Puerto Rico Ports Authority v. Barge Katy-B, O.N. 606665

United States Court of Appeals
For the First Circuit

No. 05-1016

PUERTO RICO PORTS AUTHORITY,
Petitioner, Appellant,

v.

BARGE KATY-B, O.N. 606665,
Defendant in Rem.

____________________

SALMON BAY BARGE LINE, INC.,
Intervenor, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

Before
Selya and Lynch, Circuit Judges,
and Restani,** Judge.

Lawrence I. Kiern, with whom H. Allen Black III, Gerald A.
Morrissey III, Winston & Strawn LLP, Jorge A. Fernández-Reboredo,
Luis O. Soto-Colón, and Rivera & Fernández-Reboredo, P.S.C. were on
brief, for appellant.
Christopher A. Abel, with whom Troutman Sanders LLP, Eugene F.
Hestres-Velez, and Bird, Bird & Hestres were on brief, for
appellee.

October 25, 2005

*
Chief Judge of the United States Court of International
Trade, sitting by designation.
 SELYA, Circuit Judge. In this interlocutory appeal,

which raises salient questions of both appellate jurisdiction and

admiralty law, the Puerto Rico Ports Authority (PRPA) seeks to stem

a tide of unfavorable rulings emanating from the district court.

After careful consideration, we affirm the district court's order

vacating PRPA's arrest of a vessel but dismiss the remainder of

PRPA's appeal for want of appellate jurisdiction.

I. BACKGROUND

For nearly four years, the barge KATY-B was moored at a

pier operated by PRPA. Pursuant to the terms of a lease with the

barge's owner, San Antonio Maritime Corporation (SAM), PRPA

assessed daily dockage charges against the barge. SAM refused to

pay these charges, citing its repeated complaints about PRPA's

ostensible failure to provide suitable terminal facilities.

In June of 2003, PRPA initiated a summary eviction

proceeding against SAM in a local court. For whatever reason, PRPA

did not include in its complaint a claim for the unpaid port

charges. SAM counterclaimed for damages associated with PRPA's

alleged breach of the lease. SAM also filed a complaint against

PRPA with the Federal Maritime Commission. See 46 U.S.C. app. §

1710(a).

In early 2005, PRPA told SAM that it preferred to have

the barge removed from the pier before the onset of the hurricane

season. Although SAM wanted to accommodate PRPA's request by

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selling the barge, there was a rub: PRPA's provision of services to

the barge had given rise to an inchoate maritime lien enforceable

against the barge even after a change in its ownership. See id. §

31342(a)(1); Piedmont & Georges Creek Coal Co. v. Seaboard

Fisheries Co., 254 U.S. 1, 12 (1920). This lien right discouraged

potential buyers since the fair market value of the barge was

around $500,000 while the unpaid port charges exceeded $1,700,000.

The barge's large negative equity greatly diminished the likelihood

of a sale.

It was against this background that Victor González,

SAM's president, and José Sarraga, SAM's attorney, met with Miguel

Castellanos, PRPA's general counsel, and Edwin Rodríguez, chief of

PRPA's maritime bureau. The avowed purpose of the meeting was to

ascertain PRPA's intentions concerning enforcement of its maritime

lien against the KATY-B. During this session, which took place in

March of 2004, Sarraga requested that PRPA waive its lien in

writing and agree to pursue the outstanding charges in the pending

eviction proceeding. Castellanos clearly understood that a letter

from PRPA disclaiming any objection to the sale of the barge and

stating that the unpaid port charges were the subject of ongoing

litigation would "facilitate or expedite" the barge's sale to a

third party.

On March 23, 2004, Rodríguez sent a letter to González.

The letter stated in pertinent part:

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 In accordance with the recommendation of our
General Legal Counsel, attorney Miguel
Castellanos, the P.R. Ports Authority has no
objection that your company sell the Barge . .
., and that the same sail out of the Bay of
San Juan. Both parties are aware that [the
unpaid port] charges are being controverted in
the [court] case pending before the Superior
Court of San Juan.

We would appreciate that once the sale is
finalized, that we be informed so we may
discontinue the daily invoicing.

It is true that this epistle did not contain language expressly

waiving the lien. It also is true that such express language is

the customary method of waiving a lien. Nevertheless,

Castellanos's testimony adequately evinces that PRPA understood the

import of the letter:

Q: You knew that the
representations in this letter
would be relied upon by whoever
purchased the vessel, didn't
you?

A. Yes.

Q. And you wanted whoever was going
to purchase the vessel to know
that they didn't need to worry
about their liability, or the
vessel[']s liability for the
port charges because those
charges were part of the court
case in the Superior Court of
San Juan, right?

A. Right.

González and Sarraga construed the letter as a waiver of

PRPA's maritime lien and an agreement that PRPA would prosecute its

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claim for the unpaid port charges exclusively in the local courts.

Relying on it, they represented to prospective purchasers that PRPA

had waived its maritime lien and would not seek to arrest the KATY-

B after a sale. In due course, SAM contracted with one such

prospective purchaser, Salmon Bay Barge Line (S-Bay), for a sale of

the barge. The purchase agreement recited that SAM and PRPA had

agreed to resolve any dispute as to accrued port charges in the

pending court proceedings and contained SAM's warranty that the

vessel was free of maritime liens. The evidence is uncontradicted

that S-Bay would not have entered into the purchase agreement but

for the March 23 letter.

The sale of the barge closed on June 3, 2004. The

following day, PRPA for the first time recorded its maritime lien

against the KATY-B. PRPA maintains that it did not know about the

sale of the barge when it prepared its notice of claim of lien.

The fact that it recorded its lien within twenty-four hours after

the closing was, in its words, a "mere coincidence." Nevertheless,

PRPA acknowledges both that it knew of SAM's ongoing efforts to

sell the barge and that it should have moved more celeritously to

record its lien.

Later that month, PRPA initiated an in rem action against

the KATY-B in the federal district court. The verified complaint

prayed for the arrest of the barge and a money judgment against the

barge in the amount of the accrued pre-sale port charges.

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Following the barge's arrest on July 1, 2004, S-Bay intervened in

the action and requested an expedited hearing on the propriety of

the arrest. See Fed. R. Civ. P. Supp. R. E(4)(f).1

On July 12, 2004, PRPA served an amended complaint. The

first count reiterated PRPA's prayer for in rem relief against the

KATY-B with respect to the unpaid pre-sale port charges. The

second count sought judgment against S-Bay for unpaid post-sale

port charges.

Rodríguez, Castellanos, González, and Sarraga all

testified at an evidentiary hearing held two days later. The

parties also introduced a number of exhibits, including a copy of

the March 23 letter from Rodríguez to González. The district

court, ruling ore sponte, made the following findings: (i) that

PRPA had an interest in the barge leaving San Juan prior to the

hurricane season; (ii) that the March 23 letter was specifically

intended to influence third parties who might be considering an

acquisition of the barge; (iii) that as to such third parties, the

letter constituted a waiver of PRPA's maritime lien against the

1
Supplemental Rule E(4)(f) applies to in rem admiralty
actions. It provides in pertinent part:

Whenever property is arrested or attached, any person
claiming an interest in it shall be entitled to a prompt
hearing at which the plaintiff shall be required to show
why the arrest or attachment should not be vacated or
other relief granted consistent with these rules.

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KATY-B; (iv) that S-Bay came within the scope of the waiver since

it purchased the barge in good faith and in reliance on the

representations made by SAM regarding the state of the barge's

title; (v) that SAM, in turn, had relied on PRPA's representations

as set forth in the letter; and (vi) that the letter did not waive

or otherwise diminish any of PRPA's underlying claims against SAM,

including those that might be brought in the pending eviction

proceeding, but only waived the right to enforce those claims

through the medium of a maritime lien. Premised on these findings,

the court vacated the writ of arrest. Relatedly, the court ruled

that S-Bay did not owe PRPA any pre-sale port charges or any port

charges for the period of the wrongful arrest. The court directed

S-Bay to post a bond to cover port charges for the period between

the date of the sale and the date of the arrest. Moreover, the

court noted that S-Bay would be responsible to PRPA for any port

charges incurred after the date of the hearing. The court also

awarded attorneys' fees to S-Bay based on what it regarded as

PRPA's bad faith conduct. Finally, the court retained jurisdiction

over any continuing aspects of the controversy.

Subsequent to the entry of the district court's order, a

series of events occurred. First, S-Bay and PRPA resolved the

dispute relating to post-sale port charges, and the barge sailed

out of San Juan. Second, S-Bay answered PRPA's amended complaint

and asserted a counterclaim for damages arising out of the wrongful

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arrest. Third, PRPA moved for reconsideration of key parts of the

district court's order, arguing that the court had erred in

quashing the arrest and that, in all events, PRPA had proceeded in

the utmost good faith. Unmoved, the district court upheld its

original order. PRPA v. Barge Katy-B, No. 04-1637 (D.P.R. Nov. 18,

2004) (unpublished).

This interlocutory appeal ensued. In it, PRPA asserts

that the district court erred in two principal respects, namely,

(i) in concluding that PRPA lacked a valid basis for arresting the

KATY-B and (ii) in finding that PRPA prosecuted the arrest in bad

faith. In the pages that follow, we address each of these

assertions.

II. THE WRIT OF ARREST

Before plunging into the validity of the vessel's arrest,

we first address two threshold issues: whether this portion of

PRPA's appeal is properly within our appellate jurisdiction and, if

so, whether the fact that the barge has departed the territorial

jurisdiction of the district court renders any portion of the

appeal moot. Only after clearing these hurdles do we examine the

merits of PRPA's plaint that the district court erred in vacating

the arrest.

A. Appellate Jurisdiction.

Inasmuch as the district court has not yet resolved all

of the claims before it — S-Bay's counterclaim remains pending

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below — the order appealed from is not a final order of the type

reviewable by courts of appeals under 28 U.S.C. § 1291. See Catlin

v. United States, 324 U.S. 229, 233 (1945) (holding that a final

order "generally is one which ends the litigation on the merits and

leaves nothing for the court to do but execute judgment").

Consequently, unless some other valid grant of appellate

jurisdiction pertains, this appeal is premature.

PRPA locates such a grant in 28 U.S.C. § 1292(a)(3),

which authorizes federal appellate courts to hear appeals from

"[i]nterlocutory decrees of . . . district courts or the judges

thereof determining the rights and liabilities of the parties to

admiralty cases in which appeals from final decrees are allowed."

An aggrieved party may take advantage of this special grant of

appellate jurisdiction by showing (i) that the order appealed from

is interlocutory and (ii) that it finally determines the rights and

liabilities of the parties as to a discrete issue. Martha's

Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and

Abandoned Steam Vessel, 833 F.2d 1059, 1063 (1st Cir. 1987). For

this purpose, determining the rights and liabilities of a party as

to a discrete issue contemplates that the order in question affects

substantive rights, not "merely procedural, tactical, or adjectival

entitlements." Id. If the order "lashes down the merits of some

particular claim or defense" advanced in the case in a way that

implicates the parties' substantive rights, the statute applies.

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Id. at 1064; see In re The S.S. Tropic Breeze, 456 F.2d 137, 139

(1st Cir. 1972) (holding that § 1292(a)(3) "applies to any decree

finally determining the liability of one of the parties, even if it

leaves open an issue which may . . . ultimately preclude recovery

by a particular plaintiff"). The order appealed from in this case

is plainly interlocutory, so we must train the lens of our inquiry

on whether it finally determines the merits of a particular claim

or defense.

Even before the 1926 enactment of section 1292(a)(3), the

Supreme Court made it pellucid that appellate jurisdiction existed

over an interlocutory order vacating a maritime arrest in an in rem

case. Rejecting the argument that such an order was "not final"

and therefore not immediately appealable, the Court reasoned:

The suit is in rem—is against the ship. The
decree holds for naught the process under
which the ship was arrested, declares she is
not subject to any such process and directs
her release—in other words, dismisses her
without delay. Thus the decree ends the suit
as effectually as if it formally dismissed the
libel. Obviously, therefore, it is final.

The Pesaro, 255 U.S. 216, 217-18 (1921). In our view, this

doctrine of effective finality has been codified by (or, at least,

survives) the enactment of section 1292(a)(3). See 29 James W.

Moore et. al., Moore's Federal Practice ¶ 710.04[1] (3d ed. 1997).

On that basis, then, interlocutory decrees vacating maritime

arrests in in rem actions, such as the decree involved in this

case, are immediately reviewable by the courts of appeals.

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 Even if the lines of The Pesaro were severed by the

subsequent enactment of section 1292(a)(3) — and we do not think

that is the case — PRPA still could fasten its appeal to the

jurisdictional mooring of the statute. It is axiomatic that an in

rem action against a vessel arises under the admiralty jurisdiction

of the federal courts, see The Moses Taylor, 71 U.S. (4 Wall.) 411,

427 (1866), thus coming within the overall class of cases to which

section 1292(a)(3) potentially applies. As said, the district

court's order vacating the arrest of the KATY-B is interlocutory

because it leaves unresolved part of the underlying action (S-Bay's

counterclaim). See, e.g., Martha's Vineyard Scuba Headquarters,

833 F.2d at 1064 (holding an order interlocutory within the meaning

of § 1292(a)(3) because it failed to address the parties' competing

claims to salvage rights); cf. Nichols v. Cadle Co., 101 F.3d 1448,

1449 & n.1 (1st Cir. 1996) (per curiam) (classifying a grant of

summary judgment as unappealable under § 1291 because certain

counterclaims remained unresolved). And unlike an order refusing

to vacate an arrest — which simply immobilizes the res pending a

plenary trial on the merits of the in rem claims — an order

vacating an arrest finally determines the rights and liabilities of

the parties within the meaning of section 1292(a)(3). See

Petroleos Mexicanos Refinacion v. M/T King A, 377 F.3d 329, 335-37

(3d Cir. 2004); Constructora Subacuatica Diavaz v. M/V Hiryu, 718

F.2d 690, 692 (5th Cir. 1983); cf. Swift & Co. Packers v. Compania

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Colombiana Del Caribe, 339 U.S. 684, 688-89 (1950) (distinguishing

between an order refusing to dissolve an attachment and an order

dissolving an attachment, and finding only the latter reviewable by

way of interlocutory appeal).

To sum up, the relevant portion of the district court's

order resolved the merits of PRPA's in rem claim against the barge.

No more is exigible to render that portion of the order both

effectively final and appealable under section 1292(a)(3).

B. Territorial Jurisdiction.

A second objection to our jurisdiction over this portion

of PRPA's appeal is that the sailing of the KATY-B from Puerto

Rico's territorial waters (and, thus, from the territorial

jurisdiction of the district court) demolished any foundation for

the continued exercise of in rem jurisdiction. This objection is

meritless.

To state the obvious, the valid seizure of a res is a

prerequisite to the initiation of an in rem action. Taylor v.

Carryl, 61 U.S. (20 How.) 583, 599 (1858) (explaining that in

admiralty cases the "seizure of the RES, and the publication of the

monition or invitation to appear, is regarded as equivalent to the

particular service of process in the courts of law and equity")

(emphasis in original). It does not follow, however, that a court

must have continuous possession of the res in order to maintain its

in rem jurisdiction. Jurisdiction is perfected by the initial

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seizure of the res and is generally not divested by the subsequent

relinquishment of control over it. See Republic Nat'l Bank v.

United States, 506 U.S. 80, 85 (1992); The Rio Grande, 90 U.S. (23

Wall.) 458, 463 (1875).

Of course, there are exceptions to this general rule.

One such exception holds that jurisdiction is terminated when the

res leaves the control of the court under circumstances in which a

subsequent judgment would be devoid of "any effect whatsoever" and,

therefore, "useless" to the prevailing party. Republic Nat'l Bank,

506 U.S. at 85 (citation omitted). That exception is inapposite

here: although the KATY-B has sailed from San Juan, a judgment in

PRPA's favor would not be useless because it could serve as a basis

either for re-arresting the barge at any American port or for an in

personam action against the barge's owner. See Bargecarib Inc. v.

Offshore Supply Ships, Inc., 168 F.3d 227, 231 (5th Cir. 1999).

A second exception holds that jurisdiction lapses if and

when the petitioner voluntarily abandons its quest at some point

after effecting the initial seizure of the res but before

instituting an in rem judicial proceeding. See Republic Nat'l

Bank, 506 U.S. at 87 (discussing The Brig Ann, 13 U.S. (9 Cranch)

289 (1815)). Here, however, while an alleged waiver of PRPA's

maritime lien is at issue, that alleged waiver did not take place

in the interval between the arrest of the vessel and the

institution of the in rem action. During that interval, PRPA

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pursued the arrest diligently, without any hint of voluntary

abandonment.

To say more on this point would be supererogatory.

Because none of the exceptions to the general rule of continuing in

rem jurisdiction applies here, the district court's jurisdiction

over this action survives the sailing of the KATY-B from Puerto

Rican waters. For the same reason, PRPA's appeal is not rendered

moot by the departure of the KATY-B. See Gowen, Inc. v. F/V

Quality One, 244 F.3d 64, 66 (1st Cir. 2001).

C. The Vacation of the Arrest.

We now confront head-on PRPA's asseveration that the

lower court erred in ordering the release of the KATY-B. PRPA

attacks this portion of the order on two fronts. First, it avers

that the court misconstrued the law and the evidence in concluding

that PRPA had waived its lien for pre-sale port charges (and, thus,

had waived any right to arrest the vessel on that account).

Second, it argues that the post-sale port charges, which were not

in any way affected by the March 23 letter, gave rise to an

independent lien enforceable by an arrest of the barge — a lien

that the district court simply ignored. We address these arguments

in sequence.

1. Pre-Sale Port Charges. The Federal Maritime Lien

Act, 46 U.S.C. app. §§ 31301-31343, governs the creation and waiver

of maritime lien rights. A person who supplies "necessaries" to a

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vessel automatically obtains a maritime lien against the vessel for

the value of the goods or services supplied. Id. § 31342(a)(1).

A maritime lien for necessaries bears a right of enforcement

through an in rem action against the encumbered vessel. See id. §

31342(a); see also Fed. R. Civ. P. Supp. R. C (permitting an in rem

action and attendant arrest to enforce any maritime lien).

A lienholder may, of course, choose to waive a lien for

necessaries. 46 U.S.C. app. § 31305. Such a waiver need not be

express. See W.A. Marshall & Co. v. S.S. "President Arthur", 279

U.S. 564, 568 (1929) (construing identical language in predecessor

statute). Nevertheless, the party seeking to establish a waiver

must carry the heavy burden of showing that the lienholder took

affirmative steps that made manifest a definite intention to forgo

the lien and agreed to rely for payment solely on the

creditworthiness of the vessel's owner. Navieros Inter-Americanos

v. M/V Vasilia Express, 120 F.3d 304, 323 (1st Cir. 1997); Farrell

Ocean Servs., Inc. v. United States, 681 F.2d 91, 93-94 (1st Cir.

1982). Because the statutory presumption in favor of maritime

liens is a strong one, courts have been reluctant to find a waiver

in the absence of a showing that the creditor deliberately intended

to relinquish its lien rights. See, e.g., Maritrend, Inc. v. Serac

& Co. (Shipping) Ltd., 348 F.3d 469, 474 (5th Cir. 2003).

A determination that a creditor has waived a maritime

lien is almost always deeply embedded in the facts. We review such

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factbound determinations for clear error. Farrell Ocean Servs.,

681 F.2d at 93. We will respect the trier's resolution of the

point unless, on the evidence as a whole, we are left with an

abiding conviction that a mistake has been made. McAllister v.

United States, 348 U.S. 19, 20 (1954); Carr v. PMS Fishing Corp.,

191 F.3d 1, 6 (1st Cir. 1999). When two permissible views of the

evidence coexist, the factfinder's choice between them cannot be

clearly erroneous. Cumpiano v. Banco Santander P.R., 902 F.2d 148,

152 (1st Cir. 1990). Moreover, the fact that an appellate court

might have weighed the evidence differently is not an independently

sufficient ground for upsetting the trial court's determination.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).

The district court concluded that the evidence presented

by the parties justified a finding of waiver. We proceed to

examine that conclusion.

We start with the March 23 letter. That letter is hardly

a model of precise draftsmanship. As said, it did not expressly

waive the lien (indeed, it did not mention the lien at all). Be

that as it may, the letter plausibly can be read as consistent with

a waiver of the lien. In the first place, the letter acknowledged

that the pre-sale port charges were being controverted in the

pending eviction proceeding, indicating that PRPA was looking to

that in personam action — and not to enforcement of its lien — for

payment. In the second place, since PRPA could not have prevented

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SAM from selling the barge, its statement in the letter that it had

no objection to a sale could not have been intended to serve any

discernible purpose other than to memorialize a waiver of the lien.

Although the letter, standing alone, probably would not

be sufficient to show a deliberate intention to relinquish a lien

right, the letter does not stand alone. Its meaning is informed by

conduct and statements occurring both before and after the letter

was sent. Reading the letter as a waiver of the lien finds

considerable support in the testimony of those involved in the

antecedent discussions. Both González and Sarraga testified that

their purpose in meeting with PRPA officials was to secure a waiver

and a concomitant agreement to contest the accrued port charges as

part and parcel of the eviction proceeding (which, in turn, would

allow SAM to sell the barge and accommodate PRPA's request to

vacate the berth). They also testified that they clearly

communicated this purpose at the meeting and that the PRPA

hierarchs who attended the meeting (Rodríguez and Castellanos)

agreed to waive the lien. González and Sarraga reasonably

understood the March 23 letter as documenting this agreement and

reasonably relied on it in representing to prospective purchasers

that the KATY-B was free and clear of any maritime liens.

While the testimony of the two PRPA functionaries was

inconsistent, it at least partially corroborated these claims.

Rodríguez testified that PRPA had told SAM that it wanted the barge

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to leave. He also acknowledged that the letter's allusion to

"controverted charges" was a reference to the unpaid dockage fees.

Castellanos confirmed that SAM had sought written assurances that

PRPA would refrain from enforcing its lien and arresting the KATY-

B. He conceded that PRPA knew not only of SAM's plans to offer the

barge for sale, but also of the likelihood that any prospective

purchaser would rely on the letter as a representation that title

could be transferred free and clear of pre-sale port charges.

Finally, the district court pointed to PRPA's delay in

recording its lien as evidencing the waiver. The court concluded

that PRPA laid in wait, knowing that buyers would treat the March

23 letter as a waiver of lien, and then pounced once a purchaser

took the bait. That was a permissible inference. A maritime lien

is silent and need not be recorded in order to retain its

vitality.2 See Piedmont & Georges Creek Coal Co., 254 U.S. at 12;

Gowen, Inc., 244 F.3d at 69; see also 46 U.S.C. app. § 31343

(providing for permissive recording of a maritime lien). Yet,

although PRPA was under no legal obligation to record its lien for

pre-sale port charges, it took that step on the day after the sale

of the barge. While that could have been a mere coincidence, as

PRPA suggests, the trial court was not required to draw so

2
PRPA asserts that the district court erroneously concluded
that maritime liens must be recorded in order to be valid. We do
not read the district court's opinion as so holding and, in any
event, such an error would have been harmless in the circumstances
at hand.

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serendipitous an inference. Cf. United States v. Doyle, 981 F.2d

591, 595 (1st Cir. 1992) (concluding that, in light of the

circumstantial evidence, "[o]ne would have to believe in the Tooth

Fairy to think [defendant's action] merely coincidental"). Given

the circumstances, the court could permissibly conclude — as indeed

it did — that the timing of the recordation, in the face of PRPA's

longstanding knowledge of SAM's intention to sell the barge, was

consistent with PRPA's realization that its letter would be

regarded by prospective purchasers as a waiver of its lien.

PRPA complains that the district court did not give

sufficient weight to the testimony of Castellanos and Rodríguez

that PRPA neither intended the letter to effect a waiver of its

lien nor knew of the sale when it recorded the lien. But the

credibility of witnesses and the weight to be accorded to their

testimony are, within wide limits, matters for the factfinder. See

Carr, 191 F.3d at 7. PRPA's summary of this testimony is a product

of selective editing, and the trial court's refusal to accord

decretory significance to the testimony favorable to PRPA's

position was a classic credibility call. In the end, the court,

leaning heavily on inconsistencies in these witnesses' testimony,

concluded that they were "less than credible." Given the court's

unique opportunity to observe the witnesses at first hand, this

assessment demands our respect.

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 The short of it is that the record contains sufficient

support for the proposition that PRPA took affirmative steps to

make clear an unequivocal intention to forgo its lien for pre-sale

port charges and to rely exclusively on the vessel's owner at the

time — SAM — for payment. Similarly, the record contains

sufficient support for the closely related proposition that PRPA's

relinquishment of its lien rights was deliberate and purposeful.

Accordingly, PRPA's contention that the arrest of the KATY-B was

justified by its lien for pre-sale port charges is unavailing.

2. Post-Sale Port Charges. This brings us to PRPA's

alternate claim that the arrest of the KATY-B was justified by its

inchoate lien for post-sale port charges. This claim is

procedurally defaulted.

Admiralty law conceives of a vessel as an entity distinct

from its owner, so an in rem action to enforce a maritime lien is

brought against the vessel itself rather than against the owner.

See Navieros Inter-Americanos, 120 F.3d at 313; see also Tucker v.

Alexandroff, 183 U.S. 424, 438 (1902) (stating that a vessel

"acquires a personality of her own; becomes competent to contract,

and is individually liable for her obligations, upon which she may

. . . be sued in her own name"). The Supplemental Rules for

Certain Maritime and Admiralty Claims govern the commencement and

pleading of in rem admiralty actions. Ordinary notice pleading

does not satisfy the stringencies of these rules.

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 A good example is Supplemental Rule C(2)(a)-(b), which

requires that an in rem complaint describe the res with "reasonable

particularity" and state that it is within the jurisdiction of the

district court. In a similar vein, Supplemental Rule E(2)(a)

directs that a complaint in rem must "state the circumstances from

which the claim arises with such particularity that the defendant

. . . will be able, without moving for a more definite statement,

to commence an investigation of the facts and to frame a responsive

pleading." This heightened pleading standard is not some

pettifogging technicality meant to trap the unwary, but, rather, a

legal rule designed to counterbalance the unique and drastic

remedies that are available in in rem admiralty proceedings. See

United States v. 384-390 W. Broadway, 964 F.2d 1244, 1248 (1st Cir.

1992).

The inquiry into whether a complaint satisfies this

heightened pleading standard comprises a question of law, which

engenders de novo review. Id. Undertaking that task, we conclude

that PRPA never appropriately pleaded an in rem claim for post-sale

port charges. We explain briefly.

PRPA's original complaint — on which it premised the

arrest — failed to mention any claim for post-sale port charges

(even though that pleading makes clear that PRPA knew, prior to

commencing the action, that SAM had sold the vessel). Moreover,

the sale took place on June 3, 2004 — but the invoices attached to

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the original complaint show, beyond any shadow of a doubt, that

damages were sought only for unpaid port charges through April of

2004.

The amended complaint does not close this chasmal gap.

Even though it, unlike the original complaint, contains a count

seeking recovery of post-sale port charges, that count did not

sound in rem. Count one of the amended complaint is identical to

the sole count of the original complaint and prays for an in rem

judgment covering the pre-sale port charges. The new count two,

however, prays for a judgment referable to the post-sale port

charges against S-Bay — and S-Bay alone — as "the new owner of the

barge." That count does not assert any claim whatever against the

vessel — an omission that is especially telling in light of the

precise pleading of an in rem claim in count one.

Fairly read, count two permits no inference other than

that PRPA, as expressly allowed by Supplemental Rule C(1), opted to

forgo an in rem claim with respect to post-sale port charges in

favor of an in personam claim "against [a] person who may be

liable" on the latter claim. That reading is not only faithful to

the language of the pleading but also makes perfect economic sense.

After all, the amount of the accrued pre-sale port charges already

far exceeded the fair market value of the barge, so the prospect of

reaching a different pocket would have a nearly irresistible

attraction to a creditor in PRPA's position.

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 For these reasons, PRPA's claim that the lien for the

post-sale charges justified the arrest fails as a matter of

pleading.3

3. Précis. We summarize succinctly. The district

court's determination that PRPA waived its maritime lien for pre-

sale port charges is based on plausible inferences from the record

and, accordingly, is not clearly erroneous. Given PRPA's failure

properly to plead post-sale port charges as an alternate basis for

an in rem claim, the district court's vacation of the arrest is

unimpugnable.

III. THE REMAINING CLAIMS

PRPA also ascribes error (i) to the district court's

determination that PRPA prosecuted the arrest of the KATY-B in bad

faith and (ii) to the award of attorneys' fees to S-Bay as a

sanction. In the present posture of the case, we lack jurisdiction

to consider these remonstrances.

3
This conclusion renders superfluous any consideration of (i)
whether PRPA's lien for post-sale port charges has been rendered
moot by payment, see, e.g., Matos v. Clinton Sch. Dist., 367 F.3d
68, 71-72 (1st Cir. 2004) (explaining that when intervening events
render an appellate court incapable of providing effective relief
on a particular claim, the claim has become moot and, therefore,
nonjusticiable); (ii) whether the posting of a bond covering the
post-sale port charges rendered moot any attempted reliance on
those charges to justify the arrest of the vessel, see generally
Fed. R. Civ. P. Supp. R. E(5) (outlining procedures for securing
the release of an arrested vessel through the posting of a bond);
or (iii) whether the fact that the amended complaint was not filed
until eleven days after the arrest of the barge (and so could not
have been relied on by PRPA at the time of the arrest) undercuts
PRPA's argument.

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 We previously have indicated, albeit in a case involving

a non-party, that a finding of bad faith and a consequent

imposition of sanctions is not immediately appealable as long as

other issues in the case remain pending in the district court. See

United States v. Kouri-Perez, 187 F.3d 1, 11-14 (1st Cir. 1999).

In the usual case, we think that the same rule applies to a finding

of bad faith and a consequent award of sanctions against a party.

Cf. Appeal of Licht & Semonoff, 796 F.2d 564, 568 (1st Cir. 1986)

(concluding that "a party may not appeal a sanction order other

than criminal contempt before final judgment"). That

interpretation would be consistent with Catlin, 324 U.S. at 233,

which stands for the proposition that a "final" order is one that

ends the litigation on the merits and leaves nothing to be done but

for the execution of judgment.

The fact that this is an admiralty case within the

purview of 28 U.S.C. § 1292(a)(3) does not alter the jurisdictional

calculus. As PRPA conceded at oral argument, the bad faith finding

neither addresses nor resolves the merits of the sole claim

asserted at the post-arrest hearing. Unlike the order vacating the

arrest, the bad faith finding is not a determination that the

barge's arrest was invalid but, rather, an ancillary ruling that

PRPA's prosecution of that claim left something to be desired.

Consequently, the bad faith finding is not independently appealable

under section 1292(a)(3). See Doyle v. Huntress, Inc., 419 F.3d 3,

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7 (1st Cir. 2005); Martha's Vineyard Scuba Headquarters, 833 F.2d

at 1064.

The sanctions award is at yet a further remove. That

award is ancillary to the bad faith finding and, thus, ancillary to

an ancillary issue. Because it does not finally resolve the merits

of any claim or defense in the underlying action, it too is not

independently appealable under section 1292(a)(3). Cf. Cement

Div., Nat'l Gypsum Co. v. City of Milwaukee, 915 F.2d 1154, 1158

(7th Cir. 1990) (holding that an order disqualifying counsel was

not independently appealable under § 1292(a)(3) because it did not

resolve the underlying dispute between the parties).

In view of the lack of any independent jurisdictional

basis, these remaining challenges to the district court's ruling

are properly before us if, and only if, they come within the narrow

confines of pendent appellate jurisdiction. Instances in which the

exercise of pendent appellate jurisdiction is appropriate are

hen's-teeth rare. These instances arise only when (i) a non-

appealable issue is inextricably intertwined with one or more

appealable issues or (ii) review of a non-appealable issue is

essential to ensure meaningful review of an appealable issue. See

Swint v. Chambers County Comm'n, 514 U.S. 35, 51 (1995); Limone v.

Condon, 372 F.3d 39, 51 (1st Cir. 2004).

Neither condition obtains here. The fact that we already

have resolved PRPA's challenge to the district court's vacation of

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the arrest without any substantive reference to either the bad

faith finding or the corresponding award of sanctions proves

conclusively that the issues are not inextricably intertwined.

See, e.g., Limone, 372 F.3d at 51; Suboh v. Dist. Attorney's

Office, 298 F.3d 81, 97 (1st Cir. 2002). By the same token, the

efficacy of our decision not to reinstate the arrest order is in no

way dependent on the exercise of simultaneous appellate

jurisdiction over the remaining issues.

In a nutshell, the bad faith finding and the

corresponding award of sanctions do not qualify for the exercise of

pendent appellate jurisdiction. This conclusion, coupled with the

fact that those issues are bereft of any independent basis for

interlocutory review, means that they must await an end-of-case

appeal.

IV. CONCLUSION

We need go no further. To recapitulate, we hold that we

have appellate jurisdiction over the portion of the district

court's order that vacated the arrest of the vessel, but not over

the remaining issues raised by PRPA. As to the single issue that

we have jurisdiction to resolve, we hold that (i) the evidence

suffices to support the district court's finding that PRPA waived

its maritime lien for pre-sale port charges and (ii) PRPA's failure

properly to plead an in rem claim for post-sale port charges

obviates any afterthought assertion that the district court erred

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in not sustaining the vessel's arrest on the basis of those

charges.

The appeal is dismissed in part for want of appellate

jurisdiction. As to the portion of the appealed order over which

this court has appellate jurisdiction, the order is affirmed.

Costs shall be taxed in favor of the appellee.

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