Barber Blue Sea v. Trailer Marine Transport Corp.
| Decision Date | 11 May 1989 |
| Docket Number | No. 87-1734-CIV-WMH.,87-1734-CIV-WMH. |
| Citation | 725 F. Supp. 1220 |
| Parties | BARBER BLUE SEA, Plaintiff, v. TRAILER MARINE TRANSPORT CORPORATION, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
Daniel W. Raab, Thomas, Raab & Strader, Miami, Fla., for defendant.
James W. Lancaster, Fowler, White, Burnett, Hurley, Banick & Strickroot, Miami, Fla., for plaintiff.
ORDER DENYING AWARD OF ATTORNEY FEES
This cause came for consideration upon the plaintiff's motion for attorney fees. The parties settled the lawsuit, but the court reserved jurisdiction to determine whether attorney fees were warranted.
This action arises out a dispute over an agreement providing for indemnification while merchandise was in the custody of a transhipper. Barber Blue Sea (Barber) engaged Trailer Marine Transport Corporation (Trailer Marine) to act as a connecting carrier in the transhipment of containerized cargo from certain relay ports to certain destination ports designated by Barber. Barber had entered into a contract of carriage with China Rising Development, Ltd. (China Rising) to transport merchandise from Hong Kong to Antigua. Barber was bailee of the merchandise entrusted to it by China Rising. Barber delivered the merchandise to Trailer Marine at the Port of Miami, for transhipment to Antigua, the destination port.
Because China Rising did not receive payment for the merchandise, it did not release the original bills of lading to the consignee, Trans-Caribbean Industries. However, Trailer Marine released the merchandise to Trans-Caribbean without the presentation of the original bills of lading.
Barber alleged in the complaint that China Rising has not received payment for the merchandise and has filed a claim against Barber for the value of the improperly released merchandise. Trailer Marine has alleged, however, in other documents that no claim was ever filed by China Rising. Barber further alleged that despite repeated demands by Barber, Trailer has failed, refused, and or neglected to protect and defend Barber's interest or to indemnify Barber for expenses arising from the improper release of the merchandise.
The parties have settled this matter as to all issues, except attorney fees. The plaintiff moves for an award of attorney fees.
The issue presented is whether attorney's fees should be awarded when the contract in dispute provides for indemnification for all expenses and liabilities that may be incurred, but does not mention attorney fees specifically. The contract between Barber and Trailer Marine provided that Trailer Marine would "indemnify and hold Barber Blue Sea harmless from all expenses and liabilities it may incur which in any way may be from or be connected with any loss, damage, delay or misdelivery of cargo while in the possession or custody of Trailer Marine Transport Corporation ..." Trailer Marine agreed to cover any liability for incorrectly released cargo at the destination by Trailer Marine, their agents or port authorities, including customs. According to the terms of the contract, any controversy or claim arising out of the contract was to be arbitrated in New York.
The awarding of attorney fees turns on whether the term "expenses" as used in the contract includes attorney fees. Trailer Marine asserts in its response that New York law should be presented to determine the award of attorney fees since the contract between the parties provided New York law as the choice of law to be applied. New York law provides that attorney's fees are only recoverable when authorized by statute or specifically in the contract. Citibank (New York State) N.A., v. Galor Construction Co., Inc., 60 A.D.2d 667, 400 N.Y.S.2d 208 (Sup.Ct.N.Y. 3rd Dept. 1977); Robbins v. Melbrook Realty Company, 28 Misc.2d 1076, 213 N.Y.S.2d 403 (Sup.Ct., Special Term, Queens, Part 1, 1961); Empire National Bank v. Monahan, 65 Misc.2d 412, 317 N.Y.S.2d 840 (Rockland County Court, July 1975). The court in Citibank held that where a promissory note did not provide for attorney fees in the guarantee but only for "any and all expenses" in collecting on the obligation, attorney fees were not recoverable. Under New York law, therefore, plaintiff would not be permitted to recover attorney fees in seeking indemnification.
The denial of attorney fees in establishing the right to indemnification, in absence of a specific contract clause providing for such, is well-settled in other jurisdictions. Attorney fees in an...
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...Kan. 694, 700, 366 P.2d 219, 224 (1961);2 Moore v. Williams, 902 F.Supp. 957, 965 (N.D.Iowa 1995);3 Barber Blue Sea v. Trailer Marine Transp. Corp., 725 F.Supp. 1220, 1221 (S.D.Fla.1989). Other courts find broad indemnification language that does not state `attorney fees,' allows recovery o......
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