                                                    [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                               FILED
                      ________________________        U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                            No. 11-12947                    MAY 23, 2012
                        Non-Argument Calendar                JOHN LEY
                      ________________________                CLERK


                  D.C. Docket No. 2:09-cv-00329-SPC


RELIABLE SALVAGE AND TOWING, INC.,

                                                    Plaintiff-Appellee,

                              versus


MICHAEL BIVONA,
in personam,

                                                    Defendant-Appellant.


                    ___________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                  ____________________________

                             (May 23, 2012)

Before BARKETT, PRYOR and JORDAN, Circuit Judges.

PER CURIAM:
                                                  I

      On Easter Sunday, March 21, 2008, Michael Bivona, ran his vessel—a 35-foot

Sea Ray—into a shoal in Gasparilla Pass near Boca Grande, Florida. The incident left

the Sea Ray listing 30 degrees in 10 inches of water. Although the weather at the time

was calm, a cold front and associated storm were expected that evening or the next

day, and the high tide in the area would not bring sufficient amounts of water to float

the Sea Ray free for several days. After being summoned by Mr. Bivona, Reliable

Salvage and Towing, Inc. successfully towed the Sea Ray from the shoal into deeper

water with the use of several vessels.

      Reliable sent an invoice to Mr. Bivona’s insurer in the amount of $7,523.10 for

the salvage operation, but the insurer did not pay the invoice because the insurance

policy had lapsed. Reliable then asked Mr. Bivona to pay the invoice. Mr. Bivona,

however, maintained that the insurer’s denial must have been a mistake. But even

after he was unsuccessful in getting the insurer to cover the salvage by Reliable, Mr.

Bivona did not make any payment to Reliable.

      Invoking admiralty jurisdiction, Reliable filed a complaint in May of 2009

against Mr. Bivona in personam and the Sea Ray in rem, asserting a claim for salvage

(based on contract salvage and pure salvage theories) and for a maritime lien.1 A

      1
          The resolution of the in rem claim against the Sea Ray is not at issue in this appeal.

                                                  2
salvage claim may be based on either a contract or on the theory of pure salvage. In

order to establish a claim for pure salvage, “a salvor must establish three elements:”

a “marine peril;” “service voluntarily rendered when not required as an existing duty

or from a special contract;” and “success in whole or in part, or ... service ...

contribut[ing] to such success.” Flagship Marine Servs. v. Belcher Towing, 966 F.2d

602, 605 (11th Cir. 1992) (quoting The Sabine, 101 U.S. 384, 384 (1879)).

      After a bench trial, the district court concluded that the Reliable salvage

contract signed by Mr. Bivona was not enforceable because it was missing essential

terms, including the actual rate and costs of the salvage operation. The district court,

however, found in favor of Reliable on a pure salvage theory and ordered Mr. Bivona

to pay $14,000 for the towing of the Sea Ray. The district court also granted

Reliable’s motion for attorney’s fees ($35,592.50) and costs ($991.33), finding that

Mr. Bivona’s defense on the salvage claim was frivolous and in bad faith.

      Mr. Bivona now appeals the award of attorney’s fees and costs. Because we

find no abuse of discretion, see Compania Galeana, S.A. v. M/V Caribbean Mara,

565 F.2d 358, 360 (5th Cir. 1978) (reviewing denial of attorney’s fees and costs in

admiralty case for abuse of discretion), we affirm.

                                           II

      The general rule in admiralty is that, absent a governing statute or applicable


                                           3
contractual provision, each party (including a prevailing party) will bear its own

attorney’s fees and costs. See, e.g., Misener Marine Construction, Inc. v. Norfolk

Dredging Co., 594 F.3d 832, 838 (11th Cir. 2010). But this general rule, like most,

is subject to some exceptions. One exception is that attorney’s fees and costs may be

awarded against a party who “acted in bad faith in the course of the litigation.” See

id. (internal quotation marks and citations omitted). See also Offshore Marine

Towing, Inc. v. MR23, 412 F.3d 1254, 1256 (11th Cir. 2005) (“Attorney’s fees have

been awarded [in admiralty actions] when the losing party has acted in bad faith or

vexatiously.”). For example, in Vaughan v. Atkinson, 369 U.S. 527, 530-31 (1962),

the Supreme Court held that an injured seaman who had been denied maintenance and

cure for a number of years could recover attorney’s fees and costs (described as a

species of damages) as a matter of equity under admiralty law because the

employer/ship owner had not conducted an investigation and had refused to admit or

deny the claim prior to trial, thereby forcing the seaman to hire counsel and file a

lawsuit.

                                         A

      Mr. Bivona, in an attempt to demonstrate that he litigated in good faith, points

to the district court’s finding that there was no valid contract for salvage. But the

existence of a valid defense to one of Reliable’s theories does not mean that Mr.


                                          4
Bivona’s defense to the pure salvage claim could not be found to be frivolous. Cf.

Reed v. The Great Lakes Companies, Inc., 330 F.3d 931, 936 (7th Cir. 2003) (“The

fact that Reed’s accommodation claim ... was not frivolous would be no bar to

imposing sanctions for putting his opponent to the expense of opposing a frivolous

claim (or defense) just because he had a nonfrivolous claim as well.”).

      In addition, Mr. Bivona asserts that the unliquidated value of a “pure salvage”

award could only be determined by the district court after consideration of many

factors. As Mr. Bivona puts it, “[r]equiring Reliable to meet its burden of proof at

trial on its claim for pure salvage is not evidence of bad faith or inequitable conduct.”

On this record, and given the applicable standard of review, we disagree.

      In opening statement and in closing argument, Mr. Bivona asserted that the Sea

Ray was not in peril because the vessel was not taking on water and there was no

inclement weather. As a result, he argued, Reliable failed to satisfy one of the

elements of its pure salvage claim. See R2 at 472-73, 662. This argument, however,

was not well-founded given the weather conditions the Sea Ray would be facing for

several days had it not been assisted by Reliable. See, e.g., The Leonie O. Louise, 4

F.2d 699, 700 (5th Cir. 1925) (230-ton vessel which went aground on a river bank

due to a storm, with five feet of water under its stern at low tide, was in peril, so that

salvage award was proper: “Although the danger was not imminent, it was reasonably


                                            5
to be apprehended, and there was a pressing necessity for prompt action to return the

[vessel] to the water.”); Fort Myers Shell & Dredging Co. v. Barge NBC512, 404 F.2d

137, 139 (5th Cir. 1968) (refusing to hold, as a matter of law, that barges which had

run aground on beaches in the Gulf of Mexico were not in peril for purposes of

salvage claim, as there were pilings nearby and there were sudden storms in the Gulf

at all times of the year). Moreover, when he testified, Mr. Bivona conceded that

Reliable Salvage had performed a “service and ... should be entitled to payment.” R2

at 564. He also acknowledged that his insurer had not made any payment in the three

years since the incident, and that if his insurance claim failed, “it is my obligation.”

See R2 at 565. See also R2 at 646. Finally, he said that it should have taken him only

six to eight weeks following the insurer’s denial of the claim to get together with

Reliable and make some type of arrangement for payment. See R2 at 648.2

       We also note that this is not a case where a vessel owner refused to pay the

exorbitant and unjustified demand of a salvor and was forced to go to trial. Mr.

Bivona never argued that the sum billed by Reliable was excessive, and the district

court ended up awarding Reliable more than the amount invoiced.

                                                 B


       2
         Mr. Bivona testified that he had made several offers to Reliable, but those offers were all
rejected. See R2 at 648-49. As far as we can tell, there is no evidence in the trial record about the
substance of those offers.

                                                 6
      Mr. Bivona relies on Galveston County Navigation District No. 1 v. Hopson

Towing Co., Inc., 92 F.3d 353 (5th Cir. 1996), but that case does not support his

position. In Galveston County, a lawsuit ensued after a barge being pushed by the

defendants’ tug boat allided with a drawbridge owned by the plaintiff. See id. at 354.

Although the parties agreed to the amount of damage to the bridge, they could not

agree on the apportionment of fault. See id. Following a bench trial, the district court

entered judgment for the plaintiff and ordered the defendants to pay the plaintiff’s

attorney’s fees because they did not act in an “equitable manner” by failing to pay for

damages that the tug boat had caused and that the defendants had agreed were

reasonable. The Fifth Circuit reversed the district court’s award of attorney’s fees,

holding that the failure to act in an “equitable manner” does not support an award of

attorney’s fees and that the defendants’ defense—i.e., that the plaintiff’s failure to

timely open the bridge wholly or partially contributed to the allision—was “legally

reasonable” and supported with evidence at trial. As a result, the defense was not

frivolous or asserted in bad faith. Id. at 360.

       In contrast, Mr. Bivona conceded Reliable was owed a salvage fee for its

services and never argued that the amount originally billed by Reliable was

unreasonable. He also failed to pay Reliable when his insurer denied the claim,

though he recognized it was then his obligation to do so.


                                           7
                                         III

      The abuse of discretion standard “recognizes there is a range of choice within

which we will not reverse the district court even if we might have reached a different

decision.” Forsyth County v. U.S. Army Corps of Engineers, 633 F.3d 1032, 1039

(11th Cir. 2011) (internal quotation marks and citation omitted). Under this standard,

no reversible error has been shown, and the district court’s rulings and judgment are

therefore affirmed.

      AFFIRMED.




                                          8
