Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

DLUHOS v. FLOATING & ABANDONED VESSEL

September 26, 1997

EMRE E. DLUHOS, Plaintiff,
v.
The FLOATING AND ABANDONED VESSEL, KNOWN AS "NEW YORK" Ex Official Number 127168, Now in the Erie Canal System located at Waterford, New York near Troy/Albany, New York, Abandoned in excess of four years in the Erie Canal System, Defendants.



The opinion of the court was delivered by: HOMER

 Presently pending are the motions of claimant State of New York ("the State") to dismiss this action for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) (Docket No 65) and of plaintiff Emre E. Dluhos ("Dluhos") to declare the State's status in this action (Docket No. 56), impose sanctions against claimant Friends of the Catawissa for discovery violations (Docket No. 62), and file a third amended complaint (Docket No. 67). For the reasons which follow, the State's motion to dismiss is granted and Dluhos' motions are denied.

 I. Background

 The vessel "New York" ("the vessel") was launched in 1896 under the name, the "Catawissa." First Amended Compl. (Docket No. 13), P 3. As it passed through the Erie Canal over four years ago, the vessel began to leak oil into the canal and was tied off at a location within the canal near Waterford, New York. *fn1" The vessel was then abandoned by its owner. The oil leakage was cleared by the State, which operates the canal. The vessel has remained at the same general location within the canal since that time. Following the vessel's abandonment, Dluhos claimed it by, among other things, boarding the vessel and posting notices on board of his claimed ownership.

 Dluhos filed his original complaint in this action on March 29, 1996. The complaint named the vessel and the State as defendants and asserted jurisdiction both in admiralty and, if that failed, diversity. Docket No. 1. The State answered. Docket No. 4. At a hearing on motions on July 18, 1996, the State's answer was deemed a claim for purposes of admiralty jurisdiction and Dluhos was directed to publish notice of the action in accordance with Rule C(4), Supplemental Rules for Certain Admiralty and Maritime Claims ("Supplemental Rules"). Docket No. 12. Dluhos filed an amended complaint, and then a second amended complaint, both asserting jurisdiction solely in admiralty. Docket Nos. 13 & 38. The National Maritime Historical Society ("Historical Society"), a not-for-profit corporation, filed a claim seeking to preserve the vessel for its historical value. Docket Nos. 14 & 28. *fn2"

 There followed a series of motions and proceedings in which Dluhos sought to effect the arrest of the vessel and to be appointed its custodian pending resolution of this action in accordance with Supplemental Rules D and E. Issuance of the warrant of arrest and appointment of Dluhos as custodian were denied pending the posting of a $ 5,000 bond by Dluhos. Docket Nos. 29, 35, 45 & 54. Dluhos was unable to post bond, the State advised it intended to file a dispositive motion, and all further proceedings were stayed pending resolution of that motion. Docket No. 64.

 II. Discussion

 A. The State's Motion to Dismiss and Dluhos' Motion to File a Third Amended Complaint

 The State has moved to dismiss the second amended complaint on the ground that because the vessel has not been arrested, this Court lacks subject matter jurisdiction. Dluhos has opposed the motion and has cross-moved to file a third amended complaint asserting diversity jurisdiction only. Docket No. 67. Friends of the Catawissa have not opposed the motion.

 Dluhos' original complaint alleged jurisdiction in admiralty and, "if admiralty in rem fails," in diversity. Docket No. 1, p. 1. In his first and second amended complaints, however, Dluhos alleged jurisdiction only in admiralty. Docket Nos. 13 & 38. Prior to the States's present motion, Dluhos evidenced every intention of proceeding solely in admiralty. Moreover, an amended complaint ordinarily supersedes any prior complaint and "renders [any prior complaint] of no legal effect." Intern. Controls Corp. V. Vesco, 556 F.2d 665, 668 (2d Cir. 1977), cert. denied, 434 U.S. 1014, 54 L. Ed. 2d 758, 98 S. Ct. 730 (1978); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994); Datastorm Tech., Inc. v. Excalibur Communications, 888 F. Supp. 112, 114 (N.D. Cal. 1995). Accordingly, it is only the allegations of the second amended complaint which must be considered on this motion. *fn3"

  In his second amended complaint, Dluhos seeks title to the vessel in this " IN REM Action in Admiralty." Docket No. 38, pp. 2 & 13 (emphasis in original). This action thus constitutes a petitory *fn4" admiralty action. Federal courts have jurisdiction over "any civil case of admiralty or maritime jurisdiction." 28 U.S.C. § 1333(1). However, before a court may exercise jurisdiction in an in rem admiralty action, the defendant vessel must be arrested within the court's territorial jurisdiction. Goodman v. 1973 26 Foot Trojan Vessel, 859 F.2d 71, 74 (8th Cir. 1988). Supplemental Rule C requires the filing of a verified complaint, and provides for the issuance of a warrant for the arrest of the vessel. See Transorient Navigators Co. v. M/S Southwind, 788 F.2d 288, 291 (5th Cir. 1986). Jurisdiction over the vessel, or res, is obtained by arrest under process of the court, and "in the absence of an arrest, no decree in rem can be rendered against the res." Alyeska Pipeline Service Co. v. Vessel Bay Ridge, 703 F.2d 381, 384 (9th Cir. 1983), cert. dismissed, 467 U.S. 1247 (1984).

 Here, the vessel was never arrested. Dluhos attempted to do so but was unable to post the bond required to secure issuance of a warrant of arrest *fn5" despite the grant of additional time to do so. In the absence of a satisfactory bond, Dluhos' request for the issuance of a warrant of arrest was denied. Docket No. 54. Without the arrest of the vessel, this Court lacks jurisdiction over the claim for title alleged in the second amended complaint.

 In his opposing papers, Dluhos does not contest the absence of in rem admiralty jurisdiction. He contends, however, that this action should now be converted to one in diversity rather than admiralty. For the first time in response to the State's motion, Dluhos asserts that the vessel no longer has navigational functioning capacities and under the dead ship doctrine no longer has status as a vessel. See Kilb v. Menke, 121 F.2d 1013, 1014 (5th Cir. 1941); 28 U.S.C. § 1333 et seq. He contends that arrest is, therefore, not required as the vessel "is not going anywhere."

 The vessel retains a navigable function although it is not navigable at this time. "Merely because a . . . boat is in need of repair does not mean that it has no further navigation function." Goodman, 859 F.2d 71 at 73. Further, "a boat stored in dry dock has not necessarily been withdrawn from navigation." Id. In a Fifth Circuit case, a vessel that was engaged in navigation before it was unrigged and left without motor and rudder, was still subject to admiralty jurisdiction as it was not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.