Chula Vista Marina/RV Park, Ltd. v. M/Y Oyeme, U.S.C.G. Official No. 514480

Filing 13

ORDER Granting 9 Second Ex Parte Application for Appointment of Substitute Custodian and for Authorization for Movement of Defendant Vessel. Signed by Judge M. James Lorenz on 11/14/2017. (mxn)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHULA VISTA MARINA/RV PARK,
LTD,
Plaintiff,

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v.
M/Y OYEME, U.S.G. Official No.
514480, AND ALL OF HER ENGINES,
TACKLE, ACCESSORIES,
EQUIPMENT, FURNISHINGS AND
APPURTENANCES, in rem,

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Case No.: 3:17-cv-2231-L-WVG
ORDER GRANTING SECOND EX
PARTE APPLICATION FOR
APPOINTMENT OF SUBSTITUTE
CUSTODIAN AND FOR
AUTHORIZATION FOR
MOVEMENT OF DEFENDANT
VESSEL

Defendant.

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Pending before the Court is Plaintiff's Second Application for Appointment of

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Substitute Custodian and for Authorization for Movement of Defendant Vessel1

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("Application"). For the reasons stated below, the Application is granted.

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Plaintiff does not actually request to move Defendant; however, the application
implies that, if necessary, Plaintiff should be permitted to move Defendant to another slip
in the same marina. Accordingly, no other movement is contemplated by this Order.
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3:17-cv-2231-L-WVG

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Defendant is a 60 ft. wooden motor yacht built in 1968, and registered with the

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United States Coast Guard under Documentation No. 514480. Plaintiff contends it

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provided wharfage services to Defendant pursuant to the License Agreement dated June

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3, 2013. (Verified Compl. Ex. A, see docs. no. 1 & 11.) As alleged in the verified

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complaint, Defendant's ostensible owner James S. Twemlow made regular monthly

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payments; however, the account eventually fell into arrears. On November 13, 2015,

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Plaintiff informed Mr. Twemlow that Defendant was flooded with water and not

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seaworthy. Plaintiff requested Mr. Twemlow to remove Defendant from the marina for

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repairs, or the License Agreement would be terminated. Approximately a year later,

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Plaintiff again informed Mr. Twemlow that Defendant was still not seaworthy, but

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permitted Defendant's tenancy at the marina to continue, with the understanding that Mr.

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Twemlow would undertake the necessary repairs. As Defendant remained in the same

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condition, on October 16, 2017, Plaintiff notified Mr. Twemlow that the License

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Agreement would terminate as of October 21, 2017, and that following that date, if

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Defendant was not removed, wharfage fees would accrue at the higher transient vessel

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rate. At the same time, Plaintiff notified Mr. Twemlow that Defendant's account was

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$1,895.92 in arrears, and demanded payment within 15 days. Mr. Twemlow responded

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that he was unable to pay the arrears, repair Defendant, or remove it from the marina.

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Plaintiff claims that as of October 31, 2017, Defendant's account has accrued $3,460.52

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in arrears.

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On November 1, 2017, Plaintiff commenced this action in rem against Defendant,

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her engines, boilers, tackle, apparel, furnishings, appurtenances, etc., and all other

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necessaries thereunto appertaining and belonging. Plaintiff asserted breach of the

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License Agreement, trespass, and quantum meruit claims, and requested Defendant's

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arrest, declaration of a maritime lien for $3,460.52 plus additional wharfage fees through

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the date of arrest, interest and costs, Defendant's sale, and ability to credit bid at the sale.

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The Court has subject matter jurisdiction pursuant to 28 U.S.C. §1333(1).

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3:17-cv-2231-L-WVG

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A party providing necessaries to a vessel on the order of its owner or a person

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authorized by the owner has a maritime lien on the vessel. 46 U.S.C. § 31342. Use of a

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wharf is a necessary for purposes of maritime liens. Ex parte Easton, 95 U.S. 68, 77

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(1877); see also id. at 73; The Western Wave, 77 F.2d 695, 698 (5th Cir. 1935); see also

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Farwest Steel Corp. v. Barge Sea-Span 241, 769 F.2d 620, 623 (9th Cir. 1985), quoting

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Equilease Corp. v. M/V Sampson, 568 F. Supp. 1259, 1263 (E.D. La. 193), aff'd 742 F.2d

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852 (5th Cir. 1984) (the supplies and services "reasonably needed in the ship's business"

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give rise to maritime liens).

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Plaintiff made a prima facie case that it provided wharfage services to Defendant,

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which gave rise to a maritime lien. Accordingly, the Court has granted Plaintiff's ex parte

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application to issue a warrant for Defendant's arrest, and ordered the Clerk of the Court to

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issue the warrant commanding the United States Marshal to take Defendant into custody.

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Based in the representations of Plaintiff's General Manager Andrea La Valley,

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Defendant is unseaworthy and located in a slip in Plaintiff's marina at 550 Marina

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Parkway, Chula Vista, California (the "Marina"). (Decl. of Andrea La Valley in Support

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of Second Ex parte Application for Appointment of Substitute Custodian and for

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Authorization for Movement of Defendant Vessel, doc. no. 9-1 ("La Valley Decl.") ¶2.)

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Although the United States Marshal is ordered to arrest Defendant, Defendant's custody

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requires the services of one or more keepers, and does not include charges for wharfage

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and needed for Defendant's safekeeping. (Application at 2.) Plaintiff represents that

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United States Marshal is unable to perform these services at a price comparable to

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Plaintiff's. (La Valley Decl. ¶8.)

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Accordingly, upon arrest, Plaintiff has offered to assume the responsibility for

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Defendant's custody and safekeeping in the slip where she is currently located or another

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suitable slip at the Marina, and act as her substitute custodian until further Order of this

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Court. (Application at 1; La Valley Decl. ¶¶3 & 9.) Plaintiff promises to provide the

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necessary services, that it has the expertise and facilities needed to perform them, as well

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3:17-cv-2231-L-WVG

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as sufficient insurance to protect it against occurrences of negligence. (La Valley Decl.

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¶¶ 3-6.) Plaintiff promises to perform these services at a cost not to exceed prevailing

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rates of the Port of San Diego. (Id. ¶5.e.)

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Based on Plaintiff's foregoing representations and promises, IT IS HEREBY
ORDERED as follows:

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1. Plaintiff's Ex Parte Application is granted.

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2. The United States Marshal for the Southern District of California shall be, and

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is hereby, authorized and directed upon seizure pursuant to the arrest warrant of

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Defendant, her engines, boilers, tackle, apparel, furnishings, appurtenances, etc., and all

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other necessaries thereunto appertaining and belonging, to surrender the possession

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thereof to the Substitute Custodian named herein. Upon such surrender the United States

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Marshal shall be discharged from his duties and responsibilities for Defendant's

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safekeeping and held harmless from and against any and all claims whatever arising out

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of said substituted possession and safekeeping.

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3. Plaintiff is hereby appointed Substitute Custodian for Defendant, her engines,

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boilers, tackle, apparel, furnishings, appurtenances, etc., and all other necessaries

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thereunto appertaining and belonging, to retain her in its custody for possession and

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safekeeping. Plaintiff shall provide the expertise, facilities and insurance, and perform all

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services necessary for Defendant's safekeeping and custody, as represented and promised

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in the Application and Declaration of Andrea La Valley (docs. no. 9 & 9-1), which are

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incorporated herein by reference, and as required to comply with this Order.

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4. Plaintiff shall release the United States and the United States Marshal from any

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and all liability and responsibility arising out of the care and custody of Defendant, her

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engines, boilers, tackle, apparel, furnishings, appurtenances, etc., and all other necessaries

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thereunto appertaining and belonging, from the time the United States Marshal transfers

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possession of Defendant to Plaintiff. Furthermore, Plaintiff shall hold harmless and

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indemnify the United States and the United States Marshal from any and all claims

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whatsoever arising out of the Substitute Custodian’s possession and safekeeping of

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Defendant, her engines, boilers, tackle, apparel, furnishings, appurtenances, etc., and all

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other necessaries thereunto appertaining and belonging.

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5. Plaintiff's attorney shall forthwith serve a copy of this Order to any and all
person(s) believed to be Defendant's owner(s).
IT IS SO ORDERED.

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Dated: November 14, 2017

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3:17-cv-2231-L-WVG