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Date: 04-17-1998

Case Style: Duncan Brown v. Stephen L. Thompson, et al.

Case Number: 21528

Judge: Unknown

Court: First Circuit Court, Honolulu, Hawaii

Plaintiff's Attorney: Jack Schweigert and Rory S. Toomey, Honolulu, Hawaii

Defendant's Attorney: Pamela Matsukawa, Honolulu, Hawaii

Description: Wrongful impoundment and disposal of two vessels. Defendants impounded two vessells owned by Brown, vessel 7430 and vessel 9362, which he kept at Ke'ehi Small Boart Harbor. On December 28, 1995, Brown filed a complaint in the first circuit court seeking declaratory and injunctive relief, as well as nominal damages, based on the impoundment of vessel 7430.

Vessel 7430 was a catamaran sailboat, for which the Department of Land and Natural Resources, Division of Boating and Ocean Recreation (DOBOR), had issued (1) a mooring permit for the offshore area of Ke`ehi Harbor and (2) a "Principal Habitation and Harbor Resident Permit."

On December 4, 1993, Brown left Honolulu for a two-week visit to the mainland. Brown notified Linda Thorp, another Ke`ehi Harbor resident and the individual listed as Brown's contact person at the harbormaster's office, of his departure.

On the morning of December 8, 1993, the harbormaster at Ke`ehi Harbor, Tyndzik, noticed that the starboard side of vessel 7430 was sinking and was submerged "halfway down." Also on the morning of December 8, 1993, Fraser Innis, a carpenter hired by Brown to perform repairs on Brown's vessels when Brown went out of town, noticed that one hull of vessel 7430 was sinking. Innis testified that he spent one-and-a-half hours pumping water out of the sinking hull, but that his pump lost power before he was able to complete the repair.

On the morning of December 9, 1993, Tyndzik again examined vessel 7430. He determined that no one had recently cared for it. Tyndzik believed that vessel 7430 was in danger either of sinking and blocking the waterway or of breaking up and causing a debris problem. Later that day, Tyndzik returned for a second look at vessel 7430 and observed that the weight of the starboard hull was causing the port hull to rise out of the water. Tyndzik also noted rot and "extended biofouling" on the bottom of the hull, as well as cracking and delamination on both hulls.

Also on the morning of December 9, 1993, Thorp and Innis met to discuss what they might do about vessel 7430. Thorp and Innis both testified that they were planning to pump the excess water out of vessel 7430 that day. While they were talking, they saw Tyndzik approach vessel 7430. Thorp went out in her dinghy and informed Tyndzik that she and Innis would take care of vessel 7430. Tyndzik informed Thorp that she was too late and that he was planning to impound the vessel. Innis then went out in the dinghy to talk with Tyndzik and was likewise told that Tyndzik planned to impound the vessel.

Tyndzik contacted the O`ahu District Small Boat Harbors Manager, Thompson, who authorized the impoundment of vessel 7430. Tyndzik returned to vessel 7430 on the afternoon of December 9, 1993, with an impound notice. At about 3:45 p.m., Tyndzik called into the Ke`ehi Harbor office to announce that vessel 7430 was in tow. Vessel 7430 was subsequently secured in the impound yard.

Brown returned to Honolulu on December 18, 1993. Brown testified that he went to Ke`ehi Harbor to see about his boat on December 29, 1993. At that time, Thompson informed Brown that vessel 7430 had been impounded. Brown subsequently encountered Tyndzik in the parking lot and asked Tyndzik whether he could retrieve his boat. Tyndzik explained that Brown could not recover vessel 7430 without paying the required fees. Brown notified Tyndzik that he would be leaving for sea the next day and would be gone for about a month. Brown testified that he was unable to resolve matters with Tyndzik on December 29, 1993, because Tyndzik told him that "it would take a couple of days to just figure out how much money [Brown] owed." On December 30, 1993, Brown apparently left Honolulu for a one-month sea voyage in connection with his employment as a deck officer in the merchant marine.

Meanwhile, on December 27, 1993, a marine surveyor inspected vessel 7430 and estimated its value to be "none." On January 3, 1994, Thompson mailed a certified letter to Brown's Honolulu post office box, informing that vessel 7430 had been declared derelict. The letter noted in relevant part that, [i]n accordance with section 200-48, Hawaii Revised Statutes, the vessel described below is declared a derelict as of 12-09-93 . . . . Custody of the vessel shall be returned to the person(s) entitled only upon payment of all fees and costs due the Division of Boating and Ocean Recreation and fines levied by a court. If the vessel remains unclaimed, it will be disposed of in accordance with procedures set forth in Part III, Chapter 200, Hawaii Revised Statutes.

On the same day, Tyndzik posted a copy of the letter on vessel 7430. The letter to the post office box was returned unclaimed on January 22, 1994.

On January 6, 1994, a "Notice of Disposition of Derelict Vessels" concerning, inter alia, vessel 7430 was published in the Honolulu Star-Bulletin. The notice stated in relevant part:

Any person entitled to any of these listed items may repossess and remove same, prior to January 27, 1994, upon payment of all towing, mooring fees, advertising and any other expenses incurred in connection with these items. . . . Pursuant to section 200-45, Hawaii Revised Statutes, the items listed are valued at less than $250.00 and will be disposed of as junk.

In a letter Brown wrote to Tyndzik while at sea, dated January 15, 1994, Brown demanded that Tyndzik "release to [him his] vessel as is, where is, [and] without any fees or charges due from [him] . . . ." Brown acknowledged in the letter that "[Tyndzik] informed me on 12/29/93 that I would be charged . . . to get my vessel back." Nevertheless, Brown threatened that, if vessel 7430 was not returned to him free of charge, he would pursue litigation. A handwritten note on the letter indicates that the letter was "hand delivered" on February 4, 1994.

Brown returned from sea on January 26, 1994, but did not go to the harbor office to reclaim vessel 7430 because he had "already written a letter" and was waiting for the harbor office to respond. Brown testified that when he went to examine vessel 7430 at the impound area on or about February 4, 1994, it had already been cut in half.

On February 9, 1994, DOBOR released vessel 7430 at no charge to King Kona Productions, Inc., to be used in the company's production of the film entitled "Waterworld." According to DOBOR, the accrued fees for the impoundment, mooring, and surveying of vessel 7430 amounted to $516.00.

B. Vessel 9362

Brown also owned vessel 9362, a thirty-foot raft, for which DOBOR had issued a mooring permit for a mooring berth at "KT030" in the Ke`ehi Harbor offshore area, effective March 1, 1993 and expiring March 1, 1994. The mooring permit expressly provided that the permit could not be renewed "unless all fees and charges due and payable are paid." Brown continued to moor vessel 9362 at Ke`ehi Harbor after the permit's expiration date. Brown testified that he did not apply for a renewal of the permit because, in order to receive it, he would have been obliged to pay the monies levied pursuant to the impoundment of vessel 7430, and "[he] did not believe [he] owed [DOBOR] any money."

DOBOR sent Brown two letters regarding the lapse of the permit relating to vessel 9362. On May 21, 1994, DOBOR impounded vessel 9362 pursuant to HRS 200-16 (1993) and secured the vessel at the Kalihi channel impound area. On that same date, Tyndzik sent a letter by certified mail informing Brown both of the impoundment and of his right to request an administrative hearing.

On June 25, 1994, a marine surveyor reported to Thompson that he regarded the value of vessel 9362 as "none." Vessel 9362 was demolished on August 18, 1994. According to DOBOR, the accrued fees and costs for the impoundment, mooring, and surveying of vessel 9362 amounted to $1,586.00. This figure included $150.00 for "administrative impound fee[]s," $90.00 for "operational impound fee[]s," $1,296.00 for "mooring without permit fee[]s," $25.00 for "film development fees," and $25.00 for "survey."

Outcome: Judgment was entered in the defendants' favor and against Brown on April 17, 1998. Brown was ordered to pay $372.00 for the impoundment and disposal of vessel 7430, and $1,586 for the impoundment and mooring of vessel 9362.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Vacated and remanded by the Supreme Court of Hawai'i. See: 979 P.2d 586 (Hawai'i 1999).



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