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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GB CAPITAL HOLDINGS, LLC,

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Case No.: 18-cv-0312-WQH-AGS

Plaintiff,

ORDER TO ISSUE VESSEL ARREST
WARRANT AND TO APPOINT
SUBSTITUTE CUSTODIAN

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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,

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Defendant.

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San Diego Mooring Company supplied the defendant sailboat a berth in San Diego

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Bay. Under the mooring contract, the vessel must undergo an annual safety inspection.

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When the sailboat’s owner purportedly declined such a safety check, the company ordered

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him to remove his boat. The owner allegedly refused. San Diego Mooring Company’s

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agent, the plaintiff here, now seeks an arrest warrant for the sailboat and an order

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appointing a substitute custodian to safeguard the vessel. The Court grants these requests.

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BACKGROUND

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According to the verified complaint, Jeffrey Heston contracted with San Diego

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Mooring Company to provide mooring and wharfage services for his sailboat, the

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Defendant Vessel.1 Under the contract, Heston’s sailboat was required to undergo an

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annual physical inspection and safety check by certain approved methods, in the company’s

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discretion. Heston allegedly refused the company’s preferred method of a U.S. Coast Guard

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Auxiliary inspection, stating that the Coast Guard was not competent to make

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seaworthiness determinations and that he was himself “competent to make such

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determination.” (ECF No. 2-1, at 4-5.) As a result, San Diego Mooring Company ordered

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Heston to remove his sailboat from its mooring, which he purportedly refused to do.

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Finally, the company impounded the Defendant Vessel and moved it to Pier 32 Marina in

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National City, California. The company then directed its agent, the plaintiff here, to

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institute this admiralty action and to seek a Court order to issue a vessel arrest warrant and

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to appoint a substitute custodian.

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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.

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1. Maritime Lien

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Under the Maritime Lien Act, 46 U.S.C. § 31342, “a person (1) providing

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necessaries (2) to a vessel (3) on the order of the owner or a person authorized by the owner

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has a [maritime] necessaries lien on the vessel and may bring a civil action in rem to enforce

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that lien.” Ventura Packers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 922 (9th Cir.

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2002). By the moorage contract’s explicit terms, San Diego Mooring Company provided

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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.
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the Defendant Vessel wharfage services, which are “‘necessaries’ within the meaning of

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maritime law.” Cahuenga Assocs. II v. S/V Mako, 256 F. Supp. 3d 1092, 1094 (S.D. Cal.

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2017) (collecting cases); (see ECF No. 1-2, at 1-2). The contract further specifies that the

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agreement is for “the benefit of the above [Defendant] Vessel” and that the contracting

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parties are San Diego Mooring Company and Jeffrey Heston, who affirmed that he was the

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vessel’s owner. (ECF No. 1-2, at 2.) So, San Diego Mooring Company provided

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necessaries to the Defendant Vessel at the owner’s request, and the company therefore has

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the required maritime lien.2

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2. Civil Action in Rem

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“An action in rem may be brought . . . . [t]o enforce any maritime lien.” Fed. R.

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Civ. P., Supp. Admiralty Rule C(1)(a). The complaint for such an action must: (1) “be

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verified,” (2) “describe with reasonable particularity the property that is the subject of the

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action,” and (3) “state that the property is within the district or will be within the district

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while the action is pending.” Fed. R. Civ. P., Supp. Admiralty Rule C(2). If after

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“review[ing] the complaint and any supporting papers,” the Court finds that these

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“conditions for an in rem action appear to exist, the court must issue an order directing the

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clerk to issue a warrant for the arrest of the vessel or other property that is the subject of

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the action.” Fed. R. Civ. P., Supp. Admiralty Rule C(3)(a)(i). The arrest warrant should

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issue “upon a prima facie showing that the plaintiff has an action in rem against the

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defendant . . . and that the property is within the district.” Fed. R. Civ. P., Supp. Admiralty

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Rule C, Advisory Committee Notes to 1985 Amendment.

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This Court has reviewed plaintiff’s verified complaint and supporting papers, which

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describe the Defendant Vessel with particularity (see note 1, supra) and establish that it is

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currently located within this District at Pier 32 Marina in National City, California. (See,

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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

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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.
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has made a prima facie showing that the conditions for an in rem action exist, the requested

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vessel arrest warrant must issue.

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B.

Substitute Custodian

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Plaintiff moves to appoint Pier 32 Marina as substitute custodian to safeguard the

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sailboat. In conjunction with a vessel arrest warrant, “a judge may order that custody of the

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vessel be given to the operator of a marina or similar facility . . . if a judge finds that such

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firm or person can and will safely keep the vessel and has in effect adequate insurance to

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cover any liability for failure to do so.” Civ. LR E.1(c)(2). Jimi Laughery, the Assistant

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Marina Manager for Pier 32 Marina, has declared under penalty of perjury that he and his

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staff are “fully qualified to preserve and protect [the Defendant Vessel] and safely keep her

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in the place and stead of the United States Marshal, until further Order of the Court.” (ECF

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No. 3-1, at 2.) During his eight-and-a-half years at Pier 32, Laughery has deployed

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dewatering pumps to avoid boat sinkings and has responded to multiple pollution incidents.

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(Id.) If Pier 32 is appointed as substitute custodian, he also promised to inventory and

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photograph (or videotape) the Defendant Vessel and provide ongoing wharfage and

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custodial services for the boat. (Id.) Finally, he averred that Pier 32 Marina maintains at

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least three insurance policies to protect against negligence during its custodianship, which

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are each detailed in his declaration. (Id. at 3.) Although the Defendant Vessel has an

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estimated value of only $3,500, each of Pier 32’s insurance policies has a limit of at least

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$1 million. (ECF No. 2-1, at 6; ECF No. 3-1, at 3.)

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Based on these facts, the Court finds that Pier 32 Marina can and will safely keep

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the Defendant Vessel and currently has adequate insurance to cover its custodian

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responsibilities.

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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:

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ARREST WARRANT FOR DEFENDANT VESSEL
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The Clerk of Court must immediately prepare and issue an Arrest Warrant for

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the Defendant Vessel, including attaching a copy of this Order to the Arrest Warrant. The

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Clerk must immediately deliver the Arrest Warrant and attached Order to the United States

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Marshal for the Southern District of California for service.

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2.

The U.S. Marshal will ensure that a copy of this Order is attached to and

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served with the Arrest Warrant for the Defendant Vessel. The Marshal may effectuate

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service by posting the warrant and a copy of this Order upon the Defendant Vessel and by

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serving the same on the substitute custodian, Pier 32 Marina.

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3.

As soon as possible, plaintiff must serve a copy of this Order on the Defendant

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Vessel’s owner (or apparent owner) Jeffrey Heston as well as on all known maritime lien

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claimants and any others with a known or suspected interest in the Defendant Vessel.

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4.

Any person claiming an interest in the Defendant Vessel shall be entitled upon

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request to a prompt hearing at which plaintiff will be required to show why the arrest should

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not be vacated or other relief granted consistent with the Supplemental Rules for Certain

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Admiralty and Maritime Claims.

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5.

Plaintiff must comply with all notice provisions of the Supplemental

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Admiralty Rules and our Local Rules, including publishing the arrest in the San Diego

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Daily Transcript. See Fed. R. Civ. P., Supp. Admiralty Rule C(4); Civ. LR 83.7(a), C.1(b).

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ORDER APPOINTING SUBSTITUTE CUSTODIAN

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6.

The U.S. Marshal is authorized and directed upon seizure of the Defendant

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Vessel to surrender the possession of it to the substitute custodian named herein. Upon

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such surrender, the Marshal will be discharged from the duties and responsibilities for the

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safekeeping of the Defendant Vessel and held harmless from and against any and all claims

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whatever arising out of the substituted possession and safekeeping.

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7.

Pier 32 Marina is appointed the substitute custodian of the Defendant Vessel,

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to retain her in its custody in her current slip location or another one at the marina, for

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possession and safekeeping until further Court order.
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At rates not exceeding the usual and customary rates prevailing in the Port of

San Diego, Pier 32 Marina must provide:

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a.

Inventory: As soon as possible after assuming custody of the Defendant

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Vessel, Pier 32 Marina must photograph and/or videotape the Defendant Vessel’s interior

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and exterior and prepare a written inventory of key equipment and property that is not

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installed as part of the vessel.

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b.

Wharfage and Custodial Services: Pier 32 Marina must provide the

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Defendant Vessel ongoing wharfage and custodial services. The custodial services will

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include maintenance of the insurance specified in Jimi Laughery’s declaration (see ECF

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No. 3-1, at 3) and general custodial services, including: periodic inspection of mooring

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lines/fenders to assure safe and secure mooring; daily specific visual inspection of the

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exterior of the vessel for evidence of water intrusion, tampering, or any other problems;

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interior inspections at least twice monthly; and “walk by” inspections by marina personnel.

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c.

Additional Services: Pier 32 Marina will provide the following

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additional services: cleaning; minor maintenance; inspection of the vessel’s bottom by a

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diver for the purpose of cleaning and reporting findings regarding underwater hull, metal,

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and zinc conditions; and other services as may be required from time to time by further

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Court order. If Pier 32 Marina determines that further monitoring or services are necessary,

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Pier 32 Marina or its counsel must so notify the Court or seek an appropriate Order.

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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.
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Except as directed by this Court or in case of emergency, Pier 32 Marina will

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not release the Defendant Vessel to anyone or let anyone aboard her.

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Dated: April 10, 2018

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