IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

EARNEST E. WARHURST, JR., )

)

Plaintiff, )

)

v. ) Civil Action No. 14-00245-N

)

ONE TWENTY FOOT BERTRAN, 1969 ) IN ADMIRALTY

Model Year, bearing Alabama )

Registration No. AL8238LM, her )

engines, tackle, equipment, )

appurtenances, and attached travel )

trailer, etc., in rem, and DAVID L. )

JONES, in personam, )

)

Defendants. )

ORDER

This action is before the undersigned United States Magistrate Judge for 

final disposition, with the express written consent of the parties, pursuant to 28 

U.S.C. § 636(c). See Docs. 15, 16. This lawsuit was tried before the Court, without a 

jury, December 30, 2014. (Doc. 62). Present at the trial were the following: 

plaintiff, Eugene Warhurst, Esq., along with his counsel of record, Gregory 

Buffalow, Esq., and defendant/counter-plaintiff David Jones, along with his counsel 

of record, Daniel Sayers, Esq. 

In rendering judgment following a non-jury trial, FED. R. CIV. P. 52(a)

requires the Court to make specific findings of fact and to state conclusions of law 

separately. The rule “does not require a finding on every contention raised by the 

parties,” but requires the Court to provide sufficient detail demonstrating that care 

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was taken in ascertaining and analyzing the facts necessary to the decision and to 

provide “sufficient particularity” to facilitate meaningful review. Feazell v. 

Tropicana Prods., Inc., 819 F.2d 1036, 1042 (11th Cir. 1987). Thus, in accordance 

with the requirements of Rule 52(a), having heard and considered all of the 

testimony1, evidence, and arguments presented at trial, the Court now enters the 

following findings of fact and conclusions of law.

I. Background and Principal Contentions of the Parties

This case involves the possession of a 20-foot Bertram2 watercraft, 1969

Model Year, bearing Alabama Registration No. AL8238LM (hereafter “the 

Bertram”, “the boat”, or “the vessel”) and sued here in rem. The value of the vessel 

is estimated at $15,000. See Doc. 1 at 4. The parties do not contest title to the boat, 

which lies with Plaintiff Earnest Warhurst (hereafter “Plaintiff”). Rather, the 

parties contest possession of the boat, and Defendant David Jones (hereafter 

“Defendant”) brings a counterclaim seeking payment for repairs made to the boat.3

The boat is currently under the arrest of the United States Marshal. (Doc. 2).

Prior to being arrested, it was in the possession of the Defendant since at least June 

2013 for the purposes of making repairs.4 (Doc. 1 compare Doc. 9). The Plaintiff 

 1 The following three witnesses testified at trial: Adam Beech, Eugene Warhurst, and David Jones.

2 The docket sheet and parties’ filings identify the vessel as a “Bertran.” The Court understands the 

boat to be the common make “Bertram.” In either case, the boat is identifiable by its Alabama 

registration number.

3 In the Amended Counterclaim , Jones seeks “$4,155.00 in work and labor plus $10.00 per day in 

storage from October 10, 2013 to date.” (Doc. 31)

4 Adam Beech testified that the Bertram sank on June 3, 2013, while moored in Plaintiff Warhurst’s 

boat slip.

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contends that he has fully paid for all repairs made by the Defendant and brings 

this Rule D Possessory action in order to restore his possession of the Bertram. The 

Plaintiff contends that the Defendant continues to withhold his boat (up until the 

time of arrest) despite requests for return. (Doc. 1 at 3).

In response, the Defendant5 contends that he is owed $4,1550.00 for repairs 

and improvements made to the boat. (Doc. 31 at 1). He further contends that his 

possession of the boat was based on a mechanic’s lien due to the Plaintiff’s nonpayment. (Doc. 9 at 3) Jones also seeks fees of $10.00 per day for storing the boat 

from October 10, 2013 to June 6, 2014. (Doc. 31 at 2).

II. Jurisdiction

Venue and personal jurisdiction are proper because the events giving rise to 

this claim occurred in the Southern District of Alabama (Baldwin County). Whether 

subject-matter jurisdiction is proper has been a significant source of contention in 

this case. (See Docs. 23, 36, 27). After ordering briefing and hearing oral arguments 

of counsel, the undersigned ultimately concluded that this Court has 

admiralty/maritime jurisdiction in this case pursuant to 28 U.S.C. § 1333 (“The 

district courts shall have original jurisdiction ... [over a]ny civil case of admiralty or 

maritime jurisdiction . . .”).6

 

5 The counterclaim is treated by the Court as being originally brought by Pirate Marine, LLC, a 

joined real party in interest, which is wholly owned by Defendant David Jones and through which 

the repairs were made. Doc. 35; Doc. 31 at 1.

6 Plaintiff invokes in personam jurisdiction over Defendant David Jones, who appears to be an 

Alabama citizen like the Plaintiff. 

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“Under Rule D . . . a party can bring a claim for possession and to try title 

with respect to a vessel or other maritime property. ‘Petitory suits are suits in 

which it is sought to try the title to a ship independently of any possession of the 

vessel’ [while] ‘possessory actions are actions to recover vessels or other property to 

which an owner, seaman or lienor is of right entitled.’ ” Santiago v. Evans, 2012 WL 

3231025, at *3 (M.D. Fla. June 21, 2012) (quoting Thypin Steel Co. v. Asoma Corp., 

215 F.3d 273, 282 (2d Cir. 2000)), report and recommendation adopted, 2012 WL 

3231016 (M.D. Fla. Aug. 6, 2012), aff’d, 547 Fed. App’x 923 (11th Cir. Nov. 4, 2013) 

(per curiam).

As the former Fifth Circuit7 explained in Richard Bertram & Co. v. The 

Yacht, Wanda, also “a suit in the nature of a possessory or petitory action brought 

in admiralty by the plaintiff[,] . . . [t]he mere fact that a ship is involved will not 

bring [a] cause within the jurisdiction of the admiralty court.” 447 F.2d 966 (5th Cir. 

1971) at 967-68. Although, Plaintiff has alleged legal title to the defendant vessel

(as is required under Supplemental Admiralty Rule D, as opposed to merely 

alleging equitable interest in the vessel8), Defendant has answered that legal title to 

the vessel is not in dispute. (Doc. 54 at 1-2). Defendant has furthered answered that 

 7 The decisions of the former Fifth Circuit rendered prior to October 1, 1981, have been adopted as 

binding precedent by the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 

1981) (en banc).

8 “[T]he party urging arrest in the Rule D action must have legal title or a legal claim to possession 

in order for the Rule D arrest to stand.” Santiago, 2012 WL 3231025, at *7 (citing Gulf Coast Shell 

& Aggregate LP v. Newlin, 623 F.3d 235, 239 (5th Cir. 2010) (“[A]dmiralty has jurisdiction in a 

possessory suit by the legal owner of a vessel who has been wrongfully deprived of possession. A 

petitory action (to try title) under Rule D requires [a] plaintiff to assert a legal title to the vessel;

mere assertion of an equitable interest is insufficient.” (citations and internal quotation marks 

omitted))).

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his right to possession of the boat is based on a common-law lien, not the right of 

title; he contends that it is possession claims based on the right of title which are in 

the jurisdiction of the admiralty court. (Id.)

It does not appear, either from Rule D or from other court opinions, that 

dispute of legal title is required for Rule D possessory action. Rule D makes note 

both of actions for possession and of actions to quiet title. FED. R. CIV. P. SUPP. D (“. . 

. actions for possession, partition, and to try title . . .”). Additionally, the former 

Fifth Circuit has recognized that suits for possession based on the claimant’s right 

to title are properly within the admiralty jurisdiction of the federal judiciary. 

Gallagher v. Unenrolled Motor Vessel River Queen, 475 F.2d 117 (5th Cir. 1973) 

(citing Ward v. Peck, 59 U.S. 267 (1855)). A possessory suit will not lie to “enforce a 

merely equitable title of one out of possession.” Stathos v. The MARO, 134 F. Supp. 

330, 332 (E.D. Va. 1955); see also The Nellie T., 235 F. 117 (2nd Cir. 1916).

Admiralty jurisdiction also does not extend to a dispute over a contract to build a 

vessel, in part because the claimant has not yet possessed the vessel in question. 

Richard Bertram & Co. v. Yacht Wanda, 447 F.2d 966, 967 (5th Cir. 1971). Rather, 

a claimant must assert that he or she is the legal owner of a vessel and that he or 

she has been deprived of possession. Barsom v. P/V Aquidneck Ferry, 2013 WL 

5447551, at *2 (D.R.I. Sept. 30, 2013).

Other courts have found Rule D possessory jurisdiction in lienor-type 

situations such as that presented by Defendant’s mechanic’s lien. In Gallagher, the 

former Fifth Circuit found that jurisdiction was proper in a dispute as to who 

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should possess a boat following non-payment of slip rental. 475 F.2d 117, 118 

(1973). This set of facts is notably similar to the present case, where Defendant 

refused to release the Bertram due to unpaid repair bills. The fact that the opposing 

rights (mechanic’s lien) alleged by the Defendant are based on state law does not 

defeat admiralty jurisdiction. Rather, jurisdiction is proper in a Rule D possessory 

suit where the Plaintiff alleges “ownership, right to immediate possession, [and] an 

unlawful . . . detention by defendant . . .” Jones v. One Fifty Foot Gulfstar Motor 

Sailing Yacht, Hull No. 01, 625 F. 44, 47 (5th Cir. 1980). Here, the Plaintiff makes 

all those claims. (See Doc. 1 generally).

III. Procedural History

The Plaintiff filed a verified complaint on June 3, 2014, seeking immediate 

arrest of the Bertram. (Doc. 1). The arrest warrant issued on June 5, 2014, and was 

executed the following day. (Docs. 4,7). Sportsman’s Marine was appointed 

substitute custodian and has had physical possession of the boat since it was 

arrested. (Docs. 3, 6). The Plaintiff’s only claim for relief is that “the Court order 

that the possession of the said vessel be restored to the Plaintiff; and that Plaintiff 

have and receive such other, different and further relief to which it is entitled in the 

premises.” (Doc. 1 at 4). The Plaintiff contends, in sum, that possession is due to 

him because he has previously paid for the repairs performed by the Defendant. (Id.

at 3).

The Defendant responded that a Rule D suit was inappropriate on the facts of 

this case (addressed above in the “Jurisdiction” finding) and maintains that he 

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rightfully had possession of the boat based on a mechanic’s lien and a statutory lien 

under Ala. Code § 35-11-60 based on Plaintiff’s failure to pay for repairs to the boat. 

(Doc. 9 at 2-3). In his answer, Defendant brought a counterclaim on two counts. (Id.

at 4-5). In the first count, he sought payment from Plaintiff for unpaid repair bills of

$2,230.00 and for storage of the vessel for one year at $10.00 per day (from June 

2013 to June 2014, amounting to $3,650.00). (Id. at 4). In the second count, 

Defendant sought unspecified damages from substitute custodian Sportsman’s 

Marine and from the U.S. Marshal for alleged damage to a vehicle and Defendant’s 

yard caused during arrest of the vessel. (Id. at 5).

The Defendant voluntarily dismissed the second count of his counterclaim 

shortly after filing it, stating that he intended to bring the claim against 

Sportsman’s Marine and the U.S. Marshal in a different action. (Docs. 14, 17). The 

Defendant’s first claim was superseded by an amended counterclaim on August, 19, 

2014. This operative counterclaim seeks $4,155.00 in unpaid repair bills from 

Plaintiff, but seeks storage fees from only October 10, 2013 to the date of the 

vessel’s arrest (June 6, 2014). (Doc. 31 at 1). The counterclaim is treated by the 

Court as being originally brought by Pirate Marine, LLC, which wholly owned by 

the Defendant, because the repairs were done through Pirate Marine. (Doc. 35); see 

FED. R. CIV. P. 17(a)(3).

Plaintiff admits that he employed the Defendant to make repairs to the 

Bertram. (Doc. 36-1 at 2). However, he contends that he fully paid the Defendant 

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and that there was no agreement, express or implied, requiring payment for 

storage. (Id.)

IV. Findings of Fact and Conclusions of Law

A. Ownership of the Bertram

The Defendant does not dispute that the Plaintiff is the true owner of the 

Bertram and does not claim any ownership right or right to use the boat. Doc. 9 at 

3. As the undisputed true owner, the Plaintiff would normally be entitled to 

possession of the Bertram. See, e.g., Smith v. Purvis, 474 So. 2d 1131, 1132 (Ala. 

Civ. App. 1985). 

B. Statutory Lien

The Defendant advances two theories for acquiring a lien on the vessel. The 

first theory is a claim under Ala. Code § 35-11-60, which allows for a preferential 

lien for work performed on any watercraft in the state. The statute of limitations 

under Ala. Code § 35-11-60 is six months from the date the demanded payment was 

due. See, First Maryland Leasecorp. v. M/V Golden Egret, 764 F. 2d 749, 757 (11th. 

Cir. 1985); see also, The Edna, 185 F. 206 (S.D. Ala. 1911). The Defendant filed his 

answer and counterclaim arguing for a lien on June 23, 2014. (Doc. 9). The 

Defendant had previously issued several invoices to the Plaintiff through Pirate 

Marine. (See Doc. 68). The last one that has new charges on it, other than storage 

fees, is dated September 28, 2013. (Id. at 2 (Def. Ex. 2)). Based on that timeframe as 

a starting date, the six-month limitations period would have run on March 28, 2014. 

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Consequently, the Defendant did not bring his suit in time to procure a lien under 

Ala. Code § 35-11-60.

C. Mechanic’s Lien

The second theory advanced by the Defendant for procuring a lien is a 

common law mechanic’s lien. (Doc. 9 at 3). In Alabama, a mechanic’s lien exists at 

common law, which is distinct from the statutory lien; it is possessory and is lost 

upon release of the property. Peavy’s Service Center, Inc. v. Associates Financial 

Services Co., Inc., 335 So. 2d 169, 170 (Ala. Civ. App. 1976). The two liens serve the 

same purpose, but are “distinct and separate.” Id. The common law lien does not 

have the same limitations period, but rather holds “so long as the machine repaired 

is in the possession of the mechanic and his claim is due and unpaid.” Howell v. 

Dodd, 157 So. 211, 213 (Ala. 1934). The vessel was in the Defendant’s possession at 

the time of its arrest and the Defendant asserted his mechanic’s lien in court 

immediately upon the arrest. 

D. Breach of Contract

The elements of a contract are “(1) an offer and acceptance, (2) consideration, 

and (3) mutual assent to the essential terms of the contract.” Perkins v. Johnson, 

866 So. 2d 1146, 1149 (Ala. Civ. App. 2003) (citing Southern Energy Homes, Inc. v. 

Hennis, 776 So. 2d 105 (Ala. 2000). The elements of an ordinary breach of contract 

action are “(1) the existence of a valid contract binding the parties in the action, (2) 

his own performance under the contract, (3) the [other party’s] nonperformance, and 

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(4) damages.” Perkins, 866 So. 2d 1146, 1149 (citing Southern Med. Health Sys., Inc. 

v. Vaughn, 669 So. 2d 98, 99 (Ala. 1995)). 

There is no dispute that the two parties had a binding agreement with regard 

to the repair and improvement of the vessel. (See Doc. 36-1 at 2 (“It is admitted that 

David Jones, Jr. was employed . . . to make certain repairs [to the vessel]”)). The 

“essential terms” are supplied by the parties’ previous course of dealing (See 

Marshall Durbin Farms, Inc. v. Fuller, 794 So. 2d 320, 325 (Ala. 2000) (“A course of 

dealing ‘is relevant not only to the interpretation of express contract terms, but may 

[itself] constitute contract terms’ ” (internal citations omitted))) and by the 

Plaintiff’s assent to have his vessel repaired. See Hendrix, Mohr &Yardley, Inc. v. 

City of Daphne, 359 So. 2d 792, 795 (Ala. 1978) (“It is the settled law of this State 

that where one knowingly accepts services rendered by another, and the benefit and 

result thereof, the law implies a promise on the part of the one accepting with 

knowledge the services rendered by another to pay the reasonable value of such 

services rendered.” (internal citations omitted)). Additionally, there is no dispute 

that the Defendant completed his performance under the implied contract between 

the parties. The Plaintiff stated on the stand that the work was acceptable to him.9

What is disputed is whether the Plaintiff performed under the contract and whether

the Defendant is owed any damages. The Plaintiff contends that he has fully paid 

 9 Specifically, the Plaintiff testified that the livewell was good and that he inspected same and that 

Jones showed him all the switches. Plaintiff also concedes that he authorized replacement of the 

starter switch, and a new battery. Finally, plaintiff testified that he had no complaints about the 

work done by the Defendant in putting a mascerator pump into the fish box. 

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the Defendant (See Doc. 36-1 at 2), while the Defendant contends he is owed money 

for unpaid bills delivered to the Plaintiff. (See Doc. 31 at 1).

Based on the testimony of both the Plaintiff and the Defendant, it is the 

conclusion of the Court that the invoices submitted by the Defendant were in fact 

delivered to Plaintiff Warhurst and that they accurately reflect the work performed

by Defendant Jones. (See Doc. 68 at 1-2).

The first invoice (Def. Ex. 1) reflects several cash payments and offsets and, 

allowing for these, represents an outstanding balance of $2230.00. The second 

invoice (Def. Ex. 2) references the outstanding balance of the first invoice and 

represents an additional balance of $1925.00 in unpaid repairs, for a total of 

$4155.00. The second invoice also includes a disclaimer at the bottom that “Any 

boat not paid for are picked up within 10 days of bill date will be charged $10 per 

day in storage.” (sic) (Doc. 68 at 2).10 The third, fourth, and fifth invoices are 

identical to the second except that they add additional charges for storage of the 

boat, consistent with the disclaimer included on the second invoice. (Id. at 3-5).

The only proof of payment made by the Plaintiff is a check for $800.00 that 

the Defendant Jones made out to himself from the bank account of the LLC, which 

was jointly owned by the Plaintiff and the Defendant for the purposes of carrying 

out a charter fishing enterprise on a different vessel, the M/V Wishbone. See, Doc. 

68 at 9 (Def. Ex. 9, Plaintiff’s Trial Ex. 1).11 The parties agreed at trial that the 

 10 The Court assumes that “are” in this disclaimer is meant to be either “or” or “and”.

11 Plaintiff maintains that the Bertram was used to support a charter fishing operation. Namely, to 

deliver supplies, bait, etc. to the M/V WISHBONE. However, plaintiff Warhurst testified that he did 

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Plaintiff was responsible for contributing most, if not all, of the money in this bank 

account. Additionally, it was not the LLC that owed the Defendant for the repairs, 

but the Plaintiff personally. Consequently, the Court credits the full $800.00 toward 

the unpaid repair bills.

The Defendant testified that the Plaintiff had paid for the $300.00 starter 

included on the first invoice (Doc. 68 at 1) and that he (the Defendant) had not 

meant to include that line on the invoice. Since the Defendant admits that this 

amount was paid, it is also credited toward the repair bills. Subtracting both the 

starter ($300.00) and the check ($800.00), the unpaid repair bills are reduced to a 

total of $3055.00.

E. Storage Fees

The Plaintiff next contends that storage fees sought by the Defendant were 

never agreed to. (Doc. 36-1 at 2). However, the amended counterclaim seeks storage 

fees beginning from October 10, 2013, which is more than 10 days after the 

disclaimer given on the second invoice regarding storage. (See Doc. 31 at 1; Doc. 68 

at 2). Additionally, such storage fee warnings are typical practice in the boat repair 

business, as shown by the invoice from Pro Tec Marine for the Defendant’s purchase 

of parts for the Bertram. (Doc. 68 at 8 (Def. Ex. 6)) (“Any boat left 10 days after 

completion or refusal of work will be charged $10.00 a day storage.”) The Plaintiff 

had more than ten days to pay the outstanding bills and collect his boat, but he did 

 

not recall the dates he used the Bertram to deliver ice/bait to the M/V Wishbone and conceded on 

cross-examination that he was unsure if he in fact used his Boston Whaler or the Bertram for the 

delivery. He further testified that the Bertram was not in use (inoperable) June, July, August or 

September of 2013.

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neither. There is also no indication that the Plaintiff attempted to object to the 

imposition of storage fees during the 10-day period following the issuance of the 

second invoice. Consequently, the Court awards storage fees to the Defendant in the 

amount of $2,450.00 ($10.00 per day beginning on October 10, 2013, and ending on 

the day the vessel was arrested, June 6, 2014, a total of 245 days).

V. Conclusion

For the foregoing reasons, the Court finds in favor of Defendant/ 

Counterclaimant David Jones as to the claim for damages, in the amount of 

$5,505.00, consisting of $3055.00 in unpaid repair bills and $2,450.00 in storage 

fees. A separate judgment shall issue.

The substitute custodian, Sportsman’s Marine, is ORDERED to immediately 

release to Plaintiff Eugene Warhurst the vessel bearing Alabama Registration No. 

AL8238LM.

DONE and ORDERED this the 13th day of March 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

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