recoverable rental award for dry vans of $201,358.00. Itel Ex.
8, 11. Textainer's unpaid invoices for per diem rent and
administrative charges support a recoverable rental award of
$23,784.37. Textainer Ex. 2, 3. TSEL's unpaid invoices support
a recoverable rental and handling charge award of $23,984.13.
TSEL Ex. 3, 4, 6.
4. Repairs, Cost of Recovery and Replacement Value
Plaintiffs Itel, TSEL and Textainer also seek damages for
repairs not covered by prepaid insurance, recovery costs
incurred in reclaiming units not returned by AES Ltd. and
replacement value for equipment not recovered. Because a
prudent owner would expect to pay for repairs to rented
containers and replacement for containers that were lost, these
fees are necessary to the operation of a modern container ship.
Since testimony indicated that leased containers are normally
returned to the lessors' depots and plaintiffs' leases
envisioned such a return, Tr. 275; Itel Ex. 1; Textainer Ex. 1,
recovery costs are also necessaries.
Itel's documentation, however, lumps "handling," "drayage,"
"storage," and "other" expenses with its "recovery" expenses
and terms the sum its total recovery costs. Itel Ex. 6; Tr.
260. No explanation for this lumping was given at trial. Tr.
260. The "handling," "drayage," "storage," and "other" expenses
do not seem to be closely associated with recovery of Itel's
equipment, since they are charged for many leased containers
which have no "recovery" expenses. Itel Ex. 6. Therefore the
court will award Itel only those expenses in the "recovery"
category, those which the record supports as recovery costs.
Itel's unpaid repair invoices and equipment condition reports
support an award of $353,762.78 for actual container repairs,
$329,096.58 for estimated container repairs and $4,022.02 for
dry van repairs. Itel Ex. 6, 8, 9. Itel documentation supports
an award of $1,858.70 in recovery expenses. Itel Ex. 6, 9; Tr.
260. Itel will also be awarded $92,000 for container
replacement value and $2,250 for dry van replacement value.
Itel Ex. 4, 7, 8; Tr. 84-85, 265-66, 314-15.
Textainer documentation supports an award of $2,975.13 in
recovery expenses. Textainer. Ex. 2, 17; Tr. 461-62.
TSEL has submitted unpaid invoices and documents supporting an
award of $23,971.39 for repairs. TSEL Ex. 3. TSEL documentation
supports $9,489.01 in recovery expenses. TSEL Ex. 4, 11, 14;
TSEL has presented conflicting claims of replacement value
damages. In the Joint Pre-Trial Order, TSEL claims replacement
value for eight units totalling $21,356.00. Joint Pre-Trial
Order at ¶ 3.C. However, TSEL's invoices for unrecovered units
only cover six of these units, and total $15,175.68. TSEL Ex.
12. Since only the $15,175.68 figure has supporting
documentation, the court will use it as the measure of TSEL's
damages for unrecovered units.
5. Attorney's Fees
Plaintiffs claim attorney's fees as part of their damages.
However, the normal rule both within and outside maritime law
concerning attorney's fees is that "in the absence of statute
or contractual authorization, attorney's fees are not generally
recoverable either as part of costs or of damages." Demsey &
Assocs., Inc. v. S.S. Sea Star, 500 F.2d 409, 411 (2d Cir.
1974). Thus, while it is reasonable to expect AES Ltd., whom
plaintiffs have contracts with, to pay plaintiffs' attorney's
fees, see infra, such an expectation of the vessel owners is
Cases in which attorney's fees have been awarded in in rem
maritime actions are clearly distinguishable as suits to
foreclose on mortgages. See, e.g., Gen. Elec. Credit Corp. v.
The Oil Screw Triton, VI, 712 F.2d 991 (5th Cir. 1983). In
those cases, the plaintiffs brought suit on notes that allowed
them to proceed against the owner of the vessel. See 712 F.2d
at 993-94. Such cases fit within the normal rule regarding
attorney fee awards authorized by contract. Since in the
present case plaintiffs have no contract with the vessel
owners, their attorney's fees are excluded from their damage
6. Prejudgment Interest
Plaintiffs also claim prejudgment interest. In admiralty cases,
prejudgment interest is normally awarded, although the court is
given broad discretion in this regard to choose the period in
which this interest runs and the rate of interest. See Indep.
Bulk Transp., Inc. v. The Vessel "Morania Abaco",
676 F.2d 23, 25-27 (2nd Cir. 1982). The court will award plaintiffs
prejudgment interest at 6% per annum, beginning on May 31,
1986. As of this date, plaintiffs reasonable could have
expected their containers to be returned, and rent and repair
costs to be paid for them. A number of the bonds posted in this
court to secure plaintiffs' claims limit the recoverable
interest to 6%, and the court finds this figure to be a
reasonable rate to compensate them for their loss of use of the
funds owed them. Interest will be calculated for a sixty-six
month period, up to the time of this opinion.
7. Plaintiffs' Total Damages
Based on the foregoing, plaintiffs' total maritime lien damages
are the following.
(1) Reefer Container Rental $208,584.00
(2) Chassis Rental 910.00
(3) Dry Vans 201,358.00
(4) Actual Repairs 353,762.78
(5) Estimated Repairs 329,096.58
(6) Dry Van Repairs 4,022.02
(7) Recovery Expenses 1,858.70
(8) Container Replacement Value 92,000.00
(9) Dry Van Replacement Value 2,250.00