GB Capital Holdings, LLC v. S/V GLORI B

Filing 6

ORDER to Issue Vessel Arrest Warrant and to Appoint Substitute Custodian. The Court grants plaintiff's ex parte motions for a vessel arrest warrant (ECF No. 2 ) and for appointment of a substitute custodian (ECF No. 3 ). Signed by Magistrate Judge Andrew G. Schopler on 04/10/2018. (electronic cc: US Marshals) (ajs)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GB CAPITAL HOLDINGS, LLC, 12 Case No.: 18-cv-0312-WQH-AGS Plaintiff, ORDER TO ISSUE VESSEL ARREST WARRANT AND TO APPOINT SUBSTITUTE CUSTODIAN 13 14 15 16 17 18 v. S/V GLORI B, a 1977 Sailing Vessel of Approximately 27-Feet in Length, U.S.C.G. Official No. 598405, and all of her engines, tackle, accessories, equipment, furnishings and appurtenances, in rem, 19 20 Defendant. 21 22 San Diego Mooring Company supplied the defendant sailboat a berth in San Diego 23 Bay. Under the mooring contract, the vessel must undergo an annual safety inspection. 24 When the sailboat’s owner purportedly declined such a safety check, the company ordered 25 him to remove his boat. The owner allegedly refused. San Diego Mooring Company’s 26 agent, the plaintiff here, now seeks an arrest warrant for the sailboat and an order 27 appointing a substitute custodian to safeguard the vessel. The Court grants these requests. 28 1 18-cv-0312-WQH-AGS 1 BACKGROUND 2 According to the verified complaint, Jeffrey Heston contracted with San Diego 3 Mooring Company to provide mooring and wharfage services for his sailboat, the 4 Defendant Vessel.1 Under the contract, Heston’s sailboat was required to undergo an 5 annual physical inspection and safety check by certain approved methods, in the company’s 6 discretion. Heston allegedly refused the company’s preferred method of a U.S. Coast Guard 7 Auxiliary inspection, stating that the Coast Guard was not competent to make 8 seaworthiness determinations and that he was himself “competent to make such 9 determination.” (ECF No. 2-1, at 4-5.) As a result, San Diego Mooring Company ordered 10 Heston to remove his sailboat from its mooring, which he purportedly refused to do. 11 Finally, the company impounded the Defendant Vessel and moved it to Pier 32 Marina in 12 National City, California. The company then directed its agent, the plaintiff here, to 13 institute this admiralty action and to seek a Court order to issue a vessel arrest warrant and 14 to appoint a substitute custodian. 15 16 17 18 DISCUSSION A. Vessel Arrest Warrant Plaintiff is entitled to an arrest warrant if it has a valid maritime lien on the Defendant Vessel and it meets the requirements for a civil action in rem to enforce that lien. 19 1. Maritime Lien 20 Under the Maritime Lien Act, 46 U.S.C. § 31342, “a person (1) providing 21 necessaries (2) to a vessel (3) on the order of the owner or a person authorized by the owner 22 has a [maritime] necessaries lien on the vessel and may bring a civil action in rem to enforce 23 that lien.” Ventura Packers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 922 (9th Cir. 24 2002). By the moorage contract’s explicit terms, San Diego Mooring Company provided 25 26 27 28 The term “Defendant Vessel” refers to S/V GLORI B, a 1977 sailing vessel of approximately 27 feet in length, U.S.C.G. Official No. 598405, and all of her tackle, accessories, equipment, furnishings, and appurtenances. 2 1 18-cv-0312-WQH-AGS 1 the Defendant Vessel wharfage services, which are “‘necessaries’ within the meaning of 2 maritime law.” Cahuenga Assocs. II v. S/V Mako, 256 F. Supp. 3d 1092, 1094 (S.D. Cal. 3 2017) (collecting cases); (see ECF No. 1-2, at 1-2). The contract further specifies that the 4 agreement is for “the benefit of the above [Defendant] Vessel” and that the contracting 5 parties are San Diego Mooring Company and Jeffrey Heston, who affirmed that he was the 6 vessel’s owner. (ECF No. 1-2, at 2.) So, San Diego Mooring Company provided 7 necessaries to the Defendant Vessel at the owner’s request, and the company therefore has 8 the required maritime lien.2 9 2. Civil Action in Rem 10 “An action in rem may be brought . . . . [t]o enforce any maritime lien.” Fed. R. 11 Civ. P., Supp. Admiralty Rule C(1)(a). The complaint for such an action must: (1) “be 12 verified,” (2) “describe with reasonable particularity the property that is the subject of the 13 action,” and (3) “state that the property is within the district or will be within the district 14 while the action is pending.” Fed. R. Civ. P., Supp. Admiralty Rule C(2). If after 15 “review[ing] the complaint and any supporting papers,” the Court finds that these 16 “conditions for an in rem action appear to exist, the court must issue an order directing the 17 clerk to issue a warrant for the arrest of the vessel or other property that is the subject of 18 the action.” Fed. R. Civ. P., Supp. Admiralty Rule C(3)(a)(i). The arrest warrant should 19 issue “upon a prima facie showing that the plaintiff has an action in rem against the 20 defendant . . . and that the property is within the district.” Fed. R. Civ. P., Supp. Admiralty 21 Rule C, Advisory Committee Notes to 1985 Amendment. 22 This Court has reviewed plaintiff’s verified complaint and supporting papers, which 23 describe the Defendant Vessel with particularity (see note 1, supra) and establish that it is 24 currently located within this District at Pier 32 Marina in National City, California. (See, 25 e.g., ECF No. 1, at 1-2, 4-5, 13; ECF No. 1-2, at 3; ECF No. 3-1, at 1.) Because plaintiff 26 27 28 2 Because a maritime necessaries lien clearly exists, the Court need not address plaintiff’s argument that it has an additional maritime lien based on a trespass theory. 3 18-cv-0312-WQH-AGS 1 has made a prima facie showing that the conditions for an in rem action exist, the requested 2 vessel arrest warrant must issue. 3 B. Substitute Custodian 4 Plaintiff moves to appoint Pier 32 Marina as substitute custodian to safeguard the 5 sailboat. In conjunction with a vessel arrest warrant, “a judge may order that custody of the 6 vessel be given to the operator of a marina or similar facility . . . if a judge finds that such 7 firm or person can and will safely keep the vessel and has in effect adequate insurance to 8 cover any liability for failure to do so.” Civ. LR E.1(c)(2). Jimi Laughery, the Assistant 9 Marina Manager for Pier 32 Marina, has declared under penalty of perjury that he and his 10 staff are “fully qualified to preserve and protect [the Defendant Vessel] and safely keep her 11 in the place and stead of the United States Marshal, until further Order of the Court.” (ECF 12 No. 3-1, at 2.) During his eight-and-a-half years at Pier 32, Laughery has deployed 13 dewatering pumps to avoid boat sinkings and has responded to multiple pollution incidents. 14 (Id.) If Pier 32 is appointed as substitute custodian, he also promised to inventory and 15 photograph (or videotape) the Defendant Vessel and provide ongoing wharfage and 16 custodial services for the boat. (Id.) Finally, he averred that Pier 32 Marina maintains at 17 least three insurance policies to protect against negligence during its custodianship, which 18 are each detailed in his declaration. (Id. at 3.) Although the Defendant Vessel has an 19 estimated value of only $3,500, each of Pier 32’s insurance policies has a limit of at least 20 $1 million. (ECF No. 2-1, at 6; ECF No. 3-1, at 3.) 21 Based on these facts, the Court finds that Pier 32 Marina can and will safely keep 22 the Defendant Vessel and currently has adequate insurance to cover its custodian 23 responsibilities. 24 25 26 CONCLUSION The Court grants plaintiff’s ex parte motions for a vessel arrest warrant (ECF No. 2) and for appointment of a substitute custodian (ECF No. 3). The Court orders as follows: 27 28 4 18-cv-0312-WQH-AGS 1 2 ARREST WARRANT FOR DEFENDANT VESSEL 1. The Clerk of Court must immediately prepare and issue an Arrest Warrant for 3 the Defendant Vessel, including attaching a copy of this Order to the Arrest Warrant. The 4 Clerk must immediately deliver the Arrest Warrant and attached Order to the United States 5 Marshal for the Southern District of California for service. 6 2. The U.S. Marshal will ensure that a copy of this Order is attached to and 7 served with the Arrest Warrant for the Defendant Vessel. The Marshal may effectuate 8 service by posting the warrant and a copy of this Order upon the Defendant Vessel and by 9 serving the same on the substitute custodian, Pier 32 Marina. 10 3. As soon as possible, plaintiff must serve a copy of this Order on the Defendant 11 Vessel’s owner (or apparent owner) Jeffrey Heston as well as on all known maritime lien 12 claimants and any others with a known or suspected interest in the Defendant Vessel. 13 4. Any person claiming an interest in the Defendant Vessel shall be entitled upon 14 request to a prompt hearing at which plaintiff will be required to show why the arrest should 15 not be vacated or other relief granted consistent with the Supplemental Rules for Certain 16 Admiralty and Maritime Claims. 17 5. Plaintiff must comply with all notice provisions of the Supplemental 18 Admiralty Rules and our Local Rules, including publishing the arrest in the San Diego 19 Daily Transcript. See Fed. R. Civ. P., Supp. Admiralty Rule C(4); Civ. LR 83.7(a), C.1(b). 20 ORDER APPOINTING SUBSTITUTE CUSTODIAN 21 6. The U.S. Marshal is authorized and directed upon seizure of the Defendant 22 Vessel to surrender the possession of it to the substitute custodian named herein. Upon 23 such surrender, the Marshal will be discharged from the duties and responsibilities for the 24 safekeeping of the Defendant Vessel and held harmless from and against any and all claims 25 whatever arising out of the substituted possession and safekeeping. 26 7. Pier 32 Marina is appointed the substitute custodian of the Defendant Vessel, 27 to retain her in its custody in her current slip location or another one at the marina, for 28 possession and safekeeping until further Court order. 5 18-cv-0312-WQH-AGS 1 2 8. At rates not exceeding the usual and customary rates prevailing in the Port of San Diego, Pier 32 Marina must provide: 3 a. Inventory: As soon as possible after assuming custody of the Defendant 4 Vessel, Pier 32 Marina must photograph and/or videotape the Defendant Vessel’s interior 5 and exterior and prepare a written inventory of key equipment and property that is not 6 installed as part of the vessel. 7 b. Wharfage and Custodial Services: Pier 32 Marina must provide the 8 Defendant Vessel ongoing wharfage and custodial services. The custodial services will 9 include maintenance of the insurance specified in Jimi Laughery’s declaration (see ECF 10 No. 3-1, at 3) and general custodial services, including: periodic inspection of mooring 11 lines/fenders to assure safe and secure mooring; daily specific visual inspection of the 12 exterior of the vessel for evidence of water intrusion, tampering, or any other problems; 13 interior inspections at least twice monthly; and “walk by” inspections by marina personnel. 14 c. Additional Services: Pier 32 Marina will provide the following 15 additional services: cleaning; minor maintenance; inspection of the vessel’s bottom by a 16 diver for the purpose of cleaning and reporting findings regarding underwater hull, metal, 17 and zinc conditions; and other services as may be required from time to time by further 18 Court order. If Pier 32 Marina determines that further monitoring or services are necessary, 19 Pier 32 Marina or its counsel must so notify the Court or seek an appropriate Order. 20 21 22 9. Without a Court order, Pier 32 Marina shall not sell or transfer the Defendant Vessel, nor run the Defendant Vessel’s engines or generators. 10. Except as directed by this Court or in case of emergency, Pier 32 Marina will 23 not release the Defendant Vessel to anyone or let anyone aboard her. 24 Dated: April 10, 2018 25 26 27 28 6 18-cv-0312-WQH-AGS

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