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NEIL S. LERNER, State Bar No. 134031 JARED A. WASHKOWITZ, State Bar No. 226211 SANDS LERNER 12400 Wilshire Boulevard, Suite 1300 Los Angeles, California 90025 310-979-9144
s
6
Attorneys for Defendants/Counter-claimants, CANYONDREAMER, INC., ELWIN E. COONTS, and MARKEL AMERICAN INSURANCE COMPANY
8 .9
UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA
.l~
1~
ARAMARK SPORTS AND ENTERTAINMENT, I INC.,
Plaintiff,
12 13
CASE NO.
{PROPOSED)
CVrO3 1599PHXFJM FINDINGS OF FACT AND
CONCLUSIONS OF LAW )
14
15 ~~
:11
v.
CANYONDREAMER, INC., ELWIN E.
COONTS, AND MARKEL AMERICAN
I INSURANCE COMPANY,
1
,. .)
18 19 20 21
22 23
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Defendants. AND RELATED COUNTERCLAIM.
Defendants/Counter-claimants COONTS; and
MARKEL
AMERICAN
CANYONDREAMER,
INSURANCE COMPANY,
INC.;
ELWIN E.
hereby
lodges Law as
their
follows:
Proposed
Findings
of
Fact
and
Conclusions
of
26
21
2$
.1
[PROPOSED] FINDINGS
OF FACT AND CONCLUSIONS OF LAW
Case 2:03-cv-01599-FJM
Document 23
Filed 08/26/2005
Page 1 of 9
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Case 2:03-cv-01599-FJM
Document 23
Filed 08/26/2005
Page 2 of 9
Case 2:03-cv-01599-FJM
Document 23
Filed 08/26/2005
Page 3 of 9
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2
I
"'
F.
Markel
LC to
retained find,
Associated raise,
Diving
and
"Canyon
Marine Dreamer"
Contractors wreckage
arid remove
th.
3
4
from the bottom
of Lake Powell.
Markel
However,
the
vessel
could not be located.
18.
.. Or)
5 6
1
8 9
September
6,
200Z,
paid
$30,000.00
t;o
Associated in
Diving
and Marine to find,
Contractors
LC for
services
rendered Dreamer"
an attempting
raise,
and remove the "Canyon
wreckage
19.
on the bottom
of Lake Powell;
On
to
November Aramark
28,
plus
2002
protest $75.00fo:r
Canyon in
full late
Dreamer,
Inc.
paid
.1~ $5,156.30
under
payment fees.
of
Aramark's
11
12"
invoice 20.
for$5,Q81.30,
Aramark in
failed light
to
exercise warnings
reasonable received Park
care
under
the
from to
.{~
circwnstances
0:£ the
by Aramark Service that
14 the Utah State
is
the salvage, the
Park Service
availability
and National of floatation
prior
devices
were not
sunk,
16 used,
the
failure
knowledge
l'
19
26 21
~o mark the
that
Markel's of purposes
site
where
the
wreckage
Aramark's
surveyor the
intended cause in of
to
inspect
fire,
18 the
and
wreckage
Aramark's
for
determining a sunken
the
knowledge owner to fines
that
wreck
Lake Powell
would
expose
21.
its
As
a
direct
and
raise,
proximate
result Markel
of
"Canyon
Aramark's
2a
24
negligence,
Canyon Dreamer Inc.
to find,
and/or
were required
to
23 expend $30,000.00
wreckage.
and remove the
Dreamer"
25
22.
Aramark's
attempted
removal
of
the
"Canyon
Dreamer'
26
wreckage
was a salvage.
27
28
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PROPOSED]
FINDINGS OF FACT AND CONCLUSIONSOF LAW Document 23 Filed 08/26/2005 Page 4 of 9
Case 2:03-cv-01599-FJM
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rs
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Case 2:03-cv-01599-FJM
Document 23
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t~an towage,
~tco,
~~~~.
v.
Q~~ch ConstrgQt~,
19~3
AMC 2195
(~.D. N.Y.).
:3
4;
7.
obligate
Salvors
themselves
who Undertake
a service
to
distressed
property property
tq take
reasonable
care
for
of
the
in
they
5
~eir
inflict
charge
on that
and they may be responsible
This same kind duty the
property
damages which
6
has been defined and exercise the
as binding same degree
custody,
7 them 'to
8 9
take
of care, property takes
at
that
diligence a prudent
in
keeping
the
placed
in
their
in
man ordinarily
and exercises
keeping
his
10 own property.'"
11.
1.92 F.2d.43..7, 440
ZO5-6
(1958).
1~61),
citing
Norris,
Law of
Salvage,
§ 120 at
12
~3
8.
others
will
Xn
determining
what
constitutes
negligence,
14 professional
salvors be held
wi.;J;l be held
to
the
standard
of
experts,
l~ 17
1.8
to the
Bentle
standard & Felton
of reasonable
Co .,
seaman.
437,
Oil 440
16 Screw Noah's Ark v.
f~961 \!:!'-
292 F.2d
salved
9.
service,
When a distinguishable
injury
of.
to
the
property a the
of
has
19 resulted
20
from the
it
negligence not only
persons in
undertaking of
award
salvage
award or
may result
forfeiture,
a diminution
21 Of a totaJ.
2~
~t
vessel
or
in
an a.f.firmative
the salvors.
II
damages
Ark
against
the
salving & felton
Oil
Screw Noah's
23 v.
24
Bentle
.,
292 F.2d
defined
437,
441 (196.1),
[emphasis
citing:
Norris,
Law of
Salvage,
injury from is
S 120 at
206
added]. from Id~
A
25 26
28
"distinguishable" original peril
as "a harm distinct is being
the
at
which
the vessel
saved. "
.27 441.
6
PROPOSED] FINDINGS OF FACT AND CONCLUSIONS OF LAW
Case 2:03-cv-01599-FJM
Document 23
Filed 08/26/2005
Page 6 of 9
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Case 2:03-cv-01599-FJM
Document 23
Filed 08/26/2005
Page 7 of 9
$
2. 3'
,
6
4
i
$ 9
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IS
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Case 2:03-cv-01599-FJM
Document 23
Filed 08/26/2005
Page 8 of 9
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STATE OF CALIFORNIA,
PROOF OF SERVICE
COUNTYOF LOS ANGELES
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I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to this action. My California, address is 12400 Wilshire Blvd., Suite 1300,.. Los Angeles, business 90025.
/X/ I hereby certify that on August 26, 2005, I electronically transmitted the attached document to the Clerk's 1. Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 8
9 Michael N. Poli Santin, Poli , Ball, P.L.C. 2999 North 44th Street, Suite Phoenix, Arizona 85018 Mr. Joseph J. Perrone DeOrchis & Partners, LLP 61 Broadway, 26~ Floor New York, New York 10006-2802
10
11
500
12
1.3
14
t$
1~
/x/
(FEDERAL)
of the
correct.
I declare United States on August 26,
under penalty of perjury under the that the foregoing is true and 2005
law
17
18 19
Executed
a~~~~,
Susan Lira
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PROPOSED]
FINDINGS
OF FACT AND CONCLUSIONS OF LAW
Case 2:03-cv-01599-FJM
Document 23
Filed 08/26/2005
Page 9 of 9