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Cahuenga Associates II v. S/V Mako

United States District Court, S.D. California

June 21, 2017

CAHUENGA ASSOCIATES II, a California Limited Partnership, Plaintiff,
v.
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.

         IN 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

          HON. GONZALO P. CURIEL UNITED STATES DISTRICT JUDGE.

         Before 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 applications.

         BACKGROUND

         On May 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. ¶ 6.

         Womack 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.

         JURISDICTION

         Federal 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.

         I. ARREST WARRANT

         A. Maritime Lien Act

         The 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. § 971[1]).

         Section 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 “necessaries” lien).

         A 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. § 3).

         B. Admiralty Rule C

         Under 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.”

         C. Analysis

         The 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 the ...


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