United States District Court, S.D. Alabama, Southern Division
IN RE FRAISHER, LLC, AS OWNER OF THE M/V UP THERES, AND TOP TIER WATERSPORT, LLC AS CHARTERER, OPERATOR, AND/OR OWNER PRO HAC VICE OF THE M/V UP THERES, FOR EXONERATION FROM OR LIMITATION OF LIABILITY
F. MOORER UNITED STATES DISTRICT JUDGE
before the Court is Petitioner Fraisher, LLC's
(“Fraisher”), Motion for Interim Relief and
for Entry of a Concorsus Order. (Doc. 2, filed September
6, 2019). Fraisher, as the owner and Top Tier Watersport, LLC
(“Top Tier”), as charterer pro hac vice
of the M/V UP THERES, requests the Court, pursuant to the
Limitation of Vessel Owner's Liability Act, 46 U.S.C.
§§ 30501-30512, Fed.R.Civ.P. 9(h), and Rule F of
the Supplemental Rules for Admiralty or Maritime Claims, in
this cause for exoneration from or limitation of liability,
for interim relief and entry of a concursus order. Doc. 2 at
subject vessel, M/V UP THERES, is a thirty-four foot
(34') 2010 parasailing vessel that is constructed of
fiberglass, propelled by diesel engines, and bears U.S.C.G.
Documentation Number 1225757 (the “Vessel”). Doc.
1 ¶ 2. At all times pertinent, Fraisher was the owner of
the Vessel and Top Tier was the charterer, operator, and/or
owner pro hac vice of the Vessel. Id.
¶¶ 3-4. The Vessel is used in a commercial
parasailing business and operates in the navigable waters of
the Gulf of Mexico near Orange Beach, Alabama. Id.
about April 10, 2018, Brian Myers, Dionne Myers, and their
minor children, H.M. and L.M., (collectively, the
“Myers”) participated in a parasailing excursion
into the Gulf of Mexico that began and terminated on the
navigable waters of Cotton Bayou in Orange Beach, Alabama
(the “parasailing excursion”). Id.
¶ 7. The parasailing excursion was subject to the
conditions of a “Release of Liability, Assumption of
Risk, Waiver of Claims, Indemnification & Binding
Arbitration Agreement” (the “Release and
Arbitration Agreement”). Id. Brian Myers and
Dionne Myers, and Brian Meyers on behalf of his minor
children, H.M. and L.M., executed a Release and Arbitration
Agreement in conjunction with the parasailing excursion.
Id. The Myers allege they sustained injuries during
the parasailing excursion when they were returned to the
Vessel and landed on its rear deck. Id. ¶ 8.
claim, at the time the Vessel completed the subject voyage,
the Vessel had a value of $85, 000.00. Id. ¶
16; see also Doc. 1-2 (a Declaration of Vessel Value
that was prepared by Jack Fisher). As security for value and
for costs, pursuant to Rule F(1) of the Supplemental Rules
for Admiralty or Maritime Claims, Petitioners submitted with
the Court a Letter of Undertaking in the amount of $86, 000,
which includes the value of their interest in the Vessel at
the time the Vessel completed the subject voyage and $1,
000.00 as security for costs, pursuant to S.D. Ala. CivLR
105(a), with interest at six percent (6%) per annum from its
date. Doc. 1 ¶ 18; Doc. 1-3. As of the date of the
instant motion, Petitioners claim there is a civil action
against them in this Court that is related to the April 10,
2018 incident and is styled Dionne and Brian Myers,
individually and on behalf of their minor children H.M. and
L.M. v. Top Tier Scooby LLC, Top Tier Beach, LLC, Fraisher,
LLC and Top Tier Watersport, Civ. Act. No.
1:19-cv-00414-TFM-C. Doc. 1 ¶ 14. Petitioners also claim
they filed their instant complaint within six (6) months from
the date they received written notice of a limitable claim
and the Vessel is in the Petitioners' possession and
within this Court's judicial district. Id.
¶¶ 11, 17.
owner of a vessel may bring a civil action in a district
court of the United States for limitation of
liability.” 46 U.S.C. § 30511(a); see
also Rule F, Supplemental Rules for Admiralty or
Maritime Claims (“[A]ny vessel owner may file a
complaint in the appropriate district court . . . for
limitation of liability pursuant to statute.”). A
complaint for limitation of liability may be filed
“[n]ot later than six months after receipt of a claim
in writing.” Rule F(1), Supplemental Rules for
Admiralty or Maritime Claims; see also 46 U.S.C.
§ 30511(a) (“The action must be brought within 6
months after a claimant gives the owner written notice of a
claim.”). If the vessel has not been attached or
arrested, venue is proper “in any district in which the
owner has been sued with respect to any such claim.”
Rule F(9), Supplemental Rules for Admiralty or Maritime
case, Petitioners claim their complaint was filed within six
(6) months from the date they received written notice of a
limitable claim. Doc. 1 ¶ 11. Petitioners do not claim
the Vessel has been attached or arrested and an action was
brought against Petitioners in this Court. Id.
¶ 14. The Vessel is within the jurisdiction of this
judicial district and venue appears proper in this Court.
Id. ¶ 17.
F(2), Supplemental Rules for Admiralty or Maritime Claims,
requires a petition for limitation of liability to:
[S]et forth the facts on the basis of which the right to
limit liability is asserted and all facts necessary to enable
the court to determine the amount to which the owner's
liability shall be limited. The complaint may demand
exoneration from as well as limitation of liability. It shall
state the voyage if any, on which the demands sought to be
limited arose, with the date and place of its termination;
the amount of all demands including all unsatisfied liens or
claims of lien, in contract or in tort or otherwise, arising
on that voyage, so far as known to the plaintiff, and what
actions and proceedings, if any, are pending thereon; whether
the vessel was damaged, lost, or abandoned, and, if so, when
and where; the value of the vessel at the close of the voyage
or, in case of wreck, the value of her wreckage, strippings,
or proceeds, if any, and where and in whose possession they
are; and the amount of any pending freight recovered or
review of the petition (Doc. 1), the Court finds it to be
substantially in compliance with Rule F(2), Supplemental
Rules for Admiralty or Maritime Claims, (see supra
“Factual Background, ” at 2-5).
Along with the petition for limitation of liability:
The [vessel] owner (a) shall deposit with the court, for the
benefit of claimants, a sum equal to the amount or value of
the owner's interest in the vessel and pending freight,
or approved security therefor, and in addition such sums, or
approved security therefor, as the court may from time to
time fix as necessary to carry out the provisions of the
statutes as amended; or (b) at the owner's option shall
transfer to a trustee to be appointed by the court, for the
benefit of claimants, the owner's interest in the vessel
and pending freight, together with such sums, or approved
security therefor, as the court may from time to time fix as
necessary to carry out the provisions of the statutes as