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Bay Marine Boat Works, Inc. v. M/V Gardina

United States District Court, N.D. California

March 30, 2018

BAY MARINE BOAT WORKS, INC. Plaintiff,
v.
M/V GARDINA, Official No. 1117426, its engines, tackle, machinery, furniture, apparel, appurtenances, etc., in rem, and DOES 1-10, Defendants.

         IN ADMIRALTY

          COX, WOOTTON, LERNER, GRIFFIN & HANSEN, LLP Marc T. Cefalu (SBN 203324) Max L. Kelley (SBN 205943) Attorneys for Plaintiff BAY MARINE BOAT WORKS, INC.

          ORDER GRANTING PLAINTIFF'S EX PARTE APPLICATION FOR APPOINTMENT OF SUBSTITUTE CUSTODIAN

         Plaintiff Bay Marine Boat Works, Inc., (“Bay Marine”), by and through its counsel of record, Cox, Wootton, Lerner, Griffin & Hansen, LLP, having appeared and made the following recitals:

         1. On or around March 26, 2018, and concurrently with this Proposed Order, the Verified Complaint in this matter was filed seeking the arrest and foreclosure sale of the Defendant Vessel M/V GARDINA (formerly LAURA C), Official No. 1117426, its Engines, Tackle, Machinery, Furniture, Apparel, Appurtenances, etc. (the “Vessel”), to satisfy Plaintiff's claims as stated therein.

         2. Subsequently, the Clerk was ordered by this Court to issue a Warrant for Arrest commanding the U.S. Marshal for the Northern District of California to arrest and take into custody the defendant Vessel and to maintain it in his custody until further Order of this Court.

         3. The defendant Vessel is currently located within in the Northern Judicial District of California.

         4. It is contemplated that the U.S. Marshal will seize the Vessel forthwith. The U.S. Marshal does not provide the services for the safekeeping of vessels he arrests.

         5. Bay Marine, as the Court's designated Substitute Custodian, has agreed to assume the responsibility for the safekeeping the Vessel from the U.S. Marshal immediately after the Marshal has arrested the Vessel, and has consented to act as the Vessel's custodian until further Order of this Court, all for a sum, including for storage and routine services required for safekeeping of the Vessel, at its customary rates, as set forth in the Substitute Custodian's concurrently filed supporting declaration.

         6. Bay Marine, by declaration, avers that it has adequate personnel and supervision for the proper safekeeping of the Vessel, and that it has liability insurance, underwritten by West American Insurance Company and other subscribed underwriters, with an aggregate limit of $1, 000, 000, and an excess layer of $9, 000, 000 7. Furthermore, in accordance with the terms of this Order, Bay Marine, as Substitute Custodian, accepts possession of and responsibility for the Vessel following its arrest.

         8. In consideration of the U.S. Marshal's consent to this substitution of custody, Bay Marine agrees to release the United States and the U.S. Marshal from any and all liability and responsibility arising out of the care and custody of the Vessel, its engines, tackle, apparel, furniture, and all other appurtenances pertaining and belonging thereto, from the time the Marshal transfers possession of the Vessel to Bay Marine as Substitute Custodian until the Vessel is released from arrest pursuant to this Court's order or operation of law.

         9. Bay Marine further agrees to hold harmless and indemnify the United States and the U.S. Marshal from any and all claims whatsoever arising out of the Substitute Custodian's possession and safekeeping of the Vessel.

         THEREFORE, IT IS HEREBY ORDERED that the U.S. Marshal for the Northern District of California is hereby authorized to execute service of process on the Defendant Vessel by all lawful means, and is further authorized and directed, upon his seizure of the Vessel pursuant to this Court's duly-issued Warrant for Arrest, to surrender the custody and possession of the Vessel to Bay Marine as Substitute Custodian, and that upon such surrender, the U.S. Marshal shall be discharged from further duties and responsibilities for the safekeeping of the Vessel and held harmless by Bay Marine from any and all claims arising whatsoever out of the substitute custodian's possession, custody, and safekeeping of the Vessel.

         IT IS FURTHER ORDERED that Bay Marine be, and is hereby, appointed the custodian of the Vessel to retain it in its custody for possession and safekeeping, for the aforementioned compensation until further Order of this Court.

         IT IS FURTHER ORDERED that the Substitute Custodian is authorized to take any and all steps to ensure the safekeeping and protection of the Vessel including, but not limited to, moving the Vessel to a secure facility for safekeeping following the arrest of the Vessel, and at any other ...


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