(1) $ 120,975.00 for 24 Chassis; and
(2) $ 171,470.00 for 31 Flatbed trailers. See Appendix G.
3. Recovery Expenses. Pursuant to P 9 of the Terms and Conditions of the Lease Agreement, upon defendants' default Flexi-Van is entitled to payment of all costs and expenses incurred by Flexi-Van to recover and retake its leased equipment. Flexi-Van's Accounting Department created a distinct General Ledger code (no. 6314) in order to capture expenses incurred by Flexi-Van in its recovery efforts. The aggregate amount incurred by Flexi-Van from May 1990 through June 26, 1992 is $ 18,352.00. Generally, this represents costs paid to third party depots for storage and handling and costs paid to trucking companies for repositioning equipment into Flexi-Van facilities.
4. The General Ledger did not capture the $ 6,000.00 Mr. Rhodes paid Trident Shipping to recover four flatbeds earlier this year. Flexi-Van is entitled to this recovery expense as well.
5. Flexi-Van is now in the process of securing the release of its equipment from Davis Transportation. By the time it has done so, Flexi-Van will have paid an amount in excess of $ 6,000.00 to Davis Transportation. However, Flexi-Van is not entitled to any more than $ 6,000.00 as a recovery expense at this time.
6. Total recovery expenses amount to $ 30,352.00 ($ 18,352.00 $ 6,000.00 $ 6,000.00 = $ 30,352.00).
7. Legal Fees. Pursuant to P 9 of the Terms and Conditions of the Lease Agreement, upon defendants' default Flexi-Van is entitled to attorney's fees incurred in its efforts to retake its equipment and to recover rental, repair and other amounts due and owing. Thus, Flexi-Van is entitled to recover the following fees it incurred:
(1) $ 78,204.00 to Flicker & Associates, Flexi-Van's counsel in this action;
(2) $ 2,464.39 to Sinkler & Boyd, in connection with a litigation Flexi-Van commenced in Charleston, South Carolina against Container Management Corp. seeking recovery of certain Flexi-Van equipment under lease to Pharos Lines detained by Container Management because defendants owed Container Management storage, handling and trucking charges; as a result of the litigation, Flexi-Van successfully recovered all of the equipment from Container Management Corp., thereby mitigating its damages in this matter;
(3) $ 2,971.85 to Mel Winter, for stenographer costs (the taking of pretrial depositions and obtaining deposition transcripts);
(4) $ 1,684.80 to Southern District Reporters, P.C., for stenographer costs (the trial transcript).
8. On defendants' counterclaim, Flexi-Van is liable for $ 3,334.00 for charges associated with the recovery of equipment in Romania and $ 360.00 for charges associated with the recovery of equipment in Turkey, totalling $ 3,694.00. See Conclusions of Law P 16.
III. Additional Conclusions of Law
1. As discussed in the court's Conclusions of Law, defendants are jointly and severally liable for the full amount of damages. As a party to the Lease Agreement with Flexi-Van, Pharos Lines is directly responsible for breaches thereunder which damaged Flexi-Van. Constellation Navigation, through its extensive general agency relationship with Pharos Lines, also owed a duty to Flexi-Van to maintain and safeguard the leased equipment and to effect timely rental payments. constellation Navigation breached its duty and converted 55 units.
2. In its Findings of Fact and Conclusions of Law, the court found that Flexi-Van abrogated its duty to mitigate damages in late January 1991 when it refused to pay Mr. Davis the $ 6,000.00 he requested for the release of Flexi-Van equipment on lease to Pharos Lines located on his premises. See Conclusions of Law P 7. Had Flexi-Van paid the $ 6,000.00, it would have recovered 28 units. Therefore, from its failure to mitigate, it follows that Flexi-Van is not entitled to casualty value damages for the 28 units nor can Flexi- Van recover accrued rental fees on any of these units from February 1, 1991 to the present.
3. On the other hand, as damages in this action Flexi-Van is entitled to recover any expenses which it incurs while reclaiming its equipment from Davis Transportation. The only such recovery expense proved by Flexi-Van regards the money Mr. Davis requests for the release of the equipment. Flexi-Van asserts that by the time it has secured the release of its equipment, it will have paid an amount in excess of $ 6,000.00 to Davis Transportation. However, since the court has ruled that Flexi-Van should have mitigated its damages in late January 1991 by paying Mr. Davis the $ 6,000.00 he requested for the release of the equipment, Flexi-Van is not entitled to any more than $ 6,000.00 as a recovery expense at this time.
4. To the extent that any of the 28 units located at Davis Transportation are damaged, Flexi-Van can also recover its repair costs.
Dated: August 10, 1992
New York, New York
Constance Baker Motley
United States District Judge
[See Appendix A through G in original]