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Johnson v. Perelandra

United States District Court, D. Maine

June 1, 2018

ROGER JOHNSON, d/b/a Mid-Coast Marine of Winterport, Plaintiff
PERELANDRA S/V, in rem, ESTATE OF LARRY FLEMMING, in personam, Defendants



         In this 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. 959451).[2]

         The 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.

         Factual and Procedural Background

         On 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.)

         Plaintiff 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.)

         In 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.[3] (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.

         In the 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.)


         Plaintiff 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 disproportionate; or
(C) there is an unreasonable delay in securing release of the property.

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, ...

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