Bunkers International Corporation v. M/V ANASAZI et al

Filing 214

ORDER re: 213 Further Amended Stipulation for Final Distribution and to Dismiss the Case with Prejudice. Final distribution of funds from the sale of the M/V Anasazi and the termination of Garnishees from this action are addressed herein. See Order for details. Signed by Magistrate Judge Thomas E. Morris on 5/15/2012. (DLC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
“IN ADMIRALTY”
BUNKERS INTERNATIONAL
CORPORATION,
Plaintiff,
vs.

CASE NO. 3:10-cv-315-J-32TEM

M/V ANASAZI, its engines, tackle and
apparel, et al.,
Defendants and Garnishees.
__________________________________
ORDER
This case is before the Court on the Further Amended Stipulation for Final
Distribution and to Dismiss the Case with Prejudice (Doc. #213, Further Amended
Stipulation), filed on May 8, 2012. The parties Bunkers International Corp., Trustee Timothy
A. Brown, and the United States, which are the only remaining parties with an interest in
the res’ in this action, have requested the Court: (1) distribute the remainder of the
monetary proceeds from the sale of the M/V Anasazi; (2) vacate the outstanding writs of
garnishment, with each garnishee being terminated from the case and each garnishee
bearing its own attorney fees and costs in connection with the garnishment writs; and, (3)
dismiss the case with prejudice. This matter has been referred to the undersigned for
disposition of items (1) and (2).
Relevant Background
The Court will state an abbreviated background summary, related to the progress
of the case since the last Court proceeding.

This case came before the Court on February 17, 2012, for a telephonic status
hearing on the pending motions and the overall progress of the case (see Doc. #201,
Clerk’s Minutes).1 Counsel for Bunkers International, the United States, and Trustee
Timothy A. Brown, Captain, as Chairman of the Board of Trustees of the Masters, Mates,
and Pilots Individual Retirement Account Plan and Vacation Plan (hereinafter “Trustee,
Timothy A. Brown”), were present on the telephone for the hearing. The Court heard
discussion among the parties concerning, inter alia, the overall status of the case, the
status of Defendant AHL Shipping Company that was sued in personam, and the status of
the Garnishees that remain on the record in the case.2 The Court also heard discussion
concerning the disposition of related cases in the Eastern District of Texas, in which
vessels that were initially similarly situated to the M/V Anasazi were seized.

The

disbursements from the proceeds of the sale of the M/V Anasazi were discussed, as was
the balance of funds currently available from that sale.
During the course of the hearing, counsel advised Defendant AHL Shipping
Company (“AHL”) remains in bankruptcy proceedings in the Eastern District of Louisiana
and has abandoned all vessels as part of the AHL Bankruptcy Estate. Counsel at the
hearing also stated no party will seek a deficiency judgment against AHL in this Court, but

1

The non-transcribed recording of the hearing is hereby incorporated by reference.
The parties may contact the Courtroom Deputy of the undersigned if a transcript of the
hearing is desired.
2

The undersigned notes that the Bankruptcy Court for the Eastern District of
Louisiana, New Orleans Division, has lifted the stay of court proceedings against AHL to
“permit the United States District Court for the Middle District of Florida to disburse the
proceeds of the sale of SS Anasazi to any entity in any amount as that Court deems
warranted by law” (Doc. #168, United States of America’s Notice of Modification to
Bankruptcy Stay, Exh. A).
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each has filed its proof of claim with the Bankruptcy Court.3 Thus, the claimants to the res’
in this action have submitted to the jurisdiction of the Bankruptcy Court over their claims
against AHL in personam.
Also during the hearing, Plaintiff’s counsel declared the value of the bunkers of fuel
still on the Anasazi at the time of sale was approximately $161,000. The bunkers of fuel
giving rise to this lawsuit were mostly burned during the voyage of the Anasazi to
Jacksonville, Florida and during the days following its arrest. Cf., Substitute Custodian’s
Motion for Payment & Deposit of Custodial Expenses, Doc. #50 (noting the “extraordinarily
high” expenses were driven in part by the fuel consumption while at dock, which was
approximately $10,000 per day).
At the conclusion of the hearing, counsel advised the Court of ongoing settlement
discussions that could lead to the resolution of the case without further litigation. In the
event an impasse might be reached in the settlement talks, counsel for Trustee, Captain
Timothy A. Brown, and the United States sought and were granted leave to file summary
judgment motions. However, on April 9, 2012, those parties participating in the telephonic
hearing filed the Stipulation Seeking Final Distribution (Doc. #209). On April 24, the same
parties filed the Amended Stipulation for Final Distribution and to Dismiss the Case With
Prejudice (Doc. #210), as well as the Status Report (Doc. #211).
3

Review of the online PACER Case Locator system reveals In re AHL Shipping
Company, Case No. 2:10-bk-12167, is an action for a Chapter 7 bankruptcy liquidation.
See https://pacer.uspci.uscourts.gov/search (select Bankruptcy tab; Region: Louisiana;
Case Number 10-12167) (last visited May 7, 2012); also see Horne v. Potter, 392 Fed.
Appx. 800, 802 (11th Cir. 2010) (finding it proper for the district court to take judicial notice
of public records that were “not subject to reasonable dispute because they were capable
of accurate and ready determination by resort to sources whose accuracy could not be
reasonably questioned”) (internal quotations and citations omitted).
3

On May 8, 2012, Plaintiff Bunkers International and the Intervenor Plaintiffs filed the
Notice of Dismissal (Doc. #212) and the Further Amended Stipulation For Final Distribution
and to Dismiss the Case With Prejudice (Doc. #213), advising the Court of the parties’
desire to voluntarily dismiss AHL Shipping Company from this case and to vacate all of the
previously issued writs of garnishment. It is the opinion of the undersigned that the
documents filed on May 8 clarify the positions of the parties and resolve any concerns
about other entities named in this suit.
Upon examination of the record as a whole, including the numerous hearings the
undersigned has held with entities involved in this action, the undersigned concludes it is
just and proper to accept the settlement of the parties as set forth in the Further Amended
Stipulation (Doc. #213). Thus, upon due consideration, it is hereby ORDERED:
1.

The United States Marshal’s Service4 shall distribute the remaining

$467,148.80 from the sale of M/V Anasazi on May 11, 2010 (see Doc. #104, Bill of Sale)
pursuant to the terms of this Order.
(a)

One hundred fifty thousand two hundred twenty-four dollars and no cents

($150,224) shall be paid to Plaintiff Bunkers International Corporation, by check or
electronic funds transfer to the designated account of its counsel, Simms Showers, LLP,
as reimbursement of the last of its custodia legis expenses. Counsel shall provide the
USMS with the account number and routing number for the electronic funds transfer, if so
desired, within ten (10) days from the date of this Order, otherwise the USMS shall issue

4

Contact with personnel of the United States Marshal’s Service (“USMS”) on May
14, 2012 verified the funds from the sale of the Anasazi remain with the USMS and are
available for disbursement upon order of the Court.
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a check to Bunkers International Corporation in care of Simms Showers, LLP, to be mailed
to the address of record for counsel.
(b)

One hundred sixteen thousand six hundred fifty-three dollars and fifty-two

cents ($116,653.52) shall be paid to Intervenor Plaintiff Trustee Timothy A. Brown, by
check or electronic funds transfer to the trust account of its counsel, Boyd & Sutter, PA, as
reimbursement for its seamen’s wage lien. Counsel shall provide the USMS with the
account number and routing number for the electronic funds transfer, if so desired, within
ten (10) days from the date of this Order, otherwise the USMS shall issue a check to
Trustee Timothy A. Brown, Captain, as Chairman of the Board of Trustees of the Masters,
Mates, and Pilots Individual Retirement Account Plan and Vacation Plan in care of Boyd
& Sutter, PA, to be mailed to the address of record for counsel.
(c)

Two hundred thousand two hundred seventy-one dollars and twenty-eight

cents ($200,271.28) shall be paid to Intervenor Plaintiff the United States, by electronic
funds transfer to the United States Department of Justice, as partial reimbursement for its
First Preferred Fleet Mortgage. Counsel shall provide the USMS with the account number
and routing number for the electronic funds transfer within ten (10) days from the date of
this Order.
2.

All Writs of Garnishment issued in this action to the Garnishees identified

below shall be immediately vacated. The Clerk is directed to terminate all Garnishees from
this case. All Garnishees shall bear their own attorney fees and costs associated with this
litigation. Writs of Garnishment against: (1) The Master of the M/V Anasazi; (2) Moran
Shipping Agencies, Inc.; (3) NuStar Energy, Inc.; (4) Moran Gulf Shipping Agencies, Inc.;
(5) NuStar Energy Services, Inc.; (6) Vitol, Inc.; and, (7) Colonial Oil Industries, Inc. are
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vacated.
DONE AND ORDERED at Jacksonville, Florida this 15th

Copies to all counsel of record
and pro se parties, if any

6

day of May, 2012.