1 The Herbert Schmidt drawbridge links Galveston Island with Pelican Island at the western end

of the Galveston Ship Channel.

1 United States Court of Appeals,

Fifth Circuit.

No. 95-40221.

GALVESTON COUNTY NAVIGATION DISTRICT NO. 1, Plaintiff-Appellee,

v.

HOPSON TOWING COMPANY, INC., Defendant,

and

M/V MISS SANDY, its engines, tackle, equipment, machinery, gear, furniture, apparel,

appurtenances, etc.; Hopson Transportation, Inc.; Hopson Marine Transportation, Inc., DefendantsAppellants.

Aug. 27, 1996.

Appeal from the United States District Court for the Southern District of Texas.

Before GARWOOD, EMILIO M. GARZA and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

The M/V Miss Sandy, a tug boat owned and operated by defendants-appellant s Hopson

Transportation, Inc., et al. (defendants), was pushing two barges when one of the barges allided with

a drawbridge owned and operated by plaintiff-appellee Galveston County Navigation District No. 1

(plaintiff). Following a bench trial, the district court found in favor of the plaintiff. Moreover, the

district court ordered the defendants to pay plaint iff attorneys' fees totaling $20,000. The defendants

appeal, challenging only this award of attorneys' fees.

Facts and Proceedings Below

On March 11, 1993, one of two barges being pushed by the defendants' tug boat, the M/V

Miss Sandy , allided with the southeast fender system of the Herbert Schmidt drawbridge. 1 This

drawbridge is o wned, maint ained, and operated by the plaintiff. The resulting damages were

surveyed, and although the parties agreed to the amount of damages, they disagreed regarding the2

apportionment of fault relating to this accident. Accordingly, the plaintiff filed this suit in the district

court below against Hopson Transportation, Inc., which owned and operated the M/V Miss Sandy

on the date of the allisio n, against Hopson Marine Transportation, Inc., which owned the M/V Miss

Sandy at the time this suit was filed, and also against the M/V Miss Sandy, in rem.

Prior to trial, the plaintiff responded to the defendants' discovery requests by presenting its

two bridge tenders for deposition. The plaintiff likewise took the depositions of several persons,

including Douglas Ebert, the mate of the M/V Miss Sandy at the time of the accident, Ricky Borres,

the captain of the M/V Miss Sandy at the time of the accident, and Joseph Hopson, the President of

Hopson Transportation, Inc. and Hopson Marine Transportation, Inc. Additionally, the defendants

responded to plaint iff's requests for admissions, written interrogatories, and requests for production.

At trial, the plaint iff put on evidence regarding the standard operating procedures employed

to insure that the drawbridge is fully open and in a fixed position in sufficient time for a vessel to pass

through the bridge without incident. The plaintiff adduced evidence that the drawbridge complied

with these procedures, but that the M/V Miss Sandy failed to (1) properly al ign its tows, (2)

adequately anticipat e current and wind conditions, (3) maintain proper speed, and (4) adequately

communicate with the drawbridge during its approach.

In response, the defendants adduced evidence at trial that the drawbridge did not respond to

the M/V Miss Sandy's init ial attem pts at radio contact—on two different channels—for three to five

minutes. Only after the M/V Miss Sandy sounded a whistle signal did the drawbridgge would be

opened when the M/V Miss Sandy drew a bit closer. The parties offered conflicting evidence

concerning the location of the M/V Miss Sandy when the bridg e began to open. The defendants

offered testimony that the M/V Miss Sandy had to be stopped because the bridge was not sufficiently

opened, and Mate Ebert was concerned that his t o w would allide with the drawbridge itself.

Moreover, testimony was presented that subsequently, after the bridge had further opened, the tug

boat, finding itself unable to turn around safely in the channel after coming to a stop, elected to

proceed forward through the drawbridge. Finally, t he defendants offered testimony that the2 In presenting this defense, the defendants relied on the Bridge Act of 1906, 33 U.S.C. § 494,

which requires that "[T]he draw shall be opened promptly by the persons owning or operating

such bridge upon reasonable signal ..." Similarly, 33 C.F.R. § 117.5 was cited by the defendants in

that it mandates the opening of drawbridges "promptly and fully for the passage of vessels when a

request to open is given ..."

3 Judgment was entered against Hopson Transportation, Inc. and Hopson Marine

Transportation, Inc. in personam, and against the M/V Miss Sandy in rem, jointly and severally,

in the sum of $80,570.53. This sum was comprised of the following: (1) $56,152.20 for

damages, $4,418.33 for prejudgment interest, and $20,000 for attorneys' fees; (2) interest thereon

at the rate of five percent per annum from the date of the judgment until paid; and (3) court costs

totaling $211.60.

4 The district court found support for this award of attorneys' fees in an Eighth Circuit opinion

that the district court erroneously cited as a decision from this Circuit, E.I. DuPont de Nemours &

Co. v. Riverw ay Harbor Service St. Louis, Inc., 639 F.2d 404 (8th Cir.1981). That case, which

we have never cited, involved an action for indemnity based on the active-passive negligence

doctrine; we expressly disavowed this doctrine in Loose v. Offshore Navigation, Inc., 670 F.2d

493, 502 (5th Cir.1982). Citing Riverw ay Harbor Service, the district court observed that "[T]his

3 drawbridge's failure to open t imely forced the tug boat to lose its maneuverability close to the bridge,

which in turn contributed to its barge's allisio n wit h the southeast fender system of the bridge. 2

Therefore, the parties disputed at trial whether the bridge had been timely raised and whether delay

in raising, if any, contributed to the allision.

The district court found that the plaintiff carried its burden of proving reasonable operati on

of the bridge, and that no act or omission on the part of the plaint iff caused or contributed to causing

the allisio n. The court further found that the M/V Miss Sandy was guilty of causative negligence in

the following particulars: (1) failing to undertake adequate communications with the bridge on its

approach, (2) failing to maintain proper speed and to maintain steerage way in its approach, (3) failing

to back away or take evasive measures once a pro blem wit h the bridge was apprehended, and (4)

failing to adequately anticipate current and wind conditions during its approach. The court also found

that the M/V Miss Sandy's owners failed to give her captain adequate notice of potential problems

with the bridge approach. Therefore, the court held that the defendants were solely and one hundred

percent liable for the stipulated damages (with prejudgment interest) arising from this accident. 3

Furthermore, the district court held that the plaint iff was entitled to recover $20,000 in

reasonable and necessary attorneys' fees. 4 In so holding, the court asserted that:Circuit has expressly held that trial courts sitting in admiralty have power to impose attorney's

fees."

4 "[T]he defense offered by the Defendants in regard to the claim of this case borders on the

frivolous, is unsupported factually from a common sense standpoint, is contradi ctory factually

even as regards its own merits, and is ut t erly incredible to the Court in any respect ... It is

necessary to award Plaintiff its attorney's fees in order to make Plaintiff whole."

Citing Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 1407,

18 L.Ed.2d 475 (1967), the district court conc luded t hat t he circumstances of the present case

justified the award of attorneys' fees to an "admiralty plaint iff" as an item of compensatory damages.

Citing Vaughan v. Atkinson, 369 U.S. 527, 530-31, 82 S.Ct. 997, 999-1000, 8 L.Ed.2d 88 (1962),

the court held that:

"By failing to pay for the damages it obviously caused in an amount that Defendants

stipulated and agreed was reasonable, the Defendants have not acted in an equitable manner

in the equity action before this Court and have required Plaint iff to incur significant attorney's

fees in order to recover the d amages relat ing to its traffic fender system that were plainly

owed to Plaint iff. Defendants' default herein was willful and persistent." (internal citations

omitted).

We must note, however, that the district court prefaced it s finding that the defense

"border[ed] on the frivolous" with praise for defense counsel's conduct: "In this case,

notwithstanding the fine efforts of counsel for defendant, which the Court only commends and finds

no impropriety with in any respect whatsoever ..." Moreover, at the close of its remarks regarding

the award of attorneys' fees, the court addressed counsel for both sides and offered additional praise:

"All right. Well, again, I would like to thank each of you for your thoughtfulness and your

assistance throughout the resolution of the case. I would like to commend each of the parties

again, notwithstanding the me chanics of the resolution of the case, for a superb job in the

preparation of and presentation of the case. I'm very pleased that each of the attorneys here

is an officer of this court and I look forward to many opportunities to work with each of you

in the future."

The district court entered judgment on February 28, 1995. The defendants appeal only that

portion of the judgment awarding the plaintiff attorneys' fees.

Discussion

Pursuant to the "American Rule," "In the United States, the prevailing litigant is ordinarily

not entitled to collect a reasonable attorneys' fee from t he loser." A lyeska Pipeline Service Co. v.5 We note that 28 U.S.C. § 1923(a) authorizes, inter alia, the recovery of "[a]ttorney's and

proctor's docket fees" of "$20 on trial or final hearing ... in civil, criminal, or admiralty cases,

except that in cases of admiralty and maritime jurisdiction where the libellant recovers less than

$50, the proctor's docket fee shall be $10; $20 in admiralty appeals involving not over $1,000;

$50 in admiralty appeals involving not over $5,000; $100 in admiralty appeals involving more

than $5,000" and "$2.50 for each deposition admitted in evidence." Clearly, this is not the

statutory provision underpinning the award of attorneys' fees presently at issue.

6 Additionally, 28 U.S.C. § 1927 provides that:

"Any attorney or other person admitted to conduct cases in any court of the

United States or any Territory thereof who so multiplies the proceedings in any

case unreasonably and vexatiously may be required by the court to satisfy

personally the excess costs, expenses, and attorneys' fees reasonably incurred

because of such conduct."

In Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27

(1991), the Supreme Court held that this and similar statutory provisions did not entirely

displace the inherent power of the courts to impose sanctions for certain bad faith

conduct. Id. at 46-48, 111 S.Ct. at 2134. In reaching this conclusion, the Court referred

expressly to the inherent power of the federal courts to assess attorneys' fees when a party

has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Id. at 45-46,

111 S.Ct. at 2133 (quoting Alyeska, 421 U.S. at 258-59, 95 S.Ct. at 1622-23). The Court

observed in Chambers that, while the sanctioning scheme of 28 U.S.C. § 1927 and other

similar statutes "reaches only certain individuals or conduct, the inherent power extends to

5 Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975); s ee also Delta

Steamship Lines, Inc. v. Avondale Shipyards, Inc., 747 F.2d 995, 1011 (5th Cir.1984) ("The general

rule in admiralty is that attorneys' fees are not recoverable by the prevailing party"). Generally, absent

statute or enforceable contract, litigants must pay their own attorneys' fees. I d. at 255-57, 95 S.Ct.

at 1621. 5

There are, of course, exceptions to this general rule. The Supreme Court also recognized

in Alyeska that the federal courts have the inherent power to award atto rneys' fees in particular

situations, unless forbidden by Congress. Id. at 258-59, 95 S.Ct. at 1622. Of the several examples

of such situations given by the Court in Alyeska, only one might even be argua bly relevant in the

present case: "[A] court may assess attorneys' fees ... when the losing party has "acted in bad faith,

vexatiously, wantonly, or for oppressive reasons.... ' " Id. (quoti ng F .D. Rich Co., Inc. v. United

States for Use of Industrial Lumber Co., Inc., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d

703 (1974) (citing Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962))). 6a full range of litigation abuses. At the very least, the inherent power must continue to

exist to fill in the interstices." 501 U.S. at 46, 111 S.Ct. at 2134.

7 We note appellants' observation in the present case that the bad faith exception to the

American rule arose in Vaughan, a maintenance and cure case. Appellants contend that the

purpose behind this exception employed in the maintenance and cure context limits its

applicability to that particular aspect of general maritime law. Appellants argue that seamen are

treated as wards of the admiralty court, and therefore receive special protections not afforded to

other admiralty litigants. We have not limited application of the bad faith exception to

maintenance and cure cases, but have extended it to other contexts within general maritime law.

See Cantieri Navali Riuniti v. M/V Skyptron, 802 F.2d 160, 165 & n. 7 (5th Cir.1986) (indicating

that award of attorneys' fees relating to claim involving disputed priority of liens in admiralty

proceeding could be proper if party "acted in bad faith or with malice" by refusing, until the day of

trial, to stipulate to a claim that had priority "under any conceivable analysis"; noting that

"[a]ttorneys' fees are generally not awarded in admiralty cases" but may be awarded "in cases

where the nonprevailing party has acted in bad faith throughout the course of the litigation");

Cardinal Shipping Corp. v. M/S Seisho Maru, 744 F.2d 461 (5th Cir.1984) (in case involving

wrongful seizure of a ship, in order to collect attorneys' fees, plaintiff must prove that party

seizing the vessel acted in bad faith, with malice, or with wanton disregard for rights of plaintiff).

8 Deriving from Article VI of the Laws of Oleron, 30 Fed.Cas. 1171, 1174, maintenance and

cure is designed to provide a seaman with food and lodging when he is injured or becomes sick

while in the service of a ship: "[I]f by the [ship] master's orders and commands any of the ship's

company be in the service of the ship, and thereby happen to be wounded or otherwise hurt, in

that case they shall be cured and provided for at the costs and charges of the said ship." Vaughan,

369 U.S. at 531-32 & n. 4, 82 S.Ct. at 1000 & n. 4.

6 The evolution of this bad faith exception to the American Rule in the context of admiralty law

began with Vaugh an v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); s ee also

Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1502 (5th Cir.1995) (en banc) ("In fact,

Vaughan is often cited as a foundational case for this "bad-faith' exception to the American Rule"),

cert. denied, --- U.S. ----, 116 S.Ct. 706, 133 L.Ed.2d 662 (1996). 7 Vaughan involved a seaman's

claim fo r maint enance and cure, and for damages resulting from the respondents' failure to pay

maintenance and cure. 8 The Court observed that:

"In the instant case respondents were callous in their atti tud e, making no investigation of

libellant 's claim and by their silence neither a dmit t ing no r denying it. As a result of that

recalcitrance, libella nt was forced to hire a lawyer and go to court to get what was plainly

o wed him under laws that are centuries old. The default was willful and persistent. It is

difficult to imagine a clearer case of damages suffered for failure to pay maintenance than this

one." Id. at 530-31, 82 S.Ct. at 999-1000 (footnote om itted).

Accordingly, the Supreme Court allowed the seaman to recover his reasonable attorneys' fees. Id.

In ruling that seaman Vaughan was entitled to recover (1) the maintenance and cure owed to9 In Vaughan, the Court observed simply that:

"Our question concerns damages. Counsel fees were allowed in The Apollon, 9

Wheat. 362, 379, 6 L.Ed. 111 [1824], an admiralty suit where one party was put

to expense in recovering demurrage of a vessel wrongfully seized. While failure to

give maintenance and cure may give rise to a claim for damages for the suffering

and for the physical handicap which follows, the recovery may also include

"necessary expenses.' " Id. at 530, 82 S.Ct. at 999.

The Court then proceeded to describe the faulty conduct of the respondents without

indicating whether the different components of Vaughan's recovery were separately

identified with particular "degrees" of the respondents' fault. We observed in Guevara v.

Maritime Overseas Corp., 59 F.3d 1496 (5th Cir.1995), that Vaughan did not address

whether the "fee-shifting" associated with a finding of bad faith was compensatory or

punitive in nature. Nevertheless, we noted in Guevara that:

"In the end, we need not definitely resolve whether Vaughan awarded attorney's

fees as an item of compensatory or punitive damages. The award clearly has a

"make-whole' compensatory aspect, and, based upon the facts of Vaughan, the

award also has a punitive aspect to the extent that it punished an abuse of the

litigation process. According to the case law, however, the punitive aspect of the

Vaughan award is the bad-faith exception to the American Rule, and that

exception is limited to a recovery of attorney's fees. The Vaughan award was

clearly not

a punitive damages award in the tort sense of punishing the underlying

conduct that gave rise to the litigation, and the developing case law does not

support such a position." Id. at 1503.

10 This analytical framework comports with the Court's award in Vaughan; the Court

characterized the respondents' attitude toward seaman Vaughan's (valid) claim for maintenance

and cure as "callous" and "recalcitran[t]", and described the respondents' "default" in their duty as

"willful and persistent." Vaughan, 369 U.S. at 531, 82 S.Ct. at 999.

7 him, (2) damages resulting from the respondents' failure to pay maintenance an d cure, and (3)

attorneys' fees, the Court in Vaughan did not specify whe ther these three com ponents of the total

award were linked to distinct "degrees of fault" attributable to the respond ents. 9 However, i n

Morales v. Garijak, Inc., 829 F.2d 1355 (5th Cir.1987), we clarified that:

"If the shipowner, in failing to pay maintenance and cure, has not only been unreasonable but

has been more egregiously at fault, he will be liable for punitive damages and attorney's fees.

We have described this higher degree of fault in such t erms as callous and recalcitrant,

arbitrary and capricious, or willful, callous and persistent. Thus, there is an escalating scale

of liabilit y: a shipo wner who is in fact liable for maintenance and cure, but who has been

reasonable in denying liability, may be held liable only for the amount of maintenance and

cure. If the shipowner has refused to pay without a reasonable defense, he becomes liable in

addition for compensatory damages. If the owner not only lacks a reasonable defense but has

exhibited callousness and indifference to the seaman's plight, he becomes liable for punitive

damages and attorney's fees as well." Id. at 1358 (footnote om itted). 1011 We observe that, prior to Vaughan, there is only one reported admiralty case in which

punitive damages were actually awarded. See Gallagher v. The Yankee, 9 Fd.Cas. 1091

(N.D.Cal.1859), aff'd

30 Fd.Cas. 781 (Cir.Ct., N.D.Cal.1859) (involving conduct constituting an

intentional tort, in which California vigilantes seized a person on land, sentenced him to exile, and

handed him over to the defendant to execute the sentence by transporting him to the Sandwich

Islands and leaving him there). And, prior to Vaughan there are no reported admiralty cases

awarding punitive damages for failure to pay maintenance and cure or allowing exemplary

damages in an unseaworthiness claim. As explained in Guevara, some courts have misread

Vaughan as authorizing awards of punitive damages in admiralty. The Supreme Court has never

8 In Morales, we addressed a claim for maintenance and cure and compensatory damages stemming

from the respondent's (unreasonable and arbitrary) failure to pay maintenance and cure. I d. at 1359.

A claim invo lving this "highest category" of liabilit y—fo r conduct warranting an award of "punitive

damages and attorneys' fees"—was not before this Court.

Finally, in Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (1995), we addressed a claim

for punitive damages in this context, clarifying that:

"[T]he bad-faith exception to the American rule, of which the Vaughan award is cited as an example, is not a punitive award in the "tort' sense of punishing the underlying conduct that

gives rise to a plaint iff's claim. Tort-like punitive damages are awarded on the basis of the

merits of a case, while bad-faith fee-shifting punishes abuses of the litigation process." I d. at

1503.

Operating from this observation, we further noted that:

"According to the case law [ ] the punitive aspect o f the V aughan award is the bad-faith

exception to the American Rule, and that exception is limit ed to a recovery of attorney's fees.

The Vaughan award was clearly not a punitive damages award in the tort sense of punishing

the underlying conduct that gave rise to the litigation, and the developing case law does not support such a position." Id.

We held in Guevara that, particularly in light of Miles v. Apex Marine Corp., 498 U.S. 19,

111 S.Ct. 317, 112 L.Ed.2d 275 (1990), punitive damages are no longer available in cases of willful

nonpayment of maintenance and cure under the general marit ime law. I d. at 1513. In so holding, we

also addressed to some extent the availability of punitive damages in contexts beyond maintenance

and cure. For example, we noted that, at least in certain scenarios, punitive damages are not available

i n a wrongful death action brought by the representative of a seaman under the unseawo rthiness

doctrine of general marit ime law. Id. at 1507. We additionally observed that punitive damages are

unavailable under the Jones Act. I d. at 1506 & n. 7. 11 Therefore, in light of G uevara, there isaffirmed an award of punitive damages in an admiralty case, despite suggestions to the contrary in

citations to The Amiable Nancy, 16 U.S. (3 Wheat.) 546, 4 L.Ed. 456 (1818) ("If this were a suit

against the original wrong-doers, it might be proper to go yet farther, and visit upon them in the

shape of exemplary damages the proper punishment ..." for intentional torts) (emphasis added).

12 While an award of attorneys' fees was not before this Court in Guevara, we nevertheless

observed that " Vaughan and Miles st ill permit the recovery of attorney's fees in maintenance and

cure cases as long as the proper showing of egregious fault is made. See, e.g., Morales, 829 F.2d

at 1358." Guevara, 59 F.3d at 1513 (emphasis added).

13 Within the analytical framework established by Vaughan and its progeny, it is clear that we

are concerned only with the present defendants' alleged abuse of the litigation process, and not

with the nature of the tort underlying this law suit:

"[T]he bad-faith exception to the American rule, of which the Vaughan award is

cited as an example, is not a punitive award in the "tort' sense of punishing the

underlying conduct that gives rise to a plaintiff's claim. Tort-like punitive damages

are awarded on the basis of the merits of a case, while bad-faith fee-shifting

punishes abuses of the litigation process.... The Vaughan award was clearly not a punitive damages award in the tort sense of punishing the underlying conduct that

gave rise to the litigation, and the developing case law does not support such a

position." Guevara, 59 F.3d at 1503.

Moreover, the present law suit involved a claim of ordinary negligence, or at very most

gross negligence; no claim of recklessness, "willful and wanton" misconduct, or the like

was ever made by the plaintiff in this case.

9 arguably some question as to whether or not there remains a class of conduct, alluded to in Morales,

for which "punitive damages and attorney's fees" are available under admiralty law. 12

We need not resolve this question in the present case, however, as there was no claim made,

nor finding soug ht , no r evidence adduced, that the defendants' conduct was so abusive of the

litigation process 13 that t his conduct could be described "as callous and recalcitrant, arbitrary and

capricious, or willful, callous and persistent." Morales, 829 F.2d at 1358 (footnote omitted).

The district court held that:

"By fail ing t o pay for the damages it obviously caused in an amount that Defendants

stipulated and agreed was reasonable, the Defendants have not acted in an equitable manner

in the equity action before this Court and have required Plaint iff to incur significant attorney's

fees in order to recover the damages relating to its traffic fender syst em that were pl ai nl y owed to Plaintiff. Defendants' default herein was willful and persistent."

We find no support for this holding. Not acting "in an equitable manner" does not support

an award of attorneys' fees. Further, while the defendants agreed that the traffic fender system had14 The defendants took the legally reasonable or arguable position that, upon receiving the tug

boat's initial radio communications requesting that the bridge be opened, the plaintiff had a

statutory duty to promptly and fully open the drawbridge. See note 2, supra. The defendants

cited case law in support of this position. See Florida East Coast Railw ay Co. v. Revilo Corp.,

1979 A.M.C. 1888 (M.D.Fla.1979), aff'd, 637 F.2d 1060 (5th Cir.1981) (presumption of fault for

striking a fixed object does not apply where a drawbridge contributes to a collision by delaying in

opening or not opening at all).

15 As several critical links in the chain of events leading up to the allision were in dispute at

trial—and the parties' respective arguments rested heavily upon these conflicting views of the

facts—this law suit turned largely on the eyewitness testimony presented by the parties. In its

Supplemental Findings of Fact and Conclusions of Law, the court revealed that it had not found

the testimony offered by the defendants' eyewitnesses to be credible. Beginning with the

testimony of Mate Ebert, the court found that the version of the facts submitted by Ebert in his

accident report was "unpersuasive" and (with respect to distances) "incredible." Next, turning to

the testimony of Captain Borres, the court characterized his statements regarding distances as

"incredible and internally inconsistent." Likewise, the court described the testimony of Earl

Hatfield regarding distances as "incredible" and found Hatfield's testimony to be "at stark

variance" with the testimony of other eyewitnesses. Finally, the court found the conclusions and

findings of Captain Kleinpeter, an expert witness for the defense, to be "unsupported" and

"incredible."

10 been damaged in a certain amount, th eir po sition throughout this litigation was that the plaintiffs'

failure, upon request, to open the drawbridge promptly and fully caused or con tributed to thi s

damage. 14 There was no evidence adduced that the defendants took this position maliciously or in

bad faith, nor that they failed to comply with discovery requests, filed frivolous pleadings, or

otherwise abused the litigation process. In this respect, there is no support for the court's finding that

the defendants committed any "default," much less that such "default [ ] was willful and persistent."

The district court additionally observed that:

"[T]he defense offered by the Defendants in regard to the claim of this case borders on the

frivolous, is unsupported factually from a common sense standpoint, is contradi ctory factually

even as regards its own merits, and is utterly incredible to the Court in any respect.... It is

necessary to award Plaintiff its attorney's fees in order to make Plaintiff whole."

As noted briefly above, the defense generally constituted a legally reasonable or arguable response

to the plaint iff's claims. And, a defendant certainly has the right to put a plaintiff to his factual burden

of proof. The district court's observations that this defense was "unsupported f actually, "

"contradictory

factually, " and "utterly incredible" apparently stem from the court's determination a fter

trial that the defendants' witnesses were not credible. 15 While t his determination certainly supports16 Nor do we find any basis for concluding that the defendants' conduct in the litigation of this

law suit or otherwise was "callous and recalcitrant, arbitrary and capricious, or willful, callous and

persistent." Morales, 829 F.2d at 1358 (footnote omitted).

17 The court prefaced its observations that the defense "border[ed] on the frivolous" with the

following language: "In this case, notwithstanding the fine efforts of counsel for defendant, which

the Court only commends and finds no impropriety with in any respect whatsoever ..." Moreover,

at the close of its remarks regarding the award of attorneys' fees, the court addressed counsel for

both sides and offered additional praise:

"All right. Well, again, I would like to thank each of you for your thoughtfulness

and your assistance throughout the resolution of this case. I would like to

commend each of the parties again, notwithstanding the mechanics of the

resolution of the case, for a superb job in the preparation of and presentation of the

case. I'm very pleased that each of the attorneys here is an officer of this court and

I look forward to many opportunities to work with each of you in the future."

11 the court's assessments of fault and liability, it does not support the court's assertion that "this case

borders on the frivolous," much less any determination that the defense position in or conduct of the

litigation was so egregious and in bad faith as to authorize an award of attorneys' fees under

Alyeska. 16 The district court took pains to praise counsel for their conduct in this litigation, 1 7 and this

praise undercuts any suggestion that the district court viewed the defense as abusive of the litigation

process. Under Alyeska there is simply no basis for an award of attorneys' fees here.

Conclusion

We reverse the award of attorneys' fees and remand to the district court wit h directi on to

enter judgment consistent herewith.

REVERSED and REMANDED.