Ventura Packers, Inc. v. Ingman ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VENTURA PACKERS, INC., a 
California corporation,
Plaintiff-Appellant, No. 03-56547
ROGER L. INGMAN; JODY K. D.C. No.
INGMAN; ROSE LEE LLC; DENNIS H. CV-98-09916-SJO
EAMES; ANDREA J. EAMES,
ORDER
Claimants-Appellees,
AMENDING
v.  OPINION AND
F/V JEANINE KATHLEEN, Official DENYING
No. 972086, her tackle, furniture PETITION FOR
& apparel in rem; F/V ROSE LEE, PANEL
Official No. 942678, her tackle, REHEARING AND
furniture & apparel in rem; F/V AMENDED
TALIA, Official No. 973296, her OPINION
tackle, furniture & apparel in rem,
Defendants.

Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted
April 5, 2005—Pasadena, California
Filed August 11, 2005
Amended September 16, 2005
Before: Mary M. Schroeder, Chief Judge, Harry Pregerson
and Stephen S. Trott, Circuit Judges.
Opinion by Judge Pregerson
13331
13334 VENTURA PACKERS v. F/V JEANINE KATHLEEN
COUNSEL
Denise A. Brogna, Lascher & Lascher, Ventura, California,
for the plaintiff-appellant.
VENTURA PACKERS v. F/V JEANINE KATHLEEN 13335
Carolyn J. Shields, Bailey & Partners, Altadena, California,
for the claimants-defendants-appellees.
ORDER
The opinion, filed August 11, 2005, slip op. 10377, and
reported at 2005 WL 1906969 (9th Cir. Aug. 11, 2005), is
withdrawn and replaced by the amended opinion filed concur-
rently with this order. With the amended opinion, the panel
has voted to deny the petition for panel rehearing.
The petition for panel rehearing is denied.
OPINION
PREGERSON, Circuit Judge:
Plaintiff Ventura Packers, Inc. (“Ventura Packers”) appeals
the district court’s grant of summary judgment in favor of the
owners of three fishing vessels (“the Owners”), F/V Jeanine
Kathleen, F/V Rose Lee, and F/V Talia. Ventura Packers
brought this in rem admiralty action against the three vessels
to execute a necessaries lien, and the vessels were arrested
pursuant to maritime procedure. The Owners made a
restricted appearance in district court and executed a stipula-
tion with Ventura Packers. In the stipulation, the Owners
agreed to post security in exchange for the release of the ves-
sels. They further agreed that the security would stand in the
place of the vessels as the defendant in the in rem action. The
district court granted the Owners’ motion for summary judg-
ment and dismissed the in rem action. Pursuant to the court’s
order, counsel for Ventura Packers returned the security to the
Owners.
We reversed the grant of summary judgment in favor of the
Owners and remanded for further proceedings. See Ventura
13336 VENTURA PACKERS v. F/V JEANINE KATHLEEN
Packers v. F/V Jeanine Kathleen, 305 F.3d 913, 924 (9th Cir.
2002). On remand, the Owners again moved for summary
judgment. Once again, the district court dismissed the action.
This time, the district court determined that in rem jurisdiction
was lost because there was no res against which to enforce an
eventual in rem judgment. Furthermore, the district court held
that it was powerless to order the Owners to reinstate the
security.
We have jurisdiction under 28 U.S.C. § 1291, and conclude
that the district court never lost in rem jurisdiction. We further
conclude that the district court has the authority to order the
Owners to reinstate the security pursuant to the stipulation.
We therefore reverse and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Original District Court Action
Ventura Packers is a corporation that provides stevedoring
services in Ventura, California. In 1996, Ventura Packers
entered into an agreement with the Independent Fishermen’s
Cooperative (“IFC”) to provide stevedoring and other services
to IFC affiliated vessels. During the 1996-97 squid season,
Ventura Packers provided services to three IFC affiliated fish-
ing vessels: the F/V Jeanine Kathleen, the F/V Rose Lee, and
the F/V Talia.
Ventura Packers alleged that IFC provided only partial pay-
ment for services rendered by Ventura Packers to the three
vessels during the 1996-97 squid season. To recover $170,000
of outstanding debt owed by IFC, Ventura Packers filed an in
rem admiralty action in district court against the three fishing
vessels. See Ventura Packers, 305 F.3d at 916. Ventura Pack-
ers sought to execute a necessaries lien under the provisions
of the Maritime Lien Act, 46 U.S.C. § 31342,1 by arresting the
1
“The Maritime Lien Act provides that a person (1) providing neces-
saries (2) to a vessel (3) on the order of the owner or a person authorized
VENTURA PACKERS v. F/V JEANINE KATHLEEN 13337
three vessels pursuant to Rule C of the Supplemental Rules
for Certain Admiralty and Maritime Claims (“Rule C”). See
id. The Owners of the vessels made a restricted appearance
under Rule E(8) of the Supplemental Rules for Certain Admi-
ralty and Maritime Claims (“Rule E(8)”). The Owners and
Ventura Packers then stipulated to the transfer of cash and a
surety bond (also known as “undertakings”) to the client trust
fund of Bright & Powell, counsel for Ventura Packers, in
exchange for release of the vessels.
The stipulation for the release of the F/V Jeanine Kathleen
provided in pertinent part that:
[Ventura Packers] and the JEANINE KATHLEEN
hereby agree that the above referenced $47,000.00
cash deposit, if made in lieu of a surety bond, or the
surety bond issued in accordance herewith, shall
constitute an undertaking in lieu of the further arrest
of the JEANINE KATHLEEN within the meaning of
Local Admiralty Rule C.1 and further agree that said
undertaking shall become a defendant in place of
said vessel and shall be deemed referred to under the
name of said vessel in any pleading, order or judg-
ment in the [action].
The stipulation further provided in part that:
the cash deposit undertaking, or any obligations
under any surety bond issued in accordance here-
with, shall not be released or enforced by the law
firm of Bright & Powell except upon the written
by the owner has a necessaries lien on the vessel and may bring a civil
action in rem to enforce that lien.” Ventura Packers, 305 F.3d at 922. “The
term ‘necessaries’ includes most goods or services that are useful to the
vessel and keep her out of danger,” and “indubitably include[s] the things
a prudent owner would provide to enable a ship to perform her particular
function.” Id. at 923.
13338 VENTURA PACKERS v. F/V JEANINE KATHLEEN
instructions of both [Ventura Packers] and the JEA-
NINE KATHLEEN, or upon further order of the
court, or, upon presentation of a copy of the final
judgment, to the prevailing party herein to the extent
of the amount of said judgment, provided that the
time to appeal said judgment has expired or to the
extent of the amount of the judgment affirmed on
appeal once no further appeal is possible.
The stipulations for the release of the F/V Rose Lee and the
F/V Talia were identical in all material respects, except for
the amount of the security posted.
After the Owners answered and the parties conducted dis-
covery, the parties cross-moved for summary judgment. See
Ventura Packers, 305 F.3d at 916. The Owners argued that
the district court lacked subject matter jurisdiction, while
Ventura Packers argued that jurisdiction was proper. See id.On July 26, 2000, the district court granted the Owners’
motion and dismissed the action for lack of subject matter
jurisdiction. See id. The district court found that it lacked
admiralty jurisdiction because the contract between Ventura
Packers and the IFC was “not wholly maritime.” See id. at
917. The district court also issued an order releasing the
security.
Ventura Packers filed its notice of appeal on August 18,
2000.
B. Ventura Packers’ Return of the Security
Two days before it filed its notice of appeal, Ventura Pack-
ers retained new counsel, Denise Brogna of the law firm Las-
cher & Lascher, and terminated its former counsel, Michael
Damen of the law firm Bright & Powell. On the same day, its
former counsel, Michael Damen, sent a letter to counsel for
the Owners. The letter enclosed two checks, one payable
directly to F/V Rose Lee and one payable to the owner of the
VENTURA PACKERS v. F/V JEANINE KATHLEEN 13339
F/V Talia. In the letter, Damen explained that he was return-
ing the two checks “[i]n accordance with the ‘Judgment of
Dismissal, Exoneration of Undertakings, and Release of All
Security’ signed by [the district court].”2
Brogna stated in her affidavit before the district court that
she was not consulted by Damen before he returned the secur-
ity to the Owners. The district court concluded, however, that
Damen was authorized to return the security to the Owners on
behalf of Ventura Packers. The district court relied on the fact
that it had not granted Damen leave to withdraw as counsel
of record until six days after he returned the security to the
Owners.
Several months later, counsel for the Owners wrote a letter
to Damen. In her letter, counsel for the Owners requested the
return of the security for the third vessel, the F/V Jeanine
Kathleen. Soon after the letter was sent, Robert Bartosh, gen-
eral counsel for Ventura Boatyard, Inc.,3 sent the Owners the
surety bond for the F/V Jeanine Kathleen. Upon receipt, the
Owners returned the surety bond to its issuer.
C. The First Appeal and Remand Proceedings
On appeal from the district court’s order granting the Own-
ers’ motion for summary judgment and dismissing the action
2
The parties dispute whether counsel for the Owners contacted Ventura
Packers and requested the return of the security. Counsel for the Owners
contended that she did not demand return of the security, and stated at oral
argument that she was surprised to receive the return of the security. The
district court did not, however, resolve this factual conflict.
3
Ventura Boatyard, Inc., is a fifty-percent shareholder of Ventura Pack-
ers. The district court found that it was unclear how the bond came into
the control of Bartosh when it was originally entrusted to the client trust
fund account of Bright & Powell, former counsel for Ventura Packers.
Though the parties disputed whether Bartosh was authorized to release the
bond on behalf of Ventura Packers, the district court concluded that Bar-
tosh was acting on behalf of Ventura Packers when he released the bond.
13340 VENTURA PACKERS v. F/V JEANINE KATHLEEN
for lack of subject matter jurisdiction, we reversed and
remanded for further proceedings. See Ventura Packers, 305
F.3d at 924. We held that a maritime contract was not neces-
sary to create admiralty jurisdiction under the Maritime Lien
Act, 46 U.S.C. § 31342. See id. at 917. We also concluded
that a triable issue of material fact remained as to whether
Ventura Packers could demonstrate the requisite elements to
execute a necessaries lien under 46 U.S.C. § 31342. See id. at
924.
Though the security was returned to the Owners before oral
argument in the first appeal, the Owners did not argue that the
return of the security affected the district court’s continuing
jurisdiction over this action.
On remand to the district court, the Owners once again
moved for summary judgment contending that the district
court lacked jurisdiction over the in rem action. This time,
however, the Owners’ argument concerned the return of the
security. The Owners contended that once Ventura Packers
released the security, in rem jurisdiction was lost because
there was nothing against which to enforce an eventual in rem
judgment. Furthermore, the Owners claimed that the court
could not order them to reinstate the security. Ventura Packers
opposed the motion and moved the district court to order the
Owners to reinstate the security.
The district court agreed with the Owners and dismissed
Ventura Packers’ in rem action. The court concluded that in
rem jurisdiction was lost once Ventura Packers returned the
security to the Owners because there was nothing against
which to enforce an in rem judgment. The court further held
that it was powerless to order the Owners to reinstate the
security.
STANDARD OF REVIEW
The district court’s decision to dismiss for lack of in
rem jurisdiction was a legal determination which we review
VENTURA PACKERS v. F/V JEANINE KATHLEEN 13341
de novo. See Dluhos v. Floating & Abandoned Vessel, 162
F.3d 63, 68 (2d Cir. 1998); see also United States v. One 1987
Mercedes Benz Roadster 560 SEC, 2 F.3d 241, 243 (7th Cir.
1993).
ANALYSIS
A. The Arrest of the Three Vessels Conferred In Rem
Jurisdiction on the District Court
[1] “Maritime liens arise for the unpaid provision of neces-
saries, breaches of maritime contracts, unpaid seaman’s
wages, unpaid cargo freight, preferred ship mortgages, as well
as in other circumstances.” Ventura Packers, 305 F.3d at 919.
When a maritime lien arises, it “confers . . . upon its holder
such a right in the thing he may subject it to condemnation
and sale to satisfy his claim or damages.” The Rock Island
Bridge, 73 U.S. 213, 215 (1867); see also G. Gilmore & C.
Black, The Law of Admiralty, § 9-1, at 588 (2d ed. 1975)
(“The maritime lienor is not a co-owner of the ship. . . . It
remains the owner’s ship for all purposes — subject to the
lienor’s right to have it arrested, wherever he can find it, on
process issuing from the admiralty court.”). This is because
“[t]he theoretical basis for the maritime lien rests on the legal
fiction that the ship itself caused the loss and may be called
into court to make good.” Ventura Packers, 305 F.3d at 919;
see United States v. Ten Thousand Dollars in U.S. Currency,
860 F.2d 1511, 1513 (9th Cir. 1988) (“Jurisdiction in rem is
predicated on the fiction of convenience that an item of prop-
erty is a person against whom suits can be filed and judg-
ments entered.”) (internal quotation marks and citation
omitted).
[2] Thus, the holder of a maritime lien has “the right to pro-
ceed in rem directly against the vessel” that is the fictional
cause of the loss. Chugach Timber Corp. v. N. Stevedoring &
Handling Corp. (In re Chugach Forest Prod., Inc.), 23 F.3d
241, 245 (9th Cir. 1994). When suit is brought in federal court
13342 VENTURA PACKERS v. F/V JEANINE KATHLEEN
to execute a maritime lien against a vessel, Rule C permits a
district court to “issue an order directing the clerk to issue a
warrant for the arrest of the vessel . . . that is the subject of
the action.” Fed. R. Civ. P. C(3) (Supplemental Rules for Cer-
tain Admiralty and Maritime Claims). “In the usual course,
[in rem] jurisdiction is obtained by serving a warrant of arrest
pursuant to Supplemental Rule C(3).” United States v.
Marunaka Maru No. 88, 559 F. Supp. 1365, 1368 (D. Alaska
1983).
In this action, the district court obtained in rem jurisdiction
when the three fishing vessels were arrested pursuant to mari-
time process. See id. Once the district court issued warrants
for the arrest of the three vessels pursuant to Rule C, and the
warrants were successfully served, “jurisdiction was com-
plete.” See The Rio Grande, 90 U.S. 458, 463 (1874).
[3] Rather than permit their vessels to remain under arrest,
however, the Owners posted security in exchange for the
release of their vessels. “Admiralty procedures allow an
arrested vessel to be released from custody upon the posting
of security.” Alyeska Pipeline Serv. Co. v. Vessel Bay Ridge,
703 F.2d 381, 384 (9th Cir. 1983); see also Fed. R. Civ. P.
E(5) (Supp. R. for Certain Admiralty and Mar. Claims). When
the Owners executed their stipulation agreeing to post security
in exchange for the release of their vessels, the “security
[was] substituted for the vessel[s] as the res subject to the
court’s jurisdiction.” Alyeska Pipeline Serv. Co., 703 F.2d at
384; see also Cont’l Grain Co. v. Barge FBL-585, 364 U.S.
19, 38 (1960) (Whittaker, J., dissenting) (“This Court has
from an early day consistently held that a bond, given to pre-
vent the arrest or to procure the release of the vessel, is substi-
tuted for and stands as the vessel in the custody of the
court.”). “This exchange mean[t] to the [Owners] the freedom
of [their] ship[s] and to [Ventura Packers] a new security of
unfluctuating value in the place of the vessel[s].” See J.K.
Welding Co. v. Gotham Marine Corp., 47 F.2d 332, 335 (S.D.
N.Y. 1931).
VENTURA PACKERS v. F/V JEANINE KATHLEEN 13343
[4] In effect, Ventura Packers’ necessaries lien was trans-
ferred from the three fishing vessels to the security posted by
the Owners. See S. Oregon Prod. Credit Assn. v. Oil Screw
Sweet Pea, 435 F. Supp. 454, 458-59 (D. Or. 1977); see also
G. Gilmore & C. Black, The Law of Admiralty, § 9-89, at 799
(2d ed. 1975) (“With respect to a lien in suit the effect of
release is to transfer the lien from the ship to the fund repre-
sented by the bond or stipulation.”).
B. Continuous Control of the Res and In Rem Jurisdiction
The Owners argue that once Ventura Packers returned the
security to the Owners pursuant to the district court’s order,
and before our decision in Ventura Packers, the district court
lost in rem jurisdiction. They rely in part on Alyeska Pipeline,
where the plaintiffs brought an in rem action against the ves-
sel Bay Ridge and arrested it pursuant to Rule C. See Alyeska
Pipeline Serv. Co., 703 F.2d at 383. The vessel was then
released in exchange for a stipulation for value posted by the
claimants. Id. We held that once the district court dismissed
the case and ordered the stipulation for value released, in rem
jurisdiction was lost because there was nothing “upon which
the judgment of the court could operate and give relief to the
appellant.” Id. at 384 (citing Canal Steel Works v. One Drag
Line Dredge, 48 F.2d 212, 213 (5th Cir. 1931)).
[5] The holding in Alyeska Pipeline that in rem jurisdiction
was lost once the stipulation for value was released by the dis-
trict court, and the reasoning on which it was based, was
implicitly overruled and rejected by the Supreme Court in
Republic National Bank of Miami v. United States, 506 U.S.
80 (1992). Therefore, the holding in Alyeska Pipeline is no
longer binding law in this circuit. See Galbraith v. County of
Santa Clara, 307 F.3d 1119, 1123 (9th Cir. 2002) (quoting
United States v. Lancellotti, 761 F.2d 1363, 1366 (9th Cir.
1985)) (“[W]e may overrule prior circuit authority without
taking the case en banc when ‘an intervening Supreme Court
13344 VENTURA PACKERS v. F/V JEANINE KATHLEEN
decision undermines an existing precedent of the Ninth Cir-
cuit, and both cases are closely on point.’ ”).
[6] Contrary to Alyeska Pipeline, the Supreme Court in
Republic National Bank held that as long as there is a valid
seizure of the res at the initiation of an in rem proceeding, in
rem jurisdiction is not lost by the removal of the res from the
district court’s control. See Republic Nat’l Bank, 506 U.S. at
84 (“[T]he Government relies on what it describes as a settled
admiralty principle: that jurisdiction over an in rem forfeiture
proceeding depends upon continued control of the res. We,
however, find no such established rule in our cases.”); see
also The Rio Grande, 90 U.S. at 463 (“We do not understand
the law to be that an actual and continuous possession of the
res is required to sustain the jurisdiction of the court. When
the vessel was seized by the order of the court and brought
within its control the jurisdiction was complete.”).
In Republic National Bank, the government instituted an in
rem civil forfeiture proceeding and prevailed in the district
court. See Republic Nat’l Bank, 506 U.S. at 83. Thereafter, the
proceeds from the res were transferred out of the district
court’s control and into the United States Treasury before an
appeal was heard in the Eleventh Circuit. See id. The govern-
ment then moved to dismiss the appeal, arguing that jurisdic-
tion over the in rem action was lost as soon as the res was
transferred out of the district court’s control. See id. at 84. The
Supreme Court rejected the government’s argument, and held
that the only prerequisite to in rem jurisdiction is the valid sei-
zure of the res at the initiation of in rem proceedings. See id.
at 87-89.
We applied the holding of Republic National Bank in
Stevedoring Services of America v. Ancora Transport, N.V.,
59 F.3d 879 (9th Cir. 1995), where the plaintiff brought a
quasi in rem4 action and attached the defendant’s funds pursu-
4
Wright and Miller describe the nature of a quasi in rem action as fol-
lows:
VENTURA PACKERS v. F/V JEANINE KATHLEEN 13345
ant to maritime process. After a hearing, the district court
vacated the writ of attachment. Id. at 881. On appeal, the
defendants argued that the district court’s release of the
attached funds rendered the case moot. Id. Following Repub-
lic National Bank, we rejected the defendant’s argument and
held that “the district court’s release of the garnished funds in
[the plaintiff’s] action for quasi in rem judgment did not
divest the court of jurisdiction over the res.” Id. at 883.
Though Republic National Bank was an in rem case, not a
quasi in rem case, we concluded “that this difference suggests
no reason why we should distinguish the Supreme Court’s
decision in [Republic National Bank].” Id. at 882.
[7] In short, in rem or quasi in rem jurisdiction remains
throughout the course of an appeal, as long as jurisdiction was
properly obtained at the initiation of the action. See Republic
Nat’l Bank, 506 U.S. at 87; Stevedoring Servs. of Am., 59 F.3d
at 882-83. Otherwise, the “prevailing party could frustrate the
losing party’s appeal by transferring the res out of the district
court’s jurisdiction,” a practice to which “[t]he Supreme
Court objected in no uncertain terms” in Republic National
Bank. Id. at 882. There, the Court explained that “[t]he fic-
A quasi in rem action is basically . . . a halfway house between
in rem and in personam jurisdiction. The action is not really
against the property; rather, the action involves the assertion of
a personal claim against the defendant of the type usually
advanced in an in personam action and the demand ordinarily is
for a money judgment, although in some contexts the objective
may be to determine rights in certain property. The basis for
transforming the suit from one in personam to an action against
the defendant’s property is the attachment or garnishment of
some or all of the property the defendant may have in the juris-
diction.
Wright & Miller, Federal Practice and Procedure; Civil 3d § 1070, at 286
(2002); see also Teyseer Cement Co. v. Halla Maritime Corp., 794 F.2d
472, 476-77 (9th Cir. 1986) (describing the nature of quasi in rem jurisdic-
tion in the maritime context).
13346 VENTURA PACKERS v. F/V JEANINE KATHLEEN
tions of in rem forfeiture were developed primarily to expand
the reach of the courts and to furnish remedies for aggrieved
parties, not to provide a prevailing party with a means of
defeating its adversary’s claim for redress.” Republic Nat’l
Bank, 506 U.S. at 87 (internal citations omitted).
[8] In light of Republic National Bank and Stevedoring Ser-
vices of America, we conclude that in rem jurisdiction was not
lost when the security was returned to the Owners pursuant to
the district court order releasing the security. Because the
release of the security did not divest the district court of juris-
diction, we hold that the district court retained in rem jurisdic-
tion on remand from our decision in Ventura Packers.
C. The Useless Judgment Rule Does Not Apply
The Owners argue that even if the district court retains in
rem jurisdiction, any in rem judgment would be a useless
judgment. Specifically, the Owners contend that the district
court is powerless to order them to reinstate the previously
exonerated security.
[9] There may be some in rem actions where dismissal is
warranted “where the release of the property would render the
judgment ‘useless’ because ‘the thing could neither be deliv-
ered to the libellants, nor restored to the claimants.’ ” Repub-
lic Nat’l Bank, 506 U.S. at 85 (quoting United States v. The
Little Charles, 26 F. Cas. 979, 982 (C.C. Va. 1818) (No.
15,612); see also id. at 87 (quoting United States v. One Lear
Jet Aircraft, 836 F.2d 1571, 1579 (11th Cir. 1988) (Vance, J.,
dissenting)) (“Of course, if a ‘defendant ship stealthily
absconds from port and leaves the plaintiff with no res from
which to collect,’ a court might determine that a judgment
would be ‘useless.’ ”). The Court’s reliance on The Little
Charles in Republic National Bank helps us determine
whether the useless judgment rule applies here. We conclude
that it does not.
VENTURA PACKERS v. F/V JEANINE KATHLEEN 13347
[10] In The Little Charles, the court explained that an in
rem judgment against a released vessel would not be useless
“if, for example . . . the parties have, by consent, substituted
other property to abide the fate of the suit.” 26 F. Cas. at 982.
That is what happened here: the three vessels were released
by Ventura Packers in exchange for security that was intended
to stand in the place of the vessels.5 This case is therefore dis-
tinguishable from those cases cited by the Owners in which
the parties did not agree that a substitute form of security, or
a substitute res, would abide by the fate of the suit.6
5
The district court relied in part on The Brig Ann, 13 U.S. (9 Cranch)
289 (1815), for the notion that once a plaintiff voluntarily relinquishes
possession of the res, the Court is powerless to help for want of jurisdic-
tion. That case, however, is unhelpful here. As the Supreme Court stated
in Republic National Bank, “[f]airly read, The Brig Ann simply restates the
rule that the court must have actual or constructive control of the res when
an in rem forfeiture suit is initiated. If the seizing party abandons the
attachment prior to filing an action, it, in effect, has renounced its claim”
and “unless a new seizure is made, the case may not commence.” Republic
Nat’l Bank, 506 U.S. at 87 (emphasis added).
Accordingly, The Brig Ann is not instructive here, where the seizure of
the res was not abandoned prior to the commencement of the action. Fur-
thermore, we do not equate Ventura Packers’ release of the security with
abandonment of their seizure. They released the security only after being
ordered to do so by the district court. As their appeals in this case demon-
strate, they continue vigorously to pursue this in rem action.
6
The Owners direct our attention to two cases that applied the useless
judgment rule and dismissed in rem claims on appeal. See United States
v. 3262 SW 141 Ave., 33 F.3d 1299, 1303-04 (11th Cir. 1994) (applying
useless judgment rule where the real property at issue had been sold pursu-
ant to a default judgment and the proceeds disbursed completely to prior-
ity claimants); Newpark Shipbuilding & Repair, Inc. v. M/V Trinton Brute,
2 F.3d 572, 573 (5th Cir. 1993) (applying useless judgment rule where the
court found that “[u]nlike the situation in Republic [National Bank], we
cannot trace the res or its proceeds to a particular fund in Newpark’s pos-
session”). As discussed above, these cases address distinct factual scenar-
ios which do not inform our decision in this case.
Our decision in Pride Shipping v. Tafu Lumber Co., 898 F.2d 1404 (9th
Cir. 1990), also relied on by the Owners, is similarly distinguishable.
There, we examined the effect of the district court’s release of a vessel’s
13348 VENTURA PACKERS v. F/V JEANINE KATHLEEN
The Owners rely on several cases, preceding both Republic
National Bank and Stevedoring Services of America, in which
we concluded that a court is powerless to order a res returned
where it has been released by the district court and the plain-
tiff does not seek a stay of the release order or post a superse-
deas bond. See United States v. 66 Pieces of Jade & Gold
Jewelry, 760 F.2d 970, 972-973 (9th Cir. 1985); Am. Bank of
Wage Claims v. Registry of the Dist. Court of Guam, 431 F.2d
1215, 1218 (9th Cir. 1970).
[11] However, in Stevedoring Services of America, we held
that the decision in Republic National Bank “eliminate[d] any
requirement on a party seeking to institute a maritime attach-
ment to obtain a stay or post a supersedeas bond to preserve
the district court’s jurisdiction over the garnished funds while
it appealed the release of the garnished funds.” Stevedoring
Servs. of Am., 59 F.3d at 882; see also J. Lauritzen A/S v.
Dashwood Shipping, Ltd., 65 F.3d 139, 141-42 (9th Cir.
1995). Though Stevedoring Services of America was a quasi
in rem case, we made clear that our conclusion was derived
from Republic National Bank, an in rem case. See Stevedoring
Servs. of Am., 59 F.3d at 882. We therefore see no reason to
treat this in rem case differently. Thus, under Stevedoring Ser-
vices of America, we hold that the district court retained juris-
diction over the res pending the outcome of the first appeal,
even though Ventura Packers did not file a stay or post a
supersedeas bond. See id.[12] We further conclude that the district court would be
well within its authority to order the Owners to reinstate the
security. The Owners, by their stipulation, agreed that the
bunkers that had been attached in order to initiate a quasi in rem proceed-
ing. Id. at 1405. Because the coal inside the vessel’s bunkers had been
used up by the time the appeal was heard by this court, we concluded that
the security was “clearly beyond the jurisdiction of this court, and can
never return, since it has now become energy and residual products of
combustion.” Id. at 1408.
VENTURA PACKERS v. F/V JEANINE KATHLEEN 13349
security would “become a defendant in place of said vessel
and [would] be deemed referred to under the name of said
vessel in any pleading, order or judgment” rendered by the
district court. As the stipulation indicated, the “security [was]
substituted for the vessel[s] as the res subject to the court’s
jurisdiction.” See Alyeska Pipeline Serv. Co., 703 F.2d at 384.
Because this in rem action is still pending, the security is still
the substitute res. The security therefore remains subject to
the court’s jurisdiction. Thus, while Ventura Packers released
the security to the Owners when they were ordered to do so
by the district court, the district court retains legal custody of
the security and can order the Owners to return it to Ventura
Packers.7 See The Bolina, 3 F. Cas. 811, 813 (C.C. Mass.
1812) (No. 1,608), cited with approval in Republic Nat’l
Bank, 506 U.S. at 86 n.4 (“[W]hen once a vessel is libelled,
then she is considered as in the custody of the law, and at the
disposal of the court, and monitions [i.e., instructions] may be
issued to persons having the actual custody, to obey the
injunctions of the court.”).
7
In their petition for rehearing, the Owners contend that they are no lon-
ger in possession of the same security originally transferred to the trust
fund of Bright & Powell pursuant to the parties’ stipulation. In this cir-
cumstance, however, we conclude that the district court can rely on what-
ever principles of equitable relief it sees fit to recover from the Owners the
equivalent amount of cash, or cash substitute, originally promised in
exchange for the release of the vessels. See Swift & Co. Packers v. Com-
pania Colombiana Del Caribe, 339 U.S. 684, 691-92 (1950) (“We find no
restriction upon admiralty by chancery so unrelenting as to bar the grant
of any equitable relief even when that relief is subsidiary to issues wholly
within admiralty jurisdiction.”); Key Bank of Wash. v. S. Comfort, 106
F.3d 1441, 1444 (9th Cir. 1997) (“A district court sitting in admiralty has
equitable powers to do substantial justice.”) (internal quotation marks and
citation omitted); Inland Credit Corp. v. M/T Bow Egret, 552 F.2d 1148,
1153 n.6 (5th Cir. 1977) (noting that “admiralty courts are much freer
today than they may have been in the past to rely upon equitable principles
to solve questions which arise in cases whose core is traditionally mari-
time”); see also Fed. R. Civ. P. E(6) (Supp. R. for Certain Admiralty and
Mar. Claims) (providing that, “[w]henever security is taken . . . and if the
surety shall be or become insufficient, new or additional sureties may be
required on motion and hearing”).
13350 VENTURA PACKERS v. F/V JEANINE KATHLEEN
D. The Owners’ Restricted Appearance Under Rule E(8)
Finally, we also reject the Owners’ argument that their
restricted appearance under Rule E(8) prevents the district
court from requiring them to reinstate the security. Rule E(8)
provides:
Restricted Appearance. An appearance to defend
against an admiralty and maritime claim with respect
to which there has issued process in rem, or process
of attachment and garnishment, may be expressly
restricted to the defense of such claim, and in that
event is not an appearance for the purposes of any
other claim with respect to which such process is not
available or has not been served.
Fed. R. Civ. P. E(8) (Supp. R. for Certain Admiralty and Mar.
Claims).
[13] Rule E(8) permits a claimant in an in rem proceeding
to “vigorously defend the merits of the claim against him
without converting his restricted appearance into a general
appearance.” Teyseer Cement Co. v. Halla Maritime Corp.,
794 F.2d 472, 478 (9th Cir. 1986) (internal quotation marks
and citation omitted). Stated differently, “[o]nce a claimant
appears and defends against an in rem claim for which pro-
cess has issued, Rule E(8), when properly invoked, precludes
claimant’s restricted appearance from being deemed a general
appearance on other claims, properly joinable, for which pro-
cess has not yet issued.” Marunaka Maru No. 88, 559 F.
Supp. at 1370. Gilmore and Black describe the purpose of
Rule E(8) as follows:
According to the Advisory Committee’s Note[,] this
provision . . . was principally designed to insure that
an appearance to defend an action initiated by in rem
(or quasi in rem) process does not automatically sub-
ject the defendant to in personam jurisdiction with
VENTURA PACKERS v. F/V JEANINE KATHLEEN 13351
respect to nonmaritime claims which under the lib-
eral joinder provision of [the] unified rules may be
combined with maritime claims in the same action.
G. Gilmore & C. L. Black, The Law of Admiralty § 9-90, at
805 (2d ed. 1975).
[14] The only claim before the district court is Ventura
Packers’ in rem claim against the three fishing vessels based
on its alleged necessaries lien under 46 U.S.C. § 31342. Our
decision does not in any way force the Owners to submit to
a claim “for which process has not yet issued.” Marunaka
Maru No. 88, 559 F. Supp. at 1370. Accordingly, Rule E(8)
does not prevent the district court from ordering the Owners
to reinstate the security originally promised in exchange for
release of the vessels.
CONCLUSION
In sum, we hold that the district court retained in rem juris-
diction on remand from our decision in Ventura Packers even
though Ventura Packers, through its counsel, returned the
security to the Owners’ counsel pursuant to the district court’s
order. We also hold that because the parties’ agreed that the
security would stand in the place of the released vessels, an
in rem judgment would not be useless. Finally, we hold that
the district court has ample authority to order the Owners to
reinstate the security, notwithstanding Rule E(8).
Thus, we reverse the grant of summary judgment in favor
of the Owners and remand the case for further proceedings.
REVERSED and REMANDED.