First Bank v. Exodus et al, No. 3:2021cv05412 - Document 8 (W.D. Wash. 2021)
Court Description: ORDER granting Plaintiff's 3 Motion to Appoint Substitute Custodian, Authorizing Movement and Inspection of Vessel and Collateral. Marine Lender Services, LLC is appointed substitute custodian of the Vessel and her appurtenances. Signed by Judge James L. Robart. (LH) (cc: USMO)
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First Bank v. Exodus et al Doc. 8 1 2 3 4 5 6 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 FIRST BANK, an Alaska state chartered bank, Plaintiff, 10 11 12 v. Case No.: C21-5412JLR EXODUS, Official No. 960616, its Engines, Machinery, Appurtenances, etc., In Rem; 13 and 14 FRED J. HANKINS, an individual, and F.J. HANKINS ENTERPRISES, INC., an Alaska corporation, In Personam, Defendants. 15 16 17 18 19 20 IN ADMIRALTY ORDER APPOINTING SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT AND INSPECTION OF VESSEL AND COLLATERAL Plaintiff, First Bank by and through its attorney Lafcadio Darling of Holmes Weddle & Barcott, P.C., having appeared, now make the following recitals: 1. On June 1, 2021, the Complaint herein was filed praying that the defendant vessel 21 EXODUS, Official No. 960616, her engines, machinery, and appurtenances etc. (“Vessel”) be 22 condemned and sold to pay Plaintiff's claims and for other proper relief. 23 24 25 26 2. In the immediate future, the Clerk of this Court is expected to issue a warrant for arrest of the Vessel, commanding the United States Marshal for this District to arrest and take into custody the Vessel and to detain the same in his custody until further order of this Court 27 respecting same. 28 ORDER APPOINTING SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT AND INSPECTION OF VESSEL AND COLLATERAL - 1 Case No. C21-5412JLR HOLMES WEDDLE & BARCOTT, PC 3101 W ESTERN A VENUE, SUITE 500 SEA TTLE, W A 98121 -3071 TELEPHO NE (206 ) 29 2-8008 FA X (206 ) 340-0289 7351 31744 Dockets.Justia.com 3. 1 It is contemplated that the United States Marshal will seize the Vessel and her 2 appurtenances forthwith. Custody by the United States Marshal requires the services of one or 3 more keepers at charges substantially in excess of those to be made by the substitute custodian 4 alone, not including charges for moorage and the other services usually associated with 5 6 7 8 safekeeping vessels similar to the defendant Vessel. 4. The Vessel and Collateral is currently located at the Port of Ilwaco, WA. Plaintiff is agreeable to allow Marine Lender Services, LLC (“MLS”), through its Managing Member, 9 Buck Fowler, to assume the responsibility of safekeeping the Vessel, to act as her custodian until 10 further order of this Court, and to move the Vessel and her appurtenances from their current 11 location to a suitable marine facility as MLS if necessary. 12 13 14 15 16 5. Buck Fowler, Managing Member of MLS, by his declaration submitted herewith (Dkt. # 5) states that he can arrange for adequate facilities and supervision for the proper safekeeping of the Vessel and her appurtenances in her current location or elsewhere. Further, in his declaration MLS accepts, in accordance with the terms of this order, possession of the 17 Vessel, her engines, machinery, and appurtenances etc., which is the subject of the action 18 herein. 19 20 21 22 23 24 6. In consideration of the United States Marshal's consent to the appointment of MLS as substitute custodian, Plaintiff agrees to release the United States and the United States Marshal from any and all liability and responsibility arising out of care and custody of the Vessel, from the time the United States Marshal transfers possession of the Vessel over to the substitute custodian, and Plaintiff further agrees to hold harmless and indemnify the United 25 States and the United States Marshal from any and all claims whatsoever arising out of the 26 substitute custodian's possession and safekeeping. 27 28 ORDER APPOINTING SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT AND INSPECTION OF VESSEL AND COLLATERAL - 2 Case No. C21-5412JLR HOLMES WEDDLE & BARCOTT, PC 3101 W ESTERN A VENUE, SUITE 500 SEA TTLE, W A 98121 -3071 TELEPHO NE (206 ) 29 2-8008 FA X (206 ) 340-0289 7351 31744 THEREFORE, IT IS ORDERED that the United States Marshal for the Western District 1 2 of Washington is authorized, upon seizure of the Vessel and her appurtenances and equipment, 3 pursuant to Warrant for Arrest, to surrender the possession thereof to MLS as substitute 4 custodian named herein, and that upon such surrender the United States Marshal shall be 5 6 7 discharged from the duties and responsibilities for the safekeeping of the Vessel and held harmless from any and all claims arising whatever out of said custodial services. IT IS FURTHER ORDERED that MLS is appointed substitute custodian of the Vessel 8 9 and her appurtenances and shall retain the Vessel in its custody for possession and safekeeping 10 until further order of this Court and that said custodian may move the Vessel and her 11 appurtenances from her current location to a secure facility within the District, in such steps 12 and phases as it may determine under the circumstances. All costs for such movement shall be 13 14 15 16 paid by Plaintiff, and may, upon further order of this Court, be deemed administrative costs herein. IT IS FURTHER ORDERED that MLS may permit boarding and inspection of the 17 Vessel by marine surveyors, representatives of plaintiff and prospective purchasers in order to 18 determine the Vessel’s condition and value. Costs of such boardings and inspections shall be 19 paid by the party permitted to board and inspect the vessel or may, upon further order of 20 this Court, be deemed administrative costs herein. All persons entering on board the Vessel 21 22 23 24 25 26 shall execute a waiver and release in the form attached hereto. IT IS FURTHER ORDERED that Plaintiff's attorney serve a copy of this order on the owner of the Vessel or the owner’s agent. It is further requested that the Clerk of this Court deliver three certified copies of this order to the United States Marshal forthwith. 27 28 ORDER APPOINTING SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT AND INSPECTION OF VESSEL AND COLLATERAL - 3 Case No. C21-5412JLR HOLMES WEDDLE & BARCOTT, PC 3101 W ESTERN A VENUE, SUITE 500 SEA TTLE, W A 98121 -3071 TELEPHO NE (206 ) 29 2-8008 FA X (206 ) 340-0289 7351 31744 1 IT IS SO ORDERED this 2nd day of June, 2021. 2 A 3 4 JAMES L. ROBART UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 Presented by: HOLMES WEDDLE & BARCOTT, P.C. Attorneys for Plaintiff s/ Lafcadio Darling Lafcadio Darling, WSBA #29996 3101 Western Avenue, Ste. 500 Seattle, Washington 98121-3071 Telephone: (206) 292-8008 Facsimile: (206) 340-0289 Email: ldarling@hwb-law.com 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER APPOINTING SUBSTITUTE CUSTODIAN AND AUTHORIZING MOVEMENT AND INSPECTION OF VESSEL AND COLLATERAL - 4 Case No. C21-5412JLR HOLMES WEDDLE & BARCOTT, PC 3101 W ESTERN A VENUE, SUITE 500 SEA TTLE, W A 98121 -3071 TELEPHO NE (206 ) 29 2-8008 FA X (206 ) 340-0289 7351 31744 WAIVER OF AND RELEASE FROM LIABILITY Each of the undersigned, in consideration of being permitted to board the EXODUS, Official No. 960616, for the purposes of inspection and/or survey, does agree to and does hereby waive his/her rights whatever arising from any possible injury, illness, and/or death to him/her which may result from going onto, or off of, and being on board the vessel for such purpose. The undersigned understands and agrees that his/her execution hereof constitutes a full release from any and all liability for any injury, illness and/or death, and any and all damages arising from his/her going onto, or off of, and being aboard the vessel. This release of liability extends to the benefit of: 1. U.S. Government and the U.S. Marshals Service, their agents and employees; 2. First Bank and its agents, employees and interested underwriters; 3. Fred Hankins, F.J. Hankins Enterprises, Inc., its agents, employees and interested underwriters; 4. Marine Lenders Services, LLC, through its Managing Member, Buck Fowler, Substitute Custodian, and its agents, employees and interested underwriters; and 5. The EXODUS, Official No. 960616, its engines, machinery and appurtenances and its interested underwriters. The undersigned understands and agrees the he/she shall be liable for any damage to the aforesaid vessel, including, but not limited to, its hull, engine, machinery, appurtenances, furnishings, cargo etc., arising out of any actions or activities of any nature undertaken by him/her in relation to his/her boarding the vessel, such liability to attach to him/her whether such actions or activities are negligent or not and whether the actions or activities of the U.S. Marshal, his keeper, the United States of America, and/or the substitute custodian are negligent or not. The undersigned further understands and agrees that the terms and conditions of this Waiver of and Release from liability extend to and are binding upon his/her heirs, assigns, and administrators. WAIVER OF AND RELEASE FROM LIABILITY 1 I HAVE READ THE FOREGOING WAIVER OF AND RELEASE FROM LIABILITY AND FULLY UNDERSTAND ITS CONTENTS. DATED: ______________________ __________________________________________ DATED: ______________________ _________________________________________ DATED: ______________________ _________________________________________ DATED: ______________________ __________________________________________ DATED: ______________________ __________________________________________ DATED: ______________________ __________________________________________ DATED: ______________________ __________________________________________ DATED: ______________________ __________________________________________ DATED: ______________________ __________________________________________ DATED: ______________________ __________________________________________ DATED: ______________________ __________________________________________ DATED: ______________________ __________________________________________ WAIVER OF AND RELEASE FROM LIABILITY 2
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