Opinion
Case No. 2:19-cv-351-FtM-29UAM
07-15-2019
Pedro BORGE, Plaintiff, v. F/V DOUBLE E, Defendant.
John F. Billera, Jessica Quiggle, Billera Law, PLLC, Boca Raton, FL, for Plaintiff. Michael F. Kayusa, Law Office of Michael F. Kayusa, Ft Myers, FL, for Defendant.
John F. Billera, Jessica Quiggle, Billera Law, PLLC, Boca Raton, FL, for Plaintiff.
Michael F. Kayusa, Law Office of Michael F. Kayusa, Ft Myers, FL, for Defendant.
ORDER
DOUGLAS N. FRAZIER, UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court upon review of Defendant F/V Double E's Motion for Release of a Vessel or Property in Accordance with Supplemental Rule E(5) and Incorporated Memorandum of Law and in the Alternative, to Post a Bond in Lieu of Attachment Under Rule E(5)(a) filed on June 6, 2019. (Doc. 19). Plaintiff Pedro Borge filed a Response in Opposition on June 10, 2019. (Doc. 22). The Court held an evidentiary hearing on July 3, 2019. (Doc. 28). After reviewing the motion, memoranda, and arguments of counsel at the hearing, the Court finds Defendant F/V Double E's ("Double E") motion is due to be granted to the extent that the F/V Double E be released after an appropriate bond is posted. In reaching this conclusion, the Court finds probable cause existed for the arrest of Defendant Double E.
I. Background
On May 29, 2019, Plaintiff commenced this in rem action in admiralty court stemming from his slip and fall while employed as a commercial fisherman onboard the Double E. (Doc. 1). On that same day, Plaintiff moved this Court to enter an Order directing the Clerk to issue a warrant for the arrest of the Double E. (Doc. 3). Pursuant to Supplemental Rule (C) for Certain Admiralty and Maritime Claims of the Federal Rules of Civil Procedure and Local Admiralty Rule 7.03, the Court granted Plaintiff's motion and directed the Clerk to issue a warrant for arrest of the defendant vessel. (Doc. 8). After the United States Marshal arrested the Double E, pursuant to Local Admiralty Rule 7.03(g), Defendant moved this Court to release the Double E or, alternatively, to post a bond in lieu of attachment. (Doc. 19). On June 26, 2019, the Court granted the motion to the extent that the undersigned set a hearing on the motion for Plaintiff Borge to show cause why the arrest should not be vacated. (Doc. 26). The undersigned heard argument from both parties at the July 3, 2019 evidentiary hearing.
II. Legal Standard and Discussion
a. Probable Cause
A Rule E(4)(f) hearing is to make a preliminary determination only as to whether there were reasonable grounds to issue an arrest warrant and, if so, to set an appropriate bond. 20th Century Fox Film Corp. v. M.V. Ship Agencies, Inc. , 992 F. Supp. 1423, 1427 (M. D. Fla. 1997) (quoting Salazar v. Atlantic Sun , 881 F.2d 73, 79-80 (3rd Cir. 1989) ). "[A] post-arrest hearing is not intended to definitely resolve a dispute between parties." Id . At the hearing, the plaintiff has the burden to come forward with sufficient evidence to show there was probable cause for the arrest of the vessel. Id. This burden is not an onerous one. See generally George v. A 2005 DONZI Motor Yacht, Hull Identification No. DNAFA008A505, 09-81145-CIV-VITUNAC , 2009 WL 3417707, at *1 (S. D. Fla. Oct. 22, 2009). In overcoming this burden, the Supreme Court has held that admiralty courts liberally interpret a duty of maintenance and cure for the benefit and protection of seamen who are its wards. See Vaughan v. Atkinson , 369 U.S. 527, 532, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962) (quotations omitted) (citing Calmar S.S. Corp. v. Taylor , 303 U.S. 525, 528, 58 S.Ct. 651, 82 L.Ed. 993 (1938) ). And any ambiguities or doubts are to be resolved in favor of the seamen. Id. (citing Warren v. United States , 340 U.S. 523, 530, 71 S.Ct. 432, 95 L.Ed. 503 (1951) ).
Defendant claims any injury Plaintiff might have suffered causing his April 23, 2019 emergency room visit occurred at home, as reflected by Plaintiff's statements in the medical records, and is separate and distinct from Plaintiff's employment with Defendant. Plaintiff refutes this by calling to the Court's attention the language barriers between Plaintiff and English-speaking medical care providers, translators, crew members, and the Double E's captain. Plaintiff claims he is only able to speak, read, and write in Spanish, resulting in communication or scrivener's errors with any notation or mention that Plaintiff Borge's slip and fall occurred at his home. Additionally, in subsequent visits for medical care following Plaintiff Borge's second voyage, his medical records memorialize statements he made to medical care personnel indicating he fell while fishing on a boat.
Even if the Court credits the statements in the medical records, the Court finds that these statements would not overcome the finding that probable cause existed.
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Here, the most compelling evidence in reaching a probable cause determination for the arrest of the Double E is two-fold: (1) Plaintiff was aboard the Double E approximately 40 days prior to both visits to Cape Coral Hospital's emergency room (Doc. 19-2 at 7), and (2) each time the Double E arrived at Fort Myers Beach, Florida, Plaintiff immediately sought medical care. (Doc. 22-1 at 17). Defendant represents that Plaintiff's injuries were preexisting to his first voyage on the Double E and, at most, might have been exacerbated during his time on the vessel. (Doc. 18 at 4, Doc. 19-1 at 3 and 9-10). Plaintiff submits a vessel owner is liable for maintenance and cure even if the seaman's condition is preexisting. (Doc. 22 at 4). The undersigned finds this argument persuasive. See Sammon v. Central Gulf S.S. Corp. , 442 F.2d 1028 (2nd Cir. 1971) ; see also Messier v. Bouchard Transp. , 688 F.3d 78 (2nd Cir. 2012).
Although Alfred "Lucky" Simon, the rig man and self-described first-mate, on the Double E testified that at no point did he see Plaintiff Borge limping, Jody Ellerbee (Ellerbee), Double E's captain, admits that he witnessed Plaintiff Borge limping a few days into the trip and when he inquired about it, Lucky told Ellerbee it was from an old injury. (Doc. 19-1 at 4 and Doc. 22-4 at 4). Furthermore, Alford "Red" Howanitz, a shrimper on the Double E, testified that he also witnessed Plaintiff Borge limping during Double E's voyage. (Doc. 22-2 at 5). Red also maintains Plaintiff Borge assured him when he questioned Plaintiff Borge about his limping that it was due to an old injury. However, Plaintiff Borge contends he did not have a hip injury prior to working on the Double E.
Thus, at this juncture, without additional discovery to amplify the parties' arguments, Plaintiff's evidence is sufficient to establish probable cause to uphold the validity of the arrest. Considering all of the above, the Court finds a viable claim exists as to a maritime lien against the Double E. Consequently, Plaintiff has met his burden and the Court finds probable cause existed for the Double E's arrest.
b. Bond Amount
In finding probable cause for the arrest of the Double E, the Court now turns to the issue of an appropriate bond amount.
Supplemental Admiralty Rule E(5)(a) provides that "whenever process of maritime attachment and garnishment or process in rem is issued the execution of such process shall be stayed, or the property be released, on the giving of security." The Rule further states that if the parties are unable to stipulate to the bond amount, the Court shall fix an amount sufficient to cover the plaintiff's claim "fairly stated" with accrued interests and costs. Fed. R. Civ. R. Supp. Admiralty R. E(5)(a). However, in no event, shall the amount exceed twice the amount of the plaintiff's claim or the appraised value of the property, whichever is smaller. Id.
When, as here, the parties do not agree to the amount of the bond, the "fairly stated" standard controls the amount the court sets for the bond. See Barnett Bank N.A. v. Tug Chauncey , 98-848-CIV-J-21A, 1999 WL 1044822 at *3 (M.D. Fla. July 14, 1999) (citing Supplemental Rules for Certain Admiralty and Maritime Claims (Supp. R.)). So long as a plaintiff's claims are plausible and supported, his claim is "fairly stated." See id. Courts have interpreted this to mean the bond will be the "reasonable value" of the claim. Id. See also 20th Century Fox Film Corp. v. M.V. Ship Agencies, Inc. , 992 F. Supp. 1429, 1431 (M.D. Fla. 1997). "In making this determination, the courts should look to evidence presented by the parties." Id. at 1430-1431.
The damages in Plaintiff's Verified Complaint (Doc. 1) are as follows: $100,000 in past medical expenses, $150,000 for future medical expenses, $300,000 for lost wages, $350,000 for pain and suffering, and $100,000 in attorneys' fees. Defendant offered to post a $10,000 bond for the release of the vessel. (Doc. 19 at 6). At the hearing, Plaintiff submitted, and the Defendant did not object to, an Evaluation Report from Ocean Marine Brokerage Services, which provided a present-day fair market value of the vessel totaling $750,000. (Pl. Exh. 18). Plaintiff also submitted his current medical bills totaling approximately $75,000.
The Court must set an amount fairly stated by Plaintiff, and it is incumbent upon the Court to make some effort to place a reasonable value on the claim. See 20th Century Fox Film Corp. , 992 F. Supp. at 1431. The Court notes, however, that the parties failed to submit or refute most, if not all, amounts relevant to an appropriate in significant detail. Without evidence of fees and costs expended thus far and other additional amounts relevant for consideration of the reasonable value of Plaintiff's claim, the Court finds persuasive the evaluation provided by Ocean Marine Brokerage Services. Therefore, because the Verified Complaint (Doc. 1) alleges damages of $1 million and the value of the Double E is $750,000 (Pl. Exh. 18), the Court sets the bond amount at $750,000.
III. Conclusion
Notably, the Court is not making any determination as to whether Plaintiff will ultimately prevail on the merits of his claim or, if so, the amount of any judgment, matters to be resolved in future proceedings in this Court. The Court only concludes that probable cause existed for the arrest of the vessel and the amount of Plaintiff's claim "fairly stated" for purposes of setting the amount of the bond is $750,000. This bond amount finding is without prejudice to any determinations made in later proceedings in this action and is further subject to the right of any interested party to move for greater or lesser security pursuant to Local Admiralty Rule 7.05(j).
ACCORDINGLY, it is hereby ORDERED:
1. Defendant's Motion for Release of a Vessel or Property in Accordance with Supplemental Rule E(5) and Incorporated Memorandum of Law and in the Alternative, to Post a Bond in Lieu of Attachment Under Rule E(5)(a) (Doc. 19) is GRANTED to the extent that Defendant F/V Double E be released after the posting of a $750,000 bond. In other respects, the motion is DENIED .
DONE and ORDERED in Fort Myers, Florida on July 15, 2019.