NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TMF TRUSTEE LIMITED,

Plaintiff

- Appellee, NOVELL INVESTMENTS, INC.; MONJASA LTD.; OCEAN ENERGY LTD.; DAN

- BUNKERING (MONACO) SAM; E.N. BISSO & SON, INC.; RILEY

SHERMAN SHIPPING AGENCY, INC.; COOPER/T. SMITH MOORING CO., INC.; BP MARINE LIMITED,

Interven o r - Plaintiff

s - Appellees,

v. M/T MEGACORE PHILOMENA, her engines, boilers, tackles, and other appurtenances, etc., in rem; HURRI CANE NAVIGATION, INC., a Marshall Islands Corporation, in personam,

Defendants

- Appellants. No. 18

- 56189 18

- 56561
D.C. No. 2:17

- cv - 09010

- AGR

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Alicia G. Rosenberg, Magistrate Judge, Presiding Argued and Submitted November 15, 2019

Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FI LED

NOV 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALSPage 2 of 5

Before: BERZON and WATFORD, Circuit Judges, and WHALEY, ** District Judge. Hurricane Navigation , Inc. (Hurricane) appeals from the interlocutory sale of
the M/T MEGACORE PHILOMENA and the entry of summary judgment in favor of TMF Trustee Limited (TMF). We affirm.
1. The district court did not abuse its discretion in ordering the interlocutory
sale of the ship. Courts may order an interlocutory sale if there has been “unreasonable delay in securing release of the property.” Fed. R. Civ. Proc. Supp. AMC Rule E(9)(a)( i )(C). Courts applying this rule have held that delays as short
as four months are unreasonable , even in instances where the owners are actively engaged in defending the underlying litigation

. E.g

. , Silver Star Enterprises, Inc.
v. M/V SARAMACCA , 19 F.3d 1008, 1014 (5th Cir. 1994) (seven months) ; Ferrous
Financial Services Co. v. O/S A R CTIC PRODUCER , 567 F. Supp. 400 , 401 (W.D. Wash. 1983) (four months); see also 8 Benedict on Admiralty § 23.48 . Here, by the time the court ordered the ship sold, over six months had passed since the ship’s arrest

. At that point, H urricane had still not posted a bond to secure the ship’s release, nor given any indication that it would be able to post such a bond.
This six

- month delay in securing the ship’s release was unreasonable, and o rdering

** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation.Page 3 of 5

the sale was thus permissible

. 2. T he district court properly granted summary judgment for TMF. It is undisputed that Hurricane failed to make the December 29, 2017, maturity payment on the loan, which constitute d a breach of contract independent from the security

- cover breach. Hurricane contends that its failure to make the maturity payment should not be considered a breach , but its arguments are unavailing. First, English law is clear that a wrongful acceleration, without more, has no contractual significance. Concord Trust v. Law Deb enture Trust Corp. PLC , [2005] UKHL 27 , [ 35]

– [37]

. E ven if Hurricane were correct that TMF’s allegedly wrongful acceleration and arrest of the ship breached the contract, Hurricane’s appropriate remedy would be to file a counterclaim. Id. [41]

. TMF’s allegedly wrongful acceleration notice did not absolve Hurricane of its obligation to make the final balloon payment on the loan , and Hurricane has presented no legal support for its contention that TMF ’s acceleration of the loan waived its right to enforce the maturity payment requirement. Second, Hurricane has not raised a triable issue as to whether the ship’s allegedly wrongful arrest prevented Hurricane from making the final maturity payment. While Hurricane did produce signed Memoranda of Ag reement that evidenced a tentative sale of the PHILOMENA and the HONAMI, that agreement
had a closing date of November 15 , 2017

. I t is undisputed that the sale did notPage 4 of 5

close by that date. The PHILOMENA was not ordered arrested until December 15, 2017, a month after the closing date , so the ship’s arrest could not have interfered with Hurricane’s initial agreement to sell the ship

. Hurricane contends that the closing date had been extended to sometime
between December 2017 and January 2018

. T he distri ct court correctly held that Hurricane produced insufficient evidence to raise a triable issue of fact on this point. Hurricane’s only evidence of an extension consists of two statements in the declaration of Charilaos Loukopoulos

. T he declaration first assert s that “Borrowers advised the Lenders” that they had obtained an extension of the delivery date until “between 15 December and 15 January.” Even if we credit that the borrowers so advised the lenders, the district court correctly noted that this
statement does not attest to the truth of the underlying assertion

— namely, that the
sale had in fact been extended. At oral argument, Hurricane highlighted for the
first time a second statement in the Loukopoul os declaration : “t he Acceleration Notice prompted the arrest of the Megacore Philomena on December 15 (prior to the scheduled maturity) and cancelled the sale of the Vessels

. ” Hurricane contends
that we can infer from this statement that the cancellation date must have been
extended , but that inference is too tenuous to survive summary judgment . The statement says that it was the Acceleration Notice, dated October 20, 2017, not the arrest, that “cancelled the sale,” an assertion that suggests that there w as not anPage 5 of 5

extension past November 15, not that there was. And proof that the extension
occurred lay entirely within Hurricane’s control. 1
3. Hurricane argues that TMF’s unclean hands in securing the ship’s arrest equitably prevent it from recovering

. This argument fails for the same reason
discussed above : Hurricane has not shown that the arrest caused its later failure to
make the maturity payment. TMF is therefore not profiting from its alleged wrongdoing , but r ather recovering based on a second , independent breach.
Because Hurricane did not establish a causal connection between the arrest and
Hurricane’s failure to make its final payment, the doctrine of unclean hands does not bar TMF’s recovery.
AFFIRMED.

1 The English High Court of Justice’s recent opinion in TMF Trustee Limited v. Fire Navigation Inc. , [2019] EWHC 2918 (Comm), is not helpful to Hurricane’s cause, as the court there assumed the evidence would show that the ship’s arrest caused the later breach, id. [12], whereas the court here correctly concluded that such evidence was lacking.