Mediterranean Shipping Company (USA) Inc. v. Cargo Agents, Inc.
Filing
21
MEMORANDUM OPINION AND ORDER re: #101146 11 FIRST MOTION for Summary Judgment Notice of Motion filed by Mediterranean Shipping Company (USA) Inc.: Plaintiff's Motion for Summary Judgment is granted. The Clerk shall enter judgment agains t Defendant for demurrage damages in the amount of $30,191, plus interest, calculated at the average short term T-bill rate for the period between May 6, 2010, and December 15, 2011. (Signed by Magistrate Judge Theodore H. Katz on 12/15/2011) (ab) Modified on 12/16/2011 (jab).
~================11,
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--x
MEDITERRANEAN SHIPPING CO.
(USA),
Plaintiff,
10 Civ. 5070 (THK)
against
MEMORANDUM OPINION
AND ORDER
CARGO AGENTS, INC.,
Defendant.
------
-------- ------- -----x
THEODORE H. KATZ, United States Magistrate Judge.
Plaintiff Mediterranean Shipping Co.
("Mediterranean ll )
(USA)
brought this admiralty action against Defendant Cargo Agents, Inc.
("Cargo Agentsll)
to recover demurrage.
Plaintiff now moves for
summary judgment pursuant to Federal Rule of Civil Procedure 56. 1
For the reasons set forth in this decision, the motion is granted.
BACKGROUND
Plaintiff Mediterranean is a New York corporation and common
carrier, which acts as the agent of Mediterranean Shipping Company
S.A., a Swiss entity.
corporation.
(Complaint
~
3.)
Cargo Agents is a New York
Mediterranean's primary business is the shipping of
large containers by sea to ports across the world.
"an
ocean
transport
intermediary"
based
in
Cargo Agents is
New
York.
The parties consented to proceed before this Court for all
purposes, pursuant to 28 U.S.C. 636(c).
Federal jurisdiction is
found in admiralty, under 28 U.S.C. 1333.
I
Affidavit of Hatt
Af f. ")
~
8.)
Brown, filed on October 31, 2011 ("Hattie Brown
The dispute between Mediterranean and Cargo Agents
is about a shipping container sent from Cherry Hill, Massachusetts,
bound for Vitoria,
delivered
a
Brazil.
forty- foot
It is uncontested that Cargo Agents
shipping
container,
contained personal items and household goods,
Mediterranean,
Massachusetts.
which
they
stated
to be delivered to
Mediterranean transported this
container over land to New York, where it was loaded onto a ship.
It arrived in Vitoria,
Brazil,
in March 2009,
and Mediterranean
notified Cargo Agents that the container had reached
s intended
port.
No one ever came to claim the contents of the container.
Soon
thereafter, Mediterranean sent notice to Cargo Agents that Cargo
Agents had exceeded their "free-time," and would be liable for
demurrage and other charges. 2
the cargo arrived in Vitoria,
In May 2010, more than a year after
the Brazilian government allowed
2 Typically,
a shipper is entitled to a certain number of
days, known in the industry as "free-time," to use a shipping
container. Once the shipper has exceeded this allotment, it may
owe a contractual fee to the shipping company, called
"demurrage."
(Declaration of Jorge Boose, dated October 7, 2011
("Jorge Boose Decl.") ~ 6); see, e.g., Evergreen Marine Corp. v.
Welgrow Int'l Inc., 954 F. Supp. 101, 102 (S.D.N.Y. 1997)
("Detention charges (or 'demurrage') are charges for delays in
returning cargo containers to the carrier within a specified time
after the goods are tendered to the consignee designated to
rece
the shipped goods in another port.") .
2
--------------"'I',""',••••••••••••••••••••••••••___
"i:Of
Mediterranean to remove the cargo and take its shipping container
back.
Mediterranean brought this suit, claiming it was entitled to
damages of $31,294.58, plus interest, as well as attorney's fees
and costs. 3
allegations
defenses,
Plaintiff,
Cargo Agents's Answer denied virtually all of the
in
the
Complaint,
and
asserted
including the absence of damages,
the
culpability of
eight
affirmative
the culpability of
"other third parties,"
and that
Defendant was acting as an agent for a disclosed principal.
Def.'s Ans. at 1-2.)
After the conclusion of pretrial discovery,
Mediterranean filed the instant motion.
DISCUSSION
I. The Summary Judgment Standard
A. Federal Rule 56
under Rule 56(c) of the Federal Rules of Civil Procedure, a
motion for summary judgment should be granted "if the pleadings,
the discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law."
Fed.
R. Civ. P. 56(c) (2); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322-23, 106 S. Ct. 2548, 2552-53 (1986)
i
Shannon v. N.Y. City
3 Plaintiff has asserted different amounts of damages at
different points in the litigation. The figure here is from
Jorge Boose's Declaration in Support of the Motion for Summary
Judgment.
(See Jorge Boose Decl. ~ 17.)
3
Transit Auth.,
332 F.3d 95,
98
(2d Cir.
2003).
The burden of
demonstrating the absence of any genuine dispute as to material
facts rests upon the party seeking summary judgment.
v.
S.
H.
Kress
&
Co.,
398 U.S.
144,
157,
Columbia Univ.,
224
90 S.
Ct.
F.3d 33,
1598,
41
1608
(1970) i
Weinstock v.
(2d Cir.
2000).
Once a properly supported motion for summary judgment has
been submitted, the burden shifts to the non-moving party to make
a sufficient showing to establish the essent
elements of the
claims on which it bears the burden of proof at trial.
See Hayut
v. State Univ. of N.Y., 352 F.3d 733, 743 (2d Cir. 2003)
~~~~~~~~~~~~,
i
326 F.3d 330, 337 (2d Cir. 2003)
(citing
Celotex, 477 U.S. at 323, 106 S. Ct. at 2553).
In assessing
the
record
genuine issue to be tried as
required
factual
to
resolve
inferences
255,
ambiguit
I
2505,
and
there
is
a
fact,
courts are
all
permissible
draw
the party against
2513
F.3d 137, 144 (2d Cir. 2006).
(1986)
whom summary
i
McClellan v.
Smith,
439
However, in opposing a motion for
the non-moving party must put forth "specific
facts showing there is a genuine issue
56 (e) (2) .
whether
Anderson v. Liberty Lobby, Inc., 477 U.S.
106 S. Ct.
summary judgment,
determine
to any material
in favor of
judgment is sought.
242,
to
trial."
Fed. R. Civ. P.
A summary judgment opponent "must do more than simply
show that there is some metaphysical doubt as
to the material
4
............................................
--------------------~i~:~,
_~
facts.
Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp.,
II
475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1989).
party may not
rely on its pleadings,
The non-moving
mere al
ions,
simple
denials, conclusory statements, or conjecture to create a genuine
issue for trial.
2514;
See Anderson, 477 U.S. at 256-57, 106 S. Ct. at
Guilbert v.
Jeffreys v.
Gardner,
480 F.
City of New York,
3d 140,
145
426 F.3d 549,
(2d
554
r.
2007) ;
(2d Cir.
2005)
(non-moving party "must offer some hard evidence showing that its
version of the events is not whol
fanciful") .
At the summary judgment stage, "it is undoubtedly the duty of
district courts not to weigh the credibility of the parties."
Jeffreys!
{noting
426
F. 3d at
that
554;
accord McClellan,
" [c]redibility
assessments,
439
F. 3d at
choices
144
between
conflicting versions of the events, and the weighing of evidence
are matters for the jury not for the court on a motion for summary
judgment"} .
B. Local Rule 56.1
Under the Southern District of New York's Local Civil Rule
56.1, a party moving for summary judgment must submit a "separate!
short
and
concise
statement,
in
numbered
paragraphs,
of
the
material facts as to which the moving party contends there is no
issue to be tried.
District of New York 56.1(a)
II
Local Civil Rule of the Southern
("Local Rule 56.1").
5
.,
Significantly,
"[e]ach numbered paragraph in the statement of material facts set
forth in the statement
will be deemed to be admitted for
purposes of the motion unless the nonmoving party specifically
controverts each item by a correspondingly numbered paragraph in
the
statement
II
Local
Rule
56.1
Both parties I
(c) .
statements must be "followed by citation to evidence which would be
admissible" under Federal Rule of Civil Procedure 56 (e) . Local Rule
56.1(d).
Defendant Cargo Agent has failed to comply with Local Rule
56.1, because it did not submit a numbered statement corresponding
to
Plaintiff s
statement
I
of
uncontested
facts.
party's failure to adhere to Local Rule 56.1(b)
A non-moving
can prove fatal
because "[it] permits the court to conclude that the facts asserted
in the statement are uncontested and admissible.
case
l
In the typical
failure to respond results in a grant of summary judgment
once the court assures itself that Rule 56's other requirements
have been met.
II
T.Y. v. New York City Dep/t of Educ.,
584 F.3d
4121 418 (2d Cir. 2009) (internal citations omitted) i see Gadsden v.
Jones
Lang
LaSalle
(S.D.N.Y. 2002)
Americas,
Inc.,
210
F.
Supp.
2d
430,
438
(collecting cases) ("[c]ourts in this circuit have
not hesitated to deem admitted the facts in a movant's Local Rule
56.1 Statement that have not been controverted by a Local Rule 56.1
statement
from
the
non-moving
party. II)
6
i
D'Angelo,
224
F.3d
137,
138
(2d Cir.
2000)
"appropriate" in light of non-moving party's
(summary
judgment
lure to comply with
Local Rule 56.1(b))
Nevertheless,
seeking summary
Local Rule
judgment
of
56.1
the
"does not absolve the party
burden of
entitled to judgment as a matter of law,
showing
that
it
is
and a Local Rule 56.1
statement is not itself a vehicle for making factual assertions
that
are
otherwise
unsupported
by
the
Rockefeller & Co./ Inc., 258 F.3d 62, 74
record."
Holtz
v.
(2d Cir. 2001); see also
Giannullo v. City of New York, 322 F.3d 139, 140 (2d
. 2003).
III. Uncontested Facts 4
Based on the submissions of the parties, the Court finds that
following
facts,
which are relevant
to all of
claims, are not subject to any serious disagreement.
iff's
There is no
question that the shipping container was delivered to Mediterranean
by Cargo Agents, in Massachusetts, in February 2009.
Boose Decl., Ex. B.)
That container was brought to the Port
Jorge
New
York, where it was loaded onto the m/v MSC Tanzania, which arrived
in Vitoria, Brazil in March, 2009.
The container was unloaded to
Many of these facts are drawn from Plaintiff's Local Rule
56.1 Statement, because Defendant has not disputed these facts
with any reference to admissible evidence. See Giannullo, 322
F.3d at 140;
Orient Overseas Container Line Ltd. v.
Crystal Cove Seafood Corp., No. 10 Civ. 3166 (PGG) , 2011 WL
4444527 at *1 n.l (S.D.N.Y. sept. 26, 2011).
4
7
the
marine
terminal
in
Mediterranean sent notice
~
Decl.
16.)
toria
on
Once the free-t
the
and it
the
container,
terminal until May 5, 2010.
2009,5
and
Jorge Boose
period of seven days had expired,
(Id.)
of
20,
to the Consignee. 6
notice was sent to Cargo Agents.
contents
March
Whi
No one arrived to pick up
remained
the
marine
the container was on the Vitoria
docks, Mediterranean attempted to contact Cargo Agents repeatedly.
(Id., Ex. C.)
On May 5, 2010, Mediterranean was granted permission
by the Brazilian Customs Authority to unpack and dispose of the
contents of the container, and to
It
is
uncontested
that
its container.
Mediterranean
and
Cargo
Agents
contracted to send the shipping container to Brazil, and that Cargo
Agents was the shipper listed on the
has further furnished a copy of that
11 of Lading.
Mediterranean
11 of Lading, as well as a
5 One of the exhibits filed with the Court suggests that the
container was discharged from the Tanzania on March 2, 2009,
(See Jorge Boose Decl., Ex. C), while the Complaint ~ 11,
the
Rule 56.1 Statement ~ 9, and the Memorandum of Law in Support of
Summary Judgment, at 7, all state that
was discharged on March
20, 2009.
The disparity in dates in Plaintiff's filings do not
affect the issue
liability, but do
fect the measure of
damages. The Court assumes that there was an error in the
exhibit, and that the container was discharged on March 20, 2009.
The Consignee is the client whom Cargo Agents was acting
on behalf of to ship the container.
In this case, the Consignee
was also the "Notify."
(
Jorge Boose Decl. ~ 16.) She is
1 ted on the Bill of Lading as "Alexandra Hernandez."
(Id., Ex.
6
C. )
8
copy
of
a
communication
between
the
part
s
confirming
that
Mediterranean sent Cargo Agents a copy of the Bill of Lading.
The Bill
\\ includ [ing]
Lading provides a
the
freight
and
1
definition of
charges,
costs
"freight"
and
as
expenses
whatsoever payable to the Carrier in accordance with the applicable
Tariff and this Bill of Lading,
demurrage."
1)
(Jorge
(emphasis added).
Boose
including storage, per diem and
Decl.,
Ex.
A,
11
of
Lading
~
The Bill of Lading also provides that the
"merchant," in this case,
Cargo Agents,
was required to pay the
full amount of freight under the contract.
(Id.
~~
2,
16.)
The contract makes it clear that Cargo Agents was responsible
for retrieving the container once it had been
port.
livered to the
The contract states that:
"[t]he Carrier allows a period of free time
the use
the containers and other equipment in accordance with
the Tariff and as advised by the local [Mediterranean]
agent at the Ports of Loading and Discharge.
Free time
commences from
day the Container and other equipment
collected by the Merchant or is discharged from the
Vessel or is delivered to the Place of Delivery as the
case may be.
The Merchant is required and has the
responsibility to return to a place nominated by the
carrier the Container and other equipment before or at
the end of the
time allowed at the Port of
scharge
or the Place of Delivery.
Demurrage, per diem and
detention charges will be levied and payable by the
Merchant thereafter in accordance with the Tariff."
(Id .
~
14. 8 . )
It further states that: "[t]he Merchant shall take
delivery of the goods within the time provided for in the Carrier's
9
applicable
ff
or
as
otherwise
agreed."
~
(Id.
20.2.)
Mediterranean has provided the Court with a schedule of demurrage
s for Vitoria, Brazil, that is part of the tariff mandated by
the Federal Maritime Commission.
free time,
Bill
of
and then lists its rate schedule for demurrage.
Lading
explicitly
lable on request,
tariff.
The tariff includes seven days of
(Id.
~
incorporates
the
tariff,
The
makes
and deems the shipper to be aware of
3.)
III. Plaintiff's Claim
For Demurrage
There is no material issue of fact with regard to Plaintiff's
claim for demurrage.
There was a contract between the parties,
which consisted of the Bill of Lading and the tariff which was
expressly incorporated into the contract.
Co.
v.
Elmore
& Stahl,
377
U.S.
134,
See Missouri Pac. R.R.
144,
84
S.Ct.
1142,
1148(1964) ("[t]he shipping contract consists of the bill of lading
and the applicable tariffs lawfully published and fi
from which
there may be no departure. 1/) (internal citations omitted) ( (Douglas,
J.,
dissenting);
accord Orient Overseas Container Line at *5.
"Where the language of a contract is clear, summary judgment
is appropriate, and the fact that one party may have a different
interpretation of the language does not make it any less plain."
Harris Trust and Sav. Bank v. John Hancock Mut. Life Ins. Co.,
970 F.2d 1138, 1147 (2d
1992) .
10
Here, the contract is clear
and unambiguous.
Section 2 states that Cargo Agents (designated as
"the Merchant") "warrants that.
[it] is
owner of the goods
or [agrees to the contract] with the authority of the owner." (Bill
of Lading ~ 2.)
Section 3 states that the tariff is incorporated
into the contract, and specifically directs the shipper to possible
~
charges, including demurrage.
3.)
Section 20 states that
the merchant is responsible for ensuring the delivery of the goods.
~
20.)
Demurrage is a standard fee associated with shipping through
common carriers;
so much so that courts have found it to be an
implied
maritime
term
in
contracts.
See,
e.g.
Safmarine
v.
Columbia Container Lines (USA), Inc., No. 10 Civ. 1825(KAM), 2010
WL 7134001 at *3 (E.D.N.Y. 2010) (collecting cases).
The term was
explicitly used in the Bill of Lading, and the tariff including the
schedule of fees was easily accessible to Defendant.
Contrary to
Defendant's characterization of Plaintiff's cause of action as an
"attempt[] to create a windfall profit by relying on the fine print
of its Bill of Lading
is simply asking for
"(Hattie Brown Aff.
~
7), Plaintiff
they are entitled to under long standing
industry practice and the terms of its agreement with Defendant.
And Defendant was not an unsophisticated party: Cargo Agents is an
Ocean Transportation Intermediary (Id.
~
8), an indus
position
well-enough defined to have its own section in the United States
11
Code.
See 46 U.S.C.
40901.
§
Defendant raises several purported disputes as to facts or its
defenses.
None of these
s
preclude summary judgment.
a material dispute
that can
First, Defendant claims that the Court
must determine why it took over one year for the container to be
returned.
dispute.
Agents,
(Def.' s
Mem.
at
2.)
But
this
is
immaterial
to the
The terms of the Bill of Lading make it clear that Cargo
not
Mediterranean,
returning the container.
was
responsible
(Jorge Boose Decl.
for
I
unpacking
and
Ex. A , 14.8); see
also Pennsylvania R. Co. v. Moore-McCormack Lines, Inc., 370 F.2d
430,
431-32
where
(2d Cir.
defendant
stevedores'
was
1966) (upholding an award of demurrage even
prevented
from
retrieving
Mediterranean
strike) .
has
its
cargo by a
further
provided
uncontroverted evidence that it made several attempts to contact
Cargo Agents.
, Ex. C).
Defendant's vague insinuations that
Mediterranean may have acted in bad
th to maximize demurrage
costs is no more than conjecture, and conjecture does not create a
dispute about a material
====~,
issue of
See Matsushita Elec.
475 U.S. at 586, 106 S.Ct. at 1356.
Defendant also claims that a trial is necessary to determine
whether or not Plaintiff received money
cargo.
But
Defendant
had
an opportunity
the liquidation of the
to
conduct
pretrial
discovery and has not prof erred any competent evidence indicating
12
that Plaintiff received value for the liquidation of the cargo.
Even were a more intens
would not
preclude
-finding process necessary,
granting
R.
Civ.
Mediterranean
liability.
See Fed.
P.
necessary.
The cargo was listed as
summary
judgment
56(g). And fact-finding
~household
this
on
not
goods and personal
effects,U and can be presumed to have little resale value.
Schwab
v.
Reilly,
130
U.S.
S.Ct.
2652,
2675
n.11
(2010) (discussing the household goods exemption in the context of
bankruptcy proceedings) .
Accordingly, the Court finds that Plaintiff Mediterranean is
entitled to summary judgment against Defendant Cargo Agents on its
ent
lement to demurrage.
IV. Damages
A. Demurrage
Plaintiff asks for an award of damages of $31,344.58,
Boose Decl.
~
(Jorge
17), which its claims as the amount owed in demurrage
fees and other costs associated with retrieving the container. 7
This figure is based on the tariff rate.
Defendant argues that Plaintiff's theory of damages is flawed.
The Rule 56.1 Statement states that the total fees are
$31,294.58 (Rule 56.1 Statement' 12), and the Complaint lists a
different f
The Declaration is the only submission that
includes an accounting, and the Court has therefore relied
primarily upon it.
7
13
(Hattie Brown Aff.~~ 5-6.)
demonstrate
any
actual
Defendant claims that Plaintiff cannot
loss
shipping container, and that,
entitled to damages.
Demurrage
is
(Id.
an
~
due
to
the
therefore,
unavailability
of
the
Plaintiff should not be
7.)
accepted
form
of
liquidated
damages
in
shipping, see Ocean Transp. Line v. AM. Philippine Fiber Ind., 743
F.2d 85, 90 (2d Cir. 1984) ; see also Toyomenka Pacific Petroleum,
Inc.
v.
Hess
(S.D.N.Y.
Oil
Virgin
1991) ("Demurrage
Islands
Corp.,
has
sometimes
stipulated damages for detention."
and in any event,
771
F.
Supp.
69
described
been
63,
as
(internal citations omitted),
Plaintiff is not allowed to deviate from its
published tariff.
See 46 U.S.C.
show actual
that
loss,
inquiry
§
1S
41104.
While Plaintiff must
not used as
the
measure of
damages where the contract provides for a reasonable demurrage fee.
See Marin Tug & Barge,
App'x
757,
759
(9th
Inc. v. Westport Petroleum,
Cir.
2001) ("[T]he
mere
Inc.,
1 Fed.
stipulation
of
a
liquidated sum for demurrage [does not] obviat[e] the need to show
actual damages.
At the same time,
actual damages does not vitiate the
the requirement of proving
[stipulated]
demurrage rate
unless such a rate is so excessive that it constitutes a
penalty.") (alterations
citations omitted).
in
This
original) (internal
quotations
and
rule has been established since the
earliest days of federal admiralty jurisprudence.
14
See, e.g. The
::..::&::.===, 22 U.S. 362, 378
(1824) ("In truth, demurrage is merely an
lowance or compensation for the delay or detention
a vessel.
It is often a matter of contract, but not necessarily so.").
In
other words, once a plaintiff has demonstrated that there has been
loss,
loss
that is, the loss of the use of a container,
the amount of
measured by the demurrage rate.
The Court, therefore, awards Plaintiff damages for demurrage
in the amount of $30,191.
This figure was reached based on the
The tariff provides for 7 days of
applicable tariff.
which ran from March 20, 2009 until March 26, 2009.
8 days, from March 27, 2009 until
was $49.00 per day,
-time,
For the next
1 4, 2009, the demurrage rate
For the remaining 387
or $392.00 in total.
days, the demurrage rate was $77.00 per day, or $29,799 in total.
The final figure for demurrage is therefore $30,191.
Plaintiff has also asked for a variety of administrative costs
and charges.
Jorge Boose Decl.
~
17.)
While these requests
are relatively modest, the Court either cannot find these charges
listed on the Bill of Lading, or the amounts for the charges do not
correspond
to
the
fees
listed
on
the
11.
For
example,
Mediterranean asks for a "Terminal Handling Charge" of $211.56, but
that is listed on the Bill of Lading as a $300.00 fee.
fees,
such as the "Bill of Lading Fee,"
The other
the "MSC Administrative
Fee," and the "ISPS Charge," do not correspond to any charges on
15
the Bill of Lading that Mediterranean produced to the Court, and no
other proof of these charges has been submitted.
Therefore,
the
Court cannot find sufficient proof of these fees, and declines to
award them.
B. Interest
Plaintiff also asks for an award of interest on its damages.
"Although it is an abuse of discretion to deny prejudgment interest
in admiralty cases except under extraordinary circumstances,
dis
the
t court has broader discretion to determine when interest
commences and what rate of interest to apply."
Independent Bulk
Transport, Inc. v. Vessel Morania Abaco, 676 F.2d 23, 25 (2d Cir.
1982) (internal citation omitted).
to be solely compensatory.
In admiralty, interest is meant
See New York Marine & Gen. Ins. Co. v.
Tradeline (L.L.C.), 266 F.3d 112, 131 (2d Cir. 2001)
~~~-===~~~~===,
160 F.2d 502, 506.
i
O'Brien Bros.
(2d Cir. 1947).
Since interest is meant to be compensatory, and Mediterranean
will be compensated through demurrage
for
the
lost use of
its
shipping container during the time when the container was detained,
the Court concludes that
interest should commence on May 6, 2010,
the day when Mediterranean disposed of the cargo and recovered its
container, and run until the entry of judgment.
will be based on
The interest rate
average 4-Week Treasury Bill rate for that
time period.
266 F.3d at 131("Interest is
16
,
;
intended to make the injured party whole
be
measured
by
interest
on
obligations. ") (internal quotat
Dessert Service,
Inc. v.
. . and generally should
short term,
risk-free
marks and citations omitted);
M/V MSC Jamie/Rafaela,
219 F.
504, 509 (S.D.N.Y. 2002) (" [t]he T-bill rate more c
Supp.
2d
ly parallels
the income the damages would have earned in a short-term, risk-free
investment. ") (citing Transatlantic Marine Claims Agency Inc. v. M/V
"OCCL INSPIRATION", 137 F.3d 94, 104
(2d Cir. 1998)).
C. Attorneys' Fees and Costs
Plaintiff also requests attorneys' fees and costs related to
pursuing this claim.
The contract between the parties includes a
provision for the award of attorneys' fees,
Ex. A
to
~
14.7), and there is no question that parties are entitled
seek
fees
and
costs
under
such
Reliance Standard Life Ins. Co.,
57
(See Jorge Boose Decl.,
(2010).
Nevertheless,
a
provision.
U.S.
it is a
See
-, 130 S.Ct. 2149,2156
I-established rule in this
Circuit "that absent unusual circumstances attorneys are required
to submit contemporaneous
~~~~-=~~==-===~===,
records with the fee applications."
626 F.3d 130, 133 (2d Cir. 2010)
(citing
New York State Ass'n for Retarded Children v. Carey, Inc., 711 F.2d
1136 (2d Cir. 1983))
Supp.
2d
347,
356
i
see also Tucker v. City of New York, 704 F.
(S.D.N.Y.
2010) ("fee
applications
accompanied by contemporaneous time records .
17
. ").
must
be
Plaintiff's
counsel has submitted no time records reflecting the work
they seek fees,
expended.
or evidence of the
Accordingly,
which
hourly rates or the costs
their request for the award of fees and
costs is denied.
CONCLUSION
For the foregoing reasons, Plaintiff's Motion for Summary
Judgment is granted.
The Clerk shall enter judgment against
Defendant for demurrage damages in the amount of $30,191, plus
interest, calculated at the average short term T-bill rate for
the period between May 6, 2010, and December 15, 2011.
SO ORDERED.
;;>
THEODORE H. KATZ
UNITED STATES MAGISTRATE JUDGE
Dated: December 15, 2011
New York, New York
18
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