Petition for Writ of Certiorari — Benetic ex rel. Benetic Family Trust v. M/Y ATHENA ALEXANDER

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No. CG AGAE1 pan 1° 20049

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3n The

Supreme Court of the United States

NICHOLAS J. BENETIC, and SANDRA L. BENETIC,

as Trustees of the Revocable BENETIC FAMILY TRUST -—

dated: September 22, 1993,

Petitioners,

M/Y ATHENA ALEXANDER, Official No. 1083627

and her Engines, appurtenances, etc., In Rem,

AND

DIMITRI BIZOUMIS, ALEX KATS, VALERIE KATS

& BAYPORT YACHTS, INC., a California Corporation,

and DOES 1 through 10,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

NICHOLAS J. BENETIC & SANDRA L. BENETIC

Trustees of the Revocable

Benetic Family Trust dtd.: 09/22/1993

2708 Foothill Bl. #402

La Crescenta, California 91214-3516

Tel. (213) 268-8420

Msg. & Facsimile (213) 387-5778

QUESTIONS PRESENTED

1. Does the United States Court of Appeals for the Ninth

Circuit in San Francisco, California have the right to

deny our petition in a “general” denial without clearly

evident substantial review of our case?

2. Does the Federal Ninth Circuit Court of Appeals in

San Francisco, California have the right to deny our

petition to Publish, (by not answering our motion),

its decision as the case law for all citizens in the U.S. or is

its decision only the special private individual law for

petitioner. Is this, the law of the land or, is it law: for

petitioner’s only?

3. Do the three Ninth (9th.) Circuit Judges make the

decision that the case will not be heard “en banc” and

deny petitioners right of appeal?

4. Does District Court Judge Audrey B. Collins have the

right to formulate a money judgment based on hearsay by

defense?

5. Does District Court Judge Audrey B. Collins have the

right to formulate a case in Admiralty wherein plaintiffs

were denied the right to cross examine witnesses?

6. Does District Court Judge Audrey B. Collins have the

right to formulate a case in Admiralty wherein the vessel

named in REM was not allowed to be arrested by the

U.S. Marshal in order to be legally and properly served as

a named defendant, due to the conspiracy of defense in

personam counsel?

7. Does District Court Judge Audrey B. Collins have the

right to formulate a case in Admiralty wherein the Judge

QUESTIONS PRESENTED - Continued

allowed the attorneys for the in personam defendants

acting in stead and without permission of the current

vessel owner to place a verified fraudulent bond in lieu

of arrest for the vessel named in rem (the vessel having

being sold twice thereafter to third parties, the current

owner was left out by the court in its right to defend its

own vessel)?

8. Does District Court Judge Audrey B. Collins have the

right to formulate a case in Admiralty wherein Judge

Collins working in tandem with defense counsel refused to

arrest the vessel named in rem and ordered that plaintiff's

numerously serve the new owner(s) with 15-day-advance

notice of intent to arrest causing owner to evade

arrest, in fact the owner then sold the vessel named in

rem to another third party without notification that the

vessel was named in rem in a federal action (the vessel

was never arrested even though plaintiff’s complied with

the courts’ exact orders numerously). Judge Collins did not

want another lawsuit initiated by the vessels’ owners

causing defense in personam counsel to separately be

sued: a violation of Federal Admiralty Rule “C”?

9. Does District Court Judge Audrey B. Collins have the

right to formulate a case in Admiralty wherein she ordered

plaintiffs to numerously delay trial (days before the first

trial date and many other trial dates thereafter) and

forcing plaintiff’s pay for first class travel, lodging and

meals for the Court “appointed” “neutral” expert to come

out to California from Rhode Island in order to determine

the repair costs of damages, this “special” court expert

was in fact hired by defense counsel in May 2000

(before the case was even filed)! This was a

ili

QUESTIONS PRESENTED - Continued

calculated and criminally conspired act between the

defense counsel and Judge Audrey B. Collins, the

record reflects this. Once confronted by this at trial,

Judge Collins was silent. Does Judge Audrey Collins

have the right to hire a defense employee as the courts’

neutral expert?

10. Does Judge Collins have the right to work for defense

counsel and third-party insurance company while working

as a Federal Judge?

11. Does District Court Judge Audrey B. Collins have the

right to formulate a case in Admiralty wherein Judge

Collins allowed, at the “last minutes,” defense counsel at

first trial date to personally investigate with “hearsay”

claimed doctors via telephone only to state that in per-

sonam named defendant Alex Kats would become “too ill,

due to trial stress” to witness at trial. Plaintiff’s had no

right to talk to or, verify the validity, nor cross examine

this “telephoned doctor” that defense counsel provided

telephone number for (plaintiff’s did not have the right to

determine the validity of this “doctor”!). Does Judge

Collins have the right to exclude plaintiff from this biased

process by defense and the Court?

12. Does District Court Judge Audrey B. Collins have the

right to formulate a case in Admiralty wherein she was in

pre-disposition with cumis counsel John Petrullo and

determinant that in personam defendant Dimitri Bizoumis

would not be liable for punitive damages at the

federal district civil trial as the result of his People of the

State of California convicted criminal actions due to

hit and run, failure to report, and subsequent gross

QUESTIONS PRESENTED - Continued

intentional negligence, causing a threat to the lives and

property of others as the result of his selfish actions on

June 27, 1999 and thereafter?

13. Does District Court Judge Audrey B. Collins have the

right to formulate a case in Admiralty wherein she totally

excludes the testimony of plaintiff’s expert wit-

nesses at trial (Mr. Hugo Carver — officer and founder of

Knight and Carver Shipyard in San Diego, California — an

internationally accredited vessel repair and manufactur-

ing facility, which also performs work for the U.S. Navy

and other governmental agencies) as to actual costs of

damages to plaintiff’s vessel?

14. Does District Court Judge Audrey B. Collins have the

right to formulate a case in Admiralty wherein she issues

a money judgment on hearsay by the defense “expert”

Todd Schwede based on,a “friendly” bid by Shelter Island

Boatyard in San Diego, CA., a friend and landlord of Todd

Schwede who never physically inspected plaintiffs’ vessel

and issued a fraudulent document for less than pennies of

the real cost of repairs. Once Judge Collins issued a money

judgment for this criminally fraudulent amount: plaintiffs

wrote to Shelter Island Boatyard to come and get the

vessel and repair it. Based on this fraud bid, the Boatyard

wrote back refusing to now honor their written documents.

Judge Collins was then advised via plaintiffs’ motion and

then ignored by Judge Collins via denial. Does Judge

Collins have this right with hearsay?

15. Does District Court Judge Audrey B. Collins have the

right to intentionally formulate a case in Admiralty

wherein the plaintiffs/petitioners (the victims of criminal

QUESTIONS PRESENTED - Continued

activities by defense and its agent counsel from June 1999

to date) owe money damages to the defendants (the crimi-

nals) in further criminal conspiracy since November 2000?

16. Does District Court Judge Audrey B. Collins have the

right to formulate a case in Admiralty wherein a ridiculous

offer of judgment was made years after the incident by

defense counsel knowing well in advance that the defense

would have the trial manipulated to a final judgment for

less than the offer made in order to recover defense costs

as a final “stab in the back” of plaintiffs with the conspir-

acy of defense counsel and this rogue federal judge?

17. Does the District Court have the right to allow

defense in personam to obtain a full satisfaction of judg-

ment without their Markel Insurance Co. check for

$17,736.37 being cashed by plaintiffs, on the courts’ own

volition?

18. Does the District Court have the right to not hear

plaintiff's February 18, 2005 motion to order full satisfac-

tion of judgment as to defendant’s costs awarded post-

judgment by the district court, having full payment being

made by plaintiffs to defendants on January 12, 2005 in

the amount of $14,152.39 with interest to January 15,

2005. Defendants refused to cash this check since it was

made to defendants Kats and Bizoumis and not made out

to Markel Insurance Co. (a non-party to this case): as the

defense attorneys demanded without any basis of author-

ity, another extortion and fraud by defense counsel —

leaving a unresolved void in this case by the district court,

thus causing further financial harm to plaintiffs each and

QUESTIONS PRESENTED - Continued

every day: with no option but to ask the Supreme Court for

its opinion?

19. Does the lower court have the right to violate the

Constitutional Rights of Plaintiffs/Petitioners under the

color of law?

20. Does District Court Judge Audrey B. Collins have the

right to hear this case wherein her husband is the Director

of Los Angeles County Pediatric Dentistry and defendant

Dimitri Bizoumis is a Pediatric Dentist, who also works at

Rancho Los Amigos Hospital in Norwalk, California, a

public entity of Los Angeles County. Mr. Bizoumis and Mr.

Collins are both Pediatric Dentists, are both members of

the same dental associations; they attend functions mutu-

ally, they know each other. Judge Collins was asked for

numerously, to voluntarily-involuntarily recuse herself,

yet refused, and no other judge wanted her cases?

;

vii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 0000. ooo ooo cccccccccccceecceeeee i

TABLE OF AUTHORITIES ..0.0..o... o.oo coccccccccceccceeeee. ix

i TITAS AIT ER 1

TEE aS eRe LN: PRES RD 1

CONSTITUTIONAL AND STATUTORY PROVISIONS

RO RN OMe NTA 2

STATEMENT OF THE CASE ..000000.. ooo occccccccceceeeeeee.. 2

NC ee ES Li a ae: 6

INTERNATIONAL CONVENTION (LISBON

PT hnciadianliiceihancitilaliaienicaiiias atetn taal ia te 8

RULE II - DAMAGES TO VESSEL...................... 8

SURVEY AND RECLASSIFICATION EXPENSES 9

OVERHEAD EXPENSES 0000... .ccccccccccceoeseesss... 10

UNREPAIRED DAMAGE 0000. ooo ecccccccccccccceceeeees. 10

SURININED PUIIIIOIOY sciccccskcronsssciscscsnsmsaasantecneessuie, 10

PROVING THE VALUE OF VESSEL................... 11

HEARSAY OF DEFENSE EXPERT...................... 12

RR a a 13

THE LAW OF LEGAL TITLE................................. 13

U.S. SUPREME COURT QUOTES..................... 16

POINTS MADE AND IGNORED ON APPEAL...... 17

DEFENSE AND JUDGE CONSPIRACY .............. 17

RIGHT OF CROSS EXAMINATION .................... 17

Vili

TABLE OF CONTENTS - Continued

Page

BOND IN LIEU OF IN REM ARREST IS A

PPRRA UD. ......cccccsccccccccsccccssccssscscccccccssssssccsccsccoosssoooes 19

NOT ARRESTING THE VESSEL IN REM ............. 20

THE BAYPORT ISSUE ...........::ccseeeeeeeeeeeeeeeeeenenees 22

UNNECESSARY APPOINTMENTS ...........:22-:+000+4 23

UNFAIR ADVANTAGES TO THE DEFENSE........ 27

REASONS FOR GRANTING PETITION ON WRIT

OF CERTIORARI ............ccccseeeeseeeeeeeeeeeeeeeeeeeneeeeenes 29

CONCLUSION. .........cccsssececeeeeeceeseeeeeneeeseeeeensaneeeserens 30

APPENDIX INDEX TO EXHIBITS............02::00:eee000 App. i

TABLE OF AUTHORITIES

CASES:

Atkins v. Alabama Drydock & Shipbuilding Co.,

195 F.Supp. 944, 1961 AMC 909 (S.D. Ala. 1960).....9, 24

A&S Transportation Co. v. Tug Farjaro, 668 F.2d 1,

BE FS BCE CE, BI ccsndesscnticcsncsseccoserssccssecnce 7, 24

BP Exploration & Oil Inc. v. Moran Mid-Atlantic

Corp., 2001 U.S. Dist. LEXIS 8624 (D. N.J. 2001)... 7, 24

Bouchard Transportation Co. v. Tug Ocean Prince,

691 F.2d 609, 1982 AMC 2944, 68 ALR Fed. 761

(2nd Cir. 1962)...........00000: SsieuihicasincsAiacaaanedeainiabickxohe 11

Bunge Corp. v. Freeport Marine Repair Inc., 240

F.3d 919, 2001 AMC 1367 (11th Cir. 1994) .......00000... 9, 24

Dillingham Shipyard v. Associated Insulation Co.,

649 F.2d 1327 (Sth Cir. 1961)....................cccccccccccees 10, 24

Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300,

RO77 ABB GOS (56s Cie, 1676)......ccccccsoscorcssscsocssscaseses 7, 24

Gaines Towing & Transportation Co. v. Atlantia

Tanker Corp., 191 F.3d 633 (5th Cir. 2000)............... 7, 24

Hewlett v. Barge Bertie, 418 F.2d 654 (4th Cir. 1969)....... 10

Hozie v. Vessel Highland Light, 1998 AMC 2829

OAS a 22, 23

Independent Bulk Transport Co. v. Morania Abalo,

676 F.2d 23, 1982 AMC 1535 (2nd Cir. 1982)................ 10

In re Nichole Trahan, 10 F.3d 1190, 1994 AMC 1253

I 9, 24

Oliver J. Olsen & Co. v. Marine Leopard, 356 F.2d

728, 1966 AMC 1064 (9th Cir. 1966)................c cee eeeee 11

TABLE OF AUTHORITIES -— Continued

Ryan Walsh Stevedoring Co. v. James Marine

Services, Inc., 792 F.2d 489, 1987 AMC 1611 (5th

Clee SIG ecccnssicccscsiiscnssutnaridaidhidsisinsanmiciianiideiniadbais 7, 24

Shappert Engineering Co. v. Steel City Marine

Transport, Inc., 620 F Supp. 1377 (D. Mo. 1985).... 10, 24

South Central Bell Telephone Co. v. Merritt Dredg-

ing Co., 726 F. Supp. 1061 (S.D. Miss. 1989).......... 10, 24

Southern Pacific Co. v. Jensen, 244 U.S. 205, 37

S. Ct. 524 (61 L. Ed. 1086, Ann. Cas. 1917E, 900)

CRIT Ds cccincussssbichuinssibdehansestivuadecaudadacinacniiivniuamiediaiaiiuenatdiain 16

Standard Oil Co. v. Southern wabesteis ic Co., 268 U.S.

SAE TET iccisentiiniticihnididatsanadininisitealbicdaabnianiabpnasiomssalielibliaas 7, 24

The Baltimore, 75 U.S. 377 (1868) ..........ccccscsseccssscccesses 7, 24

The B.F. Guinan, 40 F.2d 277, 1930 AMC 219 (E.D.

BU; MITE cinincsbadccasardondibiahsdteapaiuetehidsangianiladniesanintoalaen 10

The Lottawanna, 21 Wall. 558, 575 (22 L. Ed. 654) ......... 17

United States v. Peavey Barge Line, 748 F.2d 395

I IE, - NP cceciehsicdtnscshtisciaahaigsiieiaciteiisntestioslekieanenioningncoamn 10, 24

United States v. Ship Owners and Merchants

Tugboat Co., 205 F.2d 352, 1953 AMC 1259 (9th

EE FIIID ccictns csnticcntnsocsicinnsodecsdnichdekebicioubateciasihbiatasinlcenenssiadiiees 10

Yarmouth Sea Products Limited v. Scully, 131 F.3d

389, 1998 AMC 825 (4th Cir. 1997)......... eee eeeeeeeeweee 10

U.S. CODES AND OTHER STATUTES:

Simpberalbas TOURS << Cl, Dy Bos ccniascsensnsnisnenssaeininnciiscsnencsune 20, 27

California State Uniform Commercial Code..................... 14

International Convention — Lisbon Rules........................62- 8

TABLE OF AUTHORITIES - Continued

Page

Federal Rules of Civil Procedure 34, L.R. 6.2.4 (26-

cig ION IU COR att OIR; STUN Ea Op 20

Federal Rules of Evidence code 706............................ 26, 29

Federal Rules of Evidence code 802.............cccece0000........ 17

U.S. Admiralty Law — Restitution in Integrum........ 6, 7, 28

U.S. Constitution — 14 Amendment ...0........cccccecececccecscs., 2

WAM MONOID MIN oo oisssssnasernsinassnurdenacveccecesieccess.. passim

I einai niacasnicnanihbiinnceiiusshiseacesdiaaesiteanaichnasiannsccecsc3 passim

I I i isicthncicnnciendaridaadscatstinausatisacaceksseceluitean co 1

46 USC § 2131.................. iapaieidehddina cide nthdtldaapatassibinatissanstaons 13

PT IF ME anccetiichiakeinetsnaueictnh iedhediadeis andsatcasccxcacs 3, 14, 22

A OP I inches cite i ee 13, 14, 15, 22

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of

certiorari issue to review the judgment below.

OPINIONS BELOW

For cases from federal courts: The opinion of the

United States Court of Appeals appears at Appendix —

Exhibit A to the petition and is unpublished.

The opinion of the United States District Court

appears at Appendix — Exhibit B to the petition and is

reported at American Maritime Cases as: Benetic v. M/Y

Athena Alexander, 2002 AMC 297 (C.D. Calif. 2001).

JURISDICTION

For cases from federal Courts: The date on which the

United States Court of Appeals decided my case was

October 22, 2004.

A timely petition for rehearing was denied by the

United States Court of Appeals on the following date:

December 20, 2004, and a copy of the order denying

rehearing appears at Appendix — Exhibit C. ;

The jurisdiction of this court is invoked under 28

U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Constitutional Protected Rights:

U.S. Fourteenth Amendment

The Requirements of Due Process. - Procedural due

process rules are meant to protect.persons not from the

deprivation, but from the mistaken or unjustified depriva-

tion of life, liberty, or property.”

STATEMENT OF THE CASE

This case is the direct result of the violation of 33 CFR

173.57 (hit and run) on June 27, 1999 and the resultant

conspired intentional and conspired malicious gross bad

faith mutually conspired conduct of the defendants and

each of them and their “agents” attorney’s (et al.). Through-

out this case and since June 27, 1999 the date of the crimi-

nal hit and run and failure to report, once defendants were

found: Defendant Dimitri Bizoumis stated: “Oh Shit! How

did you find me?” - a clear indication of his intent and

actions, yet: the plaintiffs have initially requested that the

defense simply “fix and repair” the damages caused by

them to the plaintiff’s vessel. It is fact: that the defendants

always refused to simply “fix the vessel”, therein forcing

this litigation to commence on June 26, 2000 and continue

through date. This case is the direct result of an intentional

allission (defined as the collision of a moving (respondent’s)

vessel with a stationary (petitioner’s) vessel) perpetrated by

defendant Dimitri Bizoumis. Dimitri is an admitted incapa-

ble pilot of any vessel other than a “dinghy”, that boarded

his father-in-laws’ (Kats who is, also unqualified to operate,

without a professional captain) newly acquired vessel with

gross negligence. Dimitri Bizoumis knew weeks beforehand

that the vessel he had control of, and had: “sent to sea” was

in an unseaworthy state, as he states “the vessel had

involuntary gas engine shut down problems”. Dimitri also

knew that he had no vessel piloting experience ever ...

Dimitri’s father-in-law: Defendant Alex Kats, the purported

vessel owner also knew at the time of the allission, that the

vessel that he allowed to be operated by Dimitri, and his

family (including their two minor children: the Kats’ grand-

children!) had at that time been unseaworthy, as the vessel

in fact had engine problems and the fact that Defendant

Dimitri was in fact an incapable pilot. Regardless to the

vessel being “unseaworthy” and knowing that Dimitri was

in fact a incapable pilot, the Kats, allowed Dimitri to

operate it, thereby endangering the lives of everyone in the

marina and in the general area (plaintiffs believe that this

was done so that the Kats can commit insurance fraud and

obtain a bigger and better diesel powered vessel as they

have done. As verified by their own initial attorney, Mr.

Phillip Chronis (who has since died due to undue stress

from his clients) via consented voice taped conversation

with Petitioners). Alex Kats then committed an act of gross

negligence in sending an unseaworthy vessel to sea. 46

USC § 10908, (a crime). On June 27, 1999 the U.S. vessel

M.Y. “Athena Alexander” in rem: operated by Dimitri struck

the plaintiff's moored and stationary U.S. vessel the S.Y.

“Buenos Aires” at an excessive rate of speed, “speeding”

through the close confines of the marina the defendant’s

vessel locked up with Plaintiff’s vessel. Dimitri rather than

“shutting down” the Athena Alexander, continued to ram

forward and reverse causing further damages with intent to

flee the scene as witnessed by many in the area. A crime of

“Hit and Run”. After the “allission” Dimitri then proceeded

to flee to the open water of the marina, all the while his

wife and children screaming for help, after other witnesses

called the L.A. Port Police and the U.S. Coast Guard, L.A.

County Lifeguards and L.A. City Fire Dpt. vessels re-

sponded, forced to matching his circling high speed course,

shifting from forward to reverse at high speed, officers

demanding in vain — ordering Dimitri to stop and shut off

his engines, answering: “I don’t know how!” wherein

officers heroically boarded the vessel, forcefully shut the

vessel down. His voyage was then terminated by the Los

Angeles County lifeguards, and being unable to return to

his mooring, was towed back, moored and the Bizoumis

family quickly left the area without advising anyone of the

incident. Local tenants stopped Bizoumis and told Bizoumis

that he had hit the vessel “Buenos Aires”, Bizoumis,

shrugged them off and left. At this time plaintiff’s vessel

was taking on sea water from the allission damage to the

below water keel to hull joint of their vessel. Bizoumis

failed to advise the local authorities, simply left the scene of

his crimes. It is fact: that the plaintiffs were not advised by

defendants of the allission but rather by the concerns of the

marina tenants. It is fact: that plaintiffs in the form of

letter(s) asked for an amicable resolution of the issue

of the damages to the plaintiffs vessel. It is also fact:

that plaintiffs asked to “meet and confer” with Bizoumis

and Kats to try to resolve amicably: the damages caused by

Bizoumis at the Los Angeles Port Police Station in San

Pedro. Defendants never responded to any of the total of five

(5) letters over the time of one (1) year that Plaintiffs had

sent, requesting an amicable resolution to the damages

caused by Bizoumis. Bizoumis then retaliated maliciously

and sued in civil court: his victim of his crimes: Mr. Nick

Benetic “personally” falsely claiming harassment, as a

tactical ploy to get out the pending state prosecuted crimi-

nal charges, instead of offering to fix and repair the dam-

ages he had caused. Dimitri rather than making restitution

ete ce.

for the damage he himself had caused, sued plaintiffs with

malice for harassment. In that case Bizoumis acted with

GROSS conspired intentional and malicious Bad Faith,

with intent to mislead the court by committing several acts

of perjury in his moving papers. The harassment case after

six months and more than $35,000.00 spent in Benetic’s

defense and attorney costs was eventually resolved in the

Benetic’s favor and the Judge went further to state that

Nick Benetic acted within his “constitutional protected

rights” to try to resolve the allision damages caused by

Bizoumis. The plaintiffs were now left with the only option,

to sue Bizoumis and the vessel owners in the form of this

Admiralty Action in the Federal Courts. The plaintiffs,

SIX (6) years later, are now filing this petition for a writ

of certiorari with the U.S. Supreme court as established

codified U.S. Admiralty Law and U.S. Constitutional and

other U.S. Law was not followed by the lower courts. It is

fact: that the defense never performed any “competent

survey” of the allission damage and the fraudulently

conspired, San Diego area Shelter Island Boatyard, repair

facility defense and district judge relied upon, never

inspected the vessel. The defense and district judge then

proceeded and “drag out” plaintiffs for six years in this

litigation with intent and in their hopes that the plaintiffs

will simply “go away”. It has been since June 27, 1999

the allission, (the hit and run and failure to report

crimes by defendant Bizoumis) and still without

adequate dollars being given to plaintiffs for full

restitution or any repair. The defense never offered to

repair and fix the damage they had caused and never

worked with plaintiffs to mitigate the damages in fact they

did the opposite. They hindered and obstructed. These

conspired intentional gross bad faith acts caused additional

financial harm and undue stress to Plaintiffs; all violating

the plaintiffs’ civil and constitutionally protected rights. . .

the same rights that plaintiffs fight for and that drove

plaintiff Nick Benetic to voluntarily join and later be

honorably discharged from the U.S. Army. From June 27,

1999 to date NO JUSTICE has been obtained in fact it has

cost Benetic over $250,000.00 to get to this date, plus a loss

of normal income (over $1.2 million) from July 1999 to date

(March 2005) approximately six (6) years of undue and

malicious stress due to gross bad faith by defendants, and

additional other losses. Our attorney Richard Caillouette,

Sr. died. In fact: Benetic (the victims-plaintiffs-petitioners)

owe money to the criminals for their acts, thanks to un-

scrupulous rogue lawyers and rogue lower court judge(s). In

Admiralty Law: The general rule “restitutio in inte-

grum” To make the victim whole as if the incident had

never occurred! Hugo Carver was deposed and testi-

fied at trial as to the costs to repair our vessel. This is

a rule that is currently not disputed among the parties.

ARGUMENT

The rules “minimize substantively unfair or mistaken

deprivations” by enabling persons to contest the basis

upon which a State proposes to deprive them of protected

interests. Thus, after the determination of the existence of

a protected interest at issue, it must still be determined

what procedure is adequate. Plaintiffs lost their right to

due process, to the right of the protection of their property.

Fact vs. law vs. opinion of lower courts re: general

rule - Damages to the plaintiff's vessel, The general

rule “restitutio in integrum” This is a rule that is

currently not disputed among the parties. Brief history of

“Restitutio in Integrum” this doctrine started in the

Roman Empire, where Ticius did wreng to Caius. The

former had to compensate the latter by “Restitutio in

Integrum”. That meant and still means to this day, placing

the victim of a breach of contract or a tortious act in the

same position they were before the event. The Romans

clearly understood the principal that the claimant must be

put back to where they were before the damage was done

to them, and this would never be achieved unless the

victim was fully compensated, hence (in Integrum).

Roman law, then, conceived “Restitutio in Integrum” be

accomplished where the Claimant received the principal

sum due, interests at a certain rate, compensation for

their economic losses and the costs incurred by them in

“seeking Justice”. The general rule in admiralty for the

recovery of damages due to the negligence of others is

“Restitutio in Integrum”, the damaged party is entitled to

be put in as good a position pecuniarily as he was prior to

the damage to his property occurring. The Baltimore, 75

U.S. 377 (1868); Standard Oil Co. v. Southern Pacific Co.,

268 U.S. 146 (1925); BP Exploration and Oil Inc. v. Moran

Mid-Atlantic Corp., 2001 U.S. Dist. LEXIS 8624 (D. NJ.

2001). The first principal in assessing damage in a mari-

time tort “is to place the injured person as nearly as

possible in the condition he would have occupied if the

injury had not occurred.” Gaines Towing and Transporta-

tion Co. v. Atlantia Tanker Corp., 191 F.3d 633 (5th Cir.

2000); Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300,

1977 AMC 508 (5th Cir. 1976). The fundamental rule is

“where property is destroyed by a wrongful act, the owner

is entitled to its money equivalent, and thereby to be put

in as good a position pecuniarily as if his property had not

been destroyed” Standard Oil Co. v. Southern Pacific Co.,

268 U.S. 146 (1925); Ryan Walsh Stevedoring Co. v. James

Marine Services, Inc., 792 F.2d 489, 1987 AMC 1611 (5th

Cir. 1986). A&S Transportation Co. v. Tug Farjaro, 668

F.2d 1, 1983 AMC 10 (1st Cir. 1982) held that the damages

of a vessel were: the damages, consequential damages

including incidental damages such as sue and labor costs

reasonably incurred. Plaintiffs were not made whole

in this case, the lower courts made it possible for

the defense to receive satisfaction of judgment

without and before any funds being legally trans-

ferred to plaintiffs ... the lower court also granted a

fraudu!ent cost bill in favor of the defense. (It is fact

that at the cost hearing plaintiffs exposed nearly

half of the defenses’ “so called costs” as fraud,

Shortly after that, the court had the plaintiff Nick

Benetic escorted out by the marshal, out of the

hearing and continued Ex-parte with defense only,

granting the rest of the fraud costs, out of plaintiff’s

rights to cross and defend.

The International Convention (Lisbon rules) Rule A:

these rules are available for adoption in cases where

damages are claimed following a collision. Rule B: When a

vessel is involved in a collision, these Rules shall apply to

the assessment of the damages. Rule C: Subject to the

application of the numbered rules the Claimant shall be

entitled to recover such damages as may be reasonably

considered to be the direct and immediate consequence of

the collision. Rule D: Subject to the application of Rule C

and of the numbered rules, damages shall place the

Claimant in the same financial position as he would have

occupied if the collision had not occurred. Rule II - Dam-

ages to vessels: In the event of the vessel being damaged

but not being a total loss as defined in these rules, the

claimant shall be entitled to recover as damages:

(a) the cost of temporary repairs reasonably ef-

fected, and the reasonable cost of permanent re-

pairs. The cost of those repairs shall include but

not be limited to the cost of any necessary dry

docking, gas freeing or tank cleaning, port

charges, supervision, and classification surveys,

together with dry dock dues and or mooring, for

the time occupied in carrying out such repairs.

(b) Reimbursements of sums, for which the

Claimant has become legally liable and has paid

to third parties in respect of such liability, aris-

ing out of the collision by reason of contractual,

statutory or other legal obligations. The SOLE

expert at trial to testify as to costs of repairs is

plaintiff's expert, Mr. Hugo Carver — his deposi-

tion and testimony are of record. No one else

could do so for the defense, except as hearsay.

Defense had no defense.

The plaintiffs were further damaged by the Cal-

lous Disregard for the plaintiffs civil and constitu-

tional rights, when the plaintiffs had no choice but to

pursue this litigation. The plaintiffs were damaged by

having to hire attorneys to defend themselves against

frivolous harassment lawsuits that the defense initi-

ated and attorneys for prosecution in the case in

admiralty, Marina fees, surveyors, yard fees, haul-out

fees, overhead expenses, losses to their normal busi-

ness and personal lives, losses to Pursue Justice” etc.

Plaintiffs were not made whole in this case: they were

put in onel.... Survey and reclassification expenses.

An owner’s reasonable surveyor’s fees incurred to surveying

damage and to obtaining repair estimates are recoverable.

Bunge Corp. v. Freeport Marine Repair Inc., 240 F.3d 919,

2001 AMC 1367 (11th Cir. 1994); in re Nichole Trahan, 10

F.3d 1190, 1994 AMC 1253 (5th Cir. 1994); Atkins v. Alabama

Drydock and Shipbuilding Co., 195 F.Supp. 944, 1961 AMC

909 (S.D. Ala. 1960) The plaintiffs have incurred sur-

veyor’s fees and contend that they are recoverable as

to the “general rule”. The trial court judge Audrey B.

Collins did not award any compensation for survey-

ors, but did allow the defense their costs.

Overhead expenses. Reasonable overhead expenses

can be included in the cost of repairs and can be recovered,

even if the injured party makes the repairs itself. United

States v. Peavey Barge Line, 748 F.2d 395 (7th Cir. 1984);

Dillingham Shipyard v. Associated Insulation Co., 649

F.2d 1327 (9th Cir. 1981); South Central Bell Telephone Co.

v. Merritt Dredging Co., 726 F.Supp. 1061 (S.D. Miss.

1989); Shappert Engineering Co. v. Steel City Marine

Transport, Inc., 620 F. Supp. 1377 (D. Mo. 1985)

Unrepaired Damage. The claimant can obtain an

award for the reasonable cost of repairs even if the dam-

age is not repaired. The B.F. Guinan, 40 F.2d 277, 1930

AMC 219 (E.D. N.Y. 1930); United States v. Ship Owners

and Merchants Tugboat Co., 205 F.2d 352, 1953 AMC 1259

(9th Cir. 1953); Independent Bulk Transport Co. v. Mora-

nia Abalo, 676 F.2d 23, 1982 AMC 1535 (2nd Cir. 1982); if

the plaintiff chooses to or is unable to make repairs, ..

damages are therefore to be measured by the estimated

cost of repairs following the accident.

Yarmouth Sea Products Limited v. Scully, 131 F.3d 389,

1998 AMC 825 (4th Cir. 1997), held that the estimated costs

of repairs for a vessel involved in a collision may be

awarded despite the fact that she sank from unrelated

causes before the repairs were made.

Value Diminution. The rule in admiralty is that the

cost of repairs is the equivalent of value diminution Hewlett

v. Barge Bertie, 418 F.2d 654 (4th Cir. 1969) Proving the

value of vessel Oliver J. Olsen and Co. v. Marine Leopard,

356 F.2d 728, 1966 AMC 1064 (9th Cir. 1966). If there is no

recent and comparable sales or if the vessel is of

unique features useable only in a restricted trade, a

vessel may prove value by other evidence such as the

opinions of marine surveyors, costs of reproduction

less depreciation, and consideration of condition of

repair, etc., to prove value, as above. The plaintiffs did

in fact prove that the vessel was diminished in value

yet the trial court did not allow the plaintiffs to

recover anything in value that was in fact diminished.

Plaintiffs were not “made whole” according to law... .

Also, the “general rule” is that the vessel owner can recover

the actual reasonable cost of repairs, including overtime.

Bouchard Transportation Co. v. Tug Ocean Prince, 691 F2d

609, 1982 AMC 2944, 68 ALR Fed. 761 (2nd Cir. 1982). In

this case it is true that the defendants have failed to provide

any assistance in the repair process and have acted in total

“gross bad faith” in that they failed to provide plaintiffs with

any assistance in the repair process, rather they sued

Plaintiffs for harassment when the plaintiffs tried to obtain

their assistance and cooperation in the repair process. This

conduct led plaintiffs to believe in the only option, to “Seek

Justice” in the federal courts. The trial courts admit that the

defense sued the victims of their crime of hit and run. This

act was in fact done with malice and intent to injure the

plaintiffs financially and before the plaintiffs could file their

admiralty case. Yet the trial court did not allow the plaintiffs

to introduce as evidence the entire case of harassment

thereby shielding it from the record to the detriment of the

plaintiffs and the advantage of the defense. . . . The plaintiffs

have incurred overhead expenses and contend that these

expenses are recoverable in the “general rule.” The trial

court judge Audrey B. Collins did not award any compensa-

tion for overhead expenses although this same judge and the

appellate court did allow the defense to recover its costs....

when the plaintiff was the one that was supposed to be made

whole. ... The trial court did not make the plaintiffs whole

according to law, the plaintiffs still to this day cannot make

the full and necessary legal repairs to bring their vessel back

to its prior condition before the hit and run allision. ...

Expert testimony hearsay rule competence of

witnesses, Todd’s Schwede (defense witness)

disclaimer vs. Mr. Hugo Carver’s (plaintiff’s witness)

Plaintiffs found and contracted the Knight and Carver

shipyard as their expert. It is also fact that the Knight and

Carver shipyard maintains contracts with the U.S. Govern-

ment and repairs vessels for the U.S. Navy, the U.S. Coast

Guard and the U.S. Marines according to law and shipping

standards. The courts order states defenses’ Todd Schwede

was the sole determination of the trial courts judgment,

based on Todd Schwedes’ testimony. The only problem with

that is Schwede does not own, or work for, a actual repair

yard, he works directly for the Markel Insurance Company.

He obtained a verified false repair estimate from a yard

known as the Shelter Island Boatyard, (his landlord and

friend). The plaintiffs were never able to cross examine the

Shelter Island Boatyard and the true drafter/writer of the

defenses’ criminally conspired fraudulent repair estimate

representatives as they DID NOT EVER TESTIFY via

deposition, nor come to trial to be cross examined under oath

__. Plaintiffs are entitled and required cross examination of

Shelter Island Boatyard officers at trial but were not allowed

by the district court to call them as witness since they would

not come voluntarily and could not be forced via summons as

they were over 100 miles away. Plaintiffs moved that the

court find that the Schwede reports and Shelter Island Bid

be stricken as to the federal rules of evidence as hearsay

and as incompetent and fraudulent. Plaintiffs were

Ignored ... It is fact: the boat yard of the courts’ and

defenses’ choosing does not meet standards to finish the

repair of the Plaintiff’s vessel. It is fact: that shortly after the

judgment was issued the Shelter Island Boatyard was asked

by plaintiffs if they would make good on their bid. The

Shelter Island Boatyard refused stating their bid was void,

in fact they did not want to even work on our vessel ever for

upon by the courts.... Facts of case summary (define

Gross Bad Faith): The definition of bad faith is the failure

to meet an obligation or duty ... Bayport Yachts, Inc., U.S.

)

(the defenses bid was and is a fraud) and cannot be relied

Coast Guard issued title dispute 46 USC § 2131

Facts of the case for the court with

reference to the Bayport issue

Judicial Canon, Under Canon 3a(1) Adjudicative

Responsibilities.

A judge should be faithful to and maintain

professional competence in the law, and should not

be swayed by patrician interests, public clamor or

fear of criticism.

The law of legal title (46 USC § 31321) Plaintiffs

believe that when the court issued Summary Judgment

against the plaintiffs and for Bayport was an act of incom-

petence in the law with intent to violate the plaintiff’s

civil and constitutional rights. The court ignored and still

ignores the true facts in this case that: Plaintiffs were

the victims of a “hit and run” (crime) and not a

party to and not aware of, the “so called” sale of the

defendants vessel. (46USC § 31321).

a. The fact that the court never mentioned for the record

that the “so called” sale transaction was a “nullified and

rejected” sale by the Kats and Bayport defendants by

returning the vessel and obtaining a full refund from

Bayport by Kats. California UCC does not apply in Admi-

ralty, * if it does the voluntary return and acceptance of

the vessel in rem for a full refund applies as nullification

and rejection of sale under California UCC. Therefore NO

SALE took place, Bayport is liable as owner at the time of

the incident of 06/27/99, Kats/Bizoumis merely borrowed

the vessel from Bayport Yachts, Inc. — All share in liability

for the 06/27/99 incident.

b. The fact that the “so called” sale was not legally com-

pleted until 07/08/99 well after the intentional allission, hit

and run crime, and failure to report crime of June 27,

1999.

c. That the first application for legal title was fraud on

~ the part of the defendants and was returned by the U.S

Coast Guard.

e. That the defendant Bayport yachts committed an act

of gross negligence in sending an unseaworthy vessel to

sea 46 USC § 10908 (a crime).

f. That NO sales taxes were ever paid to the State of

California evidencing any “so called” sale of the vessel

named in rem.

g. The funds used to acquire the vessel came from checks

issued from J and A Shoe Co. payable to Alex Kats - NOT

to Bayport Yachts, Inc.: a I.R.S. question to be answered by

Mr. Kats to the U.S. Government.

h. The court used California state law when state law

may not be applied by a federal court if it would defeat or

narrow any substantial admiralty rights of recovery. State

law may not be applied prejudice the characteristic fea-

tures of maritime law or to disrupt the harmony it strives

to bring to international and interstate relations.

t. It is fact that in a letter dated June 17, 1999 (well

before the allission of June 27, 1999) from defendant

Bayport Yachts and written by the President of the Bay-

port Yacht company Jack Means to defendant Alex Kats

states in relevant part: “I assure you we will give you

the best service you are entitled to. Iam sorry you are

having port engine problems. We should have in-

sisted the yacht remain with Bayport until a Mercury

Co. engine mechanic could adjust the engine and

resolve this problem”. When the court granted an

“excessive” cost bill judgment against the plaintiffs and in

favor of Bayport Yachts, Inc., is a violation of the plain-

tiff’s civil rights and evidencing bias and prejudice a

violation of (Judicial Canon 3(C)1(A)) and grounds

for disqualification? Under (U.S.C Title 28) in admi-

ralty and maritime claims taxation of costs cannot

be allowed in this case unless promulgated by the

Supreme Court. It is fact that at this point Judge Audrey

B. Collins did not deny the Plaintiff’s accusations and

allowed the Bayport defendants to obtain an illegal cost

bill. Bayport ewned the vessel at the time of the allission

via the U.S.C.G. the U.S. government, sent the plaintiffs

the title report and NC transfer of title took place, yet

district court Judge Céllins violated The law of legal

title (46 USC § 31321) (plaintiffs were victims of a hit and

run. Plaintiffs note that the defense still to this day never

reported the allission to the USCG violating (33 CFR

§ 173.57) Bayport withheld pertinent evidence from the

record that the “so called” sale transaction was a “nulli-

fied and rejected” sale by the Kats and Bayport defen-

dants. Bayport withheld pertinent evidence and the

Bayport attorneys lied to the court at the hearing on the

Motion for summary Judgment. It is fact that no taxes

were ever paid to the state of California evidencing the “so

called” sale of the vessel in REM. Supreme Court Quotes

After reference to article 1, 8, and article 3, 2, of the

Constitution, we declared in (Southern Pacific Co. v.

Jensen, 244 U.S. 205, 215, 216, 37 S. Ct. 524, 528 (61

L. Ed. 1086, Ann. Cas. 1917E, 900) (1917)): “Considering

our former opinions, it must now be accepted as settled

doctrine that, in consequence of these provisions, Congress

has paramount power to fix and determine the maritime

law which shall prevail throughout the country.... And

further, that in the absence of some controlling statute,

the general maritime law, as accepted by the federal

courts, constitutes part of our national law, applicable to

matters within the admiralty and maritime jurisdiction.

Concerning extent to which the general maritime

law may be changed, modified or affected by state

legislation, this was said: ‘No such legislation is

valid if it contravenes the essential purpose ex-

pressed by an act of Congress, or works material

prejudice to the characteristic features of the gen-

eral maritime law, or interferes with the proper

harmony and uniformity of that law in its interna-

tional and interstate relations. This limitation, at

the least, is essential to the effective operation of

the fundamental purposes for which such [247 U.S.

372, 382] law was incorporated into our national

laws by the Constitution itself. These purposes are

forcefully indicated in the foregoing quotations

from (The Lottawanna,’ 21 Wall. 558, 575 (22 L. Ed.

654).” Points made and ignored on appeal

Plaintiffs filed their appeal with the Ninth Circuit

Court of Appeals and it seemed to the plaintiffs that Ninth

Circuit did not even bother to read the case. Also the

plaintiffs moved to the Ninth Circuit Court to publish

their decision so that their law can be case law for all, and

they ignored the plaintiff’s motion, no response to plain-

tiffs addressing the motion for publication of the case... .

apparently the law in plaintiff’s case is only made up and

invented to violate the plaintiffs individually, what hap-

pened to the plaintiff’s constitutionally protected rights.

Judge and defense and counsel conspired

against plaintiff’s constitutional rights

Objection to the court’s order dated April 29,

2003 and entered on May 1, 2003

The plaintiffs were never able to cross examine the

Shelter Island Boatyard and the true drafter/writer of the

defenses’ fraud repair estimate representatives as they did

not testify under oath.... Plaintiffs were not allowed

examination at trial. Evidence code (hearsay) right of

cross examination Hearsay by (Federal rules of evi-

dence code 802) is illegal, the lower courts used absolute

hearsay for the sole basis of their judgment ... plaintiffs

did not have the right to cross examine. Plaintiffs moved

the court find that the Todd Schwede reports and Shelter

Island Bid be stricken as to the federal rules of evidence

as hearsay and as incompetent and criminally

fraudulent. Plaintiffs were Ignored. - Judicial

Canon -

Judicial Canon 2 states: (A) A judge should respect

and comply with the law and should act at all times in

a manner that promotes public confidence in the integrity

and impartiality of the judiciary. Actual improprieties

under this standard include violations of law, court

rules or other specific provisions of this code. The

judges ability to carry out judicial responsibilities

with integrity, impartially, and competence is im-

paired. The Plaintiffs believe in the correction of the

impropriety as to Canon 3b(3). A Judge should initiate

appropriate action when the judge becomes aware of

reliable evidence indicating: likelihood of unprofessional

conduct by a judge or lawyer. Initiating the appropriate

action would be the proper way to handle the Plaintiff’s

Motion to Disqualify., AND reporting the violation to

the proper authorities. Plaintiffs believe that the obvi-

ous conspiracy against rights a crime under (title 18) of

the US code constitutes a personal bias or prejudice

concerning a party and is grounds for an official investi-

gation of the Judge to a Senate Judiciary Oversight

Committee. Without even an answer or response for the

record to each and every allegation contained in the

Plaintiff’s Motion to Disqualify Judge Audrey B. Collins

the Motion was denied, covered up, with the assistance of

other friendly district Judges. (a political response)

Judicial Canon 3 states: A Judge Should Perform

the Duties of the Office Impartially and Diligently.

The Judicial duties of a Judge take precedence over all

other activities. In performing the duties prescribed by

law, the judge should adhere to the following standards:

(A) Adjudicative Responsibilities.

(1) A judge should be faithful to and maintain

professional competence in the law, and should not

be swayed by patrician interests, public clamor or

fear of criticism.

JUSTICE DELAYED IS JUSTICE DENIED!!!

Plaintiffs were ready for the trial on the first trial

date of September 2001 and objected to the delay of the

case by the defense and the court. Plaintiffs understand

how and why the case has been delayed so many times

and state for the record that if the trial had commenced in

September of 2001, then there would have been no other

issues to this court to decide. Since this case has been

unnecessarily delayed, the plaintiffs could not afford any

more attorneys fees beyond the September 2001 date that

constitutes a unfair advantage to the defense, and the true

reasons for the judges continuous delay. This delay was to

force plaintiffs to accept Mr. Bruce Pfund as the courts’

expert, later found to have been hired by defense counsel

before Plaintiffs even filed the litigation - A CRIME! This

“so called admitted liability case has been going on for over

five years since the intentional allission incident. It is fact

that the case file consists of over 13 volumes and the trial

has been postponed about six times to favor the defense

attorneys and their income. It should also be noted as fact,

that the district judge stayed the case, and under threat of

dismissal, all with intent to extort monies from plaintiffs.

Canon 3a(5). Judge Audry B. Collins did not demon-

strate due regard for the rights of the Plaintiffs.

Plaintiff’s note for the record: The bond in lieu of arrest

that the court relies on is fraud. The bond that the

court accepted and condones from the defense is fraud on

the part of the defense. The bond authorization is dated in

the year of 1997 by officers that do not work for the Hart-

ford Insurance Company and in fact does not apply for the

date of May, 2002. Plaintiffs believe that the defense

issued for the record a bond that is fraud and the court

allowed and condoned this act of fraud by accepting the

bond in lieu of arrest. It is fact that the plaintiffs never

accepted the fraudulent bond according to the Federal

Admiralty Rule C. The fact that the defense filed a

illegal bond with this court constitutes another crime by

the defense with assistance of Judge Audrey B. Collins...

Under FR.C.P 34 local rule 6.2.4 (26-6.2.4) any insurance

agreement under which any insurance carrier may be

liable to satisfy part or all of a judgment shall be made

available for inspection and copying. The court accepted a

bond from monies from an insurance fraud under objection

of the plaintiffs. The defense policy is not endorsed by an

authorized officer and is not valid by the documents own

omission. It is fact that the plaintiffs were not allowed by

the defense or the court to inspect the defense insurance

policy documents and the court ordered that the plaintiffs

not contact the defense insurance company even though

the Markel Insurance Company is not a party. Plaintiffs

believe that this is an act of a criminal conspiracy to cover

up the defenses’ fraud, and a violation of the plaintiff’s

right to investigate, and cross examine the insurance policy.

Not arresting the vessel named in REM.

It is fact that the court refuses to arrest the vessel

named in REM even though it is a prerequisite to this

maritime claim. The defenses’ Bond is conditioned to an

answer on behalf of the vessel otherwise it becomes void.

It is fact that for the record there is no answer on behalf of

the vessel and the plaintiffs have filed for the court to

issue default judgment. Shortly thereafter the court stated

that default judgment is moot. Plaintiffs have objected to

the courts labeling of moot and the court has yet to re-

spond. Plaintiffs also believe that the court should have

immediately ordered the vessel arrest and then had Mr.

Kluko, the vessel owner at that time, issue a bond in lieu

of arrest as required by law and at a post-arrest hearing in

front of the court. Plaintiffs believe that the court has

created an unfair advantage for the defense and gave Mr.

Kluko a 15-day opportunity to disappear and evade arrest.

Mr. Kluko has done so, SOLD the vessel to another, and

Judge Collins helped him get away...

Under Cannon 3a(1) Adjudicative Responsibilities.

A judge should be faithful to and maintain pro-

fessional competence in the law, and should not

be swayed by patrician interests, public clamor or

fear of criticism.

This court cannot make law only interpret the law.

Judge Collins invented her own Admiralty Law and

therefore does not maintain competence in the law. Any

rules a Judge makes shall be consistent with the law and

not contradict the law. Any rules a Judge makes shall not

abridge any substantive right (Title 28 U.S. Code).

Any rule prescribed by a court other than the Su-

preme Court shall be prescribed only after giving appro-

priate public notice and an opportunity for comment.

It is fact that at this point Judge Audrey B. Collins

did not deny the Plaintiffs’ accusations.

The Bayport issue Under Canon 3a(1) Adjudica-

tive Responsibilities.

A judge should be faithful to and maintain

professional competence in the law. The law of legal

title (46 USC § 31321) Plaintiffs believe that when the

court issued summary judgment against the plaintiffs and

for Bayport was an act of incompetence in the law with

intent to violate the plaintiff’s civil and constitutional

rights. The court ignored and still ignores the true

facts in this case that: Plaintiffs were the victims of a

“hit and run” (crime) and not a party to and not aware of,

the “so called” sale of the defendants vessel. (46 USC

§ 31321).

The fact that the court never mentioned for the record

that the “so called” sale transaction was a “nullified and

rejected” sale by the Kats and Bayport defendants.The

fact that the “so called” sale was not completed until 7/8/99

well after the allission of June 27, 1999. That the first

application for legal title was fraud on the part of the

defendants and was returned by the U.S. Coast Guard.

That the defendant Bayport yachts committed an act of

negligence in sending an unseaworthy vessel to sea 46

USC § 10908, (a crime ignored by Judge Audrey B. Collins.

That no taxes were ever paid to the state of California

evidencing the “so called” sale and no legal sale took place

_.. The court used state law when state law may not be

applied by a federal court if it would defeat or narrow any

substantial admiralty rights of recovery. State law may

not be applied prejudice the characteristic features of

maritime law or to disrupt the harmony it strives to bring

to international and interstate relations. Judge Collins’

Hozie case does no apply to this case as Plaintiffs had NO

knowledge of any sale prior to 07/08/99, especially since

the sale was nullified and rescinded by the parties in

August 1999. (See: Hozie v. Vessel Highland Light, 1998

AMC 2829 (C.D. Ca. 1997) a case in which Judge Audrey

Collins was the judge.

When the court granted an “excessive” cost bill judg-

ment against the plaintiffs and in favor of Bayport yachts

is a violation of the plaintiff’s civil rights and evidencing

bias and prejudice. A violation of (Canon 3(C)1(A))

and grounds for disqualification Under (U.S.C. Title

28) in admiralty and maritime claims taxation of

costs cannot be allowed in this case unless promul-

gated by the Supreme Court. Unecessary appoint-

ments. Mr. Bruce Pfund was an unecessary appointment,

the plaintiffs have the sole burden to prove their damages,

and were ready to do so since September 2001 when the

trial was to commence. Plaintiffs believe that the court

only ordered the appointment of Mr. Pfund because the

defense had no defense and needed the vessel to be in-

spected again since they failed to perform a proper survey

in July of 1999. In July of 1999 the plaintiffs burdened

themselves with yard fees, haul out fees, transportation

fees, supervision fees, and their time all to allow the

defense to inspect the damage caused by the defense. Yet

the court made the plaintiffs burden themselves again and

unecessarily with Pfund and failed to burden the defense

with these same costs, evidencing the courts bias and

prejudice. A violation of (Canon 3(C)1(A)) and

grounds for disqualification. Mr. Bruce Pfund was

hired by defense in the summer of 2000. Judge

Collins erred in this conspired appointment in

fraud! Survey and _ reclassification expenses. An

owner's reasonable surveyor’s fees incurred to surveying

damage and to obtaining repair estimates are recoverable.

Bunge Corp. v. Freeport Marine Repair Inc., 240 F.3d 919,

2001 AMC 1367 (11th Cir. 1994); In re Nichole Trahan, 10

F.3d 1190, 1994 AMC 1253 (5th Cir. 1994); Atkins v.

Alabama Drydock and Shipbuilding Co., 195 F.Supp. 944,

1961 AMC 909 (S.D. Ala. 1960); United States v. Peavey

Barge Line, 748 F.2d 395 (7th Cir. 1984); Dillingham

Shipyard v. Associated Insulation Co., 649 F.2d 1327 (9th

Cir. 1981); South Central Bell Telephone Co. v. Merritt

Dredging Co., 726 F. Supp. 1061 (S.D. Miss. 1989); Shap-

pert Engineering Co. v. Steel City Marine Transport, Inc.,

620 F Supp. 1377 (D. Mo. 1985). The plaintiffs have

incurred many expenses and contend that these expenses

are recoverable in the “general rule” plaintiff was the one

that was supposed to be made whole. ... The Baltimore,

75 U.S. 3777; Standard Oil Co. v. Southern Pacific Co.,

268 U.S. 146 (1925); BP Exploration and Oil Inc. v. Moran

Mid-Atlantic Corp., 2001 U.S. Dist. LEXIS 8624 (D. NJ.

2001). The first principal in assessing damage in a mari-

time tort “is to place the injured person as nearly as possi-

ble in the condition he would have occupied if the injury

had not occurred.” Gains Towing and Transportation Co. v.

Atlantia Tanker Corp., 191 F.3d 633 (5th Cir. 2000);

Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300, 1977

AMC 508 (5th Cir. 1976). The fundamental rule is “where

property is destroyed by a wrongful act, the owner is

entitled to its money equivalent, and thereby to be put in

as good a position pecuniarily as if his property had not

—been destroyed”, Standard Oil Co. v. Southern Pacific Co.,

268 U.S. 146 (1925); Ryan Walsh Stevedoring Co. v. James

Marine Services, Inc., 792 F.2d 489, 1987 AMC 1611 (5th

Cir. 1986); A&S Transportation Co. v. Tug Farjaro, 668

F.2d 1, 1983 AMC 10 (1st Cir. 1982). It is fact that the

court would not charge the defense with the fees and costs

associated to a so called court appointed survey of the

vessel and the court yelled at the plaintiffs when the

plaintiffs made the court aware of the costs. Plaintiffs are

tired of paying for the incompetent conspiring acts of the

defense and the court especially since this is a “so called”

“defense admitted liability case”. Cannon 3(B) Adminis-

trative Responsibilities. Canon 3B(3) reporting the

violation to the proper authorities. Canon 3B(4) A

judge should not make unnecessary appointments

and should exercise that power only on the basis of

merit, avoiding nepotism and favoritism. The Pfund

issue: Plaintiffs note, fact, during cross examination

at trial of Pfund the courts appointed expert the

plaintiffs found that the defense and the court and

Pfund were in ex parte communications without the

plaintiffs knowledge and during this time it became

apparent they were conspiring against the plain-

tiff’s rights (a U.S. Title 18 crime). The fact is, that

there is and at that time was, well over fifty well qualified

surveyors in the court district.Pfund constitutes a unfair

advantage to the defense. For the court to appoint an expert

well over 3,000 miles away constitutes a unreasonable cost

that the court later tried to extort from the plaintiffs,

under threat of the entire case being dismissed in favor of

the defense. This act on the courts part caused the plain-

tiffs to file an appeal. The defense was the only party that

demanded an expert and in the last days before the

September, 2001 trial date. The court allowed the defense

ex-parte communications with courts expert, who was at

all times pre-hired by defense. The court allowed, and,

condoned the courts’-defense expert to include

charges such as alcohol and first class airfare in his

bill for his services to plaintiffs. It is fact, that the

plaintiffs video taped the Pfund survey and that Mr. Pfund

is a “so called self-appointed expert with no composites

work experience and a degree in liberal arts” limited to

composite structures, NOT a surveyor, NOT a person

qualified to determine the costs of damages, does not own

nor work for any ship repair facility, and NOT a sail

rigging expert, yet the court still choose Pfund in con-

spiracy with defense counsel to drag out the case and force

Benetic to take a ridiculous less than pennies vs: dollars

settlement and GO AWAY! Pfund was chosen because

defense had NO defense and only to delay the case from

being tried in 09/2001, so that defense could think further

on how to detriment Benetic. It is fact that the plaintiff’s

_son was ordered by Mr. Pfund to perform certain duties

that Pfund could have done himself and plaintiffs believe

that Pfund was not capable to handle all of his duties

himself at the time of the survey because the court never

advised Pfund of his duties according to law. (Under

federal rules of Evidence Code 706 et al.). It is fact

that the plaintiffs never requested this expert and paid

more than their share for his services, yet the court

threatened the plaintiffs to dismiss their complaint to the

advantage of the defense. The plaintiffs were then forced

to appeal and the court later stated that it was the plain-

tiff’s fault for the delay when it is true fact that this court

refused to manage the case to avoid the delay and there-

fore is the courts fault for that delay. The court stated that

the purpose of Pfund was to determine a dollar amount.

Mr. Piund never did so and cannot due to the fact “HE IS

NOT CAPABLE” and does not own a repair yard thus

cannot figure a dollar amount. Pfund ordered the plain-

tiff’s vessel hauled out via marine railway, blocked on

stands, hydro washed, and scaffolding erected all around,

and was ready to drill 3" holes into various areas of the

hull further damaging our vessel as part of his inspection

all costs associated and as part of the Pfund survey.

Plaintiffs refused any hole drilling and damages to the

vessel. It is fact that plaintiffs paid in excess of what it

was ordered and the court failed to mention these facts for

the record. It is fact that at this point Judge Audrey B.

Collins did not deny the Plaintif{’s accusations. Canon

3(C) Disqualification. (1) A_judge shall disqualify

himself or herself in a rroceeding in which the

judges impartiality might reasonably be questioned,

including but not limited to instances in which: (a)

the Judge has a personal bias or prejudice concern-

ing a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding. Unfair

advantages to the defense. The court has allowed

several unfair advantages to the defense including but not

limited to: The court delayed this case as to cause the

plaintiffs undue financial harm. The court has caused the

plaintiffs to not be able to afford any legal representation.

The court has let defendant Bayport off of their crimes of

titling negligence and sending an unseaworthy vessel to

sea. (See Bayport Issue)The court refuses to arrest the

vessel named in REM even though the defense bond is

fraud and Plaintiffs did not accept. (pursuant to Admi-

ralty Rule C) Plaintiffs were ordered to give notice of

intent to arrest the vessel in REM when plaintiffs believe

there is no such requirement. The court allowed the de-

fense to file ex-parte relief from the notice to arrest when

the defense was not a legal owner of the vessel in REM at

that time. The vessel was never represented by its true

owner. (the court allowed misrepresentation of the vessel

in REM). The court limits the plaintiff’s case to a time

limit using a stopwatch, yet the plaintiffs have a greater

burden and as such need more time to litigate than the

defense. For the court to impose a time limit on the plain-

tiffs creates an unfair advantage for the defense and their

18 attorneys. It is fact that the court stated that the

plaintiffs will not have the time to call all of its experts

and witnesses. It is fact that the plaintiffs have over one

hundred witnesses to call and the defense does not. Eight

hours for a trial of this size is not enough time and is

unfair to the plaintiffs to whom have the burden of proof.

The court has stated several times that this case is limited

to the dollar amount of the damages to the vessel and that

the defense has admitted liability to the complaint. The

court has assisted the defense in the manipulation of the

discovery process and did not allow the plaintiffs a fair

opportunity to fair discovery. It is fact that the plaintiff

believes that they are the victims of ex-parte communica-

tion and conspiracy between the court and the defense. It

is fact that the plaintiffs were denied the proper discovery

by the defense and this court and it is fact that the court

will not allow the plaintiffs the proper time for the plain-

tiffs to call all its witnesses to satisfy their burden of proof

and have a fair trial. It is fact that the court led the

plaintiffs to believe that the defense admitted liability and

therefore the court limited the case to the dollar amount of

damages when in fact the plaintiffs require to be made

whole. Plaintiffs believe that the court is not allowing the

plaintiffs their legal right to a fair trial. Admiralty law states

that restitutio in integrum is the first rule in admiralty law,

yet this law was in fact ignored . . . The court allows the Kats

defense to represent the vessel in REM when they do not

own it ... nor have permission from the owners ... Only

allowing one expert to plaintiffs and allowing defense

two. The court in the proceeding of April 2002 states that

the case should only have three expert testimony — one per

side — and Pfund shortly thereafter the court allows the

defense to utilize the “so called” courts expert. Pfund was a

defense expert even before he became a courts expert, and

RL eS Nie tn mae -

now is the defense expert. The court also allowed the defense

to advise the courts expert of his duties when the law states

that the court should advise the courts experts of their duties

and file them for the record. The court violated evidence rule

706, and conspired with the defense against the plaintiffs on

the Pfund issues. Plaintiffs believe that the obvious con-

spiracy against rights a crime under (title 18) of the US

code constitutes a persenal bias or prejudice concerning

a party. It is fact that at this point Judge Audry B. Collins

did not deny the Plaintiff’s accusations. How can a Judge

that is biased against your rights hear and solel y

decide your case with no Jury? ... It is fact that at this

point Judge Audrey B. Collins did NOT deny or challenge

the Plaintiffs accusations. Plaintiffs State that Under

(U.S. Code Title 28) rules made by courts cannot be

inconsistent with Acts of Congress and the Supreme

Court and such rules shall not abridge any substan-

tive right, in Maritime Cases court rules have to abide

by international relations and should not defeat or

narrow any substantial admiralty rights of recovery

and may not be applied prejudice the characteristic

features of maritime law or to disrupt the harmony it

strives to bring to international and interstate

relations. In this case Judge Collins invented new law for

the unfair advantage of the defense. John F. Kennedy

once said an error is not a mistake until its refusal

to be corrected.

REASONS FOR GRANTING THE PETITION

To ensure that the constitutional rights in this coun-

try extend to each and every citizen. Uniformity of the

courts and law, equal rights for all, in accordance with

established law of the land. The Rule of Law must be

upheld in equality to all citizens. There is much more to

say. Petitioners pray for justice.

CONCLUSION

The petition for a writ of certiorari should be granted.

Petitioners pray for justice in equality as U.S. Citizens

under rights reserved under the Constitution of the

United States of America, and that the Supreme Court

clean up, resolve, and correct the lower court’s sins and

errors. Justice delayed is justice denied, clearly evident by

the lower courts herein. That petitioners be granted a new

trial, preferably in another district (such as the Fifth

District) or any other district wherein U.S. Admiralty cases

can be judicially and be politically unbiased, heard in fair

justice for all, away from the Central District of California

and the Ninth Circuit. There is much more to be said, we

are ending this due to page limitations. Petitioner’s submit

to this honorable court and await respectfully: justice.

Respectfully submitted,

NICHOLAS J. BENETIC — trustee

SANDRA L. BENETIC — trustee

The Revocable Benetic Family Trust dated 09/22/1993

NICHOLAS J. BENETIC — trustee

SANDRA L. BENETIC — trustee Petitioners

Date: March 15, 2005

App. i

APPENDIX

i Page

United States Court of Appeals for the Ninth Circuit

Order on case # 03-56441 dated filed October 22,

2004 and received by Plaintiffs/Appellants on

January 3, 2005 AFFIRMING the District Court

Judgment of August 6, 2003 ooo... cceccccccsceceeceecseees. App. 1

U.S. District Court — Central District of California

ORDER - Findings of Fact and Conclusions of

Law after Court Trial by Judge Audrey B.

Collins for case # CV 00-06845 ABC (EX) In ad-

miralty dated August 6, 2003 filed by Clerk

Docketed as # 300 on 08/07/03 Received by Plain-

“ceed cy pes App. 5

United States Court of Appeals for the Ninth

Circuit Order on case # 03-56441 dated filed De-

cember 20, 2004 and received by Plain-

tiffs/Appellants on December 24, 2004 DENYING

petition for re-hearing en banc and no order to

date as to Appellants motion for publication of

the Affirmed Judgment of October 22, 2004......... App. 55

App. 1

EXHIBIT A

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS J. BENETIC and | No, 03-56441

SANDRA L. BENETIC, as Trus-

tees of the Benetic Family Trust D.C. No.

dated September 22, 1993, CV-00-06845-ABC

Plaintiffs-Appellants MEMORANDUM*

M/Y ATHENA ALEXANDER,

Official No. 1083 627 and her

engines appurtenances etc, in

rem; et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Audrey B. Collins, District Judge, Presiding

Submitted October 14, 2004**

(Filed Oct. 22, 2004)

Before: KLEINFELD, TASHIMA, and GOULD, Circuit

Judges.

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by Ninth

Circuit Rule 36-3.

** The panel unanimously finds this case suitable for decision

without oral argument. See Fed. R. App. P. 34(aX2).

App. 2

Nicholas and Sandra Benetic, on behalf of their family

trust, appeal pro se the district court’s judgment and post-

judgment orders in their maritime action seeking damages

caused when M/Y Athena Alexander allied with S/V

Buenos Aires on June 27, 1999. We have jurisdiction under

28 U.S.C. § 1291. We review de novo summary judgment,

United States v. City of Tacoma, 332 F.3d 574, 578 (9th Cir.

2003), questions of law in admiralty, Howard v. Crystal

Cruises, Inc., 41 F.3d 527, 529 (9th Cir. 1994), and selec-

tion of the legal standard for computation of damages, id.

at 530. We review for clear error the factual findings of a

district court sitting in admiralty, Chan v. Society Expedi-

tions, Inc., 123 F.3d 1287, 1290 (9th Cir. 1997), and the

computation of damages following a bench trial, Howard,

41 F.3d at 530. We affirm.

The district court correctly determined that Bayport

Yachts, Inc., did not have an ownership interest in, or title

to, M/Y Athena Alexander at the time of the allision and

therefore properly granted summary judgment dismissing

Bayport Yachts, Inc. See Nissan Fire & Marine Ins. Co.,

Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000).

The district court correctly assessed the cost of repair

to the Benetics’ vessel, see Stevens v. F/V Bonnie Doon, 731

F.2d 1433, 1436 (9th Cir. 1984), correctly denied damages

for lost profits, see Fireman’s Fund Ins. Cos. v. Big Blue

Fisheries, Inc., 143 F.3d 1172, 1177 (9th Cir. 1998), cor-

rectly denied damages for loss of use, see Oppen v. Aetna

Ins. Co., 485 F.2d 252, 257 (9th Cir. 1973), correctly denied

attorneys fees, see B.P. North America Trading, Inc. v.

Vessel Panamax Nova, 784 F.2d 975, 977 (9th Cir. 1986),

correctly awarded prejudgment interest reduced by the

period of undue delay caused by the Benetics’ appeals to this

Court, see Dillingham Shipyard v. Associated Insulation Co.,

App. 3

Ltd., 649 F.2d 1322, 1328-29 (9th Cir. 1981), and correctly

denied punitive damages, see In re Marine Sulphur Queen,

460 F.2d 89, 105 (9th Cir. 1972).

a ee tid

The district court did not err when it ordered defen-

dants to post a security bond in lieu of issuing a warrant

for the arrest of M/Y Athena Alexander. See Fed. R. Civ. P.

C(3)(a)(ii)(A), E(2)(b), E(5); U.S. Dist. Ct., Central Cal.,

Local Rule II(C)(1); Alyeska Pipeline Serv. Co. v. Vessel Bay

Ridge, 703 F.2d 381, 384 (9th Cir. 1983).

The district court did not abuse its discretion when it

made its evidentiary rulings. See McEuin v. Crown Equip.

Corp., 328 F.3d 1028, 1032 (9th Cir. 2003).

Appellants’ remaining contentions, including those of

judicial bias, are without merit.

AFFIRMED.

App. 4

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

- eee STS rE

NICHOLAS J. BENETIC, as No. 03-56441 |

Trustee of the Benetic Family

Trust dated September 22, 1993; D.C. No.

et al., CV-00-06845-ABC

Plaintiffs-Appellants, JUDGMENT

M/Y ATHENA ALEXANDER, |

Official No. 1083 627 and her

engines appurtenances etc, in

rem; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Central District of California, Los Angeles.

This cause came on to be heard on the Transcript of

the Record from the United States District Court for the

Central District of California, Los Angeles and was duly

submitted.

On consideration whereof, it is now here ordered and

adjudged by this Court, that the judgment of the said

District Court in this cause be, and hereby is AFFIRMED.

Filed and entered Friday, October 22, 2004

App. 5

EXHIBIT B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

NICHOLAS J. BENETIC and)

SANDRA L. BENETIC, as _)

Case No.

Par Rome ncn

an ) FINDINGS OF FACT

Plaintiffs, ) AND CONCLUSIONS OF

é ) LAW AFTER COURT

M/Y ATHENA ALEXANDER, TRIAL

oor’ (Filed Aug. 6, 2003)

Defendants. )

This admiralty case arises from the allision of the M/Y

Athena Alexander (the “Athena Alexander”) with the S/V

Buenos Aires (the “Buenos Aires”) on June 27, 1999 in the

Cabrillo Marina in San Pedro, California. Plaintiffs

Nicholas J. Benetic and Sandra L. Benetic, as Trustees of

the Benetic Family Trust dated September 22, 1993

(“Plaintiffs”), sued the Athena Alexander in rem; Dimitri

Bizoumis, who piloted the Athena Alexander on the day of

the allision; Alex Kats, Mr. Bizoumis’s father-in-law;

Valerie Kats, Mr. Bizoumis’s mother-in-law, and together

with Mr. Kats, owner of the Athena Alexander (collectively,

“Defendants”) and Bayport Yachts, which sold the Athena

Alexander to the Kats. Bayport Yachts was dismissed

before trial. The remaining Defendants admitted liability

for the allision before trial.

The court trial was therefore limited to the issues of

Plaintiffs’ recovery for damages, namely the amount of

recovery due for repairs and any other possible categories

App. 6

of loss, and Plaintiffs’ claim for punitive damages against

Defendant Dimitri Bizoumis. The court trial was held

before the Honorable Audrey B. Collins, District Judge

presiding, over three days from June 10, 2003 through

June 12, 2003.

Plaintiff Nicholas Benetic, acting as pro se counsel for

the Plaintiff Benetic Family Trust, called the following

witnesses: Patrick Dixon; Ishkhan “Ara” Gordian; Mary

Bacon; Thomas W. Bell; William Engstrom, whose deposi-

tion was offered as his direct testimony; Hugo Carver;

Leah Bizoumis; Dimitri Bizoumis, whose deposition was

also offered as direct testimony; Werner Kindor; Joseph

Benetic, Nicholas Benetic’s son and Nicholas Benetic. The

Court also admitted the deposition of Angelo B. Krakoff,

who was unavailable for trial, and allowed Plaintiffs to

recall Mr. Bizoumis, as will be explained below.’

' Plaintiffs also listed Defendant Alex Kats on their witness list.

On the morning of trial, the Defendants filed the Declaration of defense

counsel Joseph Cho re: Unavailability of Alex Kats. Exhibit A to the

declaration consisted of three letters from doctors who were of the

opinion that the stress of trial would exacerbate Mr. Kats’s coronary

disease. The letters attested that Mr. Kats had undergone multiple

coronary procedures including angioplasty, stents and brachytherapy.

(Decl. of Joseph Cho, Ex. A.) The strongest letter was from Dr. Wyman,

who stated “[Kats] should not be allowed to testify in court due to his

heart related health issues.” Jd. The Court spoke with Dr. Wyman by

telephone in court in the presence of all counsel. (Whenever used, the

term “counsel” includes Mr. Benetic.) Although the Court told Dr.

Wyman she would limit the time and intensity of Mr. Kats’s testimony

if he were to be called, Dr. Wyman did not change his view. Therefore,

the Court declared Mr. Kats to be unavailable pursuant to Federal Rule

of Evidence 804(a)(4). After proffers from Mr. Benetic and a brief review

of Mr. Kats’s deposition, the Court indicated that it doubted Mr. Kats’s

testimony would be relevant; however, the Court offered repeatedly, as

late as just prior to closing argument, to consider the parties’ requests

(Continued on following page)

Ce A eee rem

ee a RS ee a

aed a

App. 7

Defendants called the following witnesses: Bruce

Pfund and Todd Schwede.

Closing arguments were made on June 12, 2003, and

the case was submitted at that time.

At the close of Plaintiffs’ case, Defendants moved for

judgment as a matter of law pursuant to Federal Rule of

Civil Procedure 50 on the issue of punitive damages.

Because the Court did not prepare a separate order, this

order will encompass the Court’s reasons for granting

Defendants’ motion dismissing the punitive damages

claim.

Having considered all the evidence submitted and the

arguments of counsel, the Court enters the following

Findings of Fact and Conclusions of Law pursuant to Fed.

R. Civ. Pro. 52(a).

I. PROCEDURAL HISTORY

Bs On June 26, 2000, Plaintiffs filed a complaint in this

Court alleging the following claims in admiralty

against the Athena Alexander, Dimitri Bizoumis,

Alex Kats, Valerie Kats and Bayport Yachts: negli-

gent navigation, unseaworthiness, negligence after

allision’ and trespass to chattels.

that the Court admit pertinent portions of his testimony and to rule on»

any objections. Neither party availed itself of this option.

* Allision means “[t]he running of one vessel into or against

another, as distinguished from a collision, i.e, the running of two

vessels against each other. But this distinction is not very carefully

observed.” Black’s Law Dictionary, 5th ed. at 69 (1979).

App. 8

Defendants Bizoumis and Alex and Valerie Kats

filed a motion to dismiss and to strike pursuant to

Federal Rule of Civil Procedure 12(b)(6) and 12(f) on

August 1, 2000, which this Court denied on Novem-

ber 1, 2000.

On December 18, 2000, the Court set the matter for

final pre-trial conference on September 10, 2001

with the trial set to begin on September 25, 2001.

Defendants made an Offer of Judgment in the

amount of $30,000 on June 20, 2001.

On July 5, 2001, Defendant Bayport Yachts filed a

motion for paitial summary judgment, which this

Court granted on August 13, 2001, dismissing Plain-

tiffs’ claims against Bayport Yachts for negligent

navigation, unseaworthiness and negligence after

allision.

On August 13, 2001, the Court ordered counsel to

meet and confer regarding the issue of choosing an

independent and neutral expert and to file a joint

report describing the results of their meeting. Un-

able to agree on an expert, on September 5, 2001 the

parties submitted a joint report which included the

résumés of three surveyors and requested that the

Court choose one to act as the Court’s expert and de-

cide how the expert would be paid, as the parties

were also unable to agree on that issue.

After carefully reviewing the qualifications of each

candidate, on September 7, 2001, the Court ap-

pointed Mr. Bruce Pfund as the Court’s expert

(“Pfund” or “Court’s Expert”). The Court also or-

dered that 30% of Mr. Pfund’s fees be paid by Plain-

tiffs and 70% by Defendants. In addition, at that

time the Court continued the pre-trial and trial

dates for the case to March 11, 2002 and April 9,

2002, respectively.

Se AO 8 ane

10.

12.

App. 9

On January 28, 2002, the Court granted Defendants’

ex parte application and ordered that “the Notice of

Intent to Arrest the Vessel Formerly Known as the

‘Athena Alexander’ ... be served on all parties at

least 15 days prior to Plaintiffs’ taking any action

toward arrest, and that the Notice state in detail

Plaintiffs’ demands in lieu of arrest.” (Order Requir-

ing Notice of Intent to Arrest at 2:9-13.)

Also on January 28, 2002, Plaintiffs and Plaintiffs’

counsel Richard A. Caillouette, filed a Notice of Dis-

association of Counsel with respect to Plaintiffs’

counsel Russell, Mirkovich & Morrow.

On February 7, 2002, Plaintiffs filed a “Notice of

Release/Substitution of Attorneys and Notice to all

Parties that A Plaintiff will Continue as Pro Se.” Af-

ter conducting independent research on the issue of

whether Plaintiffs, which include a trust, could ap-

pear pro se in this matter, the Court issued an order

relieving the office of Mr. Caillouette as attorneys

for Plaintiffs and indicating that Plaintiffs could ap-

pear pro se.

On February 11, 2002, Defendants filed an ex parte

application requesting that the Court reconsider its

order relieving Plaintiffs’ counsel on the ground that

non-attorneys may not appear in federal court as rep-

resentatives of a trust. The Court permitted the par-

ties to further brief this issue. While the Court was

waiting for the briefing on the issue of whether

Plaintiffs could represent the trust pro se, Plaintiffs

filed numerous additional motions.

On February 12, 2002, the Magistrate Judge as-

signed to this case denied Plaintiffs’ ex parte applica-

tion for order to issue warrant of Maritime Arrest of

Vessel on the ground that Plaintiffs had not com-

plied with this Court’s January 28, 2002 Order re-

quiring that notice be served at least 15 days prior

13.

14.

15.

16.

17.

~ App. 10

(

to taking any action toward arrest of the vessel at

issue.

On February 14, 2002, this Court struck the second

ex parte application filed by Plaintiffs for order to is-

sue warrant of Maritime Arrest of Vessel for failure

to comply with ex parte procedures. The Court also

advised Plaintiffs regarding resources which they

should consult to familiarize themselves with this

Court’s ex parte procedures.

On February 15, 2002, Plaintiff Nicholas J. Benetic

sent a letter to the Court via fax. The Court admon-

ished Plaintiffs for sending correspondence to the

Court in violation of Local Rule 83-2.11. The Court

again directed Plaintiffs to resources which are

available to assist pro se parties in their litigation

before federal district courts.

On February 22, 2002, Plaintiffs filed a motion for

reconsideration of the Court’s February 14, 2002 or-

der striking Plaintiffs’ ex parte application for order to

issue warrant of Maritime Arrest of Vessel. On March

15, 2002, Plaintiffs filed yet another ex parte applica-

tion for an order to issue warrant of Maritime Arrest

of Vessel. These ex parte applications could not be

addressed while the Court was receiving briefing and

determining whether Plaintiffs could appear pro se

in this matter.

On March 18, 2002, after reviewing briefing submit-

ted by the parties on whether Plaintiffs could appear

pro se, and conducting extensive independent re-

search, the Court determined that the Benetics

could represent the trust pro se because they were

the sole beneficial owners of the Benetic Family

Trust. The Court also set a briefing schedule on

Plaintiffs’ two outstanding ex parte applications.

On March 25, 2002, the Court denied Plaintiffs’ ex

parte applications for failure to comply with the

Rs Na te

App. 11

Court’s January 28, 2002 Order, which required

Plaintiffs to serve all parties with notice of intent to

arrest 15 days prior to taking action toward arrest.

18. On April 3, 2002, Plaintiffs filed yet another ex parte

application requesting that the Court reconsider its

March 25, 2002 denials of Plaintiffs’ prior ex parte

applications. The Court struck this application as

Plaintiffs failed, yet again, to comply with the

Court’s rules, of which Plaintiffs had been advised

numerous times.

19. On April 24, 2002, Plaintiffs filed (1) a Notice to the

Court of Plaintiff’s Communication with the Courts’

Expert, (sic) (2) a Designation of Experts at Trial, (3)

a Motion & Application for Order to Appoint Substi-

tute Custodian, (4) a Motion to the Court & Applica-

tion for Order to Issue Warrant of Maritime Arrest

of Vessel Named In Rem and (5) a Request for Re-

view in Accordance with Supplemental Rule C. Also,

on April 24, 2002, Defendants filed a Request for

Status Conference re: Case Administration.

20. On April 26, 2002, the Court issued a minute order

addressing these April 24, 2002 filings. In this min-

ute order, due to the disturbing inability of the par-

ties to professionally manage their case, the Court

ordered that the parties could only communicate

with each other via certified mail and forbade each

party from communicating with the Court’s Expert.

The Court also informed the parties that it would

not micro-manage the case to the extent that it was

requested to enter into the dispute over payment

owed to the Court’s expert.

21. On May 3, 2002 Defendants lodged a copy of a letter

from Mr. Pfund’s counsel indicating that Mr. Pfund

had not been paid 30% of his outstanding statement

for services rendered, which amount was to be paid

by the Plaintiffs. Noting that the failure to pay the

22.

23.

24.

25.

26.

App. 12

Court’s Expert would affect the ability of this case to

proceed, the Court issued a minute order on May 6,

2002, ordering the parties to submit documentation

showing that they had paid the percentage of Mr.

Pfund’s fees ordered by the Court in its September 7,

2001 Order and warning the parties that failure to

pay the Court’s Expert as ordered could result in a

stay of the case.

On May 10, 2002, Defendants submitted evidence of

payment to Mr. Pfund. The Court found that the

documents submitted by Defendants showed that

Defendants properly complied with the Court’s Sep-

tember 7, 2001 Order by paying Mr. Pfund 70% of

his fee. Plaintiffs, however, failed to comply with the

Court’s Order.

As a result of Plaintiffs’ failure to comply with the

Court’s September 7, 2001 Order, on May 20, 2002

the Court stayed the case until June 17, 2002 and

ordered Plaintiffs to file proof of payment by no later

than June 20, 2002. In the Court’s Order staying the

case, the Court set a pre-trial date of July 8, 2002

and a trial date of July 23, 2002. Also on May 20,

2002, the Court issued an order denying Plaintiffs’

Motion to the Court & Application for Order to Issue

Warrant of Maritime Arrest of Vessel Named In

Rem.

On May 31, 2002, Plaintiffs filed a Notice of Appeal

to the Ninth Circuit of the Court’s May 20, 2002 or-

ders. Plaintiffs filed a second Notice of Appeal of the

orders on June 19, 2002.

Due to Plaintiffs’ appeals, on June 26, 2002, the

Court vacated the scheduled trial and pre-trial dates

pending resolution of the appeals.

Despite the stay effected by Plaintiffs’ appeals, on

June 28, 2002, Plaintiffs lodged “Evidence Withheld

from the Court by the Defense as Evidence of Fraud

App. 13

by the Defense.” Having no jurisdiction over the case

during Plaintiffs’ appeals, on July 1, 2002 the Court

issued a minute order rejecting the filing pending

the resolution of those appeals. Also on July 1, 2002,

Defendants filed a motion for dismissal, which the

Court struck on July 2, 2002 as improper.

27. On July 29, 2002. the Ninth Circuit issued an order

indicating that it lacked jurisdiction over the Plain-

tiffs’ interlocutory appeals.

28. On October 1, 2002, the Court reset the final pre-

trial conference for November 18, 2002.

29. Learning that Plaintiffs had not complied with the

Court’s May 20; 2002 Order relating to the Court’s

expert, on October 3, 2002 the Court issued an order

to show cause why the case should not be dismissed

for Plaintiffs’ failure to comply with that order, to

which Plaintiffs responded on October 15, 2002.

30. The Court construed Plaintiffs’ response as a motion

for recusal. The motion was referred to Judge Terry

J. Hatter for determination on October 21, 2002. On

October 23, 2002, Judge Hatter denied Plaintiffs’

motion to recuse.

31. On October 25, 2002, the Court discharged its order

to show cause why the case should not be dismissed

for Plaintiffs’ failure to comply with the May 20,

2002 Order.

32. On November 4, 2002, the Court again reset the pre-

trial and trial dates in this case for March 3, 2003

and March 18, 2003, respectively.

33. On February 3, 2003, Plaintiffs filed a Notice of

Association of Co-Trustee Joseph Benetic as Named

Plaintiff In Pro Se. Defendants lodged objections to

Plaintiffs’ notice on February 7, 2003. On February

12, 2003, the Court ordered Plaintiffs to file a copy

of the amended trust agreement by no later than

34.

35.

36.

37.

38.

39.

40.

App. 14

February 19, 2003. In compliance with the Court’s

order, Plaintiffs filed an amendment to the Benetic

Family Trust, dated as of January 24, 2003, together

with a response to the Court’s order.

The Court being unable to determine from the

amendment to the trust document whether Plain-

tiffs were entitled to continue to appear pro se, on

February 20, 2003, the Court ordered Plaintiffs to

produce documentary evidence by no later than

March 7, 2003 demonstrating that they were the

sole beneficial owners of the Trust. The Court was

therefore required to vacate the scheduled pre-trial

conference and conference dates.

On March 20, 2003, the Court issued an order

indicating that Joseph Benetic could not represent

the Trust pro se.

On March 26, 2003, the Court issued an order

striking Plaintiffs’ demand that the Court answer

Plaintiffs’ questions to the Court and motion for

sanctions, finding that the former was manifestly

improper and the latter entirely meritless.

On April 2, 2003, the Court denied Plaintiffs’ motion

for reconsideration of the Court’s order denying

Plaintiffs’ motion for reconsideration of maritime ar-

rest.

On May 14, 2003, Plaintiffs filed a second motion to

disqualify or recuse, which Judge Hatter denied on

May 19, 2003. Based on the recusal motion, the

Court vacated the May 19, 2002 pre-trial conference

date.

On May 20, 2003, the Court reset the pre-trial

conference for June 2, 2003.

On May 22, 2003, Plaintiffs filed a motion to dis-

qualify this Court and Judge Hatter, which was de-

nied by Judge Florence-Marie Cooper on May 29,

41.

42.

43.

App. 15

2003. Also on May 29, 2003, the Court denied Plain-

tiffs’ motion for default judgment against Vessel

FKA “Athena Alexander” now known as the “Dioria

Ling” and Plaintiffs’ motion for reconsideration,

granted Defendants’ request for sanctions and De-

fendant Bayport Yachts’ motion to quash and or-

dered Plaintiffs to pay sanctions of $390.00 within

30 days of the Court’s order.

On June 2, 2003, the parties’ pre-trial conference

took place, at which the Court issued an order

granting Defendants’ motion in limine to exclude

videotape pending Plaintiffs’ compliance with Mag-

istrate Judge Eick’s 5/14/02 order; denying Defen-

dants’ motions in limine (1) to exclude charge and

plea to speeding, (2) to deny Plaintiffs’ claim for con-

sequential damages, (3) to deny Plaintiffs’ claim for

punitive damages, (4) to deny Plaintiffs’ claim for at-

torneys’ fees; and granting and part and denying in

part Defendants’ motions in limine (1) to exclude all

recordings of telephone calls and meetings of counsel

and (2) to exclude opinions of Mr. Hugo W. Carver II.

In addition, the Court found that Defendants’ mo-

tion in limine to exclude evidence of marine surveys

not previously produced was moot.

On June 9, 2003, finding that it was unnecessary to

hold the scheduled final pre-trial conference, the

Court vacated the parties’ final pre-trial conference

date.

On June 10, 2003, before trial commenced, the Court

issued an order denying Plaintiffs’ motions in limine

(1) to exclude the bond issued by the Kats defen-

dants and (2) to exclude Defendants’ counsel.

App. 16

II. STIPULATED FACTS’

1. The Athena Alexander, a pleasure motor yacht, was

owned by Defendants Alex Kats and Valerie Kats.

2. The Buenos Aires, a pleasure sailing yacht, was the

property of the Benetic Family Trust.

3. Mr. Bizoumis piloted the Athena Alexander, with his

wife and two (2) minor children on board.

4. Just after maneuvering out of the slip, Mr. Bizoumis

lost control of the Athena Alexander when one of its

twin engines malfunctioned.

5. The Athena Alexander contacted the Buenos Aires,

which was moored — approximately seven (7) slips

from where the Athena Alexander was moored.

6. In addition, Defendants admitted liability for the

allision on the record on many occasions.“

* The-following are facts that Nefendants admitted and Plaintiffs

did not dispute. Unless otherwise indicated, the events recited herein

occurred on June 27, 1999.

* The testimony of Patrick Dixon and Werner Kindor corroborated

the admissions of liability. Mr. Dixon testified that while he was getting

out of his car in the parking lot, he heard an engine roar and saw

Defendants’ boat pull out of its slip. Mr. Dixon identified Defendants’

boat by its brand name, “Carver.” Mr. Dixon then heard a “bang” or

“clang” and thought Defendants’ boat must have hit something, but

could not see what it hit. Mr. Dixon did see Defendants’ boat leave and

then return later, accompanied by the Baywatch Cabrillo, a Los

Angeles County lifeguard boat. He described the damage by noting that

the pulpit of Defendants’ boat was “bent and mangled.”

Mr. Kindor also testified that he heard a bang while he was taking

a brief pause from varnishing his own boat. Mr. Kindor saw Defendants’

boat bounce off Plaintiffs’ boat and continue on its way. Mr. Kindor

described the damage by noting that the rail on Defendants’ boat was

bent out of shape.

me ease a anenenenen

App. 17

III. PLAINTIFFS ARE NOT ENTITLED TO PUNI-

TIVE DAMAGES AS A MATTER OF LAW

A. Background

A At the close of Plaintiffs’ case,” Defendant Dimitri

Bizoumis moved for judgment as a matter of law

pursuant to Federal Rule of Civil Procedure 50(a) as

to the issue of whether punitive damages could be

assessed against Mr. Bizoumis.

8. The Court did not rule on the motion when it was

brought because it wished to complete testimony of

Mr. Bizoumis’s two witnesses, who were not local,

and because Mr. Benetic indicated he had not seen

Mr. Bizoumis’s Rule 50 motion.

9. Mr. Bizoumis’s brief indicated he had unsuccessfully

tried to fax the brief to Mr. Benetic several times.

Both the Court and defense counsel had continuing

difficulties reaching Mr. Benetic by fax in the

months leading up to trial. Nevertheless, the Court

provided Mr. Benetic an opportunity to read the

brief overnight.

10. After hearing oral argument on the motion from

both sides, the Court granted Defendant Dimitri

* After the Court ruled that Mr. Kats was unavailable, Plaintiff

Nicholas Benetic asked to recall Mr. Bizoumis on the issue of his state

of mind because Mr. Benetic could no longer call Mr. Kats. The Court

denied the motion at first, noting that Mr. Kats’s testimony could in no .

way have substituted for Mr. Bizoumis’s own testimony as to his own

state of mind, and that Plaintiffs had already called Mr. Bizoumis and

elected to rest upon his deposition testimony as direct testimony.

However, after reconsidering Plaintiffs’ pro se status, the Court ruled

on June 11, 2003 that Plaintiffs could recall Mr. Bizoumis. The

testimony was to be limited to Mr. Bizoumis’s state of mind. However,

over the objections of Defendants, the Court allowed Plaintiffs to

conduct wide-ranging testimony concerning the allision.

11.

12.

13.

14.

15.

App. 18

Bizoumis’s motion on June 12, 2003 before closing

arguments and dismissed Plaintiffs’ claim for puni-

tive damages.

B. Findings of Fact Relevant to Mr. Bizoumis’s

State of Mind at the Time of the Allison

The Court had an opportunity to judge Mr. Bizou-

mis’s credibility on both days he was called, particu-

larly when he was recalled on June 11, 2003. The

Court found his testimony credible and undisputed

on key points.°

Although Mr. Bizoumis did not own the Athena

Alexander, he clearly had permission from Mr. Kats

to take the boat out with his wife and children on

June 27, 1999, the date of the allision.

Mr. Bizoumis had his own keys to the boat and his

own parking spot at the marina.

Mr. Bizoumis had the benefit of three to seven

training sessions at both the Newport and Cabrillo

marinas before he took the boat out.

The training sessions were with a salesperson from

Bayport Yachts, and one or two other people from

Bayport Yachts, the company that sold Mr. Kats the

Athena Alexander. (Bizoumis Dep. at 28:23-29:11,

30:17-21.)

* Plaintiffs also called Leah Kats Bizoumis, Mr. Bizoumis’s wife.

Her testimony was consistent with that of her husband.

App. 19

16. One training session took place in Newport Beach,

lasted several hours and involved reviewing the

boat’s instruments, navigation, maneuvering, start-

ing the boat, getting it out of the slip, cruising, turn-

ing, bringing the boat back and docking it in the

slip. (Bizoumis Dep. 30:13-15, 30:23-25, 31:12-15,

32:7-13.)

17. Mr. Bizoumis’s training also included extensive

instruction lasting a full day, from morning well into

the afternoon on June 26, 1999, the day before the

accident. During the session, the trainers repeatedly

reviewed with Mr. Bizoumis how to start the en-

gines, prepare the boat to take out and back it out.

(Bizoumis Dep. at 48:2-5, 48:15-17, 49:6-14.) At trial

Mr. Bizoumis testified they had practiced taking the

boat out a dozen times.

18. On June 27, 1999, due to his training, Mr. Bizoumis

believed that he was capable of safely operating the

Athena Alexander‘

19. Mr. Bizoumis was aware that the Athena Alexander

had experienced prior engine failures. However, Mr.

Kats told him the day of the allision that Bayport

Yachts had assured him the engine problems had

been resolved and the boat was safe to take out.®

* The Court discounts the testimony of Mr. Gordian that Mr.

Bizoumis had no idea of the boat’s Systems, operating procedures or

emergency procedures. Mr. Gordian admitted he did not know whether

Mr. Bizoumis was receiving training from anyone else. In particular,

Mr. Gordian admitted he was unaware of the significant training and

practice Mr. Bizoumis had received the day before the accident.

* The Court admitted this statement because of its relevance to Mr.

Bizoumis’s state of mind.

20.

21.

22.

23.

24.

25.

26.

App. 20

Accordingly, on June 27, 1999, Mr. Bizoumis be-

lieved that the Athena Alexander was in proper

working order.

After Mr. Bizoumis backed the boat out, turned,

straightened and headed down the channel, the

starboard engine failed. The boat then moved to the

right, at which time Mr. Bizoumis felt the boat bump

against something and bounce back slightly.

At the time, Mr. Bizoumis thought he had struck a

piling.” In fact, he had struck Plaintiffs’ boat.

Mr. Bizoumis testified that he did not see Plaintiffs’

boat at the time of the allision, and that he did not

intend to allide with the Buenos Aires. His testi-

mony is undisputed.

Mr. Bizoumis testified that had he known he had

struck Plaintiffs’ boat, he would have stopped, if he

could have. However, he was not aware he had

struck the boat or caused any damage.

Due to the engine failure, the boat began to move to

the left. Mr. Bizoumis turned his attention to getting

the boat out into the open, eventually reached the

channel, told his wife to call vessel assist and was

rescued.

Mr. Bizoumis was not under the influence of alcohol

or drugs that day.

When the Athena Alexander was brought back into

the marina, no one told Mr. Bizoumis that he had

struck another vessel. In fact, one of the individuals

from Bay Watch checked around the marina and

*” Mr. Bizoumis’s testimony was consistent throughout on this

point. (Bizoumis Dep. 79:8-14, 80:4-5, 83:10-11, 89:19-20.)

27.

28.

29.

App. 21

told him he was lucky he had not hit anything. Mr.

Bizoumis trusted this information until he heard

from Mr. Kats that the Athena Alexander had struck

another vessel. (Bizoumis Dep. at 106:10-107:24.)

Plaintiffs did not present any evidence that would

suggest that Mr. Bizoumis acted with an intent to

harm when he took out the Athena Alexander.

C. Legal Standard

Rule 50(a) provides, in pertinent part, that if:

there is no legally sufficient evidentiary ba-

sis for a reasonable jury to find for [a] party

on [an] issue, the court may determine the

issue against the party and may grant a mo-

tion for judgment as a matter of law against

that party with respect to a claim or defense

that cannot under the controlling law be

maintained or defeated without a favorable

finding on that issue.

Fed. R. Civ. P. 50(a) (1).

A motion for judgment as a matter of law “may be

made at any time before submission of the case to

the jury.” Fed. R. Civ. P. 50(a) (2). “Nothing in Rule

50 ... requires that a motion for a directed verdict

come at a specific time in the case.” American &

Foreign Ins. Co. v. General Elec. Co., 45 F.3d 135,

139 (6th Cir. 1995) (rejecting position that “a motion

for directed verdict can only be properly raised and

granted (1) after the opening statement of an ad-

verse counsel, if by such statement it is clear that no

question for the jury exists; (2) at the close of the

evidence offered by an opponent; (3) or at the close of

all evidence.”).

30.

31.

32.

33.

App. 22

In ruling on a Rule 50 motion, a court must review

the evidence “ ‘in the light most favorable to the non-

moving party and draw all possible inferences in fa-

vor of that party.’” Ellison v. Shell Oil Co., 882 F.2d

349, 352 (9th Cir. 1989) (citing Donoghue v. County

of Orange, 848 F.2d 926, 932 (9th Cir. 1987). “A di-

rected verdict may be upheld only when the evi-

dence permits but one reasonable conclusion as to

the verdict.” Jd. In other words, the Court must de-

termine “whether or not, viewing the evidence as a

whole, ‘there is substantial evidence present that

could support a finding, by reasonable jurors, for the

nonmoving party.’” Quichocho v. Kelvinator Corp.,

546 F.2d 812, 813 (9th Cir. 1976) (quoting Chisholm

Bros. Farm Equipment Co. v. Int'l Harvester Co., 498

F.2d 1137, 1140 (9th Cir.), cert. denied, 419 US.

1023 (1974)). See also Berry v. Bunnell, 39 F.3d

1056, 1057 (9th Cir. 1994) (“A directed verdict is

proper when the evidence permits only one reason-

able conclusion.”); McGonigle v. Combs, 968 F.2d

810, 816 (9th Cir.), cert. dismissed, 506 U.S. 948

(1992) (citing same principle).

D. Discussion

Plaintiffs request that punitive damages be awarded

on the grounds that Mr. Bizoumis acted with reck-

lessness and callous disregard for others when he

took the boat out on June 27, 1999.

The Court agrees with Defendants that there is no

basis for an award of punitive damages.

Generally, punitive damages may be awarded in

maritime tort actions where a defendant’s actions

are intentional, deliberate or so wanton and reckless

as to demonstrate a conscious disregard of the rights

of others. See Protectus Alpha Navigation Co. v.

ee ee

34,

35.

36.

37.

38.

App. 23

North Pacific Grain Growers, Inc., 767 F.2d 1379,

1385 (9th Cir. 1985) (citations omitted); In re Marine

Sulphur Queen, 460 F.2d 89, 105 (2d Cir. 1972), cert.

denied, 409 U.S. 982 (1972). “A condition precedent

to awarding [punitive damages] is a showing by the

plaintiffs that the defendant was guilty of gross neg-

ligence, or actual malice or criminal indifference

which is the equivalent of reckless and wanton mis-

conduct.” See Marine Sulphur Queen, 460 F2d at

105.

The purpose served for awarding exemplary dam-

ages is to punish the defendant and to deter others

from acting in like manner. Lake Shore & M.S.R. Co.

v. Prentice, 147 U.S. 101, 104 (1893). Punitive dam-

ages are solely intended to serve the purposes of

punishment and deterrence, and should not provide

plaintiff with a windfall. Aldrich v. Thomson

McKinnon Sec., Inc., 756 F2d 243, 249 (2d Cir.

1985).

As Defendants admit liability, the Court assumes

that Defendant Bizoumis admits negligence.

Although Mr. Bizoumis admits liability for the

accident, his actions do not reflect a state of mind

that calls for an award of punitive damages. His ac-

tions do not reflect anything like recklessness, cal-

lous disregard for the rights of others, gross

negligence, actual malice or criminal indifference.

Even if the Court were to credit the testimony of

Plaintiffs’ witnesses Mr. Dixon and Mr. Gordian,

Plaintiffs would not establish that Mr Bizoumis

acted with the state of mind required for punitive

damages.

If true, the testimony of Messrs. Dixon and Gordian

merely suggests that Mr. Bizoumis acted negli-

gently, not that he acted recklessly, with malice or

39.

41.

IV.

42.

43.

App. 24

with callous disregard for the rights of anyone. Al-

though it may be unwise to gun the engines or travel

fast enough to create a wake in a marina, such be-

havior alone does not constitute recklessness.

Indeed, there is no credible or substantial evidence

to support a finding that Mr. Bizoumis had any “evil

motive” or other such punishable state of mind at or

near the time of the allision.

Plaintiffs thus failed to establish a prima facie case

on the issue of punitive damages.

Accordingly, the Court granted Defendants’ motion

and denied an award of punitive damages as a mat-

ter of law.

FINDINGS OF FACT

A. Damage to Buenos Aires

All the experts who testified on the extent of dam-

ages, whether called by Plaintiffs (Thomas W. Bell

and William Engstrom) or by Defendants (Bruce

Pfund an? Todd Schwede), were fairly consistent as

to the areas in which the Buenos Aires suffered

damage and, equally importantly, as to the areas of

the Buenos Aires that were not damaged.

Some experts examined the Buenos Aires closer in

time to the allision; others examined it years later:

a. Plaintiffs’ expert Mr. Bell examined the Buenos

Aires in July of 1999. (Bell Testimony, Ex. 209.)

b. However, Plaintiffs’ expert Mr. Engstrom did

not perform his survey until May 29, 2001. (Ex.

212.)

ER EE RE RAN ene Aen

App. 25

c. Defendants’ expert Mr. Schwede surveyed the

Buenos Aires on July 7, 1999. (Schwede Testi-

mony, Ex. 215.)

d. Defendants’ expert Mr. Pfund surveyed the ves-

sel on January 7-8, 2002. (Pfund Testimony, Ex.

214.)

44. The allision between the Athena Alexander and the

Buenos Aires resulted in the Buenos Aires suffering

a bent bow pulpit," bent lifeline stanchions, bent

dolphin striker rod, damage to the roller furling

headstay and halyard and minor damage to attach-

ment points.

45. The allision damage to the Buenos Aires did not

render the vessel a total loss.

46. The Buenos Aires suffered ‘no allision damage to its

structure or major components, including the ves-

sel’s hull (Schwede and Engstrom Testimony), keel

(Pfund Testimony), interior (Pfund and Engstrom

Testimony), engines (Engstrom Testimony), machin-

ery (Engstrom Testimony) and rigging (Engstrom

Testimony, Engstrom Dep. at 35:2-12).

47. With regard to the individual surveyors who testi-

fied, the Court gave the greatest weight to expert

Mr. Schwede of Todd and Associates.

48. Mr. Schwede is a qualified expert on the subject of

marine surveys, forensic damage evaluation, vessel

repair and cost of vessel repair.

" The pulpit is a stainless steel framework around the bow of the

boat. The pulpit acts as a safety device. It provides a structure to hang

onto, sit on, etc. when tending the sails. It attaches to the bow plank of

the boat, which is a flat piece of wood mounted on an aluminum frame

structure that is bolted to the framework. (Schwede Testimony.)

49.

50.

51.

52.

53.

App. 26

Mr. Schwede has been an accredited marine sur-

veyor since 1984, holding a membership in the Soci-

ety of Accredited Marine Surveyors. He currently

serves on the Board of Directors of the International

Association of Marine Investigators. He has been a

boat builder since the 1980’s and has also worked for

the Lloyd’s of London surveyor A.N. Tillett & Associ-

ates in San Diego, California. Mr. Schwede was in-

vited to become a partner at Eichenlaub Marine and

helped convert that boatyard’s business from new

construction to repair and modification of boats.

Mr. Schwede has published articles on stolen boat

investigations in Boating Magazine and Hot Boat

Magazine; and has had two technical articles pub-

lished in Technical Exchange for Marine Profession-

als.

Mr. Schwede is also a certified instructor with the

International Association of Marine Investigators,

and has taught classes in marine forensic photogra-

phy, accident damage investigation, accident recon-

struction and insurance fraud. He is currently an

instructor with the American Boat and Yacht Coun-

cil, teaching a course in marine accident investiga-

tion and accident reconstruction.

Mr. Schwede performs 350 inspections a year, 70% of

which are for insurance company clients. The rest

are for banks, the Internal Revenue Service, the

Coast Guard, the Navy and the public.

Although Mr. Schwede was hired by Markel Ameri-

can Insurance Company, Defendants’ insurance

company, to determine the damage to the Buenos

Aires from the allision and therefore could have

been biased in favor of the insured, the Court

54.

55.

56.

57.

58.

59.

App. 27

weighed this factor and found his testimony to be

entirely credible.”

With Mr. Benetic present, Mr. Schwede surveyed the

Buenos Aires while it was dry-docked and visually

inspected the bow pulpit, lifelines, deck, chain

locker, bulwarks and all deck areas in the forward

area. He also searched for stress in the laminated

and bolted structures.

In addition, Mr. Schwede climbed on a ladder up to

the deck levels, performed a visual inspection and

felt the surface of the hull for stress fractures.

In Mr. Schwede’s opinion, the only impact was pulpit

to pulpit, evidenced by metal to metal scratches on

the pulpits and the direction of the bends of the pul-

pit.

Mr. Schwede did not believe there had been any

physical impact on the fiberglass hull portion of the

boat and observed only minor damage to the re-

cessed pockets in the bulwarks, and some minor

movement (i.e., 3/16ths of an inch) in the bow plank.

In Mr. Schwede’s opinion, there was no significant

damage to the huii.

Mr. Schwede saw no scratches, dents, deflections or

disruptions to the fiberglass, gelcoat or bottom paint

that would suggest the bow had suffered a blow. Mr.

Schwede did not notice any other physical indicators

that showed trauma to the bow.

“ Mr. Schwede’s credibility was enhanced by his undisputed

testimony that he asked Mr. Benetic to point out any damages that he

might have overlooked. When Mr. Benetic indicated he believed there

were stress fractures to the lifeline stanchions, Mr. Schwede added that

item to his recommendations for repair. Mr. Schwede stated “If I

couldn’t rule [a repair request] out, I’d include it.”

60.

61.

App. 28

At every location Mr. Schwede inspected, Mr.

Schwede asked Mr. Benetic what damages he knew

about.

In his survey, Mr. Schwede listed the following

recommendations for repair:

“Remove and replace double course stainless-

steel bow and stern pulpits as per original.”

(Ex. 215 at 1.)

“Replace vinyl covered stainless steel lifelines

and associated hardware, and replace four bent

lifeline stanchions. Provide gel coat and fairing

to all lifeline stanchion plugs at bases, where

disrupted, located in bulwarks, and blend gel

coat to match. Provide compound and wax to

the hull of the vessel as per original.” (Ex. 215

at 1.)

“Remove and replace bow plank frame and bow

plank, remove teak plank, repaint frame, re-

move corrosion located at mounting hardware

and treat with epoxy. Re-coat with linear poly-

urethane, replace teak plank and reinstall, as

per original.” (Ex. 215 at 1.)

“Provide gel coat repairs to inside bulwark area

where bow plank attaches to bulwark. Blend to

match existing gel coat, re-bed and secure cov-

ers over bolts.” (Ex. 215 at 1.)

“Provide gel coat touch-up to bulwark area lo-

cated beneath bow plank. Remove and re-bed

stem fitting, blend gel coat to match as per

original.” (Ex. 215 at 1.)

“Provide aloft rigging inspection by [a] qualified

rigging co[mpany], to mast, standing and run-

ning rigging, and provide written report of find-

ings.” (Ex. 215 at 2.)

App. 29

g. “Remove and replace with new, bow plank dol-

phin a [sic] striker rod as per original.” (Ex. 215

at 2.)

62. The Court found Mr. Schwede’s inspection to be

thorough and unbiased, especially as his unrefuted

testimony indicates he gave the Plaintiffs every op-

portunity to bring additional dainage to his atten-

tion.

63. Accordingly, the Court adopts Mr. Schwede’s finding

that the point of impact was pulpit to pulpit; i.e., the

stainless steel pulpit of the Athena Alexander col-

lided with the pulpit of the Buenos Aires.

64. The Court found Mr. Pfund” to be highly qualified

and credible, but limited in his area of expertise to

* Mr. Pfund was originally selected as the Court’s own expert in

this matter. However, the Plaintiffs repeatedly accused Mr. Pfund of

being prejudiced in favor of the defense. There also were serious

disagreements concerning payments due Mr. Pfund. Accordingly, the

Court found it necessary to relieve Mr. Pfund as its expert to avoid

further unpleasantness for him and alleviate a contentious issue which

threatened to derail the Progress of the case. Thereafter, the defense

designated him as one of its experts.

“ Mr. Pfund is an expert in the manufacture and construction of

composites for the marine industry. He has had hands-on experience

with marine composites since he worked in a small boatyard as a

teenager. Throughout his career, he has had wide exposure to many

materials and processes used in connection with civilian, commercial,

recreational and military boats, ships and yachts. He has consulted for

boat manufacturers, material vendors, material distributors, naval

architects, marine engineers, individual owners, insurance companies,

the United States Navy and the Royal Australian Navy. He has been

involved with both the construction and repair of boats. In the 1990’s,

Mr. Pfund manufactured process machinery used in the manufacture of

boats and provided application consulting on that kind of equipment to

boat manufacturers. He has developed and patented non-destructive

inspection equipment for composites.

(Continued on following page)

App. 30

the inspection of the vessel’s composite construction

and mechanical attachments thereto.

65. Mr. Pfund did not inspect the Buenos Aires until

January of 2002.”

Mr. Pfund has also served as technical editor of Professional Boat

Builder Magazine since its inception in 1989 and has published over

one hundred articles in the consumer and trade marine press. He has

taught classes on the manufacturing and inspection of composites in

the marine industry for the United States Navy, the American Bureau

of Shipping, the Wooden Boat School and a variety of trade schools. The

inspection of damages and damage repair forms a significant part of his

vessel inspection work.

* Plaintiffs attempted to introduce a videotape of the survey

conducted by Mr. Pfund on January 7-8, 2002. The Defendants filed a

Motion in Limine to Exclude Videotape on February 7, 2003. The Court

found in favor of Defendants and excluded the videotape until Plaintiffs

complied with Magistrate Judge Eick’s May 14, 2002 order that

“(w]ithin ten (10) days of the date of this order, Plaintiffs shall make

available to Defendants for inspection and copying the videotape

recording of the survey.” (6/2/03 Order at 5.) The Court reinforced

Magistrate Judge Eick’s order in its own order dated June 2, 2003,

stating “[t]he onus is therefore on Plaintiffs to arrange for inspection

and copying of the videotape,” although the Court indicated that

Defendants were to pay the cost of copying. Jd. It is undisputed that the

Plaintiffs did not allow Defendants to inspect and copy the original

videotape. In fact, Mr. Benetic stated that the original 8mm tape was in

Florida.

In an unusually contentious exchange, even within the parameters

of this contentious case, Plaintiffs at first refused to supply the Defen-

dants with the videotape. See Decl. of Non-Compliance § 4, Ex. A (in

which Joseph Benetic, Mr. Benetic’s son, states in a fax to Donald

Sands of Sands and Lerner, “I will need sufficient funds in advance and

at least 1 week advance notice to make a copy,” and also states, “I

refuse to provide to you criminals, my address as you have physically

harmed and threatened me for no reason, in the past.” In the same fax,

Joseph Benetic also refused to make a copy of the tape without a copy of

the Court’s order.) Despite Plaintiffs’ refusal to provide Defendants

with the original tape, Plaintiffs did provide defense counsel with a

VHS format copy labeled “Defense Copy.” However, defense counsel

noticed immediately that the videotape was not in the original 8mm

(Continued on following page)

App. 31

66. Mr. Pfund conducted a visual inspection and “ham-

mer sounding” of the boat. Disassembly was not

permitted, but this did not inhibit the inspection, ac-

cording to Mr. Pfund.

67. Upon inspecting the exterior, Mr. Pfund saw no

evidence of impact in the form of gouges, scrape

marks, rubber or paint transfer.

68. Mr. Pfund inspected each lifeline stanchion and its

attachment to the rail of the bow spirit. He noted

that the stanchion assemblies were bent to star-

board and concluded that the impact occurred there.

69. Mr. Pfund agreed with Mr. Schwede that the point of

impact was the tubular metal and wire structure

(i.e. the bow pulpit attachments), not the hull itself.

format. (Id. | 9.) Defense counsel viewed the videotape and found it

“shockingly worthless.” (Id. q 1.)

On the first afternoon of trial, the Court and all counsel attempted

to watch Plaintiffs’ copy and the copy provided to defense counsel.

Neither copy was viewable. The Court retained both copies overnight.

All parties convened again at 8:30 a.m. the next morning to view the

videotapes with the assistance of the Court’s technical personnel. At

that time, the Plaintiffs’ copy was more than adequate for viewing.

However, the defense’s copy of the tape, as the record will show, was

unwatchable in terms of picture and sound quality. Plaintiffs claimed

that Defendants tampered with the video sent to them. The defense

counsel denied any tampering, and referred to their previously filed

Declaration of Non-Compliance.

Pending Plaintiffs’ compliance with Magistrate Judge Eick’s order,

the Court excluded the videotape in its June 2, 2003 order. (6/2/03

Order at 14.) Plaintiffs failed to comply with the Order. Therefore, the

Court excluded the videotape.

Although exhibits are typically returned to counsel at the conclu-

sion of Central District civil trials, the Court has ordered that both

copies of this videotape be retained by the clerk’s office pending

appellate review.

70.

71.

72.

73.

74.

75.

76.

77.

App. 32

Mr. Pfund found, and the Court adopts as its find-

ing, that there was minor composite damage in bow

pulpit attachment locations consistent with allision

impact. (Pfund Testimony, ex. 214 at 12.)

Mr. Pfund also inspected the cleats, chocks and hose

pipes. He observed no damage except to the lifeline

stanchion and tubing system.

Mr. Pfund inspected the interior and found no

indication of damage consistent with a significant

impact to the bow of the boat.

While inspecting the interior, Mr. Pfund looked into

as many compartments as possible where the hull

attached to the liner and saw no cracking or other

indications of any significant impact to the boat.

Mr. Pfund also inspected the wooden fixtures, trim,

joiner work, door openings and mitre joints because

damage to any of these often indicates hull move-

ment. However, he found no indication of failure or

cracked varnish and concluded that minimal impact

loads were involved in the allision.

In sum, Mr. Pfund was of the opinion that the

damage from the allision was limited to the bow

pulpit attachments and the lifeline stanchions aft of

the bow pulpit.

Like several of the other experts, Mr. Pfund ob-

served other damage unrelated to the allision. For

example, he noted osmotic blistering under the hull

caused by long term immersion, but saw no scrape

or gouge marks beneath the water line. In Mr.

Pfund’s view, keel damage was unrelated to the alli-

sion.

Mr. Pfund also testified he saw evidence of prior

repairs at the pointed, uppermost part of the bow,

78.

79.

80.

81.

82.

83.

84.

85.

App. 33

revealed by coatings of slightly different color and

texture than the surrounding areas.

The Court found Mr. Pfund’s testimony to be consis-

tent with Mr. Schwede’s testimony.

Mr. Thomas W. Bell also testified as to the amount

of damage to the vessel.

Mr. Bell has been a surveyor for over 40 years,

having surveyed over 5,000 vessels, from tankers to

small vessels. Typically, he determines whether a

vessel is insurable.

Mr. Bell testified to the presence of numerous minor

stress fractures in the bow spirit area where the bow

spirit tubular was affixed to the hull.

Mr. Bell was of the opinion that there did not appear

to be any significant structural damage to the hull,

although he thought the boat would have to be

taken apart to be certain.

In his survey, Mr. Bell recommended the removal of

the bow spirit tubular steel frame to effectuate re-

pair of minor stress fractures in the hull’s finish.

(Ex. 209.)

Mr. Bell also noted in his survey that the upper

railing was severely damaged and the stanchions

were pulled and bent, which also affected the lines.

In addition, Mr. Bell noted damage to the roller furl-

ing.

Mr. Bell was of the opinion that the boat was “se-

verely hit,” (Bell Testimony, Ex. 209), however the

damage described in his brief, two paragraph sum-

mary was consistent with the damage noted in the

survey by Mr. Schwede, who testified that the force

of the allision had been minor.

86.

87.

88.

89.

90.

91.

App. 34

The Court notes that each item of damage appearing

in the Bell survey was accounted for in the estimate

prepared by Wayne Morrison at Mr. Schwede’s re-

quest. (Ex. 209 (Bell Survey), Ex. 215 (Schwede Sur-

vey.)) In fact, Defendants’ expert Mr. Schwede

recommended more areas of repair than Plaintiffs’

own expert Mr. Bell, although the two surveyors in-

spected the Buenos Aires within a month of each

other. (/d.)

Mr. William Engstrom also testified as to the condi-

tion of the vessel when he inspected it on May 29,

2001, although he was not tasked with determining

which damage was caused by the allision. (Engstrom

Testimony, Engstrom Dep. 22:13-23:7.)

Mr. Engstrom has been a certified marine surveyor

for close to ten years. He is a member of the Board of

the National Association of Marine Surveyors and

has served on standing committees within that or-

ganization. (Engstrom Dep. 15:19-16:3.)

Mr. Engstrom has managed a repair yard for major

manufacturers for 19 years, and thus has experience

in all areas of the marine pleasure craft industry.

(Engstrom Dep. 16:11-14.)

Mr. Engstrom made recommendations consistent

with those of the other experts with respect to dam-

age attributable to the allision, having recom-

mended replacement of the bow pulpit, renewal of

the roller furling drum, inspection of the masthead

by riggers, repair of bent bobstay and repair of frac-

tures near the pulpit. (Ex. 212 at 2-3.)

Mr. Engstrom also noted other areas of damage but

had no opinion as to whether they were related to the

allision. (Engstrom Dep. at 22:13-22.) His other recom-

mendations included termite extermination, replacement

92.

93.

94.

App. 35

replacement of leaking refer raw water intake valve,

cleaning bilge, service of aft head waste discharge

valve, service of fire extinguishing system, renewal

of emergency flares, renewal of standing rigging, re-

sealing of mast boot and rebedding of portside salon

cabin windows. (Ex. 212.)

The Court found Mr. Engstrom to be a highly credi-

ble and qualified witness. However, the Court

adopts as its findings Mr. Schwede’s and Mr Pfund’s

testimony as to the damage caused by the allision

because Mr. Engstrom did not have an opinion about

the source of the additional damage he identified,

and because the other experts did not mention the

additional damage or attribute it to the allision.

Based on Mr. Schwede’s survey and those of the

other experts, the Court finds that the force involved

in the allision was minor. With the exception of the

Bell survey, there was no contradictory evidence of-

fered by any expert. See Ex. 212 (Engstrom Survey,

which recommends the replacement of the bent bow

pulpit and the renewal of the roller furling drum);

Ex. 214 (Pfund Survey at 3, “No gross structural

damage to the vessel’s composite deck, topsides or

internal structure and joinerwork attachments was

observed. All composite damage is rated as minor,

and easily repairable.” See also Ex. 214 (Pfund Sur-

vey at 12) (“Minor composite damage directly in way

of bow pulpit attachment locations was noted, con-

sistent with allision impact as described in case

documents.”)

Accordingly, the Court discounts the Bell survey as

to the severity of impact, as that was the only point

on which the Bell survey substantially diverged

from the other surveys.

95.

96.

97.

98.

99.

100.

101.

App. 36

Mr. Joseph Benetic also testified, but the Court did

not find his testimony to be helpful or relevant.

The Court finds, consistent with the testimony and

surveys submitted by Messrs. Schwede and Pfund,

that the force of the subject collision was very lim-

ited. To the extent that Plaintiffs’ expert Mr. Bell

concluded that the vessel was hit “very hard,” the

Court disagrees.

B. Plaintiff Nicholas Benetic’s Testimony

Mr. Benetic testified that his company bought the

Buenos Aires from the manufacturer in 1999 for

$262,000 and transferred it to the Benetic Family

Trust, the actual plaintiff in this case.

Mr. Benetic then incurred additional expenses and

made certain imprr vements to the vessel.

After the allision on June 27, 1999, Mr. Benetic had

some repair work done to address underwater dam-

age (Ex. 206), spending $1,225.69 to insure that the

boat could remain afloat. Mr. Benetic has main-

tained the vessel as well as possible. However, Mr.

Benetic decided not to repair any structural or cos-

metic damage to the Buenos Aires.

Mr. Benetic is self-insured.

Mr. Benetic testified that he spent between

$270,000-$300,000 for surveys, attorneys fees, at-

tending depositions and other items relating to the

allision, ana that he was forced to sell his office

building to pay for the expenses he incurred in this

case.

App. 37

102. Mr. Benetic testified he has suffered economic loss

because of his inability to use the Buenos Aires since

the allision occurred."

103. Mr. Benetic also testified that he agreed to sell the

Buenos Aires to Mr. Krakoff for $272,500. Mr. Kra-

koff wrote him a personal check for $44,500 dated

June 24, 1999. (Ex. 203-5.) After the accident, Mr.

Benetic wrote Mr. Krakoff a letter informing him of

the accident (Ex. 203-6), and Mr. Krakoff subse-

quently withdrew his offer in a letter. (Ex. 203-7 a

Mr. Benetic then returned Mr. Krakoff’s check to

him. (Ex. 203-8.)"®

* The Court notes that Mr. Benetic did not submit any evidence

relating to damages for survey costs, attorneys’ fees, sale of his building

or loss of use of the Buenos Aires. There was no evidence that the

Buenos Aires had ever been chartered for hire. Plaintiffs also failed to

offer any legal support for the position that Mr. Benetic was entitled to

reimbursement for the cost of surveys, for attending depositions or for

the sale of his building.

* Mr. Benetic identified additional categories of loss in his closing

argument, such as four years of lost income from his mortgage com-

pany, yacht sales company and development firm because he has been

too upset to work. For example, Mr. Benetic referred to $35,000 in

expenses from the lawsuit in which Mr. Bizoumis sued him for harass-

ment, sought marina fees of $550 per month for the past four years and

asked for attorneys’ fees while represented, “recovery of supervision,”

recovery for lost assets sold to continue litigation, recovery for the

depreciation of the vessel, diminution of value of $140,000 and $70 per

day in overhead for the last four years. The Court advised Mr. Benetic

that closing argument was not testimony. In addition, Mr. Benetic did

not submit testimony or exhibits during his case that would support

any of these claims. For example, Mr. Benetic did not submit any

evidence of lost wages from any of his companies. He submitted no

evidence corroborating his claims for the amount of marina fees,

depreciation, diminution of value or overhead. The Court finds that Mr.

Benetic did not mitigate his losses, with the exception of the initial

repairs of $1,225 in July of 1999. The Court finds that these additional

categories would not be recoverable under damage principles of

(Continued on following page)

App. 38

C. Cost of Repair

104. Plaintiffs introduced only one estimate for the cost

of repair, upon which the Court could not rely, as ex-

plained below.

105. Defendants produced one repair estimate submitted

by Mr. Schwede, upon which the Court relies.

106. Mr. Schwede asked Plaintiffs to provide him with

estimates for the repair work, and Plaintiffs referred

him to Mr. Bell instead. However, Mr. Bell’s survey

does not itself provide an estimate of the cost of re-

pairs (Ex. 209), and Mr. Schwede testified that Mr.

Bell never provided him with any repair estimates.

107. Indeed, Plaintiffs did not submit any estimates for

the cost to repair the Buenos Aires until late in the

course of litigation, when Mr. Carver offered an in-

definite and speculative “guesstimate.”

108. Mr. Schwede decided to obtain a repair bid on his

own because his multiple requests to Plaintiffs and

Mr. Bell had not produced estimates.

109. In order to “move [the process] forward”, Mr.

Schwede met with Mr. Wayne Morrison of Shelter

Island Boatyard” and showed him the survey and

photographs.”

110. Mr. Morrison did not examine the Buenos Aires

before preparing the estimate, but he did use Mr.

admiralty law. Because the Court finds that these categories of loss,

even if correct, are not recoverable, it is unnecessary to discuss them

further.

” Shelter Island Boatyard is the landlord for Todd and Associates.

* Mr. Schwede also asked Newport Harbor Shipyard to prepare an

estimate, but the boatyard declined to do so.

111.

112.

113.

114.

115.

116.

App. 39

Schwede’s survey (Ex. 215) and photographs Mr.

Schwede took as a basis for his estimate.

In the past, boatyards had provided estimates for

Mr. Schwede without inspecting the vessels based on

Mr. Schwede’s written recommendations and photo-

graphs.

The line-item estimate prepared by Mr. Morrison of

Shelter Island Boatyard addresses all the damage to

the Buenos Aires caused by the allision.

Mr. Carver was Plaintiffs’ sole expert on the cost of

repair and carefully limited his testimony to this

topic. The Court has no doubt that Mr. Carver is

well-qualified to repair vessels, as he is a 50% owner

of a boatyard with 185 employees that builds new

yachts and conducts repairs for the U.S. N avy and

Coast Guard, among others. However, Mr. Carver’s

testimony had many limitations.

The estimate prepared by Mr. Carver is an indefi-

nite and speculative global “guesstimate,” as op-

posed to a line-item estimate from which the cost to

repair only allision damage can be ascertained.

The “guesstimate” made by Mr. Carver includes

repair of nonallision damage, and would result in

improvements and betterments, to the Buenos Aires

beyond the pre-allision condition of the Buenos Aij-

res.

Mr. Carver testified that his “guesstimate” as to the

cost of repairs was based primarily on an 87-item

list of repairs given to him by Mr. Benetic, which he

was informed was a compendium of the experts’ sur-

veys. Mr. Carver testified that he had no way of

knowing whether the items on the list were due to

allision damage or not, stating “I don’t know which

ones are the result of an allision or anything else.

117.

118.

119.

120.

App. 40

That’s not my field of expertise.” (Carver Testimony.)

Mr. Carver used the list as his “guidepost,” i.e., the

primary document he relied upon in forming his

“guesstimate.”

Mr. Carver testified that it would cost approximately

$5,000 to prepare a true estimate.

In his “guesstimate,” Mr. Carver included the cost of

removing the vessel interior, which he estimated

would require 2,000 man hours and cost over

$100,000. Mr. Carver decided it would be necessary

to remove the interior because it was included on

the 87-item list and was mentioned in the Pfund

survey. Mr. Carver also testified that he would re-

duce his “guesstimate” by over $100,000 if it were

unnecessary to remove the interior.

During his testimony, Mr. Pfund testified that he did

not state or imply that disassembly was required,

and indeed it is clear from Mr. Pfund’s survey that

he did not recommend disassembly in order to detect

repairs.”

Once Mr. Carver freely admitted that he would

reduce his estimate by “over $100,000” if the interior

did not have to be removed, the Court asked if he

could provide a breakdown as to the cost of repair

of other items to account for the remaining

* Disassembly is referred to in what appears to be a standard

disclaimer at the end of Mr. Pfund’s survey: “This inspection was

conducted without any disassembly requiring tools, or any destructive

sample removals on the subject vessel. As a result I was unable to fully

investigate certain aspects of the vessel’s original construction, allision

damage and current condition. Accordingly, the opinions rendered in

this report are subject to amendment or revision if further information

that I did not have at the time this report was prepared becomes

available.” (Ex. 214 at 13:)

121.

App. 41

$100,000-$150,000 of his “guesstimate.” Mr. Carver

stated that he could not provide such a breakdown.

The Court found that Mr. Carver was candid in

recognizing the limitations of his own testimony and

honest as to the shortcomings of his estimate. Never-

theless, the Court was unable to rely on his testi-

mony for the following reasons:

Mr. Carver believed the 87-item list provided by

the Mr. Benetic to be a compendium of the sur-

veys, although Mr. Carver did not independently

evaluate whether the items on the list were at-

tributable to allision damage, pre-existing dam-

age, manufacturing defects or other causes.

Mr. Carver mistakenly believed that the Pfund

survey required an estimate for the extremely

labor intensive job of removing the interior of the

vessel, which would consume 2,000 hours of la-

bor.

Mr. Carver also stated that it would cost at least

$5,000 for him to conduct a proper estimate,

whereas he had provided the “guesstimate” to

Plaintiffs at no charge and without having seen

the vessel.

Although Mr. Carver believed his estimate was

more reliable than the original “guesstimate” be-

cause he had since seen the vessel and reviewed

the surveys, Mr. Carver also candidly admitted

that he continued to rely on the 87-item list as

the basis for his estimate at trial.

Lastly, Mr. Carver was unable to break down the

remaining $100,000-$150,000 after subtracting

the unnecessary cost of removing the interior, or

to indicate how the remaining cost correlated

with the repairs that were still necessary.

App. 42

122. Accordingly, the Court finds Mr. Carver’s “guessti-

123.

124.

125.

mate” too imprecise to be relied upon. In the absence

of any other reliable estimate, the Court relies upon

and adopts the Morrison/Shelter Island estimate for

the cost of repair to the Buenos Aires.

D. Lost Profits

Plaintiffs sought damages for loss of profits based

upon the purported June 24, 1999 pre-allision

agreement with Mr. Krakoff to purchase the Buenos

Aires for $272,500 and his withdrawal from the pur-

chase agreement after the allision.

Mr. Krakoff did not testify at trial; however, the

Court admitted his deposition and (1) the purchase

order dated June 24, 1999 (Ex. 203); (2) deposit

check dated June 24, 1999 in the amount of $44,500

(Ex. 203-5) and (3) subsequent letters between the

parties (Ex. 203-6, 203-7 and 203-8). The Court also

received into evidence Mr. Krakoff’s bank account

records from Bank of America. See Exhibits 220-

225.” Mr. Krakoff’s testimony was troubling, as he

refused to answer many questions, some of which

were themselves troubling. It is therefore impossible

to judge Mr. Krakoff’s credibility on the basis of this

record. Plaintiff Nicholas Benetic testified also to

the details of the transaction.

Assuming the credibility of the documents, Mr.

Krakoff had paid $44,500 by check on June 24, 1999

and owed a balance of $228,000. However, according

to his own testimony, Mr. Krakoff did not have financ-

ing for the balance of the purchase price (Krakoff Dep.

* These exhibits were received by stipulation of the parties at the

close of oral argument.

App. 43

at 28:16-25; indicating that Mr. Krakoff was still

seeking financing at the time of the allision.)

126. Defendants contend that the purported sale of the

vessel to Mr. Krakoff was a sham.

127. Without making any findings as to credibility, the

Court finds that the Plaintiffs cannot establish that

the sale would have been consummated but for the

allision because Plaintiffs failed to prove that the

sale could have been consummated. Therefore, the

Court declines to award lost profits.

128. Any conclusion of law which is deemed a finding of

fact is incorporated by reference herein.

V. CONCLUSIONS OF LAW

A. Jurisdiction

A. This Court has jurisdiction over this admiralty case

pursuant to 28 U.S.C. § 1333.

B. Cost of Repair/Diminution in Value

2. “Restitutio in integrum’ is the leading maxim applied

by the admiralty courts to ascertain damages resulting

from a collision. . . .” Standard Oil Co. v. Southern Pa-

cific Co., 268 U.S. 146, 158 (1925) (citation omitted).

“(W]here repairs are practicable the general

rule followed by the admiralty courts in such

cases is that the damages assessed against the

respondent shall be sufficient to restore the in-

jured vessel to the condition in which she was

at the time the collision [or allision] oc-

curred.... Restitution or compensation is the

rule in all cases where repairs are practicable.”

The Baltimore, 75 U.S. 377, 385-86 (1868).

App. 44

“The proper measure of damages in a tort ac-

tion ‘is to place the injured person as nearly as

possible in the condition he would have occu-

pied if the wrong had not occurred. As corollar-

ies to this general rule, a defendant cannot be

held liable for damages that he has not been

shown to have caused, or for the cost of repairs

that enhance the value of the damaged property

compared with its pretort condition.

When a vessel is damaged in a collision or other

marine casualty, the amount of recovery de-

pends on whether it is deemed a total (or con-

structive total) loss or whether its partial

damage justifies repair.... When a damaged

vessel is not a total loss, the owner is entitled to

recover the reasonable cost of repairs necessary

to restore it to its precasualty condition.”

Gaines Towing & Transportation Co. v. Atlantia

Tanker Corp., 191 F.3d 633, 635 (5th Cir. 1999) (cita-

tions omitted).

“(I]n admiralty, the cost of repairs is the equivalent

of value-diminution. Damage less than total loss is

compensated by reference to cost of repairs.” Hewlett

v. Barge Bertie, 418 F.2d 654, 658 (4th Cir. 1969)

(citation omitted).

“Strictly the measure of damages in collision is

the difference in value between the ship before and

after the collision, but the cost of the necessary re-

pairs and the loss of earnings while they are being

made have long been regarded as its equivalent.” Jd.

(citation omitted).

Plaintiffs sought damages for diminution in value.

However, Plaintiffs presented no evidence that the

vessel was a total loss such that an award of dimi-

nution of value would be warranted.

App. 45

5. Indeed, Plaintiffs did not present any evidence of the

market value of the vessel before the accident or fol-

lowing completion of repairs.”

6. An offer to buy is not evidence of value. Sharp v.

United States, 191 U.S. 341, 348-49 (1903); Lowery

v. Tug Ellen S. Bouchard, 166 F.Supp. 491, 492

(N.D.N.Y. 1958) (citations omitted). Accordingly, Mr.

Krakoff’s offer to purchase the Buenos Aires, even if

relied upon by the Court, would not constitute evi-

dence of the vessel’s value prior to the allision.

7. As the evidence has shown that damage to the

Buenos Aires resulting from the allision was minor,

the Court DENIES any award of damages for dimi-

nution in value.

8. Instead, the Court AWARDS Plaintiffs the cost of

repairing the vessel:

a. $1,225.69 for repairs already made by Colonial

Yacht Anchorage pursuant to their invoice dated

July 7, 1999. (Ex. 206-1.)

b. $13,510.00 for the estimated cost of additional

repairs needed pursuant to the estimate pre-

pared by Mr. Morrison and provided by Mr.

Scwhede. (Ex. 215.)

* Plaintiffs attempted to present this evidence through the

Engstrom survey (Ex. 212), which included a market value as equipped

and a replacement value. However, the Court excluded this portion of

the document because this information was beyond the scope of

Engstrom’s expertise. He was retained and qualified only as an expert

on the damages sustained by the Buenos Aires.

10.

11.

12.

13.

14.

App. 46

C. Lost Profits Based on Purported Agreement

with Mr. Krakoff to Purchase the Buenos

Aires

In maritime law, damages for lost profits are only

awarded if the amount of the loss is proven with

reasonable certainty. The Conqueror, 166 U.S. 110,

125 (1897); Domar Ocean Transp., Ltd. v. Independ-

ent Refining Co., 783 F.2d 1185, 1191-92 (5th Cir.

1986) (citations omitted).

Plaintiffs failed to introduce or admit any credible,

substantial, legally cognizable or reasonably certain

evidence regarding the amount of their alleged lost

profits.

In addition, Mr. Benetic did not establish that the

purported sale of the Buenos Aires to Mr. Krakoff

could have taken place if the allision had not oc-

curred, because it is apparent that Mr. Krakoff did

not have financing for the $228,000 balance of the

purchase.

Accordingly, the Court DENIES Plaintiffs’ request

for lost profits.

D. Loss of Lease Payments

“Under federal maritime law, loss of use of a private

pleasure boat is not a compensable item of dam-

ages.” Oppen v. Aetna Ins. Co., 485 F.2d 252, 257

(9th Cir. 1973) (citation omitted). To recover for loss

of use, the owner must prove economic damage,

which in the case of a pleasure vessel has been in-

terpreted to be loss of charter hire. The Conqueror,

166 U.S. at 133-34; Snavely v. Lang, 592 F.2d 296,

299 (6th Cir. 1979).

Although Plaintiffs indicated they would seek to

recover for loss of lease payments, Plaintiffs did not

App. 47

present any evidence of economic damage (i.e. loss of

charter hire). Therefore, the Court DENIES any

award for loss of lease payments.

E. Marina Fees

15. There was no evidence presented at trial on the

amount of marina fees. Instead, Mr. Benetic re-

quested during his closing argument that marina

fees in the amount of $550 per month be paid for the

last four years. Statements made during closing ar-

gument are not evidence.”

16. In addition, the injured party is not entitled to allow

damages to accumulate by unreasonably refusing to

attend to them. The Baltimore, 75 U.S. at 387.

17. Plaintiffs chose not to repair the boat. If Plaintiffs

had effected repairs, presumably they would have

kept the boat in its marina slip after completion of

such repair. Accordingly, an award of marina fees

over a four-year period is not warranted.

18. However, the Court recognizes that during the time

the Buenos Aires is being repaired, Plaintiffs will

have to pay for their slip or lose it.

19. Incidental, out-of-pocket costs such as unavoidable

detention, dry-docking costs, towing, the wages of a

2 Defense counsel agreed before Plaintiffs’ closing argument that

they would not raise any objections during Plaintiffs’ closing argument

due to Mr. Benetic’s pro se status and their desire to conclude the trial.

Accordingly, defense counsel did not object to this or any other state-

ments Plaintiffs made during closing argument that were outside the

scope of the evidence. Plaintiffs, in turn, did not object to Defendants’

closing argument. The Court agreed to this stipulation, which allowed a

courteous ending to what had been a very contentious and tension-filled

trial.

20.

21.

22.

23.

App. 48

crew while a ship is idle, etc. are generally com-

pensable. The Baltimore, 75 U.S. at 385; The Cata-

lina, 18 F.Supp. 461, 468 (S.D. Cal. 1937) (citations

omitted); The Sequoia, 132 F. 625, 626 (N.D. Cal.

1904).

The Cour’ **-:< finds that marina fees that will be

incurred while the Buenos Aires is being repaired

are compensable.

Unfortunately, neither Plaintiffs nor Defendants

presented evidence on the length of time it would

take to effect the allision-related repairs recom-

mended by Mr. Schwede and the other experts.

Plaintiffs only presented evidence that it would take

six months to complete all of the repairs Mr. Benetic

wanted, which included the labor intensive task of

removing the inside of the boat and repairs of dam-

age unrelated to the allision.

Although the Court cannot estimate with precision

how long it will take to complete the repairs recom-

mended by Mr. Schwede, the Court will allot one

month for such repairs. This is generous to the

Plaintiffs in the extreme, given the: the Court has

found it will not be necessary to remove the interior

of the vessel or perform many of the other tasks

identified by Mr. Carver. Mr. Carver had estimated

it would take four to six employees four months or

more to complete the repairs he recommended, in-

cluding the 2,000 hour task of removing and replac-

ing the interior. An allotment of one month seems a

generous amount of time to complete the limited re-

pairs that all the experts agree should be performed.

Despite a lack of evidence on the issue, the Court

assumes for purposes of this Order that Plaintiffs’

assertion that slip fees at the marina are $550 per

month is correct.

24.

25.

26.

27.

28.

App. 49

The Court therefore ORDERS that Defendants pay

Plaintiffs $550 for one month’s slip fees. If this

amount is in fact an overcharge, Defendants are free

to submit proof of the marina’s 2003 monthly slip

fee, and the Court will reduce the award accord-

ingly.”

F. Surveys

The cost of surveys completed to estimate damages

or repair costs are generally compensable; however,

surveys done by expert witnesses in connection with

litigation are not. Zanzibar Shipping, S.A. v. Rail-

road Locomotive Engine Number 2199, 533 F.Supp.

392, 398 (S.D. Tex. 1982). See also The Catalina, 18

F.Supp. at 468.

As the testimony in this case indicates, neither Mr.

Carver nor Mr. Engstrom (i.e., Plaintiffs’ expert wit-

nesses) were charged with determining the damage

due to the allision. Instead, they I provided general

surveys of the condition of the vessel that included

non-allision damage.

However, Mr. Bell was charged with determining

damages from the allision between the Athena Alex-

ander and the Buenos Aires.

Likewise, Exhibit 208 indicates that Schulz Survey-

ors were tasked with determining the extent of dam-

ages caused by the allision, although no one from

Schulz Surveyors was called as a witness. See Ex. 208

* The Court recognizes that the Buenos Aires could have been

repaired in 1999, but will award the 2003 fees nonetheless, because the

repairs will be performed in 2003 or thereafter.

29.

30.

31.

32.

App. 50

(“The purpose of my attendance was to determine the

extent of damages reportedly caused by the ... .

Athena Alexander.”)

Although the Bell and Schulz surveys may be

compensable, Plaintiffs have provided no evidence

regarding the costs they incurred obtaining them.

Accordingly, the Court has no basis on which to

award survey costs and thus DENIES an award for

those costs.”

G. Attorneys’ Fees

The American Rule prohibits federal courts from

awarding attorneys’ fees in the absence of a statute

or contract providing for a fee award: Alyeska Pipe-

line Service Co. v. Wilderness Society, 421 U.S. 240,

247 (1975).

The American Rule is followed by the admiralty

courts. The general rule in admiralty is that each

party must bear his own attorneys’ fees, absent a

statutory provision, a contractual provision to the

contrary or bad faith. Galveston County Navigation

District No. 1 v. Hopson Towing Company, Inc., 92

F.3d 353, 356 (5th Cir. 1996). “The prevailing party

in an admiralty case is generally not entitled to an

award of attorneys’ fees, absent statutory authori-

zation.” B.P. North America Trading, Inc. v. Vessel

PANAMAX NOVA, 784 F.2d 975, 977 (9th Cir. 1986)

(citations omitted).

“ The Court notes it discharged Plaintiffs’ obligation to pay their

portion of Mr. Pfund’s fees (i.e. $1,680.25) while he was serving as a

court-appointed expert.

App. 51

33. No contract or statute exists upon which attorneys’

fees can be awarded in this case

34. Plaintiffs did not introduce or admit any credible,

substantial, legally cognizable or reasonably certain

evidence justifying deviation from the “American

Rule” with respect to attorneys’ fees.

35. Accordingly, Plaintiffs’ request for attorneys’ fees is

DENIED.

H. Prejudgment Interest

36. Prejudgment interest is typically awarded in admi-

ralty cases unless there are unusual circumstances

such as “undue delay in prosecuting the lawsuit.”

City of Milwaukee, 515 U.S. 189, 196 (1995) (cita-

tions omitted); Dillingham Shipyard v. Associated

Insulation Co., Ltd., 649 F.2d 1322, 1328-29 (9th

Cir. 1981.) (citation omitted). It is left to the discre-

tion of the court to decide whether the circum-

stances justify denial of such interest. Dillingham,

649 F.2d at 1329 (citation omitted).

37. The Court AWARDS Plaintiffs prejudgment interest

as set forth below. This excludes the period of delay

caused by Plaintiffs’ two attempts to appeal prema-

turely to the Ninth Circuit.”

38. Prejudgment interest thus will not be awarded for

the 133-day period between July 8, 2002 through

November 18, 2002.

* Plaintiffs filed Notices of Appeal to the Ninth Circuit of the

Court’s May 20, 2002 orders on May 31, 2002 and June 19, 2002. These

appeals caused the case to be stayed and the trial and pre-trial dates

vacated. On July 29, 2002, the Ninth Circuit issued its order indicating

that it lacked jurisdiction over the appeals. The final pre-trial confer-

ence date had to be reset from July 8, 2002 to November 18, 2002.

App. 52

39. The rate of interest is based on the Federal Re-

serve’s one-year constant maturity Treasury yield.

Columbia Brick Works, Inc. v. Royal Ins. Co. of Am.,

768 F.2d 1066, 1071 (9th Cir. 1985) (“measure of in-

terest rates prescribed for postjudgment interest in

28 U.S.C. § 1961(a) is also appropriate for prejudg-

ment interest”); Western Pacific Fisheries, Inc. v. SS

President Grant, 730 F.2d 1280, 1289 (9th Cir. 1984)

(“Although § 1961 does not provide for pre-judgment

interest, it is entirely compatible with awards of

such interest.”). Prejudgment interest is awarded

from the time of injury. Barnett v. Sea Land Service,

Inc., 875 F.2d 741, 747 (9th Cir. 1989). For the week

prior to the allision, the Federal Reserve’s one-year

constant maturity Treasury yield was 5.14%.

I. Total Award -

41. The total award due Plaintiffs is as follows:

a. Reimbursement for repairs made by Colonial

Yacht Anchorage in the amount of $1,225.69

(Ex. 206-1);

b. Cost of repairs as estimated by Wayne Morrison

of Shelter Island in the amount of $13,510.00

(Ex. 215);

c. Prejudgment interest calculated at a rate of

5.14% from June 27, 1999 to August 6, 2003,

excluding the 133-day period from July 8, 2002

through November 18, 2002;

d. One month of marina fees in the amount of

$550; and

e. If the Plaintiffs have not paid the sanctions

awarded to Defendant by August 6, 2003, this

amount is to be reduced by $390.00.

App. 53

42. Any finding of fact that is deemed a conclusion of

law is incorporated by reference herein.”

* To assist in a review of this case, the Court adds a brief sum-

mary of the events which hampered the ability of the Court to bring the

case to closure within a reasonable time. The atmosphere of the

proceedings was so unusual as to warrant notice.

This admiralty equivalent of a fender bender became a full-scale

war, with parallel litigation, threats of arrest, alleged assaults and

harassment suits. As a result, the litigation was conducted without

civility and often without restraint. There are two sides to every such

situation, and even while Plaintiffs were represented by counsel, heated

accusations and a lack of civility were apparent. However, once Plaintiff

Nicholas Benetic chose to represent himself, tensions escalated even

further. The Plaintiffs accused the Court of being in conspiracy with the

Defendants, filed several recusal motions and repeatedly demanded

that the Court answer in writing a list of some 35 questions while

calling for judicial investigations of the Court.

Throughout the case and as late as closing argument, the defense

has asked the Court to find Plaintiff Nicholas Benetic a vexatious

litigant. Although the request is not without merit, the Court has

declined to do so to date. However, the Court does not foreclose the

necessity of doing so, as it recognizes the expense and frustration

necessitated in responding to Plaintiff's repeated motions for reconsid-

eration. In fact, the Court ultimately did sanction Plaintiff in’ the

amount of $390 for his oft-repeated motions to reconsider the arrest of

the vessel.

Plaintiffs have been insistent that the Court was responsible for

the repeated delays in the trial. The Court finds instead that the

numerous delays were directly attributable to Plaintiffs’ actions.

Examples include Plaintiffs’ two premature attempts to appeal this

Court’s rulings to the Ninth Circuit; their late attempt to add Joseph

Benetic as a plaintiff, which required rounds of briefing before the

Court denied it, and their repeated motions for reconsideration. The

Court has tried to respond at all times with patience and with a

determination to move the case forward.

Plaintiffs remain convinced that this Court is biased against them,

even though this Court has no reason to recuse itself pursuant to 18

U.S.C. § 455. (See Plaintiffs’ motions to recuse.) The Plaintiffs’ filings on

this point are numerous and emphatic. Because this is a meritless

accusation, the Court has not recused itself or been recused.

(Continued on following page)

App. 54

VI. Remedy

1. For the reasons set forth above, Defendants are |

hereby ORDERED to pay to Plaintiffs (1) $14,735.69 |

in damages; (2) prejudgment interest at the annual

rate of 5.14% for the period beginning June 27, 1999

and ending on the date of this Order, excluding in- |

terest for the 133-day period discussed above and (3) |

marina fees of $550 within thirty (30) days of this |

Judgment. If the Plaintiffs have not paid the sanc- |

tions awarded to Defendant by August 6, 2003, this |

amount is to be reduced by $390.00.

DATED: August 6, 2003

/s/ Audrey B. Collins

AUDREY B. COLLINS

UNITED STATES

DISTRICT JUDGE

However, should the appellate court remand this case for any

reason, this Court believes a transfer to another district judge of this

Court might be appropriate. Although the Court is aware it is not the

practice of the district court or the Ninth Circuit to adopt differing

practices and procedures for pro se plaintiffs, the Court simply submits

that if such a transfer lowered the level of Plaintiffs’ tension and

apprehension, it might in fact result in a savings of judicial, staff and

security resources.

App. 55

EXHIBIT C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS J. BENETIC and No. 03-56441

SANDRA L. BENETIC, as

Trustees of the Benetic Family oo

Trust dated September 22, 1993, , ,

California

Plaintiffs-Appellants, ORDER

” (Filed Dec. 20, 2004)

M/Y ATHENA ALEXANDER,

Official No. 1083 627 and her

engines, etc., in rem; et al.,

Defendants-Appellees.

Before: KLEINFELD, TASHIMA, and GOULL, Circuit

Judges

The panel has voted to deny the petition for panel

rehearing. Judges Kleinfeld and Gould have voted to deny

the petition for rehearing en banc and Judge Tashima so

recommends.

The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote on

whether to rehear the matter en banc. See Fed. R. App. P.

35.

The petition for panel rehearing and the petition for

rehearing en banc are denied. No further filings will be

accepted in

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