Cashman Equipment Corp v. Rozel Operating Co. et al

Filing 385

ORDER AND REASONS: Cashman's Motion to Correct a Clerical Error Under Rule 60 of the Federal Rules of Civil Procedure (Doc. # 364) is GRANTED and Cashman is awarded pre-judgment interest at the Louisiana interest rate, beginning on August 30, 20 07, as to its damages against Rozel, and beginning on July 1, 2010, as to its damages against Stokes, and post-judgment interest as to its damages against Rozel and Stokes at the federal interest rate from the date of the judgment. Cashman's Mot ion for a New Trial (Doc. #364) is otherwise DENIED.IT IS FURTHER ORDERED that, considering Cashman's Motion for Attorneys' Fees andCosts (Doc. #362), the record, the applicable law, the United States Magistrate Judge's Report and Reco mmendation (Doc. #379), and the parties' objections to the United States Magistrate Judge's Report and Recommendation (Docs. #380, 381), hereby approves the United States Magistrate Judge's Report and Recommendation and adopts it as it s opinion in this matter with respect to theamount of attorneys' fees and costs awarded to Cashman from Rozel. Accordingly, Cashman is awarded $129,669.62 in attorneys' fees and $15,471.12 in costs from Rozel. (Signed by Judge Mary Ann Vial Lemmon) (Nelson, Cesyle)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
CASHMAN EQUIPMENT CORP.

CIVIL ACTION

VERSUS

NO: 08-363

ROZEL OPERATING CO., ET AL.

JUDGE LEMMON
MAGISTRATE SHUSHAN

ORDER AND REASONS
IT IS HEREBY ORDERED that Cashman's Motion to Correct a Clerical Error Under Rule
60 of the Federal Rules of Civil Procedure (Doc. # 364) is GRANTED and Cashman is awarded
pre-judgment interest at the Louisiana interest rate, beginning on August 30, 2007, as to its damages
against Rozel, and beginning on July 1, 2010, as to its damages against Stokes, and post-judgment
interest as to its damages against Rozel and Stokes at the federal interest rate from the date of the
judgment. Cashman's Motion for a New Trial (Doc. #364) is otherwise DENIED.
IT IS FURTHER ORDERED that, considering Cashman's Motion for Attorneys' Fees and
Costs (Doc. #362), the record, the applicable law, the United States Magistrate Judge's Report and
Recommendation (Doc. #379), and the parties’ objections to the United States Magistrate Judge's
Report and Recommendation (Docs. #380, 381), hereby approves the United States Magistrate
Judge's Report and Recommendation and adopts it as its opinion in this matter with respect to the
amount of attorneys’ fees and costs awarded to Cashman from Rozel. Accordingly, Cashman is
awarded $129,669.62 in attorneys' fees and $15,471.12 in costs from Rozel.
BACKGROUND
This matter is before the court on a motion for new trial filed by Cashman Equipment
Corporation. Cashman argues that: (1) it should have been awarded charter hire as a matter of law;
(2) it was legal error to "merge" its causes of action against Rozel and Stokes; (3) the enforceability

of the agreed value of the JMC 109 was an issue of law that should not have been submitted to the
jury; (4) Rozel should be required to exhaust the funds it received from its settlement with St. Paul
Surplus Lines Insurance Company before seeking reimbursement from the settlement funds
deposited into the registry of the court by Continental Insurance Company; and, (5) the Judgment
should specify that Cashman is awarded pre-judgment interest, the interest rate and the date on
which it began to accrue, along with post-judgment interest and its interest rate.
Rozel operates a natural gas production platform located in the Gulf of Mexico off the coast
of Cameron, Louisiana in the West Cameron Block No. 2. In June 2007, Stokes, an engineering and
consulting company with which Rozel has had a Master Service Contract for engineering and
consulting services since November 20, 2003, arranged under bareboat charter parties for Rozel to
charter from Cashman two barges, JMC 107 and JMC 109, to be used as breaker barges near the
platform. Rozel intended to partially submerge the barges near the platform to alleviate wave action
while work was performed on the platform. The JMC 107 and JMC 109 were converted wingwall
sections of a World War II Navy drydock. Cashman represented to Stokes and Rozel that it had
converted the wingwall sections into barges that would be suitable to use as breaker barges.
Pursuant to the charter parties, Rozel retrieved the barges from Cashman in Amelia,
Louisiana, began paying charter hire, and transported the barges to the platform. Stokes utilized two
tug boats in the sinking operation. While the JMC 109 was being ballasted, the JMC 107 came
loose, and one or both of the tugs went to retrieve it.
On August 15, 2007, Rozel attempted to pump out the barges to return them to Cashman.
The JMC 107 was raised on August 30, 2007, and returned to Cashman at Dulac, Louisiana on
2

September 13, 2007. Rozel was unable to deballast the JMC 109, and consequently, has not
returned it to Cashman. Further, Rozel ceased paying charter hire for the JMC 109 as of August 30,
2007.
On June 18, 2008, Cashman filed this suit against: Rozel Operating Company; Continental
Insurance Company, which issued the hull and machinery insurance policy to Rozel on the JMC
109; St. Paul Surplus Lines Insurance Company, which issued a commercial general liability
insurance policy and an excess insurance policy to Rozel that were effective at the time of the
incident; the owners of the tug boats, in personam; and, the tug boats, in rem.1 In its complaint
alleging that Rozel breached the charter parties, Cashman asserts that this court has subject matter
jurisdiction over this action pursuant to its admiralty jurisdiction, 28 U.S.C. § 1333, and,
alternatively, diversity jurisdiction, 28 U.S.C. § 1332. Cashman demanded a jury on all issues.
On July 1, 2010, Cashman amended its complaint adding Stokes & Spiehler Offshore, Inc.
as a defendant, alleging that Rozel negligently entrusted the barges to Stokes, and that Stokes was
negligent in the manner in which it sank and attempted to raise the barges. The amended complaint
reiterated that this court has admiralty and/or diversity subject matter jurisdiction, but did not
include a jury demand.2
1

Prior to trial, the court dismissed Cashman's claims against St. Paul and the tug boat interests with
prejudice. St. Paul and Continental settled all of the other claims in which they were involved. Continental
deposited settlement funds into the registry of the court and Cashman and Rozel entered into an agreement
regarding the post-trial disbursement of the funds that depended on the outcome of the trial.
2

On May 24, 2012, Cashman moved to strike its jury demand arguing that a jury trial was
inappropriate in this matter because it is brought pursuant to the court's admiralty jurisdiction under § 1333.
(Doc. #225). Cashman contended that it inadvertently included the jury demand in its complaint, but deleted
the jury demand from its amended complaint. The court denied the motion, finding that Cashman invoked
its right to a trial by jury when it commenced the litigation on June 18, 2008, a representation upon which
all of the parties relied for four year prior to Cashman's motion. The court reasoned that none of Cashman's
remaining claims were within the court's exclusive admiralty jurisdiction, and the court would not disturb the
parties' long-standing reliance upon the fact that there would be a jury trial. (Doc. #255).

3

Rozel filed a counter-claim against Cashman alleging that Cashman committed fraud or
fraudulently induced Rozel into chartering the JMC 109.

Rozel contended that Cashman

misrepresented the condition of the JMC 109 and its suitability for use as a breaker barge, or
alternatively, that Rozel detrimentally relied on Cashman’s representations about the JMC 109.
The case was tried to a jury from December 3, 2012 to December 10, 2012. The jury found
that Cashman did not commit fraud or fraudulently induce Rozel to enter into the charter party for
the JMC 109, nor did Rozel detrimentally rely on Cashman’s representations about the condition
of the barge. The jury found that Rozel breached the charter party by failing to return the JMC 109
in “the same good and seaworthy condition as when received” except for ordinary wear and tear.
The jury found that the $2,000,000 agreed value of the JMC 109 in the charter party was not fair and
reasonable, and that $200,000 was a fair and reasonable value. The jury found that Stokes’
negligence in handling the JMC 109 caused Cashman to sustain damages in the amount of $200,000.
The jury found that Rozel was responsible for 40% of Cashman's damages, and Stokes was
responsible for 60% of Cashman's damages.
The court entered judgment on the jury verdict awarding Cashman $200,000 in damages,
plus interest, with Rozel responsible for 40% of the damages and Stokes responsible for 60% of the
damages. The judgment also specified that $200,000 of the funds deposited into the registry of the
court by Continental be held in the registry of the court to act as a supersedeas bond for any appeal
taken on behalf of Rozel and/or Stokes and/or otherwise applied toward the monetary judgment in
favor of Cashman, and that the remaining excess funds held in the registry of the court be used to
reimburse Rozel and/or Stokes after the JMC 109 has been successfully retrieved. Thereafter,
Cashman filed this motion for new trial.

4

ANALYSIS
A.

Motion for New Trial
1. Legal Standard
Rule 59 of the Federal Rules of Civil Procedure provides that the court may grant a motion

for a new trial on some or all of the issues “after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court.” FED. R. CIV. P. 59(a)(1)(A). Rule 59
does not enumerate the specific grounds for which a new trial can be granted. See id. The United
States Court of Appeals for the Fifth Circuit has stated that “a district court may grant a new trial
if the court finds that the verdict is against the weight of the evidence, the damages awarded are
excessive or inadequate, the trial was unfair, or prejudicial error was committed in its course.”
McFadden v. Wal-Mart Stores, 2006 WL 3087164, *2 (5th Cir. 2006) (citing Smith v. Transworld
Drilling Co., 773 F.2d 610, 613 (5th Cir. 1978)). Further, a new trial must be granted if the court
is unable to logically reconcile an inconsistent jury verdict. Id. (citing Willard v. The John
Hayward, 577 F.2d 1009, 1011 (5th Cir. 1978)). Whether to grant a motion for new trial is within
the sound discretion of the trial court. Id. (citing Pryor v. Trane Co., 138 F.3d 1024, 1026 (5th Cir.
1998)). However “[c]ourts do not grant new trials unless it is reasonably clear that prejudicial error
has crept into the record or that substantial justice has not been done, and the burden of showing
harmful error rests on the party seeking the new trial.” Del Rio Distrib., Inc. v. Adolph Coors Co.,
589 F.2d 176, 179 n. 3 (citing 11 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 2803, at 31-33 (3d ed. 1973)).
Rule 60(a) of the Federal Rules of Civil Procedure allows the court to correct a clerical
mistake or a mistake arising from an oversight omission in the judgment, order, or other part of the

5

record. The court may do so on its own motion, with or without notice to the parties. FED. R. CIV.
P. 60(a).
2. Judge or Jury
Cashman argues that the enforceability of the $2,000,000 agreed value of the JMC 109 in
the charter party was an issue of law that should have been decided by the court, and that it should
have been awarded charter hire as a matter of law.3
i. The $2,000,000 Agreed Value of the JMC 109
Cashman argues that once the jury found that the charter party was a valid and enforceable
contract, it should have automatically been awarded the $2,000,000 agreed value of the JMC 109,
as provided in the contract without questioning the reasonableness of that value. Also, Cashman
argues that the reasonableness of the agreed value was a legal issue that the court, rather than the
jury, should have decided.
A stipulated damages clause in a maritime contract cannot be enforced if it is "so
unreasonably large as to be a penalty." Int'l Marine, L.L.C. v. Delta Towing, L.L.C., 704 F.3d 350,
354 (5th Cir. 2013). The reasonableness of stipulated damages is determined as follows:
The first factor is the anticipated or actual loss caused by the breach.
The amount fixed is reasonable if it approximates the actual loss that
has resulted from a particular breach, even though it may not
approximate the loss that might have been anticipated under other
possible situations, or if the breach approximates the loss anticipated
at the time of making the contract, even though it does not
approximate the actual loss. The second factor is the difficulty of
proof of loss. The greater difficulty of proof of loss, the more
flexibility is allowed in approximating the anticipated or actual harm.

3

Cashman contends in its memorandum in support of its motion for a new trial that the jury should
have found that Stokes’ negligence was the proximate cause of the loss of charter hire and awarded such
damages to Cashman against Stokes. Cashman did not raise this issue at trial. Thus, it will not be analyzed.

6

Farmers Export Co. v. M/V GEORGIS PROIS, 799 F.2d 159, 162 (5th Cir. 1986) (internal citations
omitted).
The jury was instructed regarding stipulated damages, as follows:
Parties to a contract may stipulate, or agree on, the amount of
damages to be recovered in case of breach of the contract. Stipulated
damages are enforced when they are a fair and reasonable attempt to
fix just compensation for an anticipated loss caused by a breach of
contract.4 However, stipulated damages are not enforced when they
are not a fair and reasonable attempt to fix just compensation for an
anticipated loss caused by a breach of contract, or if the stipulation
was procured by fraud.5
*

*

*

Stipulated damages may not include a penalty for
nonperformance. However, the stipulated damages may be equal to
the actual loss that has resulted from a particular breach, or the loss
anticipated at the time of making the contract. Further, if it is
difficult to prove the amount of the loss, the parties are allowed great
flexibility in setting the stipulated damages for a breach of the
contract.6
Whether a stipulated damages clause is unreasonable, and thus an impermissible penalty, is
a question of law for the court. Id. However, in determining reasonableness, the court must rely on
findings of fact. Int'l Marine, L.L.C., 704 F.3d at 354 (quoting Farmers Export, 799 F.2d at 164).
The jury's finding regarding the reasonableness of the agreed value of the JMC 109 is based on
factual findings, and will be treated as an advisory verdict. See id. at 354-55.

4

This jury instruction was derived from Prieb & Sons v. United States, 68 S.Ct. 123, 126 (1947).
("When [liquidated damages] are fair and reasonable attempts to fix just compensation for anticipated loss
caused by breach of contract, they are enforced").
5

Rozel alleged that Cashman committed fraud or fraud in the inducement in connection with the
charter party. The jury specifically found that Cashman did not commit fraud or fraud in the inducement.
6

This paragraph was derived from Farmers Export, 799 F.2d at 162, quoted herein above.

7

The evidence admitted at trial demonstrated that on March 31, 2006, Cashman paid $50,000
for the wing wall that became the JMC 109. Cashman initially insured the JMC 109 for $50,000,
and listed its value as $64,332.40 on its internal records.7 There no evidence that the $2,000,000
agreed value of the JMC 109 in the charter party approximated the actual value of the JMC 109.
Based on these facts, the jury reasonably concluded, and the court concurs, that a reasonable value
of the JMC 109 was $200,000.
ii. Lost Charter Hire
Cashman argues that the jury verdict is inconsistent in that the jury found that Rozel
breached the charter party by failing to return the JMC 109 to Cashman, but found that Rozel did
not breach the charter party by failing to pay charter hire. Cashman argues that under the terms of
the charter party, Rozel was obligated to pay charter hire until the JMC 109 was returned to
Cashman, or until it was declared a constructive total loss. Cashman argues that when the JMC 109
was a “total loss” is a legal issue, and the court should have awarded it charter hire from the date
Rozel stopped paying, August 30, 2007, until the JMC 109 was deemed a total loss. Cashman
contends that the JMC 109 was not a total loss until February 28, 2008, when Rozel received an
estimate of $3,000,000 to retrieve the JMC 109, which exceeded the JMC 109's $2,000,000
stipulated value. Thus, Cashman argues that it is entitled to an award of charter hire due from August
30, 2007 to February 28, 2008.

7

Cashman argues that the court improperly excluded evidence that would have demonstrated that
the value of the JMC 109 was $2,000,000. The court excluded this evidence, which included surveys of other
barges in Cashman's fleet, as irrelevant because the other barges that Cashman sought to use as comparisons
were completely different from the JMC 109 and were not appropriate indicators of the value of the JMC 109.

8

Rozel argues that no charter hire was due after August 30, 2007, because that is when the
vessel became a constructive total loss. Rozel argues that Cashman, as the claimant under the
contract, had the burden of proving its entitlement to lost charter hire, and that Cashman did not
prove that the vessel was not deemed a constructive total loss as of August 30, 2007. Specifically,
Rozel argues that Cashman did not prove that it would have cost less than the fair market value of
the JMC 109 to raise it on August 30, 2007.
A vessel is a constructive total loss when the repair costs exceed the fair market value of the
vessel immediately prior to the casualty. Gaines Towing and Transp., Inc. v. Atlantia Tanker Corp.,
191 F.3d 633, 635 (5th Cir. 1999). When a vessel is a constructive total loss "the market value of
the vessel is the ceiling of recovery." Id. (citing Pizani v. M/V COTTON BLOSSOM, 669 F.2D
1084, 1088 (5th Cir. 1982); O'Brien Bros. v. THE HELEN B. MORAN, 160 F.2D 502, 505 (2nd Cir.
1947)). "Damages for loss of use may not be awarded when the vessel is a constructive total loss."
Id. (citing Ryan Walsh Stevedoring Co. v. James Marine Servs., Inc., 792 F.2d 489, 491 (5th Cir.
1986)).
Whether a vessel is a "constructive total loss" is a mixed issue of fact and law because it
requires factual findings. Mixed questions of law and fact are properly submitted to the jury. Int'l
Paper Co. v. Busby, 182 F.2d 790, 792 (5th Cir. 1950). Thus, this issue was properly submitted to
the jury for determination.
The jury was instructed that "[t]he burden of proof in an action for breach of contract is on
the party claiming rights under the contract." The jury was also instructed, regarding damages, that:
A claimant has the burden of proving damages by a
preponderance of the evidence, and it is for you to determine what,
if any, damages have been proved. You should not award damages
for speculative injuries or losses, but only for those injuries or losses
which the claimant, has proved it actually sustained.
9

*
*
*
If you find in favor of a claimant that the other party breached
a contract between the parties, then you are to award that claimant the
damages it proved that it sustained because of the other party’s
breach. You are to measure such breach of contract damages by the
loss sustained by the claimant and the profit of which it has been
deprived. If neither item of damages is present, there has been no
damage and no reparation is owed.
Cashman did not meet its burden of proving that Rozel breached the charter party by failing
to pay charter hire or that it is due charter hire from August 30, 2007, until February 28, 2008. As
the claimant under the contract, to recover for lost charter hire, Cashman had the burden of proving
that the JMC 109 was not a constructive total loss on August 30, 2007. There is no evidence that
the cost of raising the JMC 109 would have been less on August 30, 2007, than either the vessel's
stated value of $2,000,000, or reasonable value of $200,000. Thus, the vessel was a constructive
total loss when it was unable to be deballasted, and Cashman is not entitled to additional charter hire
from August 30, 2007, and Cashman's motion for new trial as to its entitlement to lost charter hire
and the value of the JMC 109 is DENIED.8
3. "Merging" Cashman's causes of action against Rozel and Stokes
Cashman argues that it was legal error to "merge" its "discrete causes of action against"
Rozel and Stokes. Cashman alleged a breach of contract claim against Rozel and a tort claim against
Stokes, and argues that the jury awarded it $200,000 for Rozel's breach of contract and $200,000
for Stokes' negligence. Cashman argues that asking the jury to quantify the percentage of its

8

Cashman has not proved that it was prejudiced, or that substantial justice was not done, by
submitting the question of charter hire to the jury. Considering the evidence admitted at the trial, the court
would have reached the same conclusions as the jury regarding Cashman's failure to prove that it was entitled
to lost charter hire. The court also notes that Rozel introduced evidence that the JMC 109 was not fit for use
as a breaker barge because it lacked water-tight compartments that are required for proper ballasting and
deballasting. The JMC 109's lack of internal structure made it reasonable for Rozel to assume that the JMC
109 was a constructive total loss and cease paying charter hire when it was unable to raise the JMC 109 on
August 30, 2007.

10

damages attributable to Rozel and Stokes improperly merged Rozel's liable for a breach of contract
and Stokes' liable for a tort.
"Proportional damages based on degrees of fault is now the general rule for damages in
maritime property cases." Agrico Chem. Co. v. M/V BEN W. MARTIN, 664 F.2d 85, 93 (5th Cir.
1981) (holding the defendants comparatively at fault where one was liable under the contractual duty
of workmanlike performance, and the other under general negligence principles). Further, two
parties may be found liable for the same set of damages although the theories of liability differ. See
LA. CIV. CODE art. 1791 ("An obligation may be solidary though it derives from a different source
for each obligor"); LA. CIV. CODE art. 2323(B) ("The provisions of Paragraph A [comparative fault]
shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law
or legal doctrine or theory of liability, regardless of the basis of liability").
The jury found the reasonable value of the JMC 109 was $200,000, and that Cashman
sustained $200,000 in damages as a result of Stokes' negligent handling of the JMC 109. The jury
further found that the damages Cashman sustained were caused 40% by Rozel and 60% by Stokes.
There was no quantification of the damages caused by Rozel's failure to return the vessel. Cashman
argues that the jury's findings are inconsistent and that it is entitled to a new trial. However, even
if the jury's findings are inconsistent, a new trial is not necessary if the court can logically reconcile
the jury's findings. McFadden, 2006 WL 3087164, at *2.
In this case, Cashman's damages cannot exceed the fair and reasonable value of the vessel,
which the jury found, and the court concurs, was $200,000.9 Gaines Towing, 191 F.3d at 635 (When

9

Cashman argues that the jury's award of $200,000 against Stokes could have been for expenses,
such as dive surveys and sonar scans, that Cashman incurred after the JMC 109 could not be retrieved on
August 30, 2007. When a vessel is a total loss, the vessel owner may "be reimbursed for the necessary
expense of raising the barge, to determine whether it could be repair advantageously or not, and because it
was liable to become an obstruction to navigation." Louisville & Cincinnati Packet Co. v. United Coal Co.,

11

a vessel is a constructive total loss "the market value of the vessel is the ceiling of recovery"). The
inconsistent verdict can be reconciled by attributing the percentages of damages caused by both
defendants, as found by the jury, to the value of the vessel, as determined by the jury and adopted
by the court. Thus, Cashman's motion for a new trial is DENIED as to finding error in "merging"
its causes of action against Rozel and Stokes.
4. Rozel's Use of the St. Paul Settlement Funds
Cashman argues that Rozel should be required to exhaust the funds it received from its
settlement with St. Paul to pay for raising the JMC 109 before seeking reimbursement from the
settlement funds deposited into the registry of the court by Continental. Cashman argues that Rozel
should be forced to use funds from St. Paul for raising the JMC 109 because the St. Paul policy
included wreck removal and such liability was contemplated in that settlement. Cashman argues that
the Continental policy did not include such coverage, thus wreck removal liability was not
contemplated in that settlement. Cashman argues that it would be unfair to allow Rozel to use the
Continental funds for wreck removal.
Prior to trial, Cashman and Rozel entered into a settlement agreement with Continental
whereby Continental deposited $1,500,000 into the registry of the court, and the parties agreed to
terms for the post-trial disbursement of the funds. In that agreement, Cashman and Rozel agreed
that:
223 F. 300, 304 (6th Cir. 1915). Cashman included various cancelled checks and invoices in its exhibit
books that show that it spent a total of $30,278 on dive surveys, sonar scans, and sue and labor charges after
the JMC 109 could not be raised. No evidence exists to support Cashman's argument that an additional
$200,000 was incurred in connection with this loss. Besides, the JMC 109 was a constructive total loss that
was abandoned on August 30, 2007, and Rozel has assumed the responsibility of raising it. Cashman offers
no explanation as to why such expenses were incurred, and never directly presented the evidence to the jury.
Thus, Cashman's recovery is limited to the reasonable value of the vessel, $200,000, and Cashman cannot
recover any amounts in excess of that value.

12

The Continental Funds ($1.5M) will be applied toward any judgment
for monetary damages taken by Cashman against Rozel and/or Stokes
and/or taken by Rozel against Cashman and held in the registry of the
court pending all appeals to secure such money judgment. Any
excess Continental Funds over and above such monetary damage
awards will be held in the registry of the Court to reimburse the
party(ies) held responsible to retrieve the JMC 109 (Rozel, Stokes
and/or Cashman – but not Stansbury) for such retrieval after the JMC
109 has been successfully retrieved.
*

*

*

The parties agree that (i) they will not litigate entitlement to the
Continental Funds under the terms of the policy and/or defenses
thereto, (ii) the Court will allocate the Continental Funds in
accordance with the terms contained herein, without consideration of
any Continental policy terms or rights or defenses under same, and
(iii) to the extent these terms do not cover a scenario at trial, the
Court will allocate the Continental Funds in accordance with the
verdict and law, applying same in the manner the Court determines
is in compliance with the intent of the parties, as documented herein.
Thus, Cashman and Rozel's pre-trial agreement regarding the disbursement of the
Continental funds establishes that any funds in excess of a money judgment for either party would
be applied to reimburse the party held responsible to retrieve the JMC 109. In light of the jury
verdict, Rozel has assumed such responsibility. The jury awarded Cashman $200,000 in monetary
damages, therefore, per the parties' agreement, the remainder of the Continental funds is available
to Rozel to cover the cost of retrieving the JMC 109. Thus, Cashman's motion for a new trial is
DENIED as to Rozel's use of the St. Paul settlement money to retrieve the JMC 109.
5. Interest
Cashman argues that the judgment should specify that the Louisiana interest rate applies and
that interest began to accrue on August 30, 2007, because Rozel ceased paying charter hire when

13

it could not raise the JMC 109 on that date.10
When a federal district court exercises diversity subject matter jurisdiction under 28 U.S.C.
§ 1332, such as in this case, pre-judgment interest on a money judgment is determined by state law,
whereas post-judgment interest on money judgments is governed by 28 U.S.C. § 1961(a). See Fuchs
v. Lifetime Doors, Inc., 939 F.2d 1275, 1280 (5th Cir. 1991). Louisiana Civil Code article 2000
provides that, "[w]hen the object of the performance is a sum of money, damages for delay in
performance are measured by the interest on that sum from the time it is due . . . at the rate of legal
interest fixed by R.S. 9:3500." In St. Paul's Evangelical Lutheran Church v. Quick Response
Restoration, Inc., 381 F. App'x 408, 412 (5th Cir. 2010), the United States Court of Appeals for the
Fifth Circuit noted that:
Louisiana substantive law presumes that interest will be awarded on
judgments, LA. CIV. CODE art. 2000, and "a debt or claim for
payment of money or damages under a contract is ascertainable and
becomes due on the date an active violation occurred or the obligor
was put in default, which can be earlier but never later than judicial
demand, and legal interest runs from that date."
(quoting Mini Togs Prods., Inc. v. Wallace, 513 So.2d 867, 873 (La. Ct. App. 1987)).
On the other hand, Louisiana law provides that interest is calculated from the date of judicial
demand for tort damages. LA. REV. STAT. § 13:4203. As the United States Court of Appeals for the
Fifth Circuit explained in In re Matter of Complaint of Settoon Towing, L.L.C., - - - F.3d - - -, 2013
WL 3013868, at *13 (5th Cir. 6/18/2013), Louisiana law distinguishes between "ex delicto" and "ex
contractu" damages:
10

Rozel and Stokes argue that the court has discretion in maritime cases to deny pre-judgment
interest, and that this is a case were it should be denied because there was a genuine dispute over a good faith
claim and Cashman was awarded substantially less than it had claimed. In the judgment, the court awarded
interest to Cashman. Rozel and Stokes did not file a motion to amend the judgment to eliminate the interest
award. Therefore, this argument will not be analyzed.

14

The Louisiana Court of Appeals explained that "the classic
distinction between 'damages ex contractu' and damages 'ex delicto'
is that the former flow from the breach of a special obligation
contractually assumed by the obligor, whereas the latter flow from
the violation of a general duty owed to all persons."
(quoting Amoco Proc. Co. v. Tex. Meridian Res. Exploration Inc., 180 F.3d 664, 672 (5th Cir. 1999)
(alterations removed) (quoting Davis v. LeBlanc, 149 So.2d 252, 254 (La. Ct. App. 1963)).
In this case, Cashman's damages against Rozel are "ex contractu" because they "flow from
the breach of a special obligation contractually assumed by the obligor." Id. (quoting Davis, 149
So.2d at 254). Thus, pre-judgment interest, at the rate set by La. Rev. Stat. § 9:3500, on Cashman's
damages from Rozel began to accrue on August 30, 2007, when Rozel failed to return the JMC 109.
Cashman's damages against Stokes are "ex delicto" because they arose from the breach of
a duty. Therefore, pre-judgment interest, at the rate set by La. Rev. Stat. § 9:3500, on Cashman's
damages from Stokes began to accrue on July 1, 2010, the date of judicial demand, when Cashman
filed its amended complaint adding claims against Stokes.
Title 28, United States Code, Section 1961(a) provides that "[i]nterest shall be allowed on
any money judgment in a civil case recovered in a district court," and "[s]uch interest shall be
calculated from the date of the entry of judgment, at a rate equal to the weekly average 1–year
constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve
System, for the calendar week preceding the date of the judgment." Thus, Cashman is entitled to
post judgment interest on the awards agaisnt Rozel and Stokes under §1961 from the date of the
judgment until the damages are paid.

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B.

Attorney's Fees
The charter party for the JMC 109 states that:
The CHARTERER further agrees that in the event of any legal action
or arbitration arising out of or as a result of CHARTERER's breach
or default of any of the provisions and covenants of this charter, that
said CHARTERER shall pay reasonable attorney's fees incurred by
OWNER and all costs involved therein.

Thus, in accordance with the terms of the charter party, the Judgment in this matter provided:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
Cashman Equipment Corporation is awarded the reasonable
attorneys' fees and costs incurred in its prosecution of its claims
against Rozel Operating Company, Inc. on which it was successful,
all in accordance with the terms of the charter party for the JMC 109.
This court referred the matter to the United States Magistrate Judge for a Report and
Recommendation on the amount of attorneys' fees and costs that should be awarded to Cashman.
Cashman sought $518,678.50 in attorneys' fees and $61,884.50 in costs. Cashman submitted bills
that included block billing entries.
The Magistrate Judge determined that Cashman had limited success on its claims against
Rozel, obtaining only 10% of the recovery it sought, and determined that Cashman's defeating
Rozel's fraud claims were essential to Cashman's ability to prevail on any of its claims against Rozel.
The Magistrate Judge reviewed Cashman's bills, and noted that the block billing made it impossible
for her to determine the attorneys' fees and costs that pertained exclusively to claims upon which
Cashman was successful. The Magistrate Judge applied the lodestar method, and reduced
Cashman's requested attorneys' fee by 15% to $440,876.50, but found that amount, was excessive
considering Cashman's limited success. Thus, the Magistrate Judge found that an award of 25% of
the total attorneys' fees and costs incurred by Cashman was reasonable, and recommended that

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Cashman be awarded $129,669.62 in attorneys' fees and $15,471.12 in costs.
In Hensley v. Eckerhart, 103 S.Ct. 1933, 1942-43 (1983), the Supreme Court of the United
States found that an attorneys' fees and costs award should be reasonable in light of the level of
success. The court stated that "[a] reduced fee award is appropriate if the relief, however significant,
is limited in comparison to the scope of the litigation as a whole." Id. at 1943.
In this case, Cashman had a limited amount of success as compared with the scope of the
litigation as a whole. Cashman sought in excess of $2,000,000, and the jury awarded it only
$200,000. The Magistrate Judge's recommendation of awarding Cashman 25% of the attorneys' fees
and costs sought is reasonable in light of the circumstances, and is hereby adopted by this court.
CONCLUSION
IT IS HEREBY ORDERED that Cashman's Motion to Correct a Clerical Error Under Rule
60 of the Federal Rules of Civil Procedure (Doc. # 364) is GRANTED and Cashman is awarded
pre-judgment interest at the Louisiana interest rate, beginning on August 30, 2007, as to its damages
against Rozel, and beginning on July 1, 2010, as to its damages against Stokes, and post-judgment
interest as to its damages against Rozel and Stokes at the federal interest rate from the date of the
judgment. Cashman's Motion for a New Trial (Doc. #364) is otherwise DENIED.
IT IS FURTHER ORDERED that, considering Cashman's Motion for Attorneys' Fees and
Costs (Doc. #362), the record, the applicable law, the United States Magistrate Judge's Report and
Recommendation (Doc. #379), and the parties’ objections to the United States Magistrate Judge's
Report and Recommendation (Docs. #380, 381), hereby approves the United States Magistrate
Judge's Report and Recommendation and adopts it as its opinion in this matter with respect to the
amount of attorneys’ fees and costs awarded to Cashman from Rozel. Accordingly, Cashman is
awarded $129,669.62 in attorneys' fees and $15,471.12 in costs from Rozel.

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15th
New Orleans, Louisiana, this _____ day of July, 2013.

____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE

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