EFFJOHN INTERNATIONAL CRUISE HOLDINGS v. M/V ENCHANTED ISLE

Full title: EFFJOHN INTERNATIONAL CRUISE HOLDINGS, INC., ET AL. Plaintiff, v. M/V…

Court: United States District Court, E.D. Louisiana

Date published: Oct 31, 2001

Civil Action No. 01-2679 Section "N" (E.D. La. Oct. 31, 2001)

Opinion

Civil Action No. 01-2679 Section "N"

October 31, 2001

ORDER AND REASONS

EDITH BROWN CLEMENT, United States Chief Judge.

Before the Court are (1) intervening plaintiff Ralston Moodie's Motion for Waiver or Reduction of $5,000 Fee Demanded by the U.S. Marshal and (2) intervening plaintiff Violet Dock Port, Inc.'s Motion to Deem Dockage Charges a Custodia Legis Expense. For the following reasons, Moodie's motion is DENIED, and Violet Dock Port's motion is GRANTED.

BACKGROUND

On August 31, 2001, the M/V ENCHANTED ISLE was arrested in the Eastern District of Louisiana. Plaintiff Ralston Moodie ("Moodie") intervened in the action and filed his own motion to arrest the vessel, seeking damages for severe head injuries allegedly sustained in the course of his employment on the M/V ENCHANTED ISLE. When Moodie flied his complaint, the U.S. Marshal's Service, in accordance with its usual procedure, required him to deposit $5,000.00 in the registry of court to defer its expenses in executing the arrest. Moodie has not yet complied with this requirement and now asks the Court to waive the $5,000.00 fee. In a separate motion, plaintiff Violet Dock Port ("Violet"), which has provided dockage services to the ENCHANTED ISLE both before and after its arrest, asks the Court to classify its post-arrest services as custodia legis expenses.

LAW AND ANALYSIS 1. Moodie's Motion

Moodie asks that the Court waive the $5,000.00 deposit required by the U.S. Marshal to effect an arrest of the ENCHANTED ISLE. The $5,000.00 fee covers the Marshal's costs of making service on the vessel, and the Marshal has advised the Court that the fee cannot be waived. See Souyoutzis v. M/V Georgios K, 525 F.2d 1197 (5th Cir. 1976) (holding that the United States Marshal properly refused to execute a warrant of attachment without prepayment of costs to be incurred). Since Moodie has insisted that the vessel be arrested, the Court will not waive the fee.¹

1 The fee can, however, be deferred for a plaintiff that simply intervenes in the action without causing the Marshal to effect an arrest of the vessel. Since the ENCHANTED ISLE is already under arrest, the Court has held that intervening plaintiffs will not be required to pay the fee unless and until the funds already deposited in the registry of court have been depleted. Moodie would be subject to the same requirement if he withdraws his request to arrest the vessel.

2. Violet Dock Port's Motion

Violet Dock Port has filed a motion to have the fees for its post-arrest dockage services deemed a custodia legis expense. Moodie objects to this motion on three grounds. First, he asks that the dockage charges be reduced from $900.00 per day to $600.00 per day, because Violet had previously charged the lower rate. However, Violet charged the S600.00 rate when the ENCHANTED ISLE was nested together with its sister ship, the M/V ENCHANTED CAPRI. Since the two boats were docked side-by-side in the same space, the ENCHANTED ISLE enjoyed a lower rate. When the ENCHANTED CAPRI left Violet Dock Port, the dockage charge was increased to $900.00 per day, which is still $328.84 below Violet's usual rate. Accordingly, the Court does not find that the dockage charges are unreasonable. Second, Moodie objects to the classification of any pre-arrest charges as custodia legis expenses. Violet does not ask for such a classification, and the issue of pre-arrest services is not presently before the Court. Third, Moodie asks that the custodia legis expenses be ranked below his tort claim. He has provided no authority for this proposition, and his request is denied. Since dockage charges are classic custodia legis expenses, see New York Dock Co. v. The Poznan, 274 U.S. 117, 121 (1927), and since Moodie has not raised valid objections to Violet Dock Port's services, the Court holds that Violet's dockage charges are custodia legis expenses.

Finally, Moodie asks that EffJohn International Cruise Holdings, Inc. and EffShipping Limited (collectively "EffJohn") bear the entire cost ofcustodia legis expenses because they were the first to arrest the vessel. This Court has discretion to "divide the cost of the ship's maintenance among all the parties," and "[c]ourts routinely enter orders that divide the custodia legis expenses among the parties of an in rem action." Beauregard, Inc. v. Sword Services L.L.C., 107 F.3d 351, 353 (5th Cir. 1997). The Court has chosen to divide the custodia legis costs in the instant action, and it will not waive Moodie's obligation to pay his portion.

CONCLUSION

For the reasons stated above, IT IS ORDERED that plaintiff Ralston Moodie's Motion for Waiver or Reduction of S5, 000 Fee Demanded by the U.S. Marshal is DENIED. IT IS FURTHER ORDERED that plaintiff Violet Dock Port. Inc.'s Motion to Deem Dockage Charges a Custodia Legis Expense is GRANTED.