Appendix — Dolenz v. Stuart Yacht Builders, Inc.

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THE FOLLOWING PA

DEC 26 1990

JOSEPH F. SPANIOL, JR.

CLERK

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1939S)

In re: BERNARD J. DOLENZ, Petitioner

APPENDIX FOR PETITION FOR CERTIORARI

Bernard J. Dolenz

6102 Swiss Avenue

Dallas, TX 75214

(214) 821-0220

TX Bar No. 05957750

Petitioner, Pro Se

Thomas D. Lardin

1901 W. Cypress Creek Rd.

#100

Fort Lauderdale, FL 33309

(305) 938-4406

Counsel for Stuart Yacht

Builders, Inc.

November 29, 1990

TABLE OF CONTENTS

DATE INSTRUMENT PAGE

03/20/87 Brief in support of 1-4

M/Dismiss; M/Reconsider;

(DR 28)

04/03/87 Claim of B. J. Dolenz 5-6

04/06/87 Brief to Support the 7-17

M/Dismiss (DR 54)

09/25/87 Order denying M/Inter- 18-19

vention;M/Dismiss and

M/Reconsider; and Sanctions

(DR 41)

01/04/88 M/Hearing 20-22

01/15/88 Order denying M/Hearing 23-24

(DR 45)

02/04/88 M/Hearing regarding 25-27

Jurisdiction and supporting

Brief (DR 47)

02/11/88 Order denying M/Hearing 28-29

regarding Jurisdiction

(DR 50)

07/05/89 Judgment for Costs and 30-36

Order of release and/or

Sale (DR 73)

08/20/90 Trial Ct. decision 37

AFFIRMED 11th Cir.

08/28/90 M/Rehearing In Banc 38-51

10/16/90 Pet. for Rehearing 52-53

DENIED 11th Cir.

EE eSSSSGGGGG—————.CC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA - ADMIRALTY

DIVISION

STEWART YACHT BUILDERS, INC.,

Plaintiff

Vs. NO.

8668384-CIV-Zloch

ARIES STAR TREK, enrollment

#55798, together with all

tackle and apparel

BRIEF IN SUPPORT OF

MOTION TO DISMISS; MOTION TO RECONSIDER

TO THE HONORABLE JUDGE OF SAID COURT:

THE COURT HAD NO JURISDICTION AS THE

MERITIME LIEN WAS DEFECTIVE AS THERE WAS

NO UNDERLYING MARITIME CONTRACT.

The underlying action = against the

Defendant vessel is defective as it is

basically a dispute over charges, and is

not grounded in a maritime contract.

GENERAL ENGINE & MACH. WORKS, INC. V.

SLAY, D.C. Ala. 1963, 222 F. Supp. 745

holds: "If contract is not directly or

substantially related to navigation,

even though it is to be performed on

1

water, or on board, or for benefit of

vessel, it cannot be_- enforced in

admiralty court."

THE VESSEL IS IN THE PROCESS OF BEING

BUILT AND HAS NEVER BEEN FINISHED, AND

THEREFORE CANNOT BE GROUNDED IN A

MARITIME CONTRACT

NILG BARGE LINE, INC. V. M/V_ BAYOU

| DULARGE, CA NO. 1978, 584 F 2D 84 holds:

| "Contract for building or _ supplying

materials for original construction and

outfitting of ship is not maritime

contract.*

TROPWOOD, A.G. V. TAE CHANG WOOD

INDUSTRY CO., LTD. D.C. ILL. 1978, 454

F. Supp. 964 holds: "In general, to

invoke admiralty jurisdiction over a

contract, subject matter must be wholly

maritime in nature; contract must

directly concern navigation or commerce

on navigable waters."

MELISSA KEYES HAD EQUITABLE TITLE TO THE

DEFENDANT VESSEL MARCH 16 AS THE

2

EE

ASSIGNMENT TO BERNARD DOLENZ HAD _ NOT

BEEN DELIVERED TO HIM OR HIS ATTORNEY,

AND HER ATTORNEY SHOULD NOT HAVE BEEN

PERMITTED TO WITHDRAW UNDER THE

CIRCUMSTANCES ; OR IF PERMITTED, THE

TRIAL SHOULD HAVE BEEN CONTINUED.

“Where the assignment is by a written

instrument, simply signing or

acknowledging the instrument is not

sufficient to transfer the property, and

delivery of the instrument is necessary

to complete the assignment. "HEYMAN V.

KLINE, D.C. Conn., 344 F. Supp. 1088,

affm in part and reversed in part on

other grounds, D.A., 456 F2d 123, cert.

Gen. 93 6. CE. 83; 469 U.S. 049, 34 L.

Ed. 2d 88.

So, the mere endorsement of a transfer

on an instrument without proof of

delivery, will not be sufficient to

establish the assignment thereof.

ILLINOIS POWDER MFG. CO. V. SECURITY

(CAPTION) -U.S. DISTRICT COURT

CLAIM OF BERNARD J. DOLENZ

COMES NOW, BERNARD J. DOLENZ, and presents

his claim as follows:

1. BERNARD J. DOLENZ is the owner of the

Seized property identified as the "ARIES

STARTREK, ENROLLMENT NO. 555798, TOGETHER

WITH ALL TACKLE AND APPAREL", of said

vessel. On March 14, 1987, an agent of

Melissa Keyes gave an oral assignment of

the above seized property to Bernard J.

Slenz in Dallas, TX which was) ratified

subsequently by Melissa Keyes, said

assignment being notorized March 23, 1987,

and being delivered in Dallas, TX on March

26, 1987 to Bernard J. Dolenz.

2. BERNARD J. DOLENZ is the owner of the

aformentioned vessel and any of its

tackle, apparel, appurtenances and other

i'ulpment in the possession of the

aintiff, both at the shipyard at 450

ithwest Salerno Road, Stuart, Florida,

494, the Mini Bay Use Storage, at 1105

'h.E. Industrial Boulevard, Jensen Beach,

lorida, storage bin no. 199 and any other

Location to which any of t}

appurtencances, tackle and other equipment

t whatever location said equipment has

en removed and placed.

BERNARD J. DOLENZ, as the ,owner of the

RIES STARTREK" and

ppurtenances, apparel and equipment

demands its restitutiow and the right to

defend this action.

rnard J. Dolenz

(Notarized April 3, 1987)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORID

ADMIRALTY DIVISION

CASE NO. 8€~8384-CIV-ZLOCH

STEWART YACHT BUILDERS, INC.

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Contract >| } > | i L >| >|

An inspection of the Plaintiff's

documents cenfire that exploratory

carpentry, design and engineering, keel

fabrication, design engineering’ and

consultation, placing in a= stearing

system, and alterations to the vessel

all relate to the original construction

of the vessel. EXHIBIT "A"

This contract, being one for services of

a ship, does not furnish a basis for a

Claim within the admiralty jurisdiction

provided for in 28 USCS Section 1333(1).

In Bond v. F/V Mermaid (1970, DC Fla)

311 F. Supp 1013, a naval architect

filed a complaint in rem against a

vessel for alterations and additions to

its plans ordered by the owners of the

Defendant vessel, asserting admiralty

jurisdiction, but the Court found that

the extra work performed, that is,

drafting, conferences, calculations, and

the like, all related to the original

construction of the vessel, and that

services furnished under the _ later

agreement for changes were supplied in

contemplation of completing the original

undertaking for the design and

supervision of the vessel's

construction. This contract, being one

for services furnished in the

construction of a ship, does not furnish

a basis for a claim within the admiralty

jurisdiction provided for in 28 USCS

Section 1333 (1), the Court concluded.

The Plaintiff's own invoices and

statements indicate that Mr. Burdick

knew that the boat was "only about 70%

completed". EXHIBIT "B". In EXHIBIT

"B", Burdick indicates that he is in the

process of re-designing the unfinished

boat. the bottom-side still required

interior finishing, installation of

wiring, plumbing, steering mechanisms,

engine fittings, desk fittings, masts-

and riggings. The boat was never

—e

eRe ace a

completed because of lack of funds to

complete her by the previous owners.

Lack of jurisdiction may be raised at

any time, even upon a second appeal of

an action in which the point was never

raised in the trial court, and was not

advanced in a previous appeal (Flota

Maritima Browning de Cuba, Sociadad

Anonima v. Snobl (1966, CA4 Md) 363 F2d

733, cert den 385 US 837, 17L Ed 2d 71,

87 S Ct 82), and when raised must be

examined and decided (Armstrong Cork Co.

v. Farrell Line, Inc. (1948, DC Pa) 81 F

Supp 848). Or the court itself may

raise the issue, and, consequently,

Plaintiff's counsel must be prepared to

demonstrate admiralty jurisdiction to a

court's satisfaction, and his failure to

cary this burden when called upon by the

Court, even though Defendants counsel

also argues to the Court that there is

no problem as to jurisdiction, will

result in dismissal (Rhederei Actien

10

Gesellschaft Oceana v. Clutha Shipping

Co. (1915, DC Md 226 F 339).

Agreements for alterations and additions

to plans ordered by the owners are not

maritime contracts’ and, hence, not

within the purview of admiralty

jurisdiction. This holding has been

repeated many times by decisions of the

United States Supreme Court beginning in

1857 with People's Perry Co. v. Beers

(1857) 61 US 393, 15 L Ed 961. People's

Ferry held that District Courts of the

United States had no jurisdiction to

proceed in admiralty to enforce liens

for labor and materials furnished in

constructing vessels to be employed in

the navigation of waters to which the

admiralty jurisdiction extends, pointing

out that liens on vessels’ encumber

commerce.

The Court said that it would be a

strange doctrine to hold the ship bound

in a case where the owner made the

11

ee

contract in writing, charging himself to

pay by installments for building the

vessel at a time when she was neither

registered nor licensed as a seagoing

ship, and that as to the contract being

purely maritime and touching rights and

duties appertaining to navigation, it

waS a contract made on land, to be

performed on land, the wages of the

shipwrights having no reference to a

voyage to be performed, so that they

were bound to rely on their contract.

In Thames Towboat C. v. The Schooner

"Francis McDonald" (1929) 254 US 242, 65

L Ed 245, 41 S C t 65, the United States

Supreme Court held that the Plaintiff's

contract to furnish materials, work, and

labor for her completion made after the

schooner was launched BUT WHILE NOT

SUFFICIENTLY ADVANCED TO DISCHARGE THE

FUNCTIONS FOR WHICH SHE WAS’ INTENDED,

was not within the admiralty = and

maritime jurisdiction. (Emp. added).

12

i

THE DEFENDANT “ARIES STAR TREK" IS NOT A

VESSEL

"The word ‘vessel' includes every

description of watercraft or other

artificial contrivance used, or capable

of being used, as a means of

transportation on water." Act of July

18, 18966 Ch 201 Section 1, 14 Stat 178,

incorporated into the Revised Statutes

as Section 3.

The “Aries Star Trek" has never been

seaworthy, and has never been capable of

being used as a means of transportation

on water. Basically, this is why the

"Aries Star Trek" was placed in the

Plaintiff's hands so that she could

become seaworthy. The Defendant never

had a crew or machinery in operation

that would make it navigable.

13

ALTERNATIVELY, DEFENDANT "ARIES STAR

TREK" WAS A "DEAD SHIP".

Assuming that the Plaintiff contends

that the Defendant "Aries Star Trek" was

launched, which is denied by the

Defendant, it should be clear that the

"dead ship" doctrine would apply as the

Defendant was withdrawn from any

maritime activity or navigation and

therefore would not fall within the

admiralty jurisdiction. "A ship is made

to plough the seas, and not to lie at

the walls." The Poznan (1925, CA2 NY) 9

F 2d 838, revd on other grounds New York

Dock Co. v. The Poznaiu, 274, US 117, 71

L Ed 955, 47 S Ct. 482.

In Nanna v. The Meteor (1950, DC NY) 92

F. Supp 530, affd (CA2) 184 F2d 439,

cert den 349 US 933, 95 L Ed 673, 71S

Ct 497, the Meteor had been part of a

reserve fleet which was purchased by the

Plaintiff from the US Maritime

14

| .

Commission. The boat's Coast Guard

Certificate of Inspection had expired,

as had her Certificate of Enrollment and

license with the Bureau of Customs. The

vessel was towed to New York where

painting services were performed, and

during that period it had no crew,

light, heat, or power, and no machinery

in operation. The Court found that in

order for the Meteor to have been

returned in navigation and commerce,

there would have been required very

extensive repairs AND PROPER

DOCUMENTATION, and concluded that the

Meteor was a “dead" ship.

This is analagous to the Defendant

"Aries Star Trek" as it needs extensive

work before it can even be seaworthy,

and will require proper documentation

before it can be returned for navigation

and commerce.

The "dead ship" doctrine was considered

in Hercules Co. v. The Brigadier General

15

Absolom Baird (1954, CA3 NJ) 214 F2d 66,

where the District Court found as fact

that at the time of labor and services

for which a maritime lien was sought,

the vessel "was not in commission and

she was unable to sail, ™" and concluded

that no maritime lien arose under 46 USC

Section 971.

The Defendant is not in commission and

is not able to sail as the top-side has

never been out-fitted with masts and

rigging.

PRAYER

WHEREFORE, PREMISES CONSIDERED, the

Defendant prays of the Court to dismiss

this action as it lacks jurisdiction,

there was no maritime contract’ the

Defendant “Aries Star Trek" is not a

vessel as defined in Admiralty Law; and

alternatively, that the Defendant is a

"dead ship", and for Rule 11 Sanctions

16

against the Plaintiff as the Court may

deem proper for the vexatious and

frivolous lawsuit brought into this

Court without jurisdiction; and _ for

costs of Court and attorney fees.

expended in defending this case; and for

general relief.

Respectfully submitted,

Bernard J. Dolenz, J.D., M.D.

CERTIFICATE OF SERVICE

On the 4th day of April, a copy of the

foregoing instrument and Claim of

Bernard J. Dolenz was sent by regular

mail to Steven Perry, P.O. Drawer 24,

Stuart, FL 33495-0024.

17

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO, 86-8384-CIV-ZLOCH

STUART YACHT BUILDERS, INC.,

a Florida corporation,

Plaintiff,

vs. ORDER

ARIES STARTREK, Enrollment

No. 555798, together with

all tackle and apparel,

Defendant.

/

THIS MATTER is before the Court upon the

Motion for Intervention (DE 25), the Motion

To Dismiss and Motion To Reconsider (DE 27)

and the Motion-for Sanctions (DE 35) filed

herein by Bernard Dolenz and the Court

having reviewed the merits of said Motions,

having reviewed the court file and being

otherwise fully advised in the premises, it

is

ORDERED AND ADJUDGED as follows:

18

The Motion For Intervention (DE 25)

filed herein by Bernard Dolenz be anda

the same is hereby DENIED;

y The Motion to Dismiss And Motion to

Reconsider (DE 27) filed herein by Bernard

Dolenz be and the same is hereby DENIED; and

oe The Motion for Sanctions (DE 353) be

and the same is hereby DENIED.

DONE AND ORDERED in Chambers at Ff

= « . R . 1 - ga . . & as 3S mm a < ,

Lauderdale, broward County, faQOl iG C |

4

5 + Mon 2 Cans ~= }]QR7

25th aay =P eeprembde! ’ AYVOQOd «

WILLIAM J. ZLOCH

United States District Juda

les furnis

Bernard Dolenz,

stephen Perry, Esq.

+

19

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA -

ADMIRALTY DIVISION

STUART YACHT BUILDERS, INC.

Plaintiff,

Vv.

ARIES STARTREK,

Defendant.

No. 86-8384-CIV-ZLOCH

(Filed January 4, 1988)

MOTION FOR HEARING

COMES NOW, Bernard J. Dolenz, owner of

the Defendant, Aries Startrek, and re-

spectfully moves this Court for an Order

for a Hearing, and for grounds would show

as follows:

1. There is pending before this Court

the Defendant’s Second Motion to Dismiss,

and Alternatively, to Increase Insurance

and to Impose Sanctions for Failure to

Maintain the Vessel. This Motion was

sent October 12, 1987.

2. The unfinished craft is still dete-

20

riorating under the care of the

Plaintiff, even though the Plaintiff had

assured the Court that it would take care

of the craft properly.

3. These delays have caused the Defend-

ant craft serious harm and deterioration,

and therefore there is urgency to have

this Honorable Court make a disposition.

The Defendant urges that this case is

inappropriately before this Court for the

reasons previously given, and this De-

fendant urges that this case be dismissed

with appropriate relief for the harm done

to the craft while under the stewardship

of the Plaintiff.

Respectfully submitted,

Bernard J. Dolenz, J.D., M.D.

NOTICE OF MOTION

TO: Steve Perry, P. O. Drawer 24, Stuart,

FL 33495-0024. ‘

Please take notice that on , 1988, at

21

__ o'clock __.m. or as soon thereafter as

counsel can be heard, in Room __, United

States Courthouse, the undersigned will

bring the Second Motion to Dismiss, and

Alternatively, to Increase Insurance and

to Impose Sanctions for Failure to Main-

tain the Vessel on for hearing.

DATED: December 31, 1987.

Bernard J. Dolenz, J.D., M.D.

CERTIFICATE OF SERVICE

This is to certify that a copy of the

foregoing instrument was sent by regular

mail to Steven Perry, P. O. Drawer 24,

Stuart, FL 33495-0024 on this the 3lst

day of December, 1987.

Bernard J. Dolenz, J.D., M.D.

PhO

ae)

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 86-8384-CIV-ZLOCH

STUART YACHT BUILDERS, INC.

a Florida Corporation,

Plaintiff,

Vv. ORDER

ARIES STARTREK, ENROLLMENT

NO. 555798, TOGETHER WITH

ALL TACKLE AND APPAREL,

Defendant.

THIS MATTER is before the Court upon the

Motion For Hearing (DE 44) filed nerein by

Bernard J. Dolenz, and the Court having

carefully considered the merits of said

Motion, having reviewed the court file and

being otherwise fully advised in the

premises, it is

ORDERED AND ADJUDGED that the Motion For

23

Hearing (DE 44) filed by Bernard J. Dolenz

be and the same is hereby DENIED.

DONE AND ORDERED in Chambers at Fort

Lauderdale, Broward County, Florida, this

15th day of January, 1988.

William J. Zloch

U.S. Dist. Judge

tuntile furnished:

Steven L. Perry, Esq.

Bernard J. Dolenz, J.D., M.D.

6102 Swiss Avenue

Dallas, TX 75214

(Filed January 15, 1988 with Robert M.

March - Clerk U.S. District Court).

24

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Cause No. 86-8384-CIV-ZLOCH

STUART YACHT BUILDERS, INC.,

a Florida Corporation,

Plaintiff,

V.

ARIES STARTREK, ENROLLMENT NO. 555798,

TOGETHER WITH ALL TACKLE AND APPAREL,

Defendant.

MOTION FOR HEARING REGARDING JURISDICTION

AND SUPPORTING BRIEF

NOW COMES, Bernard J. Dolenz, and moves

for a Hearing regarding Jurisdiction in

the case.

1. Bernard J. Dolenz is the owner of the

Aries Startrek, the seized property, and

his claim of ownership was sent on April

3, 1987 with supporting documents.

2. The “boat" has never been complete,

25

ca

e

United States District Court

Southern District of Florida

Case No. 86-8384-CIV-ZLOCH

FILED JULY 5, 1989

Stuart Yacht Builders, Inc.,

a Florida Corporation,

Plaintiff,

V.

Aries Startrek, Enrollment No. 555798,

together with all tackle and apparel,etc.

in ren,

Defendant.

JUDGMENT FOR COSTS AND ORDER

OF RELEASE AND/OR SALE

THIS MATTER is before the Court, sua

sponte, upon the Final Judgment (DE 51)

entered in this cause on February 16,

1988, upon Plaintiff, Stuart Yacht Build-

ers, Inc.’s, Motion for an Award of Costs

(DE 52), upon the Affidavit (DE 65) of

Gregory Noyes Burdick, Substitute

Custodian, filed in support of costs and

expenses incurred subsequent to the Final

Judgment (DE 51), and the Affidavit of

30

Davie Lowe, IV, Edward Clifton, and

Gregory Noyes Burdick, all bearing

Clerk’s Stamp dated June 19, 1989, and

the Court has carefully reviewed said

Final Judgment, Motion and Affidavits,

has reviewed the court file and is other-

wise fully advised in the premises.

Accordingly, it is

ORDERED AND ADJUDGED as follows:

Rs Plaintiff, Stuart Yacht Builders,

Inc.’s Motion for an Award of Costs (DE

52) be and the same is hereby GRANTED and

the Court hereby awards costs to Plain-

tiff incurred as Substitute Custodian

from the February 16, 1988, judgment date

through July 5, 1989, in the amount of

$20,433.93, for which let execution issue

in accordance with the Final Judgment (DE

51) entered in this cause of February 16,

1988. This amount is calculated as

follows:

31

a. Routine Maintenance (499 days x

$3.517/day [$25.00/week]) $1,754.98

b. Hull Insurance (16 17/31 months @

$219.00/mo. ) 3, 624.10

c. Mini Bay Storage (16 17/31 months @

$121.90/mo. ) 2,017.25

d. Storage Charges ($.20/day/foot x

72/foot = $14.40 x 499 days) 7,185.60

e. U.S. Marshall Insurance Premium

($1,000.00 [3/88]) + $500.00 [10/88] +

$200.00 [12/88] + $200.00 [2/89] +

$285.00 [4/89] + $155.00 [5/89]) 2,340.00

f. February 16, 1988 judgment amount of

$38,899.88 at the then effective legal

Federal interest rate of 6.59% per annum,

for 499 days 3,512.00

TOTAL $20,433.93

2. The Court, having given the prior

Claimant, Melissa Keyes, her heirs,

successors, or assigns, a right of first

purchase, prior to sale by the U.S.

32

Mariw al, of Defendant vessel, for an

amount equal to the amount of Final

Judgment (DE 51) ($38,899.88) plus the

subsequent costs and expenses awarded to

the Substitute Custodian ($20,433.93),

hereby gives the prior Claimant, Melissa

Keyes, her heirs, successors, or assigns,

notice that it has thirty (30) days from

the date of this Order in which to tender

a cashier’s check in the amount of

$5$,333.81, to Steven L. Perry, Esq.,

counsel of record for Plaintiff, in full

satisfaction of Plaintiff's claims to the

Defendant vessel;

3. Upon the tender of said payment,

Plaintiff shall immediately surrender the

Defendant vessel to the prior Claimant,

Melissa Keyes, her heirs, successors, or

assigns, at which time Plaintiff shall be

relieved of all further duties and re-

sponsibilities as Substitute Custodian in

; 33

the above-styled cause; and

4. At the expiration of this thirty day

period, if the prior Claimant, Melissa

Keyes, her heirs, successors, or assigns,

have not tendered said payment, Plaintiff

shall immediately undertake the necessary

steps to accomplish the following:

a. The ARIES STARTREK, Enrollment No.

555798, together with all tackle and

apparel, etc, in rem, shall be sold by

the United States Marshal, Southern

District of Florida, free and clear of

all liens from preexisting claims on the

vessel, whether recorded or otherwise, in

accord with appropriate U.S. statutes and

Supplemental Rules, Fed. R.Civ. P.;

b. Plaintiff shall be entitled to bid

$359,333.81;

c. Notice of such sale shall be made by

advertisement pursuant to the Rules of

the Court, and the reasonable cost of

such advertisement shall be advanced by

Plaintiff and constitutes a taxable cost

of this action. If the Plaintiff is the

purchaser of the vessel, the clerk shall

credit the Plaintiff's bid with the total

sums due pursuant to the Judgment togeth-

er with interest and any costs incurred

subsequent to the Judgment;

d. The proceeds of such sale, upon

confirmation by the Court, shall be paid

by the United States Marshal into the

Registry of the Court to await and abide

further order of this Court; and

e. Upon holding the sale, a single

Certificate of Sale, Certificate of Title

and Certificate of Disbursement shall be

filed as to the vessel sold and the

proceeds of the sale shall be applied to

the Judgment of Record and to satisfy any

costs incurred by Plaintiff subsequent to

the Judgment. In the event that there is

an excess above and beyond the Judgment

and costs, this amount shall be placed in

the registry of the Court to be disbursed

upon the application of the individuals

claiming to be the owners of the vessel

at the time this Judgment was entered.

DONE AND ORDERED in Chambers at Fort

Lauderdale, Broward County, Florida, this

Sth day of July, 1989.,

S/S

William J. Zloch

United States District Judge

Copies Furnished to:

Steven L. Perry, Esq.,

for Plaintiff

Melissa Keyes, Pro Se, Claimant

c/o Turks Island Divers

hotel Kittina

P. O. Box 281

Grand Turk

Turks and Caicos, British West Indies

36

Nos. 89-5720 and 89-5852

Non-Argument Calendar

D. C. Docket Nos. 86-08384-CIV-WJZ,

No. 86-8384-CIV-ZLOCH

STUART YACHT BUILDERS, INC.,

a Florida Corporation,

Plaintiff-Appellee,

versus

ARIES STARTREK, ENROLLMENT NO.

555798, together w/all tackel

and apparel,

Defendant,

BERNARD DOLENZ,

~ Claimant-Owner-Appellant.

Appeals from the United States District Cou

for the Southern District of Florida.

(August 20, 1990)

Before FAY, KRAVITCH and COX, Circuit Judges.

PER CURIAM: AFFIRMED. See 11th Cir. R. 36-1.

37

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

NOS. 89-5720 and 89-5852

Non-argument Calendar

D.C. Docket Nos. 86-08384-CIV-WJZ,

86-8384-CIV-WJZ

STUART YACHT BUILDERS, ‘INC.,

a’Florida Corporation,

‘Plaintiff/Appellee,

ARIES STARTREK, ENROLLMENT NO.

555798, together w/all tackel

and apparels. ....

Defendant, .

: BERNARD _ DOLENZ,

Claimant/Oyner/Appel lant.

Appealed from the U.S. District Court

for the Southern District of Florida.

MOTION FOR RE-HEARING IN BANC

Bernard J. Dolenz

6102 Swiss Avenue

Dallas, TX 75214

214-821-0220

TX Bar Card ‘No: 05957750

38

. “Ayan,

a S” Saw

.

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shee eS hal

Sg ae :

ipa

Se eg

TO THE HONORABLE JUSTICES OF THE ELEVENTH

CIRCUIT:

1. While the Court affirmed the Triel

Court’s judgment on August 20, 1990

pursuant to llth Cir. R. 36-1, the Appel-

lant is requesting a Re-hearing as the

opinion rendered seems to be in such

conflict with precedents of the Supreme

Court and case law as to cause this to be

brought to the attention of the entire

Court.

2. In this regard, Federal Courts are of

limited jurisdiction, and are empowered

to hear only such cases as are within the

judicial power of the United States, as

defined in the Constitution and have been

entrusted to them by a jurisdictional

grant by Congress. Wright, LAW OF FEDER-

AL COURTS, p. 17. Whether a Federal

Court has jurisdiction or not is such a

fundamental issue that it can be raised

39

—_—< mL!

for the first time on appeal. 2 Am Jur

2d, 842, Section 202.

3. The Appellant contends that the Triai

Court lacks jurisdiction, and the case

should be dismissed as no admiralty law

can attach to a vessel that has never

been finished, commissioned, and is still

under construction. As evidence are

three documents that have been before the

Court that reflect that this vessel was

not complete. These documents are an-

nexed, and are:

a. The U.S. Marshall’s statement in

the record showing that the "... vessel

is incomplete, under construction, and

empty of equipment..."

b. The Appellee’s marine surveyor

statement that the vessel was never

completely finished or commissioned.

c. The Appellee’s statement quoted

in newspaper articles that the boat was

40

about 70% completed.

I.

THE APPEALS COURT ERRED IN GIVING AFFIRM-

ANCE WITHOUT OPINION AS THE FINDINGS OF

FACT AND CONCLUSIONS OF LAW ARE ERRONE-

OUS.

In this regard, Findings of Fact l, 5,

14, and Conclusions of Law 1, 4, 5, 6, 7,

9, and 10 were all controverted and

arguments were given in the Appellant’s

Brief.

El.

THE APPEALS COURT ERRED AS THE JUDGMENT

HAD SEVERAL ERRORS OF LAW; THE MOST

GLARING BEING THAT THE TRIAL COURT HELD

THAT IT HAD JURISDICTION, WHEN IN FACT IT

re* COULD NOT HAVE JURISDICTION IN ADMIRALTY

OVER AN UNFINISHED OR UNCOMMISSIONED

BOAT.

If there is no basis under 28 USC, Sec-

tion 133 or 46 USC, Section 971i, then

41

surisdiction fails as a maritime contract

is necessary to invoke jurisdiction under

those statutes. If there is an exception

where an unfinished or uncommissioned

vessel can come under the pervue of those

Statutes, this Appeals Court should

address it as for over a century, sup-

plying materials for construction of a

vessel is not a maritime contract.

PEOPLE’S FERRY CO. V. BEERS, (1857) 61 US

(20 How.) 393, 15 L Ed, 961.

"Even after the vessel was launched,

while she is not yet sufficiently ad-

vanced to discharge the functions for

which she is designed, the materials,

work, and labor for her completion are

not the subject-matter of admiralty

jurisdiction". THAMES TOWBOAT CO. V. THE

FRANCIS McDONALD, (1920) 254 US 242, 65 L

Ed 245 41 Sup Ct. Rep. 65.

Here, the Appellee admits in the news-

42

papers and affirms in its billing that it

was to finish this unfinished vessel.

Therefore, this case has no business in

admiralty as the contract does not deal

directly with navigation of commerce on

navigable waters. GENERAL ENGINE & MACH.

WORKS, INC. V. SLAY, D.C. Ala. 1963, 222

F. Supp. 745.

An inspection of the Appellee’s billings

and statements confirm that exploratory

carpentry, design and engineering, keel

fabrication, design engineering and

consultation, placing in a stearing

system, and alterations to the vessel all

relate to the original construction of

the vessel.

This contract, being one for services of

a ship, does not furnish a basis for a

Claim within the admiralty jurisdiction

provided for in 28 USCS Section 1333(1).

43

In BOND V. F/V MERMAID (1970, DC Fla) 311

F. Supp 1013, a naval architect filed a

complaint in rem against a vessel for

alterations and additions to its plans

ordered by the owners of the Defendant

vessel, asserting admiralty jurisdiction,

but the Court found that the extra work

performed, that is, drafting, confer-

ences, calculations, and the like, all

related to the original construction of

the vessel, and that services furnished

uner the later agreement for changes were

Supplied in contemplation of completing

the original undertaking for the design

and supervision of the vessel‘s construc-

tion.

This contract, being one for services

furnished in the construction of a ship,

does not furnish a basis for a claim

within the admiralty jurisdiction provid-

ed for in 28 USCS Section 1333(1), the

44

Court concluded.

III.

THE APPEALS COURT ERRED AS THEIR OPINION

WOULD HAVE PRECEDENTIAL VALUE, AND AN

OPINION SHOULD BE RENDERED REGARDING HOW

AN UNFINISHED AND UNCOMMISSIONED VESSEL

CAN SATISFY THE JURISDICTIONAL REQUIRE-

MENT OF INVOKING ADMIRALTY LAW IN FEDERAL

COURT.

The Appellant contends that the Court is

unable to tind any case law that would

give Federal Courts jurisdiction over an

unfinished or uncommissioned vessel, and

that it would be in error for the Appeals

Court to not dismiss this case for lack

of jurisdiction.

Lack of jurisdiction may be raised at any

time, even upon a second appeal of an

action in which the point was never

raised in the Trial Court, and was not

advanced in a previous appeal (flota

45

Maritima Browning de Cuba, Sociadad

Anonima v. Snobl (1966, CA4 Md) 363 F 2d

733, cert den 385 US 837, 17L Ed 2d 71,

87 S Ct. 82), AND WHEN RAISED MUST BE

EXAMINED AND DECIDED (Armstrong Cork Co.

v. Farrell Line Inc. (1948, DC Pa) 81 F

Supp 848). (Emphasis added).

Here, the Appellant, pursuant to ARM-

STRONG CORK, supra, contends that the

Appeals Court should decide the jurisdic-

tional issue and give a determination

that an unfinished and uncommissioned

vessel cannot have jurisdiction in Feder-

al Court.

IV.

THE APPEALS COURT ERRED AS THEIR OPINION

WOULD HAVE PRECEDENTIAL VALUE IN SHOWING

HOW THE APPELLANT HAD DUE PROCESS TO

DEFEND THE DEFENDANT VESSEL, EVEN THOUGH

THE TRIAL COURT WOULD NEVER GRANT A

HEARING EVEN THOUGH REPEATEDLY REQUESTED

45

TO DO SO.

The Appellant has never met the Judge,

and has never had a hearing before the

Court, even though requested by Motion

for Hearing. This conduct seems strange,

and appears violative of the 5th and 14th

Amendments.

CONCLUSION

The Appellant prays that this Honorable

Court will set in banc and review the

jurisdictional aspects and find upon the

review that the Federal Trial Court below

lacked jurisdiction, and that all judg-

ments and orders be voided by that Court

for lack of jurisdiction, and for general

relief.

Respectfully submitted,

~

Bernard J. Dolenz

47

CERTIFICATE OF SERVICE

2rtify that a Copy of the

/regoing instrument has been

sent by

eon wos / g f nie ~ mS

pias Lt ec aee LUA) a > en ew

Fe YACHT’ DUILDGRS.! INC: ; Sines re pel ZC f

orn Tre ®

Mts" sTARTREK ENROLLMENT NO. §$5790, TOGETHLR WITH

LL TAC GIVIL- Je REM

SERVE NAME OF INDIVIDUAL, COMPANT, CORPORATION, ETC. TO SERVE OR DESCRIPTION UF PROPERTY TOS! ° OR COMUL SIN

ARIES STARTREK , at

) } SDDRESS Limect or RFD. Apertment Ne., City. State ond LIP Code Teen

wai? Salerno Rd., Stuart. Florida 33494

AT EJo parce P.R> 2107 ae

SEND NOTICE OF SERVICE C cory TO 'O REQUESTER aT NAME AND ADDRESS | BELOW: | Number of process to be

TY perved with this Form - 285 l

ak: BUCHANAN, BOWDISH 4G BOVIE, CHTD. a —_—

'

ATTN: STEVEN L.PERRY a | i

555 Colorado Avenue, Suite One t _| —

[ Seer Florida 33495 | Chech for service th

on USA

ermare Addre ‘

SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE Unclode Burress end A!

Tr apne Numbers, oad Estumaccd Times Available For Service) a alt eR

rhe vessel io locaied at the ebove eddcress. This is the business address of the

Plaintiff anc service may be arranged et any time including weekends by

the Plaintiff at 283-1947. 4

AAP

a EE — — wee -

Sig ratvre of Attorney ot coher Or nator requesting service on behall of & PLAINTIFF TELEPHONE NUMUCR

U DCFENDANT S 247-2

{ 305) é

SPACE BELOW FOR USE OF U.S. MARSHAL ONLY — DONO] WRITE BELOW 1 \%

le. snowledge ene towel Tenet Process | Castelet District Sigaeiere of Authorued USMS Depwly or ' ‘ Ss De al

rember of process lodicated of Origia to Serve |

tSye onty Arse USM 245 yf more |

than ane USM 265 1 pebmaied No 04 Me. 04 ‘ .

——>—— —————— ———— te j-———_- — - -

| bereby certify and retwra thal! © have per reonally Re wareet = have legal evidence of servke ona ec racveted as shonin Beart

Gea nbed on the individvel, company, corporstion, eic., at the eédreas shown adore oF on (he ndifidusl. company angne one how rh ts

tewened below

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ATTACHED \PUBYTORH.) VESSEL \-

VOOM PLETE, YVPOEP COST R, CF

AID BEMPYOF seunilme i...

(DR 7)

49

40 SW Hideaway Place

Stuart, FL 33497

Consulting 5SSSSSSSSSSSSSSSSSS<

SURVEY REPORT

SUMMARY :

..-This vessel ...has never been

completely finished or commissioned...

Modifications to the vessel are being

considered...The vessel has no standing

Or running rigging...The work to com-

plete and commission this vessel is

being done by Stuart Yacht Builders of

Stuart, Flroida. It is recommended that

when the vessel is completed a survey

to update these findings and a sea

trial be conducted.

(Statements of Plaintiff's expert)

50

1

f

larges} catamarans |

One-ot world's

s a : nen el

is in Stuart

* From poge Al

P chs sed it,

The ‘amily worked on the boot |

evera YORE Leaps 3 ) ; ire es

oF tae fille eee

“kKestimates the boatis

Sie: cealoomeres .

sui for personal reasons the coupin

Jas ; unable to fin h the job and two

ars ago they moved out of the stale,

4 ’ }

“~~ y Met.

conf . At - a an i oad

ving f (eles reo. i, 8 smal

6s 4 5

ef OF Li ULF OTK

.

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Filed October 16, 1990

No. 89-5720

89-5852

STUART YACHT BUILDERS, INC.,

Plaintiff-Appellee,

V

ARIES STARTREK,

Defendant,

BERNARD DOLENZ,

Claimant-Owner-Appellant.

On Appeal from the United States District

Court for the Southern District

of Florida

ON PETITION(S) FOR REHEARING AND SUGGES-

TION(S) OF REHEARING EN BANC

(Opinion August 20, 1990, llth Cir.,

198, F.2d ir

(October 16, 1990)

Before: FAY, KRAVITCH and COX,

Circuit Judges.

PER CURIAM:

(X) The Petition(s) for Rehearing are

DENIED and no member of this panel nor

other Judge in regular active service on

the Court having requested that the court

be polled on rehearing en banc (Rule 35,

52

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Sugges-

tion(s) of Rehearing En Banc are DENIED.

( ) The Petition(s) for Rehearing are

DENIED and the court having been polled

at the request of one of the members of

the Court and a majority of the Circuit

Judges who are in regular active service

not having voted in favor of it (Rule 35,

Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Sugges-

tion(s) of Rehearing En Banc are also

DENIED.

( ) A member of the Court in active

service having requested a poll on the

reconsideration of this cause en banc,

and a majority of the judges in active

service not having voted in favor of it,

Rehearing En Banc is DENIED.

—— FOR THE COURT:

Phyllis Kravitch

United States Circuit Judge

53

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