Citations
- 893 F. Supp. 526
Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW
McCOTTER, United States Magistrate Judge.
This matter came before the court for trial on October 17 and 18, 1994, in New Bern. The case was tried without a jury, the parties’ counsel having waived jury trial, before the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). After having heard and reviewed all testimony, exhibits, other evidence, and argument, and reviewing the respective parties’ pleadings, stipulations, Pretrial Order, and supporting memoranda, the court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. This is an action instituted by the plaintiff claiming a maritime lien on the defendant vessel BRISTOL, in rem, and against its owners, in personam, for necessaries, including materials, services, repairs, supplies, wharfage, and storage.
2. This is an action comprising a claim of admiralty and maritime jurisdiction of the United States and this court.
3. The court does not have in rem jurisdiction over the vessel BRISTOL, her engines, tackle, apparel, etc., as there has been no service of process on the vessel BRISTOL.
4. All parties other than the vessel BRISTOL are properly before the court, and the court has jurisdiction over the parties and of the subject matter of this dispute.
5. Marlen C. Robb, Jr. and Dr. Franklyn Carrington testified at trial, and the following findings of fact are based primarily on their testimony, unless otherwise indicated.
6. The plaintiff, Marlen C. Robb & Son Boatyard & Marina, Inc. is a corporation organized and existing under the laws of North Carolina, having its principal place of business in Belhaven, North Carolina, where it operates a transient marina and repair facility on Pantego Creek. Marlen C. Robb (Sr.) is the Secretary-Treasurer of the plaintiff corporation and a principal stockholder, and Marlen C. Robb, Jr. is the President of the plaintiff corporation and a principal stockholder.
7. The defendants Franklyn H. Carrington, Jr. and Carolyn R. Carrington (“the Carringtons”), are citizens and residents of the State of Connecticut, and are husband and wife. The Carringtons, at all times relevant to this action, were the owners of a 46-foot motor yacht, named BRISTOL, No. 691105, having a home port of New York, New York.
8. In October, 1992, the Carringtons were taking the BRISTOL from her berth in Connecticut on a transportation cruise to Hilton Head, South Carolina, and on to Marathon Key, Florida. Accompanying them was their son, Christopher, age 23. Mrs. Carrington became ill on the first night of their voyage, somewhere near New Jersey, and she disembarked and returned home to Connecticut. Dr. Carrington and his son continued the voyage. In the early afternoon of October 19, due to an oncoming storm and resulting high seas, Dr. Carrington brought the BRISTOL into port at Belhaven, North Carolina, to plaintiff marina and boatyard, tied up, and took on fuel. The forecast at that time called for several days of inclement, rough weather.
9. Because Dr. Carrington had only a few days left to complete the first leg of the voyage to Hilton Head, he inquired of Marlen Robb, Jr. whether the BRISTOL could be left at the plaintiff marina and boatyard for a period of weeks, perhaps as long as two months, until the Carringtons could return and continue the journey. Marlen Robb, Jr., informed Dr. Carrington that the marina was a transient marina (that is, one that does not offer long-term docking, only overnight or several-night docking and repairs) and that it was the peak of the transient season.
10. Sometime later that day, Dr. Carrington asked Marlen Robb, Jr. what it would take to be able to leave the BRISTOL at the plaintiff marina and boatyard. Robb replied that if work was being done on the BRISTOL, the vessel could remain at the marina and boatyard for the three or four weeks requested. Robb offered the example of hull painting as such work.
11. On October 19, 1992, plaintiff marina and boatyard had in effect a schedule of rates for various types of labor, hauling and launching, mast work, and other specialty services. A copy of this written schedule was introduced as Plaintiffs Exhibit # 1. Also in effect on October 19, 1992, was a Wharfage Rates & Policy statement, a copy of which was introduced as PlaintifPs Exhibit #2. These rate sheets were posted somewhere at the plaintiff marina and boatyard, but plaintiff did not present them, give them, or explain them to Dr. Carrington on October 19 or 20, 1992, except to inform Dr. Carrington of the standard transient wharf-age rate of 75