JOHN A. WHALEN, Jr. v. M/V MILUSKA, OFFICIAL NO. 1041971, her engines, tackle, etc., in rem

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN A. WHALEN, Jr.,
Plaintiff-counter-defendant-
Appellant,
v.
M/V MILUSKA, OFFICIAL NO.
1041971, her engines, tackle, etc., in rem,
Defendant,
and
DAVID GEORGE HOPKINS, in
personam,
Defendant-counter-claimant-
Appellee.
No. 09-55448
D.C. No. 3:06-cv-02629-JLS-RBB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted June 9, 2010
Pasadena, California
FILED
JUN 29 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable Charles R. Breyer, United States District Judge for the**
Northern District of California, sitting by designation.
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Before: TROTT and W. FLETCHER, Circuit Judges, and BREYER, District
Judge.**
John A. Whalen appeals from the district court’s judgment, after a bench
trial, in his admiralty action against the documented vessel M/V Miluska and
David George Hopkins. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
The parties are fully aware of the facts and circumstances of this lawsuit.
Accordingly, we need not fully repeat them here.
After carefully reviewing the record, we conclude that the district court did
not clearly err in finding that Whalen breached an oral rescission agreement. See
Fed. R. Civ. P. 52(a)(6). The district court’s finding that Hopkins and Whalen
entered into a binding oral agreement to rescind the purchase agreement is fully
supported by (1) Hopkins’ testimony, which the district found to be credible,
(2) the exchange of emails between Hopkins and Whalen, and (3) Whalen’s letters
dated August 18 and 22, 2005. Because Whalen did not comply with the terms of
this binding agreement, the court correctly found him to be in breach and awarded
damages accordingly.

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As to the disputed Notice of Maritime Lien filed by Hopkins, 46 U.S.C.
§ 31343(c)(2) permits a district court to award costs and attorneys fees to an owner
of a vessel against which a lien was wrongfully filed unless the court finds that the
position of the party who filed the lien “was substantially justified or other
circumstances make an award of costs and attorneys fees unjust.” Here, the district
court concluded that “it would be unjust to award attorneys fees and costs to
Whalen.” In so doing, the court focused on Whalen’s “unremedied breach” at the
time Hopkins served notice of the disputed lien. Given Whalen’s conduct for
which the court found him liable, we cannot say that the court abused its discretion
in denying attorneys fees to him on the ground that such an award would be unjust.
AFFIRMED.

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