [cc:USM] (kas) (Additional attachment(s) added on 3/24/2017: # 1 Return Receipt of Order from USMS) (kas).

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ELECTRA YACHT OF NEWPORT, INC.,

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CASE NO. 17cv551

Plaintiffs,

ORDER AUTHORIZING ARREST OF
DEFENDANT VESSEL AND
APPOINTING SUBSTITUTE
CUSTODIAN

vs.
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S/V MOUSETRAP, Cayman Islands
Official No. 743804, a JFA Chantier
Navala Sailing Vessel of Approximately
33.5 Meters in Length,
AND ALL OF HER ENGINES, TACKLE,
ACCESSORIES, EQUIPMENT,
FURNISHINGS, AND
APPURTENANCES, in rem,
Defendants.

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Electra Yacht’s David Maguire filed an action against the S/V Mousetrap for breach

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of a maritime contract. Maguire says the Mousetrap’s owners owe him about $200,000 for

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services he’s provided since last summer. Maguire filed ex parte motions requesting the

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Court order (i) a warrant for the arrest of the Mousetrap; and (ii) an order appointing Driscoll

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Boat Works as custodian.

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I.

Motion for arrest warrant

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The Court must first “review the complaint and any supporting papers” to determine

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if “the conditions for an in rem action appear to exist.” Fed. R. Civ. P. Supp. Admiralty

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Rule C. “An action in rem may be brought” to “enforce any maritime liens.” Id. Specifically,

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a “person providing necessaries to a vessel on the order of the owner or a person authorized

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by the owner” “has a maritime lien on the vessel” and “may bring a civil action in rem to

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enforce the lien.” 46 U.S.C. § 31342. The term necessaries includes repairs. Id. § 3130. And

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courts have interpreted the term broadly to include “any item which is reasonably needed for

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the venture in which the ship is engaged.” Foss Launch & Tug Co. v. Char Ching Shipping

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U.S.A., Ltd., 808 F.2d 697, 699 (9th Cir. 1987). The complaint must also be verified,

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describe the property with reasonable particularity, and state that the property is within the

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district. Fed. R. Civ. P. Supp. Admiralty Rule C.

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Maguire says that he provided work on the Mousetrap at the request of the Captain

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and Engineer based on an oral agreement in June 2015. He received payment for about a

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year, but since last summer, he hasn’t been paid for a myriad of repairs. Maguire says all of

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the unpaid work was inspected and approved by the Captain or Engineer. He’s attached the

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relevant unpaid invoices. Maguire’s complaint is verified, describes the ship with particularity,

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and states that the Mousetrap is docked within the district.

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The Court finds an in rem action to enforce a maritime lien appears to exist.

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Therefore, the Court "must issue an order directing the clerk to issue a warrant for the arrest

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of the vessel.” Id. The Court GRANTS the motion (Dkt. 2) and issues the following orders:

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1. The Court orders the Clerk to prepare a warrant for the arrest of the Defendant vessel

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S/V Mousetrap and all of her furnishings as described in the caption. The Clerk shall

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deliver the warrant to the U.S. Marshal for the Southern District for service.

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2. Electra Yacht must comply with the notice provisions as outlined in Fed. R. Civ. P.

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Supp. Admiralty Rule C(4) and Local Civ. R. C.1(b). Any person with an interest in the

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Mousetrap is entitled to a prompt hearing upon request. At the hearing, Electra Yacht

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needs to show probable cause for the issuance of the warrant. Fed. R. Civ. P. Supp.

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Admiralty Rule E.

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II.

Substitution of Custodian

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Electra Yacht also moved for the appointment of a substitute custodian. The Court

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may “order that custody of the vessel be given to the operator of a marina” if the Court finds

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they can “safely keep the vessel and has in effect adequate insurance.” Local Civ. Rule E.1.

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The Court finds that Driscoll Boat Works satisfies the local rule and GRANTS the motion to

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appoint Driscoll as substitute custodian authorized to move the vessel (Dkt. 3). The Court

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issues the following orders:

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1. Driscoll Boat Works is appointed as substitute custodian of the S/V Mousetrap.

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Driscoll’s Michael Benedict is authorized to accept custodianship. Driscoll may move

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the vessel to any suitable and safe location within its boatyard for safekeeping as

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discussed in § 6.

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2. The U.S. Marshal shall surrender the Mousetrap to Driscoll and the Marshal shall be

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discharged and not liable for any claims arising out of surrendering the vessel to

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Driscoll.

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3. Driscoll shall assume custody of the Mousetrap and arrange to tow it from The Marine

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Group’s boatyard at 997 G Street in Chula Vista to Driscoll Boat Works at 2500

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Shelter Island Drive in San Diego, and maintain her there until further order of the

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Court.

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4. Electra Yacht assumes the responsibility for safekeeping of the Mousetrap.

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5. Driscoll must not sell the Mousetrap. Driscoll must not release the vessel or allow

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anyone aboard except in an emergency.
6. Driscoll shall provide the following services for the safekeeping of the Mousetrap at
a cost not to exceed the prevailing rates of the port:
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As soon as possible after assuming custody of the Mousetrap, Driscoll must
photograph or video tape her interior and exterior.

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Provide vessel monitoring services. Periodically inspect mooring lines and

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fenders to assure safe mooring. Periodically inspect the vessel for watertight

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integrity, excessive bilge water, and fuel lubricant leaks.
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Provide wharfage services and electricity if necessary.

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7. If Driscoll thinks further action is necessary for safekeeping beyond the instructions

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in this order, Driscoll shall notify Electra Yacht's attorney so counsel can seek an

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appropriate order from the Court.

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This order must be served with the warrant for arrest. Electra Yacht’s attorney must

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immediately serve the Mousetrap’s owners, agents, and any others that may have an

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interest in the Mousetrap, by mail, and, email if possible.

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IT IS SO ORDERED.
DATED: March 23, 2017

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HONORABLE LARRY ALAN BURNS
United States District Judge

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