# Petition for Writ of Certiorari — Bernard v. Ingersoll Milling Machine Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0482%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1988 - **Citation:** 484 U.S. 1042 ## Text 87997) In The Ee Supreme Court of the United States @ctober Cerm, 1987 J.E. BERNARD & CO., Petitioner, Vv. THE INGERSOLL MILLING MACHINE COMPANY, M/V BODENA, her engines, boilers, etc., EXCELLENT MARINE, INC., TAIWAN INTERNATIONAL LINE LIMITED and FIREMAN’S FUND INSURANCE CO., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Of Counsel: H. Roperic HEARD JERALD P. EsRICK SusaN L. WALKER Counsel of Record CAROL J. GERNER WILDMAN, HARROLD, ALLEN SUSAN J. FLIEDER & DIXoNn WILDMAN, HARROLD, ALLEN One IBM Plaza - Suite 3000 & DIxon Chicago, Illinois 60611 One IBM Plaza - Suite 3000 (312) 222-0400 Chicago, Illinois 60611 Counsel for Petitioner (312) 222-0400 December __ , 1987 "BEST AVAILABLE COPY i QUESTIONS PRESENTED 1. Whether a dispute involving documentation ser- vices performed under an agency agreement and ancillary to a maritime contract falls outside the scope of admiralty jurisdiction pursuant to 28 U.S.C. § 1333. 2. Whether an -ocean bill of lading containing the phrase “ON DECK SHIPPER’S RISK” is a clean bill of lading as a matter of law. ii LIST OF PARTIES The parties to the proceedings below were the peti- tioner J.E. Bernard & Company and the respondents M/V Bodena, her engines, boilers, etc., Excellent Marine, Inc., Taiwan International Line Limited, Fireman’s Fund Insur- ance Co., and The Ingersoll Milling Machine Company. The parties before this Court are the same as those below. RULE 28.1 LIST Petitioner J.E. Bernard & Co., states, pursuant to Rule 28.1, that Roanvke Insurance Co. and Radix Group Inter- national are corporate parents of J.E. Bernard & Co. iii TABLE OF CONTENTS Page QUESTIONS PRESENTED .................... i ES re ii as iy bss ob eee de eva deeeys 1 TSS eT eee eer ee eee 2 es 2 STATEMENT OF THE CASE ................... 2 REASONS FOR GRANTING THE WRIT .......... 5 I. THE SECOND CIRCUIT’S ATTEMPT TO EX- PAND ADMIRALTY JURISDICTION TO IN- CLUDE WITHIN ITS SCOPE GENERAL A- GENCY CONTRACTS CONFLICTS WITH DE- CISIONS OF THIS COURT AND OTHER Ce CC EEE Cee 5 Il. THE DEFINITION OF “CLEAN BILL OF LAD- ING” HAS AN ESTABLISHED MEANING IN INTERNATIONAL TRADE AND, IN THE INTERESTS OF UNIFORMITY, THIS COURT SHOULD DECIDE THIS IMPORTANT, UNDE- CIDED QUESTION OF FEDERAL LAW ....... 9 ee eee 11 OE ne ae eee ae la Ingersoll Milling Machine Co. v. M/V Bodena, 829 Gs er ee ee la Ingersoll Milling Machine Co. v. M/V Bodena, Slip op. aa 35a Ingersoll Milling Machine Co. v. M/V Bodena, 619 F. ee 38a iv TABLE OF AUTHORITIES Cases: Page Aldinger v. Howard, 427 U.S. 1 (1976). ............ 8 David Crystal, Inc. v. Cunard Steam-ship Co., 223 F. Supp. 273 (S.D.N.Y. 1963), affd, 339 F.2d 295 (2d Cir. 1964), cert. denied, 380 U.S. 976 (1965) ....... 8 The Delaware, 81 U.S. (14 Wall.) 579 (1872) ..... 9,10 E.S. Binnings, Inc. v. M/V Saudi Riyadh, 815 F.2d ee ee es ED 2 ss ee aR Aes 6, 8 Hadjipateras v. Pacifica, S.A., 290 F.2d 697 (5th C:r. Ep ee ee nea, Wee 7,8 Hinkins Steamship Agency, Inc. v. Freighters, Inc., 498 F.2d 411 (9th Cir. 1974) .............. 4,7,8 Leather’s Best, Inc. v. S.S. Mormaclynz, 451 F. 2d 800 EE ns a a wae eS ack a ae oe oe a oo 8 Minturn v. Maynard, 58 U.S. (17 How.) 477 IS a aca ose a eee eee 5, 6, 7, 8 Peralta Shipping Corporation v. Smith & Johnson (Shipping) Corporation, 470 U.S. 1031, 105 S. Ct. 1405 (1985) (Blackmun, J., dissenting) ......... 6, 7 Peralta Shipping Corporation v. Smith & Johnson (Shipping) Corporation, 739 F.2d 798 (2d Cir. 1984), cert. denied, 470 U.S. 1031 (1985)........... 6, 7, 8 United Mine Workers v. Gibbs, 383 U.S. 715 (1966) ... 8 Page STATUTES: re eee ee eee ra re 8 ee SE Ss ik ck Sa > 00 ee eee ed 2,3 MISCELLANEOUS: G. Gilmore & C. Black, The Law of Admiralty 29 (2d ed. Sc bs Oe oe ees tee eee ee eee 5 No. Inu The Supreme Court of the United States @ctober Term, 1987 J.E. BERNARD & CO., Petitioner, v. THE INGERSOLL MILLING MACHINE COMPANY, M/V BODENA, her engines, boilers, etc., EXCELLENT MARINE, INC., TAIWAN INTERNATIONAL LINE LIMITED and FIREMAN’S FUND INSURANCE CoO., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The Petitioner J.E. Bernard & Co. respectfully prays that a writ of certiorari issue to review the judgments and opinions of the United States Court of Appeals for the Second Circuit, entered in the above-entitled proceeding on September 14, 1987, and October 23, 1987. OPINIONS BELOW The opinion of the Court of Appeals for the Second Circuit is reported at 829 F.2d 293, and is reprinted in the appendix hereto, at la, infra. 2 The memorandum decision of the United States Dis- trict Court for the Southern District of New York (Robert L. Carter, D.J.) is reported at 619 F. Supp. 493, and is reprinted in the appendix hereto at 38a, infra. JURISDICTION Improperly invoking federal jurisdiction under 28 U.S.C. § 1333, the respondent brought this suit in the Southern District of New York. On September 4, 1985, the district court rejected the petitioner’s challenge to jurisdic- tion under 28 U.S.C. § 1333. See appendix at 53a, infra. On petitioner’s appeal, the Second Circuit entered a judgment and an opinion affirming the district court’s order on September 14, 1987, finding that jurisdiction pursuant to 28 U.S.C. § 1333 was properly invoked. See appendix at 13a, infra. On October 23, 1987, the Second Circuit denied a petition for rehearing. The jurisdiction of this Court to review the judgment of the Second Circuit is invoked under 28 U.S.C. § 1254(1). STATUTE INVOLVED 28 U.S.C. § 1333. Admiralty, Maritime and prize cases. The district courts shall have original jurisdiction, exclu- sive of the courts of the States, of: (1) Any civil case of admiralty or Maritime jurisdic- tion, saving to suitors in all cases other remedies to which they are otherwise entitled. (2) Any prize brought into the United States and all proceedings for the condemnation of property taken as prize. STATEMENT OF THE CASE Respondent Ingersoll Milling Machine Company (“Ingersoll”) manufactures heavy equipment in Rockford, Illinois. Respondent’s sister corporation, Waldrich Siegen, 3 GmbH, contracted to sell several orders of specially designed machinery to Hyundai International and engaged respondent as a subcontractor to manufacture one of the orders and arrange for its transportation to Korea. To this end, respondent contracted with Gryphon Shipping Services to secure a vessel to ship the cargo, :.nd with petitioner J.E. Bernard & Company (“Bernard”), to obtain clean bills of lading and documentation for the voyage. Taiwan International Line Ltd. time chartered the vessel which was to carry respondent’s cargo from New Orleans to Pusan, Korea. In accordance with its contract, Bernard’s documen- tation clerk prepared a master ditto form and shipper’s export declaration at Bernard’s office in Elk Grove Vil- lage, Illinois and forwarded these to Taiwan Internation- al’s agent, Mid Gulf in New Orleans. Bernard also used the master ditto form to prepare an advance notice of ship- ment and forwarded this to Ingersoll. All services provided by Bernard were strictly “shoreside” in Illinois. Mid Gulf prepared the original bill of lading directly from the master ditto except for one deviation. Mid Gulf altered the mas- ter ditto by adding, in bold letters, the phrase, “ON DECK SHIPPER’S RISK.” After the M/V Bodena sailed, the ship’s master mailed the original bills of lading to Gryphon Ship- ping Services in the Chicago area. In accordance with the final bill of lading, 17 of the 20 boxes comprising respondent’s shipment were stored on the deck of the M/V Bodena. After suffering a stormy, month-long voyage to Pusan, the portion of the shipment stored on deck was significantly damaged. As a result, respondent commenced one action in the Southern District of New York anc a second action in the Northern District of Illinois, grounding jurisdiction for both on 28 U.S.C. § 1333. The first action was againt the ship, its owner and the company that time chartered the ship from its owner. The second action was against petitioner and Fireman’s 4 Fund Insurance Company, respondent’s insurance carrier, and was subsequently transferred to the Southern District of New York, on Ingersoll’s motion, pursuant to 42 U.S.C. § 1404(a). The two actions were consolidated in the district court for all purposes. Bernard challenged admiralty jurisdiction in the dis- trict court, arguing that Bernard’s documentation services were preliminary in nature and merely lead to the mar- itime contract and thus did not fall within the scope of admiralty jurisdiction. Relying on Hinkins Steamship Agency, Inc. v. Freighters, Inc., 498 F.2d.411 (9th Cir. 1974), however, the court rejected Bernard’s challenge and found instead that the “preparation and processing of the bill of lading, the export declarations and payment of the ocean freight ‘were clearly maritime and necessary’ for the shipment by ocean voyage to Korea.” Ingersoll Milling Machine Co. v. M/V Bodena, 619 F. Supp. 493, 503 (S.D.N.Y. 1985). Bernard appealed. The Second Circuit similarly rejected Bernard’s juris- dictional challenge, holding that “Bernard’s freight for- warding contract with Ingersoll involved enough tasks of a nonpreliminary nature to support admiralty jurisdiction.” Ingersoll Milling Machine Co. v. M/V Bodena, 829 F. 2d at 301 (2d Cir. 1987). The court, relying on Hinkins, looked to the nature of the services performed by Bernard and found that the preparation and processing of export declarations, delivery orders, dock receipts, bills of lading and advance notice of shipment were essential to the voyage. The court concluded that these services related to the ship in its use as such, and therefore the contract could fairly be said to constitute a maritime contract. Jd. at 302-03. In determining whether Bernard had breached its con- tract to provide Ingersoll with a clean bill of lading, the Second Circuit refused to consider evidence of the parties’ or international usage of the term “clean bill of lading.” Instead, the court concluded that a bill of lading is unclean, 5 as a matter of law, if it bears the notation “ON DECK SHIPPER’S RISK.” The court therefore held Bernard liable for the damage to Ingersoll’s cargo. Bernard petitioned the Second Circuit for reconsider- ation, with a request for rehearing en banc, arguing that the court’s decision conflicted with both Supreme Court and Second Circuit precedent. The court denied the petition without comment. REASONS FOR GRANTING THE WRIT - * The Second Circuit’s Attempt To Expand Admiralty Jurisdiction To Include Within Its Scope General Agency Contracts Conflicts With Decisions Of This Court And Other Cir- cuits. The Second Circuit has held that a contract to per- form documentation services prior to a shipment by sea, services of the type traditionally held not to give rise to a maritime contract, here fall within the scope of admiralty jurisdiction. This expansion of admiralty jurisdiction risks “that the actual concerns of the shipping industry may [be held to) reach as far as the last ranch that sends cattle to port.... ” G. Gilmore & C. Black, The Law of Admiralty 29 (2d ed. 1975). The Second Circuit’s improper expansion of admiralty jurisdiction warrants this Court’s attention. The Second Circuit’s decision conflicts with the long- standing rule that general agency contracts are not cog- nizable in admiralty. Minturn v. Maynard, 58 U.S. (17 How.) 477 (1855). Under this long-established rule, contracts to perform services which are preliminary and end when the cargo is delivered to the pier are outside the scope of admiralty jurisdiction. The Second Circuit was aware of this Court’s consistent “refus[al] to extend admiralty jurisdiction to disputes involving general agency contracts ...that is, arranging for the performance of the various services that are preliminary to maritime move- 6 ment.” Peralta Shipping Corporation v. Smith & Johnson (Shipping) Corporation, 470 U.S. 1031, 105 S. Ct. 1405 (1985) (Blackmun, J., dissenting). Nevertheless the Sec- ond Circuit avoided the rule by characterizing the perfor- mance of documentation services related to shipment to be essential to the voyage. The time is ripe for this Court to take the opportunity to reaffirm the continued validity of the Minturn rule proscribing admiralty jurisdiction over general agents. Also in conflict with the Second Circuit’s decision below is the Eleventh Circuit’s recent decision in £.S. Binnings, Inc. v. M/V Saudi Riyadh, 815 F.2d 660 (11th Cir. 1987). The agency contract in Binnings required the appellee to, among other things: coordinate vessel hus- banding services; collect documents and provide the nec- essary cargo-related documents for the cargo including bills of lading; solicit cargo; respond to requests regarding freight rates; handle the flow of funds; perform account- ing and documentation services; and arrange tug ser- vices. Although the district court held that the contract fell within admiralty jurisdiction, the appellate court dis- agreed. The Eleventh Circuit held that, since all of these services were clearly “shoreside” and preliminary to the voyage, the case fell outside the admiralty jurisdiction under Minturn. Id. at 664. The Second Circuit’s decision below similarly conflicts with a previous decision from its own circuit, Per- alta Shipping Corporation v. Smith & Johnson (Shipping) Corporation, 739 F.2d 798 (2d Cir. 1984). In Peralta a shipping corporation provided vessel husbanding services, such as: arranging for entrance and clearance at cus- toms; executing all customs documents; arranging for fuel, water, provisions, emergency repairs, and port charges; and, arranging for tug service. The Peralta court “faith- fully adhered” to the Minturn rule by refusing to include 7 this husbanding general agency contract within the scope of admiralty jurisdiction. Jd. at 802. Decisions in two other circuits contribute to the confu- sion because the courts there carved out their own excep- tions to the Minturn rule. The Ninth Circuit, in Hinkins Steamship Agency, Inc. v. Freighters, Inc., 498 F.2d 411 (9th Cir. 1974), affirmed the district court’s holding, 351 F. Supp. 373 (W.D. Cal. 1972), that a husbanding agency con- tract fell within the scope of admiralty jurisdiction. The district court had distinguished Hinkins from others like it since there the contract required the plaintiff to procure and directly supervise husbanding activities. The Fifth Circuit, in Hadjipateras v. Pacifica, S.A., 290 F.2d 697 (5th Cir. 1961), seemed to express the opinion that the Minturn rule excluding general agents from admiralty jurisdiction applies only to an action for an accounting. The court rea- soned: It concerns a ship. It relates not only to a ship; its very purpose is to effectuate the physical, eco- nomic operation and employment of a vessel. And what is here in controversy are the fruits of such operation. Id. at 703. The Supreme Court has referred to these two decisions as “questionable exceptions to the [Minturn] rule that have created confusion and disagreement.” Peralta, 470 U.S. at 1033-34, 105 S. Ct. at 1407. (Blackmun, J., dissenting.) The Second Circuit’s decision in this case adds to that confusion. Unfortuntely, “predicat{ing] jurisdiction on such hair- splitting distinctions...blur{s], if not obliterate[s], a rather clear admiralty demarcation.” Peralta, 739 F.2d at 804. The approach taken by the courts below subverts the policy behind admiralty jurisdiction, that maritime law be developed along uniform lines.’ 1In the Second Circuit, Ingersoll unsuccessfully attempted to (Footnote continued on the following page) 8 The Second Circuit, in Peralta, and the Eleventh Cir- cuit, in Binnings, followed this Court’s rule in Minturn and supported a uniform application of admiralty jurisdiction. The case at bar, the Ninth Circuit’s decision in Hinkins, and the Fifth Circuit’s decision in Hadjipateras, however, conflict with the prevailing precedent of Minturn and cre- ate an ambiguity of law which should be settled by this Court. 1 (Continued) invoke diversity and pendant jurisdiction. The district court lacked diversity jurisdiction under 28 U.S.C. § 1332(c). At the time the underlying action was filed, both Ingersolll and Bernard were incorporated under the laws of the state of Illinois. The parties were therefore not diverse. Moreover, the doctrine of pen- dant jurisdiction should not now be employed to bring Ingersoll’s common law claim against Bernard within the district court’s jurisdiction. Ingersoll has no federal claims against Bernard and the liability of the parties who are named in the federal claims did not turn upon the conduct of Bernard. See Aldinger v. Howard, 427 US. 1, 2-3 (1976); Leather’s Best, Inc. v. S.S. Mor- maclynx, 451 F.2d 800, 811 (2d Cir. 1971). In addition, since the district court was never faced with the issue of pendant juris- diction, it is unclear whether the court would have exercised such jurisdiction after considering judicial economy, convenience and the fairness to the litigants. United Mine Workers v. Gibbs, 383 U.S. 715, 726. (1966). Should this Court now decide that the exercise of pendant jurisdiction would have been proper, this will effectively deny Bernard its right to a jury trial. See David Crystal, Inc. v. Cunard Steam-ship Co., 223 F. Supp. 273, 292 (S.D.N.Y. 1963), aff'd, 339 F.2d 295 (2d Cir. 1964), cert. denied, 380 U.S. 976 (1965). Bernard detrimentally relied upon Rule 38(e) of the Federal Rules of Civil Procedure in assuming that, under admiralty jurisdiction, it would be fruitless to demand a jury. It therefore cannot be argued that Bernard waived its right to a jury trial pursuant to Fed. R. Civ. P. 38 (d), since under Fed. R. Civ. P. 38(b), Bernard’s right to a jury trial never ripened due to Ingersoll’s erroneous attempt to invoke admiralty jurisdiction. Had the issue of pendant jurisdiction been raised in the district court, Bernard would have exercised its right to demand a jury. See Leather’s Best, 451 F.2d at 811 n.12. 9 II. The Definition of “Clean Bill of Lading” Has an Established Meaning in International Trade and, in the Interests of Uniformity, This Court Should Decide This Important, Undecided Question of Federal Law. The Second Circuit has held that an ocean bill of lad- ing cannot be “clean” as a matter of law if it bears a nota- tion that goods are to be transported “ON DECK SHIP- PER’S RISK.” The request for a “clean” bill of lading, the court held as a matter of law, “is an implied request for stowage below deck.” 829 F.2d at 304, and the court there- fore refused to consider the parties’ reliance upon the Inter- national Chamber of Commerce definition of a clean bill of lading which the parties incorporated into their contract to secure a clean bill of lading. Evidence of the parties’ usage must be considered in order to determine whether a contract to secure clean bills of lading has been satisfied. This Court has never addressed the precise question of whether a bill of lading can only be considered clean if it bears no notation regarding stowage. In The Delaware, 81 U.S. (14 Wall.) 579, 602 (1872), the Supreme Court addressed the issue of whether a trial court had properly refused to admit evidence regarding the shipper’s consent to stow cargo on deck. Although there this Court stated that a clean bill of lading without a notation as to stowage generally implies that goods will be stowed under deck, the Court did not go so far as to suggest that a bill of lading containing a phrase about stowage could never be defined as clean. The precise issue of the definition of “clean” in this context has never been resolved by this Court. The Delaware holds that evidence of a contrary usage in a particular trade is admissible to rebut an implication that stowage is to be below deck. /d. at 605. Despite this instruction, the Second Circuit refused to consider evi- dence of the parties’ and the trade’s contrary meaning in the underlying suit. Bernard presented evidence that a 10 clean bill of lading is defined by the International Cham- ber of Commerce, in Article 18 of its Uniform Customs and Practices for Documentary Credits, as “one which bears no superimposed clause or notation that expressly declares a defective condition of the goods and or the packaging.” Consequently, the notation “ON DECK SHIPPER’S RISK” only affects a bill of lading’s negotiability, not its status as “clean.” The International Chamber of Commerce has also for- mulated “Incoterms” to provide the shipping industry with a set of rules of define the chief terms used in foreign trade contracts. These Incoterms were incorporated into the con- tract in this case and defined a clean bill of lading as “one which bears no superimposed clauses expressly declaring a defective condition of the goods or packaging.” In addition, the Incoterms specified that: The following clauses do not convert a clean to an unclean bill of lading: (a) clauses which do not expressly state that the goods or packaging are unsatisfactory, e.g., “sec- ond-hand cases,” “used drums,” etc.; (b) clauses which emphasize the carrier’s nonliabil- ity for risks arising through the nature of the goods or the packaging; (c) clauses which disclaim on the part of the car- rier knowledge of contents, weight, measure- ment, quality, or technical specification of the goods Nothing in this, or any other definition employed by the Interational Chamber of Commerce, prohibits a notation on a clean bill of lading that cargo will be stowed on deck at the shipper’s risk. The Second Circuit’s refusal to con- sider evidence of the parties’ and the trade’s customary use of this term, in violation of The Delaware, deserves this Court’s attention. 11 CONCLUSION For the reasons discussed above, this petition for cer- tiorari should be granted. This dispute, which centers around an agreement to perform documentation services prior to a voyage by sea, does not fall within admiralty jurisdiction. Should this Court agree, this matter should be remanded to the District Court and dismissed for lack of jurisdiction. Should this Court determine that Ingersoll’s claim against Bernard fell within the scope of admiralty jurisdiction, Bernard urges this Court to reverse the Sec- ond Circuit’s holding that a bill of lading with a notation regarding stowage is unclean as a matter of law. This issue should be remanded to the District Court for its consider- ation of Bernard’s evidence of contrary custom. Respectfully submitted, JERALD P. EsRICK Counsel of Record WILDMAN, HARROLD, ALLEN & DIxon Of Counsel: One IBM Plaza - Suite 3000 ~ H. Roperic HEARD Chicago, Illinois 60611 Susan L. WALKER (312) 222-0400 CaROL J. GERNER SUSAN J. FLIEDER WILDMAN, HaRROLD, ALLEN & DIXxon One IBM Plaza - Suite 3000 Chicago, Illinois 60611 (312) 222-0400 APPENDIX la United States Court of Appeals Second Circuit The INGERSOLL MILLING MACHINE CO., Plaintiff-Appellee in 85-7941, 85-7945, and 86-7405, Plaintiff-Appellant in 86-7413, Plaintiff-C ross-Appellant in 86-7413 re: 85-7941, 85-7945, and 86- 7405. Vv. M/V BODENA, her engines, boilers, etc., Excellent Marine, Inc., Taiwan International Line Limited, J.E. Bernard & Co., and Fireman’s Fund Insurance Co., Defendants, Excellent Marine Inc. Defendant-Appellee in 86-7413 Taiwan International Line Limited, Defendant-Third Party Plain- tiff-Appellee in 85-7941, Defendant-Appellant in 86-7405, Defen- dant-Cross-Appellant in 86-7405 re: 85-7941, Defendant-Cross- Appellee in 86-7413 J.E. Bernard & Co., Defendant-Third Party Defendant-Appellant in 85-7941, Defendant-Cross-Appellee, in 86-7405 and 86-7413, Fireman’s Fund Insurance Co., Defendant-Appellee in 85-7941 and 86-7405, Defendant-Appellant in 86-7945, Defendant-Cross- Appellee in 86-7413. Nos. 219-221 and 311, Dockets 85-7941, 85-7945, 86-7405 and 86-7413. Argued Oct. 6, 1986. Decided Sept. 14, 1987. 829 F.2d 293 2a Before CARDAMONE and PIERCE, Circuit Judges, and BONSAL, Senior District Judge.” PIERCE, Circuit Judge. These appeals are from a final judgment filed in the United States District Court for the Southern Dis- trict of New York on April 28, 1986, following a bench trial before Judge Robert L. Carter. The judg- ment (1) awarded plaintiff-appellee The Ingersoll Milling Machine Co. (“Ingersoll”) damages and prejudgment inter- est against defendants-appellants Taiwan International Line Ltd. (“Taiwan”), J.E. Bernard & Co. (“Bernard”), and Fireman’s Fund Insurance Co. (“Fireman’s Fund” or the “Fund”) jointly and severally, (2) awarded Ingersoll attor- ney’s fees and litigation expenses against Fireman’s Fund, (3) awarded Fireman’s Fund a right of subrogation against Taiwan and Bernard, and (4) dismissed claims of Taiwan and Bernard against each other. Ingersoll cross-appeals seeking to increase its award of damages and prejudgment interest. Appellants each raise a number of issues on appeal. We consider them seriatim, and we affirm the determina- tions of the district court except with regard to the award of attorney’s fees and litigation expenses. BACKGROUND This case arises from the shipment of certain cargo from the United States to South Korea. The cargo, which was insured, and consisted of 20 packages, 18 of which were stowed on the deck of the ship, was damaged in tran- sit. Simply stated, we must determine whether the district court properly decided who is responsible for the damage and that the insurer improperly refused to cover the loss. * Honorable Dudley B. Bonsal, Senior District Judge, United States District Court for the Southern District of New York, sitting by designation. 3a We set forth the essential evidence in this section, as found by the district court, 619 F.Supp. 493 (S.D. N.Y.1985), with details to be provided later as necessary. In January 1978, Waldrich Siegen, GmbH (“Waldrich”) of West Germany contracted to sell heavy, special design machines to Hyundai International, Inc., in Korea. Waldrich engaged its affiliate, Ingersoll, a man- ufacturer of specially design machinery, as a subcontractor to manufacture Shop Order 24441 (“Order # 24441”) and to arrange for its shipment to Korea. Order # 24441 con- sisted of a ram type, horizontal spindle, traveling column machinery center, and was valued in excess of $2 million. In the summer of 1979, Ingersoll, located in Rockford, Illinois, contacted Gryphon Shipping Service, Inc. (“Gryphon”), a broker and steamship agent in Chicago, to arrange for shipment of Order #24441 to Korea.’ Gryphon, in turn, contacted Taiwan, which had time chartered the M/V Bodena from its owner Excel- lent Marine, Inc. (“Excellent Marine”). Gryphon arranged with Taiwan in August 1979 for the cargo to be shipped in September 1979 from New Orleans aboard the M/V Bodena. A contract of carriage arose between Ingersoll and Taiwan in August 1979 when Ingersoll accepted the terms arranged by Gryphon and informed Gryphon that the shipment of Order # 24441 would be in twenty box- es. The district court found that, at the time of booking, there was no evidence that Ingersoll had agreed to on deck stowage. Gryphon’s commission was to be paid by Taiwan, and Gryphon was found by the district court to be Taiwan’s agent. In connection with the shipment, Ingersoll also retained Bernard, a freight forwarder doing business in Elk Grove Village, Illinois, to perform various freight for- ‘ Gryphon is not a party to this action. ee 4a warding tasks. In addition to other duties to be performed by Bernard, Ingersoll, by letter dated September 10, 1979, requested that Bernard secure “three originals and four copies of clean on-board bills of lading” (emphasis added). In response to this letter, Bernard prepared two master ditto forms of the bill of lading and also the shipper’s export declaration. One of the master ditto forms was sent to Mid-Gulf Shipping, Inc. (“Mid-Gulf”), Taiwan’s agent in New Orleans, to be used in the preparation of the orig- inal bills of lading; the other was sent to Gryphon. In addition, the master ditto was used to prepare an advance notice of shipment which was sent by Bernard to Ingersoll on September 25, 1979. Neither the master ditto, nor the advance notice, contained any notation as to stowage. Ingersoll informed Bernard that all the information on the advance notice was correct except that the port of discharge should be changed. The Ingersoll cargo, which had arrived in New Orleans from [llinois by truck and rail, was loaded on board the M/V Bodena on September 26 and 27, 1979. Of the twenty boxes which comprised Order # 24441, eighteen were ini- tially stowed on deck and two were stowed below deck. Mid-Gulf, Taiwan’s agent, was responsible for the issuance of bills of lading. Prior to sailing, Mid-Gulf took the ditto form supplied by Bernard and added the phrase “on deck shipper’s risk” to its face. Mid-Gulf then used the altered ditto to run off three original bills of lading and mailed the originals with thirteen copies to Gryphon in Chicago. Ingersoll received the originals and four copies on October 1, 1979. Fred Woywod, Ingersoll’s contract admin- istrator, saw the documents that day but either did not notice the addition of the works “on deck shipper’s risk” or if he did notice them, did not understand their legal signifi- cance. Bernard, too, received copies of the bills of lading on October 1 but failed to examine the issued bills to deter- mine whether they were in fact clean, and, consequently, 5a failed to inform Ingersoll that Taiwan had not followed the instructions to issue clean bills of lading. The M/V Bodena, which had made several intermedi- ate stops at various East Coast ports, set sail from Savan- nah, Georgia, for Korea on October 14, 1979. At the time of sailing, seventeen of Ingersoll’s boxes were stowed on deck, one of the boxes initially stowed on deck having been moved below deck. The voyage to Korea lasted more than one month and was beset with storms, heavy seas, and high winds. As a result of heavy rolling and pitching during the voyage, the seventeen boxes on the deck were severely damaged. Some boxes were broken; others were thoroughly soaked by sea water. Because of the damage, Order # 24441 had to be sent from Korea to Waldrich in Germany for repair. None of the three boxes stowed under deck was damaged. Ingersoll maintained an all risk insurance policy with Fireman’s Fund. That policy had been issued as an open cargo policy, designed to cover all of Ingersoll’s shipments. In other words, a particular shipment would become cov- ered under the policy either when Ingersoll filled out and sent to Fireman’s Fund a certificate of insurance for each shipment, indicating the contents, value, destination, and carrier of the cargo, or when Ingersoll sent to the Fund a monthly declaration of shipments. As testified to by Fire- man’s Fund officials, such a policy was designed to pro- vide automatic coverage such that even if the certificate or monthly declaration was sent after a loss had occurred, the shipment would nevertheless be covered. The particular policy in question contained separate clauses for insuring under deck shipments and on deck aE een 6a shipments.? Clause 17(a) insured under deck shipments 2 The pertinent provisions of the policy are set forth below in full: 17. (a) UNDER DECK shipments-Including con- tainerized shipments under optional On Deck & /Or Under Deck bill(s) of lading are insured. Warranted free from Particular Average unless the vessel or craft be stranded, sunk, or burnt, but notwithstanding this warranty this Company is to pay any loss of or dam- age to the interest insured which may reasonably be attributed to fire, collision or contact of the vessel and/or craft and/or conveyance with any external sub- stance (ice included ) other than water, or to discharge of cargo at port of distress. The foregoing warranty, however, shall not apply where broader terms of Aver- age are provided for hereinafter. BROADER TERMS: - Insured against all risks of physical loss or dam- age from any external cause irrespective of percent- age, including theft, pilferage and/or non-delivery, but excluding nevertheless, the risks of war. strikes, riots seizure, detainment, confiscation requisition, nation- alization and other risks excluded by the “F.C. & S. and/or S.R. & C.C.” warranties in the printed portion of the policy except to the extent that such risks may be specifically covered by endorsement, also warranted free from any claims arising out of the inherent vice of the goods insured or consequent upon loss of time and/or market. (b) ON DECK shipments are insured: — Warranted free of particular average unless caused by the vessel and/or interest insured being strained, suck, burnt, on fire or in collision with another ship or ves- sel or with ice or with any substance other than water, but liable for jettison and/or washing overboard, irre- spective of percentage. The foregoing warranty, howev- er, shall not apply when broader terms of Average are provided for hereinafter BROADER TERMS: - [None provided] (Footnote continued on the following page) 7a and specifically contained broader terms of coverage. Those ~ terms provided coverage against all risks of physical loss or damage. Clause 17(b), which did not contain broader terms, provided coverage for on deck shipments known as free of particular average (“FPA”). FPA coverage does not cover a partial loss of the subject matter insured unless certain contingencies not relevant herein occur. Another provision of the policy, clause 8(B)(2), limited coverage to $175,000 for shipments subject to an on deck bill of lading or shipments stowed on deck with the consent of the insured.® In August 1979, Ingersoll sent to Fireman’s Fund a certificate of insurance to cover Order # 24441. The cer- tificate, whichytook effect before the boxes were actually loaded aboard the M/V Bodena, stated that the machinery was laden under deck. When Ingersoli learned of the dam- age to the cargo in December 1979, it notified Fireman’s Fund of its loss. After an investigation, Fireman’s Fund, on May 23, 1980, denied Ingersoll’s claim under its policy for full indemnity for the repairs undertaken by Ingersoll. The district court found that Taiwan and Bernard were jointly and severally liable for Ingersoll’s damages, and accordingly, awarded Ingersoll $977,899 plus prejudg- ment interest. Fireman’s Fund too was found jointly and 2 (Continued) Fireman’s Fund Insurance Company, Marine Open Cargo Policy No. WB 20737, (italics in original), also quoted in 619 F.Supp. 493, 498-99 (S.D.N.Y.1985). 3 Clause 8(B)\(2) reads in full as follows: B. Of the limit of liability expressed above, this Com- pany shall not be liable for more than (2) $175,000.00 in respect of cargo shipped subject to On Deck ocean bill(s) of lading or stowed On Deck with consent of the Assured. 8a severally liable to Ingersoll in the same amount under the insurance policy; and it was ordered that to the extent that Fireman’s Fund makes payment to Ingersoll for dam- ages assessed, it will be entitled to recover such payment from Taiwan and Bernard, including taxable costs but not including attorney’s fees and litigation expenses. Addi- tionally, the district judge ruled that Ingersoll was enti- tled to recover attorney’s fees and litigation expenses from Fireman’s Fund. Finally, the district court dismissed the claims of Taiwan and Bernard against each other, as well as Ingersoll’s claim against Excellent Marine. This appeal followed. DISCUSSION I, TAIWAN Ingersoll’s claim against Taiwan can be character- ized simply as a claim for breach of contract. There is no dispute that a contract of carriage existed between Ingersoll and Taiwan. Telephone conversations in August 1979 between representatives of Ingersoll, Gryphon, and Taiwan, in which the cargo was booked, led to a binding contract when Ingersoll informed Gryphon that it accepted Taiwan’s terms. As the district court found, this con- tract constituted the contract of carriage. The open ques- tion then was what were the terms of the contract. More specifically, did the contract call for on deck or below deck stowage. Absent an express agreement by the shipper permit- ting cargo to be stowed on deck or a general port custom permitting on deck stowage, a shipper is entitled to expect below deck stowage under a clean bill of lading. St. Johns N.F. Shipping Corp. v. S.A. Companhia Geral Commercial Do Rio de Janeiro, 263 U.S. 119, 123-24, 44 S.Ct. 30, 30- 31, 68 L.Ed. 201 (1923); English Elec. Value Co. v. M/V Hoegh Mallard, 814 F.2d 84, 89 (2d Cir. 1987); Encyclopae- 9a dia Britannica, Inc. v. S.S. Hong Kong Producer, 422 F.2d 7, 14 & n. 5 (2d Cir.1969), cert.denied, 397 U.S. 964, 90 S.Ct. 998, 25 L.Ed.2d 255 (1970); accord Calmaquip Eng’g West Hemisphere Corp. v. West Coast Carriers Ltd., 650 F.2d 633, 639 (5th Cir. Unit B 1981); see 2A E. Bene- dict, Benedict on Admiralty § 123, at 12-11 (7th ed. 1987) (“[gloods stowed on deck without the shipper’s consent are at the ship’s risk, the shipowner being liable for any loss or damage thereto.”) To reiterate, a shipper’s reasonable expectation on booking cargo for shipment is that it will be stowed below deck, unless the shipper agrees to the con- trary or a general port custom permits above deck stowage. The burden is on the carrier to prove that the shipper con- sented to something other than the usual and customary arrangement. See Gemini Navigation, Inc. v. Philipp Bros. Div. of Minerals & Chemicals Philipp Corp., 499 F.2d 745, 751 (2d Cir.1974). Although the district court found that “[t]here is no evidence that Ingersoll specified below deck stowage,” 619 F.Supp. at 500, it also found that “there is no credible evidence that Ingersoll agreed to an on deck shipment,” id. Thus, the terms of the contract of carriage were established by the industry custom that stowage would be below deck. The district court correctly found that Taiwan had failed to meet its burden of proof that Ingersoll agreed to on deck stowage and that Taiwan was liable for not performing its contract obligations. Taiwan presents a number of arguments in sup- port of its contention that it is not liable for breach of contract.‘ First, Taiwan argues that Ingersoll waived its *Taiwan’s argument that the district court improperly inter- preted the meaning of “clean” on board bills of lading is not rel- evant. The contract of carriage between Ingersoll and Taiwan was formed in August 1979 when the cargo was booked. It did not contain any reference to bills of lading. Interpretation of the (Footnote continued on the following page) | ' 10a right to below deck stowage of its cargo. Specifically, Taiwan claims that by receiving the bill of lading on October 1, 1979 with the notation “on deck shipper’s risk,” Ingersoll had constructive notice that its goods had been stowed on deck. Therefore, Taiwan argues, Ingersoll had a duty to notify Taiwan that on deck stowage was unaccept- able so that Taiwan could have either shifted the cargo to a below deck location or unloaded the cargo at another port of call at which the M/V Bodena docked prior to embanking for Korea on October 14, 1979. The district court did indeed find that Ingersoll had constructive notice that its goods were being carried on the deck of the M/V Bodena at Ingersoll’s risk. 619 F.Supp. at 501. However, a party asserting a waiver defense bears the burden of proof in establishing that defense. Taiwan, in our view, cannot make out a defense of waiver. Waiver is generally defined as an intentional relinquishment of a known right. Shearson Hayden Stone, Inc. v. Leach, 583 F.2d 367, 370 (7th Cir. 1978); Fustok v. Conticommodity Services, Inc., 577 F.Supp. 852, 859 (S.D.N.Y.1984) See generally 5S. Williston, A Treatise on the Law of Contracts § 678 (3d ed. 1961). An intent to waive a contractual right must be manifest in a surty’s failure to object. See Saverslak v. Davis-Cleaver Pru.uce Co., 606 F.2d 208, 213 (7th Cir.1979), cert.denied, 444 U.S. 1078, 100 S.Ct. 1029, 62 L.Ed.2d 762 (1980). Ingersoll’s contract with Taiwan, as the district court interpreted it, called for under deck stowage. We find no basis in the record upon which to conclude that Ingersoll intentionally relinquished its right to under deck stowage. Ingersoll’s silence after receiving constructive notice of the on deck shipment lacks the requisite manifest intent to 4 (Continued) meaning of “clean” bills of lading is relevant only in assessing Ingersoll’s claims against Bernard. See infra section IIB. lla constitute a waiver. Ingersoll’s silence and failure to act can better be characterized as an oversight or carelessness rather than as a waiver of a contractual right. The mere fact that Ingersoll can be deemed to have been informed that its machinery was being shipped to Korea on deck does not mean that the conclusion must be drawn that it knowingly consented to a modification of the original contract. Next, Taiwan contends that Gryphon was Ingersoll’s agent and therefore that Ingersoll was bound by the con- tracts entered into by Gryphon. Taiwan claims that if Gryphon was aware during booking that Order # 24441 was going to be shipped on deck, Ingersoll would be bound by that knowledge. However, the district court specifically found that Gryphon was Taiwan’s agent.° This finding may not be reversed unless clearly erroneous. O'Connell Mach. Co. v. M.V. “Americana”, 797 F.2d 1130, 1133 (2d Cir. 1986). It appears that there is sufficient evidence in the record to support this finding. For instance, Gryphon paid Bernard its brokerage commission on Taiwan’s behalf. Bernard also sent a copy of the master ditto bill of lading to Gryphon to prepare the bill of lading, which Gryphon would be likely to do if it was Taiwan’s agent. More- over, Taiwan paid Gryphon a finder’s fee for obtaining the 5 Taiwan asserts that the agency issue had already been decided in a related action in the Northern District of Illinois. Ingersoll Mill. Mach. Co. v. JE. Bernard & Co., 508 F.Supp. 907 (N.D.I1L.1981). However, that court concluded only that Gryphon was more likely Ingersoll’s agent than Taiwan’s. Id at 912. More- over, the district judge was not bound by that decision because it was rendered on a motion to dismiss for lack of jurisdiction before discovery, and without the benefit of testimony and the emergence of all the evidence. We do not believe the issue had been fully and fairly litigated so as to preclude the district judge from making his own independent finding. Saylor v. Lindsley, 391 F.2d 965, 968 (2d Cir.1968); see also Saez Rivera v. Nissan Mfg. Co., 788 F.2d 819, 821 (1st Cir. 1986). Ne SaaS ..00S 12a Ingersoll cargo for Taiwan. Taiwan also contends that even if the initial oral con- tract called for below deck stowage, Ingersoll’s receipt of the bill of lading with the new terms changed the parties’ obligations. As Taiwan would have it, only the bill of lad- ing, even if it contains unauthorized terms, represents the contract of carriage. In other words, Taiwan contends it is solely the bill of lading which governs and determines the proper stowage of the cargo. While it is true that a bill of lading may under certain circumstances consti- tute the contract of carriage between the parties. see CJA. Platamon de Navegacion, S.A. v. Empresa Colombiana de Petroleos, 478 F.Supp. 66, 67 (S.D.N.Y.1979); see gener- ally 2A Benedict on Admiralty § 34, at 4-13 (7th ed.1987), Taiwan’s argument is not at all persuasive on the evidence in this case. A carrier such as Taiwan may not unilater- ally alter a bill of lading so as to bind the shipper without the authorization of the shipper. See West India Indus. v. Tradex, Tradex Pertroleum Services, 664 F.2d 946, 949- 50 & n. 5 (5th Cir.1981). A carrier cannot impose on deck stowage on a shipper merely by including a notation in the bill of lading which it delivers after the voyage commences. To allow a carrier after the fact to impose on the shipper an unauthorized change of terms would run counter to the general proposition that without its contrary agreement, a shipper is entitled to expect below deck stowage. See St. Johns N.F. Shipping Corp., 263 U.S. at 124, 44 S.Ct. at 30; Encyclopaedia Britannica, Inc., 422 F.2d at 14 & n. 5. Under the circumstances presented herein, the contract of carriage which governed the obligations of Ingersoll and Taiwan was the one orally entered into in August 1979 and not the altered bill of lading. Finally, Taiwan argues that Ingersoll had the burden of showing that the damage was caused by Taiwan’s neg- ligence and, in any case, that its liability should be lim- ited to $500 per package pursuant to the Carriage of Goods 13 a by Sea Act (“COGSA”), 46 U.S.C. § 1300 et seg. (1982 & Supp.1983), which the bill of lading incorporated by refer- ence. We reject both of these contentions. First, as shown above, Taiwan’s stowage of Ingersoll’s cargo on deck with- out Ingersoll’s permission was a breach of the contract of carriage. A showing the Taiwan was negligent by such stowage is not relevant to or necessary for establishing a breach of contract. Second, where, as here, a carrier had materially deviated from the terms of the contract of car- riage, monetary limits contained in COGSA and in bills of lading are inapplicable; rather, the carrier is liable in full as an insurer of the cargo. General Elec. Co. Int'l Sales Div. v. S.S. Nancy Lykes, 706 F.2d 80, 87 (2d Cir.), cert. denied, 464 U.S. 849, 104 S.Ct. 157, 78 L.Ed.2d 145 (1983); Calmaquip Eng’g West Hemisphere Corp., 650 F.2d at 638-39; Encyclopaedia Britannica, Inc., 422 F.2d at 18. Therefore, because Ingersoll’s cargo was stowed on deck in breach of the contract of carriage, Ingersoll’s recovery is not contingent upon a showing of negligence, and Taiwan cannot benefit from the limits of liability in the bill of lad- ing or in COGSA. Il. BERNARD A. Admiralty Jurisdiction As a preliminary matter, Bernard challenges the dis- trict court’s assertion of subject matter jurisdiction. Since there does not appear to be diversity or federal question jurisdiction, subject matter jurisdiction must reside, if at all, under 28 U.S.C. § 1333, which provides for admiralty or maritime jurisdiction in the federal courts. Bernard, seek- ing to avoid the application of admiralty jurisdiction, char- acterizes its contract with Ingersoll as one for preliminary brokerage services only incidentally related to the mar- itime contract between Ingersoll and Taiwan. The district court, after observing that “[f]ederal courts have tradition- ally exercised admiralty jurisdiction over shipper’s claims a l4a against freight forwarders,” 619 F.Supp. at 503, held that the services Bernard performed were not vreliminary in nature. While we decline to lay down a general rule that freight forwarders are always subject to admiralty jurisdic- tion, we do hold, for reasons discussed below, that in this instance, Bernard’s freight forwarding contract with Inger- soll involved enough tasks of a non-preliminary nature to support admiralty jurisdiction. We have recognized that ‘[t]he precise categorization of the contracts that warrant invocation of the federal courts’ admiralty jurisdiction has proven particularly elu- sive.” CTI-Container Leasing Corp. v. Oceanic Operations Corp., 682 F.2d 377, 379 (2d Cir. 1982). The Supreme Court has cautioned that “[tJhe boundaries of admiralty jurisdiction over contracts as opposed to torts or crimes — being conceptual rather than spatial, have always been difficult to draw.” Kossick v. United Fruit Co., 365 U.S. 731, 735, 81 S.Ct. 886, 890, 6 L.Ed.2d 56 (1961). A long recognized principle for determining whether a contract is maritime is that agreements preliminary to maritime con- tracts are not cognizable in admiralty. Peralta Shipping Corp. v. Smith & Johnson (Shipping) Corp., 739 F.2d 798, 801 (2d Cir.1984), cert. denied, 470 U.S. 1031, 105 S.Ct. 1405, 84 L.Ed.2d 791 (1985); 1 Benedict on Admiralty § 184, at 11-8 (7th ed. 1985). Applying this principle, our Court, despite questioning its continuing validity, has recently affirmed the longstanding, well settled rule laid down by the Supreme Court in Minturn v. Maynard, 58 U\S. (17 How.) 477, 15 L.Ed. 235 (1854), that general agency con- tracts are not cognizable in admiralty. Peralta Shipping, 739 F.2d at 804. General agency contracts are those that call for a “husbanding” of a vessel, that is, arranging for performance of a variety of services preliminary to mar- itime contracts, such as soliciting cargo or passengers, and procuring supplies, crews, stevedores, and tugboats. Thus, in Peralta Shipping, this Court held that a contract which irene 15a included a duty to supervise the performance of maritime contracts did not warrant admiralty jurisdiction. Jd. at 803. Bernard argues that freight forwarding contracts fall within the ambit of general agency contracts and are therefore excluded from admiralty consideration. Courts that have specifically dealt with admiralty jurisdiction over freight forwarders appear to have arrived at differ- ent conclusions. Compare Outbound Maritime Corp. v. P.T. Indonesian Consortium of Constr. Indus., 575 F. Supp. 1222, 1223-24 (S.D.N.Y.1983) (freight forwarder subject to admiralty jurisdiction) with Johnson Products Co. v. M/V La Molinera, 619 F.Supp. 764, 767 (S.D.N.Y.1985) (freight forwarder not subject to admiralty jurisdiction). Howev- er, the focus of our inquiry must be not on the name assigned to the contract, but rather on the nature of the services to be performed. It is the character of the work to be performed under the contract that is determinative of whether the agreement was maritime. Hinkins S.S. Agency, Inc. v. Freighters, Inc., 498 F.2d 411, 412 (9th Cir.1974); see also North Pac. S.S. Co. v. Hill Bros. Marine Ry. & Shipbld. Co., 249 U.S. 119, 125, 39 S.Ct. 221, 222, 63 L.Ed, 510 (1919); James Richardson & Sons v. Conners Marine Co., 141 F.2d 226, 228 (2d Cir.1944). If the sub- ject matter of the contract “ ‘relat[es) to a ship in its use as such, or to commerce or to navigation on navigable waters, or to transportation by sea or to maritime employment’” it is fairly said to constitute a maritime contract. CT7/- Container Leasing Corp., 682 F.2d at 379 (quoting 1 Bene- dict on Admiralty § 183, at 11-6 (7th ed. 1981)). Accord- ingly, we turn to an examination of the services to be per- formed by Bernard under its contract with Ingersoll. Of the thirteen services listed by the Federal Maritime Commission which a freight forwarder may perform at the request of the shipper, 46 C.F.R. § 510.2(h), Ingersoll asked Bernard to undertake six. Bernard was obligated to pre- eT 16a pare and process export declarations; to prepare and pro- cess delivery orders or dock receipts; to prepare and pro- cess ocean bills of lading, including the preparation and forwarding of a master ditto; to prepare and send advance notification of shipments or other documents to banks, shippers, or consignees; to handle freight or other monies advanved by the shipper or to remit or advance freight or other monies or credit in connection with the dispatching of shipments; and together with Ingersoll, to coordinate the movement of shipments from origin to vessel. Although Bernard’s services may not have included all the services a freight forwarder traditionally performs for a shipper, it is not upon the number of services that we focus but rather on their nature. The preparation and process- ing of export declarations, delivery orders, dock receipts, bills of lading, and advance notification of shipment are not services rendered preliminary to a voyage, rather they are essential to it. Without these, there can be no voy- age. Specifically, we note that the district court found that Bernard’s obligation with regard to the bills of lading was twofold. First, Bernard was engaged to secure clean on board bills of lading. Additionally, on receipt of the bills of lading, Bernard was to review the copies it received and to advise Ingersoll if in fact they were not clean. 619 F.Supp. at 502. Bernard’s duty to secure clean bills of lading is akin to the issuance of bills of lading themselves. An obligation to procure a bill of lading for an ocean shipment, in our view, is a contract relating to transportation by sea. The procurement of the proper papers and documents relating to shipment by sea is an essential and integral part of the shipping process; a contract to obtain those papers, there- fore, falls squarely within the admiralty jurisdiction of the federal courts. Bernard relies heavily on Johnson Products, which held that the forwarding of a bill of lading does not in itself create a maritime contract. We believe that Johnson 17a Products is distinguishable from this case. In that case, the obligation of the freight forwarder was merely to pass along the bill of lading that was issued by the carrier. 619 F.Supp. at 767. Herein, Bernard’s obligation to Ingersoll was to do more than merely transfer documents. Bernard had an affirmative obligation to secure clean bills. Its responsibilities did not begin when the completed bills of lading first arrived on its desk. Bernard was engaged to ensure that Ingersoll’s cargo would be properly loaded on board the M/V Bodena so that the proper bills of lading would be issued. Thus, having undertaken to arrange for the proper loading of the cargo onto the vessel, as well as other tasks of a nonpreliminary nature, we conclude that Bernard’s contract with Ingersoll can fairly be character- ized as a maritime contract supportive of admiralty juris- diction. B. Breach of Contract Bernard’s contract with Ingersoll called for Bernard to perform a number of services typically associated with a general freight forwarder. Bernard’s contention that its duties were more limited in scope than those generally performed by freight forwarders is not pivotal in determin- ing whether Bernard breached its contract with Ingersoll. Our focus must be on the specific obligations involved and whether Bernard satisfactorily performed them. As noted, the district court found that two of the tasks to be per- formed by Bernard related to the bills of lading. Bernard was bound initially to secure clean on board bills of lading for Ingersoll. Moreover, Bernard was bound to examine the bills of lading once they had been issued by Taiwan and to inform Ingersoll of any imperfections. The district court held that Bernard failed in both respects: it failed in its obligation to procure clean bills, and it failed to examine the copies it received and to advise Ingersoll that in fact they were not clean. 619 F.Supp. at 502. We find no clear error in the district court’s finding that Bernard failed in ee 18a its primary duty, namely, to supply the clean bills. We therefore find it unnecessary to reach the secondary ques- tion, whether Bernard also failed to review the bills for imperfections. 1. “Clean” on Board Bills of Lading Bernard contends that the bills of lading that it sup- plied were in fact clean. According to Bernard, the nota- tion of the words “on deck shipper’s risk” did not render the bills unclean. In Bernard’s view, a “clean” bill of lading requires only that the shipping document bear no notation on its face that expressly declares a defective condition of the goods. In other words, it contends, a “clean” bill of lading indicates that the goods were not received by the carrier in damaged condition at the time of shipment. The phrase “on deck shipper’s risk,” Bernard argues, is a clause which does not describe the physical condition of the goods at the time of receipt by the carrier, but rather relates instead to who bears the risk during voyage. So interpret- ed, a notation declaring that the shipper bears the risk of damage during the voyage would not affect the cleanliness of the bills. We disagree with Bernard’s interpretation. It is no doubt true, as Bernard claims, that a “clean” bill of lading refers to the undamaged condition of the cargo at the time it is received by the carrier. Vana Trading Co. v. S.S. ‘Mette Skouw”, 556 F.2d 100, 103 n. 4 (2d Cir.), cert. denied, 434 U.S. 892, 98 S.Ct. 267, 54 L.Ed.2d 177 (1977); C. Gilmore & C. Black, Jr., The Law of Admiralty § 3-13, at 122 (2d ed. 1975). However, a “clean” bill of lading refers to more than just the condition of the goods. It has long been recognized in admiralty custom and practice that a “clean” bill of lading refers also to the place on a ship where cargo is to be stowed.® “[A] clean bill of lading imports that the The meaning of a “clean” bill of lading is one firmly estab- lished by the custom and practice of the maritime industry. (Footnote continued on the following page) 19a goods are to be safely and properly stowed under deck.” The Delaware, 81 U.S. (14 Wall.) 579, 602, 20 L.Ed. 779 (1871) (emphasis added); see Seguros Banvenez, S.A. v. S/S Oliver Drescher, 761 F.2d 855, 859 (2d Cir.1985). Noted admiralty commentators agree that a “clean” bill of lading denotes a bill that is either silent as to stowage, thereby imputing that the cargo is to be stowed below deck, or provides for under deck stowage. 2A Benedict on Admiralty § 97, at 9- 12 (7th ed. 1987) (“[tJhe issuance of a clean bill of lading — one which does not specifically provide for on-deck stowage — obligates the carrier to stow the cargo under deck”); id. § 123, at 12-10(“[a) clean bill of lading imputes under- deck stowage”); A. Knauth, Ocean Bills of Lading 237 (2d ed. 1941) (“{a] ‘clean’ bill of lading is an unwritten rep- resentation that the cargo would be carried under deck”). Thus, when a shipper requests a “clean” bill of lading it expects to receive from the carrier a document which either specifically notes that stowage is under deck, see Thyssen, Inc. v. S.S. Fortune Star, 777 F.2d 57, 59 (2d Cir.1985), or is silent as to stowage, see The Idefjord, 114 F.2d 262, 266 (2d Cir.) cert. denied, 311 U.S. 707, 61 S.Ct. 175, 85 L.Ed. 459 (1940). If the document is silent as to stowage, the assumption is that the goods have been stowed below deck. In other words, a request for a “ciean” bill of lading is an implied request for stowage below deck. Ingersoll’s instruction to Bernard in its letter of September 10, 1979, was to provide “clean” on board bills of lading. Bernard therefore, was duty bound to supply bills that noted or implied that stowage was below deck. Contrary to Ingersoll’s instructions, the bills actually pro- 6 (Continued) Its meaning is not ambiguous, and, therefore, the parties’ inten- tion in using that term does not govern, as Bernard argues it should. The district court properly did not employ contractual rules of construction, such as the intent of the parties at the time of contracting, in interpreting its meaning. 20a vided by Bernard contained a notation indicating that the goods had been stowed on deck. Thus, Bernard plainly breached its contract with Ingersol. 2. Causation Bernard also contends that even if it failed to sup- ply “clean” bills of lading to Ingersoll, its breach of con- tract was not causally connected to the damage to Order # 24441. Essentially, Bernard argues that even if it had reviewed the bills and found the notation, the damage to the cargo would still have occurred. By the time the nota- tion was detected, the cargo was already on deck and at sea. Therefore, according to Bernard, its failure to advise Ingersoll that the bills bore the clause “on deck” did not cause or contribute to the damage. Bernard’s contention might have some merit were its only contractual duty to review the bills after they had been issued. In such case, given that Bernard received the documents on October 1 and that the M/V Bodena did not actually leave the United States bound for Korea until October 14, the feasibility of unloading the cargo at another U.S. port prior to sailing would be a crucial issue. The district court did not decide whether unload- ing was a viable option because of a dearth of evidence. 619 F.Supp. at 502. However, the question of whether the cargo could have somehow been saved between October 1 and October 14 is not determinative of Bernard’s liability. Bernard’s contractual obligation was not only to review the bills of lading for defects but also to secure clean bills in the first instance. Having failed to ensure that the cargo was placed below deck, thereby breaching its contract by caus- ing a bill that was not “clean” to be issued, Bernard can be said to have proximately caused Ingersoll’s damages. We reject Bernard’s contention that all it was obligated to do was transmit faithfully to Taiwan Ingersoll’s request for “clean” bills of lading, and once having relayed those instructions, to transfer the issued documents upon receipt 2la to Ingersoll. It is reasonable to assume that the hiring of Bernard as a freight forwarder contemplated not simply the handling of documents and the removal of any mark- ings which would render the bills unclean should such markings appear; rather, Bernard was retained to assure in advance that proper documents would be provided. It was Bernard’s responsibility to see that Ingersoll received the requested documents and thus to assure the safe jour- ney Ingersoll anticipated as a result of its request. Bernard did not take preventative or corrective action to assure this result. Bernard should have monitored the loading process in New Orleans to assure that the proper bills could be issued. Its failure to do so was a breach of contract result- ing in damages to Ingersoll. It. CROSS-CLAIMS OF TAIWAN AND BERNARD The district court properly dismissed the claims asserted by Taiwan and Bernard for indemnity against each other. Indemnity rests upon the principle that the true wrongdoer should bear the ultimate burden of pay- ment. Ross v. Penn Cent. Transp. Co., 433 F.Supp. 306, 309 (W.D.N.Y.1977). There can be no indemnity as between parties that each bear primary responsibility for a wrong regardless of their relative degrees of fault. Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303, 318 (3d Cir.), cert. denied, __U.S.__, 106 S. Ct. 384, 88 L.Ed.2d 337 (1985). Having concluded that Taiwan and Bernard each breached their separate contracts with Ingersoll, the district court properly held them jointly and severally liable and dismissed their respective claims for indemnity. iii iii 22a IV. FIREMAN’S FUND A. Liability on the Policy Fireman’s Fund contends that the district court erred in finding that Ingersoll’s policy covered the damage sus- tained by Order # 24441. Essentially, the Fund contends on appeal that clause 17(b) of the policy, which denies cov- erage for partial loss of on deck shipments, should apply to deny coverage because part of Ingersoll’s cargo was actu- ally stowed on deck. We disagree. As we discuss below, the district court was justified in finding the policy ambiguous, construing it against Fireman’s Fund, and applying clause 17(a) of the policy, which covers all risks of loss in cases of under deck shipments. Ingersoll’s policy with Fireman’s Fund was an open cargo policy. Such a policy is a master policy which cov- ers all of an insured’s shipments. An insured declares a particular shipment either by sending the Fund a copy of an insurance certificate or a monthly declaration of ship- ments. One of the advantages of this type of policy is that an insured has automatic coverage for a shipment even if it neglects to declare the shipment, or if the certificate is not issued until the cargo has arrived and a loss has already occurred. Under the subject policy, different types of ship- ments were accorded different types of coverage. Certain shipments were insured on an all risk basis (clause 17(a)), that is, against all risks of physical loss or damage from any external cause; other types of shipments were insured free of particular average (clause 17(b)), that is, partial losses were not covered; still others were subject to mone- tary limits (clause 8(B(2)). In August 1979, before shipping order # 24441, Ingersoll sent Fireman’s Fund an insurance certificate to declare and insure the machine. The certificate stated that the goods were stowed under deck and were insured against all risks. The certificate became effective on 23 a August 31, 1979. In fact, the bulk of the shipment was stowed on deck and the bill of lading was marked “on deck shipper’s risk” without Ingersoll’s consent. Ingersoll notified Fireman’s Fund of the damage to the cargo in December 1979. The Fund deried Ingersoll’s claim by let- ter dated May 23, 1980. Marine insurance contracts are governed by federal admiralty law when there is an established federal rule, and by state law when there is not. Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 313-14, 75 S.Ct. 368, 370-71, 99 L.Ed. 337 (1955); Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d 186, 190 (2d Cir.1970). The parties do not dispute that to the extent that federal admi- ralty rules do not exist, the interpretation of the policy is governed by Illinois law. The starting point in interpreting an insurance policy is to determine whether the policy terms are ambiguous. As a general rule, plain or unambiguous language will be given its ordinary meaning and effect, and the need to resort to rules of construction arises only when an ambigu- ity exists. National Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357, 361 (7th Cir.1987); Chicago Bd. Options Exch., Inc. v. Connecticut Gen. Life Ins. Co., 713 F.2d 254, 257-58 (7th Cir.1983). Courts may not create an ambiguity where none exists. Simmons Refinding Co. v. Royal-Globe Ins. Co., 543 F.2d 1195, 1197 (7th Cir.1976); State Farm Mut. Auto. Ins. Co. v. Berke, 123 Tll.App.2d 455, 258 N.E.2d 838, 841 (1970). If an insurance contract is ambiguous it will generally be construed against the insurer who drafted it in order to promote coverage for losses to which the policy relates. Karagansis, 811 F.2d at 361; FSC Paper Corp. v. Sun Ins. Co. of N.Y., 744 F.2d 1279, 1282 (7th Cir.1984). This principle applies to all types of insurance policies including maritime policies. Kalmbach, Inc. v. Insurance Co. of Pa., 529 F.2d 552, 555 (9th Cir.1976) (citing Mli- nois cases). The rule that insurance policies are to be con- 24a strued in favor of the insured is most rigorously applied in construing the meaning of exclusions incorporated into a policy of insurance or provisions seeking to narrow the insurer’s liability. Sears, Roebuck & Co. v. Reliance Ins. Co., 654 F.2d 494, 499 (7th Cir.1981). Accordingly, we turn first to the question of whether Ingersoll’s policy is ambiguous. Fireman’s Fund’s argument that the policy provisions are unambiguous has surface apneal. Clause 17)a) is encaptioned ‘UNDER DECK shipments” and clause 17(b) is encaptioned “ON DECK shipments.” At first glance, these captions would seem to indicate that it is the actual, physical place of stowage which governs the applicability of the clauses. Cargo actually stowed under deck would be governed by clause 17(a), and cargo actually stowed on deck would fall within clause 17(b). However, a closer, more careful reading of the policy reveals that the provi- sions at issue are in fact ambiguous.’ Looking at the insurance contract as a whole, as we must, Michigan Chem. Corp. v. American Home Assurance Co., 728 F.2d 374, 377 (6th Cir.1984) (applying [linois law), we fund clauses 17(a) and 17(b) subject to varying interpretations. A contract that is reasonably and fairly susceptible of more than one meaning is said to be ambigu- ous. Karaganis, 811 F.2d at 361; Sunstream Jet Express, 7Fireman’s Fund contends that the district court improperly considered parol evidence (testimony of Fund officials to the effect that cargo on deck without the insured’s consent but with an under deck bill of lading would be covered by clause 17(a)) in finding an ambiguity in the policy. We disagree. As explained, the district court could properly have found the policy ambigu- ous on its face. Moreover, under Illinois law, ‘[iJn determin- ing whether an ambiguity exists, as a matter of law, the trial court may consider parol and extrinsic evidence.” Sunstream Jet Express, Inc. v. International Air Serv. Co., 734 F.2d 1258, 1268 (7th Cir.1984) (citing cases). 25a Inc. v. International Air Serv. Co., 734 F.2d 1258, 1269 (7th Cir.1984). Neither clause 17(a) or 17(b) makes refer- ence on its face to the bills of lading or to the contract of carriage under which the shipments were to travel.* Nor do clauses 17(a) or 17(b) refer to the consent of the insured in deciding where its cargo is to be placed. However, another provision of the policy, clause 8(B(2), specifically places a monetary ceiling on shipments that travel either “subject to On Deck ocean bill(s) of lading” or are “stowed On Deck with consent of the Assured.” Where one part of the policy is specific and another general, it is incumbent upon the court to resolve the question of what relationship each part bears to the other. Clauses 17(a) and 17(b) could conceiv- ably refer to any one or to a combination of many possible situations. Coverage under these clauses might be deter- mined by the actual physical place of stowage, the bill of lading under which the cargo traveled, the contract of car- riage for the shipment, or the consent of the insured as to where its cargo should be stowed. It simply is not clear from the face of the policy when coverage under clauses 17(a) or 17(b) would be in effect. Having concluded that the policy terms are ambigu- ous, we turn next to the construction of those terms. In our view, the district court properly construed the policy in favor of the insured. We think a fair and reasonable interpretation of the policy suggests that “UNDER DECK shipments” of clause 17(a) refers to shipments that were supposed to travel under deck. In other words, when an insured has contracted with its carrier for shipment of cargo below deck, clause 17(a) applies. It is irrelevant whether the cargo actually traveled below deck or whether 8 Clause 17(a) does refer to the bills of lading under which con- tainerized shipments travel. It does not, however, mention bills of lading with regard to other types of shipments. Mentioning one type of shipment and not other types, in our view, only adds to the ambiguity of the clause. 26a the cargo was shipped pursuant to an under deck bill of lading, or, as in this case, pursuant to an unauthorized on deck bill of lading. The place of physical stowage or the bill of lading is not determinative of coverage; it is the contract of carriage that governs. As long as the shipper intended the cargo to be stowed below deck and so man- ifested its intent in its contract of carriage, clause 17(a) applies. Similarly, “ON DECK shipments” of clause 17(b) refers to all shipments that were supposed to travel on deck. In such an instance, a lesser degree of coverage is provided. In those cases, coverage is provided only for a total loss and only when that loss occurs as a result of certain perils. No coverage whatsoever is provided for for- tuitous partial losses caused even by an insured-against peril. Furthermore, clause 8(B)(2) would appear to pro- vide an additional limitation on clause 17(b), limiting the maximum possible recovery to $175,000 if the cargo was shipped subject to an on deck bill of lading or stowed on deck with the insured’s consent. Construction of the pol- icy in this manner comports with the logical assumption that an insurance company would provide, and an insured would buy, greater protection for shipments that were sup- posed to travel under deck than for shipments intended to be placed on deck. Accordingly, applying this construction to the facts herein, we believe it is clear that clause 17(a) is the operative provision. As discussed, Ingersoll’s contract of carriage with Taiwan required under deck stowage. This being so, the provision which relates to shipments that were intended to travel below deck, namely clause 17(a), must govern. Under clause 17(a), Ingersoll’s loss would have been covered. Clause 17(a) insures against “all risks of phys- ical loss or damage from any external cause.” All risk coverage covers all losses which are fortuitous no matter what caused the loss, including the insured’s negligence, unless the insured expressly advises otherwise. Goodman v. Fireman’s Fund Ins. Co., 600 F.2d 1040, 1042 (4th 27a Cir.1979). A loss is fortuitous unless it results from an inherent defect, ordinary wear and tear, or intentional mis- conduct of the insured. Jd. An insured satisfies its burden of proving that its loss resulted from an insured peril if the cargo was damaged while the policy was in force and the loss was fortuitous. Atlantic Lines Ltd. v. American Motorists Ins. Co., 547 F.2d 11, 12 (2d Cir.1976); accord Morrison Grain Co. v. Utica Mut. Ins. Co., 632 F.2d 424, 430-31 (5th Cir. 1980). The circumstances surrounding the placement of the Ingersoll cargo on deck and the resultant loss can fairly be characterized as fortuitous. It was the carrier that breached the contract of carriage by placing the cargo on deck. Ingersoll certainly did not engage in any intentional misconduct to cause the misplacement of its cargo. Moreover, even if the carrier was negligent in placing the cargo outside the area of the ship’s hold, all risk coverage would still apply. Construing Ingersoll’s policy as providing full cover- age for shipments stowed on deck without the shipper’s consent is consistent with the purpose for which the policy was issued. All risk open cargo policies, such as the one issued to Ingersoll, provide broad coverage for shippers. See, e.g., Green v. Cheetham, 293 F.2d 933 (2d Cir.1961); Groban v. S.S. Pegu, 331 F.Supp. 883 (S.D.N.Y.1971), aff’d sub nom. Groban v. American Casualty Ins. Co., 456 F.2d 685 (2d Cir.1972). A shipper not located near a port has no practical control over how a steamship line may ulti- mately carry and protect its cargo. Even if it issues clear instructions as to stowage directly to the carrier, it has no guarantee that the carrier will comply. A carrier may neg- ligently or inadvertently place cargo intended to be stowed below deck, above deck. A shipper may reasonably seek to avoid exposing itself to the potential risk of damage and to consequential losses by procuring insurance. To hold that Ingersoll’s loss was not covered would be to render the insurance that it purchased from Fireman’s Fund meaning- less. It is not at all unreasonable to assume that Ingersoll procured insurance precisely to cover itself in situations : ) 28a such as this one—where the carrier placed its cargo on deck without Ingersoll’s consent. Fireman’s Fund also argues that it should not be held liable under the policy because Ingersoll has a duty to inform the Fund after it learned of the on deck placement of its cargo on October 1, 1979. The Fund contends that had it been so advised, it would have instructed Ingersoll to get the cargo under deck or off the ship before the M/V Bodena sailed for Korea on October 14. Violations of this duty to disclose, the Fund claims, voids the policy under the doctrine of uberrimae fidei. The doctrine of uberrimae fidei requires a party seeking marine insurance to disclose all circumstances known to it which materially affect the risk. Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 13 (2d Cir.1986), cert. denied, _. U.S. __, 107 8.Ct. 1570, 94 L.Ed.2d 762 (1987); Puritan Ins. Co. v. Eagle S.S. Co. S.A., 779 F.2d 866, 870 (2d Cir.1985). If a party omits to disclose mate- rial information applicable to the risk involved, the pol- icy is void. Knight, 804 F.2d at 13; Thebes Shipping, Inc. v. Assicurazioni Ausonia SPA, 599 F.Supp. 405, 426 (S.D.N. Y.1984) (quoting McLanahan v. Universal Ins. Co., 26 U.S. (1 Pet.) 170, 185-86, 7 L.Ed. 98 (1828)). However, in our view, the doctrine is not applicable in the instant case. As discussed, clause 17(a) of Fireman’s Fund’s pol- °Fireman’s Fund makes a similar argument with regard to mitigation of damages. The Fund argues that Ingersoll failed to take any steps to remove the cargo from danger despite its knowledge as of October 1 that the cargo was stowed on deck and likely to incur damage. However, the burden of proving a failure to mitigate damages falls on the insurer. Emmco Ins. Co. v. Wallenius Carribbean Line, S.A., 492 F.2d 508, 514 (5th Cir.1974). The district court concluded that there was a “dearth of evidence” to show that unloading was a real and viable option and that appellants failed to meet their burden. 619 F.Supp. at 502. Te 29a icy provided coverage for shipments traveling pursuant to upper deck contracts of carriage. As interpreted herein- above, Ingersoll’s contract of carriage with Taiwan was one for under deck stowage. The fact that Ingersoll’s cargo was actually stowed on deck, in breach of the contract of carriage, did not change the terms of the contract. Sim- ilarly, the fact that Ingersoll had constructive notice as of October 1 of that breach also did not change the terms of the contract of carriage or Ingersoll’s rights thereun- der. See section I, supra. Ingersoll’s contract remained one for under deck shipment throughout the voyage. Since there was never any change in Ingersoll’s contract of car- riage, there was no change in circumstances affecting the risk insured which Ingersoll might have been required to disclose. The subject open cargo policy does not distin- guish between under deck contracts of carriage that are performed and those that are breached. Coverage is pro- vided for all shipments traveling pursuant to under deck contracts of carriage. Consequently, Ingersoll had no duty to inform Fireman’s Fund that its cargo had been stowed on deck in breach of the contract of carriage. Indeed, it was to protect against just such an occurrence that Ingersoll most likely contracted for insurance in the first place. B. Fireman’s Fund’s Right of Subrogation Against Bernard and Taiwan The district court properly ordered that to the extent Fireman’s Fund makes payments to Ingersoll under its pol- icy, it is entitled to recover such payments from Taiwan and Bernard, including taxable costs but excluding attor- ney’s fees and litigation expenses. It is well settled that an insurer has an equitable right of subrogation as a mat- ter of law upon making payment to its insured for a cargo loss. Meredith v. The Ionian Trader, 279 F.2d 471, 474 (2d Cir.1960). Bernard errs in contending that the Fund’s failure to fulfill its contractual obligation to Ingersoll pre- cludes it from being granted equitable subrogation. An 30a insurance company retains its right of subrogation even after it litigates coverage and suffers a judgment requir- ing payment to the insured. /d.; see also Bunge Corp. v. London and Overseas Ins. Co., 394 F.2d 496, 497 (2d Cir.), cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968). C. Attorney’s Fees and Litigation Expenses The district court awarded Ingersoll attorney’s fees ($590,381.96) and litigation expenses ($226,250.96) against Fireman’s Fund for costs it incurred in prosecuting its suit against Fireman’s Fund and the other defendants. Although the district court did not specifically apportion the fees and expenses allocable to the various defendants, it did advance two different theories to support the award. First, Ingersoll’s fees and expenses incurred in suing Bernard, Taiwan, and Excellent Marine were awarded as compensatory damages, to make Ingersoll whole. Second, the fees and expenses incurred in suing the Fund were awarded because of the Fund’s apparent bad faith in deny- ing Ingersoll’s claim. Apropos the fees and expenses attributable to Ingersoll’s suit against Bernard, Taiwan, and Excellent Marine, those fees were a direct and foreseeable conse- quence of Fireman's Fund’s breach. As a result of the refusal of Fireman’s Fund to cover the loss, Ingersoll was forced to sue third parties and to bear the burdens of com- plex litigation. Where a breach of contract has caused a party to maintain a suit against a third person, courts have permitted recovery from the breaching party of coun- sel fees and other litigation expenses incurred in the suit. Artvale, Inc. v. Rugby Fabrics Corp., 232 F.Supp. 814, 826 (S.D.N.Y.1964), aff'd, 363 F.2d 1002 (2d Cir. 1966); accord Ranger Constr. Co. v. Prince William County School Bd., 605 F.2d 1298, 1301 (4th Cir.1979); see Freed v. Travelers, 300 F.2d 395, 399 (7th Cir.1962) (attorney’s fees and expenses of litigation incurred in action against —— —<