United States District Court, D. Hawaii
ORDER FINDING THAT THE M/V TEHANI'S TRAILER IS AN
APPURTENANCE OF THE VESSEL
C. Kay Sr. United States District Judge
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
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.
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
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.
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
September 28, 2018, the Court held a Hearing on Defendant
Aloha Ocean Excursion, LLC's (“Defendant
AOE”) Motion to Alter or Amend the Judgment. 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.
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.
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
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.
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.
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.
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
to making its findings, the Court first sets forth the
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.
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.
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.
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)).
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.
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 ...