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Barnes v. Sea Hawaii Rafting, LLC

United States District Court, D. Hawaii

December 13, 2018

CHAD BARRY BARNES, Plaintiff,
v.
SEA HAWAI`I RAFTING, LLC; KRIS HENRY; ALOHA OCEAN EXCURSIONS, LLC; JOHN DOES 1-20; MARY DOES 1-20; DOE CORPOPRATIONS 1-20; DOE PARTNERSHIPS 1-20; DOE ASSOCIATES 1-20; DOE GOVERNMENTAL AGENCIES 1-20; AND OTHER ENTITIES 1-20, in personam; AND M/V TEHANI, HA 1629-CP, AND HER ENGINES, EQUIPMENT, TACKLE, FARES, STORES, PERMITS, FURNISHINGS, CARGO AND FREIGHT; DOE VESSELS 1-20 in rem. Defendants.

          ORDER FINDING THAT THE M/V TEHANI'S TRAILER IS AN APPURTENANCE OF THE VESSEL

          Alan C. Kay Sr. United States District Judge

         For the reasons discussed below, the Court finds that the trailer on which the M/V Tehani has been secured is an appurtenance of the vessel to which Plaintiff Barnes's maritime lien attaches.

         BACKGROUND

         For purposes of this Order, the Court will not recount this case's lengthy procedural history beginning in 2013. The Court only discusses those facts of specific relevance to the issue that this Order addresses.

         The Court of Appeals for the Ninth Circuit has found that Plaintiff Chad Barry Barnes (“Plaintiff Barnes”) has a maritime lien on in rem Defendant the vessel M/V Tehani (the “Tehani”) on the basis of Defendant Sea Hawai`i Rafting, LLC (“Defendant SHR”) and the Tehani's failure to pay Plaintiff Barnes maintenance and cure. Barnes v. Sea Hawaii Rafting, LLC, et al., 889 F.3d 517, 535 (9th Cir. 2018). Defendant SHR owned the Tehani at the time of the subject injury to seaman Plaintiff Barnes. The Tehani is a 25-foot rigid-hull inflatable boat powered by twin outboard engines. ECF No. 446 at 1-2. Plaintiff Barnes seeks to execute his maritime lien through in rem legal proceedings.

         On August 1, 2018, the Court issued an Order Authorizing Issuance of Warrant for Maritime Arrest of the Tehani. ECF No. 388. However, on August 6, 2018, the United States Marshal Service notified the Court that the marshals did not have the ability to take custody of the vessel. See ECF No. 401. On September 27, 2018, the Court issued an Amended Order Authorizing Issuance of Warrant for Maritime Arrest ECF No. 441, on the basis that Plaintiff Barnes had apparently found a suitable substitute custodian willing to take custody of the vessel after its arrest.

         Plaintiff Barnes's proposed substitute custodian has agreed to serve in this capacity only if the Tehani is arrested along with the trailer upon which it has been secured, which will allow the proposed substitute custodian to easily transport the vessel if doing so becomes necessary in the course of the substitute custodian's duties. Thus, this Court must determine whether the trailer is an appurtenance of the Tehani.

         On September 28, 2018, the Court held a Hearing on Defendant Aloha Ocean Excursion, LLC's (“Defendant AOE”) Motion to Alter or Amend the Judgment.[1] ECF No. 426. At the end of the Hearing, the Court raised Plaintiff Barnes's concern that, in response to his submission of proposed substitute custodian documents, the Court had earlier noted in a Minute Order entered on September 26 2018, ECF No. 440, that Plaintiff Barnes's Second Amended Complaint did not assert that the trailer on which the Tehani has been secured was an appurtenance of the vessel.

         The Court then asked counsel for Defendant AOE whether it would stipulate that the trailer constitutes an appurtenance. Counsel for Defendant AOE declined to so stipulate, but suggested that maybe the issue should be briefed. After further discussion, the Court stated that it was not going to rule on the issue at that time. The Court then asked counsel for Plaintiff Barnes whether he had attempted to rent a trailer on the Island of Hawai`i, or on Maui or O`ahu. Counsel for Plaintiff Barnes stated that his efforts to rent a trailer on the Island of Hawai`i were unsuccessful, but that he would endeavor to find a rental from the other islands. The Court stated that if counsel for Plaintiff Barnes's efforts to rent a trailer from the other islands were similarly unavailing, then as a last resort he should file a motion asking this Court to determine whether the trailer is an appurtenance of the vessel.

         Notwithstanding the foregoing, on October 2, 2018, Plaintiff Barnes filed a Fourth Motion to Supplement Petition for Writ of Mandamus before the Ninth Circuit. No. 18-72203, Dkt. No. 12. In the supplemented Petition for Writ of Mandamus, Plaintiff Barnes states that this Court had determined the trailer is not an appurtenance. Id. The Court, in a Minute Order entered on October 10, 2018, ECF No. 448, summarized the foregoing and reiterated that Plaintiff Barnes should file a motion if he continued to be unsuccessful in finding a rental trailer.

         On October 22, 2018, the Court entered another Minute Order, ECF No. 453, where it directed Defendant AOE and Plaintiff Barnes to brief the issue of whether the trailer on which the Tehani has been secured is an appurtenance of the vessel. The Court required the parties to file their briefs by noon on November 2, 2018. Defendant AOE timely filed its brief on November 2, 2018. ECF No. 457. Just before noon on November 2, 2018 Plaintiff Barnes filed a Motion to Extend Time to file his brief, which requested a twelve-hour extension in which to file his brief and further stated that Plaintiff Barnes's counsel would be away on business in the Marshall Islands for the next several weeks. ECF No. 458. In a Minute Order entered that same day, the Court granted Plaintiff Barnes a twelve-hour extension in which to file his brief. ECF No. 459. Plaintiff Barnes filed his brief later that day. ECF No. 460. On November 5, 2018, Plaintiff Barnes filed a Supplement to his brief. ECF No. 462. On November 8, 2018, the Court of Appeals for the Ninth Circuit filed an order that stayed proceedings in Plaintiff Barnes's Petition for Writ of Mandamus pending this Court's ruling on the appurtenance issue. No. 18-72203, Dkt. No. 14.

         On November 29, 2018, the Court held a Hearing on the appurtenance issue. At the Hearing, the Court directed the parties to file Supplemental Briefs describing in detail the manner in which the trailer is used on a daily basis, both at the time of the incident and currently. Defendant AOE and Plaintiff Barnes filed their respective briefs on December 5, 2018, ECF Nos. 478, 477.

         DISCUSSION

         The only question before the Court at this time is whether the trailer upon which the vessel Tehani has been secured is an appurtenance of the vessel to which Plaintiff Barnes's maritime lien attaches. The parties have presented no cases where courts found that a trailer is appurtenant to a vessel, and the Court, through its research, has discovered none. Accordingly, it appears that this is a question of first impression; however, because the appurtenance determination is made on a case-by-case basis, the Court confines its analysis and holding to the unique facts of this case.

         As is explained below, the Court holds that the trailer is an appurtenance of the Tehani to which Plaintiff Barnes's maritime lien attaches on the basis of several findings. First, the trailer is part of the vessel's usual equipment; second, the trailer is essential to the operation and mission of the vessel; third, the trailer is a necessary which provides towage by drawing the Tehani to and from the water; and fourth the Bankruptcy Court both leased and subsequently sold to Defendant AOE the Tehani together with its trailer.

         Prior to making its findings, the Court first sets forth the applicable law.

         Under maritime law, a maritime lien arises against a vessel for various liabilities, including claims for maritime torts. Thomas J. Schoenbaum, Adm. and Mar. Law, § 9-1 (6th ed. 2018). It is well established that the failure to pay maintenance and cure is a tort that gives rise to a maritime lien for damages resulting from the failure to pay. Cortes v. Baltimore Insular Line, 387 U.S. 367, 370-71 (1932) (rev'd on other grounds, Miles v. Apex Marine Corp., 498 U.S. 19 (1990)). A maritime lien “attaches simultaneously with the cause of action and adheres to the maritime property even through changes of ownership until it is either executed through the in rem legal process available in admiralty or is somehow extinguished by operation of law.” Schoenbaum, Adm. and Mar. Law, § 9-1.

         A vessel is defined as the “hull and engines, tackle, apparel, and furniture of all kinds.” The Augusta, 15 F.2d 727, 727 (E.D. La. 1920). In addition to the vessel, maritime liens also attach to the ship's “usual equipment . . . and appurtenances.” The Great Canton, 1924 A.M.C. 1074, 1075 (S.D.N.Y. 1924) (finding that an unattached chronometer was an appurtenance); Gowen, Inc. v. F/V Quality One, 244 F.3d 64, 67-68 (1st Cir. 2001) (finding that a vessel's fishing permits constituted appurtenances). The determination on what constitutes an appurtenance is a factual inquiry that is made on a case-by-case. Schoenbaum, Adm. and Mar. Law, § 9-1. Accordingly, the Court reiterates that its analysis is confined to the unique facts of this case.

         Black's Law Dictionary defines the word “appurtenance” as “[s]omething that belongs or is attached to something else; esp[ecially], something that is part of something else that is more important.” (10th ed. 2014). In the maritime context, the key inquiry into whether something is an appurtenance requires the court to analyze whether the item is “essential to the ship's navigation, operation, or mission.” Gowen, 244 F.3d at 67-68 (citing Gonzalez v. M/V Destiny Panama, 102 F.Supp.2d 1353, 1354 (S.D. Fla. 2000); United States v. F/V Sylvester F. Whalen, 217 F.Supp. 916, 917 (D. Me. 1963)).

         Courts are guided in their inquiry by longstanding precedent. In The Frolic, the court observed that “[t]he word ‘appurtenances' must not be construed with a mere reference to the abstract naked idea of a ship, for that which would be an incumbrance to a ship one way employed would be an indispensable equipment in another; and it would be a preposterous abuse to consider them alike in such different positions. You must look to the relation they bear to the actual service of the vessel” in order to determine whether something is an appurtenance. 148 F. 921, 922 (internal quotation marks omitted) (citing The Dundee, 1 Hag. Adm. 109 (1823)).

         When a ship is arrested, courts should compare “the character of the property for which a sale exemption is sought against the nature and mission of the subject vessel” when determining whether certain property is an appurtenance. Motor-Svcs. Hugo Stamp, Inc. v. M/V Regal Empress, No. 8:03-cv-703-24MSS, 2003 U.S. Dist. LEXIS 28903, at *91 (M.D. Fla. May 20, 2003), aff'd, 165 Fed.Appx. 837 (11th Cir. 2006). If the property is “necessary or beneficial” to the vessel, “the property should remain with the vessel and be subject to the Court's in rem jurisdiction and the claims of traditional maritime lienors.” Id. In determining whether something is an appurtenance, courts may also consider whether treating it as subject to a maritime lien “advances the objectives for which such liens were created and, if so, whether there are overriding objections to the contrary.” Gowen, 244 F.3d at 68.

         Ultimately, the outcome-determinative issue appears to be whether the property in question is “essential” or “necessary for the mission” of the vessel. Canaveral Port Auth. v. M/V Liquid Vegas, No. 6:09-cv-1447-Orl-28DAB, 2009 WL 3347596, at *6 (M.D. Fla. Oct. 15, 2009) (finding that gaming ...


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