Filed: Mar. 28, 2000
Latest Update: Feb. 21, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAR 28 2000 - THOMAS K. KAHN Nos. 98-4455 and 98-4937 CLERK - D. C. Docket No. 95-8310-CV-DMM COASTAL FUELS MARKETING, INC., COASTAL OFFSHORE FUELS, INC., Plaintiffs-Appellants, versus FLORIDA EXPRESS SHIPPING CO., INC., Defendant-Appellee. - - No. 98-5108 - D. C. Docket No. 95-8310-CV-FJL COASTAL FUELS MARKETING, INC., COASTAL OFFSHORE FUELS, INC., Plaintiffs-Counter-Defendants-
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAR 28 2000 - THOMAS K. KAHN Nos. 98-4455 and 98-4937 CLERK - D. C. Docket No. 95-8310-CV-DMM COASTAL FUELS MARKETING, INC., COASTAL OFFSHORE FUELS, INC., Plaintiffs-Appellants, versus FLORIDA EXPRESS SHIPPING CO., INC., Defendant-Appellee. - - No. 98-5108 - D. C. Docket No. 95-8310-CV-FJL COASTAL FUELS MARKETING, INC., COASTAL OFFSHORE FUELS, INC., Plaintiffs-Counter-Defendants- ..
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 28 2000
-------------------------------------------
THOMAS K. KAHN
Nos. 98-4455 and 98-4937 CLERK
--------------------------------------------
D. C. Docket No. 95-8310-CV-DMM
COASTAL FUELS MARKETING, INC.,
COASTAL OFFSHORE FUELS, INC.,
Plaintiffs-Appellants,
versus
FLORIDA EXPRESS SHIPPING CO., INC.,
Defendant-Appellee.
----------------------------------------------------------------------------------------------------
-------------------------------------------
No. 98-5108
--------------------------------------------
D. C. Docket No. 95-8310-CV-FJL
COASTAL FUELS MARKETING, INC.,
COASTAL OFFSHORE FUELS, INC.,
Plaintiffs-Counter-Defendants-
Appellees-Cross-Appellants,
versus
FLORIDA EXPRESS SHIPPING CO., INC.,
Defendant-Counter-Claimant-
Appellant-Cross-Appellee,
SUNTRUST BANK, MIAMI, N.A.,
Garnishee.
-------------------------------------------
No. 98-5188
--------------------------------------------
D. C. Docket No. 95-8310-CV-FJL
COASTAL FUELS MARKETING, INC.,
COASTAL OFFSHORE FUELS, INC.,
Plaintiffs-Counter-Defendants-
Appellees,
versus
FLORIDA EXPRESS SHIPPING CO., INC.,
Defendant-Counter-Claimant-
Appellant.
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Appeals from the United States District Court
for the Southern District of Florida
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(March 28, 2000)
Before EDMONDSON and BARKETT, Circuit Judges, and COHILL*, Senior
District Judge.
PER CURIAM:
This appeal arises from a dispute about entitlement to insurance proceeds
and attorney’s fees. We affirm the judgment except that, because the court failed
to determine whether the amount of attorney’s fees requested by Defendant Florida
Express Shipping Co. (“Express”) for the work of its out-of-state counsel was
reasonable, we must vacate and remand on that issue.
_______________
*Honorable Maurice B. Cohill, Jr., Senior U.S. District Judge for the Western District of
Pennsylvania, sitting by designation.
BACKGROUND
3
In 1993, Plaintiff, Coastal Fuels Marketing, Inc. (“Coastal”), entered into a
bareboat charter agreement with Express to charter the MV Florida Express for
four years. In 1995, the MV Florida Express caught fire and was seriously
damaged while at sea. At the time of the fire, there was a $5,300,000 agreed value
hull insurance policy covering the MV Florida Express. The insurance proceeds
were to be distributed according to the terms of the bareboat charter. But, the
parties disagreed on which provisions of the bareboat charter were controlling and
whether the charter was ambiguous. Depending on how the charter was
interpreted, Coastal would or would not be entitled to approximately $900,000 of
the $5.3 million of proceeds.
Coastal filed suit seeking a declaratory judgment that it was entitled to the
disputed funds. Express answered and claimed that it was entitled to the disputed
funds. Express also counterclaimed, alleging that it (pursuant to the bareboat
charter) was entitled to additional charter hire payments. At trial, Coastal also
sought reimbursement from Express for certain items it claimed were left on board
the MV Express when the vessel was returned to Express, sought contribution for
amounts paid to settle a personal injury suit arising out of the fire, and additionally
claimed that Express’s acts deprived Coastal of its option to purchase the MV
4
Express. Pursuant to a court order, $1,650,000 of the insurance proceeds were
placed in escrow. The vessel was sold for scrap.
The parties consented to a bench trial before a magistrate judge and a three-
day trial was held. Following trial, the court declared that Express was entitled to
the disputed insurance proceeds and also awarded Express $59,500 in charter hire.
Coastal was awarded $38, 897.32 as reimbursement for fuels and lubricants that
were left on board the vessel, but did not otherwise recover.
After the court entered judgment, both parties claimed that, pursuant to the
charter agreement, they were entitled to attorney’s fees. Upon reviewing the
motions and holding a telephone conference, the court said that, because Express
had “prevailed on most of its claims filed in this action,” Express was entitled to
attorney’s fees and costs pursuant to the terms of the charter agreement. Although
Coastal was awarded money for the fuel and lubricants that had been left on board
the vessel, the court denied its motion for fees and said that “[s]imply because the
Plaintiffs prevailed on a portion of their claim does not make them prevailing
parties nor does it negate this Court’s ability to find that the Defendant prevailed
on most of its claims.” The court scheduled an evidentiary hearing on the “issue of
reasonableness of the fees and costs sought by the Defendant.”
5
At the evidentiary hearing, Express’s lead counsel, Mr. Mariani, and an
attorney from his firm, Mr. Copeland, testified about the number of hours spent on
the case by the attorneys and paralegals of their firm and their hourly rates. The
court received into evidence the billing summaries and invoices for Mariani’s firm.
The court also heard expert testimony from both sides about the reasonableness of
Mariani’s fee request. Mariani, Copeland and the expert witness were subject to
cross-examination by Plaintiff.
Express also requested attorney’s fees for work performed by Express’s out-
of-state counsel, Cadwalader, Wickersham & Taft. No Cadwalader attorney was
present at the hearing. Mr. Mariani, as lead counsel in the case, attempted to testify
about Cadwalader’s fees. The court, however, did not allow Mr. Mariani to testify
about the bills submitted by Cadwalader. The court did receive into evidence
Cadwalader’s billing summaries.
The court also heard, from both sides, expert testimony about the
reasonableness of Cadwalader’s fee request. Express’s expert’s testimony was
based on a review of the billing records and on an interview of Cadwalader’s
billing partner on the case. Express’s expert was subject to cross-examination on
these matters.
6
In its order on attorney’s fees, the court awarded Express $130,036.50 for its
local counsel’s fees. The court also said that, because no Cadwalader
representative had appeared at the evidentiary hearing, Plaintiff was prevented
from cross-examining or inquiring into the reasonableness of the fees charged and
the tasks performed by Cadwalader. The court noted that it had scheduled the
hearing to receive all evidence on the reasonableness of the fees and costs sought
by defendant; the court then concluded that Cadwalader had failed to present
sufficient evidence at the hearing about the amounts sought. Therefore, the court
decided that no fees or costs attributable to Cadwalader were recoverable against
Plaintiff. The court made no specific findings about the reasonableness or
unreasonableness of Cadwalader’s billings.
DISCUSSION
We review the court’s findings of fact for clear error and the conclusions of
law de novo. See Worthington v. United States, 21 F.3d 399, 400 (11th Cir. 1994).
We review the decision to grant or deny attorney’s fees for an abuse of discretion.
See United States v. Gilbert,
198 F.3d 1293, 1298 (11th Cir. 1999).
7
On appeal, Plaintiff argues that the court erred in interpreting the bareboat
charter, in excluding Coastal’s expert witness, and in determining that Express was
entitled to the disputed funds and additional charter hire. We have reviewed the
record and the court’s findings of fact and conclusions of law; we see no reversible
error. Therefore, we affirm without further discussion the court’s determination
that Express is entitled to the disputed insurance proceeds and that Express is
entitled to additional charter hire in the amount of $59,500. The remaining issues
concern the court’s treatment of Express’s claim that it was entitled to attorney’s
fees.
I. Express’s Entitlement to Fees
Because this case involves the interpretation and construction of a bareboat
charter agreement, this case arises in admiralty; and we apply the general maritime
law. See Sea Lane Bahamas, Ltd. v. Europa Cruises Corp., 188 F.3d 1317, 1320
(11th Cir. 1999); Atlantic Lines, Ltd. v. Narwhal, Ltd.,
514 F.2d 726, 731 (5th Cir.
1975). A party is not entitled to attorney’s fees in an admiralty case unless fees are
statutorily or contractually authorized. See Galveston County Navigation Dist. v.
Hopson Towing Co.,
92 F.3d 353, 356 (5th Cir. 1996). In this case, a specific
8
contractual provision allows for the recovery of attorney’s fees as damages for
breach of the charter. Paragraph 35 of the charter said: “Damages for breach of
this Charter shall include all provable damages, and all reasonable costs,
disbursements and attorney’s fees incurred by the Owner or the Charterer in any
action or proceeding to enforce any rights under this Charter.”
Coastal argues that the court erred in finding that Express was entitled to
attorney’s fees. Coastal contends that, because it recovered $39,897.32 for
lubricants and fuel, the court erred when it concluded that Express was the
prevailing party. Put differently, Coastal argues that, because both parties partially
prevailed, neither party was entitled to attorney’s fees.
Express argues that not only did it prevail on its claim for charter hire, it also
prevailed on the central issue in the litigation: who was entitled to the disputed
insurance proceeds. And, Express points out that, even though Coastal recovered
some money for lubricants and fuel left on board the vessel, it did not have a net
recovery. Citing Florida case law, Express argues that it was the prevailing party
and that it was therefore entitled to attorney’s fees under the charter agreement.
General maritime law is federal law. See World Tanker Carriers Corp. v.
MV Ya Mawlaya, 99 F.3d 717, 723 (5th Cir. 1996). But, when neither statutory
nor judicially created maritime principles provide an answer to a specific legal
9
question, courts may apply state law provided that the application of state law does
not frustrate national interests in having uniformity in admiralty law. See
Steelmet, Inc. v. Caribe Towing Corp., 779 F.2d 1485, 1488 (11th Cir. 1986)
(“One must identify the state law involved and determine whether there is an
admiralty principle with which the state law conflicts, and, if there is no such
admiralty principle, consideration must be given to whether such an admiralty rule
should be fashioned. If none is to be fashioned, the state rule should be
followed.”); Palestina v. Fernandez,
701 F.2d 438, 439 (5th Cir. 1983)(“[W]here
there is no uniform federal rule, ‘even though admiralty suits are governed by
federal substantive and procedural law, courts applying maritime law may adopt
state law by express or implied reference or by virtue of the interstitial nature of
federal law.’”)(quoting Baggett v. Richardson,
473 F.2d 863, 864 (5th Cir. 1973));
see also Wilburn Boat Co. v. Fireman’s Fund Ins. Co.,
75 S. Ct. 368 (1955);
Aasma v. American S.S. Owners Mut. Protection and Indem. Ass’n,
95 F.3d 400
(6th Cir. 1996).
As applied to this case, the parties do not cite to -- and we have not found --
federal statutes or general maritime cases which provide an answer to the question
of whether Coastal’s victory on its claim for fuel and lubricants precludes Express
from being held entitled to an award of attorney’s fees under the contract. Express,
10
however, cites to Florida cases for the proposition that the party entitled to
attorney’s fees pursuant to the terms of a contractual provision is the party who has
won on the “significant issues in the litigation.” Moritz v. Hoyt Enters., Inc., 604
So. 2d 807, 810 (Fla. 1992) (“[T]he fairest test to determine who is the prevailing
party is to allow the trial judge to determine from the record which party has in fact
prevailed on the significant issues tried before the court.”). And, whether a party
received a “net judgment,” while not the determinative factor, is a significant
factor in determining whether a party “prevailed.” See Prosperi v. Code, Inc.,
626
So. 2d 1360, 1363 (Fla. 1993).
We think that this issue is not the kind of issue that calls for us to create a
uniform national rule in admiralty. This case is not one which affects the “interests
concerned with shipping in its national and international aspects.” See Wilburn, 75
S. Ct. at 375 (Frankfurter, J. concurring). This case concerns attorney’s fees and
whether the contractual provision which provides for attorney’s fees should be
construed to allow the party that was successful on all but one minor issue to
recover attorney’s fees. Nothing particularly maritime in nature sticks out about
this issue, see
AASMA, 95 F.3d at 404, so we look to Florida law for guidance.1
1
This course is particularly appropriate here: the parties agreed in their pretrial statement that
both Florida law and general maritime law would apply. Also, in their briefs, both parties rely upon
Florida law and do not contend that some other state law should apply.
11
The court said that it found Express to be entitled to fees because Express
had “prevailed on most of its claims filed in this action.” Upon the completion of
the litigation, Express was declared entitled to disputed funds in the amount of
$1,650,000 and was also entitled to $59,500 in additional charter hire. Plaintiff
was only held entitled to $38,897.32 for fuels and lubricants that had been left on
board the vessel. Express clearly prevailed on the significant issue tried before the
court, and the court’s decision to award Express attorney’s fees was no error. See
Moritz, 604 So. 2d at 810.
II. Express’s Fee Award
On cross appeal, Express raises this issue: whether the court erred in not
determining whether Express’s attorney’s fees request for its out-of-state counsel,
Cadwalader, was reasonable and in summarily rejecting the fee request because
Cadwalader had sent no representative to testify at the evidentiary hearing.
We review an award of attorney’s fees for an abuse of discretion. See
American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423, 427 (11th Cir.
1999). “An abuse of discretion occurs if the judge fails to apply the proper legal
12
standard or to follow proper procedures in making the determination or bases an
award [or a denial] upon findings of fact that are clearly erroneous.” United States
v. Gilbert, 198 F.3d 1293, 1298 (11th Cir. 1999). On these facts, we believe that
discretion was abused.
We have previously said that a fee applicant bears the burden of establishing
entitlement and of documenting the appropriate hours and hourly rates. See
Norman v. Housing Authority of the City of Montgomery, 836 F.2d 1292, 1303
(11th Cir. 1988). We have also noted that courts are often faced with fee
applications that are not well-prepared which are sometimes supported by opinions
on reasonableness. See
id. In those circumstances, the court “is itself an expert on
the question and may consider its own knowledge and experience concerning
reasonable and proper fees and may form an independent judgment either with or
without the aid of witnesses as to value.”
Id. Therefore, where documentation or
testimonial support is lacking, the court may make the award on its own
experience. See
id. Moreover, we have said that a court’s order on attorney’s fees
must allow meaningful appellate review. The trial court should articulate and give
principled reasons for its decisions and show some calculations. If the court
disallows hours, it must explain which hours are disallowed and show why an
award of those hours would be improper.
Id. at 1304.
13
In this case, Express submitted billing records in support of its fee
application for both its local and its out-of-state counsel. Express’s expert had
reviewed the billing records of both firms, had interviewed both billing partners,
and testified about the reasonableness of the fee requests. Express’s expert was
cross-examined by Coastal on those matters. And, Coastal’s expert had reviewed
the billing records of both firms and testified on the reasonableness of the fee
request.
The only difference in the evidence presented between the fee request that
was allowed (Express’s fee request for its local counsel’s fees) and the fee request
that was denied in its entirety (Express’s fee request for Cadwalader’s fees) was
that in the former there was testimony by members of the firm about what they had
worked on in the case. In the latter, there was no testimony by a member of the
Cadwalader firm.
The issue thus becomes whether just Cadwalader’s failure to send a
representative to testify at the evidentiary hearing on fees precludes the award of
any fees where it is undisputed that Cadwalader had performed work on this case,
Cadwalader had submitted its billing records to the court, and expert testimony
(which had been subjected to cross-examination) had been presented about the
reasonableness of the fees. The answer is “no.”
14
We do not want attorney’s fees proceedings to be full trials. In this case, the
evidence available to the court was sufficient for the court to have used its own
expertise to assess the reasonableness of the fee request and to award some fees. It
was an abuse of discretion to disallow altogether Express’s request for
Cadwalader’s attorney’s fees just because Cadwalader did not send a member to
the hearing.
We do not intend to discourage a court from scheduling an evidentiary
hearing where appropriate. To the extent that the absence of certain testimony
about a firm’s billing records means that specific questions the court might have
go unanswered, that is a factor which a court may use in determining whether
certain amounts requested were unreasonable. But, in the circumstances of this
case, a firm’s failure to send a member is, in itself, an insufficient reason to
disallow completely a fee request. We must vacate the court’s decision on this
issue and remand with instructions that the court determine whether the amount of
fees requested by Express for the services of Cadwalader, Wickersham, & Taft,
were reasonable.
For the reasons stated herein, the judgment below is affirmed except that we
vacate and remand for a determination about the reasonableness of the fee request.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
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