Free Complaint - District Court of Delaware - Delaware

Case 1:06-cv-00595-JJF

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Filed 09/26/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
- ------------ ----------------------------- ---------- ----------- )(

IN THE MATTER OF COMPLAINT OF DELAWARE BAY LAUNCH SERVICE, INC. AS OWNER OF "BREAKWATER," A 48-FOOT 1976 CREWBOAT, FOR EXONERATION FROM OR LIMITATION OF LIABILITY
--------------- ----- -------- ------ -- -- ---------- --------------- )(

CIVIL ACTION IN ADMIRALTY
No.

COMPLAINT FOR EXONERATION FROM OR LIMITATION OF LIABILITY
Plaintiff, Delaware Bay Launch Service, Inc. (hereinafter "Petitioner") as owner of "BREAKWATER," a certain 51-foot 1985 crewboat built by Breau)( Bay Craft (hereinafter "the
Vessel"), by and through its attorneys, Palmer Biezup & Henderson LLP, hereby petitions for
e)(oneration from or limitation of

liability pursuant to 46 U.S.C. app. §§ 183-189, and in support

thereof avers upon information and belief as follows:
1. This is an admiralty and martime claim within the meaning of

Rule 9(h) and Rule

F of

the Supplemental Rules for Certain Admiralty and Maritime Claims of

the Federal Rules of

Civil Procedure.
2. Petitioner Delaware Bay Launch Service, Inc. is a corporation organized under and

e)(isting pursuant to the laws of

the State of

Delaware with an office and place of

business at 100

Passwaters Drive, Route 36 East, Milford, Delaware 19963.
3. The Vessel is a 48-foot 1976 motor crewboat built by Breau)( Bay Craft of
Loreauvile, Louisiana.

PBR: 185811.1

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4. At all times material hereto, Petitioner was the owner of the Vessel and a party

entitled to petition for e)(oneration from or limitation ofliability within the meaning of the Revised

Statutes of the United States.
5. On or about April 27, 2005, while upon the navigable waters of

the United States, in

or near the Delaware Bay, the Vessel was allegedly involved in an incident that has given rise to

claims and potential claims including the claims of Xenophon Papanikoleou (hereinafter the
"Incident").

6. Any and all injures and damages allegedly resulting from the Incident were not
caused by or attributable to any fault, design, neglect or want of due care on the par of

Petitioner,

or anyone for whom Petitioner may be responsible, and any and all such alleged damage was
occasioned and occurred without Petitioner's privity or knowledge.
7. Prior to and on April 27, 2005, Petitioner used due diligence to make the Vessel

seaworthy for the service for which it was engaged.
8. Based upon the information presently available, as a result of

the Incident, claims

have been made which could potentially e)(ceed Petitioner's interest in the Vessel, said value of
possible claims being specifically denied by Petitioner.
9. There was no freight pending which was due and payable to Petitioner at the time of

the Incident.

10. Upon information and belief, there were and are no unsatisfied liens or claims ofliens
pending against the Vessel arising from the Incident or the voyage described herein.
11. Petitioner's interest in the Vessel after the Incident

was $125,000.00. (See Affidavit

of

Value which is attached hereto and incorporated herein by reference).

PBR: 185811.

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12. Upon information and belief, there are no other suits pending against Petitioner or the

Vessel or any claims or demands prior or paramount to those which may arise by reason of the
Incident.
13. Petitioner denies any

and all liabilty for any loss, damage or injury which may be

claimed by any person or entity arsing out of the Incident, and therefore demands e)(oneration from

liabilty.
14. In addition, and in the alternative, Petitioner claims the benefit of limitation of

liability

as provided for in the Revised Statutes ofthe United States and the various amendments and

supplements thereto and, more paricularly, the United States Limitation of Shipowners' Liability
Act, 46 U.S.C. §§ app. 183-189.
15. Petitioneris ready, able and wiling and hereby offers to provide security for

the value

of Petitioner's interest in the Vessel following the Incident, interest at the rate of 6% per
anum, and costs, by depositing with the Court a bond in approved form.
16. All and singular, the premises are true and within the admiralty and martime

jurisdiction of the United States and this Honorable Court.
WHEREFORE, Petitioner prays:

A. That if deemed necessary by the Court or at the reasonable request of any
claimant, the Court cause due appraisement to be made of the value of

Petitioner's interest in the

VesseL.
B. That the Court order Petitioner to fie an Ad Interim Stipulation with surety

pending any demand for appraisal of

Petitioner's interest in the VesseL.

PBR: 185811.

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C. That the Court enter an Order directing the issuance of a monition to all

persons claiming alleged damages for any and all losses, damage, injury or destrction done,
occasioned or incured by, orresulting from, the Incident or occurng during the voyage

upon which

the Vessel was then engaged, citing them to appear before this Honorable Court and make due proof
of their claims, and also to appear and answer the allegations of this Complaint according to the laws

of this Court on or before a certain time to be fi)(ed by the monition, or be thereafter barred from
making any such claims against Petitioner, its agents, representatives, crew members or any person
on whose behalf Petitioner may be liable or against the VesseL.

D. That the Court enter an Order directing that upon the giving of an Ad Interim
Stipulation, an injunction shall issue restraining the further prosecution of any and all suits, actions
and proceedings which may have already begun to recover for alleged damages sustained as a result
of the Incident and further enjoining the commencement or prosecution thereafter of any suit, action

or legal proceeding of any nature against Petitioner, its agents, representatives or any other person
in respect to any claim or claims arising out of the Incident.
E. That the Cour in this proceeding adjudge:

(i) that Petitioner is not liable to anye)(tent for any loss, damage or injury

for any claim whatsoever in any way arising out of or in consequence of the Incident and, therefore,

is entitled to e)(oneration, or
(ii) if

Petitioner shall be adjudged liable and the claims are affirmatively

proven, then such liability for all claims shall be limited to the amount ofthe value ofthe Petitioner's

interest in the Vessel after the Incident and that Petitioner be discharged therefrom upon the
surrender of

his interest in the Vessel and that the limitation fund be divided pro rata among any

PBR: 185811.

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claimants as may duly prove their claims, saving to all any priorities to which they may be legally

entitled, and that a decree may be entered discharging Petitioner from all further liabilty.
F. That Petitioner may have such other and further relief as this Court may deem

just and proper in the circumstances.
Respectfully submitted,

PALMER BIEZUP & HENDERSON LLP

By:.

~

Michael B. Mc auley (ID 2416) 1223 Foulk Road Wilmington, DE 19803 (302) 594-0895
(302) 478-7625 (fa)()

mccauley~pbh.com
Dated: September 25,2006

PBR: 185811.

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VERIFICATION
I, Michael B. McCauley, hereby declare as follows:

I am a parner in the law firm of Palmer Biezup & Henderson LLP, attorneys for Petitioner
Delaware Bay Launch Service, Inc.;
I have read the foregoing Complaint, and all the allegations of

fact contained therein are true

and correct to the best of my knowledge, information and belief, which is based upon information obtained during the course of counsel's investigation;
I certify under penalty of perjury that the foregoing is true and correct.
E)(ecuted on September 25, 2006.

PBR: 185811.

Case 1:06-cv-00595-JJF
~S 44 (Rev. 1104)

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CIVIL COVER SHEET
DEFENDANTS

The JS 44 civil cover sheet and the information contained herein neitherreplace nor supplement the fiing and serice of pleadings or other papers as required by law, except as provided by local rules of court. This form approved by the Judicial Conference of the United States in September i 974, is required for the use ofthe Clerk of Cour for the purpose of initiating

the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS
Delaware Bay Launch Service, Inc., as Owner of "Breakwater," a 48-Foot 1976 Crewboat, praying for exoneration from or limitation of liability
(b) County of Residence of

First Listed Plaintiff Sussex, DE

County of Residence of

First Listed Defendant

(EXCEPT IN U.S. PLAlTIFF CASES)

(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.
Attorneys (If Known)

(c) Attorney's (Fir Name, Address, and Telephone Nurber)

Palmer Biezup & Henderson LLP 1223 Foulk Road, Wilmington, DE 19803
II. BASIS OF JURISDICTION (Place an "X" in One Box II 3 Federal Qnestion

Only)

III. CITIZENSHIP OF PRINCIPAL PARTIES(Place

an "X" in One Box for

Plaintiff

(For Diversity Cases Only) and One Box for Defendat)
o i U.S. Governent

Plaintiff

(U.S. Governent Not a Par)
o 4 Diversity
(Indicate Citienship Pares of

Citin of

This State 0 i 0 i Incorporated or Pricipal Place 0 4 0 4 of Business In Ths State
o 2 0 2 Incorporated and Pricipal Place

PTF DEF PTF DEF
o 5 05
ofBusiness In Another State
o 3 0 3 Foreign Nation

o 2 U.S. Governent Defendant

Citizen of Another State

in Item Ill)
Citizen or Subject of a Foreiim Counti

o 6 06
OTH£R STA1'l'S

IV NATURE OF SU IT (Place an "X" in One Box Onlv)
CONTRACT
TORTS

FORF£lTlTll£NALTY
PERSONAL INJUY
362 Personal Injnry Med. Malpractice

BANKtJCY
o 422 Appeal

o I i 0 Insurce o 120 Mare
o 130 Miler Act
o 140 Negotiable Instrment

o 150 Recovery of Overayment & Enforcement of Judgment
o 151 Medicar Act
o 152 Recovery of Defaulted

0 0 0 0
0 0 0 0

PERSONAL INJUY
310 Airlane
315 Airlane Product

Liability 320 Assault, Libel & Slander 330 Federal Employers' Liability

0 0 0
0 0 0 0 0

365 Personal Injur Product Liability 368 Asbestos Personal
Injur Product

Liabilty
PERSONAL PROPERTY
370 Oter Fraud

Student Loans (Excl. Veterans) o 153 Recovery of Overayment
of Veteran's Benefits o 160 Stockholders' Suits o 190 Other Contract o 195 Contrct Product Liability o 196 Franchise REAL PROPERTY .........

II 340 Mare
345 Mare Product Liabilty
350 Motor Vehicle 355 Motor Vehicle Product Liability 360 Other Personal

371 Truth in Lendig
380 Other Personal

Propert Damage 385 Propert Damage Prodnct Liabilty

Ininr

o 210 Land Condeuration
o 220 Foreclosure o 230 Rent Lease & Ejectment

o 240 Torts to Land o 245 Tort Product Liabilty
o 290 All Oter Real Propert

0 0 0 0 0 0 0

ClVRIGBTS
441 Voting 442 Employment 443 Housing! Accommodations 444 Welfare 445 Amer. w/Disabilities Employment 446 Arer. w/Disabilities -

PRISON£RPETITIONS
510 Motions to Vacate Sentence

0 0 0 0 0 0 0 0 0 0 0 0 0 0

610 Agrcultue
620 Oter Food & Drug 625 Drug Related Seize of Propert 21 USC 881 630 Liquor Laws 640 R.R. & Truck 650 Airline Regs.
660 Occupational

28 USC 158

o 423 Withdrwal

28 USC 157

PROPERTYRIGlI't
o 820 Copytghts
o 830 Patent

o 840 Trademark

Safety/Health
690 Other

LABOR
710 Fair Labor Stadads Act 720 LaborlMgmt. Relations 730 LaborlMgmt.Reporting & Disclosure Act

snrIASE . URITY
o 861 HIA (1395ft
o 862 Black Lung (923)

o 863 DIWC/DIWW (405(g))

o 864 ssm Title XVI
o 865 RSII405(e))

Oter
440 Other Civil Rights

0 0 0 0 0

Habeas Corpus:
530 General
535 Death Penalty

740 Raiway Labor Act 790 Other Labor Litigation 791 Empl. Ret. Inc. Security Act

FED£RA TAX SUlTS
o 870 Taxes (U.S. Plaintiff

or Defendant) o 871 IR-Third Part

26 USC 7609

0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0

400 State Reapportonment
410 Antitrst

430 Bans and Baning
450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrpt Organiztions

480 Consumer Credit 490 Cable/Sat TV 810 Selective Service 850 Securties/Commodities/ Exchange
875 Customer Challenge

12 USC 3410 890 Other Statutory Actions
891 Agrcultul Acts

892 Economic Stabiliztion Act
893 Environmental Matters

894 Energy Alocation Act
895 Freedom of Information 900Appeal of Fee

540 Mandamus & Other 550 Civil Rights 555 Prison Condition

Act Determination Under Equal Access
to Justice

950 Constitutionality of
State Statutes

V. ORIGIN
ID 1 Orginal

Proceedin

(Place an "X" in One Box Only) o 2 0 3 from4 0 5 Transferred from 0 Multidistrct 07 Removed 0 Remanded from Reinstated or another district 6 State Court A ellate Court Reo ened s eci Liti ation

Appeal to Distrct

Judge frm
Magistrate

Jud ent

Cjty the Ll.S. Civil SlaMe under which you are fiing (Do not cite jurisdictional statutes unless diversïy):

40 U.S.c. app. .IS,)

VI. CAUSE OF ACTION Briefdescription of

Shipowner's Limitation of Liability Proceeding

cause:

VII. REQUESTED IN COMPLAINT:
VII. RELATED CASE(S)

UNERF.R.C.P.23 0.00
(See instrctions):

CHECK IF THIS IS A CLASS ACTION DEMAD $

CHECK YES only if demanded in complaint:

JURY DEMAND: 0 Yes lZ No
DOCKET NUER

IF AN
DATE

JUGE

09/25/2006
FOR OFFICE USE ONLY
RECEIPT #

AMOUNT

MAG. JUDGE