Ehorn v. Abandoned Shipwreck Known As Rosinco
| Decision Date | 26 September 2001 |
| Docket Number | No. 00-C-1086.,00-C-1086. |
| Citation | 185 F.Supp.2d 965 |
| Parties | Paul L. EHORN, Plaintiff, v. The ABANDONED SHIPWRECK KNOWN AS THE ROSINCO, HER TACKLE, APPURTENANCES, FURNISHINGS, AND CARGO, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
David J. Haywood, Frederick L. Zievers, for Plaintiffs.
Paul L. Barnette, Assistant Attorney General, Wisconsin Dept. of Justice, Alan Lee, Assistant Attorney General, Wisconsin Depart. of Justice, for Defendants.
DECISION AND ORDER
The plaintiff commenced this action when on August 7, 2000, he filed an in rem complaint in admiralty asserting his claim to all right, title and interest in the Rosinco, her tackle, appurtenances, furnishings, and cargo. According to the complaint, the plaintiff
On August 16, 2000, the plaintiff filed a motion seeking the issuance of a warrant for the arrest of the Rosinco. The motion was granted and, pursuant to an order of this court, a warrant was issued on September 5, 2000. The United States Marshal posted the arrest warrant in the Federal Courthouse in Milwaukee, Wisconsin.
On October 12, 2000, the court issued an Order for Publication of Notice of Action and Arrest of the Rosinco (Order for Publication). Pursuant to that order, notice was published on October 20, 2000, in both the Milwaukee Journal Sentinel and the Kenosha News. On November 3, 2000, the State of Wisconsin ("State" or "Wisconsin") filed with this court a claim of ownership of the Rosinco. Wisconsin's claim was submitted by Christine A. Gabron, an Assistant District Attorney ("ADA") for Kenosha County.
On November 16, 2000, the plaintiff filed a motion for declaratory judgment asking the court to award him "all right, title, and ownership interest in the Rosinco." The plaintiff's motion was based upon, inter alia, his assertion that "[n]o other person or entity ha[d] filed a claim to the Rosinco, her tackle, furnishings, cargo, or appurtenances."
On December 20, 2000, having been alerted to the claim submitted by ADA Gabron on behalf of the State of Wisconsin, the plaintiff filed a motion to quash such claim. The plaintiff set forth several bases for his motion, principally including (1) that the State of Wisconsin's claim was not timely, (2) that the State of Wisconsin failed to submit an answer within twenty days as required by Rule C(6) of the Supplemental Rules for Certain Admiralty and Maritime Claims ("Supplemental Rules") and the court's October 12, 2000, Order for Publication, and (3) that the November 3, 2000, claim submitted by the State of Wisconsin failed to set forth a valid claim of ownership under the Abandoned Shipwreck Act of 1987, 43 U.S.C. § 2101-2106.
On January 5, 2001, the court conducted a hearing to address the further processing of this action. At that hearing, the court directed the State to respond to the plaintiff's motion to quash. Pursuant to a subsequent stipulation of the parties, the court ordered the State's response to be filed no later than February 9, 2001. On February 9, 2001, Wisconsin filed (1) a motion to intervene, (2) a motion for leave to file an amended claim and answer, (3) an amended claim, and (4) an answer.
On March 9, 2001, the plaintiff filed a reply brief in support of his motion to quash. On May 29, 2001, he filed a motion for an evidentiary hearing on the State of Wisconsin's motion to intervene, and on June 1, 2001, he filed a response to the State's motion for leave to file an amended claim and answer. On June 29, 2001, Wisconsin filed a motion to strike the plaintiff's response to the State's motion for leave to file an amended claim and answer. Finally, on September 20, 2001, the plaintiff filed motions for an evidentiary hearing on his motion to quash and on his motion for declaratory judgment.
This rather lengthy barrage of motions, responses, and counter-motions has left seven motions ready for resolution: (1) the plaintiff's motion for declaratory judgment; (2) the plaintiff's motion to quash; (3) the State of Wisconsin's motion to intervene; (4) the State of Wisconsin's motion for leave to file an amended claim and answer; (5) the plaintiff's motion for an evidentiary hearing on Wisconsin's motion to intervene; (6) the State of Wisconsin's motion to strike the plaintiff's response to Wisconsin's motion for leave to file an amended claim and answer; (7) the plaintiff's motion for an evidentiary hearing on his motion to quash; and (8) the plaintiff's motion for an evidentiary hearing on his motion for declaratory judgment.
Before turning to these pending motions, the court must address some preliminary questions. Namely, the court must determine whether it has jurisdiction over the present action.
The judicial power is defined by Article III of the Constitution and extends to, among other things, "all Cases of admiralty and maritime Jurisdiction." U.S. Const. art. III, § 2 cl.1. Congress has conferred upon federal district courts exclusive, original jurisdiction of "[a]ny civil case of admiralty or maritime jurisdiction ...." 28 U.S.C. § 1333. By virtue of this affirmative jurisdictional grant by Congress, this court has subject matter jurisdiction over the present action.
For a court to establish in rem jurisdiction over a vessel, admiralty law has historically required that the res be arrested. See Burns Bros. v. Long Island R. Co., 176 F.2d 950 (2d Cir.1949) (per curiam) (); The Brig Ann, 9 Cranch 289, 13 U.S. 289, 291, 3 L.Ed. 734 (1815). The traditional arrest requirement was carried forward when the Supplemental Rules were adopted in 1966. Rule C(3)1 provides that, upon court review of the verified in rem complaint and any supporting papers,
if the conditions for an action in rem appear to exist, an order so stating and authorizing a warrant for the arrest of the vessel ... that is the subject of the action shall issue .... If the property is a vessel or a vessel and tangible property on board the vessel, the warrant shall be delivered to the marshal for service.
Supplemental Rule D also recognizes the necessity of arrest: "In all actions for possession, partition, and to try title maintainable according to the course of the admiralty practice with respect to a vessel, ... the process shall be by a warrant of arrest of the vessel, cargo, or other property ...."
Arrest is the means by which a court obtains "exclusive custody and control over the property" that is the subject of the in rem action. See R.M.S. Titanic, Inc. v. Haver, 171 F.3d 943 (4th Cir.1999) (citing Darlak v. Columbus-America Discovery Group, Inc., 59 F.3d 20, 22-23 (4th Cir.1995)). Such custody and control is a necessary prerequisite to the court's exercise of jurisdiction over the res. A court's jurisdiction does not, however, depend upon its having actual control over the res; constructive control has long been recognized as sufficient. See The Brig Ann, 13 U.S. at 291; California v. Deep Sea Research, 523 U.S. 491, 497, 118 S.Ct. 1464, 140 L.Ed.2d 626; R.M.S. Titanic, 171 F.3d at 964.
Although its precise contours are difficult to discern, constructive control quite obviously "connotes something less than physical seizure of a res by a court." R.M.S. Titanic, 171 F.3d at 963. No statute, rule, or court decision has ever purported to exhaustively define what constitutes constructive control. The question whether a court has constructive control over a res often will turn upon case-specific factual considerations. In determining whether constructive control has been achieved under a particular set of circumstances, it is useful to examine 1) the underlying purposes of the arrest requirement, and 2) the types of action that previously have been held to constitute constructive control.
The Supreme Court examined the historical origin and function of in rem arrest in United States v. James Daniel Good Real Property, et al., 510 U.S. 43, 57, 114 S.Ct. 492, 126 L.Ed.2d 490 (1993) (emphasis added):2
Justice Story, writing for the Court in The Brig Ann, explained the justification for the rule as one of fixing and preserving jurisdiction: `[B]efore judicial cognizance can attach upon a forfeiture in rem ... there must be a seizure; for until seizure it is impossible to ascertain what is the competent forum.' 13 U.S. (9 Cranch), at 291 ....
As the Brig Ann held, all that is necessary `[i]n order to institute and perfect proceedings in rem [is] that the thing should be actually or constructively within the reach of the Court.' Ibid.
The Court also noted that there were situations where the nature of the property at issue is such that "the appropriate judicial forum may be determined without actual seizure." Id. As is the case with real estate (the example cited by the Court in James Daniel Good) arrest of the Rosinco was not necessary for the purpose of ensuring that the vessel was within the territorial jurisdiction of this court. No one disputes that the vessel is located within the Eastern District of Wisconsin.
Maritime arrest is also often seen as a means of providing security for the satisfaction of a judgment that might be awarded a plaintiff. See Russell J. Pope, Maritime Arrest Under the Foreign Sovereign Immunities Act: An Anachronism, 62 Tex....
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Ehorn v. Sunken Vessel Known As "Rosinco"
...28 U.S.C. § 636(c), denied this motion and awarded Ehorn ownership of the Rosinco without further ado. Ehorn v. Abandoned Shipwreck known as the Rosinco, 185 F.Supp.2d 965 (E.D.Wis.2001). The court first concluded that an action against the vessel itself is proper, even though the Marshal h......