F/V MISTY BLUE LLC et al
Filing
25
OPINION. Signed by Judge Renee Marie Bumb on 4/18/2018. (tf, )
[Dkt. No. 18, 21]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
In re COMPLAINT OF F/V MISTY
BLUE, LLC and SEA HARVEST,
INC. as owners and/or owners
Pro Hac Vice of F/V MISTY
BLUE, FOR EXONERATION FROM OR
LIMITATION OF LIABILITY
Civil No. 17-12773 (RMB/AMD)
OPINION
BUMB, United States District Judge:
This matter comes before the Court upon the parties’
responses to the Court’s March 12, 2018 Order, [Dkt. No. 18],
requiring Plaintiffs F/V Misty Blue LLC and Sea Harvest, Inc.
(the “Plaintiffs”) to show cause why this matter should not be
transferred, pursuant to Supplemental Admiralty and Maritime
Claims Rule F(9), to the United States District Court for the
District of Massachusetts (the “District of Massachusetts”). For
the following reasons, the Court will transfer this action to
the District of Massachusetts.
I.
Background
This case arises from the sinking of the F/V Misty Blue
(the “Misty Blue”), a commercial fishing vessel. The Misty Blue
departed on a clamming voyage from Fairhaven, Massachusetts on
or about December 2, 2017, and was lost at sea on or about
December 4, 2017, off the coast of Massachusetts. When the Misty
Blue sank, two of her crew members were rescued, but two others—
Jonathan Saraiva and Michael Roberts (the “Decedents”)—did not
survive. The Massachusetts State Police recovered the bodies of
the Decedents, and Coast Guard personnel in Massachusetts are
currently investigating the Misty Blue’s sinking. Plaintiffs
allege that the only item salvaged from the Misty Blue is a life
raft.
Plaintiffs were the titled owner (F/V Misty Blue, LLC) and
owner pro hac vice (Sea Harvest, Inc.) of the Misty Blue in
2017. F/V Misty Blue, LLC, is a Rhode Island LLC wholly owned by
Fishing Vessel Enterprises, Inc., a Florida corporation whose
sole shareholder is a resident of Florida. (See Affadavit of Sam
Martin (“Martin Aff.,” Dkt. No. 21-1, at ¶5). Sea Harvest is a
New Jersey corporation with its principal place of business in
Cape May, New Jersey. (Id. at ¶ 1). 1
1
Based on affidavits submitted to the Court by Plaintiffs, it
appears that at the time of the casualty here, Sea Harvest was
in the process of transferring its responsibilities with regard
to the Misty Blue to Atlantic Harvesters, LLC. Atlantic
Harvesters is incorporated in Rhode Island, and is wholly owned
by Galilean Seafood, LLC, a subsidiary of Atlantic Capes
Fisheries, Inc., a New Jersey corporation whose sole shareholder
is the same Florida resident who owns F/V Misty Blue, LLC and
Sea Harvest. Each of these, and other related entities, are
alleged to have administrative offices located in New Jersey.
With regard to the transfer of responsibilities, Plaintiffs
indicate that “[a]t the time of the casualty on December 4,
2017, [Sea Harvest] continued to make all major decisions
regarding the maintenance, repair, and alterations” of the Misty
2
The Purported Claimants are the Estates of the Decedents,
which are represented by Roberts’s widow, Tammy (“Mrs. Roberts”)
and Saraiva’s father, Phillip (“Mr. Saraiva”). Mrs. Roberts and
Mr. Saraiva are both Massachusetts residents, as were the
Decedents.
The survivors of the Misty Blue’s sinking, Captain Erik
Arabian and Colby McMullen, are believed to be residents of
Massachusetts. The Purported Claimants have also indicated that
several vessels—namely the F/V Enterprise; the F/V Lorie Anne;
the F/V Lauren and the F/V Mariette—were in the vicinity of the
Misty Blue when she sank, and that the crews of those ships,
believed to be Massachusetts based, are witnesses to the
conditions surrounding the Misty Blue’s sinking. In addition,
the Purported Claimants have provided the names of (1) several
former crew members of the Misty Blue, including former Captain
Doug Capek, who are believed to live and/or work in
Massachusetts and who are believed to possess information about
the seaworthiness of the Misty Blue and the knowledge of her
Blue, and that Sea Harvest is the party who submitted the Report
of Marine Casualty to the United States Coast Guard. (Martin
Aff. ¶ 15).
The Purported Claimants contend, citing news releases and
dockets from Massachusetts federal court cases, that Plaintiffs
have more ties to Massachusetts than they let on in this
action. For the reasons discussed below, the Court need not
resolve this dispute as such resolution is not material to the
Court’s decision.
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owners; William Rebelo, the former owner of a crane that was
installed on the Misty Blue, who is believed to live and/or work
in Massachusetts; and several other individuals, all believed to
live and/or work in Massachusetts, who either performed work on
the Misty Blue or were involved with her maintenance.
On December 7, 2017, Plaintiffs filed a Complaint for
Exoneration from or Limitation of Liability, pursuant to the
Limitation of Liability Act, 46 U.S.C. §§ 30501, et seq.,
seeking to limit their potential liability for the loss of the
Misty Blue to $3150, the value of the remaining life raft. [Dkt.
No. 1]. On December 13, 2017, the Court accepted Plaintiffs’ Ad
Interim Stipulation of Value for Security, valuing Plaintiffs’
remaining interest in the Misty Blue at $3150, subject to an
appraisement pursuant to Supplemental Admiralty Rule F(7) upon
motion of any claimant. On the same day, the Court entered an
Order (1) admonishing all persons with claims arising out of the
sinking of the Misty Blue to file such claims in this Court by
March 16, 2018; (2) enjoining further prosecution of any and all
suits, actions, and proceedings relating to the sinking of the
Misty Blue against Plaintiffs in any court; and (3) requiring
Plaintiffs to publish public notice of the Court’s Order and to
mail a copy of such notice to the Estates of Saraiva and Roberts
at each of the Decedents’ last known addresses.
4
On March 1, 2018, the Purported Claimants filed a letter
with the Court 2, which the Court interpreted as a request for a
pre-motion conference regarding a motion to transfer venue
pursuant to the Court’s Individual Rules and Procedures. [See
Dkt. No. 9]. The Court held a telephone conference on March 12,
2018, at the conclusion of which it Ordered that Plaintiffs show
cause, by March 26, 2018, why this matter should not be
transferred, pursuant to Supplemental Admiralty and Maritime
Claims Rule F(9), to the United States District Court for the
District of Massachusetts, and extended the monition period to
April 18, 2018. [Dkt. No. 18]. The parties’ responses to that
Order are currently pending.
II.
Legal Standard
Venue—and transfer of venue—in admiralty suits for
exoneration from or limitation of liability is governed by
2
In each of their filings with the Court, the Purported
Claimants include a footnote indicating that they object to the
Court’s exercise of personal jurisdiction over them. The Court
does not, and need not, decide whether it would have personal
jurisdiction over the Purported Claimants were they defendants
in the traditional sense of the term. The Limitation of
Liability Act provides for a “concursus” of claims in one
federal district court. If the Purported Claimants wish to file
claims against Plaintiffs, or argue that Plaintiffs are not
entitled to the protections of the Limitation of Liability Act,
they must go to the only court in which such claims may be
filed. If every potential claimant could simply argue that the
court in which the limitation action was filed lacks personal
jurisdiction over them, and thus they need not file claims
before that Court, a concursus of claims would not be achievable
and the Limitation Act would be rendered useless.
5
Supplemental Federal Rule of Civil Procedure F(9). Rule F(9)
provides that
[t]he complaint shall be filed in any district in
which the vessel has been attached or arrested to
answer for any claim with respect to which the
plaintiff seeks to limit liability; or, if the vessel
has not been attached or arrested, then in any
district in which the owner has been sued with respect
to any such claim. When the vessel has not been
attached or arrested to answer the matters aforesaid,
and suit has not been commenced against the owner, the
proceedings may be had in the district in which the
vessel may be, but if the vessel is not within any
district and no suit has been commenced in any
district, then the complaint may be filed in any
district.
With regard to transfer of venue, Rule F(9) provides “[f]or
the convenience of the parties and witnesses, in the interest of
justice, the court may transfer the action to any district,” and
that “if venue is wrongly laid the court shall dismiss, or, if
it be in the interest of justice, the court may transfer the
action to any district in which it could have been brought.”
Rule F(9) is “similar to the transfer provision under 28
U.S.C. § 1404(a), and the analysis is familiar.” In the Matter
of the Complaint of Weeks Marine, Inc., No. 16-1463, 2016 U.S.
Dist. LEXIS 77808 at *2, 2016 WL 3410166 (D.N.J. June 14, 2016);
see also Advisory Committee Note to Supplemental Rule F(9)(“The
provision for transfer is revised to conform closely to the
language of 28 U.S.C. §§ 1404(a) and 1406(a), though it retains
the existing rule's provision for transfer to any district for
6
convenience.”). Accordingly, when deciding a motion for transfer
of venue pursuant to Rule F(9), courts consider the factors
enumerated in the rule (the same as those enumerated in § 1404):
the convenience of the parties, the convenience of witnesses,
and the interest of justice. In addition, courts in this Circuit
have considered “non-exclusive public and private interest
factors” including
plaintiff's forum preference as manifested in the
original choice; the defendant's preference; whether
the claim arose elsewhere; the convenience of the
parties as indicated by their relative physical and
financial condition; the convenience of the witnesses—
but only to the extent that the witnesses may actually
be unavailable for trial in one of the fora; and the
location of books and records (similarly limited to
the extent that the files could not be produced in the
alternative forum).
In re Viking Sport Cruisers, Inc., No. CV 15-8749(NLH/KMW), 2017
WL 729691, at *2 (D.N.J. Feb. 24, 2017)(citing and quoting
Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995)).
Courts also consider additional factors such as
the enforceability of the judgment; practical
considerations that could make the trial easy,
expeditious, or inexpensive; the relative
administrative difficulty in the two fora resulting
from court congestion, the local interest in deciding
local controversies at home; the public policies of
the fora, and the familiarity of the trial judge with
the applicable state law in diversity cases.
Matter of the Complaint of Weeks Marine, Inc., 2016 WL
3410166, at *2 (quoting Jumara, 55 F.3d at 879-80).
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III. Analysis
As Plaintiffs correctly point out, the ultimate issue in
this type of proceeding is the determination of the vessel
owner’s right to limit its liability. This determination
involves a two-step inquiry: “first, the court must determine
w[hether] acts of negligence or conditions of unseaworthiness
caused the accident, and second, the court must determine
whether the owner of the vessel had ‘knowledge or privity’ of
these acts of negligence or conditions of unseaworthiness.” In
re Yanuzzi, No. CIV. 10-1676 NLH/JS, 2011 WL 4594182, at *1
(D.N.J. Sept. 30, 2011)(citing In re Munyan, 1992 WL 13196, *2
(D.N.J. 1992) (citations omitted))(additional citations
omitted). After considering all of the applicable factors
concerning transfer of venue with this in mind, the Court finds
that that transfer to the District of Massachusetts is
warranted. 3
Most importantly, the casualty here occurred off the coast
of Massachusetts. As recognized by courts in this and other
districts, the location of the casualty is often “[o]f primary
3
The parties quarrel over whether venue was properly laid in
this District. Because the Court relies on its discretion to
transfer this matter, a determination on this issue would not
impact the Court’s decision on this matter. Accordingly, the
Court will not address this issue and will exercise its
discretion to transfer this case to the District
of Massachusetts.
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significance” in the transfer analysis. See In re Viking Sport
Cruisers, Inc., 2017 WL 729691, at *2 (D.N.J. Feb. 24, 2017)
(citing In re: Norfolk Dredging Co., 240 F. Supp. 2d 532, 537
(E.D. Va. 2002); In re: Weeks Marine, Inc., No. 16-cv-1463
(KM)(JBC), 2016 WL 3410166 (D.N.J. June 14, 2016); In re:
Campbell Transp. Co., Inc., 368 F. Supp. 2d 553 (N.D.W.V. 2005);
In re: Bankers Trust Co., Trustee, 640 F. Supp. 11 (E.D. Pa.
1985). Massachusetts has an interest in “deciding [this] local
controvers[y] at home.” Jumara, 55 F.3d at 879.
In considering the convenience of the parties, the Court
finds that the Purported Claimants 4 would face greater
inconvenience were this case to proceed in this Court than
Plaintiffs would face in Massachusetts. The Purported Claimants
are individuals from Massachusetts with no apparent connections
to New Jersey. The Plaintiffs, on the other hand, are business
entities who, as is evidenced by the facts of this case alone
(even at this early stage in the litigation), have strong
connections to Massachusetts.
In addition, the great majority of the witnesses in this
case appear to reside in Massachusetts. While these non-party
witnesses could be compelled to participate in discovery, they
cannot be compelled to appear in this Court. See Fed. R. Civ. P.
4
The Purported Claimants have not yet filed claims in this
matter, but they have indicated that they intend to do so.
9
45(c) (“A subpoena may command a person to attend a trial,
hearing, or deposition only . . . within 100 miles of where the
person resides, is employed, or regularly transacts business in
person . . . .”). They could, however, be compelled to appear in
person in the District of Massachusetts. As noted above, these
witnesses include the surviving crew members of the Misty Blue
and those who have performed repairs and maintenance on the
vessel, among others. Aside from the owners themselves, these
individuals are likely among those best positioned to provide
evidence regarding the seaworthiness of the Misty Blue, whether
her sinking was the result of negligence, and whether the
Plaintiffs were aware of any dangerous conditions.
Finally, the investigation of the events underlying this
action—the sinking of the Misty Blue—is being conducted by the
Coast Guard in Massachusetts. In similar cases, courts have
found in favor of transferring venue to the district in which
such an investigation is pending. See, e.g., In re Viking Sport
Cruisers, Inc., 2017 WL 729691, at *2 n. 3.
The Court finds that these factors substantially outweigh
this case’s sole connection to New Jersey, Sea Harvest’s
incorporation in this state, and that the interests of justice
will be best served if this case proceeds in Massachusetts.
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IV.
Conclusion
For the foregoing reasons, the Court will transfer this
matter to the United States District Court for the District of
Massachusetts. In order to ensure that the Purported Claimants
are able to timely file their claims, the Court will also extend
the monition period an additional fourteen days, to May 2, 2018.
An accompanying Order shall issue on this date.
s/ Renee Marie Bumb
RENÉE MARIE BUMB
United States District Judge
DATED: April 18, 2018
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