Beyel Brothers, Inc. v. Barge #1504 et al

Filing 86

ORDER adopting 81 REPORT AND RECOMMENDATIONS re 23 Emergency Motion for An Order to Show Cause Why the Arrests Should not be Vacated, Request for a Hearing, and Memorandum of Law, filed by Abyss, re 24 Emergency Motion for Hearing and to Set Bond for Vessels and Equipment Release and Memorandum of Law filed by Abyss, and re 46 Motion for Interlocutory Sale of In Rem Defendant Equipment and Incorporated Memorandum of Law, filed by Plaintiff Beyel Brothers. 23 is GRANTED to the e xtent it seeks to vacate the arrest of the Liebherr 974, the Liebherr 994-200, the four boxes, and the turbidity curtains and is DENIED in all other respects. 24 is DENIED to the extent it asks the Court to set a bond for the Liebherr 974, the Lie bherr 994-200, the four boxes, and the turbidity curtains, is GRANTED in all other respects and bonds are REQUIRED as set forth in paragraph 5 of this Order. Defendant Abyss shall have sixty (60) days leave to bond for any equipment it seeks to hav e released. 46 is GRANTED, but only after Abyss has had sixty (60) days within which to post a bond or bonds. Beyel Brothers is REQUIRED to submit a cash bid, or post a bond to secure the amount of its bid. The to-be-turned claims of Navar, Inc., and Noranda Aluminum, Inc.m attached to the proceeds of the sale. Signed by Judge Paul G. Byron on 9/4/2014. (MMW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
BEYEL BROTHERS, INC.,
Plaintiff,
v.

Case No: 6:14-cv-62-Orl-40TBS

BARGE ’35;1504, BIG SCOOP, ALOISE
and ABYSS MARITIME, INC.,
Defendants.

ORDER
This cause is before the Court on Emergency Motion for an Order to Show Cause
Why the Arrests Should not be Vacated (Doc. 23), and the Emergency Motion to Set Bond
for Vessels and Equipment Release (Doc. 24) both filed on February 20, 2014 by
Defendant Abyss Maritime, Inc (“Abyss”). Plaintiff, Beyel Brothers, Inc., thereafter filed
a Motion for Interlocutory Sale of In Rem Defendants (Doc. 46), and Abyss responded in
opposition (Doc. 54). A hearing was conducted and evidence was presented as to both
emergency motions and the motion for sale of in rem defendants on May 1, 2014. (See
Docs. 57, 63).
United States Magistrate Judge Smith submitted an initial Report and
Recommendation regarding the three motions. (Doc. 67). Objections were filed to the
Report and Recommendation by Defendant Abyss (Doc. 72) and the “claimant/counter
claimant” Noranda Aluminum, Inc. (“Noranda”). 1 (Doc. 73). Plaintiff then filed its response

1. The Court has not yet ruled upon whether Noranda has any standing as a “claimant”
to object to the Report and Recommendation, nor is the Court ruling, at this juncture, as
to whether Noranda is a “counter-claimant.”

to the objections. (Doc. 78). Magistrate Judge Smith considered the objections and the
response and submitted an Amended Report and Recommendation on July 24, 2014.
(Doc. 81). Noranda and Plaintiff both submitted objections to the Amended Report and
Recommendation. (Docs. 82, 83). Plaintiff and Noranda also responded to each other’s
objections (Docs. 84, 85) on August 21, 2014. This matter is now ripe for the Court’s
review.
To summarize, the Court has conducted an independent de novo review of the
record in this matter, including the following materials:
1. Emergency Motion for an Order to Show Cause Why the Arrests
Should Not Be Vacated (Doc. 23);
2. Emergency Motion for Hearing to Set Bond for Vessels and
Equipment Release (Doc. 24);
3. Motion for Interlocutory Sale of In Rem Defendant-Equiment [sic]
(Doc. 46);
4. Memorandum of Law in Opposition and Response to Beyel
Brothers Inc’s Motion for Interlocutory Sale and Motion to Bid a
Credit Lien (Doc. 54);
5. Transcript of Evidentiary Hearing, held on May 1, 2014 (Doc. 63);
6. Report and Recommendation (Doc 67);
7. Amended Report and Recommendation (Doc. 81);
8. Objection by Claimant/Counterclaimant Noranda Aluminum, Inc.
to the Amended Report and Recommendation (Doc. 82);
9. Plaintiff’s
Objection
to
the
Amended
Report
and
Recommendation (Doc. 83);
10. Plaintiff’s Response to Noranda’s Objection to the Amended
Report and Recommendation (Doc. 84);
11. Response by Noranda Aluminum, Inc. to Beyel Brothers, Inc.’s
Objections to the Amended Report and Recommendation
(Doc. 85).
The Court has considered the objection filed by Noranda as to Magistrate Judge
Smith’s findings relative to whether Plaintiff engaged in bad faith for the alleged wrongful
arrest of the vessels or equipment. To the extent that Noranda has standing to object to
the Amended Report and Recommendation, the objection raised by Noranda is not

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relevant to the resolution of the motions pending before this Court.
Further, the Court has considered Plaintiff’s objection to the Magistrate Judge’s
recommendation granting the release of the 994 excavator and the release of the turbidity
curtains and boxes. Having independently considered these matters, the Court agrees
entirely with the findings of fact and conclusions of law in the Amended Report and
Recommendation. The testimony adduced at the hearing was contradictory and
inconclusive on the issue of whether the 994 excavator, boxes and turbidity curtains were
intended to be used in a manner which renders these items appurtenances subject to a
maritime lien.
Therefore, it is ORDERED AND ADJUDGED as follows:
1. The Objection by Claimant/Counterclaimant Noranda Aluminum, Inc. to the
Amended Report and Recommendation (Doc. 82) and Plaintiff’s Objection to the
Amended Report and Recommendation (Doc. 83) are OVERRULED.
2. The Amended Report and Recommendation (Doc. 81) is ADOPTED and
CONFIRMED in all respects and made a part of this Order.
3. On the Emergency Motion for An Order to Show Cause Why the Arrests Should
not be Vacated, Request for a Hearing, and Memorandum of Law, filed by Abyss
(Doc. 23), the Court,
a.

GRANTS the motion to the extent it seeks to vacate the arrest of the
Liebherr 974, the Liebherr 994-200, the four boxes, and the turbidity
curtains.

b.

DENIES all other aspects of the motion.

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4. On the Emergency Motion for Hearing and to Set Bond for Vessels and Equipment
Release and Memorandum of Law, filed by Abyss (Doc. 24), the Court,
a.

DENIES the motion to the extent it asks the Court to set a bond for the
Liebherr 974, the Liebherr 994-200, the four boxes, and the turbidity
curtains.

b.

GRANTS the motion in all other respects and requires bonds as set forth in
paragraph 5 below.

c.

GRANTS Defendant Abyss sixty (60) days leave to bond for any
equipment it seeks to have released.

5. On the Motion for Interlocutory Sale of In Rem Defendant Equipment and
Incorporated Memorandum of Law, filed by Plaintiff Beyel Brothers (Doc. 46), the
Court GRANTS the motion, but only after Abyss has had sixty (60) days within
which to post a bond or bonds. Further, the Court requires Beyel Brothers to
submit a cash bid, or post a bond to secure the amount of its bid, should it be the
winning bidder. The to-be-turned claims of Navar, Inc., and Noranda Aluminum,
Inc., attach to the proceeds of the sale.
DONE AND ORDERED in Orlando, Florida on September 4, 2014.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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