Rayon Y Celanese Peruana v. M/V PHGH, Civ. A. No. 78-174-H.

• Decision Date: 29 June 1979
• Docket Number: Civ. A. No. 78-174-H.
• Parties: RAYON Y CELANESE PERUANA, S.A., a corporation, Plaintiff, v. M/V PHGH, her engines, tackle, hull, appurtenances, equipment, etc., in rem, Defendant, R. et G. Dekytspotter, a corporation, Francois Le Parco, a corporation, and Societe Des Avitailleurs Reunis Bordelais, a corporation, Intervenors.
• Court: U.S. District Court — Southern District of Alabama

471 F. Supp. 1363

RAYON Y CELANESE PERUANA, S.A., a corporation, Plaintiff, v. M/V PHGH, her engines, tackle, hull, appurtenances, equipment, etc., in rem, Defendant, R. et G. Dekytspotter, a corporation, Francois Le Parco, a corporation, and Societe Des Avitailleurs Reunis Bordelais, a corporation, Intervenors.

Civ. A. No. 78-174-H.

United States District Court, S. D. Alabama, S. D.

June 13, 1979.

As Amended June 29, 1979.

COPYRIGHT MATERIAL OMITTED

Patrick H. Sims and David A. Bagwell, Mobile, Ala., for plaintiff.

Rae M. Crowe and Donald C. Radcliff, Mobile, Ala., for intervenor Agence Martine & Curtis Bay Towing Co.

Alex F. Lankford, III, Mobile, Ala., for intervenor Societe Nigeria National Supply Co., Ltd., R. et G. Dekytspotter, Francois Le Parco and Societe Des Avitailleurs Reunis Bordelais, French corporations.

MOTION FOR LEAVE TO INTERVENE

HAND, District Judge.

R. et G. Dekytspotter, Francois Le Parco, and Societe Des Avitailleurs Reunis Bordelais, French corporations, move this Honorable Court for an Order permitting them to Intervene pursuant to Rule 24(a) of the Federal Rules of Civil Procedure, and as grounds therefor, aver that they have lien claims against the M/V PHGH (ex SOUTHERNER) for advances made to said vessel for necessaries, supplies, repairs and maintenance, as more fully set forth in their Complaint in Intervention. Said Intervenors claim maritime liens against the aforesaid vessel and, therefore, claim an interest relating to the property which is the subject of this action, and are so situated that the disposition of this action, namely the sale of said vessel at U.S. Marshal's sale and the cutting-off of all maritime liens by such sale, may as a practical matter impair or impede their abilities to protect their claims.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Introduction.

This is an action properly brought within the admiralty and maritime jurisdiction of the United States against the M/V PHGH in rem, and the proceeds of her sale by the U.S. Marshal under process issued in this cause.

Because of the large sum of claims and the relatively small sale proceeds in the Registry, this Court on March 28, 1978 ordered that—unless objections were filed— this case would proceed on a simplified procedural basis using affidavits and, wherever possible, stipulations. No party having objected, the case is submitted upon the pleadings, affidavits, stipulations, and briefs on file.

II. Findings of Fact.

A. Seizure, Arrest and Sale.

On February 2, 1978, the M/V PHGH—a cargo vessel of Panamanian registry—was seized by the USCG Cutter Acushnet on the High Seas about 200 miles out in the Gulf of Mexico for violation of U.S. laws involving the importation of marijuana. The vessel, its crew, its legitimate cargo of sulphur, and its contraband cargo of marijuana were brought by the Coast Guard to the Port of Mobile, Alabama. The Government filed no forfeiture against the vessel for four and one-half months, just two days prior to the sale of the vessel in this privately-brought admiralty case. The foreign crewmembers were prosecuted in this court, where they pleaded guilty, were sentenced to probation and deported.¹ The sole American involved was tried and convicted.² The sulphur cargo was adjudged in this court³ to be owned by plaintiff herein, Rayon Y Celanese Peruana, S.A. hereinafter "Raycel", a Peruvian corporation not involved in the attempted importation of the drugs, and the sulphur was released. On March 31, 1978, Plaintiff Rayon Y Celanese Peruana, S.A. filed this action in admiralty against the vessel in rem for its damages alleged to have been suffered by virtue of the vessel's having caused the abortion of the legitimate voyage by geographic deviation and by carriage of contraband. The vessel, in Government custody but not then forfeited, was seized at the instance of Raycel on March 31, 1978. A number of private parties intervened in the case, and the vessel was sold by the U.S. Marshal on June 14, 1978 upon motion of the private plaintiffs herein. The vessel was sold at Marshal's Sale to the highest bidder for only $40,000.00 and, after a delay to allow unloading of the legitimate cargo of sulphur, the sale was confirmed by this Court. All parties have claimed against the proceeds of sale⁴ as hereafter discussed.

B. Claims of All Parties.

1. Claim of Agence Martine. On or about December 2, 1977, and for approximately two days thereafter, in Port-au-Prince, Haiti, Agence Martine, a corporation, at the request of and by agreement with those in control of the M/V PHGH, provided advances for and paid for certain necessary supplies and other vessel necessaries and rendered services to the M/V PHGH of the reasonable value of $14,849.85. There presently remains due and owing to Agence Martine that amount.

2. Claim of R. et G. Dekytspotter. R. et G. Dekytspotter on October 5, 1975, at Nantes, France, at the request of the operators of the vessel, provided advances to the M/V PHGH for necessaries, supplies, repairs and maintenance, in the sum of approximately 5,055 and 15/100 French francs which, at the current rate of exchange, is approximately $1,097.00 in United States dollars. No part of that sum has been paid to date.

3. Claim of Francois Le Parco. Plaintiff Francois Le Parco, a corporation organized and existing under the laws of the Republic of France, on or before May 25 through 28, 1976, at the Port of Tonnay Charente, France, at the request of the operators of the vessel, provided certain necessary advances for necessaries, supplies, repairs and maintenance of the reasonable value of 7,801 and 55/100 French francs, which in present U.S. dollars is approximately $1,693.00. No part thereof has been paid to date.

4. Claim of Societe des Avitailleurs Reunis Bordelais. Plaintiff Societe des Avitailleurs Reunis Bordelais on June 10-11, 1976, at the Port of Bordeaux, France, at the request of the operators of the vessel, provided certain necessary advances to the vessel for necessaries, supplies, repairs and maintenance, of the reasonable sum of 63,753 and 20/100 French francs, which in present U.S. dollars is approximately $13,834.00. Notwithstanding demand therefor, no part thereof has been paid to date.

5. Claim of Societe Nigeria National Supply Co. Plaintiff Societe Nigeria National Supply Co., Ltd., delivered aboard the vessel (then owned by different owners and named SOUTHERNER, in Dunkirk and Bordeaux, France, in June of 1976, two cargoes of cubed sugar for carriage to Lagos, Nigeria, to be carried under bill of lading. Upon discharge in Lagos on January 26, 1977, the cargo was found to be either damaged or short in the amount of $22,834.90.

6. Claim of Curtis Bay Towing Co. Plaintiff Curtis Bay Towing Company, a corporation incorporated pursuant to the laws of Pennsylvania, on or about November 10, 11, and 16, 1977, provided dockage and sailing services to the M/V PHGH of the reasonable value of $2,644.13 in Philadelphia, Pennsylvania. No part thereof has been paid, and the entire amount remains due and owing.

7. Claim of the United States. The United States has filed a claim for custodial expenses in the amount of $30,615.83, representing more than three-fourths of the proceeds of sale. Since Raycel repaid the Government for $14,560 for custodial costs during the period in which confirmation of the sale was delayed to allow Raycel to get the ship in a seaworthy condition or remove its sulphur cargo, it would be helpful to break down the Government's claim for the remainder as follows:

(a) Storage, Maintenance and Guard Service. The actual cost of storage and guard service was $200.80 per day. The Government claims that it is entitled to reimbursement for these costs from the time the vessel arrived in Mobile in February until the time Raycel began to pay the custodial expenses in June.

Raycel and the private plaintiffs strenuously object. They point out that the government brought the ship to port and took no overt steps toward forfeiture for a period of some four and one-half months, during which the Government was paying $200.80 per day for guards and dockage. The Government did not in fact file a forfeiture complaint until two days before the scheduled sale of the vessel, which was brought about not in a statutory forfeiture proceeding but in this private admiralty action.⁵ The Government is entitled to recovery of guard and dockage expenses from the date it became custodian in this case (March 31) until the date Raycel began to pay the costs (June 21) or, 83 days at $200.80 per day, totalling $16,666.40. The Government is not entitled to recover from these proceeds for guard and dockage expenses incurred prior to March 31, 1978, for the reasons discussed in the "Conclusions of Law" portion which follows.

(b) Towing and Moving. The government is entitled to $1,100.20 as the reasonable expense of towage and moving the vessel to its place of storage.

(c) Waste Disposal. The Government claims $345.96 for "waste disposal" expense, which is not further explained or substantiated. Under the circumstances, the claim is not reasonable and is denied.

(d) Long Distance Calls and Survey. The Government claims reimbursement for $218.30 in telephone calls and survey costs which is allowed.

(e) Stevedoring Expense. The Government claims $2,040.97 for stevedoring and labor expenses. The claim is not allowed, because it is not a "custodial" expense but is instead a "law enforcement" expense, representing as it does the removal of the marijuana from the ship. Private claimants herein ought not to have to bear that expense.

(f) Summary. The Government has proved a claim for reasonable custodial expenses in the amount of $17,984.90.

8. Claim of Rayon Y Celanese Peruana, S.A. (a) Plaintiff Rayon Y Celanese Peruana, S.A., a Peruvian corporation, owner of a cargo of bright slated sulfur in bulk, delivered its sulphur aboard the M/V PHGH on January 14, 1978 at the...