Chad Barnes v. Sea Hawaii Rafting, LLC ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHAD BARRY BARNES, No. 16-15023
Plaintiff-Appellant,
D.C. No.
v. 1:13-cv-00002-
ACK-RLP
SEA HAWAII RAFTING, LLC; KRIS
HENRY; JOHN DOES 1–20; MARY
DOES 1–20; DOE CORPORATIONS 1– ORDER AND
20; DOE PARTNERSHIPS 1–20; DOE AMENDED
ASSOCIATES 1–20; DOE OPINION
GOVERNMENTAL AGENCIES 1–20;
OTHER ENTITIES 1–20, In Personam;
M/V TEHANI; KRISTIN KIMO HENRY,
Debtor in U.S. Bankruptcy Court,
District of Hawaii - Chapter 13
Bankruptcy Case # 14-01475 (re:
doc no. 142) also known as Kris
Henry; DANE S. FIELD, Trustee of the
bankruptcy estate of Sea Hawaii
Rafting, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, Senior District Judge, Presiding
Argued and Submitted June 16, 2017
Honolulu, Hawaii
2 BARNES V. SEA HAWAII RAFTING
Filed March 28, 2018
Amended April 19, 2018
Before: Raymond C. Fisher, Richard A. Paez, and
Jacqueline H. Nguyen, Circuit Judges.
Order;
Opinion by Judge Nguyen
SUMMARY *
Maritime Law
The panel reversed the district court’s dismissal of a
seaman’s claims in admiralty against a vessel in rem, issued
a writ of mandamus to the district court to award the seaman
maintenance, denied a motion to dismiss the appeal as moot,
and remanded the case to the district court.
The seaman was injured when the vessel on which he
was working exploded. He sued the vessel in rem, and he
sued the company that owned the vessel and the company’s
owner and manager in personam, seeking to enforce his
seaman’s lien against the vessel.
The panel held that it had jurisdiction under 28 U.S.C.
§ 1292(a)(3) to review the district court’s interlocutory order
dismissing the seaman’s claims against the vessel because
the order affected the seaman’s substantive rights. The panel
concluded that it lacked jurisdiction to review the district
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BARNES V. SEA HAWAII RAFTING 3
court’s denial of summary judgment as to a maintenance
amount, but it treated the notice of appeal as a mandamus
petition.
The panel held that the district court erred in staying the
action when the vessel owner declared bankruptcy and in
dismissing the seaman’s claims against the vessel for lack of
in rem jurisdiction. The panel concluded that the district
court obtained jurisdiction over the vessel when the seaman
filed a verified complaint and the defendants appeared
generally and litigated without contesting in rem
jurisdiction, and the seaman’s failure to verify his amended
complaint did not divest the district court of in rem
jurisdiction. The district court did not lose in rem
jurisdiction while the vessel remained in its constructive
custody, and the court’s control over the vessel, once
obtained, was exclusive. The vessel owner’s later-filed
bankruptcy petition did not divest the district court of in rem
jurisdiction. Moreover, the automatic bankruptcy stay did
not affect the seaman’s maritime lien against the vessel, and
the bankruptcy court had no authority to dispose of the lien
through the application of bankruptcy law.
The panel denied the bankruptcy trustee’s motion to
dismiss the appeal as moot after the trustee, with the
bankruptcy court’s approval, sold the vessel purportedly free
and clear of the seaman’s maritime lien.
The panel held that the district court erred by denying the
seaman’s maintenance requests in full. The panel held that
when a seaman establishes his entitlement to maintenance
and provides some evidence of his actual living expenses,
the burden shifts to the vessel’s owner to produce evidence
that the seaman’s actual costs were unreasonable. Whether
or not the vessel’s owner produces such evidence, the
seaman is entitled to a maintenance award in the amount of
4 BARNES V. SEA HAWAII RAFTING
his actual costs up to the reasonable rate in his locality. The
panel issued a writ of mandamus to the district court to
award the seaman maintenance for his undisputed actual and
reasonable expenses of $34 per day, subject to a potential
increase after trial.
COUNSEL
Jay Lawrence Friedheim (argued), Admiralty Advocates,
Honolulu, Hawaii; John C. Gibson, Honolulu, Hawaii; for
Plaintiff-Appellant.
Simon Klevansky (argued), Alika L. Piper, and Nicole D.
Stucki, Klevansky Piper LLP, Honolulu, Hawaii, for
Defendants-Appellees Dane S. Field, Sea Hawaii Rafting
LLC, and M/V Tehani.
Lisa M. Volquardsen, Kailua-Kona, Hawaii, for Defendant-
Appellee Kris Henry.
BARNES V. SEA HAWAII RAFTING 5
ORDER
The Opinion filed on March 28, 2018, is amended as
follows:
1. On page 9, line 11, of the slip opinion, the word
is replaced with and, at the end
of the sentence, a footnote with the following text is added:

The remaining footnotes are renumbered accordingly.
2. On page 40, line 8, of the slip opinion, the word
is replaced with enclosed in
regular brackets.
No new petitions for rehearing or rehearing en banc will
be accepted.
OPINION
NGUYEN, Circuit Judge:
Chad Barnes is a seaman who was injured when the boat
on which he was working, the M/V Tehani, exploded.
During his recovery, Barnes received some monetary
assistance from either Sea Hawaii Rafting, LLC (“SHR”),
which owned the Tehani, or Kris Henry, SHR’s owner and
manager, but those payments soon stopped. Seeking the
6 BARNES V. SEA HAWAII RAFTING
ancient maritime remedy of maintenance and cure, 1 among
other relief, Barnes sued the Tehani in rem and SHR and
Henry in personam to enforce his seaman’s lien against the
vessel. Although admiralty courts normally handle such
matters expeditiously, that did not happen here for two
reasons.
First, the district court rejected Barnes’s pretrial requests
to enforce SHR’s obligation to pay maintenance and cure.
The court concluded that Barnes was entitled to maintenance
and cure and had demonstrated his actual maintenance
expenses. Nonetheless, despite undisputed evidence that
Barnes was entitled to at least some of his actual expenses,
the district court declined to award Barnes any maintenance
until trial.
Second, when SHR declared bankruptcy after fifteen
months of litigation and shortly before trial, the district court
stayed Barnes’s action. The district court concluded that the
Tehani was an asset of the debtor’s estate and that the
automatic bankruptcy stay barred proceedings to enforce
Barnes’s maritime lien against the vessel. The bankruptcy
court partially lifted the bankruptcy stay to allow the district
court to evaluate Barnes’s claims against SHR but expressly
prohibited the district court from issuing any ruling that
would affect the maritime lien’s status.
Ultimately, the district court dismissed Barnes’s claims
against the Tehani. The court reasoned that it lacked in rem
jurisdiction because, even though Barnes verified his
1
“Maintenance” is a seaman’s “right . . . to food and lodging if he
falls ill or becomes injured while in the service of the ship. ‘Cure’ is the
right to necessary medical services.” 1 Thomas J. Schoenbaum,
Admiralty and Maritime Law § 6-28 (5th ed. 2016) (footnote omitted).
BARNES V. SEA HAWAII RAFTING 7
original complaint, he failed to verify the amended
complaint. Then, while Barnes’s appeal was pending, the
bankruptcy trustee—with the bankruptcy court’s approval—
sold the Tehani purportedly free and clear of Barnes’s
maritime lien. The trustee subsequently moved to dismiss
this appeal as moot.
We conclude that the district court erred by denying
Barnes’s maintenance requests in full, staying the action, and
dismissing the Tehani. The district court obtained
jurisdiction over the vessel Tehani when Barnes filed a
verified complaint and the defendants appeared generally
and litigated without contesting in rem jurisdiction. The
district court did not lose in rem jurisdiction while the Tehani
remained in its constructive custody. And the court’s control
over the vessel, once obtained, was exclusive. SHR’s later-
filed bankruptcy petition did not divest the district court of
in rem jurisdiction. Moreover, the automatic bankruptcy
stay did not affect Barnes’s maritime lien against the Tehani,
and the bankruptcy court had no authority to dispose of the
lien through the application of bankruptcy law.
When, as here, a seaman establishes his entitlement to
maintenance and provides some evidence of his actual living
expenses, the burden shifts to the vessel’s owner to produce
evidence that the seaman’s actual costs were unreasonable.
Whether or not the vessel’s owner provides such evidence,
the seaman is entitled to a maintenance award in the amount
of his actual costs up to the reasonable rate in his locality.
Over three years after concluding that Barnes was entitled to
maintenance and had sufficiently proven his actual costs, the
district court has yet to award him any maintenance.
Accordingly, we deny the trustee’s motion to dismiss,
reverse the district court’s dismissal of the Tehani, and issue
a writ of mandamus to the district court to award Barnes
8 BARNES V. SEA HAWAII RAFTING
maintenance for his undisputed actual and reasonable
expenses—$34 per day—subject to a potential increase after
trial.
I.
A. Factual Background
Barnes worked for SHR for six years as a captain and
crew member of the Tehani, a 25-foot rigid hull inflatable
boat powered by twin outboard engines. Barnes took
passengers from Honokohau Harbor on sightseeing and
snorkeling trips along the Kona coast. Henry paid Barnes
under the table with personal checks made out to “cash.”
On July 3, 2012, Henry and Barnes were launching the
Tehani for a night snorkeling trip. Henry was in his truck,
towing the Tehani on an attached trailer, and Barnes was
onboard the boat. Henry backed the trailer down the launch
ramp until the vessel was in the water. When Barnes started
the starboard engine, the Tehani exploded. The hatch struck
Barnes on his back and head, propelling him into the ocean.
A Coast Guard investigation found that the explosion
was caused by a fuel tank with a missing screw in the fuel
tank sender. Fuel leaked into the bilge, where vapors
accumulated and ignited when Barnes started the engine.
The investigator concluded that the incident might have been
avoided if Henry had installed the required flammable vapor
detector and mechanical exhaust system. See 46 C.F.R.
§§ 182.460, 182.480. The boat, which was insured, was
subsequently repaired and returned to service.
Barnes was less fortunate. SHR lacked insurance to
cover his medical expenses for physical, psychological, and
neurological treatment. Barnes required approximately
BARNES V. SEA HAWAII RAFTING 9
12 staples to reattach parts of his scalp. Due to his head
injuries, he can no longer drive a car or swim. He cannot
afford rent and has been living on friends’ couches. He
receives approximately $300 per month in disability income
from the State of Hawaii. 2
B. Litigation in the District and Bankruptcy Courts
On January 1, 2013, Barnes filed a verified complaint in
admiralty against Henry, SHR, and the Tehani, claiming
unseaworthiness, various theories of negligence, and
intentional infliction of emotional distress. Barnes sought
maintenance and cure, damages, and attorney’s fees. The
three defendants answered the complaint. Despite denying
Barnes’s allegation that the Tehani was subject to the district
court’s in rem jurisdiction, they did not move to dismiss the
Tehani on that basis but instead proceeded to litigate the
dispute.
Barnes moved for “summary judgment for payment of
maintenance and cure,” requesting that the district court
order defendants to pay his “reasonable, actual costs of food
and lodging” and medical costs since the date of his injury
until he reached “maximum medical cure.” The district
court granted Barnes’s motion in part. Noting that
defendants did not dispute that Barnes was injured in the
service of the Tehani, the district court ruled that Barnes was
entitled to maintenance and cure and had not yet reached
maximum cure. Applying the standard for determining a
2
Barnes also received some assistance from Henry, but the parties
dispute the exact amount. Barnes acknowledges that Henry paid him
$500 to cover rent. It is unclear whether Henry made this payment in his
personal capacity or on SHR’s behalf.
10 BARNES V. SEA HAWAII RAFTING
maintenance rate from Hall v. Noble Drilling (U.S.) Inc.,
242 F.3d 582 (5th Cir. 2001), the district court concluded
that Barnes had shown his actual food and lodging costs but
not the reasonable amount for such costs in his locality or his
actual medical expenses. 3 The court therefore declined to
award either maintenance or cure.
About four months after the district court’s order, Henry
volunteered to pay Barnes $962.83 per month towards
maintenance but stopped after making two payments.
Barnes moved two more times for summary judgment to
determine a daily maintenance rate. 4 The district court
denied both motions, concluding that there were triable
issues of fact regarding reasonable food and lodging costs in
Hawaii. The district court also denied Barnes’s separate
motion for summary judgment for payment of cure.
Meanwhile, Barnes filed an unverified amended
complaint, adding a claim for negligence per se. In
answering the amended complaint, defendants again stated a
general denial of Barnes’s allegation that the Tehani was
subject to the district court’s in rem jurisdiction but did not
specifically challenge jurisdiction by filing a motion under
Federal Rule of Civil Procedure 12(b) or otherwise bringing
the issue to the district court’s attention.
In yet another summary judgment motion, Barnes asked
the district court to grant relief on his claims for
3
Barnes originally presented the district court with evidence of
reasonable costs in Honolulu but subsequently clarified that Kailua-
Kona was the relevant locality.
4
Barnes later moved a fourth time for summary judgment on the
issue of a maintenance rate but withdrew the motion after the district
court dismissed his claims against the Tehani.
BARNES V. SEA HAWAII RAFTING 11
unseaworthiness, negligence per se, and Jones Act
negligence. Two weeks before the hearing on this motion
and just over a month before the scheduled trial, SHR and
Henry filed for bankruptcy relief—Henry for reorganization
under Chapter 13 and SHR for dissolution under Chapter 7.
Pursuant to the automatic bankruptcy stay, 11 U.S.C.
§ 362(a), the district court stayed the proceedings against all
three defendants.
The bankruptcy court, recognizing the district court’s
“experience and expertise . . . in matters in admiralty,”
partially lifted the stay as to Henry and SHR so that the
district court could “adjudicate the validity, extent, amount,
and date of perfection of any maritime lien claim by . . .
Barnes against the [Tehani].” 5 However, the bankruptcy
court expressly kept the stay in place “to bar the enforcement
of any maritime lien.” The bankruptcy court expressed
concern that the “limited assets” of SHR’s estate did not
warrant the bankruptcy trustee’s “participat[ion] in extended
or unlimited litigation in the District Court.” 6
After the bankruptcy court partially lifted the stay, the
district court reopened the case. In a subsequent minute
5
Initially, there was confusion as to which defendant—Henry or
SHR—owned the Tehani. Defendants erroneously listed the Tehani as
Henry’s rather than SHR’s asset in their bankruptcy cases. Under that
misapprehension, the bankruptcy court first lifted only the stay in
Henry’s bankruptcy, though the order allowed the district court to “value
to its conclusion the claim of [Barnes] arising from [the admiralty case],”
which necessarily implicated Barnes’s claim against SHR’s property.
When the Tehani’s ownership was clarified, the district court refused to
proceed further with SHR’s bankruptcy stay still in place. The
bankruptcy court then lifted that stay as well.
6
The Tehani and its trailer, appraised to be worth $38,500 and
$2,500, respectively, were the estate’s only substantial assets.
12 BARNES V. SEA HAWAII RAFTING
order addressing Barnes’s outstanding summary judgment
motions, the district court noted—sua sponte and
parenthetically—that “it lack[ed] jurisdiction over the
[Tehani], as [the vessel] was never arrested.” Thereafter,
Barnes attempted several times to verify the amended
complaint—a verified complaint being a precondition of
arrest, see Fed. R. Civ. P. Supp. Adm. & Mar. Cl. R.
C(2)(a)—though Barnes made no attempt to arrest the
Tehani. The trustee in SHR’s bankruptcy case conceded to
the district court that defendants’ “pre-petition answer
subjected [them] to the [district court’s] jurisdiction.” The
trustee acknowledged the district court’s previous statement
that it lacked in rem jurisdiction but did not seek dismissal
on that ground. Rather, the trustee argued that Barnes had
lost any maritime lien he had in the vessel through his failure
to verify the amended complaint and invoke the district
court’s in rem jurisdiction. Henry also did not seek dismissal
for lack of in rem jurisdiction. 7
The district court nonetheless dismissed the Tehani for
lack of in rem jurisdiction and, in the same order, granted
Barnes partial summary judgment on his claim for
negligence per se. In dismissing the Tehani, the district court
reasoned that Barnes’s unverified amended complaint—
filed after more than 15 months of litigation—superseded the
original verified complaint; Barnes’s attempts to verify the
amended complaint while the bankruptcy stay was in effect
were invalid; verification of the amended complaint was
7
Less than a week before the hearing on Barnes’s motion for
summary judgment on his claims for unseaworthiness, negligence per se,
and Jones Act negligence, Henry in a supplemental memorandum
requested dismissal of the action for lack of subject matter jurisdiction
based on Barnes’s failure to verify the amended complaint. He cited no
authority for this proposition, and we know of none.
BARNES V. SEA HAWAII RAFTING 13
necessary for his maritime lien against the Tehani to attach;
and Barnes’s failure to verify the amended complaint
deprived the district court of in rem jurisdiction.
Barnes appeals the district court’s orders dismissing the
Tehani and denying his request to set a maintenance amount.
While his appeal was pending, the bankruptcy court
approved, and SHR’s bankruptcy trustee executed, the sale
of the Tehani and its trailer to Henry’s new company, Aloha
Ocean Excursions, LLC, for $35,000.
II.
Jurisdiction
We begin by considering our own jurisdiction as to each
issue raised on appeal. See Ashcroft v. Iqbal, 556 U.S. 662,
671 (2009) (“Subject-matter jurisdiction . . . should be
considered when fairly in doubt.” (citing Arbaugh v. Y & H
Corp., 546 U.S. 500, 514 (2006))); Gupta v. Thai Airways
Int’l, Ltd., 487 F.3d 759, 769–70 (9th Cir. 2007)
(“[A]ppellate courts must examine each claim or issue
presented separately to determine their jurisdiction on
interlocutory appeal . . . .” (citing Will v. Hallock, 546 U.S.
345, 349 (2006))). The district court, sitting in admiralty,
had jurisdiction under 28 U.S.C. § 1333(1). SHR’s
bankruptcy trustee asserts that if this appeal is not moot, we
have appellate jurisdiction under 28 U.S.C. § 1291 to review
the dismissal of the Tehani because “[a]n order of dismissal
is a final order.” But the district court dismissed only the
Tehani. “‘[A]ny order or other decision, however
designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties’ is not
final” unless the district court determines there is no just
reason for delay and enters judgment. Hyan v. Hummer,
825 F.3d 1043, 1046 (9th Cir. 2016) (per curiam) (quoting
14 BARNES V. SEA HAWAII RAFTING
Fed. R. Civ. P. 54(b)) (emphasis in Hyan). That did not
happen here. 8 Thus, this appeal is interlocutory.
Barnes and Henry suggest 28 U.S.C. § 1292(a)(3) as the
source of our jurisdiction, which permits appeals from
“[i]nterlocutory decrees of . . . district courts . . . determining
the rights and liabilities of the parties to admiralty cases in
which appeals from final decrees are allowed.” This means
orders that decide “the merits of the controversies between
[the parties],” because “‘rights and liabilities’ . . . are
substantive in nature—not adjective, tactical, or procedural.”
Rogers v. Alaska S.S. Co., 249 F.2d 646, 649 (9th Cir. 1957)
(quoting In re Wills Lines, 227 F.2d 509, 510 (2d Cir. 1955)).
In determining whether a ruling decides the merits, we
consider “financial realities,” All Alaskan Seafoods, Inc. v.
M/V Sea Producer, 882 F.2d 425, 428 (9th Cir. 1989), as
well as other “practical matter[s],” Kesselring v. F/T Arctic
Hero, 30 F.3d 1123, 1125 (9th Cir. 1994).
In Melwire Trading Co. v. M/V Cape Antibes, we
concluded that 28 U.S.C. § 1292(a)(3) applied to an order
dismissing a vessel for lack of in rem jurisdiction. 811 F.2d
1271, 1273 (9th Cir. 1987). In concluding that we had
jurisdiction, however, we construed “the actual basis for the
district court’s dismissal” to be “its conclusion that none of
[the plaintiff’s] claims gave rise to a maritime lien
8
Barnes moved for leave to file an interlocutory appeal under
28 U.S.C. § 1292(a)(3) or (b). The district court, viewing its approval as
unnecessary for an appeal pursuant to § 1292(a)(3), see Seattle First
Nat’l Bank v. Bluewater P’ship, 772 F.2d 565, 569 (9th Cir. 1985),
denied the motion as moot. Although we ultimately agree with the
district court that we have appellate jurisdiction under § 1292(a)(3) to
review the dismissal of the Tehani, the issue is close, and the better
practice in that situation would be to make an alternative ruling under
§ 1292(b).
BARNES V. SEA HAWAII RAFTING 15
enforceable in an action in rem,” a question that “involves
the merits.” Id. at 1273 n.1 (citing The Resolute, 168 U.S.
437, 440 (1897)). Here, there is no doubt that Barnes had a
seaman’s lien, and the Tehani’s dismissal was due to
Barnes’s purported procedural shortcomings in invoking the
district court’s in rem jurisdiction. Because this type of
dismissal is “not an adjudication upon the merits,” Neifeld v.
Steinberg, 438 F.2d 423, 432 (3d Cir. 1971); cf. Kendall v.
Overseas Dev. Corp., 700 F.2d 536, 539 (9th Cir. 1983)
(“[A] dismissal for lack of in personam jurisdiction is not res
judicata as to the merits of the claim.”), it is not necessarily
appealable.
The district court concluded that its dismissal order
effectively “foreclose[d] the only forum in which Barnes
may bring his admiralty claims against the Tehani.” Thus,
notwithstanding that the ruling was procedural, it affects
Barnes’s substantive rights and is the proper subject of an
interlocutory appeal under 28 U.S.C. § 1292(a)(3). See
Royal Ins. Co. of Am. v. S.W. Marine, 194 F.3d 1009, 1013
n.2 (9th Cir. 1999) (holding that an order denying leave to
amend was appealable under § 1292(a)(3) because it
“effectively dismissed” the plaintiff’s claims); see also MS
Tabea Schiffahrtsgesellschaft MBH & Co. v. Bd. of
Comm’rs, 636 F.3d 161, 165 (5th Cir. 2011) (holding that
“dismiss[al] . . . for lack of subject matter jurisdiction . . .
conclusively determined the parties’ rights and liabilities”).
We lack jurisdiction, however, to consider whether the
district court should have awarded maintenance. The court’s
partial summary judgment that defendants are liable to
Barnes for maintenance payments is not at issue. Defendants
did not appeal that ruling, and the time to do so on an
interlocutory basis expired long before Barnes filed his
notice of appeal. See 28 U.S.C. § 2107(a) (providing a 30-
16 BARNES V. SEA HAWAII RAFTING
day deadline to appeal “any judgment, order or decree”).
Rather, Barnes is attempting to appeal the district court’s
denial of summary judgment as to a maintenance amount.
Except in limited circumstances not applicable here, the
denial of summary judgment is not appealable. See, e.g.,
Thomas v. Dillard, 818 F.3d 864, 874 (9th Cir. 2016) (citing
Mueller v. Auker, 576 F.3d 979, 987 (9th Cir. 2009)); see
also P.R. Ports Auth. v. Barge Katy-B, 427 F.3d 93, 106–07
(1st Cir. 2005) (holding that § 1292(a)(3) permits
interlocutory review of only the portion of an order
determining the parties’ rights and liabilities); cf. EEOC v.
Recruit U.S.A., Inc., 939 F.2d 746, 757 (9th Cir. 1991)
(dismissing for lack of jurisdiction challenge to district
court’s failure to rule on sanctions request in otherwise
appealable order granting preliminary injunction).
When appellate jurisdiction is lacking, “[w]e can . . .
treat the notice of appeal as a petition for a writ of
mandamus.” Miller v. Gammie, 335 F.3d 889, 895 (9th Cir.
2003) (en banc). For reasons we will explain, we conclude
that mandamus relief is warranted in these unique
circumstances. First, however, we turn to the district court’s
dismissal of the Tehani for lack of in rem jurisdiction, which
we review de novo. See Ventura Packers, Inc. v. F/V
Jeanine Kathleen, 424 F.3d 852, 858 (9th Cir. 2005).
III.
A. The District Court’s In Rem Jurisdiction over the
Tehani
To commence an action in rem against a vessel, the
plaintiff must file a verified complaint that describes the
vessel “with reasonable particularity” and states that the
vessel “is within the district” or will be so “while the action
is pending.” Fed. R. Civ. P. Supp. Adm. & Mar. Cl. R. C(2);
BARNES V. SEA HAWAII RAFTING 17
see Madeja v. Olympic Packers, LLC, 310 F.3d 628, 637 (9th
Cir. 2002). If the plaintiff meets these conditions, the district
court must take the boat into custody—unless the plaintiff
requests otherwise—by issuing an arrest warrant to be
served by the marshal. 9 See Fed. R. Civ. P. Supp. Adm. &
Mar. Cl. R. C(3)(a)–(b), E(3)(b).
“Once the district court issue[s] warrants for the arrest of
the . . . vessels pursuant to Rule C, and the warrants [are]
successfully served, ‘jurisdiction [i]s complete.’” F/V
Jeanine Kathleen, 424 F.3d at 858 (quoting The Rio Grande,
90 U.S. (23 Wall.) 458, 463 (1874)). However, “as with
other forms of jurisdiction over the party, see Fed. R. Civ. P.
12(h)(1), a vessel may waive jurisdiction in rem by
appearing in the action and failing to raise the defense of lack
of jurisdiction over the party in a timely fashion.” United
States v. Republic Marine, Inc., 829 F.2d 1399, 1402 (7th
Cir. 1987); see Cactus Pipe & Supply Co. v. M/V
Montmartre, 756 F.2d 1103, 1107–11 (5th Cir. 1985); see
also Hapag-Lloyd A.G. v. U.S. Oil Trading LLC, 814 F.3d
146, 153–54 (2d Cir. 2016) (noting “the many cases in which
in rem jurisdiction has been held waived without seizure
when the owner appears without contesting jurisdiction”
(citing Republic Marine and M/V Montmartre)); Porsche
9
Supplemental Admiralty and Maritime Claims Rule C(3)(a)(i)
provides that the district court “must review the complaint and any
supporting papers” and, if satisfactory, “the court must issue an order
directing the clerk to issue a warrant for the arrest of the vessel.”
(Emphasis added.) The District of Hawaii requires admiralty plaintiffs
to apply for this review and places the burden on the applicant “to ensure
that the application has been reviewed and, upon approval, presented to
the clerk for issuance of the appropriate order.” D. Haw. Adm. R. E.3(e).
Barnes does not challenge the local rule as being inconsistent with the
federal rule, and it is unnecessary for us to consider any tension between
them.
18 BARNES V. SEA HAWAII RAFTING
Cars N.A., Inc. v. Porsche.net, 302 F.3d 248, 256 (4th Cir.
2002) (“[I]n admiralty . . . cases, for years courts have held
that objections to in rem jurisdiction may be waived.”);
Farwest Steel Corp. v. Barge Sea Span 241, 769 F.2d 620,
622 (9th Cir. 1985) (“[J]urisdiction to review an in rem
decision [can be derived] from the existence of either
consent or in personam jurisdiction over a shipowner whose
other contacts with the forum satisfied ‘traditional notions of
fair play and substantial justice.’” (quoting Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945)); The Willamette,
70 F. 874, 877–78 (9th Cir. 1895) (holding that challenge to
in rem jurisdiction was waived where the shipowner
appeared and answered the complaint).
Barnes’s original complaint was verified and met the
other prerequisites to invoke the district court’s in rem
jurisdiction. Barnes understandably found it advantageous
not to seek the Tehani’s arrest. He was unwilling to pay the
associated costs, 10 which he estimated would be
approximately $30,000; there was no risk that the vessel
would leave the district; and, Barnes asserts, “allowing
10
A party seeking to arrest a vessel must deposit sufficient funds to
cover for at least 10 days the marshal’s expenses, including dockage,
keepers, maintenance, and insurance, and pay the marshal’s ongoing
expenses in advance until the vessel is released. See 28 U.S.C. § 1921;
D. Haw. Adm. R. E.11. There is a split of authority over whether seamen
are exempt from prepayment of these fees. See 28 U.S.C. § 1916 (“In
all courts of the United States, seamen may institute and prosecute suits
and appeals in their own names and for their own benefit for wages or
salvage or the enforcement of laws enacted for their health or safety
without prepaying fees or costs or furnishing security therefor.”);
compare Thielebeule v. M/S Nordsee Pilot, 452 F.2d 1230, 1232 (2d Cir.
1971) (holding seamen are exempt from prepayment), with P.R. Drydock
& Marine Terminals, Inc. v. Motor Vessel Luisa Del Caribe, 746 F.2d
93, 94 (1st Cir. 1984) (holding seamen are not exempt), and Araya v.
McLelland, 525 F.2d 1194, 1196 (5th Cir. 1976) (same).
BARNES V. SEA HAWAII RAFTING 19
Henry to continue to operate his ocean excursion business
with the vessel was the only possible way that [Henry] could
generate enough money to pay Barnes [m]aintenance.”
Barnes’s failure to arrest the Tehani benefitted defendants as
well. Had he arrested the Tehani, defendants not only would
have had to put up security to obtain the vessel’s release, see
Fed. R. Civ. P. Supp. Adm. & Mar. Cl. R. E(5)(a)–(b), but
would have endured the inconvenience of being unable to
use the vessel until its release was secured. See 4 Erastus
Cornelius Benedict et al., Benedict on Admiralty § 2.15[C]
(7th ed., rev. 2017).
When Barnes filed his verified complaint, the district
court issued summonses for each of the defendants,
including the Tehani. Four months after Henry and SHR
were served, they and the Tehani answered the complaint
without moving to dismiss for lack of in rem jurisdiction.
The three defendants then actively participated in the
litigation—providing discovery, opposing two summary
judgment motions and two motions for reconsideration of
orders denying summary judgment, and participating in two
settlement conferences—without challenging the court’s in
rem jurisdiction. By the time Barnes filed his unverified
amended complaint, defendants had clearly waived any
objection to in rem jurisdiction by litigating the merits of
Barnes’s claims for more than 15 months. See Peterson v.
Highland Music, Inc., 140 F.3d 1313, 1318 (9th Cir. 1998)
(“Most defenses, including the defense of lack of personal
jurisdiction, may be waived as a result of the course of
conduct pursued by a party during litigation.”); cf. Cont’l
Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993)
(holding that personal jurisdiction defense, even though
raised in the answer sufficiently to avoid waiver under Rule
12(h), was waived where “the defendants fully participated
20 BARNES V. SEA HAWAII RAFTING
in litigation of the merits for over two-and-a-half years
without actively contesting personal jurisdiction”).
B. Barnes’s Failure to Verify the Amended Complaint
Did Not Divest the Court of In Rem Jurisdiction
The district court concluded that it lacked in rem
jurisdiction because Barnes failed to verify the amended
complaint. It reasoned that an “amended complaint
supersedes the original, the latter being treated thereafter as
non-existent,” Lacey v. Maricopa County, 693 F.3d 896, 925
(9th Cir. 2012) (en banc) (quoting Forsyth v. Humana, Inc.,
114 F.3d 1467, 1474 (9th Cir. 1997)), and that Barnes’s
“failure to verify [his amended] complaint deprived the
district court of in rem jurisdiction.” Madeja, 310 F.3d at637 (citing United States v. $84,740.00 U.S. Currency,
900 F.2d 1402, 1405 (9th Cir. 1990)). Neither Lacey nor
Madeja support the district court’s conclusion.
While an amended complaint supersedes the original, it
normally does so only with regard to the pleading’s
substance, not its procedural effect. For example, Lacey
involved “the [former] law of this circuit that a plaintiff
waives all claims alleged in a dismissed complaint which are
not realleged in an amended complaint.” 693 F.3d at 925
(quoting Forsyth, 114 F.3d at 1474). Lacey overruled this
“formalistic and harsh” rule, which was neither “prudent
[n]or sufficiently justified.” Id. at 927. Now, “claims
dismissed with prejudice [or] without leave to amend [need
not] be repled in a subsequent amended complaint to
preserve them for appeal.” Id. at 928. The procedural effect
of the original complaint—preserving for appeal certain
subsequently dismissed claims—survives its amendment.
Relation back is another example. A timely-filed claim is
not rendered untimely when included in an amended
BARNES V. SEA HAWAII RAFTING 21
complaint filed after the statute of limitations has passed.
See Fed. R. Civ. P. 15(c).
In rem jurisdiction is no different. It is a “general
principle” of admiralty law that in rem “jurisdiction, once
vested, is not divested, although a state of things should
arrive in which original jurisdiction could not be exercised.”
Republic Nat’l Bank of Miami v. United States, 506 U.S. 80,
85 (1992) (quoting United States v. The Little Charles, 26 F.
Cas. 979, 982 (C.C.D. Va. 1818) (No. 15,612) (Marshall,
C.J.)); see Edlin v. M/V Truthseeker, 69 F.3d 392, 393 (9th
Cir. 1995) (“Although control of the res is required to
establish jurisdiction, it is not required to maintain a court’s
jurisdiction.”); cf. J. Lauritzen A/S v. Dashwood Shipping,
Ltd., 65 F.3d 139, 142 (9th Cir. 1995) (explaining that quasi
in rem jurisdiction, “once obtained, will not be defeated by
a change in circumstances”). Since Barnes’s original,
verified complaint established the court’s in rem
jurisdiction, his unverified amended complaint did not take
it away.
“Unless a rule or statute specifically states otherwise, a
pleading need not be verified or accompanied by an
affidavit.” Fed. R. Civ. P. 11(a) (emphasis added). Here,
the relevant rule provides only that “the complaint” must be
verified. Id., Supp. Adm. & Mar. Cl. R. C(2). Supplemental
Rule C says nothing about the necessity of verifying
amended pleadings. Such a requirement would not serve its
purpose, which is to provide procedural protections to the
vessel’s owner—whose property is arrested without prior
notice or a hearing—in order “to eliminate any doubt as to
the rule’s constitutionality.” Id., Supp. Adm. & Mar. Cl. R.
C, advisory committee’s note to 1985 amendment; see also
Merchs. Nat’l Bank of Mobile v. Dredge Gen. G. L.
Gillespie, 663 F.2d 1338, 1349–50 (5th Cir. Unit A Dec.
22 BARNES V. SEA HAWAII RAFTING
1981) (“[T]he verified complaint filed by a maritime lienor
as well as the prayer for seizure constitute the ‘process’ that
brings that entity into court. Together, the verified
complaint and the warrant constitute ‘notice,’ and the
shipmaster (or person in charge) knows of the arrest and is
in a position to notify the owner.”).
After the vessel is arrested, the owner is entitled to “a
prompt post-seizure hearing at which he can attack the
verified complaint, the arrest, the security demanded, or any
other alleged deficiency in the proceedings up to that point.”
Gen. G. L. Gillespie, 663 F.2d at 1351; see Fed. R. Civ. P.
Supp. Adm. & Mar. Cl. R. E(4)(f). Once the owner has
appeared, whether due to the vessel’s arrest or because the
owner learned of the proceeding through some other means,
no further procedural purpose is served by requiring the
verification of amended pleadings. To the extent the
verification provides evidentiary value, the original
complaint “does not lose its character as the equivalent of an
affidavit just because a later, amended complaint, is filed.”
Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017).
Madeja did not involve an amended complaint or a
situation in which the defendants had waived objections to
in rem jurisdiction. Rather, it involved an original complaint
that was inadequately verified and defendants that
successfully objected to in rem jurisdiction. See Madeja,
310 F.3d at 637; see also Madeja v. Olympic Packer, LLC,
155 F. Supp. 2d 1183, 1211 (D. Haw. 2001). It is
inapplicable here. The district court erred in dismissing the
Tehani for lack of in rem jurisdiction.
BARNES V. SEA HAWAII RAFTING 23
C. The Bankruptcy Court Lacked Jurisdiction to
Dispose of the Maritime Lien
SHR’s bankruptcy trustee argues that even if the district
court erred, Barnes’s claims are now moot because the
bankruptcy court authorized the Tehani’s sale to be free and
clear of any liens. This argument assumes that the
bankruptcy court had jurisdiction to dispose of Barnes’s
maritime lien. It did not.
1.
The automatic bankruptcy stay applies to “any act to
create, perfect, or enforce any lien against property of the
estate.” 11 U.S.C. § 362(a)(4). The district court concluded
that Barnes’s claims to enforce his maritime lien were
subject to the bankruptcy stay. In United States v. ZP
Chandon, we reversed a district court’s similar ruling “that
the automatic stay provisions of the Bankruptcy Act apply to
[a maritime lien for] seamen’s wages.” 11 889 F.2d 233, 238
(9th Cir. 1989).
Although Chandon involved a maritime lien for
seaman’s wages rather than for maintenance and cure, its
reasoning applies equally to both. We “construe[d]
Congress’ omission of any reference to maritime law in
[§] 362(a)(4) as evidence of its intention to limit the reach of
that statute to land-based transactions where (1) a recording
of a lien interest is required and (2) the creditor first in time
is entitled to priority.” Id. at 238.
11
A seaman’s right to unearned wages while injured or ill on a
voyage is “part of the doctrine of ‘maintenance and cure.’” Day v. Am.
Seafoods Co., 557 F.3d 1056, 1058 (9th Cir. 2009) (citing Lipscomb v.
Foss Maritime Co., 83 F.3d 1106, 1109 (9th Cir. 1996)).
24 BARNES V. SEA HAWAII RAFTING
The trustee would distinguish Chandon as involving a
post-petition claim in a Chapter 11 reorganization case rather
than the pre-petition claim in a Chapter 7 dissolution case at
issue here. Those are not material differences. Chandon
decided, broadly, “whether the enactment of the Bankruptcy
Act and the Congressional grant of jurisdiction to the
bankruptcy courts restricts the district court’s jurisdiction in
admiralty or maritime cases.” Id. at 236. In answering that
question in the negative, we reasoned that the automatic stay
provision “does not expressly refer to maritime liens,”
which, when owed to seamen as a consequence of their
service, “are ‘sacred liens’ entitled to protection ‘as long as
a plank of the ship remains.’” Id. at 238 (quoting The John
G. Stevens, 170 U.S. 113, 119 (1898)). 12 We concluded that
Congress would not have overruled this “sacred” principle
of admiralty law in the Bankruptcy Act sub silentio.
Neither the timing of the bankruptcy petition relative to
the maritime lien nor the nature of the bankruptcy
proceeding—liquidation versus reorganization—factored
into our decision. The trustee does not explain why they
should. We therefore conclude that, under Chandon, the
12
The John G. Stevens involved a maritime lien for tort damages
from a negligent collision. 170 U.S. at 119. Although the discussion of
“sacred [maritime] liens” was in the context of liens for seaman’s wages,
id., liens for maintenance and cure are given a similarly high priority.
See Fredelos v. Merritt-Chapman & Scott Corp., 447 F.2d 435, 440 (5th
Cir. 1971) (per curiam on rehearing) (“[T]he shipowner’s liability [for
maintenance and cure] is among ‘the most pervasive’ of all.” (quoting
Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 730 (1943))). In both
instances the reason for favoring a seaman’s lien over all others “is that
just as a seaman owes his first duty to his ship, so does she owe the same
to him.” Id. at 439.
BARNES V. SEA HAWAII RAFTING 25
bankruptcy stay did not apply to Barnes’s efforts to enforce
his maritime lien for maintenance and cure.
2.
The bankruptcy court lacked jurisdiction to adjudicate
Barnes’s maritime lien because the admiralty court had
already obtained jurisdiction over the Tehani. “As between
two courts of concurrent and co-ordinate jurisdiction, having
like jurisdiction over the subject-matter in controversy, the
court which first obtains jurisdiction is entitled to retain it
without interference, and cannot be deprived of its right to
do so because it may not have first obtained physical
possession of the property in dispute.” Moran v. Sturges,
154 U.S. 256, 283–84 (1894); see also State Engr. v. S. Fork
Band of Te-Moak Tribe of W. Shoshone Indians, 339 F.3d
804, 809 (9th Cir. 2003) (discussing the “ancient and oft-
repeated . . . doctrine of prior exclusive jurisdiction—that
when a court of competent jurisdiction has obtained
possession, custody, or control of particular property, that
possession may not be disturbed by any other court”
(quoting 14 Charles Alan Wright et al., Federal Practice and
Procedure § 3631, at 8 (3d ed. 1998))). 13
Here, the district court took constructive control of the
Tehani in order to adjudicate Barnes’s maritime lien at the
time Barnes filed his verified complaint. SHR’s bankruptcy
13
There is an exception to prior exclusive jurisdiction that is
inapplicable here: “where the jurisdiction [of the two courts over the res]
is not the same or concurrent, and the subject-matter in litigation in the
one is not within the cognizance of the other, or there is no constructive
possession of the property in dispute by the filing of a bill, it is the date
of the actual possession of the receiver that determines the priority of
jurisdiction.” Harkin v. Brundage, 276 U.S. 36, 43 (1928).
26 BARNES V. SEA HAWAII RAFTING
petition, filed nearly two years later, could not have vested
the bankruptcy court with the same jurisdiction.
3.
Even if the bankruptcy court had in rem jurisdiction over
the Tehani, it is an open question whether bankruptcy courts
have “the effective ability to sell a vessel free and clear of
maritime liens.” 3B Benedict et al., supra, § 43 (citing
Jonathan M. Landers, The Shipowner Becomes a Bankrupt,
39 U. Chi. L. Rev. 490, 500 (1972)). Nonetheless, two
principles are well-established.
First, a maritime lien “accompanies the property into the
hands of a bona fide purchaser. It can be executed and
divested only by a proceeding in rem.” Vandewater v. Mills,
60 U.S. 82, 89 (1856); see In re World Imports Ltd., 820 F.3d
576, 583 (3d Cir.) (“[A maritime] lien attaches to the
maritime property from the moment a debt arises, and
adheres, even through changes in the property’s ownership,
until extinguished by operation of law.”), cert. denied sub
nom. World Imports, Ltd. v. OEC Grp. N.Y., 137 S. Ct. 340(2016); Grant Gilmore & Charles L. Black, Jr., The Law of
Admiralty § 9-2, at 588 (2d ed. 1975) (“The maritime lien
can be ‘executed’ (which is the admiralty terminology for
‘foreclosed’) only by an admiralty court acting in rem.”).
The bankruptcy proceeding that purportedly discharged
Barnes’s maritime lien was in rem. See Tenn. Student
Assistance Corp. v. Hood, 541 U.S. 440, 447 (2004).
Second, a maritime lien cannot be extinguished except
through the application of admiralty law. See In re
Millenium Seacarriers, Inc., 419 F.3d 83, 93 (2d Cir. 2005)
(Sotomayor, J.) (“Traditional admiralty principles suggest
that only a federal admiralty court acting in rem has the
jurisdiction to quiet title to a vessel conclusively by
BARNES V. SEA HAWAII RAFTING 27
extinguishing its maritime liens.”); Eric D. Grayson,
Maritime Arrest and Rule C: A Historical Perspective,
6 Mar. Law. 265, 271 (1981) (“It is a basic tenet of American
jurisprudence that a maritime lien is enforceable only by in
rem process and by a federal court sitting in admiralty.”).
There are good reasons why a bankruptcy court, if it can
release a maritime lien at all, should be required to do so
pursuant to admiralty law. “The central bankruptcy scheme
of pro rata distribution among creditors deprives secured
creditors of immediate enforcement” and “is obviously at
odds with the complex maritime system providing for
priorities between various creditors and distinguishing
between maritime and nonmaritime creditors.” 3B Benedict
et al., supra, § 1[a][9]. See generally 2 Benedict et al.,
supra, § 51 (discussing priority of liens). Maritime creditors
have “secret liens,” enforceable “without . . . formal or
substantial documentation,” which are “antithetical” to
bankruptcy practice. 3B Benedict et al., supra, § 1[a][9].
See generally Gilmore & Black, supra, § 9-1, at 586–89
(discussing differences between land-based liens and
maritime liens).
Other “unique aspects” of maritime liens make them ill-
suited for resolution under bankruptcy law; for example,
“seamen have traditionally been recognized by maritime
courts as ‘the wards of admiralty,’ placing them in a
preferred position. A seaman, after settling a claim . . . under
the general maritime law, even when represented by an
attorney, may later contend either that he was under-
represented or that his rights were not completely explained
to him.” 29 James Wm. Moore et al., Moore’s Federal
Practice § 707.01[12] (3d ed. 2017). A seaman without
counsel can claim “that he failed to understand what he was
28 BARNES V. SEA HAWAII RAFTING
doing when he accepted money in exchange for a release.”
Id.
In Millenium Seacarriers, the Second Circuit held that a
bankruptcy court could extinguish a maritime lien in an
admiralty adversary proceeding to which the lienors
voluntarily submitted. 419 F.3d at 95–96. Its decision
turned on the lienors’ consent to bankruptcy jurisdiction
because “admiralty law itself allows individual lien claims
to be expunged when lienors have submitted their claims to
the equitable jurisdiction of another court.” Id. Here, in
contrast, the bankruptcy court applied bankruptcy law rather
than admiralty law and Barnes did not submit voluntarily to
the court’s jurisdiction. Its attempt to dispose of his
maritime lien was ineffectual.
IV.
Barnes’s Entitlement to Maintenance
Having determined that the dismissal of the Tehani was
improper, we need not reach Barnes’s constitutional
arguments. As for the merits of the district court’s decision
not to award maintenance, we lack appellate jurisdiction to
review the orders denying summary judgment on that issue.
We therefore consider whether mandamus relief is
warranted. See Miller, 335 F.3d at 895 (“We can . . . treat
the notice of appeal as a petition for a writ of mandamus
. . . .”). “Whether we construe the appeal as a writ of
mandamus depends on whether mandamus is itself
justified.” Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th
BARNES V. SEA HAWAII RAFTING 29
Cir. 2010) (citing Z-Seven Fund, Inc. v. Motorcar Parts &
Accessories, 231 F.3d 1215, 1219–20 (9th Cir. 2000)). 14
We review a party’s entitlement to mandamus relief by
weighing five factors:
(1) whether the petitioner has no other
adequate means, such as direct appeal, to
obtain the desired relief; (2) whether the
petitioner will be damaged or prejudiced in a
way not correctable on appeal; (3) whether
the district court’s order is clearly erroneous
as a matter of law; (4) whether the district
court’s order is an oft-repeated error or
manifests a persistent disregard of the federal
rules; and (5) whether the district court’s
order raises new and important problems or
issues of first impression.
United States v. U.S. Dist. Court, 694 F.3d 1051, 1057 (9th
Cir. 2012) (citing Bauman v. U.S. Dist. Court, 557 F.2d 650,
654–55 (9th Cir. 1977)). “These factors are not exhaustive,”
In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016) (citing In
14
Although Barnes did not indicate in his notice of appeal that he
intended to appeal the district court’s failure to set a maintenance rate,
he conspicuously raised the issue in his opening brief. Henry, in his
answering brief, also addressed the issue. The trustee, although noting
the issue, declined to address it, as it was not material to his arguments.
We conclude that defendants therefore had notice of the appeal of the
maintenance rate issue and are not prejudiced by our consideration of it.
See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 691 (9th Cir. 1993)
(concluding that the appellant’s opening brief was “enough to
demonstrate that the appellee had notice of the issue and did not suffer
prejudice from the appellant’s failure to specify the order in the notice of
appeal” (citing Meehan v. County of Los Angeles, 856 F.2d 102, 105–06
(9th Cir. 1988))).
30 BARNES V. SEA HAWAII RAFTING
re Cement Antitrust Litig., 688 F.2d 1297, 1301 (9th Cir.
1982)), and need not all be met in order to grant mandamus
relief, In re Benvin, 791 F.3d 1096, 1103 (9th Cir. 2015) (per
curiam) (citing Bauman, 557 F.2d at 655). Where a district
court has erroneously concluded that triable issues of fact
exist, or “has misconceived the burden of proof at trial,” the
district court’s denial of summary judgment “implicates
Bauman factors.” Ho ex rel. Ho v. S.F. Unified Sch. Dist.,
147 F.3d 854, 861 (9th Cir. 1998).
A. Other Adequate Means of Relief
Barnes could not have immediately appealed the district
court’s pretrial denials of summary judgment, which were
not final orders. 15 See Thomas, 818 F.3d at 874.
Furthermore, although Barnes did not request certification of
an interlocutory appeal under 28 U.S.C. § 1292(b), we
seriously doubt that the district court would have granted
such a request given the evidentiary nature of its rulings. In
the district court’s view, Barnes was not entitled to
maintenance due to evidentiary insufficiency rather than a
controlling question of law as required by § 1292(b). Nor
can Barnes seek review of the district court’s orders denying
summary judgment after a trial on the merits and final
judgment. See Ortiz v. Jordan, 562 U.S. 180, 183–84
(2011). Thus, the first Bauman factor favors relief.
15
Barnes sought permission to file an interlocutory appeal under
§ 1292(a)(3) from the district court’s first order denying his motion for
summary judgment to set a maintenance rate, but the district court denied
this request after concluding that its ruling did not “finally determine . . .
the parties’ rights and liabilities.”
BARNES V. SEA HAWAII RAFTING 31
B. Damage or Prejudice Correctable on Appeal
The second Bauman factor, whether the petitioner will
be damaged or prejudiced in a way not correctable on appeal,
“is closely related to the first.” In re Henson, 869 F.3d 1052,
1058 (9th Cir. 2017) (citing Douglas v. U.S. Dist. Court,
495 F.3d 1062, 1068 n.3 (9th Cir. 2007) (per curiam)).
Without our intervention now, it is unclear whether there
ever will be an appeal given Barnes’s extremely limited
resources—he is currently homeless. Moreover, even if
there is an appeal, relief will come long after Barnes was
entitled to maintenance to cover his basic living expenses.
Four years have passed since Barnes initiated this litigation,
and over three years have passed since the district court
concluded that he was entitled to maintenance and had
sufficiently demonstrated his actual expenses. Relief in a
few more years will not redress his current need for
assistance.
Although the timeliness of relief on appeal is an ever-
present concern when a case proceeds to trial, this concern
is of special import in the context of maintenance and cure.
The shipowner’s duty to pay maintenance and cure is
virtually automatic, regardless of negligence by the seaman
or lack of negligence by the shipowner. Bertram v. Freeport
McMoran, Inc., 35 F.3d 1008, 1013 (5th Cir. 1994); accord
Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041, 1044 (9th
Cir. 1999). It “extends during the period when [the seaman]
is incapacitated to do a seaman’s work and continues until
he reaches maximum medical recovery.” Vaughan v.
Atkinson, 369 U.S. 527, 531 (1962). There are three main
reasons why courts impose this duty: “[t]he protection of
seamen, who, as a class, are poor, friendless and
improvident, from the hazards of illness and abandonment
while ill in foreign ports; the inducement to masters and
32 BARNES V. SEA HAWAII RAFTING
owners to protect the safety and health of seamen while in
service; and maintenance of a merchant marine for the
commercial service and maritime defense of the nation by
inducing men to accept employment in an arduous and
perilous service.” Id. (quoting Calmar S.S. Corp. v. Taylor,
303 U.S. 525, 528 (1938)).
In line with these goals, admiralty procedure is designed
to resolve a seaman’s dispute quickly and flexibly. See
Cont’l Grain Co. v. The Barge FBL-585, 364 U.S. 19, 25
(1960); Farrell v. United States, 336 U.S. 511, 516 (1949)
(“[T]he seaman’s right to maintenance and cure . . . is so
inclusive as to be relatively simple, and can be understood
and administered without technical considerations.”);
Putnam v. Lower, 236 F.2d 561, 568 (9th Cir. 1956)
(observing that “admiralty courts are flexible in operation”);
cf. Atl. Sounding Co. v. Townsend, 557 U.S. 404, 423 (2009)
(“[R]emedies for negligence, unseaworthiness, and
maintenance and cure have different origins and may on
occasion call for application of slightly different principles
and procedures.” (quoting Fitzgerald v. U.S. Lines Co.,
374 U.S. 16, 18 (1963))).
For example, a complaint in admiralty is required to
“state the circumstances from which the claim arises with
such particularity that the defendant or claimant will be able,
without moving for a more definite statement, to commence
an investigation of the facts and to frame a responsive
pleading.” Fed. R. Civ. P. Supp. Adm. & Mar. Cl. R.
E(2)(a). In addition, “the special needs of expedition that
often arise in admiralty justify . . . the practice” of allowing
the plaintiff to serve interrogatories with the complaint and
requiring the defendant to answer the interrogatories when
answering the complaint. Id. R. C(6), advisory committee’s
note to 2000 amendment. These rules favoring expediency
BARNES V. SEA HAWAII RAFTING 33
supplant inconsistent provisions in the Federal Rules of Civil
Procedure. See id. R. A(2).
In light of admiralty’s singular concern for the
expeditious resolution of a seaman’s claims for maintenance
and cure, and Barnes’s current need for financial assistance
to meet his daily living expenses, the second Bauman factor
favors mandamus relief.
C. Clear Error
The third Bauman factor is whether the district court
clearly erred as a matter of law. “Where a petition for
mandamus raises an important issue of first impression,
however, a petitioner need show only ‘ordinary (as opposed
to clear) error.’” San Jose Mercury News, Inc. v. U.S. Dist.
Court, 187 F.3d 1096, 1100 (9th Cir. 1999) (quoting
Calderon v. U.S. Dist. Court, 134 F.3d 981, 983 (9th Cir.
1998)). Even if we have never squarely addressed an issue,
a district court’s ruling still can be clearly erroneous if
contrary to an “unbroken string of authorities” from other
jurisdictions. See id. at 1102.
1.
A question that has divided district courts in this circuit
is the appropriate legal standard to adopt in a pretrial motion
for maintenance and cure. See Best v. Pasha Haw. Transp.
Lines, LLC, No. 06-634, 2008 WL 1968334, at *1 (D. Haw.
May 6, 2008) (“District Courts in the Ninth Circuit have not
been consistent in their treatment of motions for
maintenance and cure. Some courts apply the summary
judgment standard, even when the seaman is the moving
party, while other courts have found that the summary
judgment standard is inappropriate in such circumstances
because it does not account for the flexible approach courts
34 BARNES V. SEA HAWAII RAFTING
should take in admiralty law cases and the deference courts
should provide to seamen.”). There is inherent tension
between the law of admiralty, with its solicitude for seamen,
and the Federal Rules of Civil Procedure. 16
Under the Federal Rules, a plaintiff seeking summary
judgment on a claim “must offer evidence sufficient to
support a finding upon every element of his [or her] claim”
other than elements admitted by the defendants. Watts v.
United States, 703 F.2d 346, 347 (9th Cir. 1983) (quoting
United States v. Dibble, 429 F.2d 598, 601 (9th Cir. 1970)).
There cannot be a “genuine dispute as to any material fact.”
Fed. R. Civ. P. 56(a). Rule 56 “authorizes summary
judgment only where . . . it is quite clear what the truth is.”
Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467
(1962) (internal quotation marks omitted) (quoting Sartor v.
Ark. Natural Gas Corp., 321 U.S. 620, 627 (1944)). It is
ordinarily a “heavy burden” for the plaintiff. Ambat v. City
& County of San Francisco, 757 F.3d 1017, 1031 (9th Cir.
2014). “Reasonable doubts as to the existence of material
factual issue are resolved against the moving part[y] and
inferences are drawn in the light most favorable to the non-
moving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130,
1134 (9th Cir. 2000).
Admiralty’s approach, on the other hand, is “to do justice
with slight regard to formal matters.” Cont’l Grain, 364 U.S.
at 25 (quoting Point Landing, Inc. v. Ala. Dry Dock &
Shipbuilding Co., 261 F.2d 861, 866 (5th Cir. 1958)). The
administration of maintenance should be “easy and ready,”
with “few exceptions or conditions to stir contentions, cause
delays, and invite litigations.” Vella v. Ford Motor Co.,
16
The district court here, while commenting on this tension, found
it unnecessary to resolve.
BARNES V. SEA HAWAII RAFTING 35
421 U.S. 1, 4 (1975) (quoting Farrell, 336 U.S. at 516).
Given these concerns, courts sometimes decline to resolve a
pretrial motion for maintenance and cure under a summary
judgment standard. See, e.g., Connors v. Iqueque
U.S.L.L.C., No. 05-334, 2005 WL 2206922, at *2 (W.D.
Wash. Aug. 25, 2005) (“[T]he Supreme Court’s instructions
to construe claims for maintenance and cure liberally in
favor of seamen counsel against applying the rigid standards
of Rule 56 to a pretrial motion to compel maintenance and
cure.”). 17
Despite the tension between Rule 56 and admiralty
procedure, the two standards are not incompatible. Although
it is ordinarily difficult for a plaintiff to prevail on a motion
for summary judgment, the seaman seeking maintenance has
an easier task as a result of the breadth of the shipowner’s
duty. To establish his entitlement to maintenance, the
seaman need only prove that he “bec[ame] ill or . . . injured
while in the service of the ship.” Vella, 421 U.S. at 3. The
shipowner’s duty to pay maintenance “arises irrespective of
the absence of shipowner negligence and indeed irrespective
of whether the illness or injury is suffered in the course of
17
In addition, several courts have deviated from the summary
judgment standard where a shipowner unilaterally terminates
maintenance payments upon the belief that the seaman has reached
maximum cure, leading the seaman to move to reinstate such payments.
See Robb v. Jantran, Inc., No. 15-162, 2016 WL 2986233, at *2 (N.D.
Miss. May 6, 2016) (collecting cases from the Ninth Circuit); Dean v.
Fishing Co. of Alaska, Inc., 300 P.3d 815, 824 (Wash. 2013) (adopting
the approach of district courts in the Ninth Circuit). These courts take
the approach that absent a trial, the shipowner must reinstate payments
“unless the shipowner can provide unequivocal evidence that the seaman
has reached maximum cure.” Dean, 300 P.3d at 824. As we are not
faced with a motion for reinstatement or a dispute over whether Barnes
has reached maximum cure, we do not pass on the appropriateness of the
standard adopted by these courts.
36 BARNES V. SEA HAWAII RAFTING
the seaman’s employment.” Id. at 4. “[S]o broad is the
shipowner’s obligation” that even “negligence or acts short
of culpable misconduct on the seaman’s part will not relieve
(the shipowner) of the responsibility.” Id. (quoting Aguilar,
318 U.S. at 730–31).
In sum, the liberal admiralty policies and
correspondingly rudimentary elements of a maintenance
claim mean that, in practice, a seaman will have little
difficulty demonstrating his entitlement to maintenance
under a summary judgment standard. Accordingly, “[a]
seaman’s initial entitlement to maintenance and cure . . . can
properly be resolved on summary judgment,” Dean,
300 P.3d at 822, as evidenced by the “numerous federal
district courts” to have done so, id. at 821 (citing cases); see
also Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1505–
06 (9th Cir. 1995) (upholding the denial of summary
judgment where there was a factual dispute over whether the
“alleged accident aboard the [vessel] even occurred”),
abrogated on other grounds by Atlantic Sounding; Robb,
2016 WL 2986233, at *2 (collecting cases and adopting the
approach of courts that construe pretrial requests for
maintenance and cure under a summary judgment
standard). 18
18
The Supreme Court’s statement that “ambiguities or doubts . . .
are resolved in favor of the seaman,” Vaughan, 369 U.S. at 532,
concerned the seaman’s entitlement to maintenance at trial, not at
summary judgment. Because the summary judgment standard is
compatible with a seaman’s claim for maintenance, we see no reason to
modify the summary judgment standard in this way. Any such
modification would run contrary to the stated purpose of the 1966
integration of admiralty and civil rules. See 14A Wright et al., § 3671.4
(“[I]n view of the 1966 integration of admiralty and civil rules, procedure
in admiralty . . . should be the same as in cases in law and equity unless
BARNES V. SEA HAWAII RAFTING 37
The summary judgment standard is also capable of
governing disputes over the amount of maintenance. The
burden-shifting framework we adopt is a familiar mode of
analysis at the summary judgment stage in other contexts,
see, e.g., Hardie v. Nat’l Collegiate Athletic Ass’n, 876 F.3d
312, 323–24 (9th Cir. 2017) (affirming grant of summary
judgment where there was no genuine issue of material fact
at each step of the disparate-impact analysis), and has been
successfully employed by district courts in this circuit to
determine a maintenance amount, see, e.g., Sabow v. Am.
Seafoods Co., 188 F. Supp. 3d 1036, 1044–45 (W.D. Wash.
2016).
We recognize that the denial of summary judgment as to
a maintenance amount could delay the seaman’s recovery of
maintenance that is owed to him and thereby undermine the
remedy’s “easy and ready administration.” Vella, 421 U.S.
at 4. This problem, however, can be mitigated in two ways.
First, as we explain, a seaman who demonstrates his
entitlement to maintenance and actual expenses need not
wait until trial to receive the portion of those expenses to
which he is undisputedly entitled. See Fed. R. Civ. P. 56(g)
(“If the court does not grant all the relief requested by the
motion [for summary judgment], it may enter an order
stating any material fact—including an item of damages or
other relief—that is not genuinely in dispute and treating the
fact as established in the case.” (emphasis added)). Second,
a district court may on its own or at the seaman’s request
sever the issue of maintenance and hold an expedited trial on
that claim under Federal Rule of Civil Procedure 42(b). See
Tate v. Am. Tugs, Inc., 634 F.2d 869, 871 (5th Cir. Unit A
a strong policy or statute prevents this uniformity of treatment.” (quoting
United States v. Article Consisting of 216 Cartoned Bottles, More or
Less, Sudden Change, 288 F. Supp. 29, 32 (E.D.N.Y. 1968))).
38 BARNES V. SEA HAWAII RAFTING
Jan. 1981) (“[The seaman] may . . . ask for severance of the
maintenance claim and an expedited trial of it by the court.”
(citing Caulfield v. AC&D Marine, Inc., 633 F.2d 1129,
1133 (5th Cir. Unit A Jan. 1981))).
In light of these safeguards, we conclude that the
summary judgment standard properly governs a pretrial
request to set a maintenance amount. See 1B Benedict et al.,
supra, § 51 (“The amount to which an injured or ill seaman
is entitled [for maintenance and cure] . . . [may] be
determined by the court on a motion for summary judgment
where the ‘extraneous materials’ in support of the motion
‘establish with certainty that there is no triable issue of
fact.’”). We now turn to the application of that standard.
2.
In evaluating the amount of maintenance to award, the
district court stated that it was applying the standard
articulated by the Fifth Circuit in Hall v. Noble Drilling
(U.S.) Inc., 242 F.3d 582 (5th Cir. 2001). Under Hall, a
seaman-plaintiff seeking maintenance “is entitled to the
reasonable cost of food and lodging, provided he has
incurred the expense.” 242 F.3d at 587. The plaintiff’s
actual expenses are presumptively reasonable, subject to an
adjustment upwards or downwards if the court determines
that the actual costs were more or less than an objectively
reasonable amount. See id. at 590.
The burden is on the plaintiff to “present evidence to the
court that is sufficient to provide an evidentiary basis for the
court to estimate his actual costs.” Id. In light of admiralty’s
goal of an expedient remedy for the seaman, his evidentiary
burden “is ‘feather light,’ and a court may award reasonable
expenses, even if the precise amount of actual expenses is
not conclusively proved.” Id. at 588 (quoting Yelverton v.
BARNES V. SEA HAWAII RAFTING 39
Mobile Labs., Inc., 782 F.2d 555, 558 (5th Cir. 1986)). “If
the plaintiff presents no evidence of actual expenses,”
however, “the plaintiff may not recover maintenance.” Id.
at 590. But if the plaintiff does provide evidence of actual
expenses, “the court must determine the maintenance award”
by “compar[ing] the seaman’s actual expenses to reasonable
expenses,” and awarding the lower amount unless “the
plaintiff’s actual expenses were inadequate to provide him
with reasonable food and lodging.” Id. Thus, a thrifty
seaman will normally be entitled to his actual expenses.
Hall explained how the district court should calculate a
reasonable maintenance rate:
In determining the reasonable costs of food
and lodging, the court may consider evidence
in the form of the seaman’s actual costs,
evidence of reasonable costs in the locality or
region, union contracts stipulating a rate of
maintenance or per diem payments for
shoreside food or lodging while in the service
of a vessel, and maintenance rates awarded in
other cases for seamen in the same region.
Id. Importantly, “[a] seaman need not present evidence of
the reasonable rate; a court may take judicial notice of the
prevailing rate in the district.” 19 Id.19
From the 1940s until the 1980s, the reasonable rate was generally
held by courts to be eight dollars per day, despite the deteriorating value
of that fixed amount over four decades. See Gardiner v. Sea-Land Serv.,
Inc., 786 F.2d 943, 946 (9th Cir. 1986). More recently, “courts have
allowed [a] seaman to prove that higher costs of living require a higher
maintenance amount.” 8 Benedict et al., supra, § 10.02[C][4].
40 BARNES V. SEA HAWAII RAFTING
Courts and commentators roundly cite the Fifth Circuit’s
approach. E.g., Block Island Fishing, Inc. v. Rogers,
844 F.3d 358, 365 (1st Cir. 2016) (“In this circuit, as in
numerous sister circuits, the norm is to award an injured
seaman maintenance and cure payments in the amount of his
actual living expenses.” (citing, inter alia, Hall)); 2 Robert
Force & Martin J. Norris, The Law of Seamen § 26:27 (5th
ed. 2016) (citing Hall with approval); 1B Benedict et al.,
supra, § 51 (setting forth Hall standard). Some describe it
as a burden-shifting test under which the plaintiff “must
bring forth prima facie evidence of his expenses,” and, if he
does, “[t]he burden of rebuttal then shifts to the defendant.”
1 Schoenbaum, supra, § 6-32; accord Incandela v. Am.
Dredging Co., 659 F.2d 11, 14 (2d Cir. 1981) (holding that
“a seaman makes out a prima facie case on the maintenance
rate question when he proves the actual living expenditures
which he found it necessary to incur during his
convalescence,” at which point “the burden shift[s] to the
defendant to demonstrate that plaintiff’s actual expenditures
were excessive, in light of any realistic alternatives for room
and board available to him in [the locality]”). We agree with
Hall and expressly adopt Incandela’s burden-shifting
framework for determining a maintenance amount.
3.
In ruling on Barnes’s first motion for summary
judgment, the district court found that he established both his
entitlement to maintenance and his actual living expenses of
$68 per day. Under Hall, a decision which has gained
widespread acceptance outside this circuit and which the
district court purported to apply, defendants had the burden
of showing that $68 per day was unreasonable.
Defendants submitted no such evidence. Therefore,
Barnes carried his summary judgment burden of establishing
BARNES V. SEA HAWAII RAFTING 41
that no genuine issue of material fact existed as to the
reasonableness of his actual expenses. The district court
should have awarded Barnes $68 per day unless it
independently determined that that amount was
unreasonable. See Hall, 242 F.3d at 590. Instead, the district
court faulted Barnes for “fail[ing] . . . to provide . . .
evidence regarding the current costs of food and lodging in
[his locality] such that the Court can make a determination
as to the reasonable costs in the area.” This was clear error.
See Incandela, 659 F.2d at 14 (“[T]o require every injured
seaman seeking a court award for maintenance to go to the
expense of putting on expert witnesses before he will be
permitted to recover more than a fixed nominal maintenance
rate would be to place an unfair burden on those whom the
idea of maintenance was designed to assist.”).
After the district court denied Barnes’s motion for
reconsideration, Barnes moved for summary judgment a
second time. This time, defendants produced evidence that
the reasonable cost of living in Barnes’s locality was
between $24 and $34 per day. Barnes, in contrast, produced
evidence that the reasonable rate was between $43 and $61
per day. Citing Glynn, the district court concluded that the
dispute over a reasonable daily maintenance rate precluded
summary judgment. The court subsequently denied
Barnes’s motion for reconsideration, in which he requested
maintenance at the rate of $24 per day—the lowest end of
the range of reasonable rates offered by defendants—subject
to modification after trial. Barnes repeated this request in
his third motion for summary judgment, but the district court
again denied it.
Like the denial of Barnes’s first motion for summary
judgment, these later denials of summary judgment
constituted clear error. The district court reasoned that a
42 BARNES V. SEA HAWAII RAFTING
genuine issue of fact existed as to whether Barnes was
entitled to maintenance at a rate of at least $24 per day
because Barnes did not agree that $24 per day was
reasonable. But Hall, which provided the applicable
substantive standard at summary judgment, held that
“seamen are entitled to maintenance in the amount of their
actual expenses on food and lodging up to the reasonable
amount for their locality.” 242 F.3d at 590 (emphasis
added). Regardless of whether $24 per day is ultimately
proven to be reasonable at trial, there is no dispute that the
reasonable rate is at least $24 per day. Because Barnes is
entitled to maintenance up to the reasonable rate, there is no
dispute, let alone a genuine dispute, that he is entitled to
maintenance at a rate of at least $24 per day.
In fact, Barnes is entitled to more than $24 per day. As
we have explained, defendants had the burden of
demonstrating that his actual expenses were unreasonable.
Defendants produced evidence that the reasonable daily rate
for living expenses in Barnes’s locality ranges from $24 per
day to $34 per day. Thus, defendants produced no evidence
disputing the reasonableness of a maintenance award in the
amount of $34 per day; to the contrary, the evidence
produced by defendants supported the reasonableness of a
$34 daily rate. Accordingly, there is no genuine issue of fact
as to Barnes’s entitlement to maintenance in the amount of
at least $34 per day. 20
20
To the extent that Barnes’s specific requests for maintenance of
$24 per day pending trial amounted to a form of concession, courts are
“not bound by a party’s concession as to the meaning of the law.” United
States v. Calvillo-Palacios, 860 F.3d 1285, 1289 n.4 (9th Cir. 2017)
(quoting United States v. Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006) (en
banc)).
BARNES V. SEA HAWAII RAFTING 43
Glynn is not to the contrary. There, we recognized that
summary judgment would have been premature because the
district court concluded “there was a material issue of fact
about whether Glynn was entitled to maintenance and cure.”
57 F.3d at 1505 (emphasis added). In particular, we
explained that “whether Glynn’s alleged accident aboard the
[vessel] even occurred was a disputed issue of fact that had
to be determined before Glynn could prevail on his claim.”
Id. at 1505–06. Glynn is inapposite when, as here, it is
undisputed that a seaman is entitled to maintenance and has
sufficiently demonstrated his actual expenses.
Finally, we note that under the district court’s view of
Hall, an injured seaman would be faced with a Hobson’s
choice: He could either stipulate to the reasonableness of the
rate supported by the shipowner’s evidence and thereby give
up the possibility of proving a higher rate at trial, or he could
decline to do so, in which case he would not receive
payments for basic living expenses until after trial. Such a
predicament is antithetical to the admiralty policies
underlying the seaman’s right to maintenance and cure. We
cannot countenance a rule under which “uncertainty would
displace the essential certainty of protection against the
ravages of illness and injury that encourages seamen to
undertake their hazardous calling.” Vella, 421 U.S. at 4.
Because the district court clearly erred in applying Hall,
the third Bauman factor favors granting the writ.
D. Remaining Factors
The remaining factors also support mandamus relief.
Barnes moved the district court to set a maintenance rate on
four separate occasions. The district court denied the first
three of these motions and deemed the fourth withdrawn in
light of the bankruptcy stay. Thus, the district court’s error
44 BARNES V. SEA HAWAII RAFTING
was “oft-repeated.” And lastly, because we had not yet
considered the application of Hall or expressly adopted the
Incandela burden-shifting framework for determining a
maintenance amount, the questions involved are ones of first
impression.
V.
Conclusion
Barnes, having undertaken a dangerous profession at sea,
was entitled to reimbursement from the Tehani for his living
and medical expenses while recovering from his injuries in
its service. More than that, he was entitled to be reimbursed
quickly. “The adequate protection of an injured or ill
seaman against suffering and want requires more than the
assurance that he will receive payments at some time in the
indefinite future. Payments must be promptly made, at a
time contemporaneous to the illness or injury.” Crooks v.
United States, 459 F.2d 631, 634–35 (9th Cir. 1972) (quoting
Vaughan, 369 U.S. at 537–38 (Stewart, J., dissenting on
other grounds)). Yet after more than five years, Barnes is
still waiting. We urge the district court to move quickly
upon remand.
The trustee’s motion to dismiss the appeal against the
Tehani is denied. We reverse the district court’s order
dismissing the Tehani for lack of jurisdiction. We issue a
writ of mandamus directing the district court to award
BARNES V. SEA HAWAII RAFTING 45
Barnes maintenance at the rate of $34 per day, subject to a
potential upward modification after trial. 21
REVERSED in part and REMANDED;
MANDAMUS GRANTED.
21
It appears that prior to this appeal, the district court was on track
to sever the issue of maintenance and cure and set it for trial. We
commend this approach and encourage the court and the parties to
continue to pursue it expeditiously on remand.