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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 13-13280 Non-Argument Calendar ________________________
D.C. Docket No. 9:11-cv-80722-KAM
D & M CARRIERS LLC, a foreign corporation, d.b.a. Freymiller, Inc.,
Plaintiff - Counter Defendant - Appellant,
versus
M/V Thor Spirit along with her engines, boilers, machinery, masts, rigging, tackle, equipment and supplies, tools, pumps, gear, furniture, appliances, and fishing gear and other appurtenances and apparel, having Serial No. VSC57045D506, in rem a.k.a. M/V Spirit a.k.a. M/V Elation, INAN TAPTIK, a foreign individual, in personam,
Defendants - Appellees,
ABLE BOAT TRANSPORT, LLC, a Florida Limited Corporation, in personam,
Defendant - Counter Claimant. Case: 13-13280 Date Filed: 09/22/2014 Page: 2 of 17
________________________
Appeal from the United States District Court for the Southern District of Florida ________________________
(September 22, 2014)
Before ED CARNES, Chief Judge, and RESTANI, * Judge, and ROBRENO, ** District Judge.
PER CURIAM:
This appeal arises out of a dispute concerning the overland transport of a 57-
foot yacht. Inan Taptik, a citizen and resident of Turkey, contracted with Able
Boat Transport, LLC to have the yacht transported from Missouri to Florida.
Unknown to Taptik, Able Boat then subcontracted with D & M Carriers to
transport the boat. Because of a variety of unforeseen circumstances, D & M was
able to haul the boat only to Georgia, and it did so at a cost that was well above the
amount Taptik had agreed to pay in his contract with Able Boat.
Seeking to recover the costs it incurred, D & M filed suit in federal court
asserting three claims: an in rem claim against the yacht, a breach of contract
* Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by designation. ** Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
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claim against Able Boat, and a breach of contract claim against Taptik. 1 After
conducting a bench trial, the district court entered judgment in favor of Taptik and
the vessel. This is D & M’s appeal.
I.
In 2011 Taptik purchased through a telephone auction a 57-foot Viking
Sport Cruiser yacht –– the Thor Spirit –– that was located in Table Rock,
Missouri.2 On March 24, 2011, he entered into an agreement with Able Boat to
have the yacht transported from Missouri to Fort Lauderdale, Florida. The contract
provided that Able Boat would transport the vessel for a flat fee of $16,500, but it
incorrectly noted that the boat had an overall height of only 13 feet 6 inches. On
March 25, 2011, Able Boat entered into a carrier contract with D & M to transport
the boat from Missouri to Florida. D & M agreed to haul the boat for a flat fee of
$10,750. That agreement was premised on the assumption that the boat was no
taller than fourteen feet.
On March 29, 2011, D & M truck driver Rocky Clark arrived with his
tractor-trailer at the marina in Missouri where the Thor Spirit was located. Taptik
was also present at the marina. Because Taptik did not speak any English, his
1 While this litigation was pending, Able Boat filed for bankruptcy and the district court stayed the case as to it. See 11 U.S.C. § 362(a)(1). The claim against Able Boat is not at issue in this appeal. 2 This opinion recounts the facts based on the district court’s post-trial findings of fact that are undisputed by the parties.
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employee and translator, Murat Varol, was with him. Clark introduced himself to
Varol and handed him his D & M business card. Varol believed that Clark worked
for Able Boat because Taptik’s contract stated that Able Boat would transport the
boat and Able Boat’s managing partner had told Varol and Taptik that “his driver
[was] coming to pick up the boat.” While they were at the marina, Taptik never
spoke to Clark or anyone else from D & M.
After the marina staff loaded the Thor Spirit onto his trailer, Clark realized
that the yacht was not 13 feet 6 inches tall, as stated in the contracts, but was
instead 17 feet 7 inches tall. The true height of the boat had a substantial impact
on Clark’s planned route because any load taller than 17 feet could not travel on
the interstate. Based on the new height, Clark had to take a much longer and more
circuitous route to Florida. He also had to hire escorts, conduct route surveys in
several states, and obtain over-sized load permits for each state he would be
passing through.
Because of the changed circumstances, on April 5, 2011, Able Boat
modified its contracts with Taptik and D & M. Taptik agreed to pay a flat rate of
$38,000 to Able Boat for its services, although the modified contract also provided
that the final cost could be as low as $36,000 “depending on regulation during
transport.” Able Boat also modified its contract with D & M. That contract
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provided that D & M would transport the boat to Florida for $28,000 plus the cost
of any bucket trucks and police escorts that might be needed during transport.
Clark made slow progress because of the height of the Thor Spirit. He could
not drive on the interstate and his crew of escorts had to lift more than 20,000
power lines, tree limbs, and streetlights over the course of the trip. He travelled
only 90 to 120 miles per day instead of his usual pace of 400 miles per day. He
was also delayed waiting for permits to travel through various states with his load.
When he attempted to bring the boat into Florida, the state’s department of
transportation refused to give him permission to travel on the state’s highways. As
a result, Able Boat directed Clark to deliver the boat to St. Mary’s, Georgia. It
then notified Taptik and Varol that the boat could not enter Florida and that it
would be brought to St. Mary’s. 3
After Able Boat directed Clark to deliver the boat to St. Mary’s, D & M and
Able Boat began discussing the extensive costs that D & M had incurred to pay for
bucket trucks and escorts along its route. Taptik and Varol were not included in
those discussions about the additional charges. On May 12, 2011, Able Boat
submitted a bill to Taptik for all of the charges incurred by D & M, which came to
3 Varol flew from Turkey to the United States to recover the boat. He obtained possession of the yacht and hired a captain to sail it down to its intended destination in Ft. Lauderdale.
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$85,839.81. Neither Taptik nor Varol ever agreed to pay additional fees or costs
above the $38,000 that had been agreed to in the modified contract with Able Boat.
D & M repeatedly sought payment from Able Boat for the extra costs Clark
had incurred during transportation. Able Boat agreed to pay $35,097.81 and to
split with D & M the cost of a route survey; however, Able Boat never paid D & M
the promised amount. Instead, D & M received only $17,122. In an attempt to
recover the full costs it had incurred, D & M filed a complaint in the Southern
District of Florida seeking to establish a maritime lien on the Thor Spirit. 4 D & M
contended that it was entitled to a maritime lien on the Thor Spirit because it had
provided “necessaries” to the vessel by transporting it to Georgia. 5 D & M also
asserted breach of contract claims against Taptik and Able Boat.
The district court held a bench trial on the claims asserted against the Thor
Spirit and Taptik. It dismissed the breach of contract claim against Taptik based
on improper service of process. The court also concluded that D & M was not
entitled to a maritime lien on the Thor Spirit because it had failed to prove that it
4 The claim against the Thor Spirit led United States Marshals to seize the yacht in Ft. Lauderdale. 5 Title 46 of the U.S. Code provides that “necessaries” include “repairs, supplies, towage, and the use of a dry dock or marine railway.” 46 U.S.C. § 31301(4). For purposes of this appeal, we need not decide whether the services D & M provided to the Thor Spirit qualify as “necessaries” within the meaning of the statute.
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had provided necessaries to the yacht “on the order of the owner or a person
authorized by the owner.” See 46 U.S.C. 31342(a).
II.
As an initial matter, we must determine whether we have jurisdiction to
consider D & M’s appeal even though its claim in this case against Able Boat has
not yet been resolved. “Ordinarily . . . an order adjudicating fewer than all the
claims in a suit, or adjudicating the rights and liabilities of fewer than all the
parties, is not a final judgment from which an appeal may be taken.” Lloyd
Noland Found., Inc. v. Tenet Health Care Corp., 483 F.3d 773, 777 (11th Cir.
2007). Pursuant to Federal Rule of Civil Procedure 54(d), however, the district
court entered a partial final judgment in favor of Taptik and the Thor Spirit. See
Fed. R. Civ. P. 54(d) (stating that a district court may enter a final judgment “as to
one or more, but fewer than all, claims or parties” when the district court
determines that there is “no just reason for delay”). In order for Rule 54(d)
certification to be proper, two requirements must be satisfied. First, the partial
judgment must be “both ‘final’ and a ‘judgment.’” Lloyd Noland Found., Inc., 483
F.3d at 777 (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 100
S.Ct. 1460, 1464 (1980)). Second, there must be “no ‘just reason for delay’ in
certifying it as final and immediately appealable.” Id. (quoting Curtiss-Wright
Corp., 446 U.S. at 8, 100 S.Ct. at 1465).
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Both of those requirements are met in this case. The district court’s
judgment in favor of Taptik and the Thor Spirit is a “final judgment” as to the
claims against them because it fully disposed of all of the claims against those two
defendants. See id. at 777. Nor is there any just reason to delay hearing D & M’s
appeal; the appeal does not depend on the resolution of any of the claims between
D & M and Able Boat and it is unclear whether the claims between those two
parties will ever be resolved. Although Able Boat’s bankruptcy case was closed in
November 2012, neither D & M nor Able Boat has moved to lift the district court’s
stay of the claims involving Able Boat, and D & M has asserted that its claim
against Able Boat was discharged in the bankruptcy proceedings. Accordingly, the
district court properly granted the Rule 54(b) certification.
III.
D & M raises several issues on appeal. First, D & M contends that it was
entitled to a maritime lien because it qualified as a “master” or “the person
entrusted with the management of the vessel at the port of supply” within the
meaning of 46 U.S.C. § 31341. Second, it contends that the district court
erroneously concluded that it was not entitled to a maritime lien because it had not
provided necessaries upon the order of the vessel’s owner or an agent of the owner.
Third, it contends that the district court abused its discretion by not allowing
D & M to serve Taptik with process the day that the bench trial began.
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When a district court sitting in admiralty conducts a bench trial, 6 we review
the court’s factual findings for clear error and its conclusions of law de novo.
Venus Lines Agency, Inc. v. CVG Int’l Am., Inc., 234 F.3d 1225, 1228 (11th Cir.
2000). The clear error standard recognizes the trial court’s “unique
opportunity . . . to evaluate the credibility of witnesses and to weigh the evidence.”
Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 2189
(1982). “It is the exclusive province of the judge in non-jury trials to assess the
credibility of witnesses and to assign weight to their testimony,” Hearn v. McKay,
603 F.3d 897, 904 (11th Cir. 2010) (alteration and quotation marks omitted), and
“[w]e accord great deference to the district court’s credibility determinations,”
United States v. Clay, 376 F.3d 1296, 1302 (11th Cir. 2004). In a bench trial, the
judge is “free to choose among alternative reasonable interpretations of the
evidence,” see United States v. Tampas, 493 F.3d 1291, 1298 (11th Cir. 2007), and
its “choice between permissible views cannot be clear error,” United States v.
Ndiaye, 434 F.3d 1270, 1305 (11th Cir. 2006). We will not disturb the district
court’s factual findings unless we are “left with the definite and firm conviction
that a mistake has been committed.” Inwood Labs., Inc., 456 U.S. at 855, 102
6 D & M’s in rem claim, arising under 46 U.S.C. § 31342, conferred admiralty jurisdiction on the district court. See Am. Dredging Co. v. Miller, 510 U.S. 443, 446–47, 114 S.Ct. 981, 985 (1994) (“An in rem suit against a vessel is, we have said, distinctively an admiralty proceeding, and is hence within the exclusive province of the federal courts.”) (citing The Moses Taylor, 71 U.S. (4 Wall.) 411, 431 (1866)); The Rock Island Bridge, 73 U.S. (6 Wall.) 213, 215 (1867) (“The [maritime] lien and the proceeding in rem are, therefore, correlative—where one exists, the other can be taken, and not otherwise.”).
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S.Ct. at 2189 (quotation marks omitted). When a district court refuses to extend
the time a plaintiff has to properly serve a defendant under Federal Rule of Civil
Procedure 4(m), we review that decision only for an abuse of discretion.
Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132–33 (11th Cir. 2005).
A.
D & M asserts that it had authority to obtain necessaries for the Thor Spirit
because it qualified as either the yacht’s “master” or “a person entrusted with the
management of the vessel at the port of supply.” Under the Federal Maritime Lien
Act, an individual is entitled to a lien on a vessel if he provides necessaries to the
vessel “on the order of the owner or a person authorized by the owner,” 46 U.S.C.
§ 31342, and certain individuals are presumed to have authority to obtain
necessaries for a vessel, id. § 31341. Those individuals include “the master” and
“a person entrusted with the management of the vessel at the port of supply.” Id.
§ 31341(a)(2), (3).
In the district court, D & M never raised the issue of whether it had acted as
the Thor Spirit’s “master” or whether it had been “entrusted with the management
of the vessel at the port of supply.” Instead, the sole issue it presented was whether
Able Boat had acted as Taptik’s “agent” and authorized the expenses that D & M
incurred during transport. We have said again and again that we will not consider
“an issue not raised in the district court and raised for the first time in an appeal.”
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Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(quotation marks omitted); accord Hurley v. Moore, 233 F.3d 1295, 1297 (11th
Cir. 2000) (“Arguments raised for the first time on appeal are not properly before
this Court.”); Nyland v. Moore, 216 F.3d 1264, 1265 (11th Cir. 2000) (same);
Provenzano v. Singletary, 148 F.3d 1327, 1329 n.2 (11th Cir. 1998) (same).
Although we have the discretion to consider an argument that was not presented to
the district court, we do so only when “special circumstances” exist. See Access
Now, Inc., 385 F.3d at 1332 (listing five instances when we may consider an
argument raised for the first time on appeal). None of those special circumstances
is present here. Therefore, we decline to consider D & M’s argument that it was
authorized under 46 U.S.C. § 31341(a)(2), (3) to secure necessaries for the Thor
Spirit.
B.
Regarding the issue it did preserve, D & M contends that it was entitled to a
maritime lien on the Thor Spirit because it provided necessaries upon the order of
the vessel’s owner or an agent of the owner. See S.E.L. Maduro (Fla.), Inc. v. M/V
Antonio de Gastaneta, 833 F.2d 1477, 1482 (11th Cir. 1987) (recognizing, in an
action to enforce a maritime lien, that a court must determine whether the party
that secured “necessaries” for the vessel had authority to do so). That contention
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challenges the district court’s factual findings, so we review only for clear error.
See Venus Lines Agency, Inc., 234 F.3d at 1228.
The district court found that Taptik did not personally authorize D & M to
transport the Thor Spirit to Florida or to provide the yacht with “necessaries”
beyond the cost agreed on with Able Boat. The trial court based its conclusion on
Taptik’s testimony that Able Boat was the only entity he authorized to transport the
Thor Spirit after he was drawn to the company by its online advertising, as well as
several undisputed facts. First, Taptik signed a contract with Able Boat to
transport the yacht, and he never entered into a contract with D & M. Second,
Able Boat never told Taptik that it had retained D & M as a subcontractor to
transport the Thor Spirit, and Taptik thought that Able Boat would be the only
entity entrusted with his boat. Third, in his modified contract with Able Boat,
Taptik agreed to pay only a flat rate of $38,000 to have his boat transported. In
light of that testimony and those undisputed facts, the district court did not clearly
err when it concluded that Taptik did not personally authorize D & M to transport
the Thor Spirit and secure “necessaries” for the transportation. See Inwood Labs.,
Inc., 456 U.S. at 855, 102 S.Ct. at 2189.
The district court also found that Taptik did not have an agent who
authorized D & M’s expenditures. That conclusion is a finding of fact that we
review only for clear error. See Naviera Neptuno S.A. v. All Int’l Freight
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Forwarders, Inc., 709 F.2d 663, 665 (11th Cir. 1983) (“Federal maritime law
embraces the principles of agency, and under those principles the existence of an
agency relationship is a question of fact.”) (citation omitted); see also Archer v.
Trans/Am. Servs., Ltd., 834 F.2d 1570, 1572–73 (11th Cir. 1988) (noting that “the
existence of an agency relationship is a question of fact” that we review only for
clear error). An agency relationship can be created in two ways. First, a principal
may create an agency relationship by vesting a person with “actual authority” to
make decisions that will have legal consequences for the principal. See
Restatement (Third) of Agency § 3.01 (2006). “Actual authority . . . is created by a
principal’s manifestation to an agent that, as reasonably understood by the agent,
expresses the principal’s assent that the agent take action on the principal’s
behalf.” Id. An agency relationship may also be created through “apparent
authority.” See id. § 3.03. “Apparent authority . . . is created by a person’s
manifestation that another has authority to act with legal consequences for the
person who makes the manifestation, when a third party reasonably believes the
actor to be authorized and the belief is traceable to the manifestation.” Id.
“Apparent authority” does not exist unless the principal indicates (through words
or conduct) to the third party that another person is authorized to act as the
principal’s agent. See id.
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The district court concluded that Able Boat could not have authorized on
Taptik’s behalf the expenditures that D & M incurred because Able Boat was not
Taptik’s agent. First, the court found that Able Boat did not have express authority
to act as Taptik’s agent. That finding was based on two pieces of evidence: (1)
Taptik’s testimony that he never authorized Able Boat to act as his agent, and (2)
the contract between Taptik and Able Boat, which did not contain any language
authorizing Able Boat to act as Taptik’s agent. Second, the court found that Able
Boat lacked apparent authority to act as Taptik’s agent. The court based that
finding on evidence presented at trial showing that Taptik never spoke to any
person affiliated with D & M. As a result, D & M could not have believed, based
on any representation from Taptik, that Able Boat was authorized to act as his
agent. See Restatement (Third) of Agency § 3.03. After viewing the record as a
whole, we are not “left with the definite and firm conviction” that Able Boat was
authorized to act as Taptik’s agent. See Inwood Labs., Inc., 456 U.S. at 855, 102
S.Ct. at 2189. The district court’s finding was not clearly erroneous.
The district court also found that Varol was not Taptik’s agent, and therefore
he could not have authorized on Taptik’s behalf the additional expenses that
D & M incurred during transport. The court based that conclusion on testimony
from Taptik and Varol that: (1) Taptik involved Varol in his transaction only for
the limited purpose of acting as his English language translator, (2) Taptik
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instructed Varol “never to do anything without asking him first,” and (3) Varol
never represented to D & M that he was Taptik’s agent. That testimony, which the
district court expressly credited, supports its conclusion that Varol did not have
express authority to act as Taptik’s agent for purposes of authorizing D & M’s
expenditures. The district court also found that Varol lacked apparent authority to
act as Taptik’s agent. That conclusion is supported by testimony, which the district
court credited, that Taptik could not have represented to D & M that Varol was his
agent because he never spoke to any person affiliated with D & M. In light of the
record as a whole, the district court did not clearly err in concluding that Varol was
not Taptik’s agent for purposes of authorizing D & M to secure necessaries for the
Thor Spirit.
Because the district court did not clearly err in finding that D & M’s
expenditures were not authorized by Taptik or his agent, D & M was not entitled to
a maritime lien on the Thor Spirit. See S.E.L. Maduro (Fla.), Inc., 833 F.2d at
1482.
C.
Finally, although D & M does not challenge the district court’s conclusion
that Taptik was never properly served, it contends that the district court abused its
discretion by not allowing it to serve Taptik with process the day that the bench
trial began — nearly seventeen months after the complaint had been filed. Under
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the Federal Rules of Civil Procedure, a plaintiff usually has 120 days to serve
process on a defendant.7 Fed. R. Civ. P. 4(m). The district court has the discretion
to extend that time limit, even where the plaintiff fails to show “good cause” for its
failure to serve the defendant within the required 120 days. Horenkamp, 402 F.3d
at 1132.
In this case, the district court did not abuse its discretion when it refused to
allow D & M to serve Taptik at trial nearly a year and a half after the complaint
had been filed. D & M never asked the court for leave to serve Taptik beyond the
120-day time period, and it never attempted to show why it had delayed 17
months. Taptik challenged D & M’s service of process as early as July 2011,
which was 16 months before the bench trial, but D & M did not take any steps to
perfect service on him until he made a special appearance in the United States to
testify at the trial in this case. D & M did not exercise reasonable diligence in
attempting to properly serve Taptik and it has failed to show good cause for its
delay. Therefore, the district court did not abuse its discretion when it prevented
D & M from serving Taptik on the morning of the bench trial. Because the district
court did not abuse its discretion in preventing D & M from serving Taptik at trial
7 That time limit does not apply when a plaintiff is attempting to serve process on an individual in a foreign country. See Fed. R. Civ. P. 4(f). But see Lozano v. Bosdet, 693 F.3d 485, 489 (5th Cir. 2012) (“Rule 4(f) authorizes a without-prejudice dismissal when the court determines in its discretion that the plaintiff has not demonstrated reasonable diligence in attempting service.”). However, it is undisputed that D & M never attempted to serve Taptik in Turkey.
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and D & M does not challenge the finding that Taptik was never properly served,
the district court did not err when it dismissed D & M’s breach of contract claim
against Taptik.
IV.
For the reasons discussed, we affirm the district court’s judgment in favor of
Taptik and the Thor Spirit.
AFFIRMED. 8
8 This appeal was originally scheduled for oral argument but was removed from the oral argument calendar by unanimous agreement of the panel under 11th Cir. R. 34-3(f).