Barnes v. Sea Hawaii Rafting, LLC et al

Filing 315

ORDER REGARDING PREPAYMENT OF MARSHAL'S EXPENSES. Signed by JUDGE ALAN C. KAY on 05/03/2018. Accordingly, it appears to the Court that prepayment of the marshal's expenses even by a seaman is required under the applicable law. The Court will give the parties seven days from the entry of this order, however, to file any memoranda (of no more than five pages) if they disagree with the Court's conclusion. (eps, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
Plaintiff,
)
)
v.
)
)
SEA HAWAII RAFTING, LLC, )
KRIS HENRY, M/V TEHANI, )
et al.
)
)
Defendants.
)
)
CHAD BARRY BARNES,

Civ. No. 13-00002 ACK-RLP

ORDER REGARDING PREPAYMENT OF MARSHAL’S EXPENSES
Plaintiff Barnes has indicated a desire to have this
Court order the seizure of the M/V Tehani pursuant to the ruling
of the Ninth Circuit.

E.g., ECF No. 309 at 2.

Plaintiff

Barnes, moreover, wants to “compel this Court and its Judicial
[sic] officers and staff to preform [sic] the arrest of the
vessel without the prepayment of fees and costs by Barnes.”

Id.

In footnote ten of the Ninth Circuit’s decision in
this matter, the court discussed the issue of whether, pursuant
to 28 U.S.C. § 1916, a seaman should be allowed to proceed with
the arrest of a vessel without prepayment of at least ten days
of the marshal’s expenses otherwise required under 28 U.S.C. §
1291.

Barnes v. Sea Hawaii Rafting, LLC, — F.3d. — , 2018 WL

1870090, at *7 n.10 (9th Cir. Mar. 28, 2018).

The court stated

that “[t]here is a split of authority over whether seamen are
1

exempt from prepayment of these fees” and cited cases to support
that proposition.

Id. (citations omitted).

The court

specifically explained that Thielebeule v. M/S Nordsee Pilot,
452 F.2d 1230, 1232 (2d Cir. 1971) held that seamen are exempt
from prepayment of marshal’s expenses while P.R. Drydock &
Marine Terminals, Inc. v. Motor Vessel Luisa Del Caribe, 746
F.2d 93, 94 (1st Cir. 1984) and Araya v. McLelland, 525 F.2d
1194, 1196 (5th Cir. 1976) concluded that seamen are not exempt.
Id.
This Court’s research, however, indicates that the
1988 amendments to 28 U.S.C. § 1291 resolved the split in
authority the Ninth Circuit mentioned.

The statute now includes

a provision stating:
The marshals shall collect, in advance, a
deposit to cover the initial expenses for
special services required under paragraph
[28 U.S.C. § 1291(a)](1)(E), and
periodically thereafter such amounts as may
be necessary to pay such expenses until the
litigation is concluded. This paragraph
applies to all private litigants, including
seamen proceeding pursuant to section 1916
of this title.
28 U.S.C. § 1291(a)(2).

Thus, this Court believes that whether

a seaman must prepay marshal’s expenses is no longer an open
question, and it appears that Plaintiff Barnes must prepay the
same.

See, e.g., In re Lindsey, 178 B.R. 895, 902 (Bankr. N.D.

Ga. 1995) (“Prior to the 1988 amendment to 28 U.S.C. §

2

1921(a)(2), making it clear that marshals must collect deposits
to cover initial expenses from all private litigants including
seamen, there was a split of authority as to whether seamen
could compel a United States marshal to attach vessels without
the prepayment of fees.”). 1

The Court also notes, moreover, that

“[c]ourts considering the conflict between the Second Circuit
and the Fifth Circuit followed the Fifth Circuit Araya decision”
even before the 1988 amendments to 28 U.S.C. § 1291.

Id. at 903

(collecting cases).
Accordingly, it appears to the Court that prepayment
of the marshal’s expenses—even by a seaman—is required under the
applicable law.

The Court will give the parties seven days from

the entry of this order, however, to file any memoranda (of no
more than five pages) if they disagree with the Court’s
conclusion.
IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, May 3, 2018.

________________________________
Alan C. Kay
Sr. United States District Judge

Barnes v. Sea Hawaii Rafting, LLC, Kris Henry, M/V Tehani, et al., Civ. No.
13-00002 ACK-RLP, Order Regarding Prepayment of Marshal’s Expenses.

1

As the In re Lindsey court noted in the context of that case, if a
plaintiff pays the marshal’s expenses, “he is entitled to have them taxed as
costs against the defendants.” 178 B.R. at 903.

3