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JSM Marine LLC v. Gaughf

United States District Court, S.D. Georgia, Savannah Division

September 11, 2019

JSM MARINE LLC, Plaintiff,



         On June 19, 2018, Plaintiff JSM Marine LLC filed a Complaint in Admiralty seeking an award of $7, 144.00, pursuant to the law of salvage, for services rendered to Defendant Claudia N. Gaughf's vessel-the MIST APPROACH-following Hurricane Matthew in October of 2016. (Doc. 1.) Presently before the Court are Plaintiff's Motion for Summary Judgment and Attorney's Fees, (doc. 16), and Defendant's counter Motion for Attorney's Fees, (doc. 31). Both matters have been fully briefed and are ripe for resolution. (See Docs. 16, 23, 36 (Briefing on Plaintiff's Motion); 31, 37, 39 (Briefing on Defendant's Motion).)

         Plaintiff seeks summary judgment on both liability and damages, claiming that the services it rendered to the MIST APPROACH constitute maritime salvage. (Doc. 16.) Briefly stated, the parties in this case primarily dispute whether the MIST APPROACH was in “marine peril” as a matter of law when Plaintiff rendered its services to recover the vessel and, thus, whether Plaintiff is due an award under the law of salvage for those services. (See Docs. 16, 23, 36.) As for attorney's fees, the parties dispute the reasonableness of Defendant's position that the vessel was not in “marine peril” and related discovery issues. (See Docs. 16, 23, 31, 36, 37, 39.)

         After careful consideration and for the reasons explained below, the Court GRANTS Plaintiff's Motion for Summary Judgment and Attorney's Fees, (doc. 16), and DENIES Defendant's Motion for Attorney's Fees, (doc. 31). The Court DIRECTS the Clerk of Court to enter judgment in favor of Plaintiff in the amount of $7, 144.00. The Court ORDERS Plaintiff to respond within twenty-one (21) days from the date of this Order with additional evidence regarding the amount and scope of attorney's fees requested, Local R. 54.2, and ORDERS Defendant to respond within twenty-one (21) days from Plaintiff's filing with any opposition, Local R. 7.5.


         On October 7, 2016, Hurricane Matthew made landfall in the Savannah, Georgia area. (Doc. 16, p. 2.) It caused considerable damage along the Wilmington River where the salvage at issue occurred. (Id.) The hurricane “destroyed” Defendant Claudia N. Gaughf's “dock and the boatlift securing [her] vessel, ” the MIST APPROACH.[1] (Doc. 23, p. 2.) In the process, Hurricane Matthew deposited the MIST APPROACH, which had been fastened to the raised boat lift, directly beside a dock located four houses down from Defendant's waterfront residence along the Wilmington River. (Id. at pp. 1-2.) The hurricane pulled the vessel “away from its mooring and pushed it partially ashore” down river. (Doc. 16-2, p. 3; doc. 16-3, p. 2.) The MIST APPROACH came to rest on, and was surrounded by, hurricane debris. (Doc. 23, p. 2.) From this position, the MIST APPROACH was at least partially grounded with its bow resting on a rocky area of the river bank and its starboard side touching the dock's second piling from the shore. (See Doc. 25-1, pp. 1-13 (photographs provided by Defendant taken prior to salvage); doc. 16-4, pp. 10-23, 28 (photographs provided by Plaintiff taken at the time of salvage); see also doc. 16-5, pp. 2-14 (higher quality versions of Defendant's photographs, filed by Plaintiff).) It remained in this position until Plaintiff removed the vessel on October 18, 2016. (Doc. 23, p. 3.)

         When Hurricane Matthew made landfall, Defendant and her husband, Mr. Scott Birthisel, were evacuated out of state and did not return home until October 9, 2016. (Id. at pp. 1-2.) During the interim, Mr. Birthisel reported the hurricane to the vessel's insurance company and had an individual named Leon Barnard tie the vessel to the adjacent dock. (Id. at p. 2; doc. 32, pp. 3-5.) Following the hurricane, Plaintiff JSM Marine LLC, a company specializing in marine construction, towing, salvage, and related operations, came to the Wilmington River to provide its services in the post-hurricane cleanup and recovery effort. (Doc. 16, p. 4.) Upon first surveying the relevant scene, Plaintiff's general manger, Mr. Karl Robin Rodgers, noticed the MIST APPROACH sitting “aground” on the “riprap bank of the river and surrounded in debris.” (Id.)

         At this time, however, Plaintiff did not perform any salvage services on the MIST APPROACH, despite Mr. Rodgers' opinion that the vessel faced the specter of additional damage due to its precarious position. (Id. at pp. 4-5.) Plaintiff declined assist to the MIST APPROACH initially because it “was engaged in other work at the time.” (Id. at p. 5.) Days later, before engaging in the salvage operation, Mr. Rodgers approached the persons occupying the property where the MIST APPROACH lay to inquire if they were the owners of the boat, and discovered they were not. (Id.) Nonetheless, Mr. Rodgers asked for, and received, their permission to access the river bluff located on their property in order to salvage the vessel. (Id.)

         Meanwhile, Mr. Birthisel had returned to the area and began periodically checking on the MIST APPROACH. (Doc. 23, pp. 4, 10.) Over the course of at least five visits, the MIST APPROACH remained unmoved and tied to the neighbor's dock without incurring any additional damage.[2] (Id.) On October 17, 2018, the day before Plaintiff engaged in salvage operations, an adjuster of the vessel's insurer, Mr. Robert Egbert, came to inspect, and he did not observe any severe structural damage. (Id. at p. 3.) According to Defendant, the “vessel was basically immobilized due to the debris.” (Id.) Further, Defendant states the vessel was not leaking any fuel or lubricant, had not taken on any water, and had not sustained any observable damage from the dock or from nearby rocks and debris.[3] (Id. at pp. 3-4.) From the end of Hurricane Matthew until Plaintiff retrieved the boat from the debris, Defendant asserts the MIST APPROACH had been in the same situation for over a week and “sustained no damage as a result of that situation.” (Id. at p. 4.) Defendant's insurer had planned to “arrange for someone to tow the vessel from [its] location, ” but Plaintiff's salvage operation took place before these arrangements could be made. (Id. at p. 3.)

         On October 18, 2016, Plaintiff returned to the subject portion of the Wilmington River and salvaged the MIST APPROACH. (Doc. 16, p. 5.) Plaintiff was unsuccessful in its attempt to identify and contact Defendant, and so it undertook the salvage operation without Defendant's permission.[4] (Id. at pp. 5, 7.) Indeed, Plaintiff rendered salvage services to the MIST APPROACH without “being required to do so by existing duty or special contract.” (Id. at p. 5.) According to Plaintiff, the day of salvage was the first time it “approached the vessel closely enough to see its condition.” (Id.) Upon inspection, Plaintiff asserts the MIST APPROACH was: “grounded on rocky riprap” and “chafing against the piling of [the dock]”; “had sustained hull, rail, and engine damage; and was surrounded by debris that was itself chafing against the boat.” (Id.) Plaintiff did not observe and was never aware of anyone tending to the vessel. (Id. at p. 7.)

         The salvage operation to extricate the MIST APPROACH from its temporary resting place was no easy task. “It took [Plaintiff] with a crew of four individuals roughly 40 man-hours over the course of a full day's work to remove the vessel from its perilous condition and deliver it to safe storage.” (Id. at p. 8.) In this process, Plaintiff utilized a 130-foot barge, a 35-ton crane, a push boat, a work skiff, tackle gear and slings, a truck with an attached trailer, and other equipment. (Id.) To retrieve the MIST APPROACH, Plaintiff had to cut away rock debris, rig the vessel to the crane, and use the crane to lift the vessel from its debris-laden position. (Id.) Once Plaintiff lifted the MIST APPROACH by crane, it placed the vessel in the Wilmington River and towed it by boat to a nearby ramp, where it was then put on a trailer and transported to a storage facility for safekeeping. (Id.) Plaintiff's salvage of the MIST APPROACH was successful, and no additional damage was inflicted during the process.[5] (Id.) Based on the amount of time, resources, and labor expended by Plaintiff-and in consideration of the vessel's estimated repair cost (ranging from $36, 546 to $38, 696) as well as its estimated post-casualty value (ranging from $30, 000 to $35, 000)-Plaintiff invoiced Defendant in the amount of $7, 144.00 for the salvage services. (Id.)

         From Defendant's perspective, however, Plaintiff's services were unwanted and the vessel's removal unnecessary. (Doc. 23, p. 4.) In fact, when Mr. Birthisel became aware the MIST APPROACH had been moved, he reported it missing to the Chatham County Marine Patrol. (Id. at p. 5.) As a result, Mr. Rodgers was arrested and charged with felony theft by taking, but that charge was dismissed and disposed of on August 27, 2019, by an order of nolle prosequi.[6] When Defendant eventually learned that Plaintiff's aim was to conduct a lawful salvage of the MIST APPROACH, she refused to pay for the invoiced services. (Doc. 16, p. 9.)

         Plaintiff and Defendant attempted to settle the matter but quickly became mired in contentious negotiations that failed. (See id. at pp. 9-11; doc. 23, pp. 14-17.) On June 19, 2018, Plaintiff JSM Marine LLC filed the instant Complaint in Admiralty seeking recovery of a salvage award in the amount of $7, 144.00. (Doc. 1.) After a less than amicable discovery period, (see, e.g., docs. 31, 36, 39), the case is now before the Court on Plaintiff's Motion for Summary Judgment and Attorney's Fees, (doc. 16), and Defendant's counter Motion for Attorney's Fees, (doc. 31).


         Summary judgment “shall” be granted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” FindWhat Inv'r Grp. v., 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute is “genuine” if the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The moving party bears the burden of establishing that there is no genuine dispute as to any material fact and that it is entitled to judgment as a matter of law. See Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1298 (11th Cir. 2003). Specifically, the moving party must identify the portions of the record which establish that there are no “genuine dispute[s] as to any material fact and the movant is entitled to judgment as a matter of law.” Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). When the nonmoving party would have the burden of proof at trial, the moving party may discharge his burden by showing that the record lacks evidence to support the nonmoving party's case or that the nonmoving party would be unable to prove his case at trial. See id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). If the moving party discharges this burden, the burden shifts to the nonmovant to go beyond the pleadings and present affirmative evidence to show that a genuine issue of fact does exist. Anderson, 477 U.S. at 257.

         In determining whether a summary judgment motion should be granted, a court must view the record and all reasonable inferences that can be drawn from the record in a light most favorable to the nonmoving party. Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee County, 630 F.3d 1346, 1353 (11th Cir. 2011) (citing Rodriguez v. Sec'y for Dep't of Corr., 508 F.3d 611, 616 (11th Cir. 2007)). However, “facts must be viewed in the light most favorable to the non-moving party only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. (emphasis and citation omitted).


         Since time immemorial, and as far back as the colonial era in American jurisprudence, marine salvage has “recognized the principle of offering a reward for the saving of imperiled maritime property.” 3A Benedict on Admiralty § 1 (7th ed. 2019). This venerable principle of law is centrally concerned with “the preservation of property on oceans and waterways.” Columbus-America Discovery Grp. v. Atl. Mut. Ins. Co., 974 F.2d 450, 460 (4th Cir. 1992) (citation omitted). The law of salvage compensates those who voluntarily endeavor to protect maritime property “as a matter of public policy to encourage seamen to render aid in emergency situations.” Cape Ann Towing v. M/Y “Universal Lady”, 268 Fed.Appx. 901, 902 n.1 (11th Cir. 2008) (per curiam) (citation omitted). Uniquely a part of maritime and admiralty law, an award of salvage is not merely one of quantum merit for services rendered; rather, salvage provides the successful salvor a bounty to encourage the preservation of life and property imperiled by the sea and to foster maritime commerce. See The Blackwall, 77 U.S. 1, 12, 14 (1869); see also Mason v. Ship Blaireau, 6 U.S. 240, 266 (1804) (describing maritime salvage law as a “liberal and enlarged” compensatory system).

         The longstanding elements of a salvage award claim were articulated by the Supreme Court of the United States more than a century ago in The Sabine, 101 U.S. 348 (1879). As recently reaffirmed by the Eleventh Circuit Court of Appeals, “the Supreme Court held that ‘[t]hree elements are necessary to a valid salvage claim: 1. A marine peril. 2. Service voluntarily rendered when not required as an existing duty or from a special contract. 3. Success in whole or in part, or that the service rendered contributed to such success.'” Girard v. M/V “BLACKSHEEP”, 840 F.3d 1351, 1354 (11th Cir. 2016) (alteration in original) (quoting The Sabine, 101 U.S. at 384) (citing Legnos v. M/V Olga Jacob, 498 F.2d 666, 669-71 (5th Cir. 1974)).[7] The Eleventh Circuit reiterated that, as a matter of public policy, salvage law encourages mariners to aid ships in distress. Id. “Specifically, the law of salvage aims to induce ‘all to render aid in the face of marine peril' . . . ‘and to do so before it is a do-or-die wager with high risks.'” Id. (emphases in original) (quoting Legnos, 498 F.2d at 671; and Miss. Valley Barge Line Co. v. Indian Towing Co., 232 F.2d 750, 755 (5th Cir. 1956)).

         In this salvage case, there is no dispute that Plaintiff acted voluntarily and successfully when it removed Defendant's vessel from the bank of the Wilmington River. (See Docs. 16, 23.) Thus, only the first element, whether the MIST APPROACH was in a state of “marine peril” is at issue. The Court first addresses the “marine peril” issue in the context of Plaintiff's Motion for Summary Judgment before considering the parties' respective requests for attorney's fees. As set forth below, the Court finds the undisputed facts establish that a “marine peril” existed. Thus, Plaintiff is due summary judgment on its salvage claim.

         I. Plaintiff JSM Marine LLC's Motion for Summary Judgment (Doc. 16.)

         Plaintiff contends this is a “straight-forward” salvage case because the undisputed facts establish that the MIST APPROACH was “unquestionably in a state of peril.” (Doc. 16, p. 1.) Plaintiff's centrally argues that Defendant's vessel was both stranded and grounded on the river bank and that situation is a per se state of marine peril under applicable case law. (Id. at pp. 13- 18.) In particular, Plaintiff avers the MIST APPROACH “was grounded on rock, without power, and incapable of removing itself from its predicament. It had sustained damage, likely was continuing to sustain damage, and was surrounded by elements (rock, debris, and the pier, for example) that threatened future harm.” (Id. at p. 17.) Plaintiff argues, moreover, that Defendant admitted the MIST APPROACH was incapable of removing itself from the hurricane-debris strewn bank, thereby establishing the “marine peril” element. (Id. at p. 16 n.9.) Lastly, Plaintiff contends that, irrespective of whether the MIST APPROACH had been tied to the dock, it faced “at least some marine peril, ” which is all the law of salvage requires. (Id. at pp. 17-18.)

         In response, Defendant asserts that factual disputes surrounding the MIST APPROACH's condition and location preclude summary judgment. (Doc. 23, pp. 5, 11-14.) Specifically, Defendant disputes that the MIST APPROACH was incapable of removing itself from its location next to the dock and disputes that the vessel had actually run aground. (Id. at pp. 3-4, 9-11.) Defendant submits that the “vessel was not grounded . . . [r]ather, it was sitting on and surrounded by debris from the hurricane.” (Id. at p. 2.) Furthermore, Defendant argues there is no per se rule of marine peril with respect to grounding, and she asserts the facts of this case are distinguishable from those cases where courts found grounded vessels to be in marine peril as a matter of law. (Id. at pp. 9-11.) In sum, because the MIST APPROACH had been tied to the dock and had been in the same position for ten days, Defendant contends there was no emergency or marine peril upon which to act. (Id. at pp. 7-8.) At the very least, Defendant argues these undisputed facts create an issue as to whether Plaintiff had a reasonable apprehension that Defendant's vessel faced marine peril. (Id. at pp. 12-14.)

         In reply, Plaintiff asserts that Defendant's position is contrary to “the great weight of authority establishing that grounding and stranding each constitute per se marine perils” and that Defendant fails to provide “even a single case addressing a grounding or a stranding that supports her position in this matter.” (Doc. 36, p. 1.) Thus, Plaintiff argues the MIST APPROACH was under marine peril as a matter of law. (Id. at pp. 2-6.) What is more, Plaintiff contends Defendant has changed its position based on sham declaration testimony: “Defendant, apparently realizing that its previous discovery position that the [MIST APPROACH] was so high up the shore and aground that it was not going anywhere actually establishes marine peril, has sought to reverse this dispositive testimony by apparently arguing both that the vessel could move and that it could not.” (Id. at pp. 1-2.) Plaintiff insists the Court should reject this evidence-which concerns the vessel's alleged grounding and inoperable engine-as improperly inconsistent with previously sworn statements and further maintains that, even with this evidence, a marine peril has still been established under the law of salvage. (Id. at pp. 6-19.)

         A. Whether to Consider Defendant's Challenged Declarations

         Defendant attempts to create disputes of material fact by relying on the respective declarations of Mr. Birthisel, (doc. 25), and Mr. Egbert, (doc. 26). Plaintiff argues the Court should exclude certain portions of these declarations as contradictory to prior testimony, documentary evidence, and unwithdrawn admissions, or because they are unsupported by personal knowledge and concern improper expert testimony. (Doc. 36, pp. 10-19.) Defendant did not respond to these arguments or attempt to justify the declarations' inconsistencies in the first instance.

         Plaintiff first asks the Court to not consider Mr. Birthisel's averments: that “[t]he vessel was in a marsh area . . . and was not grounded on rocks [or otherwise, instead] the vessel was sitting on top of debris from the hurricane”; and that “the vessel could have been removed from its location under its own power [if the debris were removed] because the engine was still operable.” (Doc. 25, pp. 2, 3). Plaintiff contends these statements contradict Defendant's unwithdrawn judicial admission, Mr. Birthisel's deposition testimony, and other evidence of record. (Doc. 36, pp. 11-16.) The Court agrees.

         In discovery, Defendant admitted that the MIST APPROACH “was unable to move under power or maneuver but denies that it was salvaged.” (Doc. 16-3, p. 2 (emphasis added).) Federal Rule of Civil Procedure 36(b) provides that discovery admissions are “conclusively established unless the court, on motion, permits the admission to be withdrawn or amended.” Admissions not withdrawn or amended cannot be rebutted by contrary testimony or ignored by the Court. See Williams v. City of Dothan, 818 F.2d 755, 762 (11th Cir. 1987) (“Because Dothan never sought to withdraw or amend its admission, the court was not free to reject this ‘conclusively established' fact even if it ‘[found] more credible the evidence of the party against whom the admissions operate.'” (quoting Brooks Village N. Assocs. v. General Elec. Co., 686 F.2d 66, 73 (1st Cir. 1982)). Consequently, Defendant's clear admission that the MIST APPROACH could not move under power or maneuver and its failure to move to withdraw that admission provide enough reason alone to reject Mr. Birthisel's contradictory declaration. Further, this unwithdrawn admission conclusively establishes that Defendant's vessel was incapable of removing itself from the subject location.

         Although not necessary to reject Mr. Birthisel's statements on this point, the Court pauses to briefly compare his contrary deposition testimony because the stark inconsistencies give the Court great concern. When additionally compared to the photographic evidence of record, Mr. Birthisel's declaration that the MIST APPROACH was not grounded and could remove itself is revealed as sham evidence. For example, at his deposition, Mr. Birthisel testified to the following:

Q. Looking at that photograph, the next one and the other photographs in that pocket, would you say that those photographs show that that boat is rubbing up against the pylon?
A. No, it wasn't rubbing. It wasn't even moving. It was all the way up, so there was very little water up there at all, if any, because [it] was sitting on a bunch of trash and stuff. Well, you can see some of it right there. I mean, that's- there was some water over there, but not over here where the boat was sitting. That's why I wasn't worried about it, because I knew it wasn't going anywhere.

(Doc. 27, p. 12 (emphasis added).)

Q. So it's your testimony that based on how much water is under the boat in those pictures that you don't think that boat could have moved at all?
A. Oh, no. I knew it couldn't. I knew we were going to have to somehow get somebody to lift it out of there because it was sitting on top of too much stuff. … A. The way our boat was sitting I didn't see it going anywhere, moving or anything. You know, if it was half in the water or half on sandy beach that would be a little bit different, but that was sitting on so much wood and stuff underneath it that it wasn't-it wasn't going to move anyway.

(Id. at pp. 13, 42 (emphasis added).)

         The inconsistencies regarding the MIST APPROACH's maneuverability could not be more obvious. In one breath Mr. Birthisel states the vessel could not have moved at all, and that it “was all the way up” sitting on debris and away from water such that “it wasn't going anywhere” without getting “somebody to lift it out, ” (id. at pp. 12-13), but in the next he states that the vessel, “could have been removed from its location under its own because the engine was still operable, ” (doc. 25, p. 3). A court may “disregard an affidavit as a matter of law when, without explanation, it flatly contradicts [the affiant's] own prior deposition testimony for the transparent purpose of creating a genuine issue of fact where none existed previously.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1306 (11th Cir. 2016) (citations omitted). The Court does so here.

         Furthermore, Mr. Birthisel's declaration that the MIST APPROACH “was not grounded on rocks” and that he does “not believe [it] was grounded, ” (doc. 25, p. 2), is incompatible with the photographic evidence adduced by both parties in this case. When Plaintiff arrived to salvage ...

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