Opinion
Case No. 11-80722-Civ-MARRA/JOHNSON
08-30-2011
D & M CARRIERS, LLC, d/b/a FREYMILLER, INC., a foreign corporation, Plaintiff, v. M/V THOR SPIRIT, a/k/a M/V SPIRIT, a/k/a M/V ELATION, along with her engines, boilers, machinery, masts, rigging, tackle, equipment and supplies, tools, pumps, gear, furniture, appliances, and fishing gear and other appurtenances and apparel, having Serial No. VSC57045D506, in rem, and ABLE BOAT TRANSPORT, LLC, a Florida limited liability corporation, in personam, and IAN TAPTIK, a foreign individual, in personam, Defendants.
ORDER SETTING BOND
THIS CAUSE is before the Court upon Defendant M/V Thor Spirit's Motion for Bond Hearing for the Release of the Vessel [DE 27]. The motion is fully briefed and ripe for review. The Court has carefully considered all the filings, oral argument of counsel at a bond hearing held August 25, 2011, and all applicable case law.
Plaintiff asserts that its "claim fairly stated" as described in Supplemental Rule E(5)(a) consists of (1) $77,995.81 for unpaid transportation invoices; (2) $350 for court costs; (3) $2,500.00 for seizure fees paid to the U.S. Marshal; (4) $13,408.50 for custodial fees relating to the vessel from National Maritimes Services; and (5) $24,188.50 in attorneys' fees, for a grand total of $118,442.81. Plaintiff moves to have this amount doubled to ensure sufficient surety for a grand total of $236,885.62. When combined with the 6% annum interest required by Supplemental Rule E(5)(1), Plaintiff argues the appropriate bond amount in this case should be $251,098.76.
The Court will not include in the bond an amount to cover a potential award of attorney's fees. Even though attorneys' fees may be awarded in admiralty cases when the losing party has acted in bad faith or vexatiously, they are not necessaries that create an enforceable maritime in rem lien against a vessel. See Offshore Marine Towing, Inc. v. MR23, 412 F.3d 12541256-57 (11th Cir. 2005); Bradford Marine, Inc. v. M/V Sea Falcon, 64 F.3d 585 (11th Cir. 1995); Carter v. Vessell Beacon, 2010 WL 1492884 (S.D. Ala. April 13, 2010); Gulf Marine & Indus. Supplies v. Golden Prince, 230 F.3d 178, 180 (5th Cir. 2000).
Defendant Taptik responds that a reasonable bond amount which fairly states Plaintiff's claim should be $50,000.00, especially in light of the fact that Taptik has already paid $33,000 on a $38,000.00 flat fee contract with Able Boat. Taptik concedes, however, that he is willing to post a bond in the amount of $103,575.79, consisting of the following components: (1) $77,995.81 as stated in the Verified Complaint; (2) $2,500.00 for the arrest of the M/V Thor Spirit; (3) $9,671.48 in interest at 6% per annum for two years on the $77,995.81; and (4) $13,408.50 in custodial fees through August 19, 2011. The Court accepts the base amount of $103,575.79, but adds to that $350 for court costs, and $6,720 for alleged damages (and interest thereon) during transport, for a total bond of $110,645.79.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendant M/V Thor Spirit's Motion for Bond Hearing for the Release of the Vessel [DE 27] is granted.
2. A special bond necessary to secure the release of the M/V Thor Spirit is hereby set at $110,645.79. These funds shall be paid into the registry of the Court, by cash, cashier's check, attorney's trust account check, or wire transfer, which shall act as the substituted res for all in rem claims against the Defendant Vessel.
3. Upon the Clerk's verification that the required bond has been posted, the Marshal or Substitute Custodian is Ordered to release the Defendant Vessel, M/V THOR SPIRIT, in accordance with Supplemental Rule E(5) and Local Admiralty Rule E(8).
4. The Court shall retain jurisdiction over this bond amount, which shall not be disbursed until further order of this Court.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida, this 30th day of August, 2010.
KENNETH A. MARRA
United States District Judge
copies to:
All counsel of record