ORDER
HOWARD, District Judge.
This cause is before the Court on a “Motion to Strike Demand for Attorneys’ Fees” filed by defendant Stewart & Stevenson Services, Inc. (“S & S”).
S & S argues that a shipowner, such as plaintiff, cannot recover its attorney’s fees incurred in
prosecuting
an action for breach of the warranty of workmanlike performance, but only such attorney’s fees as are incurred in defending against the claim of a third party injured by such a breach.
Plaintiff counters that
Todd Shipyards Corp. v. Turbine Service, Inc.,
674 F.2d 401 (5th Cir.),
cert. denied,
459 U.S. 1036, 103 S.Ct. 448, 74 L.Ed.2d 603 (1982), a nonbinding case from the new Fifth Circuit, approves recovery of attorney’s fees under the circumstances of this case.
The seminal binding case regarding the recoverability of attorney’s fees in an action involving the warranty of workmanlike performance is
Strachan Shipping Co. v. Koninklyke Nederlandsche Stoomboot Maalschappy, N.V.,
324 F.2d 746 (5th Cir.1963), ce
rt. denied,
376 U.S. 954, 84 S.Ct. 969, 11 L.Ed.2d 972 (1964). In “a case of first impression,”
id.
at 746, the court permitted a defendant and third party plaintiff shipowner to recover as indemnity from the third party defendant stevedore, as items
of damages, its attorney’s fees and expenses incurred in
defending
against the plaintiff longshoreman’s claim.
Id.
at 746-47.
The
Strachan
court did not extend the right to indemnity to encompass a right to attorney’s fees incurred in
prosecuting
its claim against the breaching party; on the contrary, the court expressly noted that “[t]he conclusion here reached is limited to the facts of this case.”
Id.
at 747.
The Court has read every Fifth Circuit and Eleventh Circuit case citing to
Strachan
(approximately twenty cases) and has found none save
Todd Shipyards
purporting to extend the scope of
Strachan
as plaintiff seeks to do here. Nor have the parties cited the Court to any case in any way suggesting that
Todd Shipyards
merely restated pre-existing law. Consequently, no binding precedent compels the Court to allow plaintiff’s claim for attorney’s fees. Plaintiff must therefore convince the Court that
Todd Shipyards
represents a reasonable, methodical extrapolation from common precedent in order to persuade the Court that
Todd Shipyard’s
tack should be followed and S & S’ motion to strike be denied.
For several reasons the Court concludes that the Eleventh Circuit would not, and hence this court should not, follow
Todd Shipyards.
First, as noted above, no binding case has come to light even suggesting the Eleventh Circuit would expand on
Strachan.
Second, binding precedent expressly holds that “[s]uch recoverable attorneys’ fees and expenses [for breach of the warranty of workmanlike performance] are limited to those incurred in defense of the injured party’s claim for damages, and do not include those for prosecuting the shipowner’s claim for indemnity, either in the trial court or on appeal.”
Lusich v. Bloomfield Steamship Co.,
355 F.2d 770, 776 (5th Cir.1966). It would hardly be consistent to disallow attorney’s fees for bringing in the indemnitor as a third party defendant yet to allow them should the indemnitee bring an original action naming the indemnitor as defendant.
Third, the binding case of
Noritake, Inc. v. M/V HELLENIC CHAMPION,
627 F.2d 724 (5th Cir.1980), classified the indemnitor-indemnitee exception to the general admiralty rule against awarding attorney’s fees as a recovery of “the reasonable expenses incurred in defending against the claim” of the injured party.
Id.
at 730 n. 5. The Court cited four cases in support of its description of the exception, two of which were warranty of workmanlike performance cases.
Fourth,
Todd Shipyards
announced this dramatic shift in the law with no discussion and with no apparent awareness that it was altering longstanding law. The Court simply quoted from
McCawley v. Ozeanosun Compania, Maritime, S.A.,
505 F.2d 26, 32 (5th Cir.1974), with an additional citation to
Thibodeaux v. Texas Eastern Transmission Corp.,
548 F.2d 581, 587 (5th Cir.1977).
It is true that both these cases stated simply that “foreseeable damages recoverable for breach of warranty of workmanlike performance include reasonable attorneys’ fees,” as the
Todd Shipyards
court quoted. Both cases, however, also cited to the seminal decision of
Strachan,
and both cases by their facts implicated only recovery for the expenses of
defending
a claim. Other binding cases clearly set forth the limitation of the rule.
E.g., Brock v. Coral Drilling, Inc.,
477 F.2d 211, 217 (5th Cir.1973) (because Coral breached its warranty of workmanlike performance, “Shell is entitled to indemnity from Coral for any costs or attorneys’ fees incurred by Shell in defending the claims brought against it by Baroid.”).
Ffth, the Ffth Circuit has not unequivocally accepted
Todd Shipyards
as the law of the circuit. After
Todd Shipyards
was handed down, the Ffth Circuit expressly acknowledged the continuing currency of
Noritake’s
limitation of the
Strachan
rule to the expenses of defense.
Platoro Ltd., Inc. v. Unidentified Remains of a Vessel,
695 F.2d 893, 906 n. 19 (5th Cir.),
cert. denied,
464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983).
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ORDER
HOWARD, District Judge.
This cause is before the Court on a “Motion to Strike Demand for Attorneys’ Fees” filed by defendant Stewart & Stevenson Services, Inc. (“S & S”).
S & S argues that a shipowner, such as plaintiff, cannot recover its attorney’s fees incurred in
prosecuting
an action for breach of the warranty of workmanlike performance, but only such attorney’s fees as are incurred in defending against the claim of a third party injured by such a breach.
Plaintiff counters that
Todd Shipyards Corp. v. Turbine Service, Inc.,
674 F.2d 401 (5th Cir.),
cert. denied,
459 U.S. 1036, 103 S.Ct. 448, 74 L.Ed.2d 603 (1982), a nonbinding case from the new Fifth Circuit, approves recovery of attorney’s fees under the circumstances of this case.
The seminal binding case regarding the recoverability of attorney’s fees in an action involving the warranty of workmanlike performance is
Strachan Shipping Co. v. Koninklyke Nederlandsche Stoomboot Maalschappy, N.V.,
324 F.2d 746 (5th Cir.1963), ce
rt. denied,
376 U.S. 954, 84 S.Ct. 969, 11 L.Ed.2d 972 (1964). In “a case of first impression,”
id.
at 746, the court permitted a defendant and third party plaintiff shipowner to recover as indemnity from the third party defendant stevedore, as items
of damages, its attorney’s fees and expenses incurred in
defending
against the plaintiff longshoreman’s claim.
Id.
at 746-47.
The
Strachan
court did not extend the right to indemnity to encompass a right to attorney’s fees incurred in
prosecuting
its claim against the breaching party; on the contrary, the court expressly noted that “[t]he conclusion here reached is limited to the facts of this case.”
Id.
at 747.
The Court has read every Fifth Circuit and Eleventh Circuit case citing to
Strachan
(approximately twenty cases) and has found none save
Todd Shipyards
purporting to extend the scope of
Strachan
as plaintiff seeks to do here. Nor have the parties cited the Court to any case in any way suggesting that
Todd Shipyards
merely restated pre-existing law. Consequently, no binding precedent compels the Court to allow plaintiff’s claim for attorney’s fees. Plaintiff must therefore convince the Court that
Todd Shipyards
represents a reasonable, methodical extrapolation from common precedent in order to persuade the Court that
Todd Shipyard’s
tack should be followed and S & S’ motion to strike be denied.
For several reasons the Court concludes that the Eleventh Circuit would not, and hence this court should not, follow
Todd Shipyards.
First, as noted above, no binding case has come to light even suggesting the Eleventh Circuit would expand on
Strachan.
Second, binding precedent expressly holds that “[s]uch recoverable attorneys’ fees and expenses [for breach of the warranty of workmanlike performance] are limited to those incurred in defense of the injured party’s claim for damages, and do not include those for prosecuting the shipowner’s claim for indemnity, either in the trial court or on appeal.”
Lusich v. Bloomfield Steamship Co.,
355 F.2d 770, 776 (5th Cir.1966). It would hardly be consistent to disallow attorney’s fees for bringing in the indemnitor as a third party defendant yet to allow them should the indemnitee bring an original action naming the indemnitor as defendant.
Third, the binding case of
Noritake, Inc. v. M/V HELLENIC CHAMPION,
627 F.2d 724 (5th Cir.1980), classified the indemnitor-indemnitee exception to the general admiralty rule against awarding attorney’s fees as a recovery of “the reasonable expenses incurred in defending against the claim” of the injured party.
Id.
at 730 n. 5. The Court cited four cases in support of its description of the exception, two of which were warranty of workmanlike performance cases.
Fourth,
Todd Shipyards
announced this dramatic shift in the law with no discussion and with no apparent awareness that it was altering longstanding law. The Court simply quoted from
McCawley v. Ozeanosun Compania, Maritime, S.A.,
505 F.2d 26, 32 (5th Cir.1974), with an additional citation to
Thibodeaux v. Texas Eastern Transmission Corp.,
548 F.2d 581, 587 (5th Cir.1977).
It is true that both these cases stated simply that “foreseeable damages recoverable for breach of warranty of workmanlike performance include reasonable attorneys’ fees,” as the
Todd Shipyards
court quoted. Both cases, however, also cited to the seminal decision of
Strachan,
and both cases by their facts implicated only recovery for the expenses of
defending
a claim. Other binding cases clearly set forth the limitation of the rule.
E.g., Brock v. Coral Drilling, Inc.,
477 F.2d 211, 217 (5th Cir.1973) (because Coral breached its warranty of workmanlike performance, “Shell is entitled to indemnity from Coral for any costs or attorneys’ fees incurred by Shell in defending the claims brought against it by Baroid.”).
Ffth, the Ffth Circuit has not unequivocally accepted
Todd Shipyards
as the law of the circuit. After
Todd Shipyards
was handed down, the Ffth Circuit expressly acknowledged the continuing currency of
Noritake’s
limitation of the
Strachan
rule to the expenses of defense.
Platoro Ltd., Inc. v. Unidentified Remains of a Vessel,
695 F.2d 893, 906 n. 19 (5th Cir.),
cert. denied,
464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983).
Sixth, the three located Fifth Circuit cases referring to the relevant portion of
Todd Shipyards
fail to correct that case’s deficiencies by offering support for the result reached therein or explaining the reasoning underlying the decision. A challenge to the attorney’s fees award in
Todd Shipyards
was denied on second appeal because the law of the case doctrine virtually foreclosed reconsideration.
Todd Shipyards Corp. v. Auto Transportation, S.A.,
763 F.2d 745, 752 (5th Cir.1985). In
Delta Steamship Lines, Inc. v. Avondale Shipyards, Inc., 747
F.2d 995, 1011 (5th Cir.1984), the court acknowledged that the plaintiff vessel owner relied on
Todd Shipyards
in seeking its attorney’s fees, but the court denied the attorney’s fees request for reasons wholly unrelated to the
Todd Shipyards
decision. Finally, the court in
Coastal Ironworks, Inc. v. Petty Ray Geophysical,
783 F.2d 577, 583 (5th Cir.1986), employed
Todd Shipyards
without elaboration.
For the reasons stated above, S & S’ motion to strike plaintiff’s demand for attorney’s fees is GRANTED.