Petition for Writ of Certiorari — Jay Lawrence Friedheim, Petitioner v. Dane Field

No. _________

================================================================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------JAY LAWRENCE FRIEDHEIM,

Petitioner,

v.

DANE S. FIELD, Trustee in USBC Case 14-01520,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------JAY LAWRENCE FRIEDHEIM

(Counsel of Record)

ADMIRALTY ADVOCATES®

866 Iwilei Road, Suite 201

Honolulu, Hawaii 96817

(808) 545-5454

Jay@admiraltyadvocates.com

(Pro Se) Petitioner

================================================================================================================

i

QUESTIONS PRESENTED

1. Whether a seaman’s wage contract that includes

maintenance and cure entitles the prevailing party to

attorney’s fees under Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 257 (1975)?

2. Whether attorney’s fees may be awarded for attempting to collect maintenance and cure from a bankrupt

vessel owner and the seaman’s bankrupt employer under Vaughan v. Atkinson, 369 U.S. 527 (1962)?

ii

LIST OF PARTIES

Petitioner: JAY LAWRENCE FRIEDHEIM

Respondent: DANE S. FIELD. Trustee in USBC

Case 14-01520

STATEMENT OF RELATED CASES

Case No. 13-00002 ACK-RLP

Judge: Alan C. Kay

Date of Filing: 01/01/13

Issue: Chad Barry Barnes Admiralty Seaman’s case

Maintenance and cure, Jones Act, unseaworthiness

Case No. Bk. Ct. 14-01475 Chp. 13

Judge: Robert J. Faris

Date of Filing: 11/03/14

Issue: Bankruptcy of Kris Kimo Henry

Case No. Bk. Ct. 14-01520 Chp. 7

Judge: Robert J. Faris

Date of Filing: 11/12/14

Issue: Bankruptcy of Sea Hawaii Rafting LLC

iii

STATEMENT OF RELATED CASES – Continued

Case No. 19-17614

Judge: Ninth Circuit Appeal

Date of Appeal: 12/23/19

Issue: 19-00212-DKW-RT; 00213; 00215 (on appeal

from Bk. Ct. 14-01520 Chp. 7 & 14-01475 Chp. 13. NOTICE OF APPEAL OF JUDGE WATSON’S ORDER AFFIRMING BKCY COURT DOC #16 FILED 12/23/19

Case No. 19-17613

Judge: Ninth Circuit Appeal

Date of Appeal: 12/23/19

Issue: 16-00588-JAO-WRP JUDGE OTAKE’S ORDER

DOC #29 FILED 12/17/19 FOR THE SAME REASONS

IDENTIFIED IN JUDGE KOBAYASHI’S 5/22/19 ORDER, THE BKCY CTS 11/15/16 ORDER APPROVING

SALE OF BOAT AND TRAILER AND OBLIGATION

OF DEBTOR AS GUARANTOR IS VACATED

Case No. 19-16910

Judge: Ninth Circuit Appeal

Date of Appeal: 9/28/19

Notice of Appeal is DOC # 618 13-00002

Issue: This is Washkowitz’ Cross Appeal. He is appealing Court’s Order dated 8/29/19 DOC # 609 wherein

AOE’s Mtn for Recon is denied, and 7/17/19 Order is

modified and set forth in Court’s order imposing sanctions on AOE and Henry.

iv

STATEMENT OF RELATED CASES – Continued

Case No. 19-16484

Judge: Ninth Circuit Appeal

Date of Appeal: 7/26/19

Notice of Appeal is DOC # 588 13-00002

Issue: 13-00002 Judge Kay Doc # 585 which denies

Barnes’ Mtn to Dismiss AOE’s claims regarding the

sale of the vessel M/V Tehani. Appeal the Court’s finding that the court does have jurisdiction over a contract

for the sale of a vessel.

Case No. 19-00216-JAO-RLP

Judge: Derrick K. Watson

Date of Appeal: 4/24/19

Issue: 14-01520 Chapter 7 Response to USDC Directive

19-00216-DKW-RT 19-00216-JAO-RLP on 4/24/19 (related document(s):[395] Notice of Appeal (BK) (JN)

Case No. 19-00215-DKW-RT

Judge: Derrick K. Watson

Date of Appeal: 4/24/19

Issue: Chapter 7 Order Denying Motion to Stay

Case No. 19-00214-DKW-RT

Judge: Derrick K. Watson

Date of Appeal: 4/24/19

Issue: Chapter 7 Order on Motion to Reconsider

v

STATEMENT OF RELATED CASES – Continued

Case No. 19-00213-DKW-RT

Judge: Derrick K. Watson

Date of Appeal: 4/24/19

Issue: Chapter 13 Order of Discharge

Case No. 19-00212-DKW-RT

Judge: Derrick K. Watson

Date of Appeal: 4/24/19

Issue: Chapter 13 Order Denying Motion to Stay

Case No. 19-00211-DKW-RT

Judge: Derrick K. Watson

Date of Appeal: 4/24/19

Issue: Chapter 13 Order on Motion to Reconsider

Case No. 19-00210-DKW-RT

Judge: Derrick K. Watson

Date of Appeal: 4/24/19

Issue: Chapter 13 Response to USDC Directive

Case No. 19-15646

Judge: Ninth Circuit Appeal

Date of Appeal: Notice of Appeal: March 27, 2019;

Amended Notice of Appeal: 4/4/19

Issue: Permit not appurtenance/AOE post bond

vi

STATEMENT OF RELATED CASES – Continued

Case No. 19-00041-JMS-KJM

Judge: J. Michael Seabright

Date of Appeal: 12/10/18

Issue: Bankruptcy Abandon Permit

Case No. 18-72203

Judge: Ninth Circuit Panel

Date of Appeal: 8/8/18

Issue: Petition for Writ of Mandamus

Case No. 18-17154

Judge: Ninth Circuit Panel

Date of Appeal: 11/2/18

Issue: Judge Kay Finding of Fact and Conclusion of

Law (trial)

Case No. 18-16098

Judge: Ninth Circuit Appeal

Date of Appeal: 6/12/18

Issue: David Farmer’s Attorney Fees

Case No. 18-00389-ACK-WRP

Judge: Alan C. Kay

Date of Appeal: 10/18/18 (case created by Judge Kay)

Issue: Constitutional Challenge

vii

STATEMENT OF RELATED CASES – Continued

Case No. 16-00588-JAO-WRP

Judge: Jill A. Otake

Date of Appeal: 11/15/16

Issue: Chapter 13 Sale of Vessel

Case No. 16-00230-LEK-KSC

Judge: Leslie E. Kobayashi

Date of Appeal: 5/11/16

Issue: Chapter 7 Sale of Vessel

Case No. 16-00183-JMS-KJM

Judge: J. Michael Seabright

Date of Appeal: 4/21/16

Issue: First Sanctions

Case No. 16-15023

Judge: Nyugen, Paez, Fischer

Date of Appeal: 1/6/16

Issue: USDC Dismissal of M/V Tehani

Case No. 16-003290-JMS-KJM

Judge: J. Michael Seabright

Date of Appeal: 6/21/16

Issue: Protective Order (against Klevansky’s Discovery

Requests)

viii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..................................

i

LIST OF PARTIES .................................................

ii

STATEMENT OF RELATED CASES ...................

ii

TABLE OF CONTENTS ........................................ viii

TABLE OF AUTHORITIES ...................................

x

PETITION FOR A WRIT OF CERTIORARI .........

1

OPINIONS BELOW ...............................................

1

JURISDICTION .....................................................

2

STATUTORY PROVISIONS ..................................

2

STATEMENT OF THE CASE ................................

4

REASONS FOR GRANTING THE WRIT .............

19

I.

CERTIORARI SHOULD BE GRANTED TO

DETERMINE IF MAINTENANCE AND

CURE IS A CONTRACTUAL OBLIGATION............................................................. 19

II.

CERTIORARI SHOULD BE GRANTED TO

DETERMINE WHETHER THE COURT

CREATED CONTRACT BETWEEN THE

SHIPOWNER AND THE SEAMAN FOR

MAINTENANCE AND CURE INCLUDES

THE COSTS OF ENFORCING THE REMEDY .............................................................. 24

ix

TABLE OF CONTENTS – Continued

Page

III.

CERTIORARI SHOULD BE GRANTED TO

DETERMINE IF A SHIPOWNER FILING

FOR BANKRUPTCY CAN RELIEVE THE

SHIPOWNER OF THE CONSEQUENCES

OF THEIR FAILURE TO PAY THE MAINTENANCE AND CURE OWED TO THE SEAMAN ............................................................. 28

IV.

CERTIORARI SHOULD BE GRANTED BECAUSE THERE IS A SPLIT IN THE CIRCUITS ON THE STANDARD TO APPLY

IN AWARDING ATTORNEY’S FEES TO

OBTAIN MAINTENANCE AND CURE ..... 32

CONCLUSION .......................................................

34

APPENDIX

United States Court of Appeals for the Ninth

Circuit, Memorandum and Order, October 24,

2019 .................................................................. App. 1

United States District Court for the District

of Hawaii, Order, May 31, 2018 ....................... App. 4

United States Bankruptcy Court, District of

Hawaii, Memorandum of Decision, April 15,

2016 ................................................................ App. 11

x

TABLE OF AUTHORITIES

Page

CASES

Aguilar v. Standard Oil Company, 318 U.S. 724,

63 S. Ct. 930, 87 L.Ed. 1107 (1943) .................. 22, 27

Alexandervich v. Gallagher Bros. Sand & Gravel

Corp., 298 F.2d 916 (2d Cir. 1961)...........................24

Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L.Ed.2d

141 (1975) ................................................................31

Atl. Sounding Co. v. Townsend, 557 U.S. 404, 129

S. Ct. 2561, 174 L.Ed.2d 382 (2009) .......................20

Bailey v. Moore-McCormack Lines, Inc., 280 F.Supp.

310 (N.Y. 1967) ........................................................33

Barnes v. Sea Haw. Rafting, LLC, 889 F.3d 517

(9th Cir. 2018)...................................................... 4, 11

Barnes v. Sea Haw. Rafting, LLC, No. 16-15023,

2018 U.S. App. LEXIS 9890 (9th Cir. Apr. 19,

2018) ........................................................................11

Belle Pass Towing Corp. v. Cheramire, 763

F. Supp. 1348 (E.D. La. 1991) .................................25

Breese v. AWI, Inc., 823 F.2d 100 (5th Cir. 1987) ........25

Cal. Artificial Stone Paving Co. v. Molitor, 113

U.S. 609, 5 S. Ct. 618, 28 L.Ed. 1106 (1885) ...........17

Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58

S. Ct. 651, 82 L.Ed. 993 (1938) ................... 20, 21, 27

Chelentis v. Luckenbach S.S. Co., 247 U.S. 372,

38 S. Ct. 501, 62 L.Ed. 1171 (1918) ........................21

xi

TABLE OF AUTHORITIES – Continued

Page

Cortes v. Balt. Insular Line, Inc., 287 U.S. 367, 53

S. Ct. 173, 77 L.Ed. 368 (1932) ................... 21, 22, 23

De Zon v. American President Lines, Ltd., 318

U.S. 660, 63 S. Ct. 814, 87 L.Ed. 1065 (1943) ...... 22, 26

Dutra Grp. v. Batterton, 139 S. Ct. 2275, 204

L.Ed.2d 692 (2019) ..................................................20

Gajewski v. United States, 540 F.Supp. 381, 1982

A.M.C. 2830 (D.C. N.Y. 1982) ..................................33

Gideon v. Wainwright, 372 U.S. 335 (1963) ................31

Goldberg v. Kelly, 397 U.S. 254 (1970) .......................19

Guevarra v. Maritime Overseas Corp., 59 F.3d

1496 (5th Cir. 1996) .................................................33

Hall v. Hall, 584 U.S. ___, 138 S. Ct. 1118, 200

L.Ed.2d 399 (2018) ..................................................17

Harden v. Gordon, 11 F. Cas. 480 (No. 6,047)

(C.C.D. Me. 1823).....................................................26

Harden v. Gordon, 11 F. Cas. 480, 1823 U.S. App.

LEXIS 240, 2000 AMC 893, 2 Mason C.C. 541 .... 21, 26

Harper v. Zapata Off-Shore Co., 741 F.2d 87 (5th

Cir. 1984) .................................................................32

Hines v. J. A. LaPorte, Inc., 820 F.2d 1187 (11th

Cir. 1987) .................................................................20

Int’l Longshoremen’s Ass’n v. Phila. Marine Trade

Ass’n, 389 U.S. 64, 88 S. Ct. 201, 19 L.Ed.2d

236 (1967) ................................................................17

Kopczynski v. The Jacqueline, etc., et al., 742 F.2d

555 (9th Cir. 1984) ...................................................33

xii

TABLE OF AUTHORITIES – Continued

Page

Lancaster Towing, Inc. v. Davis, 681 F. Supp. 387

(N.D. Miss. 1958) ............................................... 22, 25

Lewis v. Lewis & Clark Marine, Inc., 531 U.S.

438, 121 S. Ct. 993, 148 L.Ed.2d 931 (2001) ..........20

McCorpen v. Central Gulf Steamship Corp., 396

F.2d 547 (5th Cir. 1968) ...........................................22

McMillan v. Tug Jane A. Bouchard, etc., et al.,

885 F. Supp. 452 (N.Y. 1995) ...................................33

Miles v. Apex Marine Corp., 111 S. Ct. 317 (1990) ...... 33

Morales v. Garijak, Inc., 829 F.2d 1355 (5th Cir.

1987) ........................................................................29

Murry v. New York C.R. Co., 171 F. Supp. 80

(D.C.N.Y. 1959), aff ’d, 287 F.2d 152 (2d Cir.),

cert denied, 366 U.S. 945 .........................................23

O’Donnell v. Great Lakes Dredge & Dock Co., 318

U.S. 36, 63 S. Ct. 488, 87 L.Ed. 596 (1943) .............22

Pac. S.S. Co. v. Peterson, 278 U.S. 130, 49 S. Ct.

75, 73 L.Ed. 220 (1928) ...........................................21

Roberts v. S.S. Argentina, et al., 359 F.2d 430 (2d

Cir. 1966) .................................................................33

Roell v. Withrow, 538 U.S. 580, 123 S. Ct. 1696,

155 L.Ed.2d 775 (2003) ...........................................10

Rowan Companies v. Griffin, 876 F.2d 26 (5th

Cir. 1989) .................................................................25

Sammon v. Central Gulf S.S. Corp., 442 F.2d

1028 (2d Cir. 1971) ..................................................25

xiii

TABLE OF AUTHORITIES – Continued

Page

Taggart v. Lorenzen, 139 S. Ct. 1795, 204 L.Ed.2d

129 (2019) ................................................................17

Tate v. American Tug, Inc., 634 F.2d 869 (5th Cir.

1981) ........................................................................22

The Lilly, 69 F.2d 898 (9th Cir. 1934).........................29

The Osceola, 189 U.S. 158, 23 S. Ct. 483, 47 L.Ed.

760 (1903) .......................................................... 21, 25

The Quogue, 47 F.2d 873 (2d Cir. 1931) .....................29

The Scotland, 118 U.S. 507, 6 S. Ct. 1174, 30

L.Ed. 153 (1886) ......................................................29

Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997,

8 L.Ed.2d 88 (1962) ............................... 17, 23, 30, 33

Vella v. Ford Motor Co., 421 U.S. 1, 95 S. Ct.

1381, 43 L.Ed.2d 682 (1975) ....................... 17, 24, 26

Warren v. United States, 340 U.S. 523 (1951) ............27

Wellness Int’l Network, Ltd. v. Sharif, 575 U.S.

665, 135 S. Ct. 1932, 191 L.Ed.2d 911 (2015) ........10

CONSTITUTIONAL PROVISION

U.S. Const. Art. III, § 2................................................31

STATUTES

11 U.S.C. § 362 ..............................................................3

11 U.S.C. § 362(a) ...................................................... 3, 6

28 U.S.C. § 1254(1) ........................................................2

xiv

TABLE OF AUTHORITIES – Continued

Page

Act of July 20, 1790, c. 29 § 8, 1 Stat. 135 ..................26

Act of March 2, 1805, c. 88, 2 Stat. 330 ......................26

Declaratory Judgment Act, 28 U.S.C. § 2201 .............25

Railroad Revitalization and Regulatory Reform

Act of 1976, 45 U.S.C. § 854(g) ................................31

Regional Rail Organization Act of 1973, 45

U.S.C. § 726(f )(9) .....................................................31

RULE

Fed. R. Bankr. Proc. 8021(c) .........................................2

OTHER AUTHORITIES

Courts of Admiralty in Colonial America, David

R. Owen & Michael C. Tolley, Carolina Academic Press 1995.....................................................20

Law of Admiralty, Gilmore and Black, 2d Ed.

1975 .........................................................................25

Martin J. Norris, The Seamen as Wards of the

Admiralty, 52 Mich. L. Rev. 479 (1954) ...................25

Paul K. Chapman, Trouble on Board: The Plight

of International Seafarers, N.Y. 1992 .....................27

Shipowner’s Liability Convention, 54 Stat. 1693,

ratified October 29, 1939 ........................................24

Thomas J. Schoenbaum, Admiralty and Maritime Law, § 4-28 (2d ed. 1994) ................................30

xv

TABLE OF AUTHORITIES – Continued

Page

Us Et Coutumes De La Mer 2 (1661 ed.) ...................25

Virginia A. McDaniel, Recognizing Modern Maintenance and Cure as an Admiralty Right, IV

Ford International L.J. 669 (1991) .........................23

1

PETITION FOR A WRIT OF CERTIORARI

Jay Lawrence Friedheim respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit

in this case.

------------------------------------------------------------------

OPINIONS BELOW

The Memorandum and Order of the Court of Appeals, Sea Haw. Rafting, LLC v. Field (In re Sea Haw.

Rafting, LLC), 781 F. App’x 664 (9th Cir. 2019) (Appendix at App. 1).

ORDER GRANTING IN PART AND DENYING

IN PART APPELLANTS’ MOTION TO VACATE

SANCTIONS, RELEASE OF SUPERSEDEAS BOND

AND FOR FEES AND COSTS RELATED TO OBTAINING MAINTENANCE AND CURE, ECF NO. 69,

In the Matter of: SEA HAWAII RAFTING, LLC, JAY

LAWRENCE FRIEDHEIM, and JOHN C. GIBSON

Appellants, v. DANE S. FIELD, Civ. No. 16-00183 JMSKJM, Filed 05/31/18, is unreported (Appendix at App.

4).

MEMORANDUM OF DECISION ON TRUSTEE’S MOTION FOR SANCTIONS FOR VIOLATION

OF THE AUTOMATIC STAY, In re Sea Haw. Rafting,

LLC, No. 14-01520, 2016 Bankr. LEXIS 1710 (Bankr.

D. Haw. Apr. 15, 2016) (Appendix at App. 11).

------------------------------------------------------------------

2

JURISDICTION

The Court of Appeals entered its Order on October

24, 2019. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

------------------------------------------------------------------

STATUTORY PROVISIONS

I.

Fed. R. Bankr. Proc. 8021(c)

Rule 8021. Costs:

. . . (c) Costs on Appeal Taxable in the Bankruptcy Court. The following costs on appeal

are taxable in the bankruptcy court for the

benefit of the party entitled to costs under this

rule:

(1) the production of any required copies of a

brief, appendix, exhibit, or the record;

(2) the preparation and transmission of the

record;

(3) the reporter’s transcript, if needed to determine the appeal;

(4) premiums paid for a bond or other security to preserve rights pending appeal; and

(5)

the fee for filing the notice of appeal.

(Added Apr. 25, 2014, eff. Dec. 1, 2014.)

3

II. 11 U.S.C. § 362 – U.S. Code – Unannotated Title

11. Bankruptcy § 362. Automatic stay

(a) Except as provided in subsection (b) of

this section, a petition filed under section 301,

302, or 303 of this title, or an application filed

under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay,

applicable to all entities, of –

(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other

action or proceeding against the debtor that

was or could have been commenced before the

commencement of the case under this title, or

to recover a claim against the debtor that

arose before the commencement of the case

under this title;

***

(4) any act to create, perfect, or enforce any

lien against property of the estate;

(5) any act to create, perfect, or enforce against

property of the debtor any lien to the extent

that such lien secures a claim that arose before the commencement of the case under this

title;

(6) any act to collect, assess, or recover a

claim against the debtor that arose before the

commencement of the case under this title;

***

------------------------------------------------------------------

4

STATEMENT OF THE CASE

This is a pro se appeal from an unpublished memorandum and order decision that makes a profound

statement of maritime and bankruptcy law. “Though

we subsequently nullified the basis for such sanctions

by holding that bankruptcy stay orders do not apply to

maritime cases, Barnes v. Sea Haw. Rafting, LLC, 889

F.3d 517, 532-33 (9th Cir. 2018), the Trustee’s motion

was not unreasonable or meritless at the time it was

filed.” If the bankruptcy stay orders really “do not apply to maritime cases” does that mean to the in personam cases as well?

Jay Lawrence Friedheim (“Friedheim”) is an attorney, Proctor in Admiralty who has been practicing admiralty and maritime law in Hawai’i for more than 30

years, primarily in the area of LHWCA and seaman’s

claims. On January 1, 2013, Friedheim filed a libel in

Admiralty on behalf of Chad Barry Barnes (“Barnes”)

who is a seaman who was injured when the boat on

which he was working, the M/V Tehani (“Tehani”) exploded while being launched into Honokohou Harbor,

on the “Big Island” of Hawaii.

During his recovery, Barnes received two maintenance payments from either Sea Hawaii Rafting, LLC

(“SHR”), which owned Tehani and was Barnes’ Jones

Act employer or Kris Kimo Henry (“Henry”) who is

SHR’s sole owner and manager. Those payments soon

stopped. There was no insurance to cover personal injuries to crew members which occurred on the tourist

vessel Tehani. Barnes is seeking the ancient remedy of

5

maintenance and cure (“M&C”) and other maritime

tort damages.

Admiralty courts traditionally handle M&C matters expeditiously because the contractual remedy of

M&C has an enforceable award of attorney fees for the

willful and recalcitrant failure to promptly investigate

and pay the seaman maintenance when it is needed.

That did not happen here for two reasons. First, the

District Court Admiralty Judge Kay (“AJ Kay”) declined to issue a ruling on the daily rate of maintenance and denied Barnes’s four pretrial motions for

summary judgement to enforce SHR’s contractual obligation to pay Barnes M&C.

AJ Kay found that Barnes is a seaman and he was

entitled to M&C and had demonstrated his actual

maintenance expenses but AJ Kay would not issue a

decision on the daily maintenance rate without the live

expert testimony of an economist on what an average

seaman in Barnes’ local would require to live on at a

very modest level. Barnes put on a lot of evidence and

he was entitled to at least some of his actual expenses

to be paid immediately.

AJ Kay declined to award Barnes any maintenance until the trial because Barnes would not “stipulate” to an amount. Barnes wanted the court to set a

rate so that Barnes could start to get paid maintenance

and if there turned out to be another party who was

obligated to pay the issues of what Barnes was entitled

to per day would already be resolved.

6

Second, when SHR declared bankruptcy after fifteen months of litigation and on the verge of a hearing

on Barnes’ Motion for Summary Judgement on the

question of Strict Liability and his fourth motion to

compel payment of M&C Henry filed for Chapter 13

Bankruptcy protection for himself and Chapter 7 for

SHR. The bankruptcy court appointed Dane S. Field

(Field) as the Trustee who then hired Simon Klevansky (“Klevansky”) to represent the Trustee.

Barnes made formal demands for the payment of

M&C upon Fields for the seaman’s employer SHR who

is also claiming to be the vessel’s owner during the

bankruptcy. AJ Kay stayed Barnes’ action in his admiralty case based upon the automatic stay 11 U.S.C.

§ 362(a).

AJ Kay concluded that Tehani was an asset of the

debtor’s estate and that the automatic bankruptcy stay

barred proceedings to enforce Barnes’ maritime lien

against the vessel. BkJ Faris partially lifted the bankruptcy stays to allow the district court to evaluate

Barnes’ claims against SHR to their conclusion but expressly prohibited AJ Kay from issuing any ruling that

would affect the maritime lien’s status on the Tehani.

When the stay was partially lifted AJ Kay dismissed Barnes’ claims against Tehani and mentioned

in obiter dicta that Friedheim, Barnes’ lawyer had

“very likely violated” the bankruptcy court’s stay orders.

7

The court reasoned with the encouragement of

Field that the admiralty court lacked in rem jurisdiction because, even though Barnes verified his original complaint, Barnes had failed to verify the first

amended complaint between the time Barnes had filed

his amended complaint and the time Henry filed his

Chapter 13 wherein he claimed to personally own the

vessel and that it was exempt as a “tool of his trade”

and SHR filed for Chapter 7 Bankruptcy. BkJ Faris exercised control over Tehani it was then transferred to

the Chapter 7 Trustee for management and disposal.

BkJ Faris invited a motion for sanctions which Field

filed and Friedheim and his then co-counsel John C.

Gibson (“Gibson”) were sanctioned for $43,277.73 plus

interest for any delay in payment. BkJ Faris refused to

stay the enforcement of the sanctions judgment at the

request of Field. Friedheim and Gibson were required

to post a $65,000 supersedeas bond while the 9th Circuit considered Barnes’ appeal of the dismissal of

Tehani.

Klevansky vigorously opposed any stay claiming

Field’s right to be paid immediately on this Judgement

and Barnes argued his mantra, “Maintain the status

quo until the 9th Circuit lets us know.” Field took the

position that if Friedheim could not post the $65,000

bond he was in danger of going bankrupt so he vigorously pursued collecting the Judgement which entirely

consisted of charges for Klevansky’s legal time defending against the damages Friedheim had caused to the

estate by filing a one sentence verification document

that said “Barnes swears that the factual allegations

8

in his complaint were true and correct to the best of

his information knowledge and belief.” Field sought to

enforce his judgement, by taking actions against

Friedheim’s home, and law business, serving and compelling compliance with his discovery requests concerning all of Friedheim’s assets and his lists of clients

so Field could put a lien on Friedheim’s client’s files for

any money they might owe to Friedheim.

BkJ Faris found that the following was the sanctionable conduct:

1) Friedheim’s filing of the verification of the

amended complaint which was filed after the bankruptcy stay was partially lifted in order to create a

maritime lien post petition.

This was based on BkJ Faris’ mistaken belief,

urged on by Field, that the amended complaint made a

nullity of the original verified complaint filed in the admiralty court. BkJ Faris found that because SHR the

vessel owner and seaman’s employer filed for bankruptcy that no maritime lien existed for the injured

seaman seeking M&C which is always a part of every

seaman’s contract for his wages in the United States.

2) Friedheim urging AJ Kay on behalf of Barnes

to disregard BkJ Faris’ order and to proceed as if there

was no bankruptcy filing that had occurred because

the bankruptcy stay does not apply to maritime cases,

at least “in rem” and it is still not known if it applies

“in personam” in a maritime case for the enforcement

of M&C.

9

3) Friedheim urging AJ Kay to act independently

“of the pontificating of the court in bankruptcy” and

to test BkJ Faris’ order by arresting the vessel “to see

what the 9th Circuit says about it.”

At this point AJ Kay and BkJ Faris, Field and

Henry wanted to keep the maritime tourist business

going so that Henry could pay off his Chapter 13 plan.

AJ Kay’s theory as expressed by the Magistrate Judge

was, “Why kill the goose that lays the golden eggs.”

Barnes complained that he never got to eat any of

those omelets. The belief was that at some point Henry

would become satiated and would begin paying Barnes

some maintenance out of a sense of compassion. That

never happened over several years.

4) Friedheim urging the admiralty court to ignore the automatic stay and the bankruptcy court’s

limited relief from the stay is itself a separate violation

of the stay.

Friedheim’s statements were made in the context

of questioning the bankruptcy court’s constitutional jurisdiction to make admiralty decisions urged on by

Field when neither the seaman Barnes nor Friedheim

had voluntarily consented to the jurisdiction of the

bankruptcy court. The bankruptcy court at the urging

of Field ruled that Henry and or SHR’s obligation to

pay Barnes maintenance ended the day Henry and

Field filed for bankruptcy protection because BkJ Faris

ruled that M&C was a pre-petition claim and not a

claim that arises anew each day until the seaman

reaches maximum medical improvement.

10

5) Field further urged that sanctions were appropriate for arguing that the bankruptcy court lacked

the constitutional authority to restrict the district

court from adjudicating Barnes, the seaman’s claims

without their knowing and voluntary consent pursuant to Wellness Int’l Network, Ltd. v. Sharif, 575 U.S.

665, 135 S. Ct. 1932, 191 L.Ed.2d 911 (2015); Roell v.

Withrow, 538 U.S. 580, 123 S. Ct. 1696, 155 L.Ed.2d

775 (2003).

The bankruptcy court found this to be a frivolous

argument but not necessarily a violation of the automatic stay.

While Barnes’ appeal was pending, Field, with

the bankruptcy court’s approval, first leased the

Tehani to Henry through Henry’s post-petition newly

formed company Aloha Ocean Excursions LLC (“AOE”)

of which Henry is the only member, for $500 a month

and then sold Tehani back to Henry through AOE purportedly “free and clear of all maritime liens” including

Barnes’ maritime lien for M&C for $35,000 based upon

the suggestion of a friend of Klevansky who conducts

auctions for bankruptcy sales that this was a reasonable price.

After approximately one year into the bankruptcy,

and at AJ Kay’s direct instruction to do so, Friedheim

sought to have the stays lifted so that Barnes could

continue his admiralty trial including the issue of

seeking to pierce the corporate veil and have Henry

personally held responsible for the M&C and damages,

both physical to Barnes and economically to Friedheim

11

which has resulted from the enormous amount of legal

work and costs which it has taken to try to get Barnes

paid some M&C.

The 9th Circuit has ruled that Barnes and Friedheim never voluntarily submitted to the jurisdiction

of the bankruptcy court. Barnes v. Sea Haw. Rafting,

LLC, 889 F.3d 517, 533 (9th Cir. 2018); Barnes v. Sea

Haw. Rafting, LLC, No. 16-15023, 2018 U.S. App.

LEXIS 9890 (9th Cir. Apr. 19, 2018). We are not aware

of any case about a situation where a seaman was

demanding M&C from a Chapter 7 trustee after the

vessel owner and the seaman’s employer files for Bankruptcy. Barnes was seeking M&C and the major, and

probably only reason that Henry and his LLC, SHR

filed for bankruptcy protection was that Henry could

not get Barnes to settle his case. Our understanding is

that the rest of the creditors were paid off in full or

nearly in full making the bankruptcies something of a

sham. There has been a lot of time involved in producing Barnes’ share of the estimated 1500 pleadings from

what has become 25 directly related cases as well as a

non-jury trial over three days in the USDC on the

maintenance rate as ordered by the 9th Circuit in their

sua sponte writ of mandamus directing AJ Kay to

promptly get Barnes paid at least $34 dollars and to

conduct a trial on the actual daily amount of maintenance. Barnes was forced to give up his jury trial right

because Klevansky argued to BkJ Faris that a jury

trial would take up too much of his time. BkJ Faris essentially gave Barnes a choice of give up his jury trial

12

or have his maritime claims “estimated” and decided

in a summary proceeding in Bankruptcy court.

Barnes’ M&C claim was pushed to the side due to

a series of unfortunate events. AJ Kay was reluctant to

come up with a daily rate of maintenance. This was

used by Field to argue successfully to BkJ Faris to

value Barnes’ M&C claims at zero dollars ($0.00) because of a failure of proof on Barnes’ part.

During the entire time that these proceedings

have been going on, Henry has operated his maritime

tourist business as AOE using the Tehani and the

Commercial Use Permit, before, during and after

Henry and SHR filed for bankruptcy protection with

the aid and encouragement of BkJ Faris and AJ Kay

and AJ Kay and Field. To this day Henry still is out

there earning a good living now apparently discharged

of the debt to Barnes for M&C.

SHR which has been stripped of everything of

value which was given back to Henry who has been

less then forthright about his actions regarding the

most valuable asset in this case a Commercial Use Permit that allows a company like SHR to operate in the

Harbor where the accident occurred. Field decided that

the permit was of no value and abandoned it back to

Henry. But unknown to everybody Henry had already

misappropriated the permit by telling the State of

Hawaii DLNR/DOBAR that he had merely renamed

his SHR “Aloha Ocean Excursions LLC” when in fact it

was a new company that he established shortly after

he filed his bankruptcies.

13

What started out as a single relatively simple

claim for M&C and other maritime tort damages

against Tehani, SHR, and Henry, who is the sole member of both SHR and AOE, has now ballooned into 25

separate still pending cases with separate pleadings

and deadlines and costs involved in working these

cases to their conclusion. That happened because every

time an order is appealed from the bankruptcy court it

can either go to the BAP, of which our bankruptcy

Judge is a member, or to the USDC which randomly

assigns each case to a different judge.

There are at least fifteen separate federal judges

so far handling separate minuscule parts of the Barnes

cases, four USDC Judges, four Magistrate Judges, one

USBK Judge and six Ninth Circuit Judges so far with

another panel on an appeal fully briefed which has not

yet been identified and five more circuit court appeals

noticed each from a separate sliver of Barnes’ case. As

long as issues are being determined by bankruptcy

rules and procedures, Henry’s choice and timing of

filing for Bankruptcy which changes to venue of deciding Barnes’ cases has been outcome determinative.

Barnes loses every issue in bankruptcy if it is sliced

thin enough. There is no big picture.

Bankruptcy rules deny Barnes and Friedheim’s

right to attorney’s fees as a cost and admiralty rules

and case law almost demand that these fees as costs

are shifted to Henry, SHR and possibly Field in the

bankruptcy context. This case before SCOTUS is one

of first impression. Does Bankruptcy trump Admiralty,

or the reverse does Admiralty trump Bankruptcy?

14

Friedheim seeks to get some of his costs of defending the first set of sanctions paid by Field because of

Klevansky’s egregious display of predatory legal behavior. Once Klevansky had mistakenly concluded that

Friedheim had violated the stay by what he believed

was trying to perfect a maritime lien that did not already exist, he wastefully engaged in all sorts of peripheral legal work to drive his own fees up. Is it not

possible that Field in this case authorized $250,000 of

legal work, the amount that Klevansky estimated to

have used so far in his second motion for sanctions to

protect this $35,000 vessel which he mistakenly believed was a part of SHR’s Chapter 7 bankruptcy estate? There is no way that Field is going to be sued by

Klevansky to collect that money for Klevansky’s fees.

This was a sure thing bet with the protection of BkJ

Faris with whom this group of players is intimately

familiar. Klevansky and BkJ Faris were partners before BkJ Faris ascended to the bench. At a minimum

this situation has the appearance of the appearance of

impropriety. Barnes has personal Constitutional rights

to have an Article 3 Judge decide ALL of the dispositive

aspects of his admiralty case.

The vast majority of the legal time that has been

spent on these cases is the result of decisions made by

BkJ Faris with Field pursuing the admiralty issues,

such as how Barnes’ claim for M&C is literally worth

nothing because Barnes did not have a sum certain by

which to make a claim because the decision on the

maintenance rate was not made until long after BkJ

Faris had put into motion the discharge of Henry

15

which he would not stay or reconsider. Field in the second set of sanctions was about to ask for more than

$200,000 in addition to the still pending $43,277.73 for

the first sanctions.

The argument against Barnes and Friedheim is

that this is a vast waste of precious judicial resources

over what might be a now arrested vessel worth about

$35,000 and losing value as Barnes has to pay with the

money AJ Kay is distributing to Barnes for maintenance with instructions that Barnes must prepay the

marshals insurance and related cost of keeping the

vessel pending the resolution of Barnes’ case for M&C.

The reason that this is not likely to be capable of

repetition yet evading review is that it is highly unlikely that there will be another lawyer anytime soon

that will put in the thousands of hours of time this case

has taken already with little or no hope or expectation

of ever being compensated for his time and costs. It

would have been a far wiser decision if I had just paid

Barnes M&C myself and looked to Heaven for a reward.

This is not about Friedheim’s attorney’s fees. It is

about the cost that Friedheim and Gibson have had to

incur to defend against sanctions engineered by a conniving bankruptcy practitioner who bases his excuse

upon his having convinced AJ Kay that a maritime lien

is like a lien on a refrigerator. And, that this misimpression which Klevansky created somehow excuses

Klevansky’s predatory behavior.

16

The USDC and the 9th Circuit seems to have decided that bad faith, vexation, and harassment are to

be evaluated under the conditions that appear to have

been present when the conduct was initiated. Klevansky would not give up even after the 9th Circuit had

determined that all of the basis of BkJ Faris’ sanctions

were groundless. He has been excused for this part of

the harassment because AJ Kay found in the admiralty case, in obiter dicta, encouraged by Klevansky

that Barnes, Friedheim and Gibson had “very likely violated” the automatic stays in the bankruptcy cases

and turned it over to BkJ Faris to administer the punishment.

It became very apparent at some point the only

money to be made by Field, really Klevansky, was in

the collection of Klevansky’s attorney’s fees from seaman Barnes’ lawyer who was trying to recover some

M&C for Barnes. This was a fabricated violation of the

automatic stay. While we were technically in the bankruptcy court this is entirely about a maritime question

of getting a seaman actually paid some M&C. The 9th

Circuit appears to have adopted the “white heart and

empty head test” measured only at the point of the initiation of the conduct. The circuits are divided and go

all over the place in trying to figure out how, when and

where this kind of conduct is to be measured.

In the bankruptcy situation with the automatic

stay and the discharge injunction, two of the most powerful and costly mechanisms of punishment in the entire legal system, the bankruptcy judge is empowered

with extremely powerful weapons that have hair pin

17

triggers and can be loose canons going off in any direction. Severe, personal, and stigmatizing is how this is

usually characterized and I concur from experience.

The tragedy is that the bankruptcy system doesn’t

seem to work without these features.

In the one direction bankruptcy trumping admiralty it is a question of “no fair ground of doubt as

to the wrongfulness.” Taggart v. Lorenzen, 139 S. Ct.

1795, 204 L.Ed.2d 129 (2019); Cal. Artificial Stone

Paving Co. v. Molitor, 113 U.S. 609, 5 S. Ct. 618, 28

L.Ed. 1106 (1885) (“old soil” includes the “potent

weapon.”); Int’l Longshoremen’s Ass’n v. Phila. Marine

Trade Ass’n, 389 U.S. 64, 88 S. Ct. 201, 19 L.Ed.2d 236

(1967) (“ ‘obviously transplanted from another legal

source,’ ” it “ ‘brings the old soil with it.’ ”); Hall v. Hall,

584 U.S. ___, ___, 138 S. Ct. 1118, 200 L.Ed.2d 399, 411

(2018)

In the other direction admiralty trumping bankruptcy there is only Vaughan v. Atkinson, 369 U.S. 527,

532 (1962) and Vella v. Ford Motor Co., 421 U.S. 1, 95

S. Ct. 1381, 43 L.Ed.2d 682 (1975), a willfull, recalcitrant and vexations effort required to get the relief.

Before we were resolving this first sanction matter, Field already asked for and was granted additional sanctions because Friedheim had violated the

Barton doctrine which would have required Barnes

and Friedheim to get permission from the Bankruptcy court before we could even suggest Field and

Klevansky have some obligation to Barnes to pay

some M&C during the time they were administering

18

the bankruptcy estate of the vessel owner and the seamens’ employer.

Because AJ Kay was reluctant to come up with a

daily rate of maintenance, the 9th Circuit sua sponte

issued a writ of mandamus ordering AJ Kay to start to

get Barnes paid some maintenance at $34.00 a day one

half the rate he had submitted a significant amount of

evidence and was eventually proved with the required

use of an expert economist to show what a hypothetical

seaman, not himself, spends each day to support himself in the local where the seaman lives. The admiralty

judge was ordered by the 9th Circuit to allow Barnes

to arrest the vessel without the prepayment of marshal’s fees. Barnes was finally able to arrest the vessel,

something Field and BkJ Faris resisted.

Barnes kept arguing to BkJ Faris that seaman are

“wards” of the court. BkJ Faris responded that seaman

are not “wards” of the court of bankruptcy and that

they get no special treatment as a creditor in bankruptcy, or a get out of jail free card for violating the

automatic stay by pursuing M&C in bankruptcy and

suggesting that the Trustee might in some way be responsible also without first getting the permission to

proceed from the bankruptcy court.

This is the behind the scene story of what led us

to the steps of the Supreme Court in an attempt to get

the lawyer Farmer who defended the sanctions imposed upon the admiralty advocates Friedheim and

Gibson who were trying to get Barnes paid for some of

the maintenance that is owed to him. Barnes is owed

19

more than $100,000 of back maintenance. Maintenance is described as a pittance and it takes a long

time of living off of state and federal disability and the

kindness of friends and family to come to that kind of

number.

------------------------------------------------------------------

REASONS FOR GRANTING THE WRIT

I.

CERTIORARI SHOULD BE GRANTED TO

DETERMINE IF MAINTENANCE AND CURE

IS A CONTRACTUAL OBLIGATION

Every seaman’s contract for wages includes M&C.

M&C is a privately administered system of welfare

like benefits that is administered by the vessel’s owner

and the seaman’s employer that is supposed to be free

of complications and an easy remedy for the seaman to

obtain when he is entitled to it.

If a problem occurs the seaman can seek to enforce

his right to M&C by going to court to compel the payment which is supposed to be provided free of administrative hassles and complications. And the vessel’s

owners can come to court to get declaratory relief if

they have questions about the seaman’s entitlement to

such relief. There are a lot of similarities to the rights

involved in Goldberg v. Kelly, 397 U.S. 254, 264 (1970)

(hearing required before termination of welfare benefits).

The basic law regarding M&C is replete with references to its origins in the contract for a seamens’

wages. The vast majority of cases heard in the High

20

Court of Admiralty in England in the 100 years before

the formation of the United States were seamen’s cases

to obtain their wages and M&C. Courts of Admiralty in

Colonial America, David R. Owen & Michael C. Tolley,

Carolina Academic Press 1995. The law in America is

entirely Judge made and formed out of a paternalist

concern for the condition of seaman without whom no

ship can sail and very little commerce can occur on a

national level.

“ . . . a claim of M&C, which addresses a situation

where the vessel owner and master have “just about

every economic incentive to dump an injured seaman

in a port and abandon him to his fate.” Dutra Grp. v.

Batterton, 139 S. Ct. 2275, 2286, 204 L.Ed.2d 692

(2019). A claim for M&C concerns the vessel owner’s

obligation to provide food, lodging, and medical services to a seaman injured while serving the ship.”

Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441,

121 S. Ct. 993, 148 L.Ed.2d 931 (2001). Punitive damages were available in an action for M&C. Hines v.

J. A. LaPorte, Inc., 820 F.2d 1187, 1189 (11th Cir. 1987)

(per curiam).

A claim for M&C concerns the vessel owner’s obligation to provide food, lodging, and medical services to

a seaman injured while serving the ship. Calmar S. S.

Corp. v. Taylor, 303 U.S. 525, 527-528, 58 S. Ct. 651, 82

L. Ed. 993 (1938); Lewis v. Lewis & Clark Marine, Inc.,

531 U.S. 438, 441, 121 S. Ct. 993, 148 L.Ed.2d 931

(2001); Atl. Sounding Co. v. Townsend, 557 U.S. 404,

408, 441, 129 S. Ct. 2561, 174 L.Ed.2d 382 (2009).

21

The ancient duty of a vessel and her owner to provide M&C for seamen injured or falling ill while in

service was recognized and, to some extent, defined by

this Court in The Osceola, 189 U.S. 158, 175, 23 S. Ct.

483, 47 L.Ed. 760 (1903); Chelentis v. Luckenbach S.S.

Co., 247 U.S. 372, 38 S. Ct. 501, 62 L.Ed. 1171 (1918);

Pac. S.S. Co. v. Peterson, 278 U.S. 130, 49 S. Ct. 75, 73

L.Ed. 220 (1928). It is a duty, which arises from the

contract of employment, Cortes v. Balt. Insular Line,

Inc., 287 U.S. 367, 53 S. Ct. 173, 77 L.Ed. 368 (1932). It

does not rest upon negligence or culpability on the part

of the owner or master, Calmar S.S. Corp. v. Taylor, 303

U.S. 525, 58 S. Ct. 651, 82 L.Ed. 993 (1938).

In Harden v. Gordon, 11 F. Cas. 480, 1823 U.S. App.

LEXIS 240, 2000 AMC 893, 2 Mason C.C. 541, cited

with apparent approval in the Osceola case, at p. 172 –

Mr. Justice Story said that a claim for the expenses of

curing a seaman in case of sickness “constitutes, in

contemplation of law, a part of the contract for wages,

and is a material ingredient in the compensation for

the labor and services of the seamen.”

A remedy is his also if the injury has been suffered

through breach of the duty to provide him with “M&C.”

The duty to make such provision is imposed by the law

itself as one annexed to the employment. The Osceola,

supra. Contractual it is in the sense that it has its

source in a relation which is contractual in origin, but

given the relation, no agreement is competent to abrogate the incident. If the failure to give M&C has caused

or aggravated an illness, the seaman has his right of

action for the injury thus done to him, the recovery in

22

such circumstances including not only necessary expenses, but also compensation for the hurt. Cortes v.

Balt. Insular Line, Inc., 287 U.S. 367, 371, 53 S. Ct. 173,

77 L.Ed. 368 (1932).

The obligation of the shipowner to provide for the

M&C of seaman becoming ill or injured during the period of their service is an implied contractual obligation imposed by the general maritime law as one

annexed to the employment. Aguilar v. Standard Oil

Company, 318 U.S. 724, 730, 63 S. Ct. 930, 87 L.Ed.

1107, 1113 (1943); De Zon v. American President Lines,

Ltd., 318 U.S. 660, 63 S. Ct. 814, 87 L.Ed. 1065 (1943);

Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 53

S. Ct. 173, 77 L.Ed. 368 (1932).

It is an incident to the status of the seaman in the

employment of his ship and is without heed to any expression to the will of the contracting parties. O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 42,

63 S. Ct. 488, 87 L.Ed. 596, 601 (1943).

M&C are “a contractual form of compensation

given by the General Maritime Law,” to seamen who

fall ill or are injured in the service of their vessels.

Tate v. American Tug, Inc., 634 F.2d 869 (5th Cir.

1981); Lancaster Towing, Inc. v. Davis, 681 F. Supp.

387, 389 (N.D. Miss. 1958); McCorpen v. Central Gulf

Steamship Corp., 396 F.2d 547, 548 (5th Cir. 1968). It

is not only a contractual right but it is a right under

the General Maritime Law accorded to seamen by a

long tradition in recognition of the special dangers and

sacrifice which characterizes maritime employment.

23

Virginia A. McDaniel, Recognizing Modern Maintenance and Cure as an Admiralty Right, IV Ford International L.J. 669 (1991).

Whether M&C falls into the classification as a

contractual or delictual duty that belongs to an independent category has never been determined with definiteness. Mr. Justice Cardozo in Cortes, supra, stated

that: contractual it is in the sense that it has its source

in the relation which is contractual in origin . . . it is

imposed by law, arising out of the nature of his employment and his relationship to the vessel. It is not subject to limitation of liability since maintenance and

cure, is an incident of the employment relation, and

falls into the contract category. Murry v. New York

C.R. Co., 171 F. Supp. 80 (D.C.N.Y. 1959), aff ’d, 287

F.2d 152 (2d Cir.), cert denied, 366 U.S. 945. The seaman’s right to M&C, and the vessel owner’s obligation

to furnish it cannot be abrogated by agreement of the

parties.

In Vaughan v. Atkinson, 369 U.S. 527, 82 S. Ct. 997,

8 L.Ed.2d 88 (1962), the Court addressed an appeal

that had relied on conventional contract rules that an

obligee cannot recover attorney’s fees for a breach of

contract by the obligor. When the Court reversed, it

held that the seaman was entitled not only to his actual damages, but also to an award of attorney’s fees

because the vessel owner’s default was “callous” as well

as “willful and persistent.” The recovery may also include the necessary expenses of enforcing the remedy.

24

The shipowner furnishes each seaman with a

bunk, food, and medical attention as an obligation

which is sometimes called “found.” Thus, maintenance,

namely food and lodging ashore during a period of

recovery from an illness or injury is the landside equivalent of “found” aboard the vessel. Alexandervich v.

Gallagher Bros. Sand & Gravel Corp., 298 F.2d 916 (2d

Cir. 1961).

II.

CERTIORARI SHOULD BE GRANTED TO

DETERMINE WHETHER THE COURT

CREATED CONTRACT BETWEEN THE

SHIPOWNER AND THE SEAMAN FOR

MAINTENANCE AND CURE INCLUDES

THE COSTS OF ENFORCING THE REMEDY.

While there is no congressional statute to construe the doctrine of M&C but it is reinforced by the

Shipowner’s Liability Convention, 54 Stat. 1693, ratified October 29, 1939. Article I of this convention

obliges shipowners to pay compensation to seamen

who are injured or fall sick during their employment.

Article IV provides that the “shipowner shall be liable

to defray the expense of medical care and maintenance

until the sick or injured person has been cured.” Thus,

enforcement of the duty to pay M&C is an international

obligation of the United States. Vella v. Ford Motor Co.,

421 U.S. 1, 95 S. Ct. 1381, 43 L.Ed.2d 682 (1975). The

Convention refers to “defer” the expense. It must include the cost of obtaining the payment.

25

Whenever the seaman becomes ill or is injured in

the service of the vessel even if the illness is not one

associated with the seaman’s occupation, a medical

condition, heart problem, prior illnesses that reoccur

or purely psychological problems, are then entitled to

medical care if the seaman seeks it. Breese v. AWI, Inc.,

823 F.2d 100 (5th Cir. 1987); Sammon v. Central Gulf

S.S. Corp., 442 F.2d 1028 (2d Cir. 1971).

The employer also has rights regarding maintenance and cure, they can file an action under the

declaration under the Declaratory Judgment Act, 28

U.S.C. § 2201, to determine its duty to pay maintenance and cure, Belle Pass Towing Corp. v. Cheramire,

763 F. Supp. 1348 (E.D. La. 1991); Rowan Companies

v. Griffin, 876 F.2d 26 (5th Cir. 1989), as well as when

to terminate benefits, Lancaster Towing, Inc. v. Davis,

681 F. Supp. 387 (N.D. Miss. 1988).

The origins of maintenance and cure can be traced

to the earliest Maritime Law Digest and Sea Codes. It

is found in the Laws of Oleron (Roll D’Oleron) introduced into England by Richard I the Lionheart upon

his return from the Holy Land during his reign from

1189 to 1199. The Osceola, 189 U.S. 158, 169 (1903);

Martin J. Norris, The Seamen as Wards of the Admiralty, 52 Mich. L. Rev. 479, 481 (1954). Etiene Cleirac

gives credit to Eleanor: Us Et Coutumes De La Mer 2

(1661 ed.), and seems to imply in the same passage,

that Richard introduced the Rules to England. The

Law of Admiralty, Gilmore and Black, 2d Ed. 1975,

page 7, note 23.

26

The obligation of the vessel to provide M&C first

appeared in American maritime law in Harden v.

Gordon, 11 F. Cas. 480 (No. 6,047) (C.C.D. Me. 1823).

See also Vella v. Ford Motor Co., 421 U.S. 1, 3-4, 1975

AMC 563, 565 (1975) (stating that the duty to pay

M&C encourages maritime commerce and assures the

well being of seamen).

In the United States, the scope of maintenance

and cure was defined to a large extent at the beginning

of the 19th Century by Justice Story. Harden v. Gordon,

supra, De Zon v. American President Lines, Ltd., 318

U.S. at 667. Harden v. Gordon, supra, construed the

seaman’s contractual articles which contained a clause

obligating the seaman to pay his own medical care in

relation to a Federal Statute compelling American

vessels to carry medicine chests aboard ship for the

purpose of supplying medical aid and relief to the sick

and injured seamen. Act of July 20, 1790, c. 29 § 8, 1

Stat. 135; Act of March 2, 1805, c. 88, 2 Stat. 330.

The vessel owner had argued that if the medicine

chest was on board, the statute absolved it of any duty

to provide and pay for medical services. Justice Story

disagreed. Although the legislation exempted: The ship

from the charge for medicine and attendance there is

nothing that in the remotest degree affects the charge

for board, lodging, and nursing, while the sick seaman

is on shore. This accordingly remains a charge upon

the ship and is to be borne by the owner upon the principles of maritime law.

27

The statutory requirement was auxiliary to that

of the Maritime Law and is a substantial benefit to

seamen by enlarging the means of recovery. M&C were

brought in to American law through English Admiralty Courts which have a tradition of fee shifting different from ours. The meager award was meant to be

kept by the seaman, and paid commensurate with the

need. Otherwise, seamen have no workmen’s compensation for injuries and illness on the job. Working as a

seaman is the most dangerous occupation in America.

Citing, Paul K. Chapman, Trouble on Board: The Plight

of International Seafarers, N.Y. 1992.

In Aguilar v. Standard Oil Co., 318 U.S. 724, 730

(1943), the Supreme Court held a shipowner’s liability

for M&C to be among the “most pervasive” of all and

that it was not to be defeated by restrictive distinctions

nor was it to be “narrowly confined.” Ambiguities or

doubts concerning a shipowner’s liability are to be resolved in favor of the seaman. Warren v. United States,

340 U.S. 523 (1951). Additions were made to the law of

M&C by King John (1199-1216) and it was promulgated anew in the fiftieth year of Henry III (1266). The

original intent of this law was for the seaman to actually get the M&C when it is needed.

The word “cure,” was used with reference to the

shipowner’s obligation to furnish a sick or injured

seaman with M&C, which means care. The word is derived from the Latin “cura” meaning care. Calmar S.S.

Corp. v. Taylor, 303 U.S. 525, 528, 58 S. Ct. 651, 82

L.Ed. 993, 996 (1938). By “maintenance,” what is

meant is sustenance and a berth while aboard ship

28

and the payment in cash to the ill or injured seaman

for the cost of his board and lodging while ashore actually expended by him or the liability for which he incurs.

III. CERTIORARI SHOULD BE GRANTED TO

DETERMINE IF A SHIPOWNER FILING FOR

BANKRUPTCY CAN RELIEVE THE SHIPOWNER OF THE CONSEQUENCES OF THEIR

FAILURE TO PAY THE MAINTENANCE AND

CURE OWED TO THE SEAMAN.

We are seeking to have answered by the Supreme

Court whether or not the judicially created quasicontractual obligation to pay M&C contains the contractual authorization for fee shifting in the taxation

of cost of representation of the Proctor in Admiralties’

defense against sanctions in a bankruptcy court that

is brought about solely as the result of making a claim

bankruptcy and proceeding to having the “Stay” lifted

at the direction of the Admiralty court so that the seaman can continue to pursue his claim for maintenance

in the admiralty court.

Upon receiving a claim for M&C, the vessel owner

does not have to immediately start payment. The vessel owner is entitled to investigate and require corroboration of the claim. If after investigating the claim,

the shipowner rejects that claim and in fact the seaman is due M&C, then the owner becomes liable not

only for the maintenance and cure, but also for compensatory damages if there is an aggravation of the

29

seaman’s condition or if the seaman has to expend

funds to obtain the remedy.

It is still a mystery though, what constitutes a reasonable rejection of a claim for maintenance and cure.

In Morales v. Garijak, Inc., 829 F.2d 1355 (5th Cir.

1987), the Fifth Circuit offered a definition of “reasonable behavior,” if diligent investigation indicates that

the seaman’s claim is not legitimate or if the seaman

does not submit medical reports to document his

claim.

For the seaman to meet his burden in sustaining

his complaint for M&C, he needs to show (a) that he

was a seaman, (b) that his illness or injury occurred,

was aggravated or manifested itself while in service of

the ship, (c) the wages to which he may be entitled to

the end of the voyage, and (d) the expenditures or liabilities incurred by him, the medicines, nursing

care, board and lodging, etc. Barnes had done all of

this by the time that Field had taken over SHR and

Tehani.

The granting or disallowance of costs and fees, is

in the judicial discretion of Courts of Admiralty, and

the widest latitude is often exercised. The Scotland,

118 U.S. 507, 6 S. Ct. 1174, 30 L.Ed. 153 (1886); The

Lilly, 69 F.2d 898 (9th Cir. 1934). Equity principles are

often applied depending upon the circumstances of the

case and the hardship and oppression suffered by one

of the litigants. The Quogue, 47 F.2d 873 (2d Cir.

1931).

30

A seaman’s right to M&C from the shipowner, includes the cost of medical care, food and lodging necessary for the seaman to reach the point of “maximum

recovery.” Thomas J. Schoenbaum, Admiralty and Maritime Law, § 4-28 (2d ed. 1994). It includes the costs of

obtaining the remedy.

Vaughan v. Atkinson, 369 U.S. 527, 532 (1962),

took up the question of when would the seaman get

attorney fees for having to enforce his rights to M&C:

“the respondents were callous in their attitude, making no investigation of [the seaman’s] claim and by

their silence neither admitting or denying it. As a result of that recalcitrance, [the seaman] was forced to

hire a lawyer and go to court to get what was plainly

owed him under laws that are centuries old.” Id. at

531.

The shipowner has a duty to promptly investigate

a seaman’s claim for M&C. So does the trustee in a

Chapter 7 Bankruptcy proceeding where the estate is

managing the seaman’s employer and a vessel. M&C

are entirely judge-created law, a product of the admiralty law. Because seamen are exempted from the

state and federal workers’ compensation statutes, they

have no redress in another forum. There is no statutory

prohibition against either damages or the award of

reasonable fees and costs to obtain M&C. It is part of

every Courts duty to keep their doors open to hear meritorious claims. Congress has remained silent in the

area on M&C because the courts have fashioned this

law.

31

The maritime legal history is intertwined with the

development of railroad workers’ laws, The Regional

Rail Organization Act of 1973, 45 U.S.C. § 726(f )(9) and

the Railroad Revitalization and Regulatory Reform

Act of 1976, 45 U.S.C. § 854(g) both award reasonable

fees of lawyers.

This Court has occasionally taken an interest in

the issue of poverty and the resources of its litigants

such as in Gideon v. Wainwright, 372 U.S. 335 (1963),

where the right to counsel was guaranteed the impoverished client when charged with the commission

of a crime. Public interest litigation under existing

congressional statutes, aimed to correct social wrongs,

occasionally award attorney’s fees and costs. This

sui generius case does not interfere “in the legislative providence by redistributing litigation costs. . . .”

Alyeska Pipeline Service Co. v. Wilderness Society, 421

U.S. 240, 95 S. Ct. 1612, 44 L.Ed.2d 141 (1975).

If a private seaman who has little or no money is

to be able to assert their general maritime law rights

and if shipowners who violate the nations fundamental maritime laws are not to proceed with impunity,

these sea-persons must have the opportunity to recover what it costs them to vindicate these rights in

federal court. The Constitution charges the Court with

this responsibility. U.S. Const. Art. III § 2.

The question is whether in the absence of a statutory authority, Congress intended to authorize such

recovery or whether this Court should authorize recovery given in the quasi contractual nature of M&C.

32

Congress has acted to preserve for the judiciary the

fabrication and administration of M&C. Exempting

seamen from all other workers’ compensation acts

was an affirmative act entirely delegating authority

in this area to the Supreme Court. The health and welfare of these seamen are only the responsibility of the

Supreme Court. Many specific aspects of M&C have

been read into the “quasi-contract” which is implied in

the relationship between vessel owners and their seamen.

IV. CERTIORARI SHOULD BE GRANTED BECAUSE THERE IS A SPLIT IN THE CIRCUITS ON THE STANDARD TO APPLY IN

AWARDING ATTORNEY’S FEES TO OBTAIN MAINTENANCE AND CURE.

The shipowner, knowing that only the actual

amount of maintenance and cure will be awarded

upon the disposition of a legal action is encouraged to

arbitrarily withhold M&C at any time, forcing the seaman to seek counsel, or worse, to settle all their claims

including Jones Act and unseaworthiness just to get

basic medical care and support.

The employer will not be faulted, however, if it

acts in good faith to pay the seamen the legal minimum. Harper v. Zapata Off-Shore Co., 741 F.2d 87 (5th

Cir. 1984). The vessel owners now investigate the

claims and with a white heart and empty head and

just don’t pay the remedy. The standard for paying a

seaman’s attorney fees in a M&C case in the Ninth

33

Circuit was stated in Kopczynski v. The Jacqueline,

etc., et al., 742 F.2d 555 (9th Cir. 1984), to be the reasonableness on the part of the shipowner. If a shipowner was unreasonable in withholding M&C, the

shipowner “may” become liable for attorneys’ fees

arising out of the seaman’s need to legally pursue

what is rightfully owed to him.

The Fifth Circuit en banc in Guevarra v. Maritime

Overseas Corp., 59 F.3d 1496 (5th Cir. 1996), rejected

the claim that the employers’ failure to provide medical treatment or maintenance even if willful, persistent or callous, could permit an award in punitive

damages and held that at best, the recovery could be

for attorneys’ fees under the provisions of Vaughan.

The result was indicated by Miles v. Apex Marine Corp.,

111 S. Ct. 317 (1990).

In the Second Circuit, the standard is the white

heart and empty head test. In Roberts v. S.S. Argentina,

et al., 359 F.2d 430 (2d Cir. 1966) attorneys’ fees will be

denied where the defendant acts in good faith. The

Second Circuit looks for honest disagreements about

entitlement. Bailey v. Moore-McCormack Lines, Inc.,

280 F.Supp. 310 (N.Y. 1967), or “sufficient callousness,”

Gajewski v. United States, 540 F.Supp. 381, 1982

A.M.C. 2830 (D.C. N.Y. 1982); McMillan v. Tug Jane A.

Bouchard, etc., et al., 885 F. Supp. 452 (N.Y. 1995), was

the shipowner in “good faith” investigating. Vaughan v.

Atkinson, supra, focused on the failure to provide

34

M&C. It is just not clear when the seaman’s lawyer

should bet on an award of fees.

------------------------------------------------------------------

CONCLUSION

Friedheim, Gibson and Barnes were ordered by

AJ Kay to go into the bankruptcy court to get the stay

lifted so that we could proceed with the Barnes case

to obtain M&C and pierce the corporate veil and also

hold Henry liable because he was the only human being on the defense side of the equation. With the entry

of Field and Klevansky into the mix they became parties who had responsibilities to administer the assets

they managed as responsible seaman’s employers and

vessel owners. Being required to pay some of the costs

of defending against sanctions they generated is reasonable and not excusable by their own deed of having

misled that court.

For the foregoing reasons we respectfully request

that this Court grants this Petition for Writ of Certiorari.

Respectfully submitted,

JAY LAWRENCE FRIEDHEIM

ADMIRALTY ADVOCATES®

866 Iwilei Road, Suite 201

Honolulu, Hawaii 96817

Telephone: (808) 545-5454

Petitioner Pro Se