United States District Court, D. Massachusetts
In re BLOCK ISLAND FISHING, INC., for Exoneration from or Limitation of Liability.
OPINION AND ORDER
plaintiff, Block Island Fishing, Inc., has filed this
admiralty action seeking a declaration that it is not liable
for damage caused by the collision of its vessel, the F/V
HEDY BRENNA (USCG No. 635354), with the BW GDF SUEZ BOSTON
(IMO No. 9230062). In the alternative, the plaintiff requests
that its liability be limited under the Limitation of
Liability Act of 1851, 46 U.S.C. §§ 30501-30512.
potential claimant, Partrederiet BW Gas GDF Suez Emt Da
(“Partrederiet”), filed a motion to strike and
dismiss the Complaint, citing a number of defects. The
plaintiff timely filed an Amended Complaint (dkt. no. 8),
curing some, but not all, of Partrederiet’s issues. Two
areas of contention remain: (1) whether the plaintiff is
required to post security for its vessel in order to pursue
this action and (2) whether the Amended Complaint properly
states a claim for exoneration or limitation of liability.
Both issues are governed by Rule F of the Supplemental Rules
for Admiralty or Maritime Claims and Asset Forfeiture
Actions. After briefing, a hearing was held on the matter at
which Partrederiet submitted some additional materials. The
plaintiff filed supplementary materials in response.
first issue concerns the proper procedure for posting a
security in these sorts of cases. Relevant here, Rule F(1)
[A]ny vessel owner may file a complaint in the appropriate
district court . . . for limitation of liability pursuant to
statute. The owner (a) shall deposit with the court, for the
benefit of claimants, a sum equal to the amount or value of
the owner’s interest in the vessel and pending freight,
or approved security therefor, as the court may from time to
time fix as necessary . . . or (b) at the owner’s
option shall transfer to a trustee to be appointed by the
court, for the benefit of claimants, the owner’s
interest in the vessel and pending freight, together with
such sums, or approved security therefor, as the court may
from time to time fix as necessary . . . .
of depositing the value of the F/V HEDY BRENNA with the
Court, the plaintiff moved to appoint an appraiser to
evaluate the worth of the vessel. The plaintiff argues that
seeking an appraiser at this stage is “[i]n accordance
with the custom and practice of this District.”
(Pl.’s Opp’n to Partrederiet’s Mot. to
Strike & Dismiss Its Compl. 10 (dkt. no. 10).)
Partrederiet argues that Rule F requires a bond to be posted
immediately upon filing the action.
plaintiff has produced examples of several cases in this
District in which the plaintiff initially moved for an
appraiser in lieu of posting security. (See
Pl.’s Submission to Partrederiet’s Argument in
Supp. of Its Mot. to Strike and Dismiss the Pl.’s
Compl., Ex. A (dkt. no. 15-1).) Other cases in this District
followed the practice Partrederiet champions. See,
e.g., Stipulation Re Security for Value of Pl.’s
Interest, In re Middlesex Corp., Civil Action No.
14-40145-TSH (D. Mass. Oct. 6, 2014), ECF No. 2-4.
procedures are acceptable under Rule F. The Rule does not
prohibit an early appraisal, and common practice, as
reflected in cases and treatises, supports it. See,
e.g., 3 Benedict on Admiralty § 65 (2015). Indeed,
an appraisal is useful for ensuring that the
“approved security” is of the right
amount. Rule F(1) (emphasis added); accord 46 U.S.C.
plaintiff’s motion to obtain an appraisal of the F/V
HEDY BRENNA is therefore granted. The appraiser chosen by the
plaintiff has ample experience in carrying out this task. The
delay in posting security for the value of the vessel has no
effect on the timeliness of the action. See 46 U.S.C
§ 30511(a) (“The action must be brought
within 6 months after a claimant gives the owner written
notice of a claim.” (emphasis added)).
second issue presented is whether the Amended Complaint
adequately states a claim. Partrederiet argues that the
Amended Complaint does not comply with the requirements of
Rule F(2). However, as the plaintiff points out, because
Partrederiet has not filed a claim, it is not yet a party.
Several courts have required a potential claimant to file a
claim and answer pursuant to Rule F(5) before pursuing a
challenge to a complaint for limitation of
liability. See In re Complaint & Petition of
Triton Asset Leasing GmbH, 719 F.Supp.2d 753, 757-58
(S.D. Tex. 2010) (collecting cases). This rule makes sense;
generally speaking, an entity should be able to file a
pleading or motion challenging the merits of a case only when
it is actually a party. See, e.g., Fed. R. Civ. Pro.
12(b) (“[A] party may assert the following
defenses by motion . . . .” (emphasis added)). Until it
files a claim, Partrederiet’s challenge is premature.
It may seek further relief if it becomes a party to this
plaintiff’s Motion for Appointment of Appraiser (dkt.
no. 1) is GRANTED. Partrederiet’s Motion to Strike and
Dismiss (dkt. no. 6) is DENIED without prejudice.
Partrederiet’s Request for Leave to File Reply Brief
(dkt. no. 11) is MOOT.
Court contemplates that, after the appraiser produces his
report, the plaintiff will seek its approval and, if granted,
move for the issuance of notice to potential claimants in
accordance with Rule F(4).