                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 10-15652         ELEVENTH CIRCUIT
                                                        JUNE 12, 2012
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                      D. C. Docket No. 1:09-cv-22437-JLK


ESOTERIC, LLC,
an Oregon limited liability company,
                                                             Plaintiff-Appellee,

      versus

ONE (1) 2000 EIGHTY-FIVE FOOT AZIMUT
MOTOR YACHT NAMED M/V “STAR ONE”,
her engines, tenders, tackle, equipment,
furnishings and appurtenances, In Rem, et al.,
                                                                   Defendants,

NICOLAS ESTRELLA,
her owner,
                                                           Defendant-Appellant.


               _________________________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
               _________________________________________

                                (June 12, 2012)
Before EDMONDSON, MARTIN, and ANDERSON, Circuit Judges.


PER CURIAM:



      Defendant-Appellant Nicholas Estrella appeals the district court’s judgment

in favor of Esoteric, LLC (“Esoteric”) in a maritime salvage case. Following a 2-

day bench trial, the district court awarded Esoteric $67,800 for the voluntary

salvage of a motor vessel named the M/V Star One, which is owned by Estrella.

The district court also awarded Esoteric $72,755 in attorneys’ fees. Reversible

error has been shown; we affirm in part but reverse the award of attorneys’ fees.

      While traveling near the Bahamas, the M/V Esoteric -- a yacht owned by

Esoteric -- responded to an emergency report about a nearby sinking vessel. When

the M/V Esoteric arrived at the scene, its crew members saw a large capsized yacht

-- which they later identified as the M/V Star One -- that was mostly submerged.

The M/V Esoteric’s captain determined that the submerged vessel -- which was

located in a busy sea lane -- presented a clear and present navigational hazard and

could sustain additional damage if it drifted into nearby coral reefs. Thus, the

M/V Esoteric towed the M/V Star One to the closest harbor, where Bahamian law




                                          2
enforcement officials ordered the crew to leave the M/V Star One anchored just

outside the harbor entrance.

       A couple of days later, Overseas Salvage & Maintenance, Ltd. (“Overseas”),

a professional salvage company, entered into a contract with Estrella’s insurance

company, Federal Insurance Company (“Federal”), to right the M/V Star One,

pump her dry, and tow her back to Miami. Federal paid Overseas $93,000 for its

services and paid a second salvage company $2,800 to tow the M/V Star One to a

boatyard up the Miami River.1 Esoteric later filed the instant complaint seeking a

salvage award from Estrella.2

       Estrella raises three issues on appeal.3 First, he argues that the district court

erred in concluding that the M/V Esoteric’s salvage efforts were successful. In an



       1
          We reject Estrella’s argument that the district court erred in failing to apportion the
salvage award between Esoteric and Overseas. Because Overseas was hired and paid by Federal
for its salvage services, it was not eligible to share in the salvage award. See Klein v.
Unidentified Wrecked & Abandoned Sailing Vessel, 758 F.2d 1511, 1515 (11th Cir. 1985)
(stating that eligibility for a salvage award requires a voluntary act of the salvor).
       2
         Esoteric’s complaint was filed against the M/V Star One in rem, Estrella in personam,
and Federal in personam. Esoteric later abandoned its in rem claim. And because the district
court stayed the case against Federal pending resolution of an insurance coverage dispute
between Estrella and Federal, this appeal involves only Esoteric’s suit against Estrella in
personam.
       3
         Estrella also argues that the cumulative effect of the district court’s errors warrants
reversal. Even if we assume -- without deciding -- that the cumulative error doctrine applies to
civil proceedings, Estrella has failed to demonstrate that the district court erred in granting
Esoteric’s request for a salvage award.

                                                3
admiralty bench trial, we review the district court’s factual findings for clear error

and review de novo its conclusions of law. Dresdner Bank AG v. M/V Olympia

Voyager, 463 F.3d 1210, 1214 (11th Cir. 2006).

       To succeed on a claim for a salvage award, a salvor must demonstrate these

three elements: “(1) [a] maritime peril from which the ship . . . could not have been

rescued without the salvor’s assistance[;] (2) [a] voluntary act by the salvor . . . [;

and] (3) [s]uccess in saving, or in helping to save at least part of the property at

risk.” Klein, 758 F.2d at 1515.4 To be “successful,” a party need not be

responsible by itself for saving the property at issue; “[i]t is sufficient if his efforts

contributed in some way to the ultimate success.” Legnos v. M/V Olga Jacob, 498

F.2d 666, 672 n.8 (5th Cir. 1974).

       When the M/V Esoteric first encountered it, the M/V Star One had capsized,

was mostly submerged, and appeared to be at risk of sinking. The M/V Star One

was located in a well-traveled sea lane where the water was more than 6,000 feet

deep. During the couple of hours that the M/V Esoteric was on site, the M/V Star

One drifted about a half a mile toward a stretch of coral reefs, portions of which

were fewer than six feet deep. Based on this record, we accept that, absent rescue,



       4
        That the M/V Star One was in maritime peril and that the M/V Esoteric acted voluntarily
is undisputed.

                                               4
the M/V Star One would likely have either sunk in more than 6,000 feet of water,

been struck and damaged by another boat, drifted into shallow reefs, or -- under

the best case scenario -- continued to drift unharmed in the open ocean, making it

difficult to locate. As a result of the M/V Esoteric’s salvage efforts, the M/V Star

One was anchored safely in an area where it could be located easily, where it was

in less danger of being struck by other boats, and where the water was only 35 feet

deep. Although the M/V Esoteric lacked the capabilities to right the M/V Star

One, to pump her dry, or to add floatation, the M/V Esoteric’s efforts permitted a

professional salvage company to do so a couple of days later. Because the M/V

Esoteric’s efforts contributed to the overall success of the salvage mission, we see

no clear error in the district court’s conclusion that Esoteric satisfied the “success”

element and demonstrated its eligibility for a salvage award. See id.

      Estrella also argues that the district court erred in determining the post-

salvage value of the M/V Star One when it relied entirely on the testimony of

Esoteric’s expert witness, Richard Learned. Estrella first asserts that the district

court denied improperly his motion to strike Learned as a witness based on

Esoteric’s untimely expert witness disclosure. We review the district court’s

decision to exclude a witness not listed on a pretrial witness list for abuse of

discretion. Fabrica Italiana Lavorazione Materie Organiche, S.A.S. v. Kaiser

                                           5
Aluminum & Chem. Corp., 684 F.2d 776, 780 (11th Cir. 1982). In determining

whether the district court abused its discretion, we consider “the explanation for

the failure to disclose the witness, the importance of the testimony, and the

prejudice to the opposing party.” Id.

      We see no abuse of discretion in permitting Esoteric to present Learned’s

testimony at trial. In denying Estrella’s motion to strike -- which was filed

untimely -- the district court noted that neither party had disclosed its expert

witnesses properly. Because the case required expert testimony about the post-

salvage value of the M/V Star One, the court permitted each party to call one

expert witness despite their respective failure to comply with court orders. We

agree that Estrella suffered no significant prejudice from Esoteric’s late disclosure

because Estrella had had access to Learned’s detailed survey report and appraisal

for several months before trial. Moreover, because Learned’s testimony was

central to one of the main issues in the case, Estrella was on notice that he needed

to present his own expert testimony on that issue.

      Estrella also argues that the district court erred in failing to consider the

proffered testimony of his expert, Ron Milardo, in determining the post-salvage

value of the M/V Star One. During the bench trial, the district court qualified

Milardo as an expert in the sale of salvaged vessels but refused to allow him to

                                           6
give an expert opinion about the value of the M/V Star One. The district court

later changed its ruling and permitted Estrella’s counsel to proffer that Milardo

would have testified that the M/V Star One had a post-salvage value of $150,000.

The court stated expressly that it would consider Milardo’s proffered testimony as

part of the record and that “some evidence” existed that the vessel was worth

$150,000.

      Based on this record, we conclude that the district court committed clear

error when the court stated in its Findings of Fact and Conclusions of Law that

Estrella failed to proffer evidence about the M/V Star One’s value and that

Learned’s testimony was uncontradicted. But, because the record supports the

district court’s ultimate conclusion that the M/V Star One had a post-salvage value

of $565,000, we affirm. See Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234

(11th Cir. 2010) (“This court may affirm a decision of the district court on any

ground supported by the record.”).

      Learned, a certified marine surveyor and appraiser, provided detailed

testimony and a written report about his methods of valuation, which included

inspecting the M/V Star One in person, evaluating the level of damage sustained,

and then using national appraisal standards to assign a post-salvage value of

$565,000. Although Milardo’s proffered testimony was that the M/V Star One

                                          7
was worth only $150,000, nothing evidenced how that value was established or

that Milardo had ever inspected the M/V Star One. Thus, the weight of the

evidence supports the district court’s conclusion about the post-salvage value of

the M/V Star One.

      We next address Estrella’s argument that the district court erred in awarding

Esoteric attorneys’ fees based on its conclusion that Estrella acted in bad faith.

“We review the decision to grant or deny attorney’s fees for an abuse of

discretion.” Coastal Fuels Mktg. v. Fla. Express Shipping Co., 207 F.3d 1247,

1250 (11th Cir. 2000).

      In general, attorneys’ fees are not recoverable in admiralty cases. Offshore

Marine Towing, Inc. v. MR23, 412 F.3d 1254, 1256 (11th Cir. 2005). One

exception to this rule is when the losing party has “acted in bad faith, vexatiously,

wantonly, or for oppressive reasons.” Chambers v. NASCO, 111 S. Ct. 2123,

2133 (1991). “In determining the propriety of a bad faith fee award, ‘the inquiry

will focus primarily on the conduct and motive of a party, rather than on the

validity of the case.’” Rothenberg v. Sec. Mgmt. Co., 736 F.2d 1470, 1472 (11th

Cir. 1984).

      In granting Esoteric’s request for attorneys’ fees, the district court

determined that Estrella failed to offer “any evidence” that Esoteric’s salvage

                                          8
efforts were unsuccessful.5 The court then concluded that “Estrella had no basis

for disputing [Esoteric’s] salvage claim” and that Estrella acted in bad faith. In

sum, the court stated that, “[h]aving had no cognizable defense at law, [Estrella]

unnecessarily required this Court to adjudicate -- not to mention [Esoteric] to

litigate -- this case knowing that it had provided no support for its claims. . . . Such

an abuse of the legal system demands attorneys’ fees be awarded to the opposing

party.”

       Estrella challenged the success of Esoteric’s salvage efforts based on trial

testimony that -- with the exception of being anchored -- the M/V Star One’s

condition had remained unchanged after the M/V Esoteric’s purported salvage

efforts. That the M/V Star One remained capsized, mostly submerged, and at the

same level of risk of sinking after being towed by the M/V Esoteric as it had been

in before being towed is undisputed. Thus, contrary to the district court’s

conclusion, Estrella presented evidence to support his defense argument. And we

cannot say that this argument was uncognizable at law or constituted an “abuse of

the legal system.” See Christiansburg Garment Co. v. EEOC, 98 S. Ct. 694, 700

(1978) (admonishing district courts to “resist the understandable temptation to


       5
        The district court also stated that Estrella failed to offer evidence that the M/V Star One
was not in maritime peril. But Estrella had already conceded this fact before trial; and, thus, it
was not at issue in the district court.

                                                 9
engage in post hoc reasoning by concluding that, because a [party] did not

ultimately prevail, his action must have been unreasonable or without

foundation.”). Because the requisite success of a salvage effort is a fact-intensive

inquiry, Estrella did not abuse the legal system by insisting on proceeding to trial

and putting Esoteric to its factual burden of proof.6 We are unpersuaded that

Estrella’s litigation conduct constituted bad faith; and we reverse the award of

attorneys’ fees.

       AFFIRMED IN PART; REVERSED IN PART.




       6
         We note that the district court denied Esoteric’s Motion for Summary Judgment as to
Liability -- filed six months before trial -- because no depositions had been taken, and discovery
was still ongoing.

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