Tuesday February 12, 2019

In Admiralty Complaint of Julio Salas & Monica Salas, 2019 U.S. Dist. Lexis 22605 (D. Ariz. Feb. 12, 2019)

Don’t Tell Me Lake Havasu Is Not Navigable Waters

On February 12, 2019, the district court in Arizona allowed vessel owners to pursue their limitation of liability action in a case involving a horrific incident on Lake Havasu.  These limitation actions are always unfortunate cases involving death or serious injury from boating accidents.  But federal law allows a vessel owner to limit its liability after a maritime incident to the post casualty value of the vessel except when the loss occurred due to the owner’s knowledge or privity.  Here, the court left for another day whether the owners were negligent in loaning the vessel to their 39-year old daughter.  Rather, the court held that it had jurisdiction to hear the limitations action because the incident occurred on navigable waters.  Yes, folks…the Ninth Circuit has repeatedly found Lake Havasu to be navigable water so don’t try to convince the court otherwise.

Tuesday January 29, 2019

Cove Invs., LLC v. Vessel-Cordelie, 2019 U.S. Dist. Lexis 13440 (N.D. Cal. Jan. 28, 2019)

On January 28, 2019, the Northern District of California entered default judgment against the vessel CORDELIE, Official No. 287224, in the amount of $2,916.08 and ordered that the vessel be sold at a public sale.  Plaintiff Cove Investments, LLC filed suit against the vessel to foreclose a lien for past due berthing charges.  After the vessel was arrested, it was turned over to substitute custodian Carey Clausen, Marina Administrator of Brickyard Cove Marina.  The court first held that it had jurisdiction to enforce the maritime lien because the vessel was located in the Northern District of California, was arrested pursuant to maritime process and the warrant was successfully served.  The court then held that Cove Investments gave proper notice of the action and arrest of the vessel.  Finally, it held that default judgment was proper under the circumstances.  In particular, Cove Investments provided “necessaries” to the vessel by providing berthing services and Cove Investments would be prejudiced if default was not granted because it would not be able to recover the debt it was owed.

Wednesday October 17, 2018


A district court’s order that a lender has a preferred ship mortgage under the Ship Mortgage Act on a vessel is not an appealable order because it does not have “the effect of ultimately determining the rights and obligations of the parties.”  So held the Fifth Circuit in State Bank & Trust Co. v. Liftboats, 2018 U.S. App. Lexis 29072 (5th Cir. 2018).  Makes sense.  The district court did not find that the borrows defaulted on the collateral mortgage, and the borrowers denied that they were in default.  Thus, there was no final judgment regarding the parties’ substantive rights and liabilities.  Absent this, the Fifth Circuit was without jurisdiction to hear the appeal.  Next time you decide to appeal, make sure the order being appealed from finally determines the parties’ substantive rights and is not a procedural ruling, even if the order has an important procedural consequence.

Sunday October 14, 2018


We are seeing a lot of maritime lien cases involving bunkers (marine fuel) where the lien is denied because the supplier did not provide the bunkers on the order of the owner or a person authorized by the owner.  The Ninth Circuit recently published one such case – Bunker Holdings Ltd. v. Yang Ming Liber. Corp., 2018 U.S. App. Lexis 28668.

Yang Ming Liberia Corp., owner of the container ship M/V YM Success, ordered bunkers from O.W. Bunker Far East (Singapore) Pte. Ltd.  OWB Far East, in turn, purchased the bunkers from Bunker Holdings under a separate contract.  Bunker Holdings then supplied the bunkers to the YM Success and billed OWB Far East for payment.  OWB Far East filed for bankruptcy and Bunker Holdings filed its maritime lien action against the vessel.

A company that provides necessaries to a vessel on the order of the owner or a person authorized by the owner is entitled to a maritime lien.  46 U.S.C. § 31342(a).  Bunker Holdings provided the necessaries.  The question for the court was whether Bunker Holdings provided necessaries “on the order of the owner” or “a person authorized by the owner” of the vessel.  The court held it did neither.

Yang Ming placed its order with OWB Far East, not Bunker Holdings.  Thus, Bunker Holdings did not provide necessaries on the order of the owner.

Bunker Holdings also did not provide necessaries on the order a person authorized by the owner.  Persons with authority to procure necessaries for a vessel include the owner, the master, and a person entrusted with the management of the vessel at the port of supply.  46 U.S.C. § 31342(a).  OWB Far East did not fall into these categories.  OWB Far East also was not an “agent appointed by … the owner.”  46 U.S.C. § 31341(a)(4)(A).

It seems Bunker Holdings could have avoided this result by adding a provision in its contract with OWB Far East stating that the latter was acting as Yang Ming’s agent and Bunker Holdings was selling bunkers pursuant to an order from Yang Ming.

It was not all doom and gloom for Bunker Holdings.  The court reversed an order requiring Bunker Holdings to pay Yang Ming’s premiums for posting security to release the vessel.  Federal law specifically lists those costs that are taxable.  28 U.S.C. § 1920.  Premiums paid on undertakings or bonds are not on the list.  Further, federal law trumps any local rules of the federal courts that may state otherwise.

The court was not happy with having to deny the premiums as taxable costs analogizing those costs to marshal’s expenses which may be taxed as costs.  “If the plaintiff can be forced to bear the marshal’s expenses when the ship remains in custody, a district court should have the discretion to award a prevailing ship owner the expenses it incurs to post substitute security allowing for the ship’s release.”   Seems reasonable.  We’ll see if Congress or the Supreme Court take action.

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