FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHAD BARRY BARNES,

Plaintiff-Appellant,

v.

SEA HAWAII RAFTING, LLC; KRIS 

HENRY; JOHN DOES 1–20; MARY 

DOES 1–20; DOE CORPORATIONS 1–

20; DOE PARTNERSHIPS 1–20; DOE 

ASSOCIATES 1–20; DOE 

GOVERNMENTAL AGENCIES 1–20;

OTHER ENTITIES 1–20, In Personam; 

M/V TEHANI; KRISTIN KIMO HENRY, 

Debtor in U.S. Bankruptcy Court, 

District of Hawaii - Chapter 13 

Bankruptcy Case # 14-01475 (re: 

doc no. 142) also known as Kris 

Henry; DANE S. FIELD, Trustee of the 

bankruptcy estate of Sea Hawaii 

Rafting, LLC,

Defendants-Appellees.

No. 16-15023

D.C. No.

1:13-cv-00002-

ACK-RLP

ORDER AND 

AMENDED

OPINION

Appeal from the United States District Court

for the District of Hawaii

Alan C. Kay, Senior District Judge, Presiding

Argued and Submitted June 16, 2017

Honolulu, Hawaii
2 BARNES V. SEA HAWAII RAFTING

Filed March 28, 2018

Amended April 19, 2018

Before: Raymond C. Fisher, Richard A. Paez, and 

Jacqueline H. Nguyen, Circuit Judges.

Order;

Opinion by Judge Nguyen

SUMMARY*

Maritime Law

The panel reversed the district court’s dismissal of a 

seaman’s claims in admiralty against a vessel in rem, issued 

a writ of mandamus to the district court to award the seaman 

maintenance, denied a motion to dismiss the appeal as moot, 

and remanded the case to the district court.

The seaman was injured when the vessel on which he 

was working exploded. He sued the vessel in rem, and he 

sued the company that owned the vessel and the company’s 

owner and manager in personam, seeking to enforce his 

seaman’s lien against the vessel.

The panel held that it had jurisdiction under 28 U.S.C. 

§ 1292(a)(3) to review the district court’s interlocutory order 

dismissing the seaman’s claims against the vessel because 

the order affected the seaman’s substantive rights. The panel 

concluded that it lacked jurisdiction to review the district 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
BARNES V. SEA HAWAII RAFTING 3

court’s denial of summary judgment as to a maintenance

amount, but it treated the notice of appeal as a mandamus 

petition.

The panel held that the district court erred in staying the 

action when the vessel owner declared bankruptcy and in 

dismissing the seaman’s claims against the vessel for lack of 

in rem jurisdiction. The panel concluded that the district 

court obtained jurisdiction over the vessel when the seaman 

filed a verified complaint and the defendants appeared 

generally and litigated without contesting in rem 

jurisdiction, and the seaman’s failure to verify his amended 

complaint did not divest the district court of in rem 

jurisdiction. The district court did not lose in rem 

jurisdiction while the vessel remained in its constructive 

custody, and the court’s control over the vessel, once 

obtained, was exclusive. The vessel owner’s later-filed 

bankruptcy petition did not divest the district court of in rem 

jurisdiction. Moreover, the automatic bankruptcy stay did 

not affect the seaman’s maritime lien against the vessel, and 

the bankruptcy court had no authority to dispose of the lien 

through the application of bankruptcy law.

The panel denied the bankruptcy trustee’s motion to 

dismiss the appeal as moot after the trustee, with the 

bankruptcy court’s approval, sold the vessel purportedly free 

and clear of the seaman’s maritime lien.

The panel held that the district court erred by denying the 

seaman’s maintenance requests in full. The panel held that 

when a seaman establishes his entitlement to maintenance 

and provides some evidence of his actual living expenses, 

the burden shifts to the vessel’s owner to produce evidence 

that the seaman’s actual costs were unreasonable. Whether 

or not the vessel’s owner produces such evidence, the 

seaman is entitled to a maintenance award in the amount of 
4 BARNES V. SEA HAWAII RAFTING

his actual costs up to the reasonable rate in his locality. The 

panel issued a writ of mandamus to the district court to 

award the seaman maintenance for his undisputed actual and 

reasonable expenses of $34 per day, subject to a potential 

increase after trial.

COUNSEL

Jay Lawrence Friedheim (argued), Admiralty Advocates,

Honolulu, Hawaii; John C. Gibson, Honolulu, Hawaii; for 

Plaintiff-Appellant.

Simon Klevansky (argued), Alika L. Piper, and Nicole D. 

Stucki, Klevansky Piper LLP, Honolulu, Hawaii, for 

Defendants-Appellees Dane S. Field, Sea Hawaii Rafting 

LLC, and M/V Tehani.

Lisa M. Volquardsen, Kailua-Kona, Hawaii, for DefendantAppellee Kris Henry.
BARNES V. SEA HAWAII RAFTING 5

ORDER

The Opinion filed on March 28, 2018, is amended as 

follows:

1. On page 9, line 11, of the slip opinion, the word 

<Honolulu> is replaced with <his locality> and, at the end 

of the sentence, a footnote with the following text is added:

<Barnes originally presented the district 

court with evidence of reasonable costs in 

Honolulu but subsequently clarified that 

Kailua-Kona was the relevant locality.>

The remaining footnotes are renumbered accordingly.

2. On page 40, line 8, of the slip opinion, the word 

<Honolulu> is replaced with <his locality> enclosed in 

regular brackets.

No new petitions for rehearing or rehearing en banc will 

be accepted.

OPINION

NGUYEN, Circuit Judge:

Chad Barnes is a seaman who was injured when the boat 

on which he was working, the M/V Tehani, exploded. 

During his recovery, Barnes received some monetary 

assistance from either Sea Hawaii Rafting, LLC (“SHR”), 

which owned the Tehani, or Kris Henry, SHR’s owner and 

manager, but those payments soon stopped. Seeking the 
6 BARNES V. SEA HAWAII RAFTING

ancient maritime remedy of maintenance and cure,1 among 

other relief, Barnes sued the Tehani in rem and SHR and 

Henry in personam to enforce his seaman’s lien against the 

vessel. Although admiralty courts normally handle such 

matters expeditiously, that did not happen here for two 

reasons.

First, the district court rejected Barnes’s pretrial requests 

to enforce SHR’s obligation to pay maintenance and cure. 

The court concluded that Barnes was entitled to maintenance 

and cure and had demonstrated his actual maintenance 

expenses. Nonetheless, despite undisputed evidence that 

Barnes was entitled to at least some of his actual expenses, 

the district court declined to award Barnes any maintenance 

until trial.

Second, when SHR declared bankruptcy after fifteen 

months of litigation and shortly before trial, the district court 

stayed Barnes’s action. The district court concluded that the 

Tehani was an asset of the debtor’s estate and that the 

automatic bankruptcy stay barred proceedings to enforce 

Barnes’s maritime lien against the vessel. The bankruptcy 

court partially lifted the bankruptcy stay to allow the district 

court to evaluate Barnes’s claims against SHR but expressly 

prohibited the district court from issuing any ruling that 

would affect the maritime lien’s status.

Ultimately, the district court dismissed Barnes’s claims 

against the Tehani. The court reasoned that it lacked in rem 

jurisdiction because, even though Barnes verified his 

 1 “Maintenance” is a seaman’s “right . . . to food and lodging if he 

falls ill or becomes injured while in the service of the ship. ‘Cure’ is the 

right to necessary medical services.” 1 Thomas J. Schoenbaum, 

Admiralty and Maritime Law § 6-28 (5th ed. 2016) (footnote omitted).
BARNES V. SEA HAWAII RAFTING 7

original complaint, he failed to verify the amended 

complaint. Then, while Barnes’s appeal was pending, the 

bankruptcy trustee—with the bankruptcy court’s approval—

sold the Tehani purportedly free and clear of Barnes’s 

maritime lien. The trustee subsequently moved to dismiss 

this appeal as moot.

We conclude that the district court erred by denying 

Barnes’s maintenance requests in full, staying the action, and 

dismissing the Tehani. The district court obtained 

jurisdiction over the vessel Tehani when Barnes filed a 

verified complaint and the defendants appeared generally 

and litigated without contesting in rem jurisdiction. The 

district court did not lose in rem jurisdiction while the Tehani 

remained in its constructive custody. And the court’s control 

over the vessel, once obtained, was exclusive. SHR’s laterfiled bankruptcy petition did not divest the district court of 

in rem jurisdiction. Moreover, the automatic bankruptcy 

stay did not affect Barnes’s maritime lien against the Tehani, 

and the bankruptcy court had no authority to dispose of the 

lien through the application of bankruptcy law.

When, as here, a seaman establishes his entitlement to 

maintenance and provides some evidence of his actual living 

expenses, the burden shifts to the vessel’s owner to produce 

evidence that the seaman’s actual costs were unreasonable. 

Whether or not the vessel’s owner provides such evidence, 

the seaman is entitled to a maintenance award in the amount 

of his actual costs up to the reasonable rate in his locality. 

Over three years after concluding that Barnes was entitled to 

maintenance and had sufficiently proven his actual costs, the 

district court has yet to award him any maintenance.

Accordingly, we deny the trustee’s motion to dismiss, 

reverse the district court’s dismissal of the Tehani, and issue 

a writ of mandamus to the district court to award Barnes 
8 BARNES V. SEA HAWAII RAFTING

maintenance for his undisputed actual and reasonable 

expenses—$34 per day—subject to a potential increase after 

trial.

I.

A. Factual Background

Barnes worked for SHR for six years as a captain and 

crew member of the Tehani, a 25-foot rigid hull inflatable 

boat powered by twin outboard engines. Barnes took 

passengers from Honokohau Harbor on sightseeing and 

snorkeling trips along the Kona coast. Henry paid Barnes 

under the table with personal checks made out to “cash.”

On July 3, 2012, Henry and Barnes were launching the 

Tehani for a night snorkeling trip. Henry was in his truck, 

towing the Tehani on an attached trailer, and Barnes was 

onboard the boat. Henry backed the trailer down the launch 

ramp until the vessel was in the water. When Barnes started 

the starboard engine, the Tehani exploded. The hatch struck 

Barnes on his back and head, propelling him into the ocean.

A Coast Guard investigation found that the explosion 

was caused by a fuel tank with a missing screw in the fuel 

tank sender. Fuel leaked into the bilge, where vapors 

accumulated and ignited when Barnes started the engine. 

The investigator concluded that the incident might have been 

avoided if Henry had installed the required flammable vapor 

detector and mechanical exhaust system. See 46 C.F.R. 

§§ 182.460, 182.480. The boat, which was insured, was 

subsequently repaired and returned to service.

Barnes was less fortunate. SHR lacked insurance to 

cover his medical expenses for physical, psychological, and 

neurological treatment. Barnes required approximately 
BARNES V. SEA HAWAII RAFTING 9

12 staples to reattach parts of his scalp. Due to his head 

injuries, he can no longer drive a car or swim. He cannot 

afford rent and has been living on friends’ couches. He 

receives approximately $300 per month in disability income 

from the State of Hawaii.2

B. Litigation in the District and Bankruptcy Courts

On January 1, 2013, Barnes filed a verified complaint in 

admiralty against Henry, SHR, and the Tehani, claiming 

unseaworthiness, various theories of negligence, and 

intentional infliction of emotional distress. Barnes sought 

maintenance and cure, damages, and attorney’s fees. The 

three defendants answered the complaint. Despite denying 

Barnes’s allegation that the Tehani was subject to the district 

court’s in rem jurisdiction, they did not move to dismiss the 

Tehani on that basis but instead proceeded to litigate the 

dispute.

Barnes moved for “summary judgment for payment of 

maintenance and cure,” requesting that the district court 

order defendants to pay his “reasonable, actual costs of food 

and lodging” and medical costs since the date of his injury 

until he reached “maximum medical cure.” The district 

court granted Barnes’s motion in part. Noting that 

defendants did not dispute that Barnes was injured in the 

service of the Tehani, the district court ruled that Barnes was 

entitled to maintenance and cure and had not yet reached 

maximum cure. Applying the standard for determining a 

 2 Barnes also received some assistance from Henry, but the parties 

dispute the exact amount. Barnes acknowledges that Henry paid him 

$500 to cover rent. It is unclear whether Henry made this payment in his 

personal capacity or on SHR’s behalf.
10 BARNES V. SEA HAWAII RAFTING

maintenance rate from Hall v. Noble Drilling (U.S.) Inc., 

242 F.3d 582 (5th Cir. 2001), the district court concluded 

that Barnes had shown his actual food and lodging costs but 

not the reasonable amount for such costs in his locality or his 

actual medical expenses. 3

 The court therefore declined to 

award either maintenance or cure.

About four months after the district court’s order, Henry 

volunteered to pay Barnes $962.83 per month towards 

maintenance but stopped after making two payments. 

Barnes moved two more times for summary judgment to 

determine a daily maintenance rate.4 The district court 

denied both motions, concluding that there were triable 

issues of fact regarding reasonable food and lodging costs in 

Hawaii. The district court also denied Barnes’s separate 

motion for summary judgment for payment of cure.

Meanwhile, Barnes filed an unverified amended 

complaint, adding a claim for negligence per se. In 

answering the amended complaint, defendants again stated a 

general denial of Barnes’s allegation that the Tehani was 

subject to the district court’s in rem jurisdiction but did not 

specifically challenge jurisdiction by filing a motion under 

Federal Rule of Civil Procedure 12(b) or otherwise bringing 

the issue to the district court’s attention.

In yet another summary judgment motion, Barnes asked 

the district court to grant relief on his claims for 

 3 Barnes originally presented the district court with evidence of 

reasonable costs in Honolulu but subsequently clarified that KailuaKona was the relevant locality.

4 Barnes later moved a fourth time for summary judgment on the 

issue of a maintenance rate but withdrew the motion after the district 

court dismissed his claims against the Tehani.
BARNES V. SEA HAWAII RAFTING 11

unseaworthiness, negligence per se, and Jones Act 

negligence. Two weeks before the hearing on this motion 

and just over a month before the scheduled trial, SHR and 

Henry filed for bankruptcy relief—Henry for reorganization 

under Chapter 13 and SHR for dissolution under Chapter 7. 

Pursuant to the automatic bankruptcy stay, 11 U.S.C. 

§ 362(a), the district court stayed the proceedings against all 

three defendants.

The bankruptcy court, recognizing the district court’s 

“experience and expertise . . . in matters in admiralty,” 

partially lifted the stay as to Henry and SHR so that the 

district court could “adjudicate the validity, extent, amount, 

and date of perfection of any maritime lien claim by . . . 

Barnes against the [Tehani].”5 However, the bankruptcy 

court expressly kept the stay in place “to bar the enforcement 

of any maritime lien.” The bankruptcy court expressed 

concern that the “limited assets” of SHR’s estate did not 

warrant the bankruptcy trustee’s “participat[ion] in extended 

or unlimited litigation in the District Court.”6

After the bankruptcy court partially lifted the stay, the 

district court reopened the case. In a subsequent minute 

 5 Initially, there was confusion as to which defendant—Henry or 

SHR—owned the Tehani. Defendants erroneously listed the Tehani as 

Henry’s rather than SHR’s asset in their bankruptcy cases. Under that 

misapprehension, the bankruptcy court first lifted only the stay in 

Henry’s bankruptcy, though the order allowed the district court to “value 

to its conclusion the claim of [Barnes] arising from [the admiralty case],” 

which necessarily implicated Barnes’s claim against SHR’s property. 

When the Tehani’s ownership was clarified, the district court refused to 

proceed further with SHR’s bankruptcy stay still in place. The 

bankruptcy court then lifted that stay as well.

6 The Tehani and its trailer, appraised to be worth $38,500 and 

$2,500, respectively, were the estate’s only substantial assets.
12 BARNES V. SEA HAWAII RAFTING

order addressing Barnes’s outstanding summary judgment 

motions, the district court noted—sua sponte and 

parenthetically—that “it lack[ed] jurisdiction over the 

[Tehani], as [the vessel] was never arrested.” Thereafter, 

Barnes attempted several times to verify the amended 

complaint—a verified complaint being a precondition of 

arrest, see Fed. R. Civ. P. Supp. Adm. & Mar. Cl. R. 

C(2)(a)—though Barnes made no attempt to arrest the 

Tehani. The trustee in SHR’s bankruptcy case conceded to 

the district court that defendants’ “pre-petition answer 

subjected [them] to the [district court’s] jurisdiction.” The 

trustee acknowledged the district court’s previous statement 

that it lacked in rem jurisdiction but did not seek dismissal 

on that ground. Rather, the trustee argued that Barnes had 

lost any maritime lien he had in the vessel through his failure 

to verify the amended complaint and invoke the district 

court’s in rem jurisdiction. Henry also did not seek dismissal 

for lack of in rem jurisdiction.7

The district court nonetheless dismissed the Tehani for 

lack of in rem jurisdiction and, in the same order, granted 

Barnes partial summary judgment on his claim for 

negligence per se. In dismissing the Tehani, the district court 

reasoned that Barnes’s unverified amended complaint—

filed after more than 15 months of litigation—superseded the 

original verified complaint; Barnes’s attempts to verify the 

amended complaint while the bankruptcy stay was in effect 

were invalid; verification of the amended complaint was 

 7 Less than a week before the hearing on Barnes’s motion for 

summary judgment on his claims for unseaworthiness, negligence per se, 

and Jones Act negligence, Henry in a supplemental memorandum 

requested dismissal of the action for lack of subject matter jurisdiction 

based on Barnes’s failure to verify the amended complaint. He cited no 

authority for this proposition, and we know of none.
BARNES V. SEA HAWAII RAFTING 13

necessary for his maritime lien against the Tehani to attach; 

and Barnes’s failure to verify the amended complaint 

deprived the district court of in rem jurisdiction.

Barnes appeals the district court’s orders dismissing the 

Tehani and denying his request to set a maintenance amount. 

While his appeal was pending, the bankruptcy court 

approved, and SHR’s bankruptcy trustee executed, the sale 

of the Tehani and its trailer to Henry’s new company, Aloha 

Ocean Excursions, LLC, for $35,000.

II.

Jurisdiction

We begin by considering our own jurisdiction as to each 

issue raised on appeal. See Ashcroft v. Iqbal, 556 U.S. 662, 

671 (2009) (“Subject-matter jurisdiction . . . should be 

considered when fairly in doubt.” (citing Arbaugh v. Y & H 

Corp., 546 U.S. 500, 514 (2006))); Gupta v. Thai Airways 

Int’l, Ltd., 487 F.3d 759, 769–70 (9th Cir. 2007) 

(“[A]ppellate courts must examine each claim or issue 

presented separately to determine their jurisdiction on 

interlocutory appeal . . . .” (citing Will v. Hallock, 546 U.S. 

345, 349 (2006))). The district court, sitting in admiralty, 

had jurisdiction under 28 U.S.C. § 1333(1). SHR’s 

bankruptcy trustee asserts that if this appeal is not moot, we 

have appellate jurisdiction under 28 U.S.C. § 1291 to review

the dismissal of the Tehani because “[a]n order of dismissal 

is a final order.” But the district court dismissed only the 

Tehani. “‘[A]ny order or other decision, however 

designated, that adjudicates fewer than all the claims or the 

rights and liabilities of fewer than all the parties’ is not 

final” unless the district court determines there is no just 

reason for delay and enters judgment. Hyan v. Hummer, 

825 F.3d 1043, 1046 (9th Cir. 2016) (per curiam) (quoting 
14 BARNES V. SEA HAWAII RAFTING

Fed. R. Civ. P. 54(b)) (emphasis in Hyan). That did not 

happen here.8 Thus, this appeal is interlocutory.

Barnes and Henry suggest 28 U.S.C. § 1292(a)(3) as the 

source of our jurisdiction, which permits appeals from 

“[i]nterlocutory decrees of . . . district courts. . . determining 

the rights and liabilities of the parties to admiralty cases in 

which appeals from final decrees are allowed.” This means 

orders that decide “the merits of the controversies between 

[the parties],” because “‘rights and liabilities’ . . . are 

substantive in nature—not adjective, tactical, or procedural.” 

Rogers v. Alaska S.S. Co., 249 F.2d 646, 649 (9th Cir. 1957) 

(quoting In re Wills Lines, 227 F.2d 509, 510 (2d Cir. 1955)). 

In determining whether a ruling decides the merits, we 

consider “financial realities,” All Alaskan Seafoods, Inc. v. 

M/V Sea Producer, 882 F.2d 425, 428 (9th Cir. 1989), as 

well as other “practical matter[s],” Kesselring v. F/T Arctic 

Hero, 30 F.3d 1123, 1125 (9th Cir. 1994).

In Melwire Trading Co. v. M/V Cape Antibes, we 

concluded that 28 U.S.C. § 1292(a)(3) applied to an order 

dismissing a vessel for lack of in rem jurisdiction. 811 F.2d 

1271, 1273 (9th Cir. 1987). In concluding that we had 

jurisdiction, however, we construed “the actual basis for the 

district court’s dismissal” to be “its conclusion that none of 

[the plaintiff’s] claims gave rise to a maritime lien 

 8 Barnes moved for leave to file an interlocutory appeal under 

28 U.S.C. § 1292(a)(3) or (b). The district court, viewing its approval as 

unnecessary for an appeal pursuant to § 1292(a)(3), see Seattle First 

Nat’l Bank v. Bluewater P’ship, 772 F.2d 565, 569 (9th Cir. 1985), 

denied the motion as moot. Although we ultimately agree with the 

district court that we have appellate jurisdiction under § 1292(a)(3) to 

review the dismissal of the Tehani, the issue is close, and the better 

practice in that situation would be to make an alternative ruling under 

§ 1292(b).
BARNES V. SEA HAWAII RAFTING 15

enforceable in an action in rem,” a question that “involves 

the merits.” Id. at 1273 n.1 (citing The Resolute, 168 U.S. 

437, 440 (1897)). Here, there is no doubt that Barnes had a 

seaman’s lien, and the Tehani’s dismissal was due to 

Barnes’s purported procedural shortcomings in invoking the 

district court’s in rem jurisdiction. Because this type of 

dismissal is “not an adjudication upon the merits,” Neifeld v. 

Steinberg, 438 F.2d 423, 432 (3d Cir. 1971); cf. Kendall v. 

Overseas Dev. Corp., 700 F.2d 536, 539 (9th Cir. 1983) 

(“[A] dismissal for lack of in personam jurisdiction is not res 

judicata as to the merits of the claim.”), it is not necessarily 

appealable.

The district court concluded that its dismissal order 

effectively “foreclose[d] the only forum in which Barnes 

may bring his admiralty claims against the Tehani.” Thus, 

notwithstanding that the ruling was procedural, it affects 

Barnes’s substantive rights and is the proper subject of an 

interlocutory appeal under 28 U.S.C. § 1292(a)(3). See

Royal Ins. Co. of Am. v. S.W. Marine, 194 F.3d 1009, 1013 

n.2 (9th Cir. 1999) (holding that an order denying leave to 

amend was appealable under § 1292(a)(3) because it 

“effectively dismissed” the plaintiff’s claims); see also MS 

Tabea Schiffahrtsgesellschaft MBH & Co. v. Bd. of 

Comm’rs, 636 F.3d 161, 165 (5th Cir. 2011) (holding that 

“dismiss[al] . . . for lack of subject matter jurisdiction . . . 

conclusively determined the parties’ rights and liabilities”).

We lack jurisdiction, however, to consider whether the 

district court should have awarded maintenance. The court’s 

partial summary judgment that defendants are liable to 

Barnes for maintenance payments is not at issue. Defendants 

did not appeal that ruling, and the time to do so on an 

interlocutory basis expired long before Barnes filed his 

notice of appeal. See 28 U.S.C. § 2107(a) (providing a 30-
16 BARNES V. SEA HAWAII RAFTING

day deadline to appeal “any judgment, order or decree”). 

Rather, Barnes is attempting to appeal the district court’s 

denial of summary judgment as to a maintenance amount. 

Except in limited circumstances not applicable here, the 

denial of summary judgment is not appealable. See, e.g., 

Thomas v. Dillard, 818 F.3d 864, 874 (9th Cir. 2016) (citing 

Mueller v. Auker, 576 F.3d 979, 987 (9th Cir. 2009)); see 

also P.R. Ports Auth. v. Barge Katy-B, 427 F.3d 93, 106–07 

(1st Cir. 2005) (holding that § 1292(a)(3) permits 

interlocutory review of only the portion of an order 

determining the parties’ rights and liabilities); cf. EEOC v. 

Recruit U.S.A., Inc., 939 F.2d 746, 757 (9th Cir. 1991) 

(dismissing for lack of jurisdiction challenge to district 

court’s failure to rule on sanctions request in otherwise 

appealable order granting preliminary injunction).

When appellate jurisdiction is lacking, “[w]e can . . . 

treat the notice of appeal as a petition for a writ of 

mandamus.” Miller v. Gammie, 335 F.3d 889, 895 (9th Cir. 

2003) (en banc). For reasons we will explain, we conclude 

that mandamus relief is warranted in these unique 

circumstances. First, however, we turn to the district court’s 

dismissal of the Tehani for lack of in rem jurisdiction, which 

we review de novo. See Ventura Packers, Inc. v. F/V 

Jeanine Kathleen, 424 F.3d 852, 858 (9th Cir. 2005).

III.

A. The District Court’s In Rem Jurisdiction over the 

Tehani

To commence an action in rem against a vessel, the 

plaintiff must file a verified complaint that describes the 

vessel “with reasonable particularity” and states that the 

vessel “is within the district” or will be so “while the action 

is pending.” Fed. R. Civ. P. Supp. Adm. & Mar. Cl. R. C(2); 
BARNES V. SEA HAWAII RAFTING 17

see Madeja v. Olympic Packers, LLC, 310 F.3d 628, 637 (9th 

Cir. 2002). If the plaintiff meets these conditions, the district 

court must take the boat into custody—unless the plaintiff 

requests otherwise—by issuing an arrest warrant to be 

served by the marshal.9 See Fed. R. Civ. P. Supp. Adm. & 

Mar. Cl. R. C(3)(a)–(b), E(3)(b).

“Once the district court issue[s] warrants for the arrest of 

the . . . vessels pursuant to Rule C, and the warrants [are] 

successfully served, ‘jurisdiction [i]s complete.’” F/V 

Jeanine Kathleen, 424 F.3d at 858 (quoting The Rio Grande, 

90 U.S. (23 Wall.) 458, 463 (1874)). However, “as with 

other forms of jurisdiction over the party, see Fed. R. Civ. P. 

12(h)(1), a vessel may waive jurisdiction in rem by 

appearing in the action and failing to raise the defense of lack 

of jurisdiction over the party in a timely fashion.” United 

States v. Republic Marine, Inc., 829 F.2d 1399, 1402 (7th 

Cir. 1987); see Cactus Pipe & Supply Co. v. M/V 

Montmartre, 756 F.2d 1103, 1107–11 (5th Cir. 1985); see 

also Hapag-Lloyd A.G. v. U.S. Oil Trading LLC, 814 F.3d 

146, 153–54 (2d Cir. 2016) (noting “the many cases in which 

in rem jurisdiction has been held waived without seizure 

when the owner appears without contesting jurisdiction” 

(citing Republic Marine and M/V Montmartre)); Porsche 

 9 Supplemental Admiralty and Maritime Claims Rule C(3)(a)(i) 

provides that the district court “must review the complaint and any 

supporting papers” and, if satisfactory, “the court must issue an order 

directing the clerk to issue a warrant for the arrest of the vessel.” 

(Emphasis added.) The District of Hawaii requires admiralty plaintiffs 

to apply for this review and places the burden on the applicant “to ensure 

that the application has been reviewed and, upon approval, presented to 

the clerk for issuance of the appropriate order.” D. Haw. Adm. R. E.3(e). 

Barnes does not challenge the local rule as being inconsistent with the 

federal rule, and it is unnecessary for us to consider any tension between 

them.
18 BARNES V. SEA HAWAII RAFTING

Cars N.A., Inc. v. Porsche.net, 302 F.3d 248, 256 (4th Cir. 

2002) (“[I]n admiralty . . . cases, for years courts have held 

that objections to in rem jurisdiction may be waived.”); 

Farwest Steel Corp. v. Barge Sea Span 241, 769 F.2d 620, 

622 (9th Cir. 1985) (“[J]urisdiction to review an in rem

decision [can be derived] from the existence of either 

consent or in personam jurisdiction over a shipowner whose 

other contacts with the forum satisfied ‘traditional notions of 

fair play and substantial justice.’” (quoting Int’l Shoe Co. v. 

Washington, 326 U.S. 310, 316 (1945)); The Willamette, 

70 F. 874, 877–78 (9th Cir. 1895) (holding that challenge to 

in rem jurisdiction was waived where the shipowner 

appeared and answered the complaint).

Barnes’s original complaint was verified and met the 

other prerequisites to invoke the district court’s in rem 

jurisdiction. Barnes understandably found it advantageous 

not to seek the Tehani’s arrest. He was unwilling to pay the 

associated costs,10 which he estimated would be 

approximately $30,000; there was no risk that the vessel 

would leave the district; and, Barnes asserts, “allowing 

 10 A party seeking to arrest a vessel must deposit sufficient funds to 

cover for at least 10 days the marshal’s expenses, including dockage, 

keepers, maintenance, and insurance, and pay the marshal’s ongoing 

expenses in advance until the vessel is released. See 28 U.S.C. § 1921; 

D. Haw. Adm. R. E.11. There is a split of authority over whether seamen 

are exempt from prepayment of these fees. See 28 U.S.C. § 1916 (“In 

all courts of the United States, seamen may institute and prosecute suits 

and appeals in their own names and for their own benefit for wages or 

salvage or the enforcement of laws enacted for their health or safety 

without prepaying fees or costs or furnishing security therefor.”); 

compare Thielebeule v. M/S Nordsee Pilot, 452 F.2d 1230, 1232 (2d Cir. 

1971) (holding seamen are exempt from prepayment), with P.R. Drydock 

& Marine Terminals, Inc. v. Motor Vessel Luisa Del Caribe, 746 F.2d 

93, 94 (1st Cir. 1984) (holding seamen are not exempt), and Araya v. 

McLelland, 525 F.2d 1194, 1196 (5th Cir. 1976) (same).
BARNES V. SEA HAWAII RAFTING 19

Henry to continue to operate his ocean excursion business 

with the vessel was the only possible way that [Henry] could 

generate enough money to pay Barnes [m]aintenance.” 

Barnes’s failure to arrest the Tehani benefitted defendants as 

well. Had he arrested the Tehani, defendants not only would 

have had to put up security to obtain the vessel’s release, see

Fed. R. Civ. P. Supp. Adm. & Mar. Cl. R. E(5)(a)–(b), but 

would have endured the inconvenience of being unable to 

use the vessel until its release was secured. See 4 Erastus 

Cornelius Benedict et al., Benedict on Admiralty § 2.15[C] 

(7th ed., rev. 2017).

When Barnes filed his verified complaint, the district 

court issued summonses for each of the defendants, 

including the Tehani. Four months after Henry and SHR 

were served, they and the Tehani answered the complaint 

without moving to dismiss for lack of in rem jurisdiction. 

The three defendants then actively participated in the 

litigation—providing discovery, opposing two summary 

judgment motions and two motions for reconsideration of 

orders denying summary judgment, and participating in two 

settlement conferences—without challenging the court’s in 

rem jurisdiction. By the time Barnes filed his unverified 

amended complaint, defendants had clearly waived any 

objection to in rem jurisdiction by litigating the merits of 

Barnes’s claims for more than 15 months. See Peterson v. 

Highland Music, Inc., 140 F.3d 1313, 1318 (9th Cir. 1998) 

(“Most defenses, including the defense of lack of personal 

jurisdiction, may be waived as a result of the course of 

conduct pursued by a party during litigation.”); cf. Cont’l 

Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993) 

(holding that personal jurisdiction defense, even though 

raised in the answer sufficiently to avoid waiver under Rule 

12(h), was waived where “the defendants fully participated 
20 BARNES V. SEA HAWAII RAFTING

in litigation of the merits for over two-and-a-half years 

without actively contesting personal jurisdiction”).

B. Barnes’s Failure to Verify the Amended Complaint 

Did Not Divest the Court of In Rem Jurisdiction

The district court concluded that it lacked in rem 

jurisdiction because Barnes failed to verify the amended 

complaint. It reasoned that an “amended complaint 

supersedes the original, the latter being treated thereafter as 

non-existent,” Lacey v. Maricopa County, 693 F.3d 896, 925 

(9th Cir. 2012) (en banc) (quoting Forsyth v. Humana, Inc., 

114 F.3d 1467, 1474 (9th Cir. 1997)), and that Barnes’s 

“failure to verify [his amended] complaint deprived the 

district court of in rem jurisdiction.” Madeja, 310 F.3d at 

637 (citing United States v. $84,740.00 U.S. Currency, 

900 F.2d 1402, 1405 (9th Cir. 1990)). Neither Lacey nor 

Madeja support the district court’s conclusion.

While an amended complaint supersedes the original, it 

normally does so only with regard to the pleading’s 

substance, not its procedural effect. For example, Lacey

involved “the [former] law of this circuit that a plaintiff 

waives all claims alleged in a dismissed complaint which are 

not realleged in an amended complaint.” 693 F.3d at 925 

(quoting Forsyth, 114 F.3d at 1474). Lacey overruled this 

“formalistic and harsh” rule, which was neither “prudent 

[n]or sufficiently justified.” Id. at 927. Now, “claims 

dismissed with prejudice [or] without leave to amend [need 

not] be repled in a subsequent amended complaint to 

preserve them for appeal.” Id. at 928. The procedural effect 

of the original complaint—preserving for appeal certain 

subsequently dismissed claims—survives its amendment. 

Relation back is another example. A timely-filed claim is 

not rendered untimely when included in an amended 
BARNES V. SEA HAWAII RAFTING 21

complaint filed after the statute of limitations has passed. 

See Fed. R. Civ. P. 15(c).

In rem jurisdiction is no different. It is a “general 

principle” of admiralty law that in rem “jurisdiction, once 

vested, is not divested, although a state of things should 

arrive in which original jurisdiction could not be exercised.” 

Republic Nat’l Bank of Miami v. United States, 506 U.S. 80, 

85 (1992) (quoting United States v. The Little Charles, 26 F. 

Cas. 979, 982 (C.C.D. Va. 1818) (No. 15,612) (Marshall, 

C.J.)); see Edlin v. M/V Truthseeker, 69 F.3d 392, 393 (9th 

Cir. 1995) (“Although control of the res is required to 

establish jurisdiction, it is not required to maintain a court’s 

jurisdiction.”); cf. J. Lauritzen A/S v. Dashwood Shipping, 

Ltd., 65 F.3d 139, 142 (9th Cir. 1995) (explaining that quasi 

in rem jurisdiction, “once obtained, will not be defeated by 

a change in circumstances”). Since Barnes’s original, 

verified complaint established the court’s in rem 

jurisdiction, his unverified amended complaint did not take 

it away.

“Unless a rule or statute specifically states otherwise, a 

pleading need not be verified or accompanied by an 

affidavit.” Fed. R. Civ. P. 11(a) (emphasis added). Here, 

the relevant rule provides only that “the complaint” must be 

verified. Id., Supp. Adm. & Mar. Cl. R. C(2). Supplemental 

Rule C says nothing about the necessity of verifying 

amended pleadings. Such a requirement would not serve its 

purpose, which is to provide procedural protections to the 

vessel’s owner—whose property is arrested without prior 

notice or a hearing—in order “to eliminate any doubt as to 

the rule’s constitutionality.” Id., Supp. Adm. & Mar. Cl. R. 

C, advisory committee’s note to 1985 amendment; see also

Merchs. Nat’l Bank of Mobile v. Dredge Gen. G. L. 

Gillespie, 663 F.2d 1338, 1349–50 (5th Cir. Unit A Dec. 
22 BARNES V. SEA HAWAII RAFTING

1981) (“[T]he verified complaint filed by a maritime lienor 

as well as the prayer for seizure constitute the ‘process’ that 

brings that entity into court. Together, the verified 

complaint and the warrant constitute ‘notice,’ and the 

shipmaster (or person in charge) knows of the arrest and is 

in a position to notify the owner.”).

After the vessel is arrested, the owner is entitled to “a 

prompt post-seizure hearing at which he can attack the 

verified complaint, the arrest, the security demanded, or any 

other alleged deficiency in the proceedings up to that point.” 

Gen. G. L. Gillespie, 663 F.2d at 1351; see Fed. R. Civ. P. 

Supp. Adm. & Mar. Cl. R. E(4)(f). Once the owner has 

appeared, whether due to the vessel’s arrest or because the 

owner learned of the proceeding through some other means, 

no further procedural purpose is served by requiring the 

verification of amended pleadings. To the extent the 

verification provides evidentiary value, the original 

complaint “does not lose its character as the equivalent of an 

affidavit just because a later, amended complaint, is filed.” 

Beal v. Beller, 847 F.3d 897, 901 (7th Cir. 2017).

Madeja did not involve an amended complaint or a 

situation in which the defendants had waived objections to 

in rem jurisdiction. Rather, it involved an original complaint 

that was inadequately verified and defendants that 

successfully objected to in rem jurisdiction. See Madeja, 

310 F.3d at 637; see also Madeja v. Olympic Packer, LLC, 

155 F. Supp. 2d 1183, 1211 (D. Haw. 2001). It is 

inapplicable here. The district court erred in dismissing the 

Tehani for lack of in rem jurisdiction.
BARNES V. SEA HAWAII RAFTING 23

C. The Bankruptcy Court Lacked Jurisdiction to 

Dispose of the Maritime Lien

SHR’s bankruptcy trustee argues that even if the district 

court erred, Barnes’s claims are now moot because the 

bankruptcy court authorized the Tehani’s sale to be free and 

clear of any liens. This argument assumes that the 

bankruptcy court had jurisdiction to dispose of Barnes’s 

maritime lien. It did not.

1.

The automatic bankruptcy stay applies to “any act to 

create, perfect, or enforce any lien against property of the 

estate.” 11 U.S.C. § 362(a)(4). The district court concluded 

that Barnes’s claims to enforce his maritime lien were 

subject to the bankruptcy stay. In United States v. ZP 

Chandon, we reversed a district court’s similar ruling “that 

the automatic stay provisions of the Bankruptcy Act apply to 

[a maritime lien for] seamen’s wages.”11 889 F.2d 233, 238 

(9th Cir. 1989).

Although Chandon involved a maritime lien for 

seaman’s wages rather than for maintenance and cure, its 

reasoning applies equally to both. We “construe[d] 

Congress’ omission of any reference to maritime law in 

[§] 362(a)(4) as evidence of its intention to limit the reach of 

that statute to land-based transactions where (1) a recording 

of a lien interest is required and (2) the creditor first in time 

is entitled to priority.” Id. at 238.

 11 A seaman’s right to unearned wages while injured or ill on a 

voyage is “part of the doctrine of ‘maintenance and cure.’” Day v. Am. 

Seafoods Co., 557 F.3d 1056, 1058 (9th Cir. 2009) (citing Lipscomb v. 

Foss Maritime Co., 83 F.3d 1106, 1109 (9th Cir. 1996)).
24 BARNES V. SEA HAWAII RAFTING

The trustee would distinguish Chandon as involving a 

post-petition claim in a Chapter 11 reorganization case rather 

than the pre-petition claim in a Chapter 7 dissolution case at 

issue here. Those are not material differences. Chandon

decided, broadly, “whether the enactment of the Bankruptcy 

Act and the Congressional grant of jurisdiction to the 

bankruptcy courts restricts the district court’s jurisdiction in 

admiralty or maritime cases.” Id. at 236. In answering that 

question in the negative, we reasoned that the automatic stay 

provision “does not expressly refer to maritime liens,” 

which, when owed to seamen as a consequence of their 

service, “are ‘sacred liens’ entitled to protection ‘as long as 

a plank of the ship remains.’” Id. at 238 (quoting The John 

G. Stevens, 170 U.S. 113, 119 (1898)).12 We concluded that 

Congress would not have overruled this “sacred” principle 

of admiralty law in the Bankruptcy Act sub silentio.

Neither the timing of the bankruptcy petition relative to 

the maritime lien nor the nature of the bankruptcy 

proceeding—liquidation versus reorganization—factored 

into our decision. The trustee does not explain why they 

should. We therefore conclude that, under Chandon, the 

 12 The John G. Stevens involved a maritime lien for tort damages 

from a negligent collision. 170 U.S. at 119. Although the discussion of 

“sacred [maritime] liens” was in the context of liens for seaman’s wages, 

id., liens for maintenance and cure are given a similarly high priority. 

See Fredelos v. Merritt-Chapman & Scott Corp., 447 F.2d 435, 440 (5th 

Cir. 1971) (per curiam on rehearing) (“[T]he shipowner’s liability [for 

maintenance and cure] is among ‘the most pervasive’ of all.” (quoting 

Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 730 (1943))). In both 

instances the reason for favoring a seaman’s lien over all others “is that 

just as a seaman owes his first duty to his ship, so does she owe the same 

to him.” Id. at 439.
BARNES V. SEA HAWAII RAFTING 25

bankruptcy stay did not apply to Barnes’s efforts to enforce 

his maritime lien for maintenance and cure.

2.

The bankruptcy court lacked jurisdiction to adjudicate 

Barnes’s maritime lien because the admiralty court had 

already obtained jurisdiction over the Tehani. “As between 

two courts of concurrent and co-ordinate jurisdiction, having 

like jurisdiction over the subject-matter in controversy, the 

court which first obtains jurisdiction is entitled to retain it 

without interference, and cannot be deprived of its right to 

do so because it may not have first obtained physical 

possession of the property in dispute.” Moran v. Sturges, 

154 U.S. 256, 283–84 (1894); see also State Engr. v. S. Fork 

Band of Te-Moak Tribe of W. Shoshone Indians, 339 F.3d 

804, 809 (9th Cir. 2003) (discussing the “ancient and oftrepeated . . . doctrine of prior exclusive jurisdiction—that 

when a court of competent jurisdiction has obtained 

possession, custody, or control of particular property, that 

possession may not be disturbed by any other court” 

(quoting 14 Charles Alan Wright et al., Federal Practice and 

Procedure § 3631, at 8 (3d ed. 1998))).13

Here, the district court took constructive control of the 

Tehani in order to adjudicate Barnes’s maritime lien at the 

time Barnes filed his verified complaint. SHR’s bankruptcy

 13 There is an exception to prior exclusive jurisdiction that is 

inapplicable here: “where the jurisdiction [of the two courts over the res] 

is not the same or concurrent, and the subject-matter in litigation in the 

one is not within the cognizance of the other, or there is no constructive 

possession of the property in dispute by the filing of a bill, it is the date 

of the actual possession of the receiver that determines the priority of 

jurisdiction.” Harkin v. Brundage, 276 U.S. 36, 43 (1928).
26 BARNES V. SEA HAWAII RAFTING

petition, filed nearly two years later, could not have vested 

the bankruptcy court with the same jurisdiction.

3.

Even if the bankruptcy court had in rem jurisdiction over 

the Tehani, it is an open question whether bankruptcy courts 

have “the effective ability to sell a vessel free and clear of 

maritime liens.” 3B Benedict et al., supra, § 43 (citing 

Jonathan M. Landers, The Shipowner Becomes a Bankrupt, 

39 U. Chi. L. Rev. 490, 500 (1972)). Nonetheless, two 

principles are well-established.

First, a maritime lien “accompanies the property into the 

hands of a bona fide purchaser. It can be executed and 

divested only by a proceeding in rem.” Vandewater v. Mills, 

60 U.S. 82, 89 (1856); see In re World Imports Ltd., 820 F.3d 

576, 583 (3d Cir.) (“[A maritime] lien attaches to the 

maritime property from the moment a debt arises, and 

adheres, even through changes in the property’s ownership, 

until extinguished by operation of law.”), cert. denied sub 

nom. World Imports, Ltd. v. OEC Grp. N.Y., 137 S. Ct. 340 

(2016); Grant Gilmore & Charles L. Black, Jr., The Law of 

Admiralty § 9-2, at 588 (2d ed. 1975) (“The maritime lien 

can be ‘executed’ (which is the admiralty terminology for 

‘foreclosed’) only by an admiralty court acting in rem.”). 

The bankruptcy proceeding that purportedly discharged 

Barnes’s maritime lien was in rem. See Tenn. Student 

Assistance Corp. v. Hood, 541 U.S. 440, 447 (2004).

Second, a maritime lien cannot be extinguished except 

through the application of admiralty law. See In re 

Millenium Seacarriers, Inc., 419 F.3d 83, 93 (2d Cir. 2005) 

(Sotomayor, J.) (“Traditional admiralty principles suggest 

that only a federal admiralty court acting in rem has the 

jurisdiction to quiet title to a vessel conclusively by 
BARNES V. SEA HAWAII RAFTING 27

extinguishing its maritime liens.”); Eric D. Grayson, 

Maritime Arrest and Rule C: A Historical Perspective, 

6 Mar. Law. 265, 271 (1981) (“It is a basic tenet of American 

jurisprudence that a maritime lien is enforceable only by in 

rem process and by a federal court sitting in admiralty.”).

There are good reasons why a bankruptcy court, if it can 

release a maritime lien at all, should be required to do so 

pursuant to admiralty law. “The central bankruptcy scheme 

of pro rata distribution among creditors deprives secured 

creditors of immediate enforcement” and “is obviously at 

odds with the complex maritime system providing for 

priorities between various creditors and distinguishing 

between maritime and nonmaritime creditors.” 3B Benedict 

et al., supra, § 1[a][9]. See generally 2 Benedict et al., 

supra, § 51 (discussing priority of liens). Maritime creditors 

have “secret liens,” enforceable “without . . . formal or 

substantial documentation,” which are “antithetical” to 

bankruptcy practice. 3B Benedict et al., supra, § 1[a][9]. 

See generally Gilmore & Black, supra, § 9-1, at 586–89 

(discussing differences between land-based liens and 

maritime liens).

Other “unique aspects” of maritime liens make them illsuited for resolution under bankruptcy law; for example, 

“seamen have traditionally been recognized by maritime 

courts as ‘the wards of admiralty,’ placing them in a 

preferred position. A seaman, after settling a claim . . . under 

the general maritime law, even when represented by an 

attorney, may later contend either that he was underrepresented or that his rights were not completely explained 

to him.” 29 James Wm. Moore et al., Moore’s Federal 

Practice § 707.01[12] (3d ed. 2017). A seaman without 

counsel can claim “that he failed to understand what he was 
28 BARNES V. SEA HAWAII RAFTING

doing when he accepted money in exchange for a release.” 

Id.

In Millenium Seacarriers, the Second Circuit held that a 

bankruptcy court could extinguish a maritime lien in an 

admiralty adversary proceeding to which the lienors 

voluntarily submitted. 419 F.3d at 95–96. Its decision 

turned on the lienors’ consent to bankruptcy jurisdiction 

because “admiralty law itself allows individual lien claims 

to be expunged when lienors have submitted their claims to 

the equitable jurisdiction of another court.” Id. Here, in 

contrast, the bankruptcy court applied bankruptcy law rather 

than admiralty law and Barnes did not submit voluntarily to 

the court’s jurisdiction. Its attempt to dispose of his 

maritime lien was ineffectual.

IV.

Barnes’s Entitlement to Maintenance

Having determined that the dismissal of the Tehani was 

improper, we need not reach Barnes’s constitutional 

arguments. As for the merits of the district court’s decision 

not to award maintenance, we lack appellate jurisdiction to 

review the orders denying summary judgment on that issue. 

We therefore consider whether mandamus relief is 

warranted. See Miller, 335 F.3d at 895 (“We can . . . treat 

the notice of appeal as a petition for a writ of mandamus

. . . .”). “Whether we construe the appeal as a writ of 

mandamus depends on whether mandamus is itself 

justified.” Hernandez v. Tanninen, 604 F.3d 1095, 1099 (9th 
BARNES V. SEA HAWAII RAFTING 29

Cir. 2010) (citing Z-Seven Fund, Inc. v. Motorcar Parts & 

Accessories, 231 F.3d 1215, 1219–20 (9th Cir. 2000)).14

We review a party’s entitlement to mandamus relief by 

weighing five factors:

(1) whether the petitioner has no other

adequate means, such as direct appeal, to 

obtain the desired relief; (2) whether the 

petitioner will be damaged or prejudiced in a 

way not correctable on appeal; (3) whether 

the district court’s order is clearly erroneous 

as a matter of law; (4) whether the district 

court’s order is an oft-repeated error or 

manifests a persistent disregard of the federal 

rules; and (5) whether the district court’s 

order raises new and important problems or 

issues of first impression.

United States v. U.S. Dist. Court, 694 F.3d 1051, 1057 (9th 

Cir. 2012) (citing Bauman v. U.S. Dist. Court, 557 F.2d 650, 

654–55 (9th Cir. 1977)). “These factors are not exhaustive,” 

In re Bundy, 840 F.3d 1034, 1041 (9th Cir. 2016) (citing In 

 14 Although Barnes did not indicate in his notice of appeal that he 

intended to appeal the district court’s failure to set a maintenance rate, 

he conspicuously raised the issue in his opening brief. Henry, in his 

answering brief, also addressed the issue. The trustee, although noting 

the issue, declined to address it, as it was not material to his arguments. 

We conclude that defendants therefore had notice of the appeal of the 

maintenance rate issue and are not prejudiced by our consideration of it. 

See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 691 (9th Cir. 1993) 

(concluding that the appellant’s opening brief was “enough to 

demonstrate that the appellee had notice of the issue and did not suffer 

prejudice from the appellant’s failure to specify the order in the notice of 

appeal” (citing Meehan v. County of Los Angeles, 856 F.2d 102, 105–06 

(9th Cir. 1988))).
30 BARNES V. SEA HAWAII RAFTING

re Cement Antitrust Litig., 688 F.2d 1297, 1301 (9th Cir. 

1982)), and need not all be met in order to grant mandamus 

relief, In re Benvin, 791 F.3d 1096, 1103 (9th Cir. 2015) (per 

curiam) (citing Bauman, 557 F.2d at 655). Where a district 

court has erroneously concluded that triable issues of fact 

exist, or “has misconceived the burden of proof at trial,” the 

district court’s denial of summary judgment “implicates 

Bauman factors.” Ho ex rel. Ho v. S.F. Unified Sch. Dist., 

147 F.3d 854, 861 (9th Cir. 1998).

A. Other Adequate Means of Relief

Barnes could not have immediately appealed the district 

court’s pretrial denials of summary judgment, which were 

not final orders.15 See Thomas, 818 F.3d at 874. 

Furthermore, although Barnes did not request certification of 

an interlocutory appeal under 28 U.S.C. § 1292(b), we 

seriously doubt that the district court would have granted 

such a request given the evidentiary nature of its rulings. In 

the district court’s view, Barnes was not entitled to 

maintenance due to evidentiary insufficiency rather than a 

controlling question of law as required by § 1292(b). Nor 

can Barnes seek review of the district court’s orders denying 

summary judgment after a trial on the merits and final 

judgment. See Ortiz v. Jordan, 562 U.S. 180, 183–84 

(2011). Thus, the first Bauman factor favors relief.

 15 Barnes sought permission to file an interlocutory appeal under 

§ 1292(a)(3) from the district court’s first order denying his motion for 

summary judgment to set a maintenance rate, but the district court denied 

this request after concluding that its ruling did not “finally determine . . . 

the parties’ rights and liabilities.”
BARNES V. SEA HAWAII RAFTING 31

B. Damage or Prejudice Correctable on Appeal

The second Bauman factor, whether the petitioner will 

be damaged or prejudiced in a way not correctable on appeal, 

“is closely related to the first.” In re Henson, 869 F.3d 1052, 

1058 (9th Cir. 2017) (citing Douglas v. U.S. Dist. Court, 

495 F.3d 1062, 1068 n.3 (9th Cir. 2007) (per curiam)). 

Without our intervention now, it is unclear whether there 

ever will be an appeal given Barnes’s extremely limited 

resources—he is currently homeless. Moreover, even if 

there is an appeal, relief will come long after Barnes was 

entitled to maintenance to cover his basic living expenses. 

Four years have passed since Barnes initiated this litigation, 

and over three years have passed since the district court

concluded that he was entitled to maintenance and had 

sufficiently demonstrated his actual expenses. Relief in a 

few more years will not redress his current need for 

assistance.

Although the timeliness of relief on appeal is an everpresent concern when a case proceeds to trial, this concern 

is of special import in the context of maintenance and cure. 

The shipowner’s duty to pay maintenance and cure is 

virtually automatic, regardless of negligence by the seaman 

or lack of negligence by the shipowner. Bertram v. Freeport 

McMoran, Inc., 35 F.3d 1008, 1013 (5th Cir. 1994); accord

Sana v. Hawaiian Cruises, Ltd., 181 F.3d 1041, 1044 (9th 

Cir. 1999). It “extends during the period when [the seaman] 

is incapacitated to do a seaman’s work and continues until 

he reaches maximum medical recovery.” Vaughan v. 

Atkinson, 369 U.S. 527, 531 (1962). There are three main 

reasons why courts impose this duty: “[t]he protection of 

seamen, who, as a class, are poor, friendless and 

improvident, from the hazards of illness and abandonment 

while ill in foreign ports; the inducement to masters and 
32 BARNES V. SEA HAWAII RAFTING

owners to protect the safety and health of seamen while in 

service; and maintenance of a merchant marine for the 

commercial service and maritime defense of the nation by 

inducing men to accept employment in an arduous and 

perilous service.” Id. (quoting Calmar S.S. Corp. v. Taylor, 

303 U.S. 525, 528 (1938)).

In line with these goals, admiralty procedure is designed 

to resolve a seaman’s dispute quickly and flexibly. See

Cont’l Grain Co. v. The Barge FBL-585, 364 U.S. 19, 25 

(1960); Farrell v. United States, 336 U.S. 511, 516 (1949) 

(“[T]he seaman’s right to maintenance and cure . . . is so 

inclusive as to be relatively simple, and can be understood 

and administered without technical considerations.”); 

Putnam v. Lower, 236 F.2d 561, 568 (9th Cir. 1956) 

(observing that “admiralty courts are flexible in operation”); 

cf. Atl. Sounding Co. v. Townsend, 557 U.S. 404, 423 (2009) 

(“[R]emedies for negligence, unseaworthiness, and 

maintenance and cure have different origins and may on 

occasion call for application of slightly different principles 

and procedures.” (quoting Fitzgerald v. U.S. Lines Co., 

374 U.S. 16, 18 (1963))).

For example, a complaint in admiralty is required to 

“state the circumstances from which the claim arises with 

such particularity that the defendant or claimant will be able, 

without moving for a more definite statement, to commence 

an investigation of the facts and to frame a responsive 

pleading.” Fed. R. Civ. P. Supp. Adm. & Mar. Cl. R. 

E(2)(a). In addition, “the special needs of expedition that 

often arise in admiralty justify . . . the practice” of allowing 

the plaintiff to serve interrogatories with the complaint and 

requiring the defendant to answer the interrogatories when 

answering the complaint. Id. R. C(6), advisory committee’s 

note to 2000 amendment. These rules favoring expediency 
BARNES V. SEA HAWAII RAFTING 33

supplant inconsistent provisions in the Federal Rules of Civil 

Procedure. See id. R. A(2).

In light of admiralty’s singular concern for the 

expeditious resolution of a seaman’s claims for maintenance 

and cure, and Barnes’s current need for financial assistance 

to meet his daily living expenses, the second Bauman factor 

favors mandamus relief.

C. Clear Error

The third Bauman factor is whether the district court 

clearly erred as a matter of law. “Where a petition for 

mandamus raises an important issue of first impression, 

however, a petitioner need show only ‘ordinary (as opposed 

to clear) error.’” San Jose Mercury News, Inc. v. U.S. Dist. 

Court, 187 F.3d 1096, 1100 (9th Cir. 1999) (quoting 

Calderon v. U.S. Dist. Court, 134 F.3d 981, 983 (9th Cir. 

1998)). Even if we have never squarely addressed an issue, 

a district court’s ruling still can be clearly erroneous if 

contrary to an “unbroken string of authorities” from other 

jurisdictions. See id. at 1102.

1.

A question that has divided district courts in this circuit 

is the appropriate legal standard to adopt in a pretrial motion 

for maintenance and cure. See Best v. Pasha Haw. Transp. 

Lines, LLC, No. 06-634, 2008 WL 1968334, at *1 (D. Haw. 

May 6, 2008) (“District Courts in the Ninth Circuit have not 

been consistent in their treatment of motions for 

maintenance and cure. Some courts apply the summary 

judgment standard, even when the seaman is the moving 

party, while other courts have found that the summary 

judgment standard is inappropriate in such circumstances 

because it does not account for the flexible approach courts 
34 BARNES V. SEA HAWAII RAFTING

should take in admiralty law cases and the deference courts 

should provide to seamen.”). There is inherent tension 

between the law of admiralty, with its solicitude for seamen, 

and the Federal Rules of Civil Procedure.16

Under the Federal Rules, a plaintiff seeking summary 

judgment on a claim “must offer evidence sufficient to 

support a finding upon every element of his [or her] claim” 

other than elements admitted by the defendants. Watts v. 

United States, 703 F.2d 346, 347 (9th Cir. 1983) (quoting 

United States v. Dibble, 429 F.2d 598, 601 (9th Cir. 1970)). 

There cannot be a “genuine dispute as to any material fact.” 

Fed. R. Civ. P. 56(a). Rule 56 “authorizes summary 

judgment only where . . . it is quite clear what the truth is.” 

Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467 

(1962) (internal quotation marks omitted) (quoting Sartor v. 

Ark. Natural Gas Corp., 321 U.S. 620, 627 (1944)). It is 

ordinarily a “heavy burden” for the plaintiff. Ambat v. City 

& County of San Francisco, 757 F.3d 1017, 1031 (9th Cir. 

2014). “Reasonable doubts as to the existence of material 

factual issue are resolved against the moving part[y] and 

inferences are drawn in the light most favorable to the nonmoving party.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 

1134 (9th Cir. 2000).

Admiralty’s approach, on the other hand, is “to do justice 

with slight regard to formal matters.” Cont’l Grain, 364 U.S. 

at 25 (quoting Point Landing, Inc. v. Ala. Dry Dock & 

Shipbuilding Co., 261 F.2d 861, 866 (5th Cir. 1958)). The 

administration of maintenance should be “easy and ready,” 

with “few exceptions or conditions to stir contentions, cause 

delays, and invite litigations.” Vella v. Ford Motor Co., 

 16 The district court here, while commenting on this tension, found 

it unnecessary to resolve.
BARNES V. SEA HAWAII RAFTING 35

421 U.S. 1, 4 (1975) (quoting Farrell, 336 U.S. at 516). 

Given these concerns, courts sometimes decline to resolve a 

pretrial motion for maintenance and cure under a summary 

judgment standard. See, e.g., Connors v. Iqueque 

U.S.L.L.C., No. 05-334, 2005 WL 2206922, at *2 (W.D. 

Wash. Aug. 25, 2005) (“[T]he Supreme Court’s instructions 

to construe claims for maintenance and cure liberally in 

favor of seamen counsel against applying the rigid standards 

of Rule 56 to a pretrial motion to compel maintenance and 

cure.”).17

Despite the tension between Rule 56 and admiralty 

procedure, the two standards are not incompatible. Although 

it is ordinarily difficult for a plaintiff to prevail on a motion 

for summary judgment, the seaman seeking maintenance has 

an easier task as a result of the breadth of the shipowner’s 

duty. To establish his entitlement to maintenance, the 

seaman need only prove that he “bec[ame] ill or . . . injured 

while in the service of the ship.” Vella, 421 U.S. at 3. The 

shipowner’s duty to pay maintenance “arises irrespective of 

the absence of shipowner negligence and indeed irrespective 

of whether the illness or injury is suffered in the course of 

 17 In addition, several courts have deviated from the summary 

judgment standard where a shipowner unilaterally terminates 

maintenance payments upon the belief that the seaman has reached 

maximum cure, leading the seaman to move to reinstate such payments. 

See Robb v. Jantran, Inc., No. 15-162, 2016 WL 2986233, at *2 (N.D. 

Miss. May 6, 2016) (collecting cases from the Ninth Circuit); Dean v. 

Fishing Co. of Alaska, Inc., 300 P.3d 815, 824 (Wash. 2013) (adopting 

the approach of district courts in the Ninth Circuit). These courts take 

the approach that absent a trial, the shipowner must reinstate payments 

“unless the shipowner can provide unequivocal evidence that the seaman 

has reached maximum cure.” Dean, 300 P.3d at 824. As we are not 

faced with a motion for reinstatement or a dispute over whether Barnes 

has reached maximum cure, we do not pass on the appropriateness of the 

standard adopted by these courts.
36 BARNES V. SEA HAWAII RAFTING

the seaman’s employment.” Id. at 4. “[S]o broad is the 

shipowner’s obligation” that even “negligence or acts short 

of culpable misconduct on the seaman’s part will not relieve 

(the shipowner) of the responsibility.” Id. (quoting Aguilar, 

318 U.S. at 730–31).

In sum, the liberal admiralty policies and 

correspondingly rudimentary elements of a maintenance 

claim mean that, in practice, a seaman will have little 

difficulty demonstrating his entitlement to maintenance 

under a summary judgment standard. Accordingly, “[a] 

seaman’s initial entitlement to maintenance and cure . . . can 

properly be resolved on summary judgment,” Dean, 

300 P.3d at 822, as evidenced by the “numerous federal 

district courts” to have done so, id. at 821 (citing cases); see 

also Glynn v. Roy Al Boat Mgmt. Corp., 57 F.3d 1495, 1505–

06 (9th Cir. 1995) (upholding the denial of summary 

judgment where there was a factual dispute over whether the 

“alleged accident aboard the [vessel] even occurred”), 

abrogated on other grounds by Atlantic Sounding; Robb, 

2016 WL 2986233, at *2 (collecting cases and adopting the 

approach of courts that construe pretrial requests for 

maintenance and cure under a summary judgment 

standard).18

 18 The Supreme Court’s statement that “ambiguities or doubts . . .

are resolved in favor of the seaman,” Vaughan, 369 U.S. at 532, 

concerned the seaman’s entitlement to maintenance at trial, not at 

summary judgment. Because the summary judgment standard is 

compatible with a seaman’s claim for maintenance, we see no reason to 

modify the summary judgment standard in this way. Any such 

modification would run contrary to the stated purpose of the 1966 

integration of admiralty and civil rules. See 14A Wright et al., § 3671.4 

(“[I]n view of the 1966 integration of admiralty and civil rules, procedure 

in admiralty . . . should be the same as in cases in law and equity unless 
BARNES V. SEA HAWAII RAFTING 37

The summary judgment standard is also capable of 

governing disputes over the amount of maintenance. The 

burden-shifting framework we adopt is a familiar mode of 

analysis at the summary judgment stage in other contexts, 

see, e.g., Hardie v. Nat’l Collegiate Athletic Ass’n, 876 F.3d 

312, 323–24 (9th Cir. 2017) (affirming grant of summary 

judgment where there was no genuine issue of material fact 

at each step of the disparate-impact analysis), and has been 

successfully employed by district courts in this circuit to 

determine a maintenance amount, see, e.g., Sabow v. Am. 

Seafoods Co., 188 F. Supp. 3d 1036, 1044–45 (W.D. Wash. 

2016).

We recognize that the denial of summary judgment as to 

a maintenance amount could delay the seaman’s recovery of 

maintenance that is owed to him and thereby undermine the 

remedy’s “easy and ready administration.” Vella, 421 U.S. 

at 4. This problem, however, can be mitigated in two ways. 

First, as we explain, a seaman who demonstrates his 

entitlement to maintenance and actual expenses need not 

wait until trial to receive the portion of those expenses to 

which he is undisputedly entitled. See Fed. R. Civ. P. 56(g) 

(“If the court does not grant all the relief requested by the 

motion [for summary judgment], it may enter an order 

stating any material fact—including an item of damages or 

other relief—that is not genuinely in dispute and treating the 

fact as established in the case.” (emphasis added)). Second, 

a district court may on its own or at the seaman’s request 

sever the issue of maintenance and hold an expedited trial on 

that claim under Federal Rule of Civil Procedure 42(b). See

Tate v. Am. Tugs, Inc., 634 F.2d 869, 871 (5th Cir. Unit A 

 a strong policy or statute prevents this uniformity of treatment.” (quoting 

United States v. Article Consisting of 216 Cartoned Bottles, More or 

Less, Sudden Change, 288 F. Supp. 29, 32 (E.D.N.Y. 1968))).
38 BARNES V. SEA HAWAII RAFTING

Jan. 1981) (“[The seaman] may . . . ask for severance of the 

maintenance claim and an expedited trial of it by the court.” 

(citing Caulfield v. AC&D Marine, Inc., 633 F.2d 1129, 

1133 (5th Cir. Unit A Jan. 1981))).

In light of these safeguards, we conclude that the 

summary judgment standard properly governs a pretrial 

request to set a maintenance amount. See 1B Benedict et al., 

supra, § 51 (“The amount to which an injured or ill seaman 

is entitled [for maintenance and cure] . . . [may] be 

determined by the court on a motion for summary judgment 

where the ‘extraneous materials’ in support of the motion 

‘establish with certainty that there is no triable issue of 

fact.’”). We now turn to the application of that standard.

2.

In evaluating the amount of maintenance to award, the 

district court stated that it was applying the standard 

articulated by the Fifth Circuit in Hall v. Noble Drilling 

(U.S.) Inc., 242 F.3d 582 (5th Cir. 2001). Under Hall, a 

seaman-plaintiff seeking maintenance “is entitled to the 

reasonable cost of food and lodging, provided he has 

incurred the expense.” 242 F.3d at 587. The plaintiff’s 

actual expenses are presumptively reasonable, subject to an 

adjustment upwards or downwards if the court determines 

that the actual costs were more or less than an objectively 

reasonable amount. See id. at 590.

The burden is on the plaintiff to “present evidence to the 

court that is sufficient to provide an evidentiary basis for the 

court to estimate his actual costs.” Id. In light of admiralty’s 

goal of an expedient remedy for the seaman, his evidentiary 

burden “is ‘feather light,’ and a court may award reasonable 

expenses, even if the precise amount of actual expenses is 

not conclusively proved.” Id. at 588 (quoting Yelverton v. 
BARNES V. SEA HAWAII RAFTING 39

Mobile Labs., Inc., 782 F.2d 555, 558 (5th Cir. 1986)). “If 

the plaintiff presents no evidence of actual expenses,” 

however, “the plaintiff may not recover maintenance.” Id.

at 590. But if the plaintiff does provide evidence of actual 

expenses, “the court must determine the maintenance award” 

by “compar[ing] the seaman’s actual expenses to reasonable 

expenses,” and awarding the lower amount unless “the 

plaintiff’s actual expenses were inadequate to provide him 

with reasonable food and lodging.” Id. Thus, a thrifty 

seaman will normally be entitled to his actual expenses.

Hall explained how the district court should calculate a 

reasonable maintenance rate:

In determining the reasonable costs of food 

and lodging, the court may consider evidence 

in the form of the seaman’s actual costs, 

evidence of reasonable costs in the locality or 

region, union contracts stipulating a rate of 

maintenance or per diem payments for 

shoreside food or lodging while in the service 

of a vessel, and maintenance rates awarded in 

other cases for seamen in the same region.

Id. Importantly, “[a] seaman need not present evidence of 

the reasonable rate; a court may take judicial notice of the 

prevailing rate in the district.”19 Id.

 19 From the 1940s until the 1980s, the reasonable rate was generally 

held by courts to be eight dollars per day, despite the deteriorating value 

of that fixed amount over four decades. See Gardiner v. Sea-Land Serv., 

Inc., 786 F.2d 943, 946 (9th Cir. 1986). More recently, “courts have 

allowed [a] seaman to prove that higher costs of living require a higher 

maintenance amount.” 8 Benedict et al., supra, § 10.02[C][4].
40 BARNES V. SEA HAWAII RAFTING

Courts and commentators roundly cite the Fifth Circuit’s 

approach. E.g., Block Island Fishing, Inc. v. Rogers, 

844 F.3d 358, 365 (1st Cir. 2016) (“In this circuit, as in 

numerous sister circuits, the norm is to award an injured 

seaman maintenance and cure payments in the amount of his 

actual living expenses.” (citing, inter alia, Hall)); 2 Robert 

Force & Martin J. Norris, The Law of Seamen § 26:27 (5th 

ed. 2016) (citing Hall with approval); 1B Benedict et al., 

supra, § 51 (setting forth Hall standard). Some describe it 

as a burden-shifting test under which the plaintiff “must 

bring forth prima facie evidence of his expenses,” and, if he 

does, “[t]he burden of rebuttal then shifts to the defendant.” 

1 Schoenbaum, supra, § 6-32; accord Incandela v. Am. 

Dredging Co., 659 F.2d 11, 14 (2d Cir. 1981) (holding that 

“a seaman makes out a prima facie case on the maintenance 

rate question when he proves the actual living expenditures 

which he found it necessary to incur during his 

convalescence,” at which point “the burden shift[s] to the 

defendant to demonstrate that plaintiff’s actual expenditures 

were excessive, in light of any realistic alternatives for room 

and board available to him in [the locality]”). We agree with 

Hall and expressly adopt Incandela’s burden-shifting 

framework for determining a maintenance amount.

3.

In ruling on Barnes’s first motion for summary 

judgment, the district court found that he established both his 

entitlement to maintenance and his actual living expenses of 

$68 per day. Under Hall, a decision which has gained 

widespread acceptance outside this circuit and which the 

district court purported to apply, defendants had the burden 

of showing that $68 per day was unreasonable.

Defendants submitted no such evidence. Therefore, 

Barnes carried his summary judgment burden of establishing 
BARNES V. SEA HAWAII RAFTING 41

that no genuine issue of material fact existed as to the 

reasonableness of his actual expenses. The district court 

should have awarded Barnes $68 per day unless it 

independently determined that that amount was 

unreasonable. See Hall, 242 F.3d at 590. Instead, the district 

court faulted Barnes for “fail[ing] . . . to provide . . . 

evidence regarding the current costs of food and lodging in 

[his locality] such that the Court can make a determination 

as to the reasonable costs in the area.” This was clear error. 

See Incandela, 659 F.2d at 14 (“[T]o require every injured 

seaman seeking a court award for maintenance to go to the 

expense of putting on expert witnesses before he will be 

permitted to recover more than a fixed nominal maintenance 

rate would be to place an unfair burden on those whom the 

idea of maintenance was designed to assist.”).

After the district court denied Barnes’s motion for 

reconsideration, Barnes moved for summary judgment a 

second time. This time, defendants produced evidence that 

the reasonable cost of living in Barnes’s locality was 

between $24 and $34 per day. Barnes, in contrast, produced 

evidence that the reasonable rate was between $43 and $61 

per day. Citing Glynn, the district court concluded that the 

dispute over a reasonable daily maintenance rate precluded 

summary judgment. The court subsequently denied 

Barnes’s motion for reconsideration, in which he requested 

maintenance at the rate of $24 per day—the lowest end of 

the range of reasonable rates offered by defendants—subject 

to modification after trial. Barnes repeated this request in 

his third motion for summary judgment, but the district court 

again denied it.

Like the denial of Barnes’s first motion for summary 

judgment, these later denials of summary judgment 

constituted clear error. The district court reasoned that a 
42 BARNES V. SEA HAWAII RAFTING

genuine issue of fact existed as to whether Barnes was 

entitled to maintenance at a rate of at least $24 per day 

because Barnes did not agree that $24 per day was 

reasonable. But Hall, which provided the applicable 

substantive standard at summary judgment, held that 

“seamen are entitled to maintenance in the amount of their 

actual expenses on food and lodging up to the reasonable 

amount for their locality.” 242 F.3d at 590 (emphasis 

added). Regardless of whether $24 per day is ultimately 

proven to be reasonable at trial, there is no dispute that the 

reasonable rate is at least $24 per day. Because Barnes is 

entitled to maintenance up to the reasonable rate, there is no 

dispute, let alone a genuine dispute, that he is entitled to 

maintenance at a rate of at least $24 per day.

In fact, Barnes is entitled to more than $24 per day. As 

we have explained, defendants had the burden of 

demonstrating that his actual expenses were unreasonable. 

Defendants produced evidence that the reasonable daily rate 

for living expenses in Barnes’s locality ranges from $24 per 

day to $34 per day. Thus, defendants produced no evidence 

disputing the reasonableness of a maintenance award in the 

amount of $34 per day; to the contrary, the evidence 

produced by defendants supported the reasonableness of a 

$34 daily rate. Accordingly, there is no genuine issue of fact 

as to Barnes’s entitlement to maintenance in the amount of 

at least $34 per day.20

 20 To the extent that Barnes’s specific requests for maintenance of 

$24 per day pending trial amounted to a form of concession, courts are 

“not bound by a party’s concession as to the meaning of the law.” United 

States v. Calvillo-Palacios, 860 F.3d 1285, 1289 n.4 (9th Cir. 2017) 

(quoting United States v. Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006) (en 

banc)).
BARNES V. SEA HAWAII RAFTING 43

Glynn is not to the contrary. There, we recognized that 

summary judgment would have been premature because the 

district court concluded “there was a material issue of fact 

about whether Glynn was entitled to maintenance and cure.” 

57 F.3d at 1505 (emphasis added). In particular, we 

explained that “whether Glynn’s alleged accident aboard the 

[vessel] even occurred was a disputed issue of fact that had 

to be determined before Glynn could prevail on his claim.” 

Id. at 1505–06. Glynn is inapposite when, as here, it is 

undisputed that a seaman is entitled to maintenance and has 

sufficiently demonstrated his actual expenses.

Finally, we note that under the district court’s view of 

Hall, an injured seaman would be faced with a Hobson’s 

choice: He could either stipulate to the reasonableness of the 

rate supported by the shipowner’s evidence and thereby give 

up the possibility of proving a higher rate at trial, or he could 

decline to do so, in which case he would not receive 

payments for basic living expenses until after trial. Such a 

predicament is antithetical to the admiralty policies 

underlying the seaman’s right to maintenance and cure. We 

cannot countenance a rule under which “uncertainty would 

displace the essential certainty of protection against the 

ravages of illness and injury that encourages seamen to 

undertake their hazardous calling.” Vella, 421 U.S. at 4.

Because the district court clearly erred in applying Hall, 

the third Bauman factor favors granting the writ.

D. Remaining Factors

The remaining factors also support mandamus relief. 

Barnes moved the district court to set a maintenance rate on 

four separate occasions. The district court denied the first 

three of these motions and deemed the fourth withdrawn in 

light of the bankruptcy stay. Thus, the district court’s error 
44 BARNES V. SEA HAWAII RAFTING

was “oft-repeated.” And lastly, because we had not yet 

considered the application of Hall or expressly adopted the 

Incandela burden-shifting framework for determining a 

maintenance amount, the questions involved are ones of first 

impression.

V.

Conclusion

Barnes, having undertaken a dangerous profession at sea, 

was entitled to reimbursement from the Tehani for his living 

and medical expenses while recovering from his injuries in 

its service. More than that, he was entitled to be reimbursed 

quickly. “The adequate protection of an injured or ill 

seaman against suffering and want requires more than the 

assurance that he will receive payments at some time in the 

indefinite future. Payments must be promptly made, at a 

time contemporaneous to the illness or injury.” Crooks v. 

United States, 459 F.2d 631, 634–35 (9th Cir. 1972) (quoting 

Vaughan, 369 U.S. at 537–38 (Stewart, J., dissenting on 

other grounds)). Yet after more than five years, Barnes is 

still waiting. We urge the district court to move quickly 

upon remand.

The trustee’s motion to dismiss the appeal against the 

Tehani is denied. We reverse the district court’s order 

dismissing the Tehani for lack of jurisdiction. We issue a 

writ of mandamus directing the district court to award 
BARNES V. SEA HAWAII RAFTING 45

Barnes maintenance at the rate of $34 per day, subject to a 

potential upward modification after trial.21

REVERSED in part and REMANDED; 

MANDAMUS GRANTED.

 21 It appears that prior to this appeal, the district court was on track 

to sever the issue of maintenance and cure and set it for trial. We 

commend this approach and encourage the court and the parties to 

continue to pursue it expeditiously on remand.