MARMAC, LLC v. InterMoor, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

MARMAC, LLC, CIVIL ACTION

Plaintiff

VERSUS NO. 21-115

INTERMOOR, INC., ET AL., SECTION “E”

Defendants

ORDER AND REASONS

Before the Court is a Motion to Dismiss Plaintiff’s Claims, or in the Alternative,

Motion to Transfer filed by Defendant the Met Mast Tower, and its appurtenances, in rem

(the “Met Mast”).1 Also before the Court is Defendant US Wind Inc.’s (“US Wind”) Motion

to Dismiss Plaintiff’s Claims and Cross-Claimant’s Claims, or in the Alternative, Motion

to Transfer.2 Plaintiff MARMAC, LLC, d/b/a McDonough Marine Services, (“MARMAC”)

filed a consolidated opposition to both motions.3 Defendant/Cross-Claimant InterMoor,

Inc. (“InterMoor”) filed an opposition to US Wind’s motion.4 With leave of Court, the Met

Mast and US Wind filed a joint supplemental memorandum in support of their motions.5

MARMAC filed a supplemental opposition to both motions.6 The Met Mast and US Wind

filed a joint reply to MARMAC’s supplemental opposition.7 The Court heard oral

argument on both motions on September 28, 2021.8 The Court has considered the briefs,

the record, and the applicable law, and now issues its ruling.

1 R. Doc. 26.

2 R. Doc. 27.

3 R. Doc. 34.

4 R. Doc. 35.

5 R. Doc. 51.

6 R. Doc. 54.

7 R. Doc. 57.

8 R. Doc. 60.

BACKGROUND9

This case stems from the failed transportation of the Met Mast from Houma,

Louisiana, to waters off the coast of Ocean City, Maryland, and the failed installation of

the Met Mast at a wind farm there.10 This endeavor has resulted in several lawsuits in

different jurisdictions across the United States. In 2014, Defendant US Wind obtained

leases to the Maryland Wind Energy Area off the coast of Ocean City, Maryland (the “wind

farm”).11 US Wind commissioned the construction of a meteorological mast, the in rem

Defendant Met Mast, in Houma, Louisiana, which US Wind planned to use at the wind

farm to measure wind and other environmental conditions offshore.12 US Wind hired

Defendant/Cross-Claimant InterMoor to serve as the prime contractor for the

transportation of the Met Mast from Louisiana to the wind farm and its subsequent

installation.13 InterMoor, in turn, entered into a time charter with Plaintiff MARMAC for

use of the barge MARMAC 261 (the “Barge”) to transport the Met Mast to the wind farm.14

The charter between MARMAC and InterMoor consists of a Universal Blanket Time

Charter Agreement, dated February 7, 2012, and a Time Charter Order for this specific

voyage, dated July 31, 2019 (collectively, the “Barge Charter”).

By early September 2019, the Barge carrying the Met Mast reached the staging site

at the wind farm, but weather forced several delays of its installation.15 Ultimately, on

September 26, 2019, US Wind attempted to terminate its contract with InterMoor.16 That

same day, US Wind requested that InterMoor deposit the Met Mast at US Wind’s facility

9 The background facts are taken primarily from the allegations of the Plaintiff’s Complaint. R. Doc. 1.

10 Id. ¶¶ 10-12.

11 Id. ¶ 10.

12 Id. ¶¶ 8, 10-11.

13 Id. ¶ 12.

14 Id. ¶¶ 4, 12-14.

15 Id. ¶ 20; R. Doc. 15 at 12.

16 R. Doc. 1 ¶ 20.

in Baltimore, Maryland.17 US Wind also contacted MARMAC seeking to charter the Barge

to transport the Met Mast to the facility in Baltimore, but MARMAC responded that the

Barge was chartered to InterMoor and that US Wind should contact InterMoor about the

cargo.18 After failed negotiations, InterMoor directed the Barge to return to Louisiana

with the Met Mast still on board.19

While en route to Louisiana, the Barge docked in Morehead City, North Carolina,

to avoid inclement weather.20 On October 9, 2019, US Wind commenced a possessory

action under Rule D of the Supplemental Rules for Admiralty or Maritime Claims and

Asset Forfeiture Actions (the “Supplemental Rules”) in the United States District Court

for the Eastern District of North Carolina.21 On October 10, 2019, the North Carolina court

arrested the Met Mast while it was still on board the Barge, effectively arresting the

Barge.22 InterMoor intervened in the action to attach the Met Mast under Supplemental

Rule B as security for a breach of contract action against US Wind.23 On January 29, 2020,

the court approved a special bond by US Wind to secure the release of the Met Mast, and

ordered US Wind and InterMoor to split the custodia legis costs for the 111 days the Met

Mast was arrested and attached, including MARMAC’s daily charter.24 MARMAC alleges

InterMoor paid its portion of MARMAC’s charter for that period, but US Wind has only

paid half of its portion.25

17 R. Doc. 27-1 at 3; R. Doc. 27-13 at 1.

18 R. Doc. 27-1 at 3-4; R. Doc. 27-21 at 1.

19 R. Doc. 1 ¶ 21.

20 Id.

21 Id. ¶ 22; see also US Wind Inc. v. US Wind Met Mast Tower, No. 19-145 (E.D.N.C. Apr. 15, 2020).

22 R. Doc. 1 ¶ 23.

23 Id. ¶¶ 24, 26; see also US Wind Inc. v. US Wind Met Mast Tower, No. 19-145, 2019 WL 6770519 (E.D.N.C.

Dec. 11, 2019).

24 R. Doc. 1 ¶ 27; see also US Wind Inc. v. US Wind Met Mast Tower, No. 19-145, 2020 WL 476695 (E.D.N.C.

Jan. 29, 2020).

25 R. Doc. 1 ¶ 28.

In the meantime, on October 11, 2019, US Wind filed a separate breach of contract

action against InterMoor in the United States District Court for the District of Maryland.26

InterMoor filed a counterclaim against US Wind for breach of contract in that action.27

Once the Met Mast was released from arrest and attachment in North Carolina, the

Eastern District of North Carolina transferred its case, along with the special bond, to the

District of Maryland.28 The transferred case is stayed pending the resolution of the

original Maryland breach of contract suit filed by US Wind.29 InterMoor filed its own

breach of contract suit against US Wind in the United States District Court for the

Southern District of Texas on October 3, 2019.30 On January 23, 2020, the Texas court

dismissed InterMoor’s claims without prejudice for lack of personal jurisdiction over US

Wind.31 MARMAC is not a party to any of these three suits.32

After the Met Mast was released from arrest and attachment in North Carolina,

InterMoor attempted to terminate the Barge Charter with MARMAC and ceased charter

payments; however, MARMAC alleges charter continued to be due until the Barge was

26 Id. ¶ 25; see also US Wind Inc. v. InterMoor, Inc., No. 19-2984 (D. Md. Sept. 20, 2021). On February 16,

2021, in its second amended complaint US Wind also added American Global Maritime, Inc., a surveyor

which was involved in the Met Mast’s failed installation, as a defendant in the Maryland action.

27 R. Doc. 27 at 6.

28 R. Doc. 1 ¶ 25; see also US Wind Inc. v. US Wind Met Mast Tower, No. 19-145 (E.D.N.C. Apr. 15, 2020).

The court also declined to allow MARMAC to intervene.

29 US Wind Inc. v. US Wind Met Mast Tower, No. 20-975 (D. Md. May 12, 2020).

30 R. Doc. 27-1 at 1; see also InterMoor Inc. v. US Wind, Inc., No. 19-3823 (S.D. Tex. Feb. 6, 2020).

31 R. Doc. 27-1 at 1; see also InterMoor Inc. v. US Wind, Inc., 435 F. Supp. 3d 754 (S.D. Tex. 2020).

32 There have been several other actions related to the incident underlying this case. US Wind filed a

complaint in the United States District Court for the District of Delaware seeking the arrest of a vessel used

to carry equipment necessary for the installation of the Met Mast as well as against the vessel owner and

InterMoor in personam. U.S Wind, Inc. v. Great White, No.19-1873 (D. Del. Oct. 16, 2019). US Wind

voluntarily dismissed its complaint. Id. US Wind also filed a complaint seeking replevin, interim injunctive

relief, and a temporary restraining order in the Delaware Court of Chancery. US Wind, Inc. v. All Coast,

LLC, No. 2019-0796 (Del. Ch. Oct. 3, 2019). That case is now closed. Id. InterMoor filed a complaint to

establish and enforce a state-law mechanic’s lien against US Wind in the Circuit Court for Worchester

County, Maryland. This complaint was denied for lack of jurisdiction, as the events at issue occurred in the

Atlantic Ocean outside of the seaward boundaries of Maryland. Intermoor, Inc. v. US Wind, Inc., No. C-23-

CV-20-000097 (Md. Cir. Ct. Worchester Cnty. Sept. 16, 2020), aff’d, No. 0867, 2021 WL 4130752 (Md. Ct.

Spec. App. Sept. 10, 2021). The Maryland Circuit Court’s opinion is reproduced in this case’s record at R.

Doc. 26-8. MARMAC was not a party to any of these actions.

properly redelivered to MARMAC in Louisiana free of the Met Mast.33 MARMAC alleges

US Wind refused to remove the Met Mast in North Carolina or arrange for towage of the

Barge so the Met Mast could be removed elsewhere.34 Because of InterMoor’s and US

Wind’s inaction, MARMAC alleges it hired a tug to return its Barge to Louisiana, still

laden with the Met Mast.35 Once the Barge returned to Louisiana, MARMAC paid to have

the Met Mast unloaded and stored onshore.36 MARMAC finally received the Barge free of

the Met Mast on August 13, 2020.37

MARMAC filed this suit on January 20, 2021. MARMAC sues InterMoor in

personam for breach of contract seeking unpaid charter from January 30, 2020, the day

after InterMoor paid its portion of the North Carolina custodia legis and ceased

payments, to August 13, 2020, the day MARMAC received the Barge free of the Met

Mast.38 MARMAC sues the Met Mast in rem to enforce its maritime lien for maritime

trespass, alleging US Wind failed to retake possession of the Met Mast, depriving

MARMAC of the Barge’s services while the Met Mast was on board.39 This Court arrested

the Met Mast under Supplemental Rule C on January 21, 2021,40 and US Wind filed a

statement of interest on February 9, 2021, to defend and seek restitution of its property.41

Finally, MARMAC sues US Wind quasi in rem for maritime trespass for failing to remove

the Met Mast from the Barge and for unjust enrichment for forcing MARMAC to pay for

the Met Mast’s storage until it was removed.42 MARMAC also seeks the unpaid custodia

33 R. Doc. 1 ¶¶ 31-35.

34 Id. ¶¶ 32, 36.

35 Id. ¶¶ 36, 39. InterMoor reimbursed MARMAC for the third-party towage costs. Id. ¶ 39.

36 Id. ¶¶ 40-41.

37 Id. ¶¶ 34

38 Id. ¶¶ 46-55.

39 Id. ¶¶ 56-62, 74-76.

40 R. Doc. 6.

41 R. Doc. 11.

42 Id. ¶¶ 56-73.

legis expenses the Eastern District of North Carolina charged to US Wind.43 This Court

attached the Met Mast under Supplemental Rule B on January 21, 2021,44 and approved

a special bond of $1,000,000, on June 21, 2021, releasing the Met Mast from arrest and

attachment.45 The Met Mast remains in storage, at MARMAC’s expense.

InterMoor filed a crossclaim against US Wind for breach of contract.46 InterMoor’s

crossclaim is identical to its counterclaim in the active Maryland case. The Met Mast has

filed a motion to dismiss for lack of personal jurisdiction under Federal Rule of Civil

Procedure 12(b)(2), improper venue under Rule 12(b)(3), and failure to state a claim

under Rule 12(b)(6).47 Alternatively, the Met Mast asks the Court to transfer this case to

the District of Maryland.48 US Wind has filed a motion to dismiss MARMAC’s claims

against it and InterMoor’s crossclaim against it for lack of personal jurisdiction under

Rule 12(b)(2) and improper venue under Rule 12(b)(3).49 Alternatively, US Wind asks the

Court to transfer this case to the District of Maryland.50

LEGAL STANDARD

I. Rule 12(b)(2) Motion to Dismiss for Lack of In Rem and Quasi In Rem

Jurisdiction

The Met Mast and US Wind object to the Court’s exercise of in rem and quasi in

rem jurisdiction over them, respectively.51 The Met Mast argues the exercise of in rem

jurisdiction is improper under the due process clause because it never availed itself of the

benefits of this forum; rather, InterMoor and MARMAC took the Met mast to Louisiana

43 Id. ¶¶ 73.

44 R. Doc. 5.

45 R. Doc. 48.

46 R. Doc. 15.

47 R. Doc. 26.

48 Id.

49 R. Doc. 27.

50 Id.

51 InterMoor admits it is subject to the jurisdiction of this Court. R. Doc. 15 ¶ 5.

against US Wind’s instructions to deposit it in Baltimore. The Met Mast also argues the

posting of the special bond in the Eastern District of North Carolina bars MARMAC’s

claims in this Court. Similarly, US Wind argues the exercise of quasi in rem jurisdiction

is improper under the due process clause because it never availed itself of the benefits of

this forum since the Met Mast was taken to Louisiana contrary to its instructions.

A person claiming an interest in property arrested or attached usually challenges

the validity of the arrest or attachment though a motion to vacate under Supplemental

Admiralty Rule E(4)(f).52 Nevertheless, parties may assert similar attacks on arrest and

attachment under Rule 12.53 While there are differences between Rule 12 motions to

dismiss and Supplemental Rule E(4)(f) motions to vacate, a Rule 12(b)(2) motion

contesting the court’s exercise of jurisdiction has “similar force” to a Rule E(4)(f) motion,

and courts have generally analyzed the validity of arrest and attachment procedures the

same way under either motion.54 Under this standard, the plaintiff has the burden of

showing why an arrest or attachment should not be vacated.55

In this case, MARMAC asserts in rem jurisdiction over the Met Mast through arrest

under Supplemental Rule C and quasi in rem jurisdiction over US Wind through

attachment under Supplemental Rule B. The Fifth Circuit has explained the different

scopes of Supplemental Rules B and C:

The Supplemental Rules appended to the Federal Rules of Civil Procedure

allow a maritime plaintiff to secure his claim. Supplemental Rule B provides

for attachment. Supplemental Rule C provides for arrest. Attachment and

arrest are not the same, and they should not be confused. Supplemental

52 Fed. R. Civ. Pro. Supp. R. for Admiralty or Mar. Claims & Asset Forfeiture Actions E(4)(f) (“Whenever

property is arrested or attached, any person claiming an interest in it shall be entitled to a prompt hearing

at which the plaintiff shall be required to show why the arrest or attachment should not be vacated or other

relief granted consistent with these rules.”); see also Arctic Ocean Int’l, Ltd. v. High Seas Shipping Ltd.,

622 F. Supp. 2d 46, 50, (S.D.N.Y. 2009).

53 See Arctic Ocean Int’l, 622 F. Supp. 2d at 50.

54 See id. at 50-52.

55 See id.; cf. World Fuel Servs. Sing. PTE, Ltd. v. M/V As Varesia, 727 F. App’x 811, 814 (5th Cir. 2018).

Rule E provides procedural rules for both attachment and arrest, though,

and attachment and arrest are similar in several ways.

Rule B is an adjunct to a claim in personam. When the defendant cannot

“be found within the district,” the plaintiff may “attach the defendant's

goods and chattels.” Thus, the plaintiff's claim is against the person, not the

thing, but if the person cannot be found in the district, the plaintiff is

protected by the ability to proceed against the thing. Such a proceeding is

an action quasi in rem. In contrast, Supplemental Rule C is a true

proceeding in rem. The claim is against the thing itself.56

II. Rule 12(b)(6) Motion to Dismiss for Failure to State a Claim

The Met Mast argues MARMAC has failed to allege a valid maritime lien against it

sufficient to warrant arrest under Supplemental Rule C. The Met Mast argues MARMAC

cannot sustain a carrier’s lien against it. The general rule is that a vessel owner has a

carrier’s lien over cargo carried on its vessels for unpaid freight, but when the vessel is

under charter this lien extends only to cargo owned by the charterer, not third parties like

US Wind. The Met Mast argues the exception to the general rule applies in this case.

As explained, a person claiming an interest in property arrested or attached

typically challenges the validity of the arrest or attachment though a motion to vacate

under Supplemental Rule E(4)(f).57 When a 12(b)(6) motion to dismiss is brought instead,

the standards are different than those under a Supplemental Rule E(4)(f) motion to

vacate.58 While a Rule 12(b)(6) motion confines the court to the pleadings in considering

the motion, a Supplemental Rule E(4)(f) motion permits the court to consider evidentiary

submissions, hold a hearing if requested, and requires the plaintiff to meet a higher

56 Sembawang Shipyard, Ltd. v. Charger, Inc., 955 F.2d 983, 986-87 (5th Cir. 1992).

57 Fed. R. Civ. Pro. Supp. R. for Admiralty or Mar. Claims & Asset Forfeiture Actions E(4)(f); see also Arctic

Ocean Int’l, 622 F. Supp. 2d at 50.

58 See, e.g., FIMBANK PLC v. Discover Inv. Corp., No. 2:19-CV-00264, 2020 WL 3519159, at *3-4 (S.D.

Tex. May 21, 2020); White Rosebay Shipping S.A. v. HNA Grp. Co., No. 2:12–CV–00096, 2013 WL 441014,

at *3 (S.D. Tex. Feb. 5, 2013); Vitol, S.A. v. Capri Marine, Ltd., No. MJG–09–3430, 2011 WL 5577618, at

*2 (D. Md. Aug. 22, 2011); Arctic Ocean Int’l, 622 F. Supp. 2d at 50; Tide Line, Inc. v. Eastrade

Commodities, Inc., No. 06 CV 1979, 2006 WL 4459297, at *7 (S.D.N.Y. Aug. 15, 2006).

standard to maintain its arrest or attachment.59 However, because the Met Mast has filed

a Rule 12(b)(6) motion to dismiss, the Court follows Rule 12(b)(6) standards.

Pursuant to Rule 12(b)(6), a district court may dismiss a complaint, or any part of

it, for failure to state a claim upon which relief may be granted if the plaintiff has not set

forth factual allegations in support of his claim that would entitle him to relief.60 “To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’”61 “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”62 The court,

however, does not accept as true legal conclusions or mere conclusory statements, and

“conclusory allegations or legal conclusions masquerading as factual conclusions will not

suffice to prevent a motion to dismiss.”63 “[T]hreadbare recitals of elements of a cause of

action, supported by mere conclusory statements” or “naked assertion[s] devoid of

further factual enhancement” are not sufficient.64

In summary, “[f]actual allegations must be enough to raise a right to relief above

the speculative level.”65 “[W]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged—but it has not

59 FIMBANK PLC, 2020 WL 3519159, at *4.

60 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.

2007).

61 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

62 Id.

63 S. Christian Leadership Conf. v. Sup. Ct. of the State of La., 252 F.3d 781, 786 (5th Cir. 2001) (citing

Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).

64 Iqbal, 556 U.S. at 663, 678 (citations omitted).

65 Twombly, 550 U.S. at 555.

show[n]’—that the pleader is entitled to relief.”66 “Dismissal is appropriate when the

complaint ‘on its face show[s] a bar to relief.’”67

III. Rule 12(b)(3) Motion to Dismiss for Improper Venue

The Met Mast and US Wind argue the Eastern District of Louisiana is an improper

venue for this case. They argue US Wind is not a resident of Louisiana, and a substantial

part of the events that gave rise to this action did not occur in Louisiana. Additionally, the

Met Mast and US Wind argue venue cannot be based on the Met Mast’s location in this

District because it is only here as a result of MARMAC and InterMoor ignoring US Wind’s

instructions to deposit the Met Mast in Baltimore.

To determine whether venue is improper under Rule 12(b)(3), the Court may

consider, “(1) the complaint alone; (2) the complaint supplemented by undisputed facts

evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the

court’s resolution of disputed facts.”68 Venue is ordinarily governed by the general venue

provisions of 28 U.S.C. § 1391, “except as otherwise provided by law.”69 The general venue

provisions of § 1391 state:

A civil action may be brought in--

(1) a judicial district in which any defendant resides, if all defendants are

residents of the State in which the district is located;

(2) a judicial district in which a substantial part of the events or omissions

giving rise to the claim occurred, or a substantial part of property that is the

subject of the action is situated; or

(3) if there is no district in which an action may otherwise be brought as

provided in this section, any judicial district in which any defendant is

subject to the court's personal jurisdiction with respect to such action.70

66 Id. (quoting Fed. R. Civ. P. 8(a)(2)).

67 Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (quotations omitted).

68 Dunn v. JPMorgan Chase Bank, N.A., No. 20-483, 2020 WL 1984328, at *1 (E.D. La. Apr. 27, 2020)

(quoting Ballew v. Continental Airlines, Inc., 668 F.3d 777, 781 (5th Cir. 2012)).

69 28 U.S.C. § 1391(a).

70 Id. § 1391(b).

LAW AND ANALYSIS

I. In Rem Claims Against the Met Mast

A. The Court Has In Rem Jurisdiction Over the Met Mast through

Supplemental Rule C Arrest.

MARMAC asserts in rem jurisdiction over the Met Mast through Supplemental

Rule C arrest.71 The Met Mast argues the exercise of in rem jurisdiction over it is improper

because the Met Mast was taken to Louisiana contrary to US Wind’s instructions to

deposit the Met Mast in Baltimore, and the unilateral activity of third parties in bringing

the Met Mast to Louisiana, without any purposeful availment of the benefits of the forum

by the Met Mast, is insufficient to establish in rem jurisdiction.72 The Met Mast also

argues the bond posted in the Eastern District of North Carolina and subsequently

transferred to the District of Maryland stands as security for all claims against the Met

Mast arising out of the same set of facts.73

MARMAC responds that purposeful availment of the benefits of the forum is not

required in an arrest action under Supplemental Rule C, and, further, US Wind actually

consented to the transportation of the Met Mast to Louisiana in the litigation in the

Eastern District of North Carolina.74 MARMAC also argues the bond posted in North

Carolina was a special bond that provides security only for claims by InterMoor, and the

special bond does not bar MARMAC’s claims in this Court since MARMAC is otherwise

unsecured.75

71 See R. Doc. 1 at 1.

72 R. Doc. 26-1 at 10-12.

73 Id. at 12.

74 R. Doc. 34 at 3-6.

75 Id. at 6-7. MARMAC also argues that the Met Mast and US Wind have waived any objections to the

exercise of jurisdiction over them when US Wind filed an unrestricted statement of interest in this case. Id.

at 7-8; see Cactus Pipe & Supply Co. v. M/V MONTMARTRE, 756 F.2d 1103, 1107-11 (5th Cir. 1985);

Sembawang Shipyard, Ltd. v. Charger, Inc., 955 F.2d 983, 989-90 (5th Cir. 1992). Because the Court has

1. Minimum Contacts Are Not Required for Exercise of In

Rem Jurisdiction Pursuant to Arrest Under Supplemental

Rule C.

In support of its argument that the Court does not have in rem jurisdiction over it,

the Met Mast argues it has not availed itself of the benefits of this forum. The Met Mast

cites only cases outside the admiralty context.76 In particular, the Met Mast notes that the

United States Supreme Court held in Shaffer v. Heitner that state-court assertions of in

rem and quasi in rem jurisdiction must comport with the requirement of minimum

contacts under International Shoe and its progeny.77 However, courts have repeatedly

held that “Shaffer . . . results in no change in the admiralty context.”78 In the admiralty in

rem context, the Fifth Circuit has explained that the purposeful contacts of the defendant

maritime property and its owner with the forum are irrelevant because the defendant is

the property itself and its presence in the district confers jurisdiction:

[J]urisdiction is asserted over [maritime property] under the same

circumstances that jurisdiction could be asserted over an individual. . . .

[Accordingly,] foreign [maritime property] may be sued even though it

would not satisfy the “minimum contacts” tests developed out of

International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed.

95 (1945). The theory of the [maritime property]'s own liability is sufficient

to confer in rem jurisdiction without regard to the contacts its owner may

have with the district. It is clear that the due process questions in admiralty

are significantly different than in attachment proceedings commenced in

state courts.79

Accordingly, whether US Wind instructed MARMAC and InterMoor to deposit the

found objections by the Met Mast and US Wind to be without merit, the Court need not address the issue

of waiver.

76 See, e.g., J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873 (2011); Shaffer v. Heitner, 433 U.S. 186

(1977); Monkton Ins. Servs., Ltd. v. Ritter, 768 F.3d 429 (5th Cir. 2014); McFadin v. Gerber, 587 F.3d 753

(5th Cir. 2009).

77 433 U.S. 186, 209 (1977).

78 Merchs. Nat’l Bank of Mobile v. Dredge Gen. G. L. Gillespie, 663 F.2d 1338, 1350 n.18 (5th Cir. 1981); see

also Trans-Asiatic Oil Ltd. S.A. v. Apex Coil Co., 743 F.2d 956, 963 (1st Cir. 1984); Day v. Temple Drilling

Co., 613 F. Supp. 194, 197 (S.D. Miss. 1985); A/S/ HJALMAR BJORGES REDERI v. Tug Boat Condor, No.

79-131-E., 1979 WL 6504688 (S.D. Cal. Mar. 28, 1979). See generally Angela M. Bohmann, Applicability of

Shafer to Admiralty in Rem Jurisdiction, 53 Tul. L. Rev. 135 (1978).

79 Id.

Met Mast in Baltimore and whether the Met Mast availed itself of the benefits of this

forum are irrelevant; proper arrest under Supplemental Rule C is all that is required to

exercise in rem jurisdiction over the Met Mast. “A prerequisite of in rem jurisdiction is

that the property (the res) to be arrested must be present in the district when the suit is

filed or during the pendency of the action.”80 In this case, the Met Mast was present in

this District, and the Court issued a warrant of arrest for the Met Mast following the

procedures of Supplemental Rule C.81 As the procedures outlined in Supplemental Rule

C have been followed, the Court properly has in rem jurisdiction over the Met Mast.

2. The Special Bond in the Eastern District of North Carolina

Does Not Bar MARMAC’s Claims in This Court.

The Met Mast’s argument regarding the special bond posted in the Eastern District

of North Carolina also is without merit. The North Carolina special bond states in relevant

part:

NOW, THEREFORE, the value of the Stipulation or Bond for release of the

MET Mast Tower on account of any claim or judgment for alleged damage

to INTERMOOR in connection with a suit you have or may file, has been

fixed by stipulation of the parties at the sum of $3,500,000, until and unless

a Court shall determine otherwise, and the undersigned be shall be held

firmly bound to INTERMOOR in the amount of $3,500,000 as security for

the performance of this obligation, and that the undersigned further

consenting that, if INTERMOOR recovers against the MET Mast Tower, an

Order may be entered against the undersigned for an amount not exceeding

$3,500,000, which, upon execution, may issue against the undersigned's

goods, chattels, lands, and other property and against the above security.82

The Eastern District of North Carolina approved the special bond under Supplemental

80 2 Thomas J. Schoenbaum, Admiralty and Maritime Law § 21:4 (6th ed.), Westlaw (database updated

Nov. 2020); see also Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d

330, 333 (5th Cir. 1978) (“In rem actions in admiralty generally require, as a prerequisite to a court's

jurisdiction, the presence of the vessel or other res within the territorial confines of the court.”); Smith v.

W. Offshore, Inc., 590 F. Supp. 670, 674 (E.D. La. 1984) (“A proceeding in rem is against the vessel itself,

and can only be commenced in the judicial district in which the vessel is, or is soon expected to be, found.”).

81 R. Doc. 6.

82 R. Doc. 26-27 at 7.

Rule E(5)(a).83 “Unlike a ‘general bond,’ which requires court approval and is ‘conditioned

to answer the judgment of [the] court in all or any actions that may be brought,’ a special

bond is claim-specific; that is, it does not provide security for other claims against the

[maritime property].”84 By its own terms, the special bond applies only to “any claim or

judgment for alleged damages to INTERMOOR.” A special bond cannot provide security

for “a separate claim, asserted by a separate party, for separate damages,” even when that

claim “turns on the same facts and involves the same issues” as the one covered by the

special bond.85 Because the special bond posted in the Eastern District of North Carolina

did not provide security to MARMAC, its existence cannot bar MARMAC from arresting

the Met Mast in Louisiana. For these reasons, the Court finds it has in rem jurisdiction

over the Met Mast.

B. Because MARMAC Has No Maritime Lien Against the Met Mast,

MARMAC Has Not Stated a Cause of Action Against the Met Mast.

Supplemental Rule C provides an action in rem may be brought to enforce a

maritime lien.86 While, “[i]t is true that there can be no decree in rem against the vessel

except for the enforcement of a lien given by the maritime law, or by a state law,” the

Supreme Court has explained, “if the existence of such a lien were a question of

jurisdiction, then nearly every question arising upon the merits could be made one of

jurisdiction.”87 “[T]he question of lien or no lien is not one of jurisdiction, but of merits.”88

The Met Mast argues, even if the Court has in rem jurisdiction over it, MARMAC’s claim

83 US Wind Inc., 2020 WL 476695, at *1.

84 El Paso Prod. GOM, Inc. v. Smith, 406 F. Supp. 2d 671, 674-75 (E.D. La. 2005) (alteration in original)

(footnote omitted) (citation omitted) (quoting Fed. R. Civ. Pro. Supp. R. for Admiralty or Mar. Claims &

Asset Forfeiture Actions E(5)(b)).

85 See Overstreet v. Water Vessel Norkong, 706 F.2d 641, 643 (5th Cir. 1983).

86 Fed. R. Civ. Pro. Supp. R. for Admiralty or Mar. Claims & Asset Forfeiture Actions C(1)(a).

87 The Resolute, 168 U.S. 437, 440 (1897); see also Logistics Mgmt., Inc. v. One (1) Pyramid Tent Arena,

86 F.3d 908, 912 (9th Cir. 1996).

88 The Resolute, 168 U.S. at 440.

should be dismissed because MARMAC has failed to allege a valid maritime lien for

maritime trespass against the Met Mast.

“A maritime lien gives to its holder a property right in [maritime property], and

the proceeding in rem is simply a means of enforcing the property right.”89 As “the

maritime lienor has an interest in the [maritime property], and the arrest of the [maritime

property] is to enforce that interest, the maritime lien,” a valid lien generally is required

to maintain an in rem action against maritime property under Supplemental Rule C.90

Maritime liens can arise in several ways, including by operation of the general maritime

law, for example, as the result of a tort; by special statute; or by contract.91 “The Federal

Courts have a great responsibility to speak consistently in maritime controversies because

of their recognized national and international significance. They must take care not to

fashion rules and exceptions for particular circumstances without assessing their impact

in other situations.”92 Accordingly, courts must construe maritime liens strictly and be

cautious in expanding the body of recognized liens.93

1. The General Maritime Law Does Not Provide MARMAC an

Automatic Tort Lien Against the Met Mast.

MARMAC alleges it holds a “maritime tort lien” over the Met Mast for maritime

trespass for the Met Mast’s continued presence on the Barge, despite MARMAC’s

89 Merchs. Nat’l Bank, 663 F.2d at 1346.

90 Id.; see also Belcher Co. of Ala., Inc. v. M/V Maratha Mariner, 724 F.2d 1161, 1163 (5th Cir. 1984) (“[A]

maritime lien on the vessel is a prerequisite to an action in rem.”); Fed. R. Civ. Pro. Supp. R. for Admiralty

or Mar. Claims & Asset Forfeiture Actions C (“An action in rem may be brought: (a) to enforce a maritime

lien . . . .”).

91 See, e.g., Merchs. Nat’l Bank, 663 F.2d at 1346; Lykes Lines Ltd. v. M/V BBC Sealand, 398 F.3d 319, 323

(5th Cir. 2005). See generally 1 Schoenbaum, supra note 80, § 9:1

92 Merchs. Nat’l Bank, 663 F.2d at 1347.

93 See, e.g., Osaka Shosen Kaisha v. Pac. Exp. Lumber Co., 260 U.S. 490 (1923) (“The maritime privilege

or lien, though adhering to the vessel, is a secret one which may operate to the prejudice of general creditors

and purchasers without notice and is therefore stricti juris and cannot be extended by construction, analogy

or inference.”); 1 Schoenbaum, supra note 80, § 9:1 (“In fact, courts will not readily expand the body of

recognized liens, most of which are well established by long practice.”).

demands for US Wind to remove it, depriving MARMAC of the possession and use of the

Barge.94

A maritime lien generally “arises by operation of law from a tort.”95 The Fifth

Circuit recognizes the tort of maritime trespass.96 However, the cases recognizing a

maritime lien arising from tort “rely primarily on the legal fiction that a vessel,

personified, is itself the defendant in a proceeding in rem to enforce a lien.”97 In Barnett

Marine, Inc. v. Cargo of Crane Equipment & Machinery, this Court held no maritime lien

arose for the alleged trespass of crane components on a barge after the charterer failed to

make charter payments.98 The Court reasoned maritime tort liens “rely primarily on the

legal fiction that a vessel, personified, is itself the defendant . . . [h]owever, there is no

authority which supports the extension of the personification of the vessel rationale to

include other inanimate objects such as cargo.”99 That rationale applies to this case as

well. The res, the Met Mast, is not a personified vessel but an inanimate object to which

courts—and maritime history—have not extended this fiction of personification.100

Accordingly, a maritime tort lien does not arise by operation of law from the Met Mast’s

alleged trespass on the Barge.

94 R. Doc. 1 ¶¶ 56-62, 75.

95 Merchs. Nat’l Bank, 663 F.2d at 1346.

96 96 Marastro Compania Naviera, S.A. v. Candian Mar. Carriers, Ltd., 959 F.2d 49, 53 (5th Cir. 1992).

97 Barnett Marine, Inc. v. Cargo of Crane Equip. & Mach., No. 96-2494, 1998 WL 336701, at *4 (E.D. La.

June 19, 1998) (emphasis added).

98 Id. at *1, 4.

99 Id. at *4; see also Seema Shipping, LLC v. One or More Accounts of Lans Logistics, LLC, No. 3:15-cv-

1095-J-39MCR, 2015 WL 13793318, at *5 & n.9 (M.D. Fla. Oct. 29, 2015) (citations omitted) (“It is likewise

doubtful under the facts presented whether Plaintiffs can adequately allege admiralty jurisdiction and a

maritime lien against the freight by presenting one of their other alleged tort claims as a maritime tort. . . .

It is also questionable whether admiralty jurisdiction can exist to support an in rem arrest of money in this

matter. The cases cited by Plaintiffs for support of the arrest of freight involve contracts providing a plaintiff

with an express lien on either cargo or freight for unpaid freight. . . . Assuming, however, that Plaintiffs have

alleged an arrest of unpaid freight, Plaintiffs have not alleged they were a party to a contract providing for

an express lien on such freight.”).

100 Cf. Merchs. Nat’l Bank, 663 F.2d at 1345 (emphasis added) (“The maritime lien has at its basis, to a

substantial extent, the historical and theoretical concept of personification: a vessel is liable, as such, for

torts and contracts even though the owner may or may not be.”).

2. The General Maritime Law Does Not Provide MARMAC a

Carrier’s Lien over the Third-Party Cargo—the Met Mast—

and MARMAC has not Extended Its Carrier’s Lien by

Contract.

MARMAC also alleges it has a “maritime carrier’s lien” over the Met Mast for the

unpaid freight due for transporting and storing the Met Mast on the Barge.101 The Met

Mast argues that, when the vessel is chartered, a lien by the vessel owner extends only to

cargo owned by the charterer.102 While a contractual provision between the vessel and the

charterer plus actual notice to a third-party cargo owner may extend the lien to a third

party’s cargo, the Met Mast argues, there is no such provision in the Barge Charter.103

Moreover, the Met Mast argues it could not have trespassed on the Barge because it was

present pursuant to the Barge Charter between MARMAC and InterMoor.104 Finally, the

Met Mast argues it should not be liable for transportation back to Louisiana when US

Wind directed InterMoor and MARMAC to deposit the Met Mast in Baltimore.105

In response, MARMAC argues the requirement for a contractual provision

extending the carrier lien to third-party cargo and actual notice of such provision is not

required because the Met Mast was not on board the Barge pursuant to a charter; rather,

the Met Mast was aboard because US Wind refused to remove it from the Barge in North

Carolina.106 MARMAC argues these facts support a prima facie case of maritime

trespass.107 MARMAC requests the Court grant it leave to amend its complaint if the Court

dismisses its in rem claim against the Met Mast.108

101 R. Doc. 1 ¶ 76.

102 R. Doc. 26-1 at 13-14.

103 Id.

104 Id. at 14.

105 Id.

106 R. Doc. 34 at 12-14.

107 Id. at 14.

108 Id.

“[M]aritime law recognizes a lien arising as a matter of law in favor of the vessel

owner against the cargo for charges including unpaid freight.”109 As an exception to this

general rule, however, “when cargo is shipped under a charter, this lien only extends to

cargo that is owned by the charterer.”110 MARMAC asserts it holds a lien over the Met

Mast—cargo owed not by the charterer InterMoor but by a third party US Wind—for the

cost of transporting the Met Mast from North Carolina to Louisiana. MARMAC argues

this transportation was not pursuant to the Barge Charter between MARMAC and

InterMoor because US Wind refused to unload the Met Mast in North Carolina.

In GIC Services, L.L.C. v. Freightplus USA, Inc., the Fifth Circuit elaborated on

what it means for cargo to be “shipped under a charter” such that the exception to the

carrier’s lien applies:

A “charter” is a maritime term for the contract arising between the

shipowner and the party leasing the ship to transport cargo. But not all

contracts for maritime transportation are charters. A charter “is a

specialized form of contract for the hire of an entire ship.” These are

contracts securing “private carriage,” as distinct from carriage by a

“common carrier” who “is available to carry cargo for all who agree to pay

its charges.”111

The Fifth Circuit held the cargo in that case, which was shipped under an agreement that

“did not ‘hire [the] entire ship’ or otherwise secure private carriage,” was not a charter,

and the exception to the carrier’s lien did not apply.112

In this case, the exception to the carrier’s lien applies. US Wind contracted with

InterMoor to transport the Met Mast from Louisiana to the wind farm. InterMoor, in turn,

entered into the Barge Charter with MARMAC. The Barge Charter is labelled a “Time

109 Lykes Lines, 398 F.3d at 323.

110 Id. (emphasis added).

111 866 F.3d 649, 669-70 (5th Cir. 2017).

112 Id. at 670 (alteration in original).

Charter” and contemplates the use of the entire Barge.113 The Met Mast was originally

loaded onto the Barge pursuant to the Barge Charter. In addition, MARMAC alleges the

Barge Charter was still in full effect at the time of the return voyage, accruing charter hire

until the Barge was properly redelivered to MARMAC free of the Met Mast on August 13,

2020. The Barge Charter itself does not require the Met Mast and other cargo to be

unloaded before the Barge’s return to Louisiana—whether at the wind farm, North

Carolina, or elsewhere—the Barge Charter simply requires the Barge to eventually be

redelivered without cargo aboard in the same condition as at the start of the charter,

normal wear and tear excepted. Accordingly, even though US Wind refused to unload the

Met Mast in North Carolina, the Court finds the Met Mast was onboard the Barge

pursuant to a charter, namely the Barge Charter.

A vessel owner and charterer may extend the vessel owner’s carrier’s lien to cargo

owned by third parties by contract; however, “[t]o be enforceable against a third party

cargo owner . . . who is not a party to the charter party agreement, the vessel owner's lien

must be perfected” by “giv[ing] actual notice of the lien provision in the charter party to

the cargo owner before the cargo owner pays its freight to the bill of lading issuer.”114

MARMAC does not allege there is a provision in the Barge Charter extending its carrier’s

lien to third-party cargo, and MARMAC does not allege it gave US Wind actual notice of

any such provision. Accordingly, the Court finds the exception to the carrier’s lien applies,

and MARMAC does not have a carrier’s lien over the Met Mast.

113 R. Docs. 1-4, 1-5; see also 2 Schoenbaum, supra note 80, § 11:5 (“The time charter party is a contract of

affreightment to use a ship in order to ship goods for a specific period of time. The carrier makes the ship's

capacity available to the time charterer for this purpose. The charterer bears the expenses connected with

each voyage and pays hire to the carrier based upon the time the ship is under charter.”).

114 Lykes Lines, 398 F.3d at 323.

Because MARMAC has not alleged a valid maritime lien against the Met Mast,

MARMAC has failed to state a cause of action against the Met Mast in rem, and

MARMAC’s claim must be dismissed.115 MARMAC requests the Court grant it leave to

amend its complaint if the Court dismisses any of its claims.116 Federal Rule of Civil

Procedure 15(a) provides the Court should grant leave to amend freely when justice so

requires.117 Leave to amend is not “automatic,” but the Court must possess a “substantial

reason” to deny leave to amend.118 A court possesses a “substantial reason” when, for

instance, a plaintiff has acted with “undue delay, bad faith or dilatory motive” in seeking

leave to amend, the plaintiff has made “repeated failures to cure deficiencies by

amendments previously allowed,” “undue prejudice [will result] to the opposing party by

virtue of allowance of the amendment,” or the amendment would be completely futile.119

The Court finds any amendment in this case would be futile. There is no dispute that US

Wind owns the Met Mast.120 The only argument MARMAC could make in an amended

complaint for the existence of a carrier’s lien over the Met Mast is that the Barge Charter

extended MARMAC’s carrier’s lien to third-party cargo. MARMAC attached the Barge

Charter as an exhibit to its Complaint.121 There is no provision in the Barge Charter that

extends MARMAC’s carrier’s lien to cargo owned by third parties. MARMAC cannot allege

a maritime lien against the Met Mast under the undisputed facts of this case. Accordingly,

the Court denies MARMAC’s request for leave to amend.

115 In finding no maritime lien against the Met Mast, the Court in no way passes judgment on MARMAC’s

claims against US Wind quasi in rem.

116 R. Doc. 34 at 14.

117 Fed. R. Civ. P. 15(a).

118 Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 994 (5th Cir.2005)

119 Id.

120 See R. Doc. 1 ¶ 2 (referring to the Met Mat as US Wind’s property).

121 R. Doc. 1-4; R. Doc. 1-5.

II. Supplemental Rule B Quasi In Rem Jurisdiction Over US Wind

A. General and Specific Jurisdiction Are Not at Issue in This Case.

First, US Wind argues this Court has no general jurisdiction over it because it is

incorporated in Massachusetts, has its principal place of business in Maryland, and does

no business in Louisiana.122 Second, US Wind argues there is no specific jurisdiction over

it because it lacks minimum contacts with Louisiana, as US Wind is incorporated in

Massachusetts, has its principal place of business in Maryland, did not have a direct

contractual relationship with a Louisiana business, and its contract with InterMoor did

not require the return of the Met Mast to Louisiana.123 US Wind further argues the cause

of action does not arise out of US Wind’s contacts with Louisiana because US Wind’s

contract was with InterMoor, which is not a Louisiana corporation, and the Met Mast was

taken to Louisiana contrary to US Wind’s instructions to deposit it in Baltimore.124

Moreover, US Wind argues the exercise of specific jurisdiction over US Wind would be

unfair and unreasonable because of its lack of contacts with Louisiana and because a

related action is already pending in Maryland.125 In response, MARMAC and InterMoor

each explain MARMAC asserts jurisdiction over US Wind not through general or specific

jurisdiction, but quasi in rem jurisdiction through Supplemental Rule B attachment.126

US Wind’s arguments concerning general and specific jurisdiction are irrelevant

as MARMAC only alleges quasi in rem jurisdiction over US Wind through Supplemental

Rule B attachment.

122 R. Doc. 27-1 at 11-13.

123 Id. at 14-15.

124 Id. at 15.

125 Id. at 15-17.

126 R. Doc. 34 at 2; see R. Doc. 33 at 5.

B. Minimum Contacts Are Not Required for Exercise of Quasi In

Rem Jurisdiction Pursuant to Attachment Under Supplemental

Rule B.

US Wind asserts objections to the exercise of quasi in rem jurisdiction over it

similar to the ones asserted by the Met Mast discussed in Section I above. US Wind argues

there is no quasi in rem jurisdiction over it because US Wind has not availed itself of the

privilege of conducting activities in Louisiana, and the Met Mast was taken to Louisiana

by the unilateral action of InterMoor and MARMAC contrary to US Wind’s instructions

to deposit it in Baltimore.127

In response, MARMAC and InterMoor each argue quasi in rem jurisdiction

through Supplemental Rule B attachment does not require minimum contacts, and they

argue the requirements for attachment have been satisfied, which is all that is required.128

Moreover, they argue, even if minimum contacts were required, US Wind actually

consented to the transportation of the Met Mast to Louisiana in the litigation in the

Eastern District of North Carolina.129

In support of its argument that the Court lacks quasi in rem jurisdiction over US

Wind, US Wind cites the same cases as those in the Met Mast’s motion to dismiss for lack

of in rem jurisdiction, including Shaffer. As explained above, “Shaffer . . . results in no

change in the admiralty context.”130 If the requirements for Supplemental Rule B

attachment are met, “minimum contacts and the traditional notions do not matter. That

is because any attached property serves as the basis for personal jurisdiction over [the]

Defendant.”131 Accordingly, US Wind’s instructions to deposit the Met Mast in Baltimore

127 R. Doc. 27-1 at 18-20.

128 R. Doc. 34 at 3-7; R. Doc. 33 at 5-12.

129 R. Doc. 34 at 5-6; R. Doc. 33 at 10-11.

130 See Merchs. Nat’l Bank, 663 F.2d at 1350 n.18.

131 Agrocooperative Ltd. v. Sonangol Shipping Angl. (Luanda) Limitada, No. H-14-1707, 2015 WL 138114,

at *6 (S.D. Tex. Jan. 8, 2015); see also Great Prize, S.A. v. Mariner Shipping Party, Ltd., 967 F.2d 157, 159

and whether US Wind availed itself of the benefits of the forum are irrelevant.

C. The Only Requirement for the Exercise of Quasi In Rem

Jurisdiction, Proper Attachment Under Supplemental Rule B, Is

Met.

Attachment under Supplemental Rule B is proper when “(1) the plaintiff has a valid

prima facie admiralty claim against the defendant; (2) the defendant cannot be found

within the district; (3) the defendant’s property may be found within the district; and (4)

there is no statutory or maritime law bar to the attachment.”132

1. The First Requirement for Attachment is Satisfied Because

MARMAC Has Alleged a Prima Facie Admiralty Claim.

MARMAC asserts a claim against US Wind for maritime trespass. The Fifth Circuit

recognizes the tort of maritime trespass and has held “that general common law and in

particular the Restatement (Second) of Torts should control to determine the law of

maritime trespass.”133 According to the Restatement,

One is subject to liability to another for trespass, irrespective of whether he

thereby causes harm to any legally protected interest of the other, if he

intentionally

(a) enters land in the possession of the other, or causes a thing or a

third person to do so, or

(b) remains on the land, or

(c) fails to remove from the land a thing which he is under a duty to

(5th Cir. 1992) (“[A] good-faith allegation in the complaint that the res is present within the geographical

jurisdiction of the court is the jurisdictional fact which gives the court in personam jurisdiction over the

defendant purported to own the res.”); Argo Dredging, L.L.C. v. 1990 IMS Model Dredge, No. 1:07CV536

LG-JMR, 2007 WL 2461972, at *1 (S.D. Miss. Aug. 27, 2007); Day v. Temple Drilling Co., 613 F. Supp. 194,

197 (S.D. Miss. 1985); VTT Vulcan Petroleum, S.A. v. Langham-Hill Petroleum, Inc., 684 F. Supp. 389, 390

n.2 (S.D.N.Y. 1989); Filia Compani Naviera, S.A. v. Petroship, S.A., 1982 A.M.C. 1217 (S.D.N.Y. 1982);

Grand Bahama Petroleum Co. v. Canadian Transp. Agencies, Ltd., 450 F. Supp. 447, 451-56 (W.D. Wash.

1978); Trans-Asiatic Oil, 743 F.2d at 958-63; Amoco Overseas Oil Co. v. Compagnie Nationale Algerienne

de Navigation (“C.N.A.C.”), 605 F.2d 648, 655 & n.7 (2d Cir. 1979). See generally 2 Schoenbaum, supra

note 80, § 21:7.

132 Space Shippinhg Ltd. v. ST Shipping & Transp. Pte Ltd., No. 17-10570, 2017 WL 4737277, at *1 (E.D. La.

Oct. 19, 2017); see also Fed. R. Civ. Pro. Supp. R. for Admiralty or Mar. Claims & Asset Forfeiture Actions

B.

133 Marastro Compania Naviera, 959 F.2d at 53.

remove. 134

Courts have held abandoned materials left on a plaintiff’s property constitute a prima

facie claim of maritime trespass.135 In this case, MARMAC alleges US Wind trespassed on

its Barge by abandoning the Met Mast there and refusing to remove it, despite MARMAC’s

requests. MARMAC alleges this trespass deprived it of the commercial use of the Barge

and caused damages. Accordingly, MARMAC has alleged a prima facie case of trespass.

MARMAC also asserts a claim against US Wind for unjust enrichment. The Fifth

Circuit recognizes admiralty claims for unjust enrichment.136 “The requisites of the

enrichment action are . . . (i) enrichment, (ii) impoverishment, (iii) a connection between

the enrichment and impoverishment, (iv) absence of justification or cause, [and] (v) [the]

‘subsidiary character of the remedy.’”137 The “subsidiary character of the remedy” means

that the remedy is not available if the law provides another remedy for the

impoverishment or declares a contrary rule.138 MARMAC alleges that US Wind was

enriched by forcing MARMAC to transport and store the Met Mast aboard the Barge and

later, after it was unloaded, at a facility in Louisiana, at MARMAC’s expense. While

MARMAC was forced to store the Met Mast on the Barge, MARMAC alleges it was

deprived of the use of the Barge, and MARMAC continues to pay for storage costs at the

storage facility. MARMAC alleges US Wind was not justified in receiving these benefits,

134 Restatement (Second) of Torts § 158 (Am. L. Inst. 1965); see also Marastro Compania Naviera, 959

F.2d at 53

135 See, e.g., Lakes of Gum Cove Hunting & Fishing, L.L.C. v. Weeks Marine, Inc., 182 F.Supp.2d 537 (W.D.

La. 2001) (considering a claim for maritime trespass from the dumping and abandoning of dredged soil on

neighboring marshland); In re N.Y. Trap Rock Corp., 172 F. Supp. 638 (S.D.N.Y. 1959) (considering a claim

for maritime trespass for leaving a barge tied to a dock without consent).

136 See, e.g., Kane v. Motor Vessel Leda, 491 F.2d 899, 900 (5th Cir. 1974).

137 Kane v. Motor Vessel Leda, 355 F. Supp. 796, 803 (E.D. La. 1972) (quoting Nicholas, Unjustified

Enrichment in the Civil Law and Louisiana Law, 36 Tul. L. Rev. 605, 610 (1962)), aff’d, 491 F.2d 899 (5th

Cir. 1974).

138 Cf. La. Civ. Code art. 2298 (2021). Courts in this circuit have looked to Louisiana law when addressing

admiralty claims for unjust enrichment, and this Court finds it useful as well. See, e.g., Kane, 355 F. Supp.

at 801-05.

and because MARMAC is not in privity of contract with US Wind, there is no other remedy

at law for MARMAC to recover from US Wind. While it is questionable whether MARMAC

has no other remedy against US Wind, especially since MARMAC also asserts a claim for

maritime trespass, US Wind has not moved to dismiss MARMAC’s claim for unjust

enrichment on the merits. Further, the Court has found MARMAC has stated a prima

facie claim of trespass. As a result, the Court need not determine whether MARMAC has

also stated a prima facie case for maritime unjust enrichment.

2. The Second, Third, and Fourth Requirements for

Attachment Are Satisfied.

“[T]he requirement of Rule B that the defendant not, ‘be found within the district’

. . . mean[s] that the defendant is neither subject to the jurisdiction of the district court

nor amenable to service of process within the district.”139 US Wind is a Massachusetts

corporation with its principal place of business in Maryland, and its only connection with

Louisiana is the presence of the Met Mast. US Wind admits it does not maintain a

registered agent in Louisiana.140 As a result, US Wind is not found within this District. On

the other hand, US Wind does not contest its property, the Met Mast, can be found within

the District. Finally, US Wind points to no—and the Court has found no—statutory or

maritime law bar to this attachment.

For these reasons, the four requirements for attachment under Supplemental Rule

B are met, the Met Mast was properly attached, and the Court has quasi in rem

jurisdiction over US Wind.

139 Submersible Sys., Inc. v. Perforadora Cent., S.A. de C.V., 249 F.3d 413, 421 (5th Cir. 2001).

140 R. Doc. 27-1 at 13.

III. Venue and Motion to Transfer141

A. The Eastern District of Louisiana is a Proper Venue for

MARMAC’s Claims Against US Wind and InterMoor’s Crossclaim

Against US Wind.

US Wind argues the Eastern District of Louisiana is an improper venue for this

action under § 1391.142 It argues US Wind is not a resident of Louisiana, and a substantial

part of the events that gave rise to this action did not occur in Louisiana because claims

based on the same events are pending in Maryland.143 Finally, US Wind argues venue

cannot be properly based on the Met Mast’s location in this District because MARMAC

and InterMoor ignored US Wind’s instructions to deposit the Met Mast in Baltimore when

they brought it to Louisiana.144 MARMAC and InterMoor argue the general venue

provisions of § 1391 are inapplicable in attachment actions under Supplemental Rule B

because venue is proper where the attached property is located.145

The general venue provisions of § 1391 are inapplicable in this case as venue in

admiralty attachment proceedings is “otherwise provided by law.”146 As to MARMAC’s

quasi in rem claim against US Wind, in “courts of admiralty, a libel in personam may be

maintained for any cause within their jurisdiction, wherever a monition can be served

upon the libelee, or an attachment made of any personal property or credits of his.”147

141 Because the Court has already dismissed the claims against the Met Mast in rem, it need not address

whether venue is proper in this District for the claims against it or whether the claims against it should be

transferred to the District of Maryland.

142 R. Doc. 27-1 at 20-21.

143 Id.

144 Id. at 21.

145 R. Doc. 33 at 12-13; see R Doc. 34 at 11-12.

146 See 28 U.S.C. § 1391(a).

147 In re Louisville Underwriters, 134 U.S. 488, 490 (1890); see also Brown v. C.D. Mallor & Co., 122 F.2d

98, 103 (3d Cir. 1941) “As to venue in a particular district court, . . . if the respondent was not found within

the reach of the court but had property within the jurisdiction, a proceeding in personam in admiralty could

be begun against him by a writ of foreign attachment. In other words, venue in admiralty was not dependent

upon the presence of the respondent in person or upon the maintenance of a principal office within a

particular district but could be invoked by reason of the presence of property of the respondent within the

district.”); Baliff v. Storm Drilling Co., 356 F. Supp. 309, 310 (E.D. Tex. 1972); Sioux City & New Orleans

Thus, because US Wind’s property, the Met Mast, was properly attached in this District,

as explained above, venue is proper in this District. As to InterMoor’s crossclaim against

US Wind, “once a crossclaim has been asserted under Rule 13(g) and is brought within

the supplemental jurisdiction of the court, objections based on a lack of venue cannot be

raised.”148 The venue statute is designed to test the appropriateness of the forum at the

institution of a suit by the original plaintiff, and since the crossclaim is not bringing an

original action, it does not have to satisfy the statutory venue prerequisites.149

Accordingly, venue is proper in this District as to both MARMAC’s claims against US

Wind and InterMoor’s crossclaim against US Wind.

B. The Motion to Transfer to the District of Maryland Is Denied as

to MARMAC’s Claims and Granted as to InterMoor’s Crossclaim.

US Wind argues the Court should transfer MARMAC’s claims and InterMoor’s

crossclaim against it to the District of Maryland, where two other actions between US

Wind and InterMoor are pending.150 US Wind argues these actions were filed first and

have substantial overlap with the facts and issues of this case, in particular InterMoor’s

crossclaim, which is identical to its counterclaim in the original District of Maryland

action.151 Furthermore, US Wind argues the Supreme Court has sanctioned the transfer

of admiralty in rem and quasi in rem actions to courts considering in personam claims

against the vessel owner, even though the in rem and quasi in rem actions could not have

Barge Lines, Inc. v. Upper Miss. Towing Corp., 221 F. Supp. 737, 739 (E.D. Tex. 1963); Cowles v. Kinzler,

225 F. Supp. 63, 65 (W.D. Pa. 1963).

148 6 Charles Alan Wright, et al., Federal Practice and Procedure § 1433 (3d ed.), Westlaw (database updated

Apr. 2021); see also Scott v. Fancher, 369 F.2d 842, 844 (5th Cir. 1966) (“By definition cross-claims must

be closely related to the existing action. Thus they are always treated as within the ancillary jurisdiction of

the court, and independent jurisdictional grounds are not required nor can there be any venue objection.”);

Mark E. Mitchell, Inc. v. Charleston Libr. Soc’y, 114 F. Supp. 2d 259, 262 (S.D.N.Y. 2000).

149 Wright, et al., supra note 148, § 1433.

150 R. Doc. 27-1 at 21-22; R. Doc. 57.

151 R. Doc. 27-1 at 21-22; R. Doc. 57 at 4-7.

been originally brought in the transferee court.152 Finally, US Wind argues the posting of

the special bond in this Court removes any need for this action to remain here tied to the

physical location of the Met Mast, as the bond may be freely transferred.153

MARMAC and InterMoor argue that MARMAC is not a party to the litigation

pending in the District of Maryland, and the attachment could only be brought in this

District.154 MARMAC further argues the question in this case, who owes MARMAC money

for its unpaid charter hire, is distinct from the question presented in the District of

Maryland, who breached the contract between US Wind and InterMoor to transport and

install the Met Mast.155 Additionally, MARMAC argues this Court is a more convenient

forum than the District of Maryland because MARMAC and InterMoor have easier access

to this Court, the witnesses are here, Louisiana has an interest in enforcing the Barge

Charter, and a significant portion of the events giving rise to this action occurred here.156

1. Transfer of MARMAC’s Claims Against US Wind Is Denied.

“The ‘first to file’ rule is grounded in principles of comity and sound judicial

administration.”157 “The concern manifestly is to avoid the waste of duplication, to avoid

rulings which may trench upon the authority of sister courts, and to avoid piecemeal

resolution of issues that call for a uniform result.”158 “To avoid these ills,” the rule states,

“a district court may dismiss [or transfer] an action where the issues presented can be

152 R. Doc. 57 at 3-4.

153 R. Doc. 57 at 7-8. US Wind also argues Local Rules 3.1 and 3.1.1 also require transfer, R. Doc. 27-1 at 10;

however, this argument is without merit. These rules concern transfers within sections of this Court, not

transfers to other districts.

154 R. Doc. 34 at 8-11; R. Doc. 33 at 14; R. Doc. 54 at 2-5.

155 R. Doc. 54 at 2-5.

156 R. Doc. 34 at 8-11. MARMAC also originally argued in its first opposition that transfer should not occur

unless a bond is posted, id. at 11-12; however, since that time, as MARMAC recognizes in its supplemental

opposition, a special bond has been posted in this Court securing MARMAC’s claims, R. Doc. 54.

157 Save Power Ltd. v. Syntek Fin. Corp., 121 F.3d 947, 950 (5th Cir. 1997).

158 Id. (quoting W. Gulf Mar. Ass’n v. ILA Deep Sea Local, 121 F.3d 947, 950 (5th Cir. 1985)).

resolved in an earlier-filed action pending in another district court.”159 “The rule does not

. . . require that cases be identical. The crucial inquiry is one of ‘substantial overlap.’”160

“Complete identity of parties is not required for dismissal or transfer of a case filed

subsequently to a substantially related action.”161

However, “while a district court may dismiss an injunction suit if duplicative

litigation is pending in another jurisdiction, it is not required to do so. . . . [S]uch dismissal

[or transfer] is committed to the district court’s discretion.”162 Factors that may warrant

declining to transfer a subsequently filed case are whether the action could not have been

brought in the transferee court and whether the transfer is inconvenient for the parties

and witnesses under 28 U.S.C. § 1404(a).163

In this case the Court finds transfer of MARMAC’s claims inappropriate. While

there is a common underlying fact pattern, the claims in this case are distinct from the

claims raised in the District of Maryland cases. This case concerns who owes MARMAC

for the unpaid costs of transporting the Met Mast from North Carolina to Louisiana and

its subsequent storage onshore. On the other hand, the action filed by US Wind in the

District of Maryland concerns the alleged breach of the contract between US Wind and

InterMoor for the Met Mast’s transportation and installation and InterMoor’s refusal to

deliver the Met Mast to Baltimore. In US Wind’s second amended complaint in the

District of Maryland, MARMAC is mentioned in only 4 out of 201 paragraphs, and then

only to allege that MARMAC owned the Barge and that MARMAC told US Wind it would

159 Harris Cnty. v. CarMax Auto Superstores, Inc., 177 F.3d 306, 319 (5th Cir. 1999) (quoting W. Gulf Mar.

Ass’n, 121 F.3d at 729).

160 Save Power, 121 F.3d at 950 (quoting Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 408 (5th Cir. 1971)).

161 Id. at 951.

162 Harris Cnty., 177 F.3d at 319 (first citing W. Gulf Mar. Ass’n, 121 F.3d 721; and then citing Abbott Lab’ys

v. Gardner, 387 U.S. 136, 155 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99,

(1977)).

163 Id. at 319-20.

have to negotiate with InterMoor, the Barge’s charterer, to have the Barge return the Met

Mast to Baltimore.164 In InterMoor’s counterclaim in the original District of Maryland

case, MARMAC is mentioned in only 3 out of 41 paragraphs containing similar allegations

to those in US Wind’s second amended complaint as well as a claim of tortious

interference with the Barge Charter against US Wind.165 In US Wind’s possessory action

original filed in the Eastern District of North Carolina and later transferred to the District

of Maryland, MARMAC is mentioned in 3 of 18 paragraphs and then only in the allegation

that MARMAC owns the Barge on which the Met Mast was located. In InterMoor’s

complaint in intervention filed in that action, MARMAC is not mentioned at all.166

MARMAC is not a party to either of the two actions pending in the District of Maryland,

and, while complete identity of parties is not required to transfer under the “first to file”

rule, MARMAC’s absence reinforces the Court’s determination that the actions are not

substantially related.

Considerations under § 1404(a) also weigh against transferring MARMAC’s

claims. § 1404(a) provides, “For the convenience of parties and witnesses, in the interest

of justice, a district court may transfer any civil action to any other district or division

where it might have been brought or to any district or division to which all parties have

consented.” MARMAC’s attachment action could not have been brought in the District of

Maryland because, by US Wind’s admission, US Wind can be “found within th[at]

district.” US Wind argues the Supreme Court case Continental Grain Co. v. The FBL-

585167 allows the transfer of this attachment action to the District of Maryland even

164 R. Doc. 27-26 ¶¶ 53, 168-69, 172.

165 R. Doc. 27-9 ¶¶ 15, 17, 34.

166 See R. Doc. 27-28.

167 364 U.S. 19 (1960).

though the claim could not have originally been brought there. In that case, the Supreme

Court held the district court should have transferred an arrest and attachment action filed

in New Orleans by a cargo owner against both the vessel in rem and the vessel owner in

personam to the district in Tennessee where the same parties were already litigating the

same claims against each other in personam.168 The Court noted the similarities between

the cases, including the fact that the parties were identical:

Although the action in New Orleans was technically brought against the

barge itself as well as its owner, the obvious fact is that, whatever other

advantages may result, this is an alternative way of bringing the owner into

court. . . . The crucial issues about fault and damages suffered were identical,

whether considered as a claim against the ship or its owner. The witnesses

were identical. Thus, while two methods were invoked to bring the owner

into court and enforce any judgment against it, the substance of what had

to be done to adjudicate the rights of the parties was not different at all.169

Continental Grain is distinguishable from this case. The parties in this case and the

District of Maryland cases are not identical, and, as explained, different issues are being

litigated, which will in turn necessitate different witnesses.

Moreover, this district is a more convenient venue to litigate MARMAC’s claims.

In determining which district is more convenient, the Court considers “a number of

private and public interest factors, none of which are given dispositive weight.”170 The

private factors include (1) the relative ease of access to sources of proof; (2) the availability

of compulsory process to secure the attendance of witnesses; (3) the cost of attendance

for willing witnesses; and (4) all other practical problems that make trial of a case easy,

expeditious, and inexpensive.171 The public factors include (1) the administrative

difficulties flowing from court congestion; (2) the local interest in having localized

168 Id. at 22-27.

169 Id. at 26.

170 In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004).

171 Id.

interests decided at home; (3) the familiarity of the forum with the law that will govern

the case; and (4) the avoidance of unnecessary problems of conflict of laws of the

application of foreign law.172

The private factors weigh in favor of keeping MARMAC’s claims in this Court. The

Barge and the Met Mast are in Louisiana. MARMAC is a Louisiana company

headquartered in Louisiana, and InterMoor is headquartered in Texas. Most of the

witnesses for MARMAC and InterMoor are located in Louisiana or Texas, and both

MARMAC and InterMoor indicated at oral argument that litigating these claims in

Louisiana will be more convenient for them. As for the public factors, the local interest

weighs in favor of litigating MARMAC’s claims here as Louisiana has an interest in seeing

a Louisiana company paid for its work on a contract signed in Louisiana. The remaining

public factors are neutral as neither court is seemingly over-congested, the law governing

this case is the general maritime law, and there does not seem to be a conflicts of law

question. For these reasons, the Court will not transfer MARMAC’s claims to the District

of Maryland.

2. InterMoor’s Crossclaim Against US Wind Is Severed and

Transferred to the District of Maryland.

While the Court does not find transfer appropriate for MARMAC’s claims, the

Court finds InterMoor’s crossclaim is substantially similar to the litigation in the District

of Maryland as both actions concern who breached the contract between US Wind and

InterMoor for the transportation and installation of the Met Mast. In fact, InterMoor’s

crossclaim in this Court is nearly—if not completely—identical to the counterclaim

InterMoor raised against US Wind in the original District of Maryland litigation.173

172 Id.

173 Compare R. Doc. 15 with R. Doc. 27-9.

Moreover, the considerations of § 1404(a) weigh in favor of transferring InterMoor’s

crossclaim. It is undisputed that US Wind is subject to the jurisdiction of the court in the

District of Maryland, and InterMoor could have—and in fact did—bring its breach of

contract and related claims in the District of Maryland against US Wind. While this Court

may be more convenient for InterMoor and its witnesses with respect to its crossclaim,

InterMoor’s convenience in this Court must be balanced against US Wind’s convenience

in litigating in Maryland. The parties have already begun discovery and motion practice

on their claims in Maryland. Moreover, Louisiana does not have a strong interest in

enforcing the contract between US Wind and InterMoor as neither is a Louisiana

corporation, and the performance of the contract occurred largely off the coast of

Maryland.

“A district court has wide discretion to sever a claim against a party into separate

cases.”174 When the severance inquiry “is combined with a . . . motion to transfer,” as in

this case, the Court should consider the “relative merits of convenience versus judicial

economy.”175

[T]he court must weigh carefully whether the inconvenience of splitting the

suit outweighs the advantages to be gained from the partial transfer. It

should not sever if the defendant over whom jurisdiction is retained is so

involved in the controversy to be transferred that partial transfer would

require the same issue to be litigated in two cases.176

For the reasons stated above, the merits of judicial economy outweigh any inconvenience

resulting from severing the crossclaim. InterMoor’s exact claims are already being

litigated in the District of Maryland, and the issues presented in InterMoor’s crossclaim,

174 In re Rolls Royce Corp., 775 F.3d 671, 680 (5th Cir. 2014).

175 Id. This is a different analysis than when the severed case would remain in the same district. Id. at 680

& n. 40.

176 Id. (quoting Liaw Su Teng v. Skaarup Shipping Corp., 743 F.2d 1140, 1148 (5th Cir. 1984), overruled on

other grounds by In re Air Crash Disater Near New Orleans, La. On July 9, 1982, 821 F.2d 1147 (5th Cir.

1987)).

the breach of the contract between US Wind and InterMoor, are distinct from the issues

presented in this case, the alleged breach of the Barge Charter by InterMoor and the

alleged trespass and unjust enrichment by US Wind. Accordingly, severance and transfer

of InterMoor’s crossclaim against US Wind is appropriate.

CONCLUSION

IT IS ORDERED that the motion by Defendant the Met Mast Tower, and its

appurtenances, in rem to dismiss, or in the alternative, motion to transfer177 is

GRANTED, insofar as the Met Mast seeks dismissal based on Plaintiff MARMAC, LLC’s

failure to state a proper maritime lien against the Met Mast. Accordingly, MARMAC’s

claims against the Met Mast in rem are DISMISSED WITH PREJUDICE.178

IT IS FURTHER ORDERED that the Defendant US Wind Inc.’s motion to

dismiss or, in the alternative, motion to transfer179 is GRANTED IN PART, insofar as it

seeks to transfer Defendant/Cross-Claimant InterMoor, Inc.’s crossclaim to the United

States District Court for the District of Maryland. In all other respects US Wind’s motion

is DENIED. InterMoor’s crossclaim against US Wind180 is SEVERED and

TRANSFERRED to the United States District Court for the District of Maryland.

IT IS FURTHER ORDERED that Plaintiff MARMAC, LLC’s request for leave to

amend its complaint is DENIED.

IT IS FURTHER ORDERED that Defendant/Cross-Claimant InterMoor, Inc.’s

request for jurisdictional discovery as to US Wind is DENIED AS MOOT as the Court

has found US Wind subject to this Court’s quasi in rem jurisdiction.

177 R. Doc. 26

178 This Order does not affect the Court’s approval of the special bond as security for all claims asserted by

MARMAC against US Wind. R. Doc. 48.

179 R. Doc. 27.

180 R. Doc. 15.

In summary, the remaining claims pending in this Court are Plaintiff MARMAC,

LLC’s claim for breach of contract against Defendant InterMoor, Inc. in personam and

Plaintiff MARMAC, LLC’s claims for maritime trespass and maritime unjust enrichment

against Defendant US Wind Inc. quasi in rem.

New Orleans, Louisiana, this 14th day of October, 2021.

SUSIE MORGAN

UNITED STATES DISTRICT JUDGE

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