                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 29 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JOHN A. WHALEN, Jr.,                             No. 09-55448

             Plaintiff-counter-defendant-        D.C. No. 3:06-cv-02629-JLS-RBB
             Appellant,

  v.                                             MEMORANDUM *

M/V MILUSKA, OFFICIAL NO.
1041971, her engines, tackle, etc., in rem,

              Defendant,

  and

DAVID GEORGE HOPKINS, in
personam,

              Defendant-counter-claimant-
              Appellee.



                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                        Argued and Submitted June 9, 2010
                              Pasadena, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: TROTT and W. FLETCHER, Circuit Judges, and BREYER, District
Judge.**

      John A. Whalen appeals from the district court’s judgment, after a bench

trial, in his admiralty action against the documented vessel M/V Miluska and

David George Hopkins. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

      The parties are fully aware of the facts and circumstances of this lawsuit.

Accordingly, we need not fully repeat them here.

          After carefully reviewing the record, we conclude that the district court did

not clearly err in finding that Whalen breached an oral rescission agreement. See

Fed. R. Civ. P. 52(a)(6). The district court’s finding that Hopkins and Whalen

entered into a binding oral agreement to rescind the purchase agreement is fully

supported by (1) Hopkins’ testimony, which the district found to be credible,

(2) the exchange of emails between Hopkins and Whalen, and (3) Whalen’s letters

dated August 18 and 22, 2005. Because Whalen did not comply with the terms of

this binding agreement, the court correctly found him to be in breach and awarded

damages accordingly.




          **
            The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.

                                            2
      As to the disputed Notice of Maritime Lien filed by Hopkins, 46 U.S.C.

§ 31343(c)(2) permits a district court to award costs and attorneys fees to an owner

of a vessel against which a lien was wrongfully filed unless the court finds that the

position of the party who filed the lien “was substantially justified or other

circumstances make an award of costs and attorneys fees unjust.” Here, the district

court concluded that “it would be unjust to award attorneys fees and costs to

Whalen.” In so doing, the court focused on Whalen’s “unremedied breach” at the

time Hopkins served notice of the disputed lien. Given Whalen’s conduct for

which the court found him liable, we cannot say that the court abused its discretion

in denying attorneys fees to him on the ground that such an award would be unjust.

      AFFIRMED.




                                           3
