TCW Special Credits v. Fishing Vessel Chloe Z

MEMORANDUM **

These actions by two injured seamen have already been twice before this court. On the first occasion, we affirmed the in personam judgments against the owner of the M/V Chloe Z. It developed that the owner was unable to pay and that its insurer had issued an indemnity policy that would pay only if the owner paid first. The second time before this court we remanded the case for a fact-finding hearing to see if misrepresentations about the insurance had misled the plaintiffs so that their in rem claims should not be barred by the three-year statute of limitations. See 46 App. U.S.C. § 763a (West 2005); Usher v. M/V Ocean Wave, 27 F.3d 370 (9th Cir.1994) (per curiam). The district court subsequently and correctly found no misrepresentations and no equitable estoppel. The question, however, remains whether the plaintiffs’ in rem action was barred by the statute of limitations.

The defendant vessel argues, with some plausibility, that implicit in our remand on the issue of equitable estoppel was a holding that, absent such estoppel, the statute of limitations was a bar. As the district court had in the first instance relied on equitable estoppel, it was natural to send…

dissenting.

I respectfully dissent. Only two issues are validly raised on this appeal: (1) whether the district court erred in determining that the Chloe Z was not equitably estopped from asserting the statute of limitations and (2) whether the district court erred in denying the injured seamen’s motions to consolidate their in rem claims with TCW’s mortgage foreclosure against the Chloe Z. Having concluded that neither of these decisions was error, the court nonetheless decides the case in favor of Appellants Matos and Pranjic by finding that the statute of limitations on their in rem claims was tolled by their abandoned 1994 in rem action against the Chloe Z.

As an initial matter, I agree with Appellee’s contention that our 1999 remand on the issue of equitable estoppel implicitly held that, absent such estoppel, the statue of limitations was a bar. Accordingly, our reconsideration of that argument here is inappropriate, particularly given the six years of additional litigation our prior holding spawned.

Looking beyond the prior holding to the merits of the argument, I see no basis for tolling Appellants’ claims against the Chloe Z. A claim may be tolled by statute or in…