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Harbortown Marina-Canaveral, Ltd. v. S/V Odyssey

United States District Court, M.D. Florida, Orlando Division

December 5, 2019

HARBORTOWN MARINA-CANAVERAL, LTD., Plaintiff,
v.
S/V ''ODYSSEY'' and DALE BROADWELL, Defendants.

          REPORT AND RECOMMENDATION

          LESLIE R. HOFFMAN UNITED STATES MAGISTRATE JUDGE

         TO THE UNITED STATES DISTRICT COURT:

         This cause came on for consideration without oral argument on the following motion filed herein:

MOTION: AGREED MOTION FOR IMMEDIATE INTERLOCUTORY SALE OF VESSEL (Doc. 20)
FILED: October 17, 2019
THEREON it is RECOMMENDED that the motion be GRANTED.

         This case stems from Defendant Dale Broadwell's alleged failure to pay Plaintiff Harbortown Marina-Canaveral, LTD., a company that operates the marina where Mr. Broadwell's vessel, the S/V Odyssey (Vessel), is docked, for dockage fees and other services the Plaintiff performed with respect to the Vessel. (Doc. 1). On June 18, 2019, the Plaintiff filed this action asserting a single claim for foreclosure of a maritime necessaries lien against the Vessel. (Id.).

         On July 1, 2019, the Court entered orders granting the Plaintiff's request to issue a Warrant for Arrest In Rem of the Vessel and appointing the Plaintiff as the custodian of the Vessel during the pendency of these proceedings. (Docs. 11; 12). The Vessel was arrested on July 22, 2019 and has been in the Plaintiff's possession, as custodian, since that time. (Doc. 14).

         In accordance with Supplemental Admiralty Rule (C)(4) and Local Admiralty Rule 7.03(d), on August 9, 2019, notice of this action and the arrest of the Vessel was published in the Orlando Sentinel newspaper. (Doc. 19-1). Neither the Defendants nor any other parties have come forward to defend this action.

         On October 17, 2019, the Plaintiff filed a motion for the immediate interlocutory sale of the Vessel. (Doc. 20 (Motion)). In support, the Plaintiff states that it seeks the immediate sale of the Vessel because the value of its original claim ($4, 452.07) and the increasing custodian fees (which totaled $14, 952.08 on the date the Motion was filed and accrue at a rate of $5, 160.00 per month) will soon eclipse the estimated value of the Vessel ($30, 000.00). (Id. at ¶¶ 3, 5, 7-8). The Plaintiff states that the arrest of the Vessel was publicized in accordance with the applicable rules and, as of the date of the Motion, no additional claimants have come forward against the Vessel - a fact that remains true through the date of this Report. (Id. at ¶ 9). The Plaintiff's counsel has been in contact with Mr. Broadwell and his son, the purported owners of the Vessel, and they have advised him that they do not intend to appear in the action and agree to the Vessel going to auction. (Id. at ¶¶ 6, 10-11). Accordingly, the Plaintiff requests the Court enter an order of interlocutory sale of the Vessel pursuant to Supplemental Admiralty Rule E(9)(b). (Id. at 7). In support, the Plaintiff attached a proposed order for the Court's consideration. (Doc. 20-1).

         Interlocutory sales of vessels are governed by Supplemental Admiralty Rule E(9)(a)(i), [1]which provides, in pertinent part, as follows:

On application of a party, the marshal, or other person having custody of the property, the court may order all or part of the property sold-with the sales proceeds, or as much of them as will satisfy the judgment, paid into court to await further orders of the court-if:
(A) the attached or arrested property is perishable, or liable to deterioration, decay, or injury by being detained in custody pending the action;
(B) the expense of keeping the property is excessive or disproportionate; or (C) there is an unreasonable delay in ...

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