United States District Court, D. Maine
RECOMMENDED DECISION ON PLAINTIFF'S MOTION FOR
INTERLOCUTORY SALE 
C. NIVISON U.S. MAGISTRATE JUDGE
maritime action, governed by Rule 9(h) of the Federal Rules
of Civil Procedure, and in part by Rule C of the Federal
Rules of Civil Procedure Supplemental Rules for Admiralty or
Maritime Claims, Plaintiff seeks to enforce a maritime lien
for necessaries provided for the S/V PERELANDRA (O.N.
matter is before the Court on Plaintiff's Motion for
Interlocutory Sale. (ECF No. 14.) Following review of the
motion and after consideration of the relevant issues, I
recommend the Court grant the motion.
and Procedural Background
January 2011, Larry Flemming purchased the subject vessel for
$105, 000. The bill of sale identifies Essex Credit Corp. as
the mortgagee. (ECF No. 15-1, Ex. A.) On February 20, 2011,
Larry Flemming died. (Affidavit as to Notice ¶ 4; Daily
News-Miner obituary, ECF No. 15-3.) On or about March 21,
2011, the Estate of Larry Flemming was opened in Anchorage,
Alaska, by Attorney Tonja Woelber, on behalf of Personal
Representative Susan Kreiser, and evidently remains open at
this time. (Affidavit as to Notice ¶ 5; Docket Sheet,
ECF No. 15-4.)
commenced this action on January 23, 2018, with the filing of
a verified complaint, a motion to appoint substitute
custodian, a motion for issuance of warrant in rem, and a
motion for order of notice. (ECF Nos. 1, 3, 4, 5.) On January
25, 2018, the Court granted Plaintiff's motions (a) to
arrest the vessel on warrant (ECF No. 8), (b) to substitute
Plaintiff as the custodian of the vessel upon arrest (ECF No.
7), and (c) to approve notice by publication in the Bangor
Daily News within 21 days of the arrest, and by certified
mail, return receipt requested, to parties known to have an
interest in the vessel (i.e., the owner or master, any person
with an undischarged recorded lien, and any mortgagee of an
undischarged mortgage of record), within 14 days of the
arrest. (ECF No. 9.) The Clerk issued the warrant (ECF No.
10), and the Marshals Service thereafter executed the warrant
on February 15, 2018. (ECF No. 12.)
support of the motion for interlocutory sale, Plaintiff filed
two affidavits of his counsel, William H. Welte, Esq. (ECF
Nos. 13, 15.) Through the first affidavit, counsel provided a
“tear sheet” of the publication of the
Court's notice in the Bangor Daily News on March 14,
2018. (Affidavit as to Publication, ECF No.
13-1.) Through the second affidavit, counsel provided
certified mail return receipts for mail sent to Essex Credit
Corp. at its address in San Ramon, California (mortgagee of
record) and to Susan Kreiser, Personal Representative of the
Estate of Larry Flemming, care of Tonja Woelber, Esq.,
Woelber & Cole, at its office in Anchorage, Alaska.
(Affidavit as to Notice, Ex. B, ECF No. 15-1.) Both return
receipts were signed on February 23, 2018.
complaint, Plaintiff asserted a claim against the vessel for
necessaries in the amount of $22, 767.06, related to the
storage of the vessel. (Verified Complaint ¶ 10.)
Plaintiff charges $31 per foot per month for storage.
(Affidavit of Roger Johnson ¶ 4, ECF No. 3-1.) Plaintiff
has maintained custody of the vessel for approximately
seventeen years. (Id. ¶ 6.) In May 2012, the
Estate of Larry Fleming contracted with Plaintiff to
“provide general maintenance” on the vessel.
(Verified Complaint ¶ 6.)
has established its lien on the vessel pursuant to 46 U.S.C.
§§ 31341 and 31342. The interlocutory sale of a
vessel and its appurtenances may be ordered where one or more
of the following justifications is established:
(A) the attached or arrested property is perishable, or
liable to deterioration, decay or injury by being detained in
custody pending the action;
(B) the expense of keeping the property is excessive or
(C) there is an unreasonable delay in securing release of the
Fed. R. Civ. P. Supp. E(9)(a)(i). Coastal Marine Mgmt. v.
M/V Sea Hunter,274 F.Supp.3d 6 (D. Mass. 2017).
“The interlocutory sale of a vessel is not a
deprivation of property but rather a necessary substitution
of the proceeds of the sale, with all of the constitutional
safeguards necessitated by the in rem process.” Cal.
Yacht Marina-Chula Vista, LLC v. S/V OPILY, No.
14-cv-01215, 2015 WL 1197540, at *2 (S.D. Cal. Mar. 16, ...