United States District Court, S.D. California
CAHUENGA ASSOCIATES II, a California Limited Partnership, Plaintiff,
S/V MAKO, U.S.C.G. OFFICIAL NO. 1193413, A FARR 40 SAILING VESSEL OF APPROXIMATELY 40.5-FEET IN LENGTH AND 13-FEET IN BEAM, AND ALL OF HER ENGINES, TACKLE, ACCESSORIES, EQUIPMENT, FURNISHINGS AND APPURTENANCES, in rem, Defendant.
ADMIRALTY (1) ORDER AUTHORIZING ARREST OF DEFENDANT VESSEL
PURSUANT TO SUPPLEMENTAL ADMIRALTY RULE C, (2) ORDER
APPOINTING SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT OF
DEFENDANT VESSEL F.R.C.P. SUPPLEMENTAL ADMIRALTY RULES C AND
E. 46 U.S.C. SECTIONS 30101-31343
GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Cahuenga Associates II's (1) Ex
Parte Application for Issuance of Warrant for Arrest of
Defendant Vessel and (2) Ex Parte Application to Substitute
Custodian and for Authorization of Movement of Defendant
Vessel by Cahuenga Associates II. Based upon a review of the
moving papers and the applicable law, the Court hereby
GRANTS Plaintiff's ex parte
12, 2016, Plaintiff filed a Verified Complaint, in Admiralty,
For Vessel Arrest, Interlocutory Sale and for Money Damages
for Breach of Maritime Contract and Quantum Meruit. Dkt. No.
1. Plaintiff argues that the owners of the Defendant vessel
S/V Mako No. 1193413 (“Vessel No. 1193413”) have
breached a maritime contract for necessaries in the amount of
$18, 696.65. Id. ¶ 9. On June 2, 2015 Wayne
Womack executed a Moorage Agreement with Plaintiff's
marina, known as the “Kona Kai Marina, ” for the
berthing of the Defendant vessel. Id. ¶ 5;
Exhibit A. Thereafter, Plaintiff provided wharfage services
for the Defendant vessel at its marina. Id. ¶
tendered a deposit of $1, 835 at the time of execution and
thereafter made two payments, on July 21, 2015 and August 3,
2015, for $866.00 each. Id. ¶ 7. Plaintiff has
received no payments from Womack or any other individual
since September 2015 despite having sent monthly invoices.
Id. Plaintiff states the account for the Mako is
currently $18, 696.65 in arrears.
district courts have original jurisdiction over “[a]ny
civil action of admiralty or maritime jurisdiction.” 28
U.S.C. § 1333. If a plaintiff demonstrates that it
provided necessaries to a vessel by order of the owner of the
vessel or a person authorized by the owner, “it may
invoke the admiralty jurisdiction of the federal courts to
enforce a necessaries lien in rem.” Ventura
Packers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 919
(9th Cir. 2002). A maritime contract is not needed to invoke
the admiralty jurisdiction pursuant to the Maritime Lien Act.
Id. at 919-922.
Maritime Lien Act
Federal Maritime Lien Act states that
[A] person providing necessaries to a vessel on the order of
the owner or a person authorized by the owner - (1) has a
maritime lien on the vessel; (2) may bring a civil action in
rem to enforce the lien; and (2) is not required to allege or
prove in the action that credit was given to the vessel.
46 U.S.C. § 31342. A lien claimant must meet three
requirements before a court may grant a maritime lien under
46 U.S.C. § 31342: namely, (1) that the individual
provided necessaries; (2) to a vessel; (3) on the order of
the owner or a person authorized by the owner. Ventura
Packers, 305 F.3d at 923; see also Foss Launch &
Tug Co. v. Char Ching Shipping U.S.A., Ltd., 808 F.2d
697, 699 (9th Cir. 1987) (citing 46 U.S.C. §
31301(4) defines necessaries as “repairs, supplies,
towage, and the use of a dry dock or marine railway.”
46 U.S.C. § 31301(4). This list, however, is not
exhaustive as the term is broadly construed to refer to
“anything that facilitates or enables a vessel to
perform its mission or occupation.” Ventura
Packers, 305 F.3d at 923 (citing, in part, Farwest
Steel Corp. v. Barge Sea-Span 241, 769 F.2d 620, 623
(9th Cir. 1985)). Wharfage services are
“necessaries” within the meaning of maritime law.
See The Western Wave, 77 F.2d 695, 698 (5th Cir.
1935) (wharfage fees constituted necessaries); Humphreys
Railways, Inc. v. F/V Nils S, 603 F.Supp. 95, 98 (E.D.
Va. 1984) (same); Crescent City Harbor Dist. v. M/V
Intrepid, 2008 WL 5211023, *3 (N.D. Cal. Dec. 11, 2008)
(same); see also California Yacht Marina-Chula Vista, LLC
v. S/V OPILY, 2015 WL 1197540, *1 (S.D. Cal. Mar. 16,
2015) (Bashant, J.) (stating in background that failure to
pay wharfage fee resulted in maritime
vessel need not be engaged in commerce to be subject to
admiralty law. Goodman v. 1973 Foot Trojan Vessel,
Arkansas Registration No. AT1439SN, 859 F.2d 71, 73 (8th
Cir. 1988). The term “vessel, ” in fact, includes
“every description of watercraft or other artificial
contrivance used, or capable of being used, as a means of
transportation on water.” Id. (citing 3 U.S.C.
Admiralty Rule C
Fed.R.Civ.P. Supp. Admiralty Rule C (concerning In Rem
Actions) an action in rem may be brought to enforce a
maritime lien only when the complaint is (1) verified; (2)
describes the property that is the subject of the action with
“reasonable particularity”; and (3) states that
the property is within the district or will be within the
district while the action is pending. If a Court determines,
after reviewing the complaint and supporting papers, that the
conditions for an in rem action exist, “the court must
issue an order directing the clerk to issue a warrant for the
arrest of the vessel or other property that is the subject of
the action.” Fed.R.Civ.P. Supp. Admiralty Rule C.
According to the Advisory Committee's Note for Rule C,
“the rule envisions that the (arrest) order will issue
upon a prima facie showing that the plaintiff has an action
in rem against the defendant in the amount sued for and that
the property is within the district. A simple order with
conclusory findings is contemplated.”
Court finds that it is proper to institute an in rem action,
in admiralty law, to enforce Plaintiff's maritime lien
against Vessel No. 1193413. The requirements of 46 U.S.C.
§ 31342 have been met. Plaintiff's complaint
includes a copy of the contract at issue. Dkt. No. 1-2. The
contract is entitled “Moorage Agreement” and
provides for the permanent tenancy of Vessel No. 1193413 at
the Kona Kai Marina in San Diego. Id. The contract,
therefore, is one for necessaries as it provides for wharfage
services. The Agreement further states that Wayne Womack is