Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 The court has before it Plaintiff's Motion for Modification of this Court's Order (doc. 18 42) and Defendant's Response (doc. 44). For the reasons set forth below, we deny the 19 Motion. 20 Aramark argues that this court erred by including $5,156.30, the cost of the tow, in 21 the award of damages in favor of defendant Canyon Dreamer. Aramark contends that this 22 award is improper because (1) it results in double recovery to Canyon Dreamer, and (2) the 23 towage was billed on a time and material basis and compensation was due regardless of 24 success. Both arguments are without merit. 25 First, Aramark argues that Canyon Dreamer received a double recovery because 26 Aramark was hired to remove the wreckage from the beach and that it did so "successfully, 27 in that the wreckage is no longer on the beach." This argument ignores the fact that Canyon 28
Case 2:03-cv-01599-FJM Document 48 Filed 12/16/2005 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Aramark Sports & Entertainment Services,) ) Inc., ) ) Plaintiff, ) ) vs. ) ) ) Canyon Dreamer Inc., et al., ) ) Defendant. ) )

No. CV-03-1599-PHX-FJM ORDER

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Dreamer was obligated to not only remove the wreckage from the shore, but from the lake. Canyon Dreamer hired Aramark to accomplish this removal, but through Aramark's negligence, the wreckage was lost at the bottom of the lake. It can hardly be considered a windfall when Canyon Dreamer is still exposed to the risk of liability that might arise from the abandonment of the wreckage in the lake. Second, Aramark argues that it was entitled to compensation for the tow regardless of its success. We disagree. There was no evidence of an agreement, express or implied, that Aramark was entitled to fees even if the wreckage was lost. Further, even in the face of such agreement, Aramark's failure to adequately perform its obligation discharged Canyon Dreamer's duty to compensate. See Dillingham Tug & Barge Corp. v. Collier Carbon & Chemical Corp., 707 F.2d 1086, 1091 (9th Cir. 1983).

Therefore, IT IS ORDERED DENYING Plaintiff's Motion for Modification (doc. 42). DATED this 16th day of December, 2005.

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