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ROBERT E. DERECKTOR, INC. v. NORKIN

May 11, 1993

ROBERT E. DERECKTOR, INC. Plaintiff,
v.
DAVID NORKIN, in personam, and motor vessel CARILLON, her engine, tackle, etc. in rem, Defendants.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This case arises out of an agreement under which the plaintiff company was to repair the defendant oceangoing vessel Carillon, owned by the individual defendant Norkin. Plaintiff arrested the vessel and has brought this action against it (in rem) and its owner (in personam) for nonpayment; defendants counterclaimed based on alleged overcharges on the part of plaintiff.

 A settlement was reached and signed by the parties, which I "so ordered" on November 20, 1992. It called for defendant Norkin to pay $ 21,500 to plaintiff in two installments: $ 10,000 on or before December 15, 1992 and the balance no later than March 15, 1993.

 The settlement contained no conditions other than the above. It provided that the action be dismissed on March 31, 1993 if the required payments were made. Defendant Norkin failed to make the payments, and plaintiff has moved for sale of the vessel. I grant plaintiff's application for the reasons set forth below.

 II

 Defendant Norkin challenges the court's subject matter jurisdiction. A challenge to subject matter jurisdiction is properly raised at any time, even at the stage of enforcing a settlement agreement. See Fed.R.Civ.P. 12(h)(3). I treat Norkin's submission as an application for dismissal of the case, entertain it as such, and deny the application.

 Repair of a marine vessel is the subject matter of the contract for breach of which this suit was brought. The district courts have subject matter jurisdiction in such cases under Article III of the Constitution, implemented by 28 USC § 1333 and by 46 USC § 31342, which provides for maritime suits for failure to pay for necessaries to be provided to a vessel. See generally North Pacific Steamship Co. v. Hall Brothers, 249 U.S. 119, 63 L. Ed. 510, 39 S. Ct. 221 (1919); Riffe Petroleum Co. v. Cibro Sales Corp., 601 F.2d 1385 (10th Cir. 1979); Point Adams Packing Co. v. Astoria Marine Construction Corp., 594 F.2d 763 (9th Cir. 1979).

 The Supreme Court has recently made it clear that admiralty jurisdiction embraces all matters relating to use, support or maintenance of navigable vessels. See McDermott International v. Wilander, 498 U.S. 337, 112 L. Ed. 2d 866, 111 S. Ct. 807 (1991); Exxon Corp. v. Central Gulf Lines, 111 S. Ct. 2071, 114 L. Ed. 2d 649 (1991). Exxon overruled Minturn v. Maynard, 58 U.S. 477, 15 L. Ed. 235 (1854), which had excluded general agency contracts from admiralty jurisdiction. The court in Exxon found that admiralty jurisdiction is "designed to protect maritime commerce." 111 S. Ct. at 2076. The limitations imposed in Minturn were held inconsistent with that protection. Exxon and McDermott, while not opening the federal courts to suits with only tangential relationship to shipping, indicate that cramped constructions of 28 USC § 1333(1) are decisively obsolete. See generally Illinois Constructors Corp. v. Morency & Associates. 794 F. Supp. 841 (N.D.Ill. 1992); Venezuelan Container Line v. Navitran Corp., 792 F. Supp 1281 (S.D. Fla. 1991); Huiss, "Admiralty Opens Its Doors to Agency Contracts Which Are Maritime in Nature," 17 S. Ill. U. L.J. 173 (Fall 1992).

 III

 Jurisdiction over a case embraces enforcement of the settlement, at least where the parties are identical and the settlement provides for the same kind of relief prayed for in the complaint over which jurisdiction exists (monetary payment for the alleged breach of the maritime contract); no express reservation of jurisdiction is necessary where the federal claim is the subject of the settlement agreement. See Gamewell Manufacturing v. HVAC Supply, 715 F.2d 112 (4th Cir. 1983); Sansom Committee by Cook v. Lynn, 735 F.2d 1535 (3d Cir. 1984); In re Corrugated Container Antitrust Litigation, 752 F.2d 137 (5th Cir. 1985); Aro Corp. v. Allied Witan Co., 531 F.2d 1368 (6th Cir.), cert. denied 429 U.S. 862, 50 L. Ed. 2d 140, 97 S. Ct. 165 (1976).

 Moreover, were an express retention of jurisdiction necessary under the circumstances here, the settlement here provides it: the case was to be dismissed only if the settlement terms were ...


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