# Appendix — Dolenz v. Stuart Yacht Builders, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1991
- **Citation:** 499 U.S. 921

## Text

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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

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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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G Lherehy cortaly and retern (hat Lam enable to locale the Individual, compary, corporation ete, named abuve (Sea remarts bele-

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\ > Cx. {_} creson ting
a a _fendant sus

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Adverts: (complete onty f different than shown above! ORE | mer 4 a
>} * eh a F nen

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La of U reat US Mar pba) or Deper
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aru res
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- { Ja
(OL

TEMAaKS Thhol@s
acEety GolvG oe Ap Cie

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 ’ }
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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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| Whig wate,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_3389%3A3. Public record. Not legal advice.