
USCA1 Opinion

	




                                ____________________          No. 96-1850                          NAVIEROS INTER-AMERICANOS, S.A.,                                Plaintiff, Appellee,                                         v.                             M/V VASILIA EXPRESS et al.,                               Defendants, Appellants,                                 DUSAN JEFTIMIADES,                          Petitioner, Intervenor-Appellant.                          _________________________________          No. 96-1851                          NAVIEROS INTER-AMERICANOS, S.A.,                                Plaintiff, Appellee,                                         v.                             M/V VASILIA EXPRESS et al.,                               Defendants, Appellants,                             COASTAL SHIP REPAIR, INC.,                          Petitioner, Intervenor-Appellant.                          _________________________________          No. 96-2174                          NAVIEROS INTER-AMERICANOS, S.A.,                                Plaintiff, Appellee,                                         v.                             M/V VASILIA EXPRESS et al.,                               Defendants, Appellants,                          MOTOR-SERVICES HUGO STAMP, INC.,                          Petitioner, Intervenor-Appellant.                          _________________________________          No. 96-2175                          NAVIEROS INTER-AMERICANOS, S.A.,                                Plaintiff, Appellee,                                         v.                             M/V VASILIA EXPRESS et al.,                               Defendants, Appellants.                          _________________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                      [Hon. Jose A. Fuste, U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                           Aldrich, Senior Circuit Judge,                              and Lynch, Circuit Judge.                                ____________________               Harry A. Ezratty for intervenor-appellant Dusan Jeftimiades.               Francisco                          G.                             Bruno and  Lilia                                              R.                                                  Rodriguez                                                            Ruiz, with whom          McConnell                     Valdes was on brief, for intervenor-appellant Coastal          Ship Repair, Inc.               Antonio M. Bird, Jr., with whom Bird Bird and Hestres was on          brief, for intervenor-appellant Motor-Services Hugo Stamp, Inc.               Stephen                         T.                             Perkins for defendant-appellants M/V VASILIA          EXPRESS et al.               Mark                     C.                        Landry, with whom  Carlos                                                   J.                                                      Quilichini, Robert                                                                          A.          Mathis, and Newman,                                Mathis,                                        Brady,                                               Wakefield                                                          &                                                            Spedale were on          brief, for appellee Gulf Coast Bank & Trust Co.                                ____________________                                    July 28, 1997                                ____________________                      LYNCH, Circuit Judge. This admiralty case features            seven competing claimants, each trying to take from the            proceeds of the sale of a seized vessel, the M/V VASILIA            EXPRESS. Three claimants, in addition to the original            charterer plaintiff, were allowed to intervene; all four won            judgments after a three-day, expedited bench trial. Suit was            originally brought in rem against the vessel. The vessel's            corporate owner and its shipping agent both appeared, however,            in               personam to defend the action, and were also held liable on            two of the judgments (for the original charterer and another            intervening charterer). The proceeds of the sale are            insufficient to satisfy even these four successful claims.            Various other claimants, whose claims would further tax the            available funds, were not allowed to intervene. Three of            these, the ship's captain and two repair companies, appeal.            The owner of the vessel, the shipping agent, and the vessel            itself also appeal together, arguing that the district court's            entry of judgment against them is in error, and hence that            there should be no division of proceeds at all. Alternatively,            they argue that the two charterers were awarded excessive            damages. These four appeals were consolidated.                      We affirm the judgment against the vessel and the two            in personam defendants, but we vacate the damages awards to            both charterers and remand for a reassessment of damages. We            also affirm the denial of intervention to the captain, but we                                         -2-                                          2            reverse the denials of the two repair companies' motions to            intervene and remand to the district court to entertain those            companies' proof, to calculate damages due them, if any, and to            determine how the proceeds from the sale of the vessel should            be allocated among the various judgment winners.                                         I.                      The underlying facts are not now in dispute. On the            morning of March 28, 1996, Navieros Interamericanos S.A., Inc.            ("Navieros"), a Florida corporation, entered a fixed time            charter party with the M/V VASILIA EXPRESS on a standard New            York Produce Exchange form through a ship's broker, Jan Gisholt            Shipping, Inc., also of Florida. According to the charter            party, the M/V VASILIA EXPRESS was owned by Royal United            Shipping, Inc. ("Royal United"), and was registered in the West            Indies. During this litigation it was established that,            despite this written representation, the vessel was actually                                            1.  A "charter party" is "a specialized form of contract for            the hire of an entire ship, specified by name." 2 Schoenbaum,            Admiralty & Maritime Law                                    S 11-1, at 169 (2d ed. 1994). A "time            charter party," one of several different types of charter            parties, is a contract "to use a ship in order to ship goods            for a specific period of time."   Id. S 11-5, at 178. Under            such agreements, "[t]he carrier makes the ship's capacity            available to the time charterer for this purpose. The            charterer bears the expenses connected with each voyage and            pays hire to the carrier based upon the time the ship is under            charter."  Id.                A charter party is "fixed" when there is "a meeting of the            minds, evidenced by the parties' communications, on the            significant 'main terms' of a charter."  Id. S 11-2, at 172.                                         -3-                                          3            owned by Vasilia, Inc. ("Vasilia"), a corporation with close            links to Royal United.                      Navieros chartered the vessel for two round-trips            between Florida and Guatemala, with an option for a third            round-trip, for a total engagement of about 27 days, at $2,300            per day. Navieros intended to ship, on behalf of various            clients, "general merchandise, freight [of] all kinds,            electrical material, toys, hardware, food stuffs, . . . heavy            equipment, . . . road building construction-type machinery,            and . . . used vehicles." The time charter party stated that            delivery of the vessel to Navieros, the charterer, was to occur            upon the vessel's arrival at the pilot station in Port            Everglades, Florida, where Navieros's cargo was to be loaded.            The charter party stated that this would happen "any time, day,            night" after the fixing of the charter on March 28.                      At approximately 2:00 in the afternoon on March 28,            Kenneth Coleman, the President of Navieros, boarded the vessel            at dock in Miami, about 30 miles from Port Everglades. Coleman            discussed the stowage plan with the captain, Dusan Jeftimiades,            and with Michael Psarellis and instructed the captain to berth                                            2.  Vasilia is a Liberian corporation with its principal place            of business in Greece. Steven Psarellis, a Louisiana attorney,            is described as the attorney-in-fact for the corporation.                Royal United is a Delaware corporation. Vasilia Psarellis,            Steven's mother (and the person after whom the vessel is            named), is the president. Her other son, Michael, is the            "principal operating manager."                                         -4-                                          4            at Pier 19 when he arrived at Port Everglades, instead of at            the pilot station.                      The next day, the M/V VASILIA EXPRESS left its berth            in Miami, apparently headed for Port Everglades. The only            deviation from the written agreement that Coleman had mentioned            involved the berthing of the ship at a different point in Port            Everglades, but the ship never reached Port Everglades.                      The vessel experienced problems with its bridge            tachometer and stopped for repairs at Bicentennial Park, still            inside the Port of Miami.  Kenneth Coleman and his brother            William, also a Navieros officer, visited the ship four or five            times over the next week. During this time, Navieros also            ordered fuel for the vessel, confirmed its reservation of the            berth space at Port Everglades, and issued the necessary check            in payment of United States customs dues.                      During this unexpected delay, Royal United, the            putative owner of the vessel, entered into a second time            charter party with Comet Lines Agency, Inc. ("Comet"), which            was unaware of the charter party with Navieros. Royal United            apparently believed at this time that the Navieros charter            party had not yet been fixed. The Comet charter party,            brokered by Americana Marine Services, began on April 4 and was                                            3.  The record does not reveal the name of the company which            made these repairs. We infer that it was Motor-Services Hugo            Stamp, Inc., one of the two repair company appellants denied            intervention in this case.                                         -5-                                          5            to last for a period of 30 days. It brought a more lucrative            charter rate, $2,630 per day, than did the Navieros charter.            Comet intended primarily to carry cargo between San Juan,            Puerto Rico and Venezuela. Since the vessel was in Miami at            the start of the charter, Comet arranged to have some            Venezuela-bound cargo brought down from Jacksonville and loaded            there; Comet's intention was to have the vessel proceed to San            Juan where more cargo would be loaded, and then to sail to            Venezuela.                      Upon the vessel's arrival in the port of San Juan on            April 13, however, the United States Coast Guard detained the            vessel for a litany of safety violations and ordered it not to            proceed to sea without Coast Guard approval.                      Navieros subsequently learned that the vessel was            being detained in Puerto Rico. On April 18, while the ship was            still in detention, Navieros filed a complaint in the federal            district court in Puerto Rico, initiating this litigation.            Initially, the action was                                      in                                         rem against the vessel to enforce                                            4.  The violations of the  International                                                       Convention                                                                   for                                                                       the            Safety of Life at Sea                                , 32 U.S.T. 47, T.I.A.S. No. 9700 (1974),            listed in the Coast Guard citation include: intoxication of            the master (Jeftimiades); inability of intoxicated master to            produce the necessary documents and certificates to Coast Guard            officers; non-compliance with minimum safe manning certificate;            various problems with electrical wiring in the engine room;            lighting in engine room not covered; watertight door in engine            room could not be closed due to installation of cable through            doorway; non-working aft port fire hose; unreadable fire            control plan; absence of dangerous cargo manifest for dangerous            cargo on board; and carbon dioxide alarm system disconnected            and activation pull cable not labeled.                                         -6-                                          6            an alleged maritime lien based on the breach of a time charter            agreement.                      Later that same day, April 18, the district court, in            an ex  parte proceeding, ordered the arrest of the vessel            pursuant to Rule C of the Supplemental Rules for Certain            Admiralty and Maritime Claims to the Federal Rules of Civil            Procedure. Rule C allows the holder of a maritime lien to            proceed in rem against the vessel that is the subject of the            lien. In its order, the court stated that Navieros had made a            prima facie showing of a maritime lien against the vessel.                      Vasilia, as claimant of the  in  rem defendant M/V            VASILIA EXPRESS, filed a motion for a post-arrest hearing on            April 23. Vasilia claimed that the arrest of the vessel was            improper because Navieros had no maritime lien. The only            argument advanced by Vasilia at this point against the            existence of a lien was that the charter party between Navieros            and Royal United had not been fixed. A charterer's maritime            lien, a right derived from a contract, will not arise in the            absence of a fixed charter party, that is, in the absence of an            enforceable contract.                      In response to Vasilia's motion, Navieros amended its            complaint on April 24 and moved alternatively for attachment of                                            5.  Later, Vasilia would argue that there was no lien because            the contract was still executory at the time of the breach;            maritime liens do not arise from the breach of an executory            charter party.                                         -7-                                          7            the vessel under Supplemental Rule B. Navieros also added            Royal United as an                               in                                  personam defendant. One of the pertinent            differences between Rules C and B is that the latter does not            require the existence of a maritime lien. Rule B allows an            admiralty plaintiff to acquire quasi in rem jurisdiction over            a defendant by attaching his property in the district; this            approach is available only if the defendant "shall not be found            within the district." As required by Rule B, Navieros            submitted an affidavit stating that, to the best of its            knowledge, after a diligent search, defendant Royal United            could not be found within the district.                      The court ordered attachment of the vessel pursuant            to Rule B on April 29. In its May 1, 1996 answer to Navieros's            amended complaint, Vasilia reiterated that Navieros had no            maritime lien because there was no fixed charter party.            Vasilia also filed a counterclaim against Navieros for wrongful            arrest, and asserted that if the court should find that there            was a fixed charter party, then the dispute "would be subject            to compulsory arbitration." Vasilia did not move to compel            arbitration at this time.                      The next day, April 30, Vasilia filed a "request for            amended process of arrest" in which it asserted that the Rule            B attachment was wrongly ordered by the court because Vasilia            had designated an agent in the district upon whom process could            be served on behalf of Vasilia. Navieros then amended its                                         -8-                                          8            complaint again to name Vasilia as                                               in                                                  personam defendant along            with Royal United. Trial ultimately proceeded on this second            amended complaint.                      That same day, the court held a hearing and ordered            the case expedited. The court accelerated discovery and set a            May 23 trial date. The court later explained, in its June 7            memorandum opinion, that this rushed schedule was necessary            because the vessel had "a fair market value of $500,000," it            "was accruing significant expenditures incidental to the            arrest," and there were "liens or potential liens exceeding its            fair market value." The court also denied Vasilia's motions            to vacate the Rule C arrest of the vessel and the Rule B            attachment of it. The court stated that the arrest could be            lifted by the posting of a $200,000 bond. No bond was posted.                      On May 8, Vasilia filed a "second motion to vacate            arrest and attachment and for second post-arrest hearing."            Vasilia now claimed that "there are new reasons" showing that            the Rule C arrest was illegal. Vasilia argued that Navieros            had no maritime lien because the vessel had not been delivered                                            6.  On the first day of trial, the court again expressed its            concern with the problems that would be caused by delay: "It's            a vessel of marginal value in a marginal trade with charters            and owners of marginal economic solvency and all that we're            going to create [by transferring the case to arbitration] is a            bigger problem for everybody here."            7.  This motion and most subsequent submissions were filed by            Vasilia alone, not by Royal United or the vessel. Hence, we            often describe the collective defendants as "Vasilia."                                         -9-                                          9            to Navieros, the charter party was still executory, and a            maritime lien will not arise from the breach of an executory            charter party. Vasilia cited for the first time Navieros's            oft-repeated assertion in its pleadings that the vessel had not            been delivered as required by the charter party. Both      in            personam defendants then waived the requirement that they be            served with process and waived any objections to lack of            personal jurisdiction. The court summarily denied Vasilia's            motion on May 20, three days before trial commenced.                      On May 13, Comet and Transcaribbean Maritime Corp.            ("Transcaribbean") filed motions to intervene as plaintiffs in            the lawsuit. Comet is the second charterer; like Navieros, it            pleaded a breach of contract claim. Transcaribbean is a San            Juan-based ship's agent and stevedoring contractor which paid,            on behalf of the vessel, harbor and port dues, pilot fees, and            other expenses incidental to the ship's arrival and its            subsequent detention in the Port of San Juan. On May 20, the            court allowed both claimants to intervene.                      On May 22, on the eve of trial, Captain Jeftimiades            filed a motion to intervene as plaintiff, asserting a maritime            lien for unpaid seaman's wages. On May 23, the day the trial            started, Gulf Coast Bank & Trust Co. ("Gulf Coast"), the holder            of a first preferred mortgage on the vessel, filed a motion to            intervene as plaintiff in order to request foreclosure.                                        -10-                                         10                      At the start of trial, the court ruled from the bench            on the two motions to intervene. After establishing that            neither Captain Jeftimiades nor his counsel were present in the            courtroom, the judge ascertained from Navieros's counsel that            Jeftimiades's counsel was aware that the trial was starting.            The court then denied Jeftimiades's motion to intervene,            stating:                      Well, the captain is not here. His lawyer                      is not here. Everybody is aware of the                      fact that this case was being tried or                      there was no reason not to know.                      Therefore, at this point in time I am                      denying for obvious lack of interest, they                      are not here, the motion for permission to                      intervene . . . .            Gulf Coast's motion to intervene was granted.                      On this first day of trial, the court also ruled from            the bench on Vasilia's motion to compel arbitration, filed the            day before. Vasilia's motion relied on an arbitration clause            in the charter party between Navieros and Royal United (and on            a similar clause in the charter party with Comet). The motion            came two days after Vasilia's pre-trial concession regarding            the existence of a fixed charter with Navieros, a point Vasilia            had been contesting until then.                      The court characterized this motion as among the            "strongest" of the many pre-trial motions, but nevertheless            denied it. The court stated that Vasilia had conducted itself            thus far in the litigation in a manner inconsistent with a            desire to enforce a contractual arbitration clause, and that it                                        -11-                                         11            had "by its actions moved away from its right to arbitrate."            Sending the case to arbitration, said the judge, would also, by            causing further delay, increase the costs attendant to the            continuing arrest of the vessel, and "create a bigger problem            for everybody here."                      Because Vasilia admitted the existence and breach of            a charter party with Navieros, trial proceeded on the question            of damages alone. Vasilia argued that Navieros had no right to            arrest the vessel under Rule C or to attach it under Rule B.            Moreover, Navieros's resort to these procedures, Vasilia said            in its counterclaim, had caused Vasilia to breach its contract            with Comet and to incur other liabilities. Relying on the            venerable executory contract doctrine, Vasilia argued that the            Rule C arrest was improper because the vessel had not yet been            delivered to Navieros at the time of the breach, and the            charter party was still executory. Consequently, argued            Vasilia, Navieros had no maritime lien and its resort to Rule            C was invalid. Rule B attachment was also invalid, argued            Vasilia, because this measure may only be invoked where the                                            8.  Had Vasilia filed the motion to compel arbitration earlier            in the pleadings, stated the court, "it would have been very            difficult not to grant it." Additionally, the court indicated            that, despite its belief that Vasilia had waived the right to            arbitration, it might have granted the motion if Vasilia, while            arguing the motion at trial, had expressed a willingness to            post a $200,000 bond to release the vessel from arrest, thus            hastening a conclusion to the expensive arrest. Vasilia's            counsel responded, however, that his client could not post such            a bond.                                        -12-                                         12            defendant cannot be found within the district, and Vasilia had            appointed an agent within the district for service of process            on its behalf.                        The trial concluded on May 29, and the court issued            its written memorandum and order on June 7. The court upheld            both the Rule C arrest and the Rule B attachment. Rejecting            Vasilia's Rule C argument, the court held that the vessel was            effectively delivered to Navieros prior to the breach when            Coleman boarded the vessel in Miami. The court stated:                      Although the vessel was to be technically                      delivered at the pilot station in Port                      Everglades, a location less than thirty                      nautical miles away, due to the proximity                      of the locations, the master and Mr.                      Psarellis accepted Kenneth Coleman's                      instructions to proceed further to Port                      Everglades and, with a pilot, to berth at                      Pier 19 in Port Everglades for loading.                      The vessel was, for all purposes,                      delivered to the charterer when Mr.                      Psarellis and the ship's master accepted                      Mr. Coleman's verbal instructions to                      proceed under the charter party agreement                      to Pier 19 at Port Everglades for loading.            The court also upheld the Rule B attachment, rejecting            Vasilia's argument that the attachment was improper because            Vasilia had appointed an agent for service of process within            the district. The court emphasized that Vasilia, a Liberian            corporation, had had no corporate presence whatsoever in the            district. The court stated that the eleventh hour appointment            by Vasilia of counsel as local agent for service of process was                                        -13-                                         13            a "strategic appointment directed at defeating the necessity of            the rule" and could not be used to elude attachment.                      The court entered judgment against the vessel and the            two in personam defendants: for Navieros in the amount of            $182,952; for Comet in the amount of $100,312.13; for            Transcaribbean in the amount of $24,777.26; and for Gulf Coast            in the amount of $285,428.91. The total of the judgments            against Vasilia amounted to $593,470.30. The court ordered            that the vessel be sold by the United States Marshal at auction            to satisfy these judgments.                      The court ruled that Gulf Coast had complied with the            requirements of the Ship Mortgage Act, 46 U.S.C. S 30101   et            seq., and had successfully shown that it had a preferred            mortgage. The court, however, did not rank the four judgment            winners. Nor did the court know, at the time the judgments            were handed down, how much money would be available from the            eventual sale of the vessel to satisfy the judgments.                      Several more would-be plaintiffs moved to intervene            as a matter of right under Fed. R. Civ. P. 24(a) after the            decision was handed down; these motions were denied. We            discuss only those parties that appeal. The first of these            post-judgment movants was Motor-Services Hugo Stamp, Inc.                                            9.  We note that Gulf Coast's compliance with the provisions of            the Ship Mortgage Act was the subject of considerable dispute            in the district court. That question, however, is not before            us.                                        -14-                                         14            ("Motor-Services"), a Florida-based ship repair and supply            company which sought to intervene on June 7, the day judgment            issued. Motor-Services asserted a maritime lien in the amount            of $76,460.55 for unpaid receivables due for work done on the            M/V VASILIA EXPRESS and materials supplied to it between            February 28 and March 29, 1996. The second post-judgment            movant was Coastal Ship Repair, Inc. ("Coastal"), a Louisiana            corporation which sought intervention on June 11. Coastal,            too, asserted a maritime lien for moneys due for work performed            and materials supplied the vessel, from May 2, 1995, through            July 1, 1995. Coastal asserted a lien in the amount of            $144,800. The court denied these two late motions on July 3 by            separate written orders.                      The public auction was held July 2, but the required            minimum bid of $400,000 was not achieved. A second auction was            held on July 23 with a lower minimum of $300,000. Gulf Coast,            the first preferred mortgage holder, bought the ship for            $300,000. After confirmation of the sale, Jeftimiades,            Coastal, and Motor-Services moved to stay disbursement of the            proceeds until final resolution of these appeals. This motion            was granted, and the proceeds of the sale, less certain            administrative costs and fees, remain in an escrow account            pending resolution of the appeal.                                         II.                      Vasilia appeals on four grounds: (1) that the arrest                                        -15-                                         15            and attachment were invalid; (2) that the motion to compel            arbitration was wrongly denied; (3) that the court awarded both            charterers, Navieros and Comet, excessive damages; and (3) that            the court improperly pierced Vasilia's corporate veil. We            resolve Vasilia's claims without the benefit of briefs from            Navieros  or any of the other plaintiffs in whose favor            judgment was entered.            A.  Arrest and Attachment                      Vasilia admitted before trial that it was in breach            of the charter party with Navieros. The main issue on appeal            is whether Navieros was entitled to take the measures it took            prior to trial regarding the vessel. Vasilia's position            remains that (1) Navieros had no maritime lien and thus no            right to arrest and (2) Vasilia had appointed an agent within            the district for service of process on its behalf and so            attachment was improper. Vasilia apparently infers that            Navieros is responsible for the chain of events set in motion            by the subsequent unavailability of the vessel:    i.e., the            breach of the Comet charter; Gulf Coast's decision to bring its            foreclosure action; and the need for Transcaribbean to incur            the custodial costs associated with the arrest of the vessel.                                            10.  Navieros, the original plaintiff in this action, chose not            to participate in this appeal. Navieros did not file a brief            and did not appear at oral argument. Presumably, Navieros            concluded that further participation in this litigation would            be fruitless given the $285,000 judgment awarded Gulf Coast on            its preferred mortgage lien.                                        -16-                                         16            Vasilia's position appears to be that Navieros should have            brought an in  personam suit against Vasilia for breach of            contract, rather than moving against the vessel under Rules C            and B, and that this would not have resulted in the same domino            effect.                      Navieros first invoked Rule C, seeking the arrest of            the vessel on the basis of an asserted maritime lien. After            Vasilia challenged the existence of a maritime lien, Navieros            moved alternatively for Rule B attachment.       The two            strategies, though similar in effect, are based on entirely            different theories.                      An in rem action [under Rule C] differs                      from maritime attachment [under Rule B] in                      that an in rem action is brought against                      the vessel itself as defendant. By                      contrast, a vessel is attached only as an                      auxiliary to an in personam claim because                      the vessel is property belonging to the                      defendant.            2 Schoenbaum, supra, S 21-3, at 478-79. The district court            ordered both Rule C arrest and Rule B attachment of the vessel,            and ruled both procedures proper in its written opinion.            Vasilia challenges both rulings on appeal. Either procedure            standing alone would have been sufficient to enable Navieros to                                            11.  The two rules may be invoked simultaneously.  See, e.g.                                                                        ,            Amstar Corp.                        v.                            S/S Alexandros T.                                            , 664 F.2d 904, 906 (4th Cir.            1981); 2 Schoenbaum, supra, S 21-2, at 469 n.2, 470.                                        -17-                                         17            ensure the continued presence of the vessel in Puerto Rico            while the litigation proceeded.            1.  Arrest                      The Rule C question is a close one, and it takes us            into waters uncharted by this circuit. In order to invoke Rule            C to arrest a vessel, a plaintiff must have a valid maritime            lien against the defendant's vessel.     See Bunn v.   Global            Marine, Inc.                       , 428 F.2d 40, 48 n.10 (5th Cir. 1970) ("a maritime            lien is the foundation of a proceeding                                                   in                                                      rem");                                                             Rainbow Line,            Inc. v. M/V                         Tequila, 480 F.2d 1024, 1028 (2d Cir. 1973) (" in            rem jurisdiction in the admiralty exists only to enforce a            maritime lien"); 2 Schoenbaum, supra, S 21-3, at 478-79. We            affirm the district court holding that Navieros had a maritime            lien. The Rule C arrest was thus valid.                      Under the executory contract doctrine, charterers            have no maritime lien until performance of the charter contract                                            12.  It is unclear from the record whether (and for how long)            the United States Coast Guard detention of the vessel in Puerto            Rico, effected on April 14, would have also detained the            vessel. This could be an important matter because Vasilia's            counterclaim -- based on the claim that Navieros wrongfully            deprived it of the use of its vessel -- would be entirely moot            if we could determine with any certainty that the Coast Guard            detention would have continued at least through June 7, the            date judgment was entered for Navieros. If this were the case,            any wrongful arrest or wrongful attachment would likely be            harmless error, cured by the judgment. The district court            opinion, issued on June 7, does state "[a]s of this date, the            vessel is still detained at the port of San Juan, Puerto Rico,            by virtue of the U.S. Coast Guard prohibition for the cited            safety violations." But there is no evidence in the record            before us on this point. In the absence of such evidence, we            address Vasilia's arguments on their merits.                                        -18-                                         18            begins.  Krauss                              Bros.                                    Lumber                                            Co. v. Dimon                                                          S.S.                                                               Corp.                                                                      (The            Pacific Cedar), 290 U.S. 117, 121 (1933); Osaka Shosen Kaisha            v. Pacific Export Lumber Co. (The Saigon Maru), 260 U.S. 490,            495 (1923). "Liability arises in the admiralty as elsewhere            from breach of any valid contract, but until the parties have            entered in performance remedy for the breach is  in  personam            only; the added advantages of lien status are reserved to            claimants under executed contracts." Gilmore & Black, The Law            of Admiralty S 9-22, at 635 (2d ed. 1975); see also Bunn, 428            F.2d at 48 n.10 ("The rule in admiralty is well settled that no            lien attaches for the breach of an executory contract. . . .            [U]ntil the parties have entered into performance, the remedy            in admiralty for the breach is  in personam only.");  Rainbow            Line, 480 F.2d at 1027 n.6;    The                                                 Oceano, 148 F. 131, 133            (S.D.N.Y. 1906); Rule C(1) (setting forth when an action                                                                    in                                                                       rem            may be brought).                      Here the goods to be shipped were never actually            loaded on the vessel. The vessel never got to the dockside for            loading. There is no evidence that the goods to be shipped            were ever in the custody or control of the vessel master.            Ordinarily, those facts would most likely end any claim of            maritime lien.  See Gilmore & Black, supra, S 9-22, at 636.                      The great majority of cases addressing the executory            contract doctrine, however, have concerned contracts of                                        -19-                                         19            affreightment evidenced by bills of lading or voyage charters.            E.A.S.T.,                       Inc. v. M/V                                   Alaia, 673 F. Supp. 796, 802 (E.D. La.            1987), aff'd, 876 F.2d 1168 (5th Cir. 1989). This case            involves a time charter agreement. The district court relied            heavily on the reasoning in      E.A.S.T., where the court            distinguished between voyage charters and time charters as to            when the contract is no longer executory (and, consequently, as            to when a maritime lien arises). With voyage charters, whether            control over the cargo shifted to the vessel will most likely            determine whether a maritime lien exists.   E.A.S.T., 673 F.            Supp. at 802-04. With time charters, however, a maritime lien            may arise even before control of the cargo shifts to the            vessel.  Id.;  see also Rainbow                                              Line, 480 F.2d at 1027 n.6            (noting that cargo need not be loaded for time charter to lose            executory status).                      This distinction is sensible because under a time            charter the shipowner agrees to put his vessel, master, and            crew to the service of the time charterer for a named period.            E.A.S.T., 673 F. Supp. at 802. The time charterer must begin            his performance "well before cargo is, if ever, loaded on the            vessel -- by paying hire, appointing and funding a port agent,                                            13.  A "voyage charter" is a contract of affreightment under            which the carrier, who either owns or manages a ship, agrees to            transport a certain amount of the charterer's cargo ("freight")            from one port to another. The charterer pays for the shipment            of freight by the voyage. 2 Schoenbaum,                                                    supra, S 11-4, at 175-            76.                                        -20-                                         20            and arranging and paying for pilotage, tug assistance and line            handlers and all else necessary to berth the vessel in order to            load cargo."  Id. at 803.                      Here, the time charter form agreement specified that:                      Vessel to be placed at the disposal of the                      Charterers, at Delivery Arrival Pilot                      Station Port Everglades Any Time, Day,                      Night . . . .            The president of the plaintiff charterer boarded the vessel 30            miles from Port Everglades, and changed the instructions as to            the destination (berthing at Pier 19 at Port Everglades instead            of at the pilot station). The vessel proceeded until it            experienced mechanical problems and it stopped for repairs            short of Port Everglades. While it was undergoing repairs, the            charterer boarded the vessel four or five times, ordered fuel            for the vessel, confirmed its reservation of a berth space, and            issued a check to pay U.S. Customs fees.                      Under these circumstances, we cannot say that the            experienced trial judge erred in concluding that there was            sufficient delivery of the vessel to the charterer, Navieros,            and sufficient performance of the contract that the charter was            no longer "executory." Accordingly, there was a maritime lien            and the Rule C arrest was proper.            2.  Attachment                                            14.  We reach this conclusion, as the district judge also did,            notwithstanding Navieros's claim in its pleadings that the            vessel had not been delivered to it.                                        -21-                                         21                      We also affirm the Rule B attachment because Vasilia            was not "within the district" at the time attachment was sought            and granted.                      On April 30 Vasilia submitted to the court a copy of            a letter saying that Vasilia had appointed an agent for service            in the district. The letter, dated April 26, 1996, states in            its entirety:                           This is to confirm that owners are                      authorizing CALVESBERT and BROWN as                      attorneys to accept service of process on                      behalf of VASILIA INC. who is the owner of                      M/V VASILIA EXPRESS which was named in a                      suit filed by Navieros Interamericanos in                      Federal District Court in Puerto Rico.            There is no addressee designated on the face of the letter.            There is evidence at the top of the page that the letter had            been sent via fax to the recipient on April 29.                      Rule B allows the attachment of a vessel or other            tangible property under certain circumstances to gain                                                                  quasi                                                                        in            rem jurisdiction over a defendant. A Rule B attachment may            only proceed when the defendant is not "found within the            district." The case law makes it clear that:                      whether or not [a foreign defendant] can                      be found within the district presents a                      two-pronged inquiry: first whether it can                      be found within the district in terms of                      jurisdiction, and second, if so, whether                      it can be found for service of process.                           The first inquiry is directed to                      whether or not the respondent is present                      within the district by reason of                      activities on its behalf by authorized                      agents so as to subject it to [the                      district court's] jurisdiction in      in                                        -22-                                         22                      personam proceedings. If not, then the                      respondent cannot be found within the                      district and this ground alone would be                      sufficient to support the attachment.                           Even if the foreign respondent be                      found within the district in a                      jurisdictional sense, its property is not                      immunized from attachment. The second                      question . . . then presents itself.                      Could the respondent be found within the                      district with due diligence for service in                      the libel proceeding?            United                    States v. Cia.                                   Naviera                                           Continental                                                       S.A., 178 F. Supp.            561, 563-64 (S.D.N.Y. 1959) (footnote omitted). If the            respondent can be found within the district, then attachment            may not proceed.                      As to the first inquiry, it is undisputed that by            purposefully sending its vessel into Puerto Rico, Vasilia            subjected itself to personal jurisdiction in that district. As            to the second inquiry, Vasilia argues that the attachment was            wrongful because it had appointed an agent for service of            process in the district. But the fact is Vasilia's purported            appointment of the agent came, at the earliest, on April 26,            two days after Navieros moved for an order of attachment (and            after Navieros filed an affidavit, as required by Supplemental            Rule B, saying Navieros had been unable to find the defendant            within the district).                                              15.  Navieros's affidavit says that Navieros could not find            Royal                   United within the district. No mention was made of            Vasilia, the actual owner of the vessel. However, Navieros is            not to blame for this. Royal United held itself out as the            owner of the vessel in the charter party agreement with            Navieros. The two entities are obviously closely related.                                        -23-                                         23                      The district court was not unjustified in stating            that Vasilia's argument would eviscerate the time-honored            process of maritime attachment. If we were to accept Vasilia's            position, a defendant who was otherwise safely outside the            service power of the district could effectively avoid Rule B            attachment by waiting until after the plaintiff filed a Rule B            motion to designate an agent for service.                      Nor was Vasilia, simply by virtue of its subsequent            appearance in this action, entitled to dissolution of the            attachment.  Swift v. Compania                                            Colombiana, 339 U.S. 684, 693            (1950).  But Vasilia was not without options. Prior to trial,            Vasilia had the opportunity, pursuant to Supplemental Rule                                            Whatever prejudice Vasilia may have suffered by virtue of the            fact that Navieros did not submit an affidavit stating that            Vasilia could not be found within the district properly falls            on Vasilia.            16.  Moreover, the evidence defendant relies on here is simply            a letter from defendant to an unstated addressee purporting to            "confirm" that Calvesbert & Brown has been authorized to accept            service of process on Vasilia's behalf. This letter cannot be            enough to establish presence in the district within the meaning            of Rule B. The letter was not published and presumably neither            Navieros nor the court knew (nor could have known) about the            arrangement between Vasilia and its lawyers until after Vasilia            submitted a copy of the letter to the court.            17.  Rule B, the modern codification of the ancient right of            foreign attachment in admiralty,     see  Swift v.   Compania            Colombiana, 339 U.S. 684, 693 (1950), has two recognized            purposes: (1) to assure defendant's appearance and (2) to            assure satisfaction in case the suit is successful.   Id. at            693-95;                    LaBanca v.                               Ostermunchner, 664 F.2d 65, 68 n.4 (5th Cir.            1981);                   Seawind Compania, S.A.                                         v.                                             Crescent Line, Inc.                                                               , 320 F.2d            580, 581-82 (2d Cir. 1963). Post-attachment appearance may            moot the first purpose but it does not address the second            purpose.                                        -24-                                         24            E(5)(a), to post a bond of $200,000 in order to obtain the            release of the vessel. Vasilia declined to exercise this            right.            B.  Arbitration                      The district court found that Vasilia had waived its            contractual right to arbitration by participating in the            litigation for over a month before filing a motion, one day            before the start of trial, to compel arbitration. Vasilia            protests that this ruling was error, but its arguments are not            persuasive.                      Vasilia complains that it could not have moved to            compel arbitration earlier because it was not until two days            before the start of trial that Vasilia admitted the existence            of the charter party under which the right to arbitration was            established. Indeed, Vasilia did assert, at various stages of            the pleadings, that, if the court should determine the            existence of a charter party, then the case should be removed            to arbitration. Had it moved for arbitration earlier, Vasilia            says, this step could have been interpreted as a concession            that the charter party was fixed, because the right to            arbitration comes from a clause in the charter party. By not            moving until the day before trial, on the other hand, Vasilia            was found to have waived the right. Vasilia says the district            court's position presented Vasilia with a Hobson's choice            between admission and waiver. Litigation frequently puts                                        -25-                                         25            parties to hard choices, particularly as to which of seemingly            inconsistent theories to pursue. Vasilia is responsible for            the consequences of its choices.                      Review of a district court's determination of waiver            of the right to arbitration is plenary.  Menorah                                                              Ins.                                                                   Co. v.            INX Reinsurance Corp.                                , 72 F.3d 218 (1st Cir. 1995);                                                                Commercial            Union                   Ins.                        Co. v. Gilbane                                       Bldg.                                              Co., 992 F.2d 386, 390 (1st            Cir. 1993). The party opposing the motion to compel            arbitration -- that is, the party urging a waiver -- must show            prejudice.  Sevinor v. Merrill Lynch, Pierce, Fenner & Smith,            Inc., 807 F.2d 16, 19 (1st Cir. 1986).                      There was prejudice here. The delay was not long in            absolute terms; it was only one month. But in the unusual            context of this litigation this delay was both long and            prejudicial. The delay lasted from the filing of the complaint            to the eve of trial. In the interim, in this expedited            litigation, the parties scrambled to prepare their cases for            trial, incurring expenses that would not have been occasioned            by preparing for an arbitration. That is enough to show            prejudice.  Menorah, 72 F.3d at 212.                      The desirability of enforcing arbitration clauses is            much recognized.  Mitsubishi                                          Motors                                                 Corp. v. Soler                                                                 Chrysler-            Plymouth Inc.                        , 473 U.S. 614, 633 (1985). Arbitration may be "a            mutually optimal method and forum for dispute resolution            [which] serves the interests of efficiency and economy."                                        -26-                                         26            Menorah, 72 F.3d at 223. But we have also recognized that the            very rationale for arbitration may be undercut if a party is            permitted to pursue a claim through the courts and then later            claim a right to arbitration.     Id. Accordingly, we have            repeatedly held that a party may, by engaging in litigation,            implicitly waive its contractual right to arbitrate.     Id.;            Caribbean Ins. Servs., Inc.                                       v.                                           American Bankers Life Assurance            Co., 715 F.2d 17, 19 (1st Cir. 1983);    Jones                                                             Motor                                                                    Co. v.            Chauffeurs                        Local                              Union                                     No.                                         633, 671 F.2d 38, 43 (1st Cir.            1982);                   Gutor Int'l AG                                 v.                                     Raymond Packer Co.                                                      , 493 F.2d 938, 945            (1st Cir. 1974).                      Vasilia complains of self-inflicted wounds. Vasilia            denied it had a valid charter party with Navieros up until the            eve of trial. It then switched positions, admitted the            validity of the charter party, and sought to invoke arbitration            under the charter party. We agree with the district court that            this conduct amounted to a waiver.            C.  Corporate Status of Vessel Owners                      The Vasilia parties object to certain references in            the district court's opinion which, they believe, imply that            the court had pierced the corporate veils of Vasilia and Royal            United, without conducting the proper legal analysis. They ask            us to strike from the district court opinion these statements            (and strike from the pleadings similar references made by            plaintiffs). The argument is misplaced. It is a basic                                        -27-                                         27            principle of appellate jurisdiction that we review judgments,            not the editorial commentary in opinions.                      To the extent that appellants mean to argue that the            district court's imputation of liability for the Navieros and            Comet judgments to the in personam defendants  -- Vasilia and            Royal United -- was erroneous, they also fail. There are two            distinct issues here: (1) whether Vasilia, the owner of the            vessel, can be held liable for any damages apart from the            proceeds obtained from the sale of the vessel, and (2) whether            Royal United, the shipping agent and a nominally separate            corporation, can be held so liable. We agree with the district            court that the answer to both questions is yes.                      The normal rule in admiralty actions                                                           in                                                              rem, such as            this one was initially, is that judgment creditors, absent            service of process on the vessel owner under Fed. R. Civ. P. 4,            are only entitled to enforce their liens against the vessel            itself.  See Orbis                                Marine                                       Enters.,                                                Inc. v. TEC                                                            Marine                                                                    Lines,            Ltd., 692 F. Supp. 280, 284 (S.D.N.Y. 1988);                                                         East Asiatic Co.,            Ltd. v.                    Indomar Ltd.                               , 422 F. Supp. 1335, 1341 (S.D.N.Y. 1976);            2 Schoenbaum,                          supra, S 21-2, at 469;                                                cf.                                                    Cooper v.                                                              Reynolds, 77            U.S. 308, 318-19 (1870) (same principle in non-admiralty action            in rem). The owners of the vessels against which actions   in                                            18.  The district court's finding of liability against Vasilia            and Royal United is limited to the judgments of the two            charterers, Navieros and Comet. The judgments of Gulf Coast            and Transcaribbean run only against the in rem defendant the            M/V VASILIA EXPRESS.                                        -28-                                         28            rem are brought are not, in such cases, personally liable for            judgments in excess of the value of the vessel, if any.                      But this is not the normal case. Here, both      in            personam defendants, Vasilia and Royal United, waived the            requirement of service of process and waived all defenses            related to personal jurisdiction. They both appeared            voluntarily as  in personam defendants. We recognize, of            course, that this was done for strategic reasons. The waivers            and appearances came as part of defendants' ultimately            unsuccessful campaign against Rule B attachment of the vessel            by Navieros.                      Nevertheless, Vasilia and Royal United must live with            the consequences of their choices. The waivers and appearances            allowed the action to blossom into the full in personam case            against the two defendants for breach of the charter party that            Navieros had contemplated in its pleadings. Cf.                                                             Atkins v.                                                                       The            Disintegrating Co., 85 U.S. 272, 298 (1873). We see no error            in the district court's finding of liability against both            defendants.            D.  Damages                      Vasilia complains that both Navieros and Comet were            awarded excessive damages.  The propriety of the amount of                                            19.  We are dubious about the practical significance of this            matter. It is clear that there will be nothing left of the            proceeds for Vasilia. The parties who may have the greatest            interest in reducing the share awarded Comet or Navieros --            namely, the competing judgment winners -- have not complained.                                        -29-                                         29            damages awarded is an issue of fact, which we review for clear            error.  Reilly v. United                                      States, 863 F.2d 149, 166 (1st Cir.            1988).            1.  Navieros                      The breach of the Navieros time charter occurred when            the vessel was diverted to the use of Comet, after performance            of the Navieros contract commenced but before Navieros's cargo            was loaded. Without noting the distinction, defendants assert            that the measure of damages should be that which is used in            cases where the owner breached the charter party by repudiating            it               before performance began                                      . The general rule for recovery in            that situation was stated long ago by Judge Learned Hand: "the            withdrawal of the ship entitled [the charterer] prima facie to            damages measured by the difference between the hire reserved in            the charter and the hire necessary to secure such another            bottom."  The                           Ada, 239 F. 363, 364 (S.D.N.Y. 1916), rev'd                                                                        on            other grounds, 250 F. 194 (2d Cir. 1918); see also Sanders v.            Munson, 74 F. 649, 651 (2d Cir. 1896); 2 Schoenbaum,   supra,            S 11-17, at 204-05 ("The charterer's damages for cancellation            are equal to the difference between the contract hire in the                                            And, indeed, neither Navieros nor Comet has appeared to defend            the judgments in their favor. However, in light of the            affirmance of the district court's liability finding as to the            two                in                   personam defendants, it is possible that Navieros and/or            Comet will seek to enforce their judgments against the     in            personam defendants. And so, we must visit this matter. We            also note that, as discussed later, the denial of intervention            to Motor-Services and Coastal was in error, and accordingly            those two parties may have an interest in these damages awards.                                        -30-                                         30            broken charter and the hire necessary to secure another            vessel."). It seems reasonable to apply this general rule            here, provided the victim of the breach is also allowed to            recover out-of-pocket expenses incidental to preparing for the            arrival of the ship for loading.                      Inherent in that rule, of course, is a duty of            mitigation; the victim of the breach must make reasonable            efforts to locate a substitute vessel.    See Glidden                                                                   Co. v.            Hellenic                      Lines,                             Ltd., 315 F.2d 162, 164 (2d Cir. 1963);   The            Ada, 239 F. at 364;                                Sanders, 74 F. at 651; 2 Schoenbaum,                                                                    supra,            S 11-17, at 204-05. If the charterer is unable to locate a            suitable substitute vessel, then the proper measure of damages            for the breach is its lost profits. See                                                     Polar Steamship Corp.            v.               Inland Overseas Steamship Corp.                                             , 136 F.2d 835, 842 (4th Cir.            1943); The                        Ada, 239 F. at 364. Here, the trial court found            that Navieros was unable to locate an adequate substitute.            Defendants argue that Navieros in fact found a suitable            substitute, but did not use it. We review findings of fact for            clear error. Roche v.                                   Royal Bank of Canada                                                      , 109 F.3d 820, 827            (1st Cir. 1997).                      William Coleman's deposition testimony at trial and            Kenneth Coleman's trial testimony were the only evidence            offered by any of the parties on the question of mitigation.            According to William Coleman's uncontroverted testimony,            Navieros conducted an intensive but fruitless search for a                                        -31-                                         31            replacement vessel. Cf.                                     Polar Steamship Corp.                                                        , 136 F.2d at 842            ("The evidence is that efforts were made to obtain [another            vessel] but without success."). It is true that Navieros            learned about an available vessel and did consider using it in            place of the M/V VASILIA EXPRESS, but decided in the end that            this vessel was too slow.    Such a decision was within            Navieros's rights. See                                    Sanders, 74 F. at 652 (charterer "under            no obligation to accept a slower and smaller vessel than the            [originally chartered vessel] had been represented to be").            The district court was not obliged to credit William Coleman's            testimony, but it is certainly not clear error for it to have            done so.                      Even using the rule advocated by defendants,            therefore, the proper measure of damages for the breach here                                            20.  Defendants claim that this alternate vessel would have            been a suitable replacement, as its speed -- which William            Coleman stated to be 8 to 9 knots per hour -- was roughly the            same as the speed of the M/V VASILIA EXPRESS. Coleman's            deposition, taken in context, reveals that his concern was with            the speed in relation to other costs.                      The thing that made her unattractive was                      her speed, okay, related to her                      costs. . . .  Her speed, with the size tug                      that they were talking about and the                      barge, she would be offering you eight to                      nine knots but the daily cost and the fuel                      consumption was such that her per diem                      cost was way high.            We are persuaded that Navieros's choice not to use this            alternate vessel was not a violation of its duty to mitigate.                                         -32-                                         32            was Navieros's lost profits.  The court purported to apply            such a measure, but defendants argue that it awarded Navieros            "lost revenues"  instead, a far more generous dollar amount.            Indeed, the court's choice of words was at times confusing; for            instance, it titled the table of damages calculations "Gross            Loss of Revenue." We must look past the question of word            choice and determine if the correct measure was applied.                      These are the components of damages awarded Navieros:                      (1)  gross freight in the amount of                           $67,000, returned to shippers upon                           demand;                      (2)  canceled bills of lading issued in                           Guatemala, representing $118,000 of                           freight charges for three voyages;                      (3)  freight charges [of $71,175] on                           southbound cargo received in Port                           Everglades, eventually returned to                           shippers;                      (4)  net loss of $3,377 over $26,000 worth                           of freight rerouted through another                           steamship line providing service to                           Guatemala.            From this "Gross Loss" of $259,552, the court subtracted            "charter hire expense" of $57,600 and "fuel expense" of                                            21.  Profit is "the excess of returns over expenditure in a            transaction."  Webster's                                       Third                                             New                                                 International                                                                Dictionary            1811 (6th ed. 1993).            22.  Revenue is, in this context, "the total income produced by            a given source." Webster's Third New International Dictionary            1942. Revenues are greater than profit; a portion of one's            revenues, in a successful venture, is profit.                                        -33-                                         33            $19,000. The "Net Loss" was $182,952, and the court awarded            damages in this amount.                      That the court subtracted charter hire and fuel            expense from the sub-total seems to indicate that, despite its            choice of words, the court did not see the award as one of lost            "revenues" per se.                      However, a radically different conception of            Navieros's lost profits is found in William Coleman's            deposition. Coleman stated that Navieros expected to make            $28,500 in profits from the shipping of cargo under the M/V            VASILIA EXPRESS charter (this estimate included the exercise by            Navieros of its option on a third round-trip).                      Kenneth Coleman also testified at trial that Navieros            charters approximately 50 voyages per year and that Navieros's            1995 net profits were roughly $495,000. The average profit per            voyage is thus just under $10,000. Given this, it is hard to            understand how the loss of the    three M/V VASILIA EXPRESS            voyages caused $182,952 in lost profits.                      Because it is unclear on what basis the district            court calculated lost profits, we vacate the damages award and            remand the question of Navieros's damages to the district court            for clarification.            2.  Comet                                        -34-                                         34                      Defendants challenge six of the thirteen components            of the $100,312.13 award to Comet. They claim (1) that Comet            should not have been awarded the stevedoring fees ($4,500) and            ship's agency fees ($4,999.26) incurred at the port of origin,            Miami, because Comet would have incurred these expenses even if            the charter had not been breached; (2) that the award of fuel            costs for both the M/V VASILIA EXPRESS ($5,312) and the            replacement vessel secured by Comet ($7,326) was duplicative;            and (3) that the award of the entire cost of the substitute            vessel ($15,000), along with the reimbursement of the M/V            VASILIA EXPRESS charter hire ($39,450), was likewise            duplicative. Defendants also argue that the district court            "failed to account for the fact that cargo problems were part            of the reason why the U.S. Coast Guard initially detained the            M/V VASILIA EXPRESS in Puerto Rico, which, along with the            arrest by Navieros, led to the vessel's inability to carry            Comet's cargo."                      The final point borders on frivolous, in light of the            numerous vessel-related and captain-related deficiencies cited                                            23.  We need not be detained by the district court's statement            that Comet's damages were "announced as a stipulation of the            parties." If this were so, of course, defendants would have no            leg to stand on. But there was no such stipulation.            Defendants simply stipulated that they would not challenge the            admission of certain documents Comet intended to use to prove            its damages; they made clear their objections to the underlying            merits of the damages claims.                                        -35-                                         35            by the Coast Guard. See footnote 4                                               supra. But the first three            claims have considerable merit.                      The damages award included reimbursement for the            stevedoring costs associated with transferring the cargo from            the M/V VASILIA EXPRESS to the replacement vessel. In light of            this, the award of costs for the original loading of the M/V            VASILIA EXPRESS was inappropriate. The award of the            stevedoring costs at the port of origin ($4,500) is thus            vacated. Comet did not make a claim for reimbursement for any            shipping agency fee for the replacement vessel, so there was no            double dipping there. But that is also why the fee paid by            Comet at the port of origin ($4,999.26) is not recoverable:            Comet apparently incurred no additional shipping agency costs            as a result of the breach. That award too is vacated.                      There was excessive recovery for the fuel costs too.            Comet should pay only for the fuel used by the M/V VASILIA            EXPRESS on the initial Miami-San Juan run, which was completed            before the breach, but not for the additional fuel, if any,            that it deposited in that vessel's gas tanks in Miami in            expectation of the continuation of the voyage to Venezuela.            Comet is also entitled to differential money damages; that is,            it should be reimbursed for that portion of the fuel purchased            for the replacement vessel that was in excess of the expected            cost of fuel for the M/V VASILIA EXPRESS, had the latter ship            fulfilled its contractual obligations. These are calculations                                        -36-                                         36            that are necessarily based on estimates and expectations. The            record indicates that the replacement vessel consumed more fuel            than the M/V VASILIA EXPRESS, but we are unable to glean            precise details about this or about whether the M/V VASILIA            EXPRESS was left with any Comet-purchased fuel when detained            and arrested in the Port of San Juan, and if so, how much. We            thus vacate the two fuel cost awards ($5,312 & $7,326) and            remand to the district court for an amended award in light of            this discussion.                      Comet was awarded excessive damages for charter hire            too. Comet is entitled to differential damages. Where the            substitute vessel costs less than the one originally chartered,            the charterer is entitled to a refund of the price paid for the            original, but it should pay for the substitute. If the            replacement costs more, the charterer should get reimbursed for            this difference in cost. It is difficult to imagine a            situation where the charterer would be entitled to a refund of            the original charter hire and an award of replacement costs.            Here, Comet's replacement vessel ($15,000) cost less than the            M/V VASILIA EXPRESS ($39,450). Comet therefore is entitled to            a refund of the M/V VASILIA EXPRESS charter hire, but not to an            award of costs for the hire of the replacement. The $15,000            award is thus vacated.                                        III.                      We turn to the appeals of the various would-be                                        -37-                                         37            claimants whose motions for intervention were denied, and who            thus missed out on the chance to compete for a share of the            proceeds.  We review a district court's denial of a motion to            intervene for abuse of discretion. Conservation Law Found. of            New                 England v. Mosbacher, 966 F.2d 39, 41 (1st Cir. 1992);            International Paper                               v.                                   Town of Jay                                             , 887 F.2d 338, 343 (1st Cir.            1989);                   cf.                       Banco Popular de Puerto Rico                                                  v.                                                      Greenblatt, 964 F.2d            1227, 1230 n.3 (1st Cir. 1992). We analyze the district            court's rulings against the backdrop of a purposefully            accelerated litigation in which scarcely more than a month            passed between the arrest of the vessel and the start of trial,            with the memorandum and order admirably following trial by less            than two weeks. We are also mindful of the fact that the            standards for timeliness are less strict for Rule 24(a) motions            to intervene (intervention as a matter of right) than for such            motions under Rule 24(b) (permissive intervention), and that                                            24.  Gulf Coast, the preferred mortgage holder who won judgment            in the district court, appeared in this appeal to defend the            district court's decisions to deny intervention. Gulf Coast            obviously fears that the liens of the three would-be            intervenors would prime its own lien, severely diminishing, if            not eliminating entirely, its ultimate recovery in this action.            See 46 U.S.C. S 31326(b)(2) (for certain foreign vessels,            preferred mortgage lien subordinate to maritime lien for            necessaries provided in the United States); id. S 31326(b)(1)            (preferred mortgage lien subordinated to "preferred maritime            liens");                     id. S 31301(5) (lien for seaman's wages is "preferred            maritime lien");                             see                                 also 1 Schoenbaum,                                                    supra, S 9.6, at 510.                                         -38-                                         38            all three appellants here invoked Rule 24(a).  Banco Popular                                                                        ,            964 F.2d at 1227 n.2;  Fiandaca v. Cunningham, 827 F.2d 825,            832-33 (1st Cir. 1987); Stallworth v. Monsanto                                                            Co., 558 F.2d            257, 266 (5th Cir. 1977). We conclude that the district court            properly exercised its discretion in denying Captain            Jeftimiades's attempted intervention, but that it abused its            discretion in denying the attempted interventions of Motor-            Services and Coastal.            A.  Captain Jeftimiades                      Captain Jeftimiades, asserting a maritime lien for            unpaid seaman's wages, moved to intervene a day before the            start of trial. The district judge denied Jeftimiades's motion            from the bench on the first day of trial after learning that            neither the captain nor his attorney were present in the            courtroom. Unlike the motions of Coastal and Motor-Services,            the captain's motion was not denied on timeliness grounds;            indeed, the judge indicated that he probably would have allowed            intervention had the captain or his attorney been present at            the start of trial.                      The judge carefully determined that the captain's            attorney had been duly informed of the trial date before                                            25.  Motor-Services, alone among the post-judgment movants, did            not specify in its motion that it was seeking intervention as            of right under Fed. R. Civ. P. 24(a), as opposed to permissive            intervention under Fed. R. Civ. P. 24(b). But Motor-Services            captioned the motion as one to intervene "as a matter of            right," and so we give it the benefit of the doubt.                                        -39-                                         39            announcing that he was denying the motion. Jeftimiades does            not argue on appeal that his counsel had not been informed of            the May 23 trial date; he simply states that counsel            "erroneously thought the trial date was May 30th" and that he            was in New Jersey on May 23 and could not have appeared.                      Jeftimiades argues that his counsel's associate was            available to represent the captain and that the court should            have requested that this associate appear on the captain's            behalf. However, the judge was not told that counsel was out            of the Commonwealth, and, while the judge certainly could have            inquired further into the matter if he wished, he was not            obliged to do so.                      Captain Jeftimiades also argues that, as a seaman, he            is a ward of the court who is entitled to greater protection            than the average intervenor. Courts have allowed seamen to            avoid rules of common law which affect them particularly            harshly because of their vocation. This is true where a rule            of law has especially harsh results on a seaman because he is            a seaman                   . For instance, in Socony-Vacuum Oil Company                                                                v.                                                                    Smith,            305 U.S. 424, 430-31 (1939), the leading case cited by            Jeftimiades, the Supreme Court was faced with the question of            whether a seaman who had used a dangerous appliance on board            could have his claim barred by the doctrine of assumption of            risk. The Court cautioned against the application of the            doctrine in admiralty cases because seamen often have fewer                                        -40-                                         40            alternatives than do land-based workers, and are often in less            of a position to avoid dangerous situations.                                                         Id. This case is            easily distinguishable. Captain Jeftimiades's failure to            appear at trial through counsel is not explained by any special            disabilities attendant to his status as a sailor.                      Jeftimiades does not address the issue of whether            there would be any prejudice to the existing plaintiffs if he            were allowed now to intervene. Clearly, there would be            prejudice in light of the Coast Guard citation, which described            Jeftimiades as drunk at the time the vessel was detained.            Vasilia or some of the claimants might have attempted at trial            to prove that the captain forfeited his maritime lien for            wages.  Cf. Johnston v. M/V Dieu Si Bon, 1996 WL 866112 (W.D.            Wa. 1996) (question of fact whether seaman forfeited lien for            wages by deserting ship). Of course, no one made this argument            at trial because the captain's attempted intervention was            denied. Allowing Jeftimiades to intervene now would            necessitate ordering new proceedings in which the parties could            attempt to make this claim. We recognize that the prejudice to            Jeftimiades is also severe, but he had the opportunity to make                                            26.  His maritime lien is destroyed. It is a basic principle            of admiralty law that execution of a maritime lien extinguishes            all other liens on ship.   See,                                             e.g.,  Tamblyn v. River                                                                      Bend            Marine                    Co., 837 F.2d 447, 448 (11th Cir. 1988) (per curiam);            Point Landing, Inc.                               v.                                   Alabama Dry Dock & Shipbuilding Co.                                                                    , 261            F.2d 861, 866 (5th Cir. 1958);                                          see                                              also Gilmore & Black,                                                                    supra,            S 9-85, at 786-87.                                        -41-                                         41            his case and did not take advantage of this chance. There was            no abuse of discretion.            B.  Motor-Services                      Motor-Services moved to intervene on June 7, two            weeks after the start of trial and the day on which the            district court issued its memorandum and order. This motion            was denied as untimely by written order on July 3. The court            analyzed the motion under what it called "the First Circuit            standard of                        Banco Popular                                    ." The timeliness standard applied in            Banco Popular                        , 964 F.2d 1227, is derived from the Fifth Circuit            opinion of Stallworth v. Monsanto                                               Company, 558 F.2d 257 (5th            Cir. 1977).  See Culbreath v.  Dukakis, 630 F.2d 15, 20 (1st            Cir. 1980) (adopting Stallworth test).                      The four factors are: the length of time the would-            be intervenor knew or reasonably should have known that its            interest was imperilled before it moved to intervene; the            foreseeable prejudice to the existing parties if intervention            is granted; the prejudice to the would-be intervenor if            intervention is denied; and exceptional circumstances which may            militate against or in favor of allowing late intervention.            Banco Popular, 964 F.2d at 1231.                      The district court, weighing the matter by relying on            the facts as alleged by Motor-Services in the motion, first            determined that the credit term extended to Vasilia by Motor-            Services expired on April 29, and that from that date until                                        -42-                                         42            June 7 Motor-Services sought payment of the overdue receivables            only by leaving telephone messages that went unreturned. The            obvious implication of this finding (not stated by the court)            is that Motor-Services sat on its rights when it should have            been moving more decisively to protect its interest.                      Moving on to the second factor, the court then noted            that the proposed intervention would prejudice the existing            parties because:                      intervention on the day judgment was                      entered seeks to disturb the core of the                      judgment. The M/V VASILIA EXPRESS is                      appraised at $500,000 and the court has                      recognized plaintiffs by judgment in the                      aggregate amount of $593,469.39. The                      realities of the public sale market for                      vessels dictated that the public sale                      ordered would have an initial bidding                      price set at $400,000. Any sale proceeds                      will not be enough to cover the existing                      plaintiffs' rights. It is not fair to                      reopen the case for late-comers to gain an                      undue advantage under the circumstances.            The court next found that no prejudice would inure to Motor-            Services as a result of the denial of the motion because Motor-            Services had waived its maritime lien by relying on the credit            of Michael and Steven Psarellis, the vessel owners, and the            credit of Royal United, the shipping agency. Finally, the            court found that there were no exceptional circumstances            militating in favor of intervention, as Motor-Services, in the            court's view, would still be fully able to litigate the matter            in personam against the vessel owners.                                        -43-                                         43                      The denial of the intervention was, in large part,            based on erroneous legal conclusions reached by the district            court. We believe the district court abused its discretion and            that Motor-Services should have been allowed to intervene.                      The court found that the first factor weighed against            Motor-Services because Motor-Services should have realized, as            of April 29, that its interests were imperilled, but it failed            to do anything about this until June 7, other than to try a few            times (unsuccessfully) to reach the vessel owners by telephone.            In the context of this expedited litigation, a period of            inaction lasting nearly six weeks would be difficult to excuse.            But the dates recited are not correct. In fact, it was not            until                  May 19                        that the Vasilia account became overdue and Motor-            Services actively sought to collect but was misled by the            owners.  Less than three weeks later, and within a few days of            learning of the suit, Motor-Services had a motion before the            court.                      In the days after May 19, the president of Motor-            Services attempted to reach the vessel owners by telephone on            three separate occasions. He was told that the owners would            get back to him, but they never did. The secretary who            answered the phone did not tell him about the arrest of the M/V            VASILIA EXPRESS. Under these circumstances, we cannot say that                                            27.  The invoice was issued on April 19 with a 30 day credit            term.                                        -44-                                         44            Motor-Services, which was actively trying to follow up on a            recently overdue account, was guilty of inaction. It was not            until June 3 that Motor-Services actually learned of the arrest            of the vessel.  Local counsel was retained the next day, and            the motion to intervene was filed shortly thereafter, on June            6. Motor-Services had no way of knowing its maritime lien was            imperilled prior to June 3; once it learned, it took prompt            action to protect its interest. The first factor thus clearly            militates in favor of allowing intervention.                      The district court, in discussing the second factor,            concluded that the existing plaintiffs would be prejudiced by            Motor-Services' intervention simply because the entry into the            case of another party, with an arguably superior lien, would            diminish the ultimate recovery available to those plaintiffs.            This may well be true, but it is not enough to outweigh the            other three factors, all of which favor intervention            (particularly since the plaintiffs' rights to a specific share            in the recovery had not yet become final and the sale proceeds            had not yet been disbursed).                      On the third factor, the court found that there was            no prejudice to Motor-Services because Motor-Services had            waived its maritime lien. This was error. In inferring that            Motor-Services had waived its maritime lien on the vessel, the                                            28.  The president of Motor-Services was told of the arrest by            a mechanic in Florida. He promptly called Navieros for            confirmation.                                        -45-                                         45            court relied on the existence of a promissory note given by            Michael Psarellis to Motor-Services and on the fact that Motor-            Services billed Royal United, the vessel's agent, rather than            the vessel owners for much of the work done on the vessel.                      Motor-Services' maritime lien on the vessel arises by            operation of federal law (the Maritime Lien Act). 46 U.S.C.            S 31342. In order to acquire a lien on a vessel, a person            providing necessaries to the vessel is "not required to allege            or prove in the action that credit was given to the vessel."            Id. S 31342(a)(3); see Dampskibsselskabet Dannebrog v. Signal            Oil & Gas Co.                        , 310 U.S. 268, 273 (1940). This is assumed to be            the case unless proven otherwise; the party disputing the            existence of the lien is required to show that "[t]he party            entitled to the lien [took] affirmative actions that            manifest[ed] a clear intention to forego the lien."   Farrell            Ocean Servs.                        v.                            United States                                        , 681 F.2d 91, 94 (1st Cir. 1982).            The taking of additional security by the provider of            necessaries from the vessel owner,   without more, does not            constitute such a step.                                    Dampskibsselskabet Dannebrog                                                               , 310 U.S.            at 276-77;                       Farrell Ocean Servs.                                          , 681 F.2d at 93-94;                                                                Crustacean            Transp. Corp. v. Atalanta Trading Corp., 369 F.2d 656, 660-61            (5th Cir. 1966); Gilmore & Black,                                              supra, S 9-84, at 786. "The            party attacking the lien has the burden of . . . showing that                                            29.  Here, Motor-Services obtained a personal guarantee and            promissory note from Michael Psarellis for $40,000.                                        -46-                                         46            the party rendering the service [Motor-Services] relied                                                                    solely            on personal credit."   Farrell                                            Ocean                                                  Servs., 681 F.2d at 93            (emphasis added). No such showing has been made here.                      The district court, in finding a waiver, also relied            on the fact that Motor-Services billed Royal United, the M/V            VASILIA's agent, rather than the owner of the vessel, for many            of the services provided. However, "the submission of a bill            to the owner's agent with whom the supplier has been dealing            rather than to the owner and the vessel [does not] constitute            waiver." Id. at 94;                                 see                                     also                                         Nacirema Operating Co.                                                               v.                                                                   S.S. Al            Kulsum, 407 F. Supp. 1222, 1226 (S.D.N.Y. 1975) ("mere fact"            that stevedore billed ship's agent for services provided vessel            "not sufficient to indicate that there was an implied waiver of            its right to a lien against the ship"). There was no waiver            here.                      Because Motor-Services' lien was not waived by its            conduct, it is the execution of the other liens on the vessel            in this in rem proceeding which would strip Motor-Services of            its lien, which would be forever extinguished. See                                                                supra note            27. Clearly, there is ample prejudice to Motor-Services here.                      Finally, the district court stated that there were no            special circumstances militating in favor of intervention            because Motor-Services could still bring an action                                                               in                                                                  personam            against the vessel's owners. The record is silent as to            whether the defendants are presently solvent or not, but Motor-                                        -47-                                         47            Services is justifiably fearful that this right would be an            empty one. At any rate, it is a right that pales in comparison            to the right to exercise a lien against an identifiable sum of            money. In light of this, and the fact that trial was            expedited, we think there were special circumstances favoring            intervention. Intervention should have been allowed.            C.  Coastal                      Our Coastal analysis, in substance, tracks the Motor-            Services analysis. Coastal moved to intervene on June 11,            1996, asserting a maritime lien for repair work done on the            vessel and supplies furnished the vessel the previous summer.            The district court, by written opinion on July 3, denied the            motion on untimeliness grounds. The court applied the four-            factor test discussed above, and its reasoning was much the            same as that used in the Motor-Services' denial. The only            substantive difference in the court's analysis involved the            third factor, where the court found that Coastal had explicitly            waived its lien by agreeing to a payment plan with a clause            obligating Coastal to forebear from going in rem against the            vessel.                      On the first factor, in finding that Coastal did not            move expeditiously to protect its interests, the court stressed            the 22-day gap between the time Coastal first learned of the            arrest and the time it sought intervention. We conclude that,                                        -48-                                         48            under the unique circumstances of this case, Coastal acted            reasonably promptly to protect its interests.                      Vasilia was required, under the terms of its credit            agreement with Coastal, to make monthly payments of $17,500;            payments were due on the 8th of each month, starting in April            1996.  Vasilia made only partial payment in April, and failed            to make the May payment. Coastal's president called Royal            United on May 15, a week after the May 8 due date, to inquire            about the non-payment. He was informed by Royal United that            there was an ongoing dispute with Navieros and Comet regarding            the charter of the vessel. While this is more information than            Motor-Services was able to obtain when Vasilia failed to make            its payment to Motor-Services at about the same time (May 19),            Coastal, like Motor-Services, was not told of the arrest and            the impending trial.                      It is true that Coastal heard something about an            arrest through other channels  during the week of May 20, but            the information it obtained consisted only of "unconfirmed            reports." Coastal moved expeditiously to confirm these            reports. By early June, it had learned the details, and by                                            30.  This credit agreement was negotiated and signed in January            1996, after Vasilia proved unable to meet the payment schedule            originally agreed upon by the parties after Coastal's work on            the vessel was completed in July 1995.            31.  The record does not reveal how Coastal learned about the            arrest. The district court fixed on May 20 because that is the            date Coastal stated, in its motion to intervene, that it first            heard about the arrest.                                        -49-                                         49            June 11 had moved to intervene. That Motor-Services managed to            get its motion in four days earlier is immaterial. The first            factor weighs in Coastal's favor.                      As to the other factors, Coastal is in a similar            position to Motor-Services and we will not repeat the            analysis.  Two of the remaining three factors clearly favor            intervention, and intervention should have been allowed.                                         IV.                      We affirm the judgment against the defendants, but            vacate the awards of damages to Navieros and Comet and remand            for proceedings consistent with this opinion. We  affirm the            denial of Captain Jeftimiades's motion to intervene. But we            reverse the denial of Motor-Services' and Coastal's motions to            intervene, and                           remand to the district court to entertain their            proof, calculate the damages due them, if any, rank the liens,            and order disbursal of the funds to the various judgment            creditors.                      Each party to bear its/his own costs.                                            32.  We pause only to note that, contrary to the district            court's findings, there was no explicit waiver of lien by            Coastal. Coastal's agreement not to proceed against the vessel            in rem was, by its terms, given "in consideration for [the            renegotiated] payment schedule" on the Vasilia account. It was            not a waiver of lien, but rather was an agreement by Coastal to            forebear from doing something that Coastal was otherwise            entitled to do. When Vasilia ceased making the required            payments under the schedule, however, Coastal's temporary            obligation to forebear from in rem action also ceased.                                        -50-                                         50
