United States District Court, M.D. Florida, Tampa Division
CHRISTOPHER P. TUTTE, UNITED STATES MAGISTRATE JUDGE
the Court are the Defendant's Motion to Vacate Arrest
and Request for Prompt Hearing (Doc. 19) and the
Defendant's Motion to Set Security and Counter
Security (Doc. 26). For the reasons discussed below, the
Defendant's motion to vacate is denied and its motion to
set security and countersecurity is granted in part and
denied in part.
International Ship Repair & Marine Services, Inc. (ISR)
initiated this in rem action in March 2019, claiming
a maritime lien against the vessel, Barge B. 215 (the Barge).
The Barge is owned by B. No. 215 Corporation (B. 215 Corp.)
and managed by Bouchard Transportation Co. Inc. (Bouchard).
Although not a defendant in this action, B. 215 Corp. has
appeared in defense of the Barge and has asserted
counterclaims for wrongful arrest and breach of contract.
genesis of this dispute dates back to sometime prior to
November 2018, when the American Bureau of Shipping (ABS)
inspected and surveyed the Barge for seaworthiness and
classification in South Carolina. The United States Coast
Guard delegates to ABS certain responsibilities with respect
to examining and certifying vessels, like the Barge, for
operation. As a result of its inspection and survey, ABS
recommended that the Barge proceed to a shipyard for repairs
and an overall deck assessment.
Barge was then sent to Gulf Marine Repair in Tampa, which
began the deck assessment project by blasting the main deck
down to bare steel and performing gauging to determine the
steel's thickness. The Barge was subsequently moved to
ISR's facility because ISR provided a better quote for
November 29, 2018, Bouchard and ISR entered into a written
contract for repair work at the agreed-upon amount of $4,
200, 000. That repair work consisted chiefly of ISR
purchasing, pre-fabricating, installing, and welding
replacement steel plates on the Barge's deck. The
contract limited the repairs to those identified in a deck
replacement plan, and included a “no growth”
clause requiring Bouchard's advance approval for any
additional work not covered by the contract.
contract also obligated ISR to complete the agreed-upon
repairs and deliver the Barge to Bouchard by February 18,
2019. In conjunction with this timetable, Bouchard was to
make progress payments in accordance with the following
8% deposit on contract signing
November 29, 2018
December 15, 2018
January 20, 2019
70% on delivery
$2, 940, 000
Delivery of Vessel
addition, the contract contained a completion incentive
provision. That provision called for Bouchard to pay an
additional $70, 000 if ISR finished the repairs ten days
early, and $100, 000 if ISR completed the repairs twenty days
early. Even without these incentive payments, ISR expected a
30% profit-$1, 260, 000-if it completed the project on time.
November 29, 2018, and January 11, 2019, ISR prepared the
Barge for the work and began making the agreed-upon repairs.
Given the size of the Barge, which measures more than 400
feet long and eighty feet wide, that process was not
insubstantial. It included ISR hiring at least twenty
subcontractors; renting and buying equipment (such as welding
machines, lights for nighttime wok, and firefighting
equipment); ventilating the tanks; installing hanging staging
below the deck; ordering pre-fabricated new plates with
underdeck stiffeners; and removing and replacing the old
plates with the new ones. To meet the February 18, 2019,
deadline, ISR's crew worked ten-hour shifts, seven days a
this process, ABS and the Coast Guard boarded the Barge to
ensure the deficient steel around the old deck plates had
been removed and the new steel plates had been properly
installed. While ABS and the Coast Guard conducted these
inspections, they identified new work to be completed,
including the replacement of additional steel. Bouchard asked
ISR to provide a quote for this additional work but
ultimately did not authorize ISR to undertake it.
November 29, 2018, to January 11, 2019, Bouchard made several
installment payments to ISR. On January 11, 2019, however, it
instructed ISR to cease all work. Bouchard asserts it issued
this stop work order because ISR advised that making further
repairs at that point would involve additional work outside
the contract. Following its stop work order, Bouchard made
one or two additional installment payments, bringing the
total sum it paid ISR under the contract to $1, 810,
As a result of the stop work order, ISR did not engage in any
further work after January 11. The Barge, however, remained
berthed at its facility.
January 31, 2019, ISR invoiced Bouchard for $2, 583, 762,
claiming it had completed 85% of the contracted work. ISR
also began charging Bouchard for berthing and other services
rendered following the stop work order.
addition, as noted above, ISR initiated the instant action
against the Barge in March 2019. At the same time, ISR filed
a motion for issuance of an arrest warrant in rem
and a motion for appointment of a substitute custodian. The
Court granted both of these motions, directed the Clerk of
Court to issue a warrant for the Barge's arrest, and
designated ISR as the Barge's substitute custodian. The
Barge was arrested on April 5, 2019.
Corp. and the Barge itself thereafter moved to vacate the
arrest and to set security and countersecurity. At a subsequent
evidentiary hearing on these matters, ISR offered the
testimony of Bruce Rosen, ISR's project manager who
provided Bouchard with a price quotation for the work
Bouchard sought to have completed. In response, Bouchard
offered three witnesses: Kevin Donohue, Bouchard's Chief
Operating Officer (COO), who negotiated the contract; Hugo
Ortiz, ISR's Senior Vice President, who oversaw the
contract's performance; and Charles Gillespie, an
independent surveyor Bouchard retained to evaluate the work
ISR had completed. In addition to this testimony, the Court
admitted a number of exhibits into evidence.
accordance with the Court's directive, the parties
thereafter submitted proposed findings of fact and
conclusions of law. The matter is ...