Luis A. Ayala Colon Sucres, Inc. v. Break Bulk Services LLC et al
Filing
25
DEFAULT JUDGMENT against Break Bulk Services LLC. Signed by Judge Francisco A. Besosa on 2/26/13. (re)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
LUIS A.
INC.,
AYALA-COLON
SUCRES.,
Plaintiff,
v.
BREAK BULK SERVICES, LLC,
INCHCAPE SHIPPING SERVICES,
INC.,
Civil No. 11-2022 (FAB)
Defendants,
v.
INCHCAPE
INC.,
SHIPPING
SERVICES,
Counter Claimant,
v.
LUIS A.
INC.,
AYALA
COLON
SUCRES.,
Counter Defendant.
DEFAULT JUDGMENT
INTRODUCTION
Luis A. Ayala-Colon Sucres., Inc., (hereafter “AYACOL”) has
filed a motion requesting entry of judgment by default.
The Court
has reviewed the Complaint (Docket 1), the Summons (Dockets 3, 6 &
10), Motion for Entry of Default (Docket 8), and after hearing the
testimony of Luis A. Ayala-Bennazar, the Court finds that:
This is an action in Admiralty and Maritime jurisdiction
pursuant to 28 U.S.C. § 1333 and within the meaning of Rule 9(h);
Civil No. 11-2022 (FAB)
2
it is an action that arises out of a transaction that is maritime
in nature.
On October 14, 2011, AYACOL filed a Complaint in admiralty
against
Shipping
Break
Bulk
Services,
Services
Inc.
LLC
(“Break
(“Inchcape”)
Bulk”)
demanding
and
Inchcape
payment
of
$57,580.67 for unpaid stevedoring services rendered consisting of
the unloading of lumber on board the barge MORBO 250-8 which was
being towed by the tug EL PUMA GRANDE.
on both defendants.
Process was properly served
(Dockets 6 & 10)
On November 28, 2011, AYACOL timely requested entry of default
against Break Bulk pursuant to Rule 55(a).
On November 29, 2011,
the Clerk of the Court entered default accordingly.
(Docket 9)
On November 9, 2011, Inchcape filed an answer to the complaint
and a counterclaim against AYACOL.
(Docket 5)
On November 28,
2011, AYACOL filed a motion to dismiss Inchcape’s counterclaim.
(Docket 7) On January 31, 2012, the Court referred AYACOL’s motion
to dismiss to a magistrate judge for a Report and Recommendation
(“R&R”).
On January 18, 2012, AYACOL moved the Court for the setting of
a Rule 55(b)(2) default hearing.
(Docket 12)
A default hearing
was scheduled for February 9, 2012, but was later set aside pending
the resolution of the motion to dismiss the counterclaim filed by
AYACOL.
(Docket 14)
Civil No. 11-2022 (FAB)
3
Magistrate Judge Marcos Lopez issued a R&R recommending that
the Court deny AYACOL’s motion to dismiss.
(Docket 16)
On
September 25, 2012, the Court adopted the magistrate judge’s R&R
and
denied
AYACOL’s
motion
to
dismiss
the
counterclaim.
(Docket 17)
On November 13, 2012, AYACOL filed a second motion for setting
of a default hearing. (Docket 19) The default hearing was scheduled
for January 25, 2013 and then continued for February 15, 2013.
(Dockets 20 & 21)
On February 15, 2013, the default hearing was held.
Mr. Luis
A. Ayala-Bennazar, Vice-President of Operations in the Ponce Area
for AYACOL, testified and identified the documents entered as
Exhibits 1-5, which support the amount claimed in the complaint for
the stevedoring services rendered by AYACOL and which remain
unpaid, due and collectible.
FINDINGS OF FACT
Mr. Ayala identified and explained in detail the documentary
evidence that was submitted as Exhibits 1-5.
He testified that on January 27, 2013, he met with Freddy
Zelaya,
Break
Bulk’s
President,
and
Leo
Fontanilla,
a
representative of Inchcape, to discuss the possibility of hiring
AYACOL to unload a shipment of lumber which was on board the barge
MORBO 250-8. AYACOL agreed to provide the services under the terms
Civil No. 11-2022 (FAB)
4
and fees stated in the quote entered into evidence as Exhibit 2 and
requested that a 60% deposit ($26,100.00) be made that day.1
AYACOL worked on the unloading of the lumber from January 28
until January 30, 2011.
The hours worked by AYACOL’s gangs are
stated in detail in the Statement of Facts dated January 30, 2011,
which was signed by Mr. Ayala and the captain of the tug EL PUMA
GRANDE and entered into evidence as Exhibit 4.
A final invoice for
$57,580.67 was issued by AYACOL applying the working hours stated
on Exhibit 4 to the quoted fees stated on Exhibit 2 plus other
miscellaneous work and expenses necessary to complete the unloading
of the lumber.2
The amounts claimed and substantiated through Exhibits 2, 4,
and 5 refer to the services provided for the unloading of lumber
and miscellaneous services, including removing containers and other
objects which were interfering with the unloading of the lumber on
board the barge MORBO 250-8.3
Thus, it was clearly established
1
Even though Mr. Ayala testified that Mr. Fontanilla was
present at the meeting, the Court will not rule at this time
whether Inchcape was a party to the agreement because the Court
does not have before it the information or evidence to make that
ruling at this stage of the proceedings.
2
Mr. Ayala testified that certain objects and containers had
to be unloaded because they interfered with the unloading of the
lumber.
3
Exhibits 2, 4, and 5 refer to service quote, work done, and
invoice for services rendered to the barge by AYACOL’s Ponce
offices, in which various items were explained in detail as to the
need and concept for them for the total amount of $57,580.67, as
claimed in the Complaint.
Civil No. 11-2022 (FAB)
5
that plaintiff rendered services in the amount of $57,580.67, as
claimed in the complaint.
LEGAL DISCUSSION
Plaintiff AYACOL has obtained an entry of default pursuant to
Federal Rule of Civil Procedure 55(b)(2) against defendant Break
Bulk, as to the complaint filed.
Default was properly entered
after Break Bulk, having been properly served with process, failed
to reply or plead in this case.
A.
Amount Owed for Services Rendered.
The Court held the evidentiary hearing on default on
February 15, 2013.
The evidence presented established the amount
claimed in the complaint. Thus, plaintiff AYACOL has submitted the
necessary evidence to establish that Break Bulk owes AYACOL the
amount of $57,580.67 for the services it rendered.
B.
Maritime Lien for Services Rendered to the Barge MOBRO
and the Tug EL PUMA GRANDE
Plaintiff
AYACOL
initially
requested
a
declaratory
judgment ruling that AYACOL has a lien over the tug EL PUMA GRANDE,
which towed the barge to the Port of Ponce, and over the barge
MOBRO 250-8, which received the servicing, and all the related
services rendered by AYACOL.
The Federal Maritime Lien Act,
46 U.S.C. §§ 31341-31343, grants maritime liens to particular
persons based on their relationship to, or service of, a vessel.
Maritime lien holders then may have the right to “bring a civil
action in rem to enforce the lien,” because a maritime lien cannot
Civil No. 11-2022 (FAB)
be
executed
or
6
divested
outside
of
an
in
Vandewaters v. Mills, 60 U.S. 82, 89, 19 How.
rem
proceeding.
82, 15 L.Ed. 554
(1956); Gilmore & Black, The Law of Admiralty ch. IX (2d ed. 1975).
A creditor who holds a maritime lien can seek payment
even if the person with whom he or she negotiated has absconded.
The purpose of the maritime lien is to make readily available to a
mobile borrower the secured credit that is often necessary to
ensure that the vessel can obtain basic supplies or services needed
for its operation. Among maritime liens of equal rank, later liens
have priority.
Gowen, Inc. v. F/V Quality One, 244 F.3d 64, 67
(1st Cir. 2001).
The overarching goal of a maritime lien is to
keep the channels of maritime commerce open by ensuring that those
who
service
vessels
have
an
efficient
way
of
demanding
reimbursement for their labor and are thus willing to perform the
services necessary to keep vessels in operation. See Payne v. S.S.
Tropic Breeze, 423 F.2d 236, 240-41 (1st Cir. 1970); Mullane v.
Chambers, 438 F.3d 132 (1st Cir. 2006).
Admiralty law conceives a vessel as an entity distinct
from its owner, so an in rem action to enforce a maritime lien is
brought against the vessel itself, rather than against the owner.
Puerto Rico Ports Authority v. BARGE KATY-B, 427 F.3d 93 (1st Cir.
2005) (statutory presumption in favor of maritime lien is a strong
one); Navieros Inter-Americanos, S.A. v. M/V Vasilia Exp., 120 F.3d
Civil No. 11-2022 (FAB)
7
304, 313 (1st Cir. 1997).4
needs
of
those
Courts have long recognized the special
engaged
in
maritime
commerce,
including
a
justification of the use of in rem proceedings to hold the vessel
itself as the obligor.
See, e.g., Maine Nat. Bank v. F/V Explorer,
833 F.2d 375 (1st Cir. 1987); Trans-Asiatic Oil Ltd. S.A. v. Apex
Oil Co., 743 F.2d 956, 960-63 (1st Cir. 1984); Amstar Corp. v. S/S
Alexandros T., 664 F.2d 904, 907-12 (4th Cir. 1981).5
Adequate notice of an action in rem against the vessel,
that is, against the owner or the agent, or the proper posting
notice on the vessel itself, is required before the maritime lien
may be executed, but is not required at this stage when all that is
resolved
is
a
declaratory
judgment
entitled to a maritime lien.
that
plaintiff
AYACOL
is
See MacDougalls’ Cape Cod Marine
Service, Inc. v. One Christina 40’ Vessel, 900 F.2d 408 (1st Cir.
1990).
In admiralty law it is presumed that the vessel owner,
through a master, agent, or personal presence, will maintain
4
To acquire a maritime lien on vessel, the person providing
necessaries to the vessel is not required to allege or prove that
credit was given to the vessel; rather it is assumed to be the case
unless proven otherwise. The party disputing existence of a lien
is required to show that the claimant took affirmative actions that
manifested clear intention to forego the lien. Submission of a
bill to a vessel owner’s agent with whom the supplier had been
dealing, rather than to the owner and the vessel, does not
constitute a waiver of a maritime lien.
5
Maritime liens are mostly secret because (ship mortgages
aside) there is no registry system for such liens. 2 S. Friedell,
Benedict on Admiralty §51, at 4-4 7th ed. 2000).
Civil No. 11-2022 (FAB)
8
reasonable contact with and continuing interest in the status and
condition of the vessel.
The owner or its representative is
ordinarily in charge of the vessel, and the owner can reasonably be
presumed to receive the word.
MacDougalls’, 900 F.2d at 412.
It is presumed that a person such as Break Bulk has the
authority to procure necessaries for a vessel.
that
authority
may
include
the
owner,
the
The person with
master,
a
person
entrusted with management of the vessel at the port of supply, or
an appointed officer or agent.
46 U.S.C. § 31341.
Thus, a person
providing necessaries to a vessel, such as plaintiff AYACOL, on the
order of the owner or a person authorized by the owner, is allowed
a maritime lien on the vessel and may then bring a civil action in
rem to enforce that lien.
46 U.S.C. § 31342(a).
The evidence
submitted at the evidentiary hearing established that defendant
Break Bulk negotiated and obtained on behalf of the EL PUMA GRANDE
tug and the MOBRO 250-8 barge the services provided by plaintiff
AYACOL.
Maritime liens may attach even if the vessel owner had
not personally contracted for the services performed.
46 U.S.C.
§ 31342(a); S.E.L. Maduro (Fla.), Inc. v. M/V Antonio de Gastaneta,
833 F.2d 1477, 1482 (11th Cir. 1987).
A federal maritime lien is
a unique security device serving the dual purpose of keeping ships
moving in commerce while not allowing them to escape their debts by
sailing away.
Equilease Corp. v. M/V Sampson, 793 F.2d 598, 602
Civil No. 11-2022 (FAB)
(5th Cir. 1986).
9
Thus, a maritime lien does not depend on the
injured party’s possession of the vessel, but travels with the
vessel wherever it goes, regardless of into whose hands it may
pass, whether or not the lien is recorded.
Vandewater, 60 U.S. (19
How.) at 89.
The amount owed to AYACOL by defendant Break Bulk for the
servicing to both the tug EL PUMA GRANDE and to the barge MOBRO
250-8 was duly established at the evidentiary hearing.
On the
basis of the credible testimony by Mr. Ayala and the documentary
evidence, the Court finds that Break Bulk was entrusted to request
services for the benefit of the tug and barge.
As a result, the
maritime lien requested as to the tug and barge is proper.
CONCLUSION
In accordance with Rule 55(b)(2), judgment is entered against
Break Bulk Services, LLC in the amount of $57,580.67, plus interest
accrued thereafter.
The Court further holds that Luis A. Ayala-
Colon Sucres., Inc. is entitled to a maritime lien over the EL PUMA
GRANDE tug and the MOBRO 250-8 barge for stevedoring and related
services rendered at the Port of Ponce, Puerto Rico.
IT IS SO ORDERED.
San Juan, Puerto Rico, February 26, 2013.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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