1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHELTER COVE MARINA, LTD., Case No.: 22-cv-0359-L-BLM

12 Plaintiff,

IN ADMIRALTY

13 v.

ORDER DIRECTING VESSEL SALE

14 S/V ES VERITAS, U.S.C.G. Official No.

AND AUTHORIZING CREDIT BID

642095, AND ALL OF HER ENGINES, 15

TACKLE, ACCESSORIES,

[ECF No. 14] 16 EQUIPMENT, FURNISHINGS AND APPURTENANCES, in rem, 17 Defendant. 18

19 Pending before the Court is Plaintiff Shelter Cove Marina, Ltd.’s unopposed 20 motion for interlocutory vessel sale and authorization to credit bid. (ECF No. 14.) For 21 the reasons stated below, the Court grants the motion. 22 I. BACKGROUND 23 A. Factual Background 24 Plaintiff, a California limited partnership, operates a marina in San Diego, 25 California. (ECF No. 1, at 2.) The Defendant Vessel is a 1972 30-foot Columbia sailboat 26 documented by the United States Coast Guard under Official No. 642095. (Id.) The 27 Defendant Vessel is believed to be owned by Dawn Spears. (Id.) On July 27, 2016, 28 Spears executed a Contract for Private Wharfage (“Wharfage Contract”) under which 1 Plaintiff provided wharfage and other maritime services for the benefit of the Defendant 2 Vessel. (Id.) Neither Spears nor anyone else has paid Plaintiff for the sums due under 3 the Wharfage Contract since January 8, 2021. (Id.) 4 Either party was entitled to terminate the Wharfage Contract by providing the other 5 party with at least 30 days advance written notice. (Id.; ECF No. 1-2, at 6–7.) On March 6 26, 2021, Plaintiff sent Spears written notice of its election to terminate the Wharfage 7 Contract, which took effect on April 25, 2021. (ECF No. 1, at 3.) Despite the 8 termination of the Wharfage Contract, the Defendant Vessel remains in Plaintiff’s 9 marina. (Id.) As of February 25, 2022, wharfage fees attributable to the Defendant 10 Vessel total no less than $21,461.00. (ECF No. 14-1, at 9.) Per Paragraph 10 of the 11 Wharfage Contract, wharfage fees are continuing to accrue at the marina’s standard 12 transient rate of $2.00 per foot of vessel length per day, which comes to $60.00 per day 13 for the 30-foot Defendant Vessel. (Id. at 8; ECF No. 1-2, at 7.) 14 B. Procedural Background 15 On March 17, 2022, Plaintiff filed a Verified Complaint against the Defendant 16 Vessel and all of her engines, tackle, accessories, equipment, furnishings and 17 appurtenances, in rem for vessel arrest, interlocutory sale, and money damages for breach 18 of maritime contract, trespass, and quantum meruit. (ECF No. 1, at 1.) This Court issued 19 an order authorizing the arrest of the Defendant Vessel and appointing Plaintiff as 20 Substitute Custodian on March 25, 2022. (ECF Nos. 6, 7.) The default of Defendant 21 Vessel was entered on July 6, 2022. (ECF No. 13.) Plaintiff filed the instant motion for 22 interlocutory vessel sale and authorization to credit bid on July 28, 2022. (ECF No. 14.) 23 II. DISCUSSION 24 A. Interlocutory Sale 25 “The interlocutory sale of a vessel is not a deprivation of property but rather a 26 necessary substitution of the proceeds of the sale, with all of the constitutional safeguards 27 necessitated by the in rem process.” Ferrous Fin. Servs. Co. v. O/S Arctic Producer, 567 28 F. Supp. 400, 401 (W.D. Wash. 1983). The Federal Rules of Civil Procedure 1 Supplemental Rules for Admiralty or Maritime Claims provide that upon application of a 2 party having custody of the subject property, the Court may order the property sold if the 3 property is “liable to deterioration” while in custody pending the action, “there is an 4 unreasonable delay in securing the release of the property,” or if “the expense of keeping 5 the property is excessive or disproportionate.” Fed. R. Civ. P. Supp. R. E(9)(a).1 The 6 applicant is required to satisfy one of the three listed criteria to justify an interlocutory 7 sale. Cal. Yacht Marina—Chula Vista, LLC v. S/V OPILY, No. 14-CV-01215-BAS BGS, 8 2015 WL 1197540, at *2 (S.D. Cal. Mar. 16, 2015) (citing Merchants Nat’l Bank of 9 Mobile v. Dredge Gen. G. L. Gillespie, 663 F.2d 1338, 1341 (5th Cir. Unit A Dec. 10 1981)). Plaintiff moves for interlocutory sale on all three grounds. (See ECF No. 14-1, at 11 10–17.) 12 Plaintiff first argues that as the Defendant Vessel’s “machinery, equipment and 13 general condition deteriorate [while in custody], her value is commensurately 14 decreasing.” (ECF No. 14-1, at 13.) To support this contention, Plaintiff submits a 15 declaration from Ray Jones, a licensed yacht broker of 42 years who has sold thousands 16 of vessels and offered expert opinion in dozens of cases involving arrested vessels. (ECF 17 No. 14-2, at 1–2.) Jones stated that “vessels inevitably deteriorate in condition and value 18 over time,” especially when, as in this case, the vessel sits idle for extended periods in 19 salt water. (Id. at 3.) Based upon Jones’s testimony, the Court finds that the Defendant 20 Vessel is liable to deterioration within the meaning of Rule E(9)(a) while in custody 21 pending this action. See Bartell Hotels v. S/L Talus, 445 F. Supp. 3d 983, 987–88 (S.D. 22 Cal. 2020) (relying on Jones’s testimony to conclude that a vessel sitting idle in salt water 23 is liable to deterioration); California Yacht Marina—Chula Vista, LLC, 2015 WL 24 1197540, at *3 (same); Shelter Cove Marina, Ltd. v. M/Y Isabella, Case No. 17cv1578- 25 GPC-BLM, 2017 WL 5906673, at *2 (S.D. Cal. Nov. 30, 2017) (same). 26 27 28 1 Next, Plaintiff argues that since the Defendant Vessel’s arrest there has been no 2 effort to secure its release which has resulted in an unreasonable delay. (ECF No. 14-1, 3 at 15.) “Courts generally allow at least four months for the provision of a bond to secure 4 the release of a vessel before granting an interlocutory sale on grounds of unreasonable 5 delay.” GB Cap. Holdings, LLC v. S/V Glori B, No. 18CV312-WQH-AGS, 2019 WL 6 277387, at *4 (S.D. Cal. Jan. 22, 2019) (citing Vineyard Bank v. M/Y Elizabeth I, 7 U.S.C.G. Off. No. 1130283, No. 08CV2044 BTM WMC, 2009 WL 799304, at *2 (S.D. 8 Cal. Mar. 23, 2009)), aff'd sub nom. GB Cap. Holdings, LLC v. Heston, 802 F. App'x 304 9 (9th Cir. 2020). 10 The Defendant Vessel was arrested on April 4, 2022, over six months ago. (See 11 ECF No. 8.) The record does not show any attempt to secure the Defendant Vessel’s 12 release since. Thus, the Court finds that there has been an unreasonable delay within the 13 meaning of Rule E(9)(a). See Bartell Hotels, 445 F. Supp. 3d at 988 (finding a delay of 14 almost six months unreasonable); Ferrous Fin. Servs. Co., 567 F. Supp. at 401 (finding 15 no attempt to secure vessel’s release within four months of arrest was unreasonable 16 delay). 17 Finally, Plaintiff argues that the cost of keeping the Defendant Vessel in custody is 18 excessive and disproportionate. (ECF No. 14-1, at 15.) Plaintiff presents evidence that 19 while the Defendant Vessel is in custody, wharfage fees will continue to accrue in an 20 amount not less than $2,450.00 per month. (Id. at 16.) Plaintiff also presents evidence 21 that the fair market value of the Defendant Vessel is $5,000.00. (Id. at 17.) 22 “Maintenance expenses of several thousand dollars per month, particularly where [no 23 attempt has been made] to answer Plaintiff’s Complaint or secure the Vessel’s release, 24 are excessive and disproportionate.” Vineyard Bank, 2009 WL 799304, at *2. 25 Accordingly, the Court finds that the cost of keeping the Defendant Vessel in custody is 26 excessive and disproportionate under Rule E(9)(a). See Cal. Yacht Marina—Chula Vista, 27 LLC, 2015 WL 1197540, at *4 (holding accrued costs of $6,000.00 per month in 28 custodial fees excessive and disproportionate to vessel’s $12,000.00 fair market value); 1 GB Cap. Holdings, LLC, 2019 WL 277387, at *4 (holding accrued costs of $2,430.00 per 2 month excessive and disproportionate to vessel’s $6,000.00 fair market value). 3 In light of the Defendant Vessel’s likelihood of deterioration, the unreasonable 4 delay in securing its release, and the excessive and disproportionate cost of keeping it in 5 custody, the Court finds interlocutory sale warranted under Rule E(9)(a) and grants 6 Plaintiff’s motion in this regard. 7 B. Authorization to Credit Bid 8 Plaintiff asks the Court to authorize a credit bid at the Defendant Vessel’s auction 9 up to the lien amount in the Verified Complaint ($21,461.00) to be established by 10 affidavit, plus its actual and demonstrable costs of suit, including U.S. Marshal, substitute 11 custodian, and other custodia legis expenses to be calculated through the date of sale. 12 (ECF No. 14-1, at 18.) Plaintiff asserts that as the only maritime lien claimant, it is by 13 definition senior to all other claims in this action. (Id.) 14 Under the Civil Local Rules, 15 When the court determines on the merits that a plaintiff or plaintiff in intervention has a valid claim senior in priority to all other parties, that 16 plaintiff in intervention foreclosing a properly recorded and endorsed 17 preferred mortgage on, or other valid security interest in the vessel may bid, without payment of cash, certified check or cashier’s check, up to the total 18 amount of the secured indebtedness as established by affidavit filed and 19 served on all other parties no later than seven (7) days prior to the date of sale. 20

21 Civ. L.R. E.1(e)(2). There is nothing in the record to indicate that a party aside 22 from Plaintiff has asserted any maritime lien claim against the Defendant Vessel. 23 It follows that Plaintiff has a valid claim senior in priority to all other parties and 24 thus the Court finds it appropriate to grant Plaintiff’s request to credit bid at the 25 Defendant Vessel’s auction. 26 III. CONCLUSION 27 Based on the foregoing, the Court GRANTS Plaintiff’s motion for interlocutory 28 sale and credit authorization as follows: 1 IT IS HEREBY ORDERED that, consistent with Rule E(9)(b) and Civil 2 Local Rule E.1(e) the United States Marshal be and hereby is directed and 3 empowered to sell said Defendant Vessel and her engines, tackle, accessories, 4 equipment, furnishings and appurtenances, as is, where is, at public sale at the first 5 available time and date, after having first caused notice of said sale to be published 6 daily in a newspaper of general circulation within the City of San Diego, California 7 for at least seven days immediately before the date of sale; and 8 IT IS FURTHER ORDERED that such public notice specify the date, time 9 and location for the sale of the Defendant Vessel; and 10 IT IS FURTHER ORDERED that, consistent with Civil Local Rule 11 E.1(e)(2), such public notice specify that the last and highest bidder at the sale will 12 be required to deposit with the U.S. Marshal a certified check or a cashier’s check 13 in the amount of the full purchase price not to exceed $500, and otherwise $500 or 14 ten percent (10%) of the bid, whichever is greater, and that the balance, if any, of 15 the purchase price shall be paid by certified check or cashier’s check before 16 confirmation of the sale or within three days of dismissal of any opposition which 17 may have been filed, exclusive of Saturdays, Sundays and legal holidays; and 18 IT IS FURTHER ORDERED that any proceeds of said sale shall be held 19 by the United States Marshal or deposited by the United States Marshal in the 20 Registry of this Court, pending further order of this Court; and 21 IT IS FURTHER ORDERED that Plaintiff, having a secured maritime lien 22 interest in the Defendant Vessel pursuant to the Commercial Instruments and 23 Federal Maritime Lien Act (46 U.S.C. §§ 31301–31343) and being the only 24 claimant in this action asserting a maritime claim against her, is authorized 25 pursuant to Civil Local Rule E.1(e)(2) to credit bid at the auction of the Defendant 26 Vessel, without payment of cash, a sum equal to its secured interest in the 27 Defendant Vessel, consisting of the lien amount specified in Plaintiff’s Verified 28 Complaint ($21,461.00), plus its actual costs of suit through the date of the sale, 1 including U.S. Marshal and other custodia legis expenses, with such costs and 2 || expenses to be calculated at the rates specified and authorized in the Order 3 || Appointing Substitute Custodian and Authorizing Movement of Defendant Vessel. 4 || However, as Plaintiff's maritime necessaries lien interest in the Defendant Vessel 5 || does not, as a matter of law, include attorneys’ fees, such fees are not to be 6 || included in any credit bid Plaintiff makes; and 7 IT IS FURTHER ORDERED that should Plaintiff elect to credit bid, it 8 ||shall file and serve any appearing parties with its Notice of Intent to Credit Bid no 9 || later than seven (7) days prior to the date of the sale of the Defendant Vessel, as 10 required by Civil Local Rule E.1(e)(2); and 11 IT IS FURTHER ORDERED, pursuant to Civil Local Rule E.1(e)(2), that 12 ||1f within three days of the auction date, exclusive of Saturdays, Sundays, and legal 13 holidays, no written objection is filed, the sale shall stand confirmed as of course, 14 || without the necessity of any affirmative action thereon by a judge, except that no 15 shall stand confirmed until the buyer has complied fully with the terms of the 16 || purchase. 17 IT IS SO ORDERED. 18 19 Dated: October 14, 2022 1 fee fp H . James Lorenz, United States District Judge 22 23 24 25 26 27 28