Marine Coatings of Alabama v. United States

United States Court of Appeals,

Eleventh Circuit.

No. 94-6200.

MARINE COATINGS OF ALABAMA, Plaintiff-Appellee,

v.

UNITED STATES of America, Defendant-Appellant.

Jan. 8, 1996.

Appeal from the United States District Court for the Southern
District of Alabama. (No. CV84-958-T-C), Daniel Holcombe Thomas,
Senior District Judge.
Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HENDERSON,
Senior Circuit Judge.

TJOFLAT, Chief Judge:

I.

Following a bench trial in the district court, Marine Coatings

of Alabama, Inc., recovered a judgment against the United States

for work performed on three naval vessels as a repair subcontractor
1
of Braswell Shipyards, Inc. The judgment included an award of

1
The trial of this case was held and the judgment entered
following two appeals to this court. The first appeal, Marine
Coatings of Alabama, Inc. v. United States, 792 F.2d 1565 (11th
Cir.1986) (Marine Coatings I ), was from a summary judgment
entered for the Government on the ground that Marine Coatings
could not establish that Braswell Shipyards was acting for the
Government in ordering Marine Coatings to perform the repair
work. We vacated the summary judgment because the district court
failed to give Marine Coatings ten days' notice as required by
Fed.R.Civ.P. 56.

On remand, the district court found no evidence in the
record to support Marine Coatings' claim that the Government
had authorized Braswell Shipyards to contract for the repair
work and granted summary judgment for the Government.
Marine Coatings of Alabama, Inc. v. United States, 674
F.Supp. 819 (S.D.Ala.1987). Finding that a genuine issue of
material fact existed concerning Braswell's authority, we
vacated the district court's judgment and remanded the case
for further proceedings. Marine Coatings of Alabama, Inc.
pre-judgment interest; it also included an award of attorney's

fees. In this appeal, the Government challenges the award of

pre-judgment interest, contending that the Public Vessels Act, ch.

428, 43 Stat. 1112 (1925), 46 U.S.C. App. §§ 781-790 (1988), the

statute that supposedly waives the Government's sovereign immunity

for claims such as the one brought here, does not permit the

recovery of pre-judgment interest. The Government also challenges

the district court's award of attorney's fees under the Equal

Access to Justice Act, 28 U.S.C. § 2412 (1994), contending that it

was substantially justified in contesting the subcontractor's

claim. We consider these challenges in turn.

II.

A.

Before we consider the Government's argument that the Public

Vessels Act precludes the award of pre-judgment interest in this

case, it will be helpful to review the events surrounding the
2
enactment of the statute. Under the common law doctrine of

sovereign immunity, the United States cannot be sued in admiralty

without its consent. Nor is the Government's property subject to

in rem proceedings in a court of admiralty. See, e.g., The Siren,

74 U.S. (7 Wall.) 152, 19 L.Ed. 129 (1868). Prior to 1916, the

only recourse for those who suffered injury caused by a

v. United States, 932 F.2d 1370 (11th Cir.1991) (Marine
Coatings II ). The case then went to trial, resulting in
the judgment for Marine Coatings.
2
A more complete history can be found in Canadian Aviator,
Ltd. v. United States, 324 U.S. 215, 218-25, 65 S.Ct. 639, 641-
44, 89 L.Ed. 901 (1945), and American Stevedores, Inc. v.
Porello, 330 U.S. 446, 450-54, 67 S.Ct. 847, 849-51, 91 L.Ed.
1011 (1947).
Government-owned vessel was to seek a private bill in Congress

authorizing suit to be brought against the United States.

During World War I, the Government became the owner of a

substantial merchant fleet and the volume of private claims

submitted to Congress increased correspondingly. To provide an

orderly method for handling these claims, Congress passed the

Shipping Act, 1916, ch. 451, 39 Stat. 728, which provided that

Government-owned vessels "while employed solely as merchant vessels

shall be subject to all laws, regulations, and liabilities

governing merchant vessels...." Shipping Act § 9, 39 Stat. at 730-

31. The Shipping Act was held to allow in rem proceedings against

Government-owned vessels. See, e.g., The Lake Monroe, 250 U.S.

246, 39 S.Ct. 460, 63 L.Ed. 962 (1919). To prevent such actions,

the Congress in 1920 passed the Suits in Admiralty Act, ch. 95, 41

Stat. 525 (1920), 46 U.S.C. App. §§ 741-752 (1988). In lieu of an

in rem action against a Government-owned vessel or its cargo, the

Act gave claimants the right to sue the United States in personam:

[I]n cases where if [a vessel owned by the United States] were
privately owned or operated, or if [cargo owned or possessed
by the United States] were privately owned [or] possessed, a
proceeding in admiralty could be maintained ..., a libel in
personam may be brought against the United States ... provided
that such vessel is employed as a merchant vessel....

Suits in Admiralty Act § 2, 41 Stat. at 525-26 (codified as amended

at 46 U.S.C. App. § 742) (emphasis added). Public vessels, as

opposed to merchant vessels, were excluded from the coverage of

this Act, and thus the Government's sovereign immunity still

prevented a claimant from bringing an in rem or any other

proceeding in admiralty against the United States for injury caused

by a public vessel. See, e.g., The Western Maid, 257 U.S. 419, 42
S.Ct. 159, 66 L.Ed. 299 (1922).

In 1925, Congress was persuaded to extend the right to sue the

United States to include claims involving public vessels. It chose

not to amend the Suits in Admiralty Act, however, but instead

passed a separate Public Vessels Act, which provides that:

A libel in personam in admiralty may be brought against the
United States ... for damages caused by a public vessel of the
United States, and for compensation for towage and salvage
services, including contract salvage, rendered to a public
vessel of the United States.

46 U.S.C. App. § 781 (emphasis added).

In 1960, Congress repealed the "merchant vessel" proviso of

the Suits in Admiralty Act, thus expanding the coverage of that Act

to claims against the United States involving public vessels. Act

of Sept. 13, 1960, Pub.L. No. 86-770, § 3, 74 Stat. 912. The 1960

amendment did not, however, in any way repeal or modify the Public

Vessels Act. United States v. United Continental Tuna Corp., 425

U.S. 164, 181, 96 S.Ct. 1319, 1329, 47 L.Ed.2d 653 (1976). Rather,

claims that fall "within the scope of the Public Vessels Act remain

subject to its terms after the 1960 amendment to the Suits in

Admiralty Act." Id. at 181, 96 S.Ct. at 1329. This means that in

a case that is covered by the Public Vessels Act—a case that would

now appear to be covered by both acts—only the provisions of the

Public Vessels Act are applied.3

3
Since 1960 it has been common for courts and commentators
to speak in terms of both acts applying to certain claims. See,
e.g., Justice v. United States, 6 F.3d 1474, 1475-76 (11th
Cir.1993); Bonanni Ship Supply, Inc. v. United States, 959 F.2d
1558, 1561 n. 7 (11th Cir.1992); Parks v. United States, 784
F.2d 20, 28 (1st Cir.1986); Blevins v. United States, 769 F.2d
175, 180 n. 2 (4th Cir.1985); Thomas J. Schoenbaum, Admiralty
and Maritime Law § 17-1, at 867 (2d ed. 1994). Given the Supreme
Court's ruling in Continental Tuna, however, such language is
 B.

In this case, the district court awarded pre-judgment

interest in accordance with the Suits in Admiralty Act, which

provides that "[a] decree against the United States ... may include

costs of suit, and when the decree is for a money judgment,

interest at the rate of 4 per centum per annum until satisfied...."

46 U.S.C. App. § 743. The United States, however, contends the

Public Vessels Act bars the award, because that Act provides that:

suits shall be subject to and proceed in accordance with the
provisions of [the Suits in Admiralty Act] ... except that no
interest shall be allowed on any claim up to the time of the
rendition of judgment unless upon a contract expressly
stipulating for the payment of interest.

46 U.S.C. App. § 782 (emphasis added). There is no contract in

somewhat misleading. Claims for "damages caused by a public
vessel," for example, do appear to fall under the terms of both
acts, but the lifting of the Government's sovereign immunity for
such claims is governed exclusively by the provisions in the
Public Vessels Act; the Suits in Admiralty Act, in and of
itself, simply does not apply. See Continental Tuna, 425 U.S. at
181, 96 S.Ct. at 1329.

Generally, it makes no difference which of the two acts
applies, since the same substantive law governs and since
the Public Vessels Act incorporates most of the procedural
provisions of the Suits in Admiralty Act. See 46 U.S.C.
App. § 782. There are a few differences, however. Besides
disallowing pre-judgment interest on money damages—the
difference at issue in this case—the Public Vessels Act (1)
has a more liberal venue provision (§ 782); (2) restricts
subpoenas against officers and crews without the permission
of certain authorities (§ 784); (3) requires reciprocity in
order for an alien to bring suit under the act (§ 785); and
(4) restricts the power of the attorney general to arbitrate
disputes (§ 786).

The Maritime Law Association of the United States has
recognized the redundancy of the Public Vessels Act since
the repeal of the "merchant vessel" proviso of the Suits in
Admiralty Act and has recommended that the Public Vessels
Act be repealed. See Report of the Committee on Maritime
Legislation of the Maritime Law Association of the United
States, Document No. 646 (May 24, 1983).
this case that provides for pre-judgment interest. We must

therefore decide whether Marine Coatings' claim falls within the

scope of the Public Vessels Act; for if it does, the district

court erred in awarding pre-judgment interest under the terms of

the Suits in Admiralty Act.4

The district court, believing that "either statute could

control the case," looked to the complaint to determine which

statute Marine Coatings had alleged to govern the issue of

sovereign immunity. The complaint stated that the Suits in

Admiralty Act controlled; accordingly, the court awarded final

judgment under that Act. Although we reach the same ultimate

conclusion as the district court, we look instead to the scope of

the Public Vessels Act and the nature of Marine Coatings' claim to

determine which act applies in this case.

The Government maintains that any claim involving a public

vessel brought in personam against the United States on in rem

principles is a claim covered by the Public Vessels Act. The

Public Vessels Act does not, however, apply to all maritime claims

involving a public vessel. Rather, it lifts the government's

sovereign immunity only for claims "for damages caused by a public

vessel of the United States, and for compensation for towage and

salvage services...." 46 U.S.C. App. § 781. To make its case,

however, the Government relies on the expansive interpretation that

4
It is not disputed that the ships involved in this case are
public vessels. See Marine Coatings, 674 F.Supp. at 822; Marine
Coatings II, 932 F.2d at 1373 n. 1.
has been given to this language by the Supreme Court.5

5
The Government relies more directly on our opinion in
Stevens Technical Servs. v. United States, 913 F.2d 1521 (11th
Cir.1990), a case involving a claim nearly identical to the one
in this case. The court in Stevens Technical wrote: "We hold:
[The Public Vessels Act] applies to and controls this public
vessel case. [The Public Vessels Act] controls with all of its
restrictive provisions." 913 F.2d at 1527. We were not faced,
however, with the question of whether the claim in that case did
or did not fall under the provisions of § 781 of the Public
Vessels Act, but rather whether the no-lien provisions of § 788
barred the claim. As we stated the case:

The question is then reduced to:

Does § 788 in the light of [the Suits in Admiralty Act]
and [the Public Vessels Act] prevent the assertion of a
maritime lien for repairs to a public vessel in a
[Public Vessels Act] suit in personam with election for
in rem liability?

Id. It was this question that Stevens Technical answered.
Thus, the question of whether Marine Coatings' claim falls
within the Public Vessels Act is still an open one.

This same question concerning the effect of § 788 arose
in the last appeal of this case and was answered based on
the Stevens Technical precedent. Marine Coatings II, 932
F.2d at 1375-76. The issue of whether the claim fell within
the provisions of the Public Vessels Act was not before us.
Rather, an assumption was made that the Act applied:

The [district] court determined that the three ships
were "public vessels," i.e., ships owned and operated
by the government for official purposes. Therefore,
provisions of the Public Vessels Act applied. The
[Suits in Admiralty Act], as its name implies, governs
suits in admiralty, including those between private
parties. The provisions of the Public Vessels Act
apply when suits in admiralty are brought against the
United States regarding public vessels.

Id. at 1373 n. 1. While it is true that the ships were
public vessels, it does not automatically follow that the
Public Vessels Act applies. Furthermore, as discussed in
this opinion, the Suits in Admiralty Act applies only to
suits by a private party against the United States, and the
Public Vessels Act applies only to claims "for damages
caused by a public vessel of the United States." See 46
U.S.C. app. § 781. Claims involving public vessels other
than claims "for damages caused by a public vessel" are
covered by the Suits in Admiralty Act. See 46 U.S.C. App. §
 Originally, the words of the Public Vessels Act seemed to mean

what they said. The purpose of the Act was described in

congressional reports as follows:

The chief purpose of [the Public Vessels Act] is to grant
private owners of vessels and of merchandise a right of action
when their vessels or goods have been damaged as the result of
a collision with any Government-owned vessel, though engaged
in public service, without requiring an application to
Congress in each particular instance for the passage of a
special enabling act.

S.Rep. No. 941, 68th Cong., 2d Sess. 1 (1925) (emphasis added);

H.Rep. No. 913, 68th Cong., 1st Sess. 1 (1924). In Canadian

Aviator, Ltd. v. United States, 324 U.S. 215, 65 S.Ct. 639, 89

L.Ed. 901 (1945), however, the Supreme Court held that claims for

"damages" authorized by the Public Vessels Act should not be

limited only to cases in which a public vessel is the "physical

instrument" that caused "physical damage" (that is, only to

collision cases). 324 U.S. at 224, 65 S.Ct. at 644. The Court

decided that the language in the congressional reports "does not

require that the statute should be so limited" and that a narrow

reading does not comport with the broad language used by Congress

in the statute. Id. at 225, 65 S.Ct. at 644. Thus, the Court held

that the Act applied when a United States ship "caused" damage to

a private ship by negligently leading it to strike a submerged

wreck. Id. at 228-29, 65 S.Ct. at 646. Two years later, in

American Stevedores v. Porello, 330 U.S. 446, 67 S.Ct. 847, 91

L.Ed. 1011 (1947), the Court held that the Public Vessels Act

should not be read "only to provide a remedy to the owners of
damaged property," and expanded its coverage to include a claim for

742.
personal injuries suffered by a longshoreman aboard a public

vessel. 330 U.S. at 454, 67 S.Ct. at 851.

The Court has never clearly described what claims actually

fall under the Public Vessels Act; in fact, it has explicitly

refused to do so on two occasions. In Calmar S.S. Corp. v. United

States, 345 U.S. 446, 73 S.Ct. 733, 97 L.Ed. 1140 (1953), a case

involving claims for the loss of a vessel chartered to the United

States, Justice Frankfurter wrote:

It is not to be assumed that all claims sounding in contract
can form the basis of a suit under the Public Vessels Act.
The Act expressly authorizes towage and salvage claims. We
intimate no opinion as to other claims, and do not suggest
that all or any of the causes of action in this very suit
would or would not qualify under the Public Vessels Act.
There are cases in which jurisdiction over contract claims
other than towage or salvage has been assumed. Thomason v.
United States, 184 F.2d 105 [ (9th Cir.1950) ]; United States
v. Loyola, 161 F.2d 126 [ (9th Cir.1947) ].

Calmar S.S. Corp., 345 U.S. at 456 n. 8, 73 S.Ct. at 738 n. 8.

Likewise, in the Continental Tuna case, the Supreme Court explained

that the deletion in 1960 of the "merchant vessel" proviso was

clearly intended to "bring[ ] within the Suits in Admiralty Act

whatever category of claims involving public vessels was beyond the

scope of the Public Vessels Act." 425 U.S. at 180-81, 96 S.Ct. at

1328. But again, the Court declined to define the scope of the

Public Vessels Act:

It is not to be assumed that contract claims other than those
expressly authorized by the Public Vessels Act were
necessarily beyond the scope of the Act. As in [Calmar S.S.
Corp. ] we intimate no view on the subject.

Id. at 181 n. 21, 96 S.Ct. at 1328 n. 21. We are left, then,

primarily with Canadian Aviator and American Stevedores to help us

determine whether the Public Vessels Act covers the maritime claim
in this case.

Marine Coatings' claim for damages arose under the Federal

Maritime Lien Act, ch. 250, § 30, subsections P-T, 41 Stat. 1005-

1006 (1920) (repealed by Pub.L. No. 100-710, § 106(b)(2), 102 Stat.

4752 (1988), and replaced by provisions of 46 U.S.C. §§ 31341-31343

(1988 & Supp. V 1993)). Prior to its repeal, this Act provided as

follows:

Any person furnishing repairs, supplies, towage, use of dry
dock or marine railway, or other necessaries, to any vessel,
whether foreign or domestic, upon the order of the owner of
such vessel, or of a person authorized by the owner, shall
have a maritime lien on the vessel, which may be enforced by
suit in rem, and it shall not be necessary to allege or prove
that credit was given to the vessel.
6
Federal Maritime Lien Act § 30, subsection P, 41 Stat. at 1005.

Through the device of the in personam action on in rem principles

authorized by the Suits in Admiralty Act, Marine Coatings

successfully recovered the cost of its repair work. Such an action

clearly does not fall within the terms of the Public Vessels Act.

First, it is not literally an action for "damages caused by a

public vessel," since the "damages" in this case resulted from a

failure by Braswell Shipyards and the Government to pay Marine

Coatings for the repair work, not from any negligent act by a ship

or its crew. Second, it is not an action for "compensation for

towage and salvage services, including contract salvage, rendered

6
Because Marine Coatings did the repair work on behalf of
Braswell Shipyards, the validity of Marine Coatings' maritime
lien depended on whether the contractor was a "person authorized
by the owner" to order the work. See Federal Maritime Lien Act,
§ 30, subsection P, 41 Stat. at 1005. After the trial on this
issue, the district court held that the United States had
"procured," "authorized," and "ratified" the repair work and that
Marine Coatings had a valid maritime lien on which it could
recover money damages.
to a public vessel of the United States." See 46 App.U.S.C. § 781.

The Government argues that it is "axiomatic that [a] maritime

lien is "damages caused by a public vessel,' " and that therefore

the Public Vessels Act applies in this case. For support, the

Government cites Thomason v. United States, 184 F.2d 105, 107-108

(9th Cir.1950), in which the Ninth Circuit held that the "damages"

phrase "includes damages arising from those acts for which a

private ship is held legally responsible as a juristic person under

the customary legal terminology of the admiralty law."7 This is by

far the broadest reading any court has given the Public Vessels

Act, and, if correct, it would expand the coverage of the Public

Vessels Act to all maritime claims against the United States

involving a public vessel. We believe that such a reading finds no

support in the text of the statute or in the purpose of the

Act—even as that purpose has been broadly read by the Supreme

Court.

The text of the Public Vessels Act authorizes suits not only

for "damages caused by a public vessel," but also for "compensation

for towage and salvage services, including contract salvage,

rendered to a public vessel...." 46 U.S.C. App. § 781. The

specific inclusion of particular contract claims would be

meaningless if the "damages" provision extended to maritime

contract claims in general. Moreover, we do not read the Supreme

Court's decisions as an effort to stretch the meaning of the

"damages" provision as far as it will go, but rather as an effort

7
The court in Thomason applied the Public Vessels Act to a
claim for unpaid compensation for seamen's services. 184 F.2d at
108.
not to limit the phrase in an unnatural manner, in light of the

congressional purpose behind the Public Vessels Act. See Grant

Gilmore & Charles L. Black, Jr., The Law of Admiralty, § 11-11, at

984-85 (2d ed. 1975). Canadian Aviator and American Stevedores,

while not collision cases of the type described in the legislative

history, are nonetheless cases involving torts committed by the

crews of public vessels that caused damage to person or property.

It would be a stretch to hold that these cases support the

extension of the Public Vessels Act to cover all maritime claims,

whether sounding in contract or in tort.8

Based on our reading of the statute and of the precedent

binding upon this court, we hold that Marine Coatings' claim for

recovery on a maritime repair lien is not a claim authorized by the

provisions of the Public Vessels Act. Consequently, this case

falls within that "category of claims involving public vessels

[that are] beyond the scope of the Public Vessels Act," Continental

Tuna, 425 U.S. at 180-81, 96 S.Ct. at 1328, and, as such, are

covered only by the Suits in Admiralty Act. We therefore affirm

8
Moreover, we find no reason, as the Ninth Circuit evidently
did, to expand any further the coverage of the Public Vessels
Act. Canadian Aviator, American Stevedores, and Thomason were
decided at a time when an expansive reading of the "damages"
provision served to enlarge the coverage of the Act. Since 1960,
however, any claim not covered by the Public Vessels Act is
covered by the Suits in Admiralty Act. See supra at 596. In
short, by holding that Marine Coatings' claim is not authorized
by the Public Vessels Act, we do not deny the company its remedy.
On the contrary, our decision enlarges Marine Coatings' remedy by
allowing it to recover prejudgment interest on its damages award.
By preserving the narrow scope of the Public Vessels Act, the
congressional purpose of providing a remedy in these cases—the
purpose that drove the Supreme Court's expansive readings—is not
in any way "thwarted by an unduly restrictive interpretation."
Canadian Aviator, 324 U.S. at 222, 65 S.Ct. at 643.
the decision of the district court to award prejudgment interest at

a rate of four percent per year in accordance with the terms of

that Act.

III.

The district court awarded attorney's fees pursuant to 28

U.S.C. § 2412, as amended by the Equal Access to Justice Act,

Pub.L. No. 96-481, Title II, § 204(a), 94 Stat. 2327 (1980), which

provides, in part, that:

[A] court shall award to a prevailing party other than the
United States fees and other expenses ... incurred by that
party in any civil action ... brought by or against the United
States ..., unless the court finds that the position of the
United States was substantially justified or that special
circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). Under 28 U.S.C. § 2412(d)(2)(A), "fees

and other expenses" include "reasonable attorney fees."

The district court concluded that the Government was not

"substantially justified" in proceeding to trial on the ground that

our decision in Marine Coatings II, which set aside the district

court's summary judgment that Marine Coatings was not entitled to

a maritime lien, had "effectively decided the case." The court was

mistaken; Marine Coatings II did not resolve the factual question.

Rather, we reversed the summary judgment because we found that a

genuine issue of fact existed regarding the validity of the lien.

Indeed, our decision was quite specific as to what factual issues

remained to be resolved:

Applying the relevant standard of review, we find that there
is a genuine issue as to whether the government procured
[Marine Coatings'] work, authorized the work, or ratified the
procurement of [Marine Coatings'] work. Alternatively, there
is a genuine issue as to whether Braswell was authorized by
the government to procure [Marine Coatings'] work. Resolution
of this issue is essential to determine whether [Marine
 Coatings] is entitled to recovery under the [Federal Maritime
Lien Act]. Because we find a material issue of fact exists on
this point, we REVERSE and REMAND for appropriate proceedings
in the district court.

Marine Coatings II, 932 F.2d at 1376. We cannot think of more

"appropriate proceedings" in which to resolve a question of fact

than a trial. Indeed, in its dispositive order, the district court

itself points out that our decision in Marine Coatings II "left

open the question as to whether the Government procured [Marine

Coatings'] work, authorized the work, or ratified the procurement

of [Marine Coatings'] work." After trial, the district court found

that "the answer to all three questions is, "Yes,' " and it entered

judgment accordingly. There appears to be no reason, other than

the district court's opinion that "[t]he Government should have

settled after the Eleventh Circuit rendered its opinion," that the

United States was not substantially justified in having the issues

of fact in this case resolved at trial. We therefore reverse the

order of the district court awarding attorney's fees to Marine

Coatings.

In conclusion, we AFFIRM the district court's award of

prejudgment interest and REVERSE the award of attorney's fees.