Of the Southern District of New York, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 04-2168

EIMSKIP, THE ICELAND STEAMSHIP COMPANY, LTD;

EIMSKIP USA, INC.,

Plaintiffs, Appellees,

v.

ATLANTIC FISH MARKET, INC.,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Morris E. Lasker, U.S. District Judge] *

Before

 Boudin, Chief Judge,

Lynch and Lipez, Circuit Judges.

Gerald J. Zyfers for appellant.

David J. Farrell, Jr. with whom Admiralty Law Office of David

J. Farrell, Jr. was on brief for appellees.

July 27, 2005
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BOUDIN, Chief Judge. This appeal is brought by Atlantic

Fish Market, Inc. (“Atlantic”), a co-defendant in the district

court, to review a judgment of the district court holding Atlantic

liable for freight charges and attorneys’ fees. The plaintiff in

the district court was the carrier, EIMSKIP, The Iceland Steamship

Company, Ltd. (“EIMSKIP”), which transported the shipments in

question--frozen herring--from Massachusetts to Estonia in July

2001. The story is swiftly told.

In June 2001, prior to the shipments now in dispute,

Atlantic booked two shipments of frozen herring to be transported

by EIMSKIP from Massachusetts to Estonia ("the June shipments").

The bills of lading listed Mayflower International, Ltd.

("Mayflower") as the fish's shipper and consigned the fish "to

order of shipper"; but Atlantic received the freight invoices and

paid the charges. Atlantic also purchased the fish, paying

Mayflower half the purchase price upon loading of the cargo and the

balance upon its arrival in Estonia.

A month later, three more such shipments were made ("the

July shipments"). The district court later found that Atlantic was

responsible (among other tasks) for booking two of these shipments

with EIMSKIP, negotiating the freight rates, and receiving the

cargo in Estonia. It also found that Atlantic represented to both

EIMSKIP and Mayflower that it would pay the freight. Mayflower

took responsibility for examining the fish before shipment,
The district court found that Mayflower and Atlantic were not 1

acting as partners in a single venture--rather, the former was a

sales agent for the producers of the herring, H&L Axelsson, while

the latter was either the buyer of the fish or an agent for or

joint venturer with OU Watkins, the ultimate buyer.

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coordinating the shipment dates, proofing and finalizing the bills

of lading, and administering other shipping details.

As was the case with the June shipments, the bills of

lading in July listed Mayflower as the shipper and the goods were

consigned "to order of shipper." Mayflower's principal, William C.

Quinby, testified at trial that this had been done to ensure that

control of the cargo would not pass to Atlantic until Atlantic had

paid for the fish. Quinby stated that Mayflower was seeking "to

maintain control of the cargo for the owners of the cargo, H&L

Axelsson, and not let the cargo be released until they had secure

payment." H&L Axelsson is not a party to this proceeding.1

When the herring arrived in Estonia in late July, the

freight–-totaling $91,840--remained unpaid. EIMSKIP placed a hold

on the cargo, and Mayflower called EIMSKIP to say that Atlantic had

not yet paid the purchase price for the herring and that Mayflower

did not wish the cargo to be released to Atlantic. Atlantic, the

district judge found, eventually promised again that it would pay

for the freight, and EIMSKIP then turned over the herring after

Mayflower agreed to the release.

Atlantic then failed to pay the freight charges, first

saying that it was having financial trouble and would pay as soon
The bills of lading provided inter alia that any “Merchant” 2

had to indemnify the carrier for collection costs and defined

merchant to include the shipper, receiver, consignee, or bill of

lading holder and anyone owning or entitled to possession of the

shipment whether as agent or otherwise.

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as possible and later saying that it would not pay because there

had been problems with the cargo. In July 2002, EIMSKIP brought

suit against Atlantic and Mayflower in the federal district court

in Massachusetts, seeking to recover freight charges and also

seeking related collection costs (including attorneys’ fees) under

a bill of lading provision purporting to make a variety of persons

liable for collection costs.2

After a bench trial, the district court found that

Atlantic and Mayflower had both been shippers of the cargo.

Because Mayflower was listed as the shipper and consignee on the

bills of lading, the court said that it was presumptively primarily

liable for the freight charges. But the court held that in this

instance Atlantic was primarily liable (and Mayflower only

secondarily liable) because of 

Atlantic's multiple representations to both

Mayflower and EIMSKIP that it would be liable

for the cargo; the course of dealings among

the parties prior to the shipments at issue

(in particular, Atlantic's payments of the two

prior invoices [for the June shipments]); and

EIMSKIP's decision to lift the hold on the

cargo after speaking to [Atlantic's president

Boris] Sorkin . . . . 
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As to collection costs, the district court held that the

pertinent condition in the bill of lading making the “merchant”

liable applied to both Atlantic and Mayflower and made each company

jointly and severally liable for specified costs and attorneys'

fees (approximately $62,000). It entered judgment against the

defendants as to freight and collection costs in accordance with

its liability findings. Atlantic has now appealed, contesting its

liability as to both freight and attorneys’ fees.

Atlantic’s claim on appeal as to freight charges is

straightforward. It says that it was neither shipper nor consignee

on the bill of lading and that under the federal Carriage of Goods

by Sea Act (“COGSA”), 46 U.S.C. app. §§ 1300-1315 (2000), only a

party so named in the bill of lading can be held liable for freight

charges. Whether Atlantic could be regarded as a party to the bill

of lading despite not being named does not matter because

Atlantic's understanding of COGSA as the exclusive basis for

liability is mistaken.

COGSA, which applies to specified classes of shipments

including this one, governs certain aspects of the relationship

between carrier and shipper. For example, it imposes specific

duties and liabilities on the carrier, including an obligation to

furnish a bill of lading to the shipper, 46 U.S.C. app. § 1303; and

it provides procedures and a statute of limitations for claims

against the carrier for lost or damaged goods, id. What it does
Another set of federal statutory provisions, 49 U.S.C. §§ 3

80101-80116, applicable to any transportation of goods via common

carrier "from a place in a State to a place in a foreign country,”

id. § 80102, also imposes statutory duties on carriers and

regulates bills of lading for such transportation; but, like COGSA,

it does not create liability for freight charges or regulate

collection of such charges by the carrier.

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not do is create a cause of action for, or regulate the collection

of, freight charges.3

"Absent a relevant statute, the general maritime law, as

developed by the judiciary, applies." East River S.S. Corp. v.

Transamerica Delaval, Inc., 476 U.S. 858, 864 (1986). Anyone who

contracts to pay for ocean freight can be held liable in accordance

with ordinary contract law as applied in maritime matters. See

Norfolk S. Ry. Co. v. Kirby, 125 S. Ct. 385, 397 (2004). And oral

contracts are valid under general maritime law. See Kossick v.

United Fruit Co., 365 U.S. 731, 734 (1961); Fontneau v. Town of

Sandwich, 251 F. Supp. 2d 994, 1001 (D. Mass. 2003). Under general

maritime law, this is a simple case. 

The evidence adduced at trial supports the district

court’s finding that Atlantic agreed with EIMSKIP to pay the

freight for the July shipments in return for EIMSKIP's services in

transporting the herring to Estonia. This finding was well

supported by subsidiary findings that Atlantic on numerous

occasions made oral promises to pay the freight on the July

shipments; that Atlantic was invoiced by EIMSKIP for the freight on

both the June and July shipments (Mayflower was never invoiced for
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these shipments); that Atlantic did in fact pay the freight on the

June shipments; and that Atlantic's president failed to dispute the

invoices in numerous conversations with EIMSKIP between August 2001

and July 2002.

The only subsidiary finding disputed by Atlantic on this

appeal is the district court’s finding that Atlantic orally booked

the first two of the July shipments. Atlantic's president, who

offered the only contradictory testimony, was found by the district

court to be "uncooperative, evasive, non-responsive, and less than

credible." "[C]redibility determinations are rather well insulated

from appellate challenge." Pimentel v. Jacobson Fishing Co., 102

F.3d 638, 640 (1st Cir. 1996). The district court did not commit

“clear error”–-the applicable standard on review, Fed. R. Civ. P.

52(a); Rational Software Corp. v. Sterling Corp., 393 F.3d 276, 276

(1st Cir. 2005)--in accepting the view that Atlantic booked the

shipments.

This is ample to sustain Atlantic’s liability without

regard to whether Atlantic was technically a party to the bill of

lading. Two parties may each make themselves liable to a third

party for payment of the same freight on a single shipment–-one by

a contract reflected in part by the bill of lading and the other by

explicit promises and course of conduct independent of the bill of

lading. On the district court’s findings Atlantic made such
Cf. Pacific Coast Fruit Distributors, Inc. v. Pa. R.R. Co., 4

217 F.2d 273, 274-75 (9th Cir. 1954) (holding that a defendant,

"though not named as a party in the original bill-of-lading became

such by amendment, as it were," since the defendant was "designated

as consignee by the shipper" after the bill of lading had been

executed, "took over control and direction of the shipment and made

successive reconsignments thereof").

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promises both before the voyage and to facilitate release of the

cargo.

Whether Atlantic could be held liable on the bill of

lading is a separate question. Conceivably someone might be liable

on a bill of lading without being named in it, either through

agency doctrine or by separately agreeing to be subject to its

terms. All that matters in this case is that there is nothing in 4

general maritime law or in the precedents concerning bills of

lading that makes them the exclusive means of creating liability

for freight charges. 

In Louisville & Nashville R.R. Co. v. Central Iron & Coal

Co., 265 U.S. 59, 67 (1924), chiefly relied upon by Atlantic, the

Supreme Court said that "[t]o ascertain what contract was entered

into we look primarily to the bills of lading, bearing in mind that

the instrument serves both as a receipt and as a contract," and

that "[o]rdinarily, the person from whom the goods are received for

shipment assumes the obligation to pay the freight charges; and his

obligation is ordinarily a primary one." This probably remains the

usual situation.
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Yet Louisville & Nashville R.R. Co. itself, as well as

circuit courts in subsequent cases, have held that this pattern and

presumption can be overcome by statute, by contractual provisions,

or by the parties' course of conduct. See Louisville & Nashville

R.R. Co., 265 U.S. at 67-68; A/S Dampskibsselskabet Torm v.

Beaumont Oil Ltd., 927 F.2d 713, 716-22 (2d Cir.), cert. denied,

502 U.S. 862 (1991); States Marine Int'l, Inc. v. Seattle-First

Nat'l Bank, 524 F.2d 245, 247-49 (9th Cir. 1975); see also Capitol

Transp., Inc. v. United States, 612 F.2d 1312, 1319-21 & n.10 (1st

Cir. 1979) (holding that the bill of lading is not the only

evidence as to the identity of the consignee). 

The district court also ruled that as between Atlantic

and Mayflower, the former was “primarily” liable. In fact the

district court said further that Atlantic could not seek indemnity

or contribution from Mayflower and that Mayflower would be liable

only if EIMSKIP could not collect from Atlantic. Atlantic has

failed to challenge this determination on appeal, so we are spared

any need for further discussion of the issue.

This brings us to the award of attorneys' fees. In its

opening brief, Atlantic offers an argument of three paragraphs

comprising two points. The main claim is that the district judge

erred in allegedly failing to give Atlantic the requisite time to

respond to EIMSKIP’s request for fees. The secondary claim is that

the district court should have reduced the amount because the fees
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sought (so far) are about two-thirds the amount of the underlying

freight claim and therefore excessive.

Starting with chronology, the district court entered its

main order imposing liability for freight charges, costs and

attorneys' fees on July 14, 2004. On July 20, 2004, EIMSKIP filed

a declaration in support of attorneys’ fees setting forth counsel’s

invoices by date and providing a brief justification. On July 27,

2004, at Mayflower’s request, EIMSKIP filed a supplemental

declaration providing daily time sheet summaries and other

information. On August 4, 2004, the district judge entered final

judgment, including the requested attorneys’ fees.

Neither during this two week period, nor afterwards, is

there any filing in the district court reflecting an objection or

opposition by Atlantic. Now, on appeal--apparently dating from

July 27 forward--Atlantic says that it was a violation of Local

Rule 7.1 for the district court to act on Atlantic’s request

without waiting the 14 days provided by the rule for one party to

respond to a motion filed by another. See D. Mass. R. 7.1(b)(2).

EIMSKIP disputes that the local rule applied, but we need not

decide the issue.

If Atlantic actually intended to oppose the request for

attorneys' fees and was surprised by a premature entry of judgment,

it certainly had a duty to tell the district judge and request an

opportunity to respond. Of course, a litigant does not in all
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circumstances have an obligation to return to the district judge

and challenge every mistake before appealing. But it is impossible

to believe that the judge would not have accepted an arguably

belated filing where, as here, the deadline was perhaps uncertain

because of EIMSKIP's supplemental filing or the applicability of

the local rule.

In all events, we need not consider further whether the

local rule was applicable or whether the objection should be deemed

forfeit. Instead, we deal directly with the single substantive

objection that Atlantic now makes to the bill for attorneys' fees.

In its opening brief, Atlantic argues that the fee award is

inherently unreasonable because it is large and almost two thirds

of the amount collected in freight charges. Atlantic has now seen

the supporting material and does not suggest that it sees anything

wrong with the documentation.

On the merits of the objection, we think it is hopeless.

There is no necessary relationship between the amount of the

freight owed and the cost of collection, the latter depending on

the complexity of the facts and legal issues, the number of

depositions and documents, and the length of trial. Nor is the

plaintiff carrier, in the face of recalcitrance, required to forgo

suit on amounts owed to it because the costs of collection-–to be

paid by a defendant–-equal or exceed the initial debt. So far as

we can tell, counsel’s fee was well earned.
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In its reply brief, Atlantic offers for the first time on

appeal that whatever its liability for freight charges, liability

for attorneys’ fees depends (under the American rule) on a specific

statute or contract, and here the only contract providing for such

liability is the bill of lading. We add that the broad “merchant”

definition in the bill of lading-–although it probably embraces

Atlantic-–arguably is not binding on someone who was not (in some

fashion) a party to the bill of lading or otherwise accepted the

obligation.

Whether Atlantic is liable for counsel fees presents nice

issues--for example, whether Atlantic is implicitly a party to the

bill of lading or whether its separate promises to pay for the

shipments incorporated counsel fees as well as freight. But

Atlantic has forfeited any such argument against its liability for

counsel fees by omitting it from its opening brief, thereby

depriving EIMSKIP of an opportunity to respond. That is the end of

the matter. See Rivera-Muriente v. Agosto-Alicea, 959 F.2d 349,

354 (1st Cir. 1992).

The judgment in this case, admirably handled by the

district court, is affirmed.