LaFauci v. NH Department of Cor ( 2006 )


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  •           United States Court of Appeals
    For the First Circuit
    Nos. 05-1173, 05-1174
    DAVID E. MULLANE; JOAN-LESLIE MULLANE,
    Plaintiffs, Appellants, Cross-Appellees,
    v.
    ADELE CHAMBERS; JEAN FARESE,
    Defendants, Appellees, Cross-Appellants.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. William G. Young, U.S. District Judge]
    Before
    Lynch, Circuit Judge,
    Stahl, Senior Circuit Judge,
    and Lipez, Circuit Judge.
    Thomas E. Clinton, with whom Robert E. Collins and Clinton &
    Muzyka, P.C. were on brief, for the appellants.
    Paul L. Kenny, with whom Salim Rodriguez Tabit was on brief,
    for the appellees.
    February 24, 2006
    LIPEZ, Circuit Judge. This is an appeal and cross appeal
    of the district court's resolution, on remand from this court, of
    competing claims to a 42-foot motorized yacht, known variously as
    the Lady B, the Lady B Gone, and the Cent'Anni (the vessel).              The
    vessel's owners, David and Joan Mullane, appeal the district
    court's rejection of their claim to a lien on the vessel.             Adele
    Chambers and Jean Farese, who seized the vessel to satisfy debts of
    the vessel's previous owner, appeal the district court's order that
    they reimburse the Mullanes for storing the vessel during the
    course of the litigation.     We affirm.
    I.
    The facts have been recounted elsewhere.           This case has
    been tried twice, by two different district court judges, each of
    whom published an opinion.        Mullane v. Chambers, 
    349 F. Supp. 2d 190
     (D. Mass. 2004); Mullane v. Chambers, 
    206 F. Supp. 2d 105
     (D.
    Mass. 2002).     It has been the subject of a published opinion by
    this court.    Mullane v. Chambers, 
    333 F.3d 322
     (1st Cir. 2003).          We
    review only the details relevant to the issues before us.           Because
    this case comes to us after a trial, we present the facts in the
    light most favorable to the district court's judgment.           See Wilson
    v. Mar. Overseas Corp., 
    150 F.3d 1
    , 3 (1st Cir. 1998).
    In July 1998, the Mullanes bought the vessel from a trust
    established by Dr. David Murphy and his wife.            As consideration,
    the   Mullanes   paid   $98,117   to    Eastern   Bank   to   discharge   the
    -2-
    preferred ship's mortgage on the vessel in favor of the bank,1 paid
    $2,000 cash to Murphy and assumed a $40,000 lien Murphy owed to his
    own company.
    The vessel was federally documented and listed on the
    registry maintained by the United States Coast Guard.2                     In the
    normal course of maritime affairs, transfer of the vessel and
    discharge of the mortgage should have been recorded immediately
    with the Coast Guard, in which case the public record would have
    shown that the Mullanes, not the Murphys, owned the vessel.                      
    46 U.S.C. §§ 12101-12124
    , 31321.         For whatever reason, however, the
    sale and discharge were not recorded until September.                     In the
    interim   --   for    all   of   August     --   the   public    record    showed
    erroneously    that   the   Murphys   owned      the   vessel,   subject    to   a
    mortgage in favor of Eastern Bank.
    At the time he sold the vessel to the Mullanes, David
    Murphy was indebted to Chambers and Farese, both of whom had loaned
    him money.     Chambers had obtained a $70,132 writ of execution
    1
    A preferred ship's mortgage is a statutorily-created lien that
    can be publicly registered, see infra note 2, and can be enforced
    in an admiralty court. See 
    46 U.S.C. § 31322
     et seq.
    2
    The Coast Guard maintains a "national form of registration" for
    vessels larger than five net tons. Vessels like the one involved
    in this case, larger than five net tons but not involved in any
    commercial enterprise, may be registered at the option of the
    owner. See 
    46 U.S.C. § 12101
     et seq. See also National Vessel
    Documentation    Center:   Frequently    Asked   Questions,    at
    http://www.uscg.mil/hq/g-m/vdoc/faq.htm (last visited Jan. 24,
    2006).
    -3-
    against Murphy, and Farese a writ for $27,612.                  But neither
    Chambers nor Farese had attached any claim to the vessel until late
    August, when, acting on the information in the public record, they
    arranged for sheriff's deputies to seize the vessel.
    Chambers and Farese learned about the transfer from the
    Murphys to the Mullanes and the mortgage discharge hours after the
    seizure.     Nonetheless, they elected to press their claim to the
    vessel rather than attempt to satisfy Murphy's debt with property
    that actually belonged to him.          Indeed -- according to their own
    statements -- upon learning that the Eastern Bank mortgage on the
    vessel had been discharged, Chambers and Farese abandoned their
    plans to seize Murphy's condominium, which they also had arranged
    for the sheriff's deputies to levy.                 They believed that the
    additional equity in the vessel available after the mortgage
    discharge     would     make   any   seizure   of   Murphy's   own    property
    unnecessary.
    The Mullanes sued Farese, Chambers, and the Sheriff's
    Department that had seized the vessel.               They claimed that the
    seizure had been illegal, that they were entitled to unencumbered
    ownership of the vessel, and that they were owed compensation for
    damage to the vessel that occurred during the seizure.               The case
    landed on the admiralty docket of the district court. See Mullane,
    
    333 F.3d at 328
       (concluding    admiralty    jurisdiction     correctly
    invoked). The Mullanes arranged for the vessel to be arrested, see
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    Fed. R. Civ. P. D, an action that prevented anyone from selling the
    vessel before litigation concluded. Initially, the vessel was held
    by the court.       At some relatively early point, however, the
    Mullanes posted a $125,000 passbook savings account as security for
    the vessel, and it was released to their custody.            See Fed. R. Civ.
    P. E(5)(d).
    After the first trial in this case, the district court
    found that the Mullanes were bona-fide purchasers of the vessel who
    had no notice of Chambers and Farese's claims.                The court also
    concluded   that   the   seizure   of   the   vessel   was    improper   under
    Massachusetts law.       The district court restored the Mullanes'
    ownership rights and ordered Chambers and Farese to pay $100,000 in
    punitive damages to the Mullanes, for what the district court
    termed their "wanton and reckless" disregard of the Mullanes'
    rights.3
    We vacated and remanded, concluding that Chambers and
    Farese were entitled to rely on the public record unless they had
    actual notice of the transfer to the Mullanes, and that they had
    adhered to Massachusetts law in seizing the vessel.             See Mullane,
    
    333 F.3d at 329-33
    .       We asked the district court to determine
    whether Chambers and Farese had knowledge of the Mullanes' claim to
    the vessel before they completed their seizure.              We noted that if
    3
    The district court found that no relief was warranted on the
    Mullanes' claims against the sheriff's department.
    -5-
    the district court found that Chambers and Farese had knowledge of
    the Mullanes' purchase, the court would need to determine whether
    there was any merit in Chambers and Farese's claim that the
    Murphys'   sale   of     the   vessel    to    the    Mullanes   constituted   a
    fraudulent transfer under Massachusetts law.              (The district court
    had   resolved    that    question      in    the    Mullanes'   favor   through
    application of federal law, which we concluded did not govern the
    transaction.)
    On remand, the district court found that Chambers and
    Farese had no actual or constructive notice of the Mullanes'
    purchase at the time of the seizure (though they did within hours
    thereafter).4     Consequently, the district court determined that
    Chambers and Farese had a valid claim on the vessel.               The parties
    do not contest this determination on appeal.              Because the district
    court found that Chambers and Farese had valid liens on the vessel,
    it did not need to reexamine the fraudulent transfer issue.
    Recognizing that application of 
    46 U.S.C. § 31321
    , the
    vessel documentation statute, would yield a "harsh" penalty on the
    "innocent" Mullanes, the district court invited briefing on whether
    the Mullanes might be entitled to relief from that application, on
    admiralty or analogous state law grounds.              The Mullanes suggested
    4
    After our remand, the case was assigned to a different district
    court judge than the one who presided at the first trial. Due to
    that judge's busy schedule, the case was reassigned to the Chief
    Judge, who presided at the second trial and entered the judgment
    that we now review.
    -6-
    only that they were entitled to a maritime lien on the vessel,
    equal   in   value   to   the   Eastern     Bank   mortgage   that   they   had
    discharged.     The district court determined that no such maritime
    lien existed.
    Finally, the court ordered, "in the interest of equity,"
    that Chambers and Farese "reimburse the Mullanes for all reasonable
    storage and insurance costs of the vessel incurred since the levy."
    The Mullanes had incurred such charges by storing the vessel at
    various marinas during the course of the litigation as they tried
    to clear title to the vessel.
    II.
    A.   The Mullanes' Appeal
    At the conclusion of the second trial in this case, the
    district court opined that relief might be possible on grounds
    that, in light of Chambers and Farese's seizure, the Mullanes'
    discharge of the Eastern Bank mortgage had unjustly enriched
    Murphy. Seeking to resolve the issue, the district court gave very
    specific instructions:
    I . . . need to have briefed the issue of . .
    . the role that Dr. Mullane's discharge of the
    preferred ships mortgage plays here. I'm not
    here talking about simple appeals to equity. .
    . .   I want to know everything there is to
    know about this type of circumstance either
    under the federal recording statute, and if we
    can't find that let's go to the common law of
    the several states which have recording
    statutes.   When a creditor seeks to levy on
    encumbered assets of the debtor, the creditor
    takes those assets encumbered.     Here there
    -7-
    appears no evidence but that Dr. Mullane was
    innocent . . .. Dr. Mullane may be entitled
    to . . . the equivalent of a preferred ship's
    mortgage . . ..
    Tr. Day 2, pp. 33-34 (emphasis added).
    Whether or not an equitable subordination argument could
    have been made on these facts, it was not made before the district
    court or before us, and so is waived.    Cf. Maryland National Bank
    v. The Vessel Madam Chapel, 
    46 F.3d 895
    , 901 (9th Cir. 1995)
    (recognizing   that   equitable   subordination   is   "available    in
    admiralty to resolve priority disputes").     Instead, the Mullanes
    argued that they were entitled to a maritime lien on the vessel,
    which they argued had been created by their discharge of the
    Eastern Bank mortgage.5   The holder of a maritime lien can look to
    a vessel itself, in rem, to satisfy any resultant debt.             See
    generally 
    46 U.S.C. § 31301
     et seq.; Fed. R. Civ. P. C(1)(a); 2-II
    Benedict on Admiralty (2004).     The Mullanes relied on 46 U.S.C.
    5
    The Mullanes argue here, as they did in their motion for
    reconsideration before the district court, that they had asked not
    for a maritime lien but for an equitable lien. But the Mullanes
    did not forward any theory of law pursuant to which an equitable
    lien could be granted. While they included the term "equitable
    lien" in their post-trial motion, the Mullanes relied entirely on
    two maritime lien theories and asserted that Dr. Mullane was "the
    holder of a maritime lien."      Pltfs. Post Trial Brief at 11.
    Perhaps the Mullanes mistakenly thought that their maritime lien
    theories could create equitable liens. But see 2-III Benedict on
    Admiralty § 24 (2005) (suggesting consensus that maritime liens
    are "stricti jurris; they cannot be conferred on the theory of
    unjust enrichment or subrogation"). At most, however, the Mullanes
    made legal arguments spiked with exactly the kind of "simple
    appeals to equity" that the district court had asked them to avoid.
    -8-
    § 31342(a), the statute that creates a lien in favor of "a person
    providing necessaries to a vessel on the order of the owner."          See
    Lake Charles Stevedores, Inc. v. Professor Vladimir Popov, MV, 
    199 F.3d 220
    , 223-25 (5th Cir. 1999) (discussing generally maritime
    liens for necessaries).      The Mullanes also argued that they were
    entitled to a lien under the "rule of advances," a common-law
    principle that awards liens to certain persons who do not provide
    necessaries but do "satisfy an outstanding or future lien" on a
    vessel, typically by paying for necessaries that are provided by
    another party.    2-III Benedict on Admiralty § 34 (2004).        See also
    Wilkins v. Commercial Inv. Trust Corp., 
    153 F.3d 1273
    , 1276-78
    (11th Cir. 1998) (discussing rule of advances).
    Under § 31342(a), a person provides a "necessary" by
    furnishing "goods or services . . . necessary to the continued
    operation of the vessel," in a manner that "facilitates the flow of
    commerce."     Payne v. S.S. Tropic Breeze, 
    423 F.2d 236
    , 241 (1st
    Cir.   1970)   (discussing    predecessor    statute   to   §   31342(a)).
    Classically, "necessaries" are those things that allow a vessel to
    perform its ordinary functions, such as needed repairs to an engine
    or   foodstuffs   for   a   long   voyage.    See   Trinidad    Foundry   &
    Fabricating, Ltd. v. M/V KAS Camilla, 
    966 F.2d 613
    , 614 n.2 (11th
    Cir. 1992) ("Necessaries are the items that a prudent owner would
    provide to enable a ship to perform the functions for which she has
    been engaged").    See also Bradford Marine, Inc. v. M/V Sea Falcon,
    -9-
    
    64 F.3d 585
    , 589-90 (11th Cir. 1995) (discussing definition of
    necessaries   and    concluding   that   attorney's      fees   incurred   in
    collecting repair charges did not qualify as a necessary).
    The rule of advances, like the doctrine of necessaries,
    facilitates reimbursements of those who allow a vessel to perform
    its functions.       The difference is that the rule of advances
    provides protection not to the person furnishing "necessaries," but
    rather to a third person who pays for the goods and services that
    would have given rise to a statutory maritime lien, on an assurance
    that the vessel will be responsible for the debt.               Wilkins, 153
    F.3d at 1276.    See also The Emily Souder, 84 U.S. (17 Wall.) 666
    (1873)    (holding   that   company,   which   on   request     of   American
    consulate provided funds for repairs to American steamer stranded
    in Brazil, had maritime lien on the steamer); Universal Shipping
    Inc. v. Panamanian Flag Barge, 
    563 F.2d 483
     (1st Cir. 1976)
    (awarding maritime lien to third party that provided funds to allow
    a vessel operator's purchase of "supplies and other necessaries").
    On appeal, the Mullanes do not quibble with the district
    court's   conclusion   that   their    discharge    of   the    Eastern   Bank
    mortgage did not constitute a "necessary" but seek relief only
    pursuant to the rule of advances.          We see at least two basic
    barriers to the Mullanes' rule of advances theory, both also fatal
    to the Mullanes' § 31342(a) argument.
    -10-
    First, maritime liens, created pursuant to the rule of
    advances   or   any   other   theory,   are   intended   to    safeguard   the
    interests of "strangers to the vessel," not vessel owners or those
    who can control the vessel's affairs.            Sasportes v. M/V Sol de
    Copacabana, 
    581 F.2d 1204
    , 1208 (5th Cir. 1978).              "Quite clearly,
    owners may not benefit by the advances rule."            2-III Benedict on
    Admiralty § 34.       See also Medina v. Marvirazon Compania Naviera,
    S.A., 
    709 F.2d 124
    , 125 (1st Cir. 1983) (per curiam) (recognizing
    that owners are not entitled to maritime liens).          This is because,
    as the district court recognized, maritime liens and the admiralty
    jurisdiction that comes with them are a way of making the provision
    of services to vessels as safe and predictable as the provision of
    services to land-based businesses.            A creditor with a maritime
    lien, not unlike the holder of a materialman's lien, can seek
    payment even if the person she negotiated with has absconded.              The
    overarching goal is keeping the channels of maritime commerce open
    -- by ensuring that people who service vessels have an efficient
    way of demanding reimbursement for their labor and are thus willing
    to perform the services necessary to keep vessels in operation.
    See Payne, 
    423 F.2d at 240-41
    ; see generally Benedict on Admiralty,
    supra.     The Mullanes' discharge of Murphy's mortgage did not
    further these goals.
    Second, even assuming that the Mullanes' purchase of the
    vessel effected a maritime lien by "advance," the Mullanes already
    -11-
    have   received    the   appropriate    compensation      for   that   advance:
    ownership of the vessel.           The Mullanes entered into a contract
    whereby they agreed to supply the funds to extinguish the Eastern
    Bank mortgage in exchange for the vessel.                  Nothing else was
    promised.    The Mullanes' ownership rights were compromised not
    because the vessel's operator or owner failed to repay them for an
    advance, but because, after they had been repaid in full -- and
    after any maritime lien had been extinguished by satisfaction --
    they   neglected    to   protect    their   rights   by   documenting    their
    purchase.
    B.   Chambers and Farese's Appeal
    The district court granted the Mullanes' motion for
    reimbursement for the cost of storing the vessel during litigation,
    an expense they documented to the district court.                Chambers and
    Farese contend that the district court abused its discretion in so
    doing.
    It is well established that admiralty courts may award
    storage charges on equitable grounds.           See The Ponzan, 
    274 U.S. 117
    , 120-23 (1927) (recognizing authority of admiralty courts to
    award storage charges as flexible and equitable in nature); David
    Forsht Assoc., Inc v. Transamerica ICS, Inc., 
    821 F.2d 1556
    , 1560-
    61 (11th Cir. 1987) (recognizing that storage charges in admiralty
    are created through equity).          See also Taino Lines, Inc. v. M/V
    Constance Pan Atl., 
    982 F.2d 20
    , 24 (1st Cir. 1992) (recognizing
    -12-
    that any reduction of an award of storage costs in admiralty is an
    equitable determination).    The district court has wide discretion
    in determining whether equitable relief in admiralty cases is
    appropriate.   
    Id.
       We will not, on appeal, weigh the equities anew.
    Rather, "if there is a sound reason for the decision of the
    [district court], it does not matter that there are also sound
    reasons for the opposite result."       Boston & Maine Corp. v. First
    Nat. Bank of Boston, 
    618 F.2d 137
    , 141 (1st Cir. 1980).      See also
    Certain Underwriters at Lloyds v. Kenco Marine Terminal, Inc., 
    81 F.3d 871
    , 872-73 (9th Cir. 1996) (reviewing award of storage
    expenses for abuse of discretion); Kingstate Oil v. M/V Green Star,
    
    815 F.2d 918
    , 922 (3d Cir. 1987) (same).
    Essentially, Chambers and Farese argue that it was an
    abuse of discretion for the court to award storage charges because
    the Mullanes, having posted a bond, could have enjoyed the use of
    the vessel during the litigation.       However, there is no evidence
    that the Mullanes did employ the vessel while the case was pending.
    The record indicates that the vessel was damaged severely in the
    initial seizure, and that its usefulness since has been limited.
    In any case, we are not persuaded that the district court abused
    its discretion in allowing the motion for storage costs.
    Storage costs were an inevitable consequence of the
    litigation that we have recounted.      As we have discussed, vessels
    subject to ownership disputes ordinarily are held in the custody of
    -13-
    the court during litigation.    See Fed. R. Civ. P. E; 
    28 U.S.C. § 1921
    (a)(1)(E) (2000).   If the Mullanes had not posted security and
    served as substitute custodians, the court would have been entitled
    to reimbursement for its storage costs.           
    Id.
          And the court's
    custodia legis expenses would have created a right superior to
    Chambers and Farese's lien.         See 
    46 U.S.C. § 31326
    (b)(1); 2-IV
    Benedict on Admiralty § 51 (2005).         There is no indication on the
    record that the storage costs incurred by the Mullanes were any
    greater than those that would have been incurred by the court.            The
    Mullanes had an interest in maintaining the damaged vessel (which
    they intended to use personally). Their expenditures to insure and
    store the vessel during litigation benefitted all parties.            These
    were good enough reasons for the district court to appoint them as
    the vessel's custodians and to reimburse them for storage charges.
    See David Forsht Assoc., 821 F.2d at 1561 (holding that where
    multiple parties had claims to a vessel, the party that arrested
    the vessel and served as substitute custodian should be entitled to
    reimbursement from the others, because that party benefitted all
    claimants by safeguarding the vessel during litigation, at a cost
    lower than would have been assessed by the marshal).
    Chambers   and   Farese    also    appear   to   argue   that   the
    Mullanes should not be entitled to storage charges because they
    initiated, but eventually lost, this lawsuit.               Again, we are
    unpersuaded.   This was not a frivolous suit.         It was a close case
    -14-
    that required two district court trials, the first of which the
    Mullanes won.        The district court found that the Mullanes were
    "innocent" parties, who fought at length, if unsuccessfully, to
    prevent their own property from being seized by another person's
    creditors.     Their claim to the vessel was a plausible one.                In
    light   of   these    facts,   we   discern   no   abuse   of   discretion   in
    reimbursing their storage charges.6           See Taino Lines, 
    982 F.2d at 24
     (no abuse of discretion in awarding custodia legis expenses
    where partially unsuccessful litigation "was neither frivolous nor
    undertaken in bad faith").
    III.
    The district court's order is affirmed in all respects.
    The parties shall bear their own costs and fees.
    So ordered.
    6
    Chambers and Farese also argue that Dr. Mullane forfeited the
    right to storage charges because, they contend, he documented the
    vessel's home port as in New Hampshire, where he intended to move
    it, rather than in Massachusetts, where it was at the time of the
    seizure, to avoid paying state sales tax on it.       We will not
    entertain this contention.     Before it allowed the Mullanes'
    petition for storage charges, the district court gave Chambers and
    Farese an opportunity to submit written objections. Chambers and
    Farese submitted a post-trial memorandum that did not include any
    reference to the sales tax issue. Accordingly, they waived the
    opportunity to make the argument they now attempt.      See In re
    Weinstein, 
    164 F.3d 677
    , 685 (1st Cir. 1999).
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