465 F.3d 1267 (11th Cir. 2006), 05-12220, Dresdner Bank AG v. M/V OLYMPIA VOYAGER

Docket Nº:05-12220.
Citation:465 F.3d 1267
Party Name:DRESDNER BANK AG, Dresdner Bank AG in Hamburg, Norddeutsche Landesbank-Girozentrale, Kreditanstalt Fur, Plaintiffs-Appellees, Blohm and Voss GmbH et al., Intervenors-Plaintiffs, Steamship Mutual Underwriting Association (Bermuda) Ltd., Intervenor-Plaintiff Appellant, v. M/V OLYMPIA VOYAGER, a 157.90 meter Blohm Voss GmbH motor vessel, Hull No.
Case Date:September 27, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1267

465 F.3d 1267 (11th Cir. 2006)

DRESDNER BANK AG, Dresdner Bank AG in Hamburg, Norddeutsche Landesbank-Girozentrale, Kreditanstalt Fur, Plaintiffs-Appellees, Blohm and Voss GmbH et al., Intervenors-Plaintiffs, Steamship Mutual Underwriting Association (Bermuda) Ltd., Intervenor-Plaintiff Appellant,


M/V OLYMPIA VOYAGER, a 157.90 meter Blohm Voss GmbH motor vessel, Hull No. 961, Greek official number 10750, her engines tackle equipment, rigging, dinghies, furniture, appurtenances, etc., in rem, and Olympic World Cruises, Inc. her owner, in personam, Defendant.

No. 05-12220.

United States Court of Appeals, Eleventh Circuit

September 27, 2006

Page 1268

Jeremy O. Harwood, Healy & Baillie, LLP, New York City, for Intervenor-Plaintiff Appellant.

Scott Andrew Wagner, Michael T. Moore, Moore & Company, P.A., Coral Gables, FL, for Plaintiffs-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before DUBINA, MARCUS and COX, Circuit Judges.

MARCUS, Circuit Judge.

Steamship Mutual Underwriting Association ("Steamship") appeals from a district court's final judgment awarding Steamship the principal sum of $61,186.15 and prejudgment interest in the amount of $3,661.72 to satisfy a maritime lien it held against the M/V Olympic Voyager (the "Voyager" or "vessel"), a cruise ship. Steamship claims that the district court made two basic errors in calculating the quantum of its lien: first, the court improperly held that the vessel's arrest cut short the accrual of Steamship's maritime lien for unpaid insurance premiums; and

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then, it improperly calculated the amount of Steamship's lien by considering only the value of insurance invoiced, rather than the insurance provided, before the vessel's arrest. Steamship also says that the district court erred by denying, as untimely, its Rule 59 motion to alter or amend judgment. Because the district court clearly erred in calculating the quantum of Steamship's lien, we vacate the district court's judgment and remand for further proceedings consistent with this opinion.


Olympic World Cruises ("OWC") owned the Voyager and operated it as a cruise ship in the Mediterranean and the Carribean. Dresdner Bank AG in Hamburg, Norddeutsche Landesbank-Girozentrale, and Kreditanstalt FÜR Wiederaufbau (the "Plaintiff Banks") held a First Preferred Ship's Mortgage on the vessel. In 2003, OWC defaulted on its obligation to the Plaintiff Banks, and on December 16, 2003 the Plaintiff Banks commenced this action to foreclose their mortgage.1 The Plaintiff Banks had the Voyager arrested and obtained a default judgment against the vessel, whereupon the district court ordered the vessel's sale at auction. The Plaintiff Banks then purchased the vessel at auction, and, as a condition of the sale, the district court ordered them to defend any claims against the vessel, in rem.

Steamship is a mutual insurance association that provided protection and indemnity ("P&I") insurance to vessels owned by OWC, including the Voyager. Under the terms of the Voyager's insurance policy, the vessel's yearly premium was assessed in six installments, four of which were invoiced during the policy year and two of which were invoiced in years thereafter. But if the vessel did not renew its insurance with Steamship, all obligations for previously provided insurance came due. This acceleration of payments upon cancellation was known as a "release call."

When the vessel was arrested on January 19, 2004, Steamship had invoiced premiums for the Voyager equaling $61,186.15. In addition, OWC owed further premium amounts for pre-arrest insurance that had not yet been invoiced. According to Steamship, the entire amount of P&I insurance premiums OWC owed for insurance provided to the Voyager during policy years 2001, 2002, and 2003, exclusive of premiums for insurance provided after the vessel's arrest, totaled $274,770.11.

On March 8, 2004, Steamship intervened in this action and filed a verified complaint in rem against the Voyager asserting a maritime lien for unpaid insurance premiums or, in the alternative, an administrative claim and right of priority payment under the doctrine of custodia legis. The Plaintiff Banks, pursuant to the district court's order requiring them to defend the Voyager, answered Steamship's complaint on the vessel's behalf. Thereafter, in October 2004, the district court conducted a bench trial to adjudicate the claims of all the intervening plaintiffs against the Voyager.

At trial, Steamship presented the testimony of a fact witness, Jonathan Andrews, Steamship's underwriter for the Voyager account, and an English law expert,

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Charles Brown. The Plaintiff Banks presented no rebuttal witnesses and submitted no evidence. On November 29, 2004, the district court entered extensive Findings of Fact and Conclusions of Law, including these:

(1) Steamship's provision of P&I insurance to the Voyager gave rise to a maritime lien under the Federal Maritime Lien Act, because such insurance is a "necessary."

(2) Steamship's maritime lien takes priority over the Preferred Ship Mortgage held by Plaintiff Banks.

(3) Steamship's provision of insurance to the vessel after the marshals arrested it does not give rise to a maritime lien because no new maritime liens may arise after the vessel is actually arrested. Nor is Steamship entitled to recover for its provision of post-arrest insurance under the doctrine of in custodia legis, because the vessel's arrest was actual, notice of arrest was published, and Steamship did not obtain permission from the court to provide the Voyager with insurance.

(4) Steamship's witness Jonathan Andrews testified that $61,186.15 is the correct amount owed by the Vessel at the time of arrest. Since no further lien accrued after the arrest, the total amount of Steamship's preferred maritime lien equals $61,186.15.

Following entry of final judgment, on January 20, 2005, Steamship timely filed a motion to alter or amend the judgment or to correct a clerical error in the judgment, pursuant to Federal Rules of Civil Procedure 59(e) and 60(a).2 The motion contained a typographical error in one of its tables, causing Steamship to file an amended motion on February 9, 2005. The district court denied Steamship's motion as being untimely because the amended motion "rendered Steamship's original motion of no legal effect" and the amended motion was filed outside Rule 59(e)'s ten day window.

Accordingly, the district court converted Steamship's Rule 59(e) motion into a Rule 60(b) motion for relief from judgment and considered it along with Steamship's Rule 60(a) motion to correct a clerical error in the judgment. In its March 16, 2005 order, the district court denied Steamship's motions. Steamship then appealed to this Court on April 12, 2005.


Before reaching the merits of Steamship's appeal, we are obliged to address

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the Plaintiff Banks' argument that Steamship's untimely notice of appeal deprived us of appellate jurisdiction. "[N]otice of appeal in a civil case must be filed within 30 days from the entry of judgment," and a timely filed notice of appeal is prerequisite to this Court's jurisdiction. See Wright v. Preferred Research, Inc., 891 F.2d 886, 888 (11th Cir. 1990); accord Fed. R. App. P. 4(a)(1)(A). But

[i]f a party timely files in the district court any of the following motions . . . the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: . . . (iv) to alter or amend the judgment under Rule 59 . . . or (vi) for relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered.

Fed. R. App. P. 4(a)(4)(A).

The Plaintiff Banks assert Steamship filed its notice of appeal later than 30 days after entry of judgment. Although they concede that Steamship's original Rule 59 and 60 motions were filed within ten days of the final judgment, which tolled the period for filing a notice of appeal, see id., they contend that Steamship's amended Rule 59 and 60 motions -- filed later than ten days after the district court's judgment -- completely supersede the original motions. Thus, they say, filing the amended motions nullified the tolling effect of the original motions, rendering untimely Steamship's notice of appeal, which was filed less than thirty days after the district court's decision on the amended motions, but more than thirty days after final judgment.

Plaintiff Banks thus posit that an amended motion supersedes the original entirely, even as to timeliness and tolling, and cite two cases for that proposition: Pinion v. Dow Chem. U.S.A., 928 F.2d 1522 (11th Cir. 1991), and Young v. City of Mount Ranier, 238 F.3d 567 (4th Cir. 2001). Both are inapposite. In Pinion, a panel of this Court considered whether the district court could extend the deadline for filing original post-trial motions. 928 F.2d at 1532-34. And in Young, the Fourth Circuit considered whether a litigant could challenge the dismissal of claims asserted in the original complaint but not re-alleged in an amended complaint. 238 F.3d at 572. Neither case decided whether an amended Rule 59 or 60 motion destroys the original motion's tolling effect. Instead, this question is controlled by Pate v. Seaboard R.R., Inc., 819 F.2d 1074 (11th Cir. 1987). In Pate, following an adverse judgment, appellants timely filed a Rule 59 motion for new trial, then, seven months later, amended their motion, asserting new grounds. The district court denied the motion. Appellee challenged this Court's jurisdiction and the district court's power to grant a new trial on grounds raised only in the amended Rule 59 motion filed outside the "mandatory and jurisdictional time constraints of Fed.R.Civ.P. 59(b)." Id. at 1083-84. We squarely rejected that argument, reasoning that "[o]nce an effective new...

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