Transfield ER Cape Limited (In Liquidation) v. North China Shipping Limited et al

Filing 11

ORDER granting 5 Motion to Appoint Substitute Guardian. Signed by Judge Benjamin H. Settle.(MGC)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TRANSFIELD ER CAPE LIMITED
(IN LIQUIDATION),
Plaintiff,

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v.
NORTH CHINA SHIPPING LIMITED; NORTH
CHINA SHIPPING HOLDINGS COMPANY
LIMITED, HONG KONG; GREAT PERIOD
INVESTMENTS LIMITED; MARINA
PERIDOT SHIPPING LIMITED

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IN ADMIRALTY
No.: 3:12-cv-06091BHS
ORDER APPOINTING MARINE
LENDERS SERVICES, LLC, AS
SUBSTITUTE CUSTODIAN

Defendants.

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Having reviewed Plaintiff’s Motion for the Appointment of a Substitute Custodian and
the supporting Declarations of Jeremy B. Jones and Buck Fowler, Jr., and good cause appearing,

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NOW, THEREFORE, IT IS HEREBY ORDERED AS FOLLOWS:

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1.

Plaintiff’s Motion is GRANTED.

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2.

Marine Lenders Services, LLC, is appointed to act as substitute custodian of the

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defendant vessel OEL CONFIDENCE, IMO Number 9628910, her engines, tackle, gear,

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electronics, appurtenances, etc., (hereafter, the “Vessel”) during custodia legis on behalf of this

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Court, in place and instead of the United States Marshal, until further order of the Court.

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3.

Immediately following attachment of the Vessel, the United States Marshal for

LAW OFFICES OF

ORDER APPOINTING MARINE LENDERS
SERVICES, LLC AS SUBSTITUTE CUSTODIAN – 1
(3:12-cv-06091)

NICOLL BLACK

& FEIG PLLC

1325 FOURTH AVENUE, SUITE 1650
S E A T T L E , W A S H I N G T O N 98101
[phone]

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this District shall transfer custody of the Vessel to substitute custodian Marine Lender Services,

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LLC.

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4.

Marine Lenders Services, LLC, as substitute custodian, shall see to and be

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responsible for the safekeeping of the Vessel. The duties of the substitute custodian include, but

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are not limited to, ensuring that there is an adequate, safe location for the Vessel’s storage. An

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officer or agent of the substitute custodian shall go on board the Vessel from time to time to

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carry out the duties of substitute custodian. No person shall be allowed to enter on the Vessel

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except as provided for herein or as otherwise expressly authorized by order of this Court.

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5.

Upon transfer of custody of the Vessel to the substitute custodian by the United

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States Marshal, the Marshal shall not be liable for any loss occurring while the Vessel remains in

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the custody of the substitute custodian and the substitute custodian shall indemnify and hold the

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plaintiff and the Marshal harmless from any and all claims arising out of the substitute

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custodian’s possession and safekeeping of the Vessel.

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6.

All reasonable expenses of the United States Marshal shall be administrative

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expenses in this action and a first charge to the Vessel herein, to be paid to the Marshal prior to

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the release of the Vessel or distribution of the proceeds of its sale.

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7.

All reasonable expenditures which may be incurred by the plaintiff and the

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substitute custodian, or by any party advancing funds to the substitute custodian, including, but

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not limited to, all insurance, towage, transport, and other costs of moving the Vessel to a suitable

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storage location, in safekeeping and maintaining the Vessel while it is in custodia legis, and costs

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of maintaining adequate insurance on the vessel while it is in custodia legis shall be

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administrative expenses in this action and a first charge on the Vessel, to be to be paid prior to

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the release of the Vessel or distribution of the proceeds of its sale.

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8.

During custodia legis, Marine Lenders Services, LLC, shall maintain appropriate

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legal liability insurance providing a minimum coverage of Five Million Dollars (US$5,000,000),

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which expenses for insurance shall constitute administrative expenses herein.

LAW OFFICES OF

ORDER APPOINTING MARINE LENDERS
SERVICES, LLC AS SUBSTITUTE CUSTODIAN – 2
(3:12-cv-06091)

NICOLL BLACK

& FEIG PLLC

1325 FOURTH AVENUE, SUITE 1650
S E A T T L E , W A S H I N G T O N 98101
[phone]

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9.

Upon transfer of the Vessel from the United States Marshal to Marine Lenders

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Services, LLC, the Vessel may be moved by safe means from its present location to adequate,

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safe storage at anchorage or other suitable location within the Western District of Washington.

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Marine Lenders Services, LLC, shall notify the office of the Marshal that the Vessel is to be

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moved and will notify the office of the Marshal again when the Vessel has been moved. Once the

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Vessel has been moved to the facilities of the substitute custodian or other suitable location, the

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Vessel shall remain always within the Western District of Washington.

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10.

Marine Lenders Services, LLC, as substitute custodian, may if necessary offload

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any cargo aboard the Vessel and arrange for storage of the same at a suitable storage facility. The

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substitute custodian shall notify the office of the U.S. Marshal prior to engaging in any such

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offloading of cargo and again upon the completion of any such offloading.

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11.

Marine Lenders Services, LLC, as substitute custodian, may if necessary offload

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any fuel and arrange for disposal of the same. The substitute custodian shall notify the office of

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the U.S. Marshal prior to engaging in any such offloading and again upon the completion of any

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such offloading.

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12.

Marine Lenders Services, LLC, as substitute custodian, may, but is not required

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to, retain a marine engineer familiar with the Vessel and to take him or her on board the Vessel

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with authorized agents of Marine Lenders Services, LLC to assist in the securing of the Vessel.

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13.

Marine Lenders Services, LLC, as substitute custodian, may, but is not required

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to, retain such services as are necessary to clean the interior and/or exterior of the Vessel, remove

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food products with such services to be performed under the supervision of the substitute

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custodian.

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14.

Plaintiff shall arrange to pay charges for moorage of the vessel and the fees, costs,

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and legal liability insurance premiums of the substitute custodian and shall reimburse the

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substitute custodian for such other costs as may be incurred in conduction of the inventory of the

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equipment on board, in securing the Vessel, in having the Vessel cleaned, in moving the Vessel,

LAW OFFICES OF

ORDER APPOINTING MARINE LENDERS
SERVICES, LLC AS SUBSTITUTE CUSTODIAN – 3
(3:12-cv-06091)

NICOLL BLACK

& FEIG PLLC

1325 FOURTH AVENUE, SUITE 1650
S E A T T L E , W A S H I N G T O N 98101
[phone]

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and/or in offloading any cargo from the Vessel.
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During custodia legis the substitute custodian shall not permit repairs or changes

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to be made to the Vessel, except for routine maintenance required for the Vessel’s safekeeping,

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or in emergency situations, without an order of this Court.

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During custodia legis, all foreign crew members may remain on board the Vessel

and continue to operate and maintain all ship systems pending further order of this Court.
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During custodia legis, the substitute custodian shall permit the conduct of cargo

and other operations normal to a vessel in berth unless otherwise ordered by this Court.
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Plaintiff’s attorney shall send a copy of this Order to the owner of the Vessel at

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the last address known by plaintiff, and to the address shown on the record of the U.S. Coast

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Guard by Certified Mail, Return Receipt Requested.

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DATED this 31st day of December, 2012.

A

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BENJAMIN H. SETTLE
United States District Judge

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Presented by:

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NICOLL BLACK & FEIG, PLLC

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/s/ Jeremy B. Jones
Christopher W. Nicoll, WSBA No. 20771
Jeremy B. Jones, WSBA No. 44138
Attorneys for Plaintiff

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LAW OFFICES OF

ORDER APPOINTING MARINE LENDERS
SERVICES, LLC AS SUBSTITUTE CUSTODIAN – 4
(3:12-cv-06091)

NICOLL BLACK

& FEIG PLLC

1325 FOURTH AVENUE, SUITE 1650
S E A T T L E , W A S H I N G T O N 98101
[phone]