PORTLAND PILOTS INC, et al. v. NOVA STAR M/V, et al.

Filing 369

ORDER ON MOTION FOR RECONSIDERATION OF ORDER ON MOTION TO APPORTION CUSTODIAL COSTS denying 357 Motion for Reconsideration; denying 357 Motion for Oral Argument/Hearing By JUDGE D. BROCK HORNBY. (jib)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PORTLAND PILOTS, INC., ET AL.,
PLAINTIFFS
V.

M/V NOVA STAR in rem,

ET AL.,

DEFENDANTS

)
)
)
)
)
)
)
)
)

CIVIL NO. 2:15-CV-442-DBH

ORDER ON MOTION FOR RECONSIDERATION OF
ORDER ON MOTION TO APPORTION CUSTODIAL COSTS
Portland Development Corporation’s (PDC’s) motion for reconsideration
and motion for oral argument are both DENIED.
PDC asserts that my April 12 Order on Motion to Apportion Custodial
Costs “overturns nearly 100 years of settled admiralty practice in this District,”
Mot. for Recons. 1 (ECF No. 357), but cites not a single authority for the
assertion. It also asserts that the Order “will have broad application in future
cases in admiralty, and presents the potential for undesirable outcomes,” Reply
Mem. 1 (ECF No. 363)—this despite the fact that my Order stated that in it I was
relying on principles established earlier by Magistrate Judge Rich “in this
litigation,” Order at 6 n.3 (ECF No. 356), that Judge Rich had used “fair
principles for allocation,” and that “I see no reason to deviate significantly from
those principles at this point of the litigation, and the parties have presented
none.” Id. at 6. Obviously, then, I was not announcing new principles for future
admiralty litigation but attempting to bring this matter to a close consistently

with what had already happened in the lawsuit. Unlike some other Districts,
there are no clear, local admiralty rules on allocation in this District. Id. at 6
n.3. Instead, “[a]llocating custodial costs is based upon general principles of
fairness, and is clearly committed to the discretion of the trial court.” Id. at 4
(collecting cases). Despite PDC’s expressed concerns, this is not a precedentsetting Order.
PDC also asserts that the Order improperly transfers vessel liability for in
custodia legis costs to “merchants and others who simply file C(6) claims.” Mot.
for Recons. 2. In fact, the in custodia legis costs here were those of the arresting
party, Portland Pilots, although once the vessel owner appeared, it paid them as
they were invoiced. Tr. of Proceedings (Nov. 30, 2015) at 8-19 (ECF No. 337); see
also Order of Dismissal (ECF No. 156) (“Owners are ordered to pay all charges of
the Substitute Custodian appointed in this matter attributable or otherwise
allocated to Pilots by order of this Court.”). As the November 30 hearing and my
Order make clear, the vessel owner did so without prejudice to its ability to seek
cost allocation from other claimants. Further, Magistrate Judge Rich established
in his Order on Taxation of Custodial Costs (ECF No. 296), which assigned all
custodial costs accruing November 26-30 to claimant Century Results
International LTD, that the vessel owner was not necessarily responsible for all
custodial costs. And PDC did not merely file a C(6) claim; it actually intervened
in the lawsuit and went to trial.1 In fact, Portland Pilots originally opposed the
Alternatively, PDC argues that its liability should run only from the date of its intervention, not
the earlier date it asserted its claim. Reply 2. Magistrate Judge Rich earlier in this lawsuit
assigned in custodia legis costs to a party who made a claim but never formally intervened,
namely Century. Order on Taxation of Custodial Costs (ECF No. 296). Again, my Order was
designed to be consistent with previous rulings in this case.

1

2

intervention because as of November 24, 2015, PDC had “not made
arrangements to pay for the cost of caring for the Vessel.” Opp’n to Emergency
Mot.to Intervene 2 (ECF No. 95).
Finally, I am generally receptive to requests for oral argument, but the
request here is too late. The motion for allocation was filed and briefed with no
such request. Order at 1 (“None of the parties has requested a hearing.”). I had
earlier conducted a conference of counsel on April 6, 2017, on the issue of
allocation,2 and entered a later Procedural Order on April 12, 2017 (ECF No.
335), in response to a request to the Clerk’s Office from PDC.

That Procedural

Order referred to some of the principles Judge Rich had used in allocating
custodial costs. PDC, however, apparently believed that it could avoid any cost
allocation at all and in responding to the motion for allocation chose not to argue
principles for allocation.3 But the parties had abundant opportunity to present
relevant materials to the Court, and I ruled on the motion once it became ripe.
It is time now to bring this matter to a close without further delay and expense
to the remaining parties.4
SO ORDERED.
DATED THIS 17TH DAY OF MAY, 2018
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

The issue was first raised after the bench trial outcome was adverse to PDC. It then was
deferred pending the resolution of an appeal by a different party.
3 PDC seems to think this is the Court’s fault: “The Court, without requesting of the movant (or
any other party) examples or criteria as to how ‘equity’ might be done, or the possible broader
implications, issued its Order . . . .” Reply 1.
4 PDC has revealed that the amount at stake is small, “in the range of $3,000 for PDC.” Mot. for
Recons. 1 n.1.
2

3