Opposition Brief — F/v Jeanine Kathleen v. Ventura Packers, Inc

en

|

No. 02-1255

In the

Supreme Court of the United States: ve |

EE hie h ad

F/V JEANINE KATHLEEN, Official No. 972086, Her Tackle, Furniture

and Apparel, in rem; F/V ROSE LEE, Official No. 942678, Her Tackle,

Furniture and Apparel, in rem, F/V TALIA, Official No. 973296, Her

Tackle, Furniture and Apparel, in rem, Defendants,

and

ROGER INGMAN; JODY INGMAN; ROSE LEE LLC;

DENNIS H. EAMES; ANDREA EAMES,

Petitioners,

—

VENTURA PACKERS, INC., a California Corporation,

Respondent.

On PETITION FOR Writ OF CERTIORARI TO THE

Unrrep StaTes Court OF APPEALS FOR THE NINTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

Denise A. Brogna

Counsel of Record

LASCHER & LASCHER,

A Professional Corporation

605 Poli Street

Ventura, CA 93002

(805) 648-3228

Attorneys for Respondent

Curry & TAYLOR @ (202) 393-4141 © KTTPY/UBssCINFO.cOM

i

RESTATEMENT OF QUESTION PRESENTED

Where there are triable issues of material fact

concerning the existence of federal subject matter

jurisdiction based on the provision of necessaries under

the Maritime Lien Act, 46 U.S.C. §31342, is summary

dismissal by the District Court proper under Federal

Rules of Civil Procedure, Rule 56?

ii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of the Rules of the Supreme

Court of the United States, respondent makes the

following corporate disclosure statement:

Respondent Ventura Packers, Inc., is a privately

held California corporation. Ventura Packers has no

parent companies nor wholly owned subsidiaries.

TABLE OF CONTENTS

RESTATEMENT OF THE QUESTION PRESENTED .......-.+00-020e0000++ i

CORPORATE DISCLOSURE STATEMENT ........-scsesessssseeeseenensnenes ii

TABLE OF CONTENTS........scssssssssssseeeserssesnssenscsrensenncsenensssnsenes iii

TABLE OF AUTHORITIES. .........::sssscessseressessrscersesesensenesesesnasnees Vv

COUNTER-STATEMENT OF THE CASE........ssssssssserenseesereeseenennes l

Factual Background ...........cscscsseseseseeseeneeneensnsenenseessesenees 1

Procedural HistOTy ...........ccesesseesresseseseeeseeeeeeennees ve 3

I. THE Writ SHOULD BE DENIED BECAUSE THE

STANDARDS FOR GRANTING CERTIORARI HAVE

NOT BEEN MET ..........sssssssssesssssrenceceenssenscereneetensnesenensenssess 4

A. There Are No Compelling Reasons for

Review Because (1) the Ninth Circuit Has

Not Made New Law, (2) and the Matter Is

Not Procedurally Ripe............:csscssssseeerssrrsereeseeneeenes 4

1. The Ninth Circuit Did Not

Crmmtc NeW LAW .....s.cscccccssnsecsscesorsessssscccsvevszcccsennes 5

2. Because There Remain Facts. in

Dispute Which Have Not Been Tried,

This Matter Is Not Ripe For Review................++ 8

B. The Ninth Circuit Decision Does Not

Conflict With Decisions by this Court or Any

I CE a cs scexvainisanenschesdiansesevicrovevesenunsenseeveqenes 10

1. United States Supreme Court Decisions. .......... 10

iv

2. United States Court of Appeals

is isinstnesiehcasanaieislsieinhaiaininnbekariddaaaaiasieatines 11

Se IE SUE Fs iseseisatnnscsccseicivisansececsninnn 14

GEE ics tsasiosiicscctnieehddvachabsieisiccetmiiaeecedancndmmedininainaiatalasielata 15

Vv

TABLE OF AUTHORITIES

CASES

ALBANY INSURANCE COMPANY V. M.V._ ISTRIAN

EXPRESS, 61 F.3D 709 (OTH CIR. 1989) ...........ccsceesseeeeees 14

ALYESKA PIPELINE SERVICE Co. V. VESSEL BAY

RIDGE, 703 F.2D 381 (9TH CIR. 1983), CERT.

DISMISSED, 467 U.S. 1247, 104 S.CT. 3526, 82

LEED. 20) BBB (1BBE)..nw-2oreceacncorerescenssserosvoseuaresnsmnsnsaseasonrioses 5

AMERICAN STEVEDORES, INC. V. PORELLO, 330 U.S.

PE SORE On 7

ATLANTIC MUTUAL INSURANCE COMPANY V: BALFOUR

MACLANE INTN'L LTD., ET AL., 968 F.2D 196 (2ND

LD: REED nsissnssescisehceniillstanieniinisilacieniaaiaiiadaiad ania aaaaaaiaeaiie 5

BERMUDA EXP., N.V. v. M/V LISA (EX LAURIE U), 872

Fane Re Cat As. ID evssedtannscinihniassmensiceaennnaten 11, 12,13

BOAT LA SAMBRA V. LEWIS, 321 F.2D 29 (9TH CIR

CHASE MANHATTAN FINANCIAL SERVICES, INC. V.

MCMILLIAN, 896 F.2D 452 (1OTH Cir. 1990).................0. 11

COLONIAL PRESS OF MIAMI, INC. V. THE ALLEN'S CAY,

277 F.2D 540, 1959 A.M.C. 527 (5TH Cir. 1960)................ 8

Cory Bros. & Co. Vv. UNITED STATES, 51 F.2D 1010

CIES TE SEE Piccisiinsivosicrstecailanicstesiincincndetidaaaestnaladeeneamemainieaei: 7

DOMENICO V. ALASKA PACKERS' ASS'N, 112 F. 554

Ce rs Rain. TU csc ciiensenannneentsientahenticiananieisnessaibianiiaaasaiicadiaas 7

vi

E.S. BINNINGS, INC. v. M/V SAUDI RIYADH, 815

pe ety Le 5 RRmenonmnenme mance” 11,12

EQUILEASE CorP. v. M/V SAMPSON, 793 F.2D 598

CEBU C A, SEI hicccsexcnscccsssinitinpeninttnesnntieiananiuaipaainnieaseniiiins 7

EXXON CORPORATION V. CENTRAL GULF LINES, INC.,

500 U.S. 603, 111 S.CT. 2071 (1991)................... 10, 11, 12

EXXON CORPORATION V. CENTRAL GULF LINES, INC., |

707 F. SUPP 155 (S.D.N.Y. 1989) .........cscoccsssscsssscssssceseees 11

FARWEST STEEL CORP. V. BARGE SEA SPAN 241, 769

Fe Gs, Be Rircsnisncsiencsemeniivesanvnitinienstaaels 5, 7, 14

Foss LAUNCH AND TUG COMPANY V. CHAR CHING

SHIPPING USA LIMITED, 808 F.2D 697, 699 (9TH

CAMB: EIGEN } iccsorsnrviansscoensenainesducumiaanenetnaideiabtinsantanenaaaas 7

GENERAL ELEC. CREDIT V. DRILL SHIP, 668 F.2D 811

CCU CAD. FIRES Vconcisesssncsscticsincriniphenicimaammaamaels 8

HINKENS STEAMSHIP AGENCY, INC. V. FREIGHTERS,

INC., 498 F.2D 411 (OTH CIR. 1974) ...........sccccssercceeseeeeesees 7

INBESA AMERICA, INC. V. M/V ANGLIA, 134 F.3D 1035

(0 RUE CARR, Be ietisscnsesisrccnrectbiamencssemnnimnmnias 7, 11,13

MARINE FUEL SUPPLY & TOWING, INC. Vv. THE M/V

KEN LUCKY, 869 F.2D 473 (9TH CIR, 1988) ..............:00000 14

MARUBENI-IIDA (AMERICA) V. NIPPON YUSEN KAISHA,

207 F.SUPP 418 (S.D. N.Y. 1062) ....ccrescocccscossoscocecsesscssenses 5

MINTURN V. MAYNARD, 58 U.S. 477, 15 L.ED 235

MORTENSEN V. FIRST FED'L SAV. & LOAN Ass'N., 549

Fe CRAG GIFT © Paitacereiecissnienstinsmieieueinsiniannanen 9

vii

MURRAY V. SCHWARTZ, 175 F.2D 72 (2D Cir. 1949)............. ll

NILO BARGE LINE, INC. v. M/V BAYOU DULARGE, 584

F.2D 841, 1980 A.M.C. 750 (8TH CIR.1978) ........:.eseeeeees ll

OWENS-ILLINOIS, INC. V. UNITED STATES DISTRICT

COURT, 698 F.2D 967 (OTH CIR. 1983)..........ccccccsceressresees 5

PAYNE V. S.S. TROPIC BREEZE, 423 F.2D 236 (1ST

CO TID cccisttvcncersnsnenscsnosenstionsnceencespteinimeteininncuneeasiinimmania 7

PORT OF PORTLAND V. THE M/V PARALLA, 892 F.2D

ne Gls BI csencsinnevensesandeneinicosmenitionsorsmneiennnenntnnavenen 14

BRBOLATER, 1G UB, GET CRGIE ) vcecescccesossecesesccsseresesscsesnevennees 6

ROCK ISLAND BRIDGE, 73 U.S. (6 WALL) 213 (1867) ............. 6

RUPERT CITY, 213 F. 263 (W.D. WASH 1914)............ cc eceeeeeee 8

SILVER START ENTERPRISES V. SARAMACCA, 82 F.3D

IE GE GE sacceshscisttinssoienennianaiciesicitidanbincbianebenpinveniied 6

SIMON V. INTERCONTINENTAL TRANSPORT, 882 F.2D

Pe Ns BE cccsieiensinsnciiinsiniatensichacttadansitepssetiataniiainns 4,5

SOUTH CAROLINA STATE PORTS AUTHORITY Vv. M/V

TYSON LYKES, 837 F.SUPP 1357 AFFIRMED 67 F.3D

LA: STI ic niieccisiechnetiasdidibitncsiieciaatnandaiedeistipadseeiiindbebi 7

STEEN V. JOHN HANCOCK MUT. LIFE INS. Co., 106

a EE I ET D ccna viscineinnceecatnniniesnieceetaniinnnnss 9

SUN VALLEY GASOLINE, INC. V. ERNST ENTERPRISES,

INC., 711 F.2D 138 (OTH CIR. 1983) ...........sccccccssssscsscceeees S)

SUSQUEHANNA, 3 F.2D 1014, 1923 A.M.C. 643 (D.

RR RII Ne ae PON n ner Cee SOND eR 8

TRINIDAD FOUNDRY AND FABRICATING, LTD. V. M/V

K.A.S. CAMILLA, 966 F.2D 613 (11TH Cie. 1992)............... 7

UNIVERSAL SHIPPING, INC. V. THE PANAMANIAN FLAG

BARGE, 563 F.2D 483 (OTH CIR. 1976)............ccccccesesseeeeees 7

VENTURA PACKERS, INC. Vv. F/V JEANINE KATHLEEN,

305 F.3D 913 (9TH CIR. CAL. 2002) ..........ceeeceeeeees passim

WALTER ADAMS, 253 F. 20 (1ST Cir. 1918).............. 11, 12, 13

CONSTITUTIONS, STATUTES, RULES, REGULATIONS

a a EE ininsincintennssaicepinncensaeatiniatitienialiandiintatniictigeiiaidiis 1

SP Sa, Se eitnriecnaninnnnvinnnindmiiiianihie 14

6 | EE a nN EE EN 7

Oe i NE sohstininensinicssniionsiinniinibnidnintennieamien: passim

eI MII Ti shckiicciiannduesencsensninaiannnaniialiatmeninemninaniioaneniinaiian 3

rated eS N cceisitniiiiicanenncicntasinaliteniuenewnsininncumianicnaeinitaniilinniite i,9

SUPPLEMENTAL RULES OD Tiistsiecinscrccsnieninnctniennantinsinntahnsetn 3

UNITED STATES SUPREME COURT RULE 10............ccceceseseeeees 4

UNITED STATES SUPREME COURT RULE 29..6...........sc0cceeeeeeees ii

OTHER AUTHORITIES

2 BENEDICT ON ADMIRALTY (7TH ED. 1996) §35 AT 3-

GILMORE AND BLACK, THE LAW OF ADMIRALTY, (2ND

ee: SEE, eS e ei cinicincissinieveciienninsnnininmniiinieinakenns 6

1

COUNTER-STATEMENT OF CASE

Factual Background

Ventura Packers is a California corporation doing

business in Ventura Harbor, California [ER 1-2; DN 1).'

Independent Fisherman’s Cooperative (IFC) was formed

under the Fisherman’s Collective Marketing Act, 15

United States Code §521 [ER 193-194; DN 21 and 51, Ex.

G]. Petitioners F/V Jeanine Kathleen, Official No.

972086, F/V Rose Lee, Official No. 942678, and F/V Talia,

Official No. 973296 and vessel owners/petitioners

Dennis H. Eames, Roger L. and Jody K. Ingman, Richard

Eide and Rose Lee, LLC were members of IFC during

the 1996-1997 squid fishing season [ER 36, 44, 51, 90, 95,

100, 194-195, 326, 343, 494-497, 1588; DN 6-8, 15-17, 21,

26, 28, 51, 87].

Squid decomposes rapidiy. If it is not brought

into port, processed, and frozen within 24 hours, its

fitness for human consumption diminishes [ER 194-196,

480-481, 532, 539, 779-780; DN 21 and 51, Ex. E, J and L].

Priority dock access and speed in unloading and

processing is extremely important [ER 504, 522, 778-779;

DN 51 and 55j. For these reasons, petitioners

authorized Greg Kirsch to act as their local agent in

contracting for unloading, processing, and niarketing of

squid from IFC vessels by Ventura Packers so

petitioners could spend more time catching fish and

making money [ER 194-195, 494-497, 502, 517-518, 524,

540-541; DN 21 and 51, Ex. G, H, J and L).

“ER” stands for Excerpts of Record, “DN” for Docket

Number, and “Ex.” for Exhibit.

2

Roger Ingman, master of the Jeanine Kathleen,

Mitch and Richard Eide, masters of the Rose Lee, and

Joseph Donahue, master of the Talia, authorized

unloading and processing of their squid by calling ahead

to Ventura Packers on their way into port [ER 198, 494,

502, 540-541, 782; DN 21, 55 and 51, Ex. G, H, and L]}.

Ventura Packers granted priority dock access, unloaded,

packed, iced and shipped squid from petitioners’ vessels

to the processing facility [ER 1-8, 196-198, 777-780; DN 1,

21 and 55}.

Petitioners were to pay Ventura Packers $80.00

per ton of squid unloaded from each vessel for these

services [ER 4, 659, 777-780; DN 1, 53, and 55] — $50 per

ton for ice and stevedoring, $10 per ton for priority dock

access, and $20 per ton for government entity fees,

transportation, and cold storage (Ventura Packers, Inc.

v. F/V Jeanine Kathleen, 305 F.3d 913, 916 (9th Cir. Cal.

2002)). Each time a vessel was unloaded, a separate

“fish ticket” was filled out by Ventura Packers, many of

which bear the actual signature of the vessel owners or

masters like Ingman, Eide, and Donahue [ER 198, 441,

658, 789-903; DN 21, 53, and 56, Ex. A-C}.

Ventura Packers provided services to petitioners

on 188 different occasions [ER 198; DN 21]. As a result,

petitioners owed Ventura Packers $93,174.84 for

unloading the Jeanine Kathleen, $121,617.92 for

unloading the Rose Lee, and $82,891.08 for unloading

the Talia. Of those amounts, $22,514.33 is still owed by

the Jeanine Kathleen; $105,118.81 is still owed by the

Rose Lee; and $42,705.06 is still owed by the Talia [ER

660, 664-666, 763; DN 53, Exhibit A; DN 54).

3

Procedural History

Ventura Packers complained in rem for payment

for necessaries furnished to petitioners pursuant to 46

U.S.C. §31342 and Federal Rules of Civil Procedure,

Rules 9(h) and Supplemental Rules C(a), C(2), E(2)(a),

and seized the vessels [ER 1-9, 10-29; DN 1, 2, 3, and 4].

Petitioners Roger and Jody Ingman, Richard Eide, and

Dennis Eames, submitted undertakings to have their

vessels released and intervened [ER 36-55, 56-59; DN 6,

7, 8, 12].

Petitioners moved to dismiss the complaint for

lack of subject matter jurisdiction, which the District

Court initially denied [ER 60-160, 289-415, 416-423; DN

13-18, 24-30, 35]. Ventura Packers moved for summary

judgment on the grounds that the defendant vessels

could not avoid liability for necessaries furnished to

each vessel [ER 435-991, 1502-1552; DN 49-58, 79-80, 83].

Petitioners filed a counter motion for summary

judgment asserting lack of subject matter jurisdiction

and advocating dismissal [ER 992-1100, 1370-1501; DN

61-64, 69]. The District Court granted petitioners’

motion, and entered a judgment of dismissal in favor of

petitioners [ER 1553-1573; DN 87-89].

Ventura Packers appealed [ER 1581-1625; DN 91-

94]. The Ninth Circuit reversed and remanded the case

to the District Court because there were triable issues of

material fact concerning the provision of necessaries to

vessels upon the order of the owner or authorized

representative as described under the Maritime Lien

Act, 46 U.S.C. §31342 (Ventura Packers, Inc., supra, 305

F.3d 913, 924).

4

I.

THE WRIT SHOULD BE DENIED BECAUSE

THE STANDARDS FOR GRANTING

CERTIORARI HAVE NOT BEEN MET.

This case does not meet the standards set out in

Rule 10 of the United States Supreme Court Rules.

There are no compelling reasons for review, nor are

there any important federal questions involving conflicts

with decisions of this Court, the United States Courts of

Appeals, or the decisions of another state court of last

resort.

A. There Are No Compelling Reasons for

Review Because (1) the Ninth Circuit Has

Not Made New Law, (2) and the Matter Is

Not Procedurally Ripe.

There are two basis for admiralty jurisdiction

here. The first is a maritime contract (Simon v.

Intercontinental Transport, 882 F.2d 1435, 1440, 144-

1442 (9th Cir. 1989)). The second is a maritime lien for

“necessaries” under the Maritime Lien Act, 46 U.S.C.

§31342.

Petitioners argue throughout their brief that the

Ninth Circuit has made new law because it did not

require the existence of a maritime contract as a

prerequisite to remanding the matter for trial on the

supply of necessaries to enforce a maritime lien. To

support this argument, petitioners state that both the

District Court and the Ninth Circuit found that there was

no contract [Petition, pp. 1, 6]. This statement is untrue.

Contrary to petitioners’ assertions, both the

District Court and the Ninth Circuit found that there was

5

a contract in this case. However, the courts declined to

exercise subject matter jurisdiction under that contract

because it intertwined both maritime and non-maritime

elements [See ER 1566-1567; DN 87]. “[T]he reality of

the situation is that the contract upon which Ventura

Packer’s maritime lien claim is based involves both

maritime and non-maritime elements” (Ventura Packers,

Inc., supra, 305 F.3d at 916, 917).

Where the contract contains both maritime and

non-maritime elements, the majority of which are

maritime in nature, the court has discretion to exercise

jurisdiction over the maritime portions of the contract

(Atlantic Mutual Insurance Company v. Balfour

MacLane Intnl Ltd., et al., 968 F.2d 196, 199 (2nd Cir.

1992); Simon, supra, 882 F.2d 1435 at 1442; Marubeni-

lida (America) v. Nippon Yusen Kaisha, 207 F.Supp

418, 420 (S.D. N.Y. 1962). The District Court declined

jurisdiction based on maritime contract. It did not

analyze jurisdiction based upon the provision of

necessaries under the Maritime Lien Act.

a The Ninth Circuit Did Not

Create New Law.

Petitioners argue that the Ninth Circuit created a

new basis for admiralty jurisdiction when there is no

maritime contract. However, admiralty jurisdiction may

be based upon either (1) a maritime lien, or (2) a

maritime contract (Farwest Steel Corp. v. Barge Sea

Span 241, 769 F.2d 620, 621 (9th Cir. 1985), citing

Alyeska Pipeline Service Co. v. Vessel Bay Ridge, 703

F.2d 381, 384 (9th Cir. 1983), cert. dismissed, 467 U.S.

1247, 104 S.Ct. 3526, 82 L.Ed. 2d 852 (1984) and Owens-

Iinois, Inc. v. United States District Court, 698 F.2d

967, 970 (9th Cir. 1983)).

6

The Ninth Circuit noted that while the contract in

question could be a basis for admiralty jurisdiction,

“Congress provided an independent statutory basis for

admiralty jurisdiction by enacting 46 U.S.C. §31342”

(Ventura Packers, Inc., supra, 305 F.3d at 917). Thus,

the decision of the Ninth Circuit here merely clarifies

the point it made in Farwest Steel, that there are

alternative basis for federal subject matter jurisdiction,

and a necessaries lien brought under the Maritime Lien

Act is one such basis (Ventura Packers, Inc., supra, 305

F.3d at 917, 922-924).

46 U.S.C. §31342, which is part of the Maritime

Lien Act, provides for a civil action to enforce a

maritime lien against a vessel, by a creditor who has

provided “necessaries” to that vessel at the direction of

the owner or master (46 U.S.C. §31342). A maritime lien

is a special property right in a vessel which secures

creditors who provide supplies to keep a ship going

(Silver Start Enterprises v. Saramacca, 82 F.3d 666, 668

(5th Cir. 1996)). The concept developed as a necessary

incident of the operation of vessels. Indeed, the

existence of a maritime lien is synonymous with

admiralty jurisdiction (Gilmore and Black, The Law of

Admiralty, (2nd Ed. 1975), § 9-19 at 672; The Rock

Island Bridge, 73 U.S. (6 Wall) 213, 215 (1867); The

Resolute, 168 U.S. 437, 440 (1897)).

The lien statute, 46 U.S.C. §31342, provides in

pertinent part:

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

of this section, a person providing

necessaries to a vessel on the order of the

Owner or a person authorized by the

owner —

(1) has a maritime lien on the vessel;

7

(2) may bring a civil action in rem to

enforce the lien; and

(3) is not required to allege or prove in the

action that credit was given to the vessel.”

For a lien under 46 U.S.C. §31342, all that is

required is that a creditor provide “necessaries” to a

vessel at the direction of the owner or master of the

vessel (2 Benedict on Admiralty (7th Ed. 1996) §35 at 3-

22; 46 U.S.C. §§31341-31342). The term “necessaries” is

liberally construed to include anything that facilitates or

enables a vessel to perform its mission or occupation,

anything reasonably needed for the venture in which the

ship is engaged (Foss Launch and Tug Company v.

Char Ching Shipping USA Limited, 808 F.2d 697, 699

(9th Cir. 1987); Equilease Corp. v. M/V SAMPSON, 793

F.2d 598, 603 (5th Cir. 1986); Farwest Steel, supra, 769

F.2d at 623; Payne v. S.S. Tropic Breeze, 423 F.2d 236,

240 (1st Cir. 1970)).

“Necessaries” may include: money, labor,

material, skill, or personal services; dockage and

stevedoring; the unloading, weighing, icing, processing,

packaging, and immediate transport of fish (Trinidad

Foundry and Fabricating, Ltd. v. M/V K.A.S. Camilla,

966 F.2d 613, 615-616 (11th Cir. 1992); Inbesa America,

Inc. v. M/V Anglia, 134 F.3d 1035, 1037 (11th Cir. 1998);

Universal Shipping, Inc. v. The Panamanian Flag

Barge, 563 F.2d 483, 484 (9th Cir. 1976); South Carolina

State Ports Authority v. M/V Tyson Lykes, 837 F.Supp

1357, 1366-1367, affirmed 67 F.3d 59 (D.S.C. 1993);

American Stevedores, Inc. v. Porello, 330 U.S. 446, 456

(1947); Cory Bros. & Co. v. United States, 51 F.2d 1010,

1011 (2d Cir. 1931); Domenico v. Alaska Packers’ Ass’n,

112 F. 554, 556 (N.D. Cal. 1901); Hinkens Steamship

Agency, Inc. v. Freighters, Inc., 498 F.2d 411 (9th Cir.

1974)). Necessaries may also include the cost of

8

transporting supplies; the weighing, inspecting,

fumigation and shipping of cargo; and printing materials

(The Rupert City, 213 F. 263 (W.D. Wash 1914); The

Susquehanna, 3 F.2d 1014, 1923 A.M.C. 643 (D. Mass

1923); Colonial Press of Miami, Inc. v. The Allen’s Cay,

277 F.2d 540, 1959 A.M.C. 527 (5th Cir. 1960)).

Necessaries may even include food catering services

(General Elec. Credit v. Drill Ship, 668 F.2d 811 (5th

Cir. 1982)).

On summary judgment, there were factual

disputes which concerned: (1) whether all of the

services provided by Ventura Packers qualified as

“necessaries;” and (2) if so, whether all services were

ordered or accepted by the vessel’s authorized agent,

owner or master. Because these factual questions had

not yet been resolved, the Ninth Circuit remanded this

matter to the District Court for further trial on the

factual disputes (Ventura Packers, Inc., supra, 305 F.3d

at 924).

2. Because There Remain Facts in

Dispute Which Have Not Been Tried,

This Matter Is Not Ripe For Review.

The procedural status of this case does not

warrant review. Here, Ventura Packers asserted federal

subject matter jurisdiction on two grounds: (1) the

existence of a lien in rem based upon breach of a

maritime contract; and alternatively, (2) the existence of

a lien in rem based upon the provision of “necessaries”

under the Maritime Lien Act, 46 U.S.C. §31342.

Petitioners moved to dismiss the complaint for

lack of subject matter jurisdiction, arguing that the

contract in question was not maritime in nature. The

District Court summarily dismissed Ventura Packers’ in

$$. ”"

9

rem complaint for lack of subject matter jurisdiction

because the contract in question involved both maritime

and non-maritime activities, which were not severable.

Therefore, the District Court declined to assert

admiralty jurisdiction based on maritime contract.

The Ninth Circuit agreed with the District Court’s

finding that. the contract in question covered both

maritime and non-maritime activities. However, the

Ninth Circuit held that the District Court’s subject

matter jurisdiction analysis was flawed because it failed

to look at subject matter jurisdiction under the Maritime

Lien Act, 46 U.S.C. §31342 (Ventura Packers, Inc.,

supra, 305 F.3d at 917, 922).

The Ninth Circuit found there were triable issues

of material fact concerning subject matter jurisdiction

and the provision of necessaries to vessels upon the

order of the owner or authorized representative as

described under the Maritime Lien Act, 46 U.S.C. §31342

(Ventura Packers, Inc., supra, 305 F.3d 922-924). Where

jurisdictional facts, essential to the elements underlying

the federal claim, are intertwined and the same statute

provides the basis for both relief and jurisdiction, the

court should not resolve disputed facts, because

jurisdictional fact finding deprives the litigants of the -

protections otherwise afforded by Federal Rules of Civil

Procedure, Rule 56 (Steen v. John Hancock Mut. Life

Ins. Co., 106 F.3d 904, 910 (9th Cir. 1997); Sun Valley

Gasoline, Inc. v. Ernst Enterprises, Inc., 711 F.2d 138,

139, 150 (9th Cir. 1983); Mortensen v. First Fed'l Sav. &

Loan Ass’n., 549 F.2d 844, 890 (3d Cir. 1977)). Because

the Maritime Lien Act “inextricably intertwines the

questions of subject matter jurisdiction and Ventura

Packers’ substantive claim for relief,” the Ninth Circuit

remanded this matter to the District Court for trial on

disputed factual questions which involved both

10

jurisdiction and the merits of the lien (Ventura Packers,

Inc., supra, 305 F.3d 922-924).

There has yet to be a final judgment after a trial

of these disputed factual questions. Therefore, this case

simply is not ripe for review.

B. The Ninth Circuit Decision Does Not

Conflict With Decisions by this Court or Any

Other Court.

Petitioners’ conflicting decisions argument is

founded upon petitioners’ misunderstanding of the

alternative grounds for subject matter jurisdiction

expressed in Ventura Packers’ pleadings, and upon

petitioners’ misinterpretation of the Ninth Circuit's

decision. Nevertheless, contrary to petitioners’

assertions [Petition, pp. 6-14], the Ninth Circuit decision

does not conflict with decisions by this Court or other

courts within the United States.

:. United States Supreme Court

Decisions.

Petitioners allege that the decision of the Ninth

Circuit conflicts with Exxon Corporation v. Central

Gulf Lines, Inc., 500 U.S. 603, 111 S.Ct. 2071 (1991)

[Petition, pp. 6-7]. Petitioners argue that Exxon

requires the existence of a maritime contract in order

for there to be federal subject matter jurisdiction under

the Maritime Lien Act [Petition, pp. 6-7].

To support their argument, petitioners quote

Exxon, supra, as holding “that ‘a prerequisite to the

existence of a maritime lien for breach of contract is

that the subject matter of the contract must fall within

admiralty jurisdiction” (Petition, pp. 7-8, citing Exxon

11

Corporation v. Central Gulf Lines, Inc., 707 F. Supp

155, 158 (S.D.N.Y. 1989)]. However, this Court did not

require admiralty jurisdiction to exist under maritime

contract in order for subject matter jurisdiction to exist

under the Maritime Lien Act. This Court did not even

address the issue.

“We express no view on whether Exxon is

entitled to a maritime lien under the

Federal Maritime Lien Act. That issue is

not before us, and we leave it to be

decided on remand” (Exxon, supra, 500

U.S. 606, 613 ).

Therefore, the decision of the Ninth Circuit to

remand this case to the District Court for trial on

disputed facts concerning subject matter jurisdiction

and the merits of a valid lien under the Maritime Lien

Act, does not conflict with the Exxon.

2. United States Court of Appeals

Decisions.

Petitioners argue that the Ninth Circuit's decision

conflicts with decisions of the First, Second, Third,

Eighth, Tenth and Eleventh Circuits, citing The

WALTER ADAMS, 253 F. 20, 24 (1st Cir. 1918); Murray

v. Schwartz, 175 F.2d 72, 73 (2d Cir. 1949); Bermuda

Exp., N.V. v. M/V LISA (ex Laurie U ), 872 F.2d 554, 563

(3d Cir. 1989); Nilo Barge Line, Inc. v. M/V BAYOU

Dularge, 584 F.2d 841, 842 1980 A.M.C. 750 (8th

Cir.1978); Chase Manhattan Financial Services, Inc. v.

McMillian, 896 F.2d 452 (10th Cir. 1990); E.S. Binnings,

Inc. v. M/V SAUDI RIYADH, 815 F.2d 660 (11th Cir.

1987); Inbesa America, Inc. v. M/V ANGLIA, 134 F.3d

1035, 1036, 1038 (11th Cir. 1998); and BOAT LA

12

SAMBRA v. Lewis, 321 F.2d 29 (9th Cir 1963)[Petition, |

p. 7-12]. |

First, all these cases are actions in which a i

claimant asserted a maritime lien based upon a maritime |

contract. These authorities do not involve claimants

who asserted a maritime lien based upon the provision

of necessaries to an owner or master of a vessel, as

articulated in the Maritime Lien Act. Therefore, these

authorities do not speak to the issue addressed by the

Ninth Circuit concerning Ventura Packers’s assertion of

a lien under the Maritime Lien Act.

Second, Exxon overruled Minturn v. Maynard, |

58 U.S. 477, 15 L.Ed 235 (1855) and the requirement of a | |

non-agency maritime contract that was wholly maritime |

in nature (/d., at 610612). To the extent that The |

WALTER ADAMS, Murray v. Schwartz, Bermuda Exp., |

Nilo Barge Line, Chase Manhattan Financial Services, |

Inc., E.S. Binnings, and BOAT LA SAMBRA predate |

Exxon and rely on Minturn and its wholly maritime in |

nature, non-agency contract reasoning, they are no 7

longer good authority (/d., at 608, fn.4, 612). This is |

because Exxon, supra, 500 U.S. 603, 606 fn. 2, 612-613, }

found admiralty jurisdiction in favor of Exxon under the

assertion of a maritime lien based on both agency and

non-agency maritime contracts for the provision of fuel,

and in instances where it provided fuel in a manner

outside of a contract.

Further, the court in E.S. Binnings, rejected the

argument that the Maritime Lien Act provided

jurisdiction over non-maritime concerns. However,

like this Court in Exxon, the E.S. Binnings court

expressed no opinion on jurisdiction over a suit

covering traditional mc~'time concerns (E.S.

Binnings, supra, 815 F.2d at Ou. ).

ee

13

Third, even though many of the authorities cited

by petitioners were decided on the basis of maritime

contract, these authorities recognize a distinction

between a lien based on maritime contract and a lien

based upon the provision of maritime necessities (The

WALTER ADAMS, supra, 253 F. at 23; Bermuda Exp.,

N.V., supra, 872 F.2d at 563; Inbesa, supra, 134 F.3d at

1036-1037 fn.2, 1038). For example, even though Inbesa

did not make a necessities lien claim, that court

reasoned that “federal admiralty jurisdiction is

coterminous with the right of providers of maritime

services to maritime liens” (Jnbesa, supra, 134 F.3d at

1036-1037 fn.2, 1038). This statement shows that the

Inbesa court recognized that a claimant can have not

only a lien action based on contract, but also a

concurrent civil action for a maritime lien based upon

the provision of necessaries, as in this case. Thus, the

reasoning of the Jnbesa court is line with the reasoning

of the Ninth Circuit:

“If Ventura Packers had asserted admiralty

jurisdiction based on breach of contract,

The Resolute would apply. In that case,

Ventura Packers would have had to prove

the arrest of the Ships and existence of a

maritime contract. Ventura Packers,

however, did not rest its assertion of

admiralty jurisdiction entirely on the

common law. Ventura Packers brought

suit in admiralty as provided by Congress

in the Maritime Lien Act”

(Ventura Packers, supra, 305 F.3d at 920-

921).

14

3. Ninth Circuit Decisions.

Petitioners argue that the Ninth Circuit decision

conflicts with BOAT LA SAMBRA, supra, 321 F.2d 29

(Petition, p. 14]. Unfortunately, like the preceding

authority cited by petitioners, BOAT LA SAMBRA was

brought as a breach of ship-building contract lien action,

not as a necessaries lien. Therefore, it dos not apply to

the Ninth Circuit’s decision in this case.

The Ninth Circuit has previously assumed

jurisdiction over maritime liens cases without requiring

a contract (The Port of Portland v. The M/V Paralla, 892

F.2d 825, 827-828 (9th Cir. 1989) [jurisdiction assumed

under 28 U.S.C. §1333]; Marine Fuel Supply & Towing,

Inc. v. The M/V Ken Lucky, 869 F.2d 473, 476-477 (9th

Cir, 1988) [supply of fuel to vessel without contract];

Albany Insurance Company v. M.V. Istrian Express, 61

F.3d 709, 710 (9th Cir. 1989)). Further, the Ninth Circuit

has held that “[t]he district court had admiralty

jurisdiction if it was adjudicating either a maritime lien

(citation omitted), or a contact . . . (citation omitted)”

(Farwest Steel Corp., supra, 769 F.2d at 621).

Lastly, the Ninth Circuit was very conscious of

past decisions concerning maritime liens and the

Maritime Lien Act. It carefully explained the evoiution

of the Act and resolved any perceived conflicts (Ventura

Packers, supra, 305 F.3d at 920-922).

Petitioners have continually misunderstood the

different basis for federal subject jurisdiction asserted

by Ventura Packers. This misunderstanding has colored

petitioners’ interpretation of the Ninth Circuit's

decision, along with other decisions made by this Court

and the various Courts of Appeals. Petitioners’

15

misinterpretation of non-applicable case law is not

grounds for granting their writ.

CONCLUSION

Because triable questions of material fact remain

which preclude summary resolution of jurisdiction

issues, respondent Ventura Packers requests that the

petition for writ of certiorari be denied.

Should this Court be so inclined, Ventura Packers

requests an award of costs.

Respectfully submitted,

DENISE ABUNDIS BROGNA

Counsel of Record for

Respondent, Ventura Packers, Inc.

LASCHER & LASCHER

605 Poli Street

Ventura, CA 93001

Telephone: 805-648-3228

Facsimile: 805-643-7692