FREEPORT SULPHUR COMPANY v. S/S HERMOSA

Decision Date20 November 1973
Docket NumberCiv. A. No. 71-798.
Citation368 F. Supp. 952
PartiesFREEPORT SULPHUR COMPANY, Plaintiff, v. The S/S HERMOSA, her engines, tackle, apparel, furniture, etc., in rem and PANSUIZA COMPANIA de NAVIGACION S.A. in personam, Defendants.
CourtU.S. District Court — Eastern District of Louisiana

John W. Sims, James B. Kemp, Jr., Richmond Eustis, New Orleans, La., for plaintiff.

Walter Carroll, Jr., New Orleans, La., for defendants.

ALVIN B. RUBIN, District Judge:

OPINION

This is a simple case of a ship that hit and damaged a wharf. No explanation for the impact is offered. Liability for the resultant damage is therefore clear.

Freeport Sulphur Company (Freeport), was the owner of a sulphur loading and unloading facility, ("the dock"), located on the west, or right descending bank, of the Mississippi River at Port Sulphur, Louisiana. During the night of March 21, 1971, while the S.S. HERMOSA was attempting to moor at the dock, it collided with the upstream end of the dock and the driftwood deflector located at its upstream end. Both the dock and the driftwood deflector were damaged as a result of the collision.

The dock was properly lit at all times. The S.S. HERMOSA, under the control of a compulsory State River Pilot, and its officers and crew, was proceeding downriver from New Orleans. It approached the dock by rounding to and heading upstream. There were no tugs assisting the vessel, and apparently the pilot intended to move the HERMOSA broadside into the dock. Instead, for no reason that the defendant has seen fit to offer, save as a result of what must be assumed to be faulty navigation, the HERMOSA hit the driftwood deflector, and then rolled back against the dock at its extreme upstream end.

The driftwood deflector and the extreme upstream end of the dock were not designed for the berthing of ships, but to act as deflectors. Ships never berthed there and none were expected to do so. The dock was properly constructed in accordance with permits for its construction granted by the Army Corps of Engineers; the District Engineer, United States Army Engineer District; Louisiana State Department of Public Works, and the Plaquemines Parish Police Jury, and was properly designed. There was no prior or pre-existing damage to the dock on March 21, 1971, and the collision occasioned major damage.

Defendants argue that the impact was too slight to have occasioned the damage had the dock been properly built, but the evidence satisfies me that the dock was suitably built and the impact was the cause of the damage. That the ship itself was not damaged means little. The ship's captain testified, by way of deposition, that the ship had no damage, and he was therefore astonished at seeing the damage to the dock. He thought the damage was due to some other event or else that the dock was rotten. These conclusions are self contradictory. In addition they are contrary to the other evidence heard at the trial. I consider that evidence credible and conclude that the dock was in good condition, and that it did in fact sustain the damage complained of as a result of the impact.

It is well established that there is a presumption of fault against a moving vessel that strikes a stationary object, such as a dock or navigational aid. Brown & Root Marine Operators, Inc. v. Zapata Offshore Co., 5 Cir. 1967, 377 F. 2d 724; Chevron Oil Co. v. M/V New Yorker, E.D.La.1969, 297 F.Supp. 412; Sulphur Terminals Co., Inc. v. Pelican Marine Carriers, E.D.La.1968, 281 F. Supp. 570.

An inference of negligence arises from such a collision and the vessel must bear the burden of rebutting that inference. In order to rebut this inference of negligence, the vessel must show that it was without fault or that the collision was caused by the fault of the stationary object or that it was the result of an inevitable accident. Brown & Root, supra; Chevron, supra; and Sulphur Terminals, supra. There has been no showing of any of these exculpatory defenses. The vessel's negligence is further demonstrated by the fact that other vessels have safely navigated the same waterway under like conditions.

The damages suffered by Freeport have been proved as follows:

                1. Inspection of damage to dock and driftwood deflector
                   a)  Inspection and report of underwater
                       damage by Pelican Marine
                       Divers, Inc.                                   $   489.54
                   b)  Engineering inspection of abovewater
                       damage, 16 hours at $17.90
                       per hr.                                            286.40
                   c)  Travel expense                                      56.99
                                                                        ________
                       TOTAL FOR INSPECTION
                         OF DAMAGE                                                   $   832.93
                2. Plans and specifications for repair work
                   a)  Engineering design of replacement
                       structure and preparation of specifications
                       236 hours at $17.90 per
                       hr.                                             $4,222.72
                   b)  Preparation of drawings for replacement
                       structures, 127 hours at
                       $13.93 per hr.                                   1,824.01
                                                                       _________
                       TOTAL FOR PLANS AND
                         SPECIFICATIONS                                               $6,046.73
                3. Reconstruction of damaged dock and driftwood deflector
                   a)  Contract with Boh Bros. Construction
                       Co., Inc. for structural repairs
                       —$65,350.00                                    $65,350.00
                   b)  Repair work by Freeport maintenance
                       shop to salvage and replace
                       existing lights, power cables
                       cathodic protection system and fire
                       protection system on damaged
                       dock, $1,450.00                                  1,450.00
                   c)  Disposal of damaged dock material
                       by Freeport:
                       Freeport towboat   878.86
                       Freeport labor     134.40
                       Contract labor     182.00
                                          ______                        1,195.26
                   d)  Freeport engineering inspection and
                       supervision of construction in progress,
                       377 hours at $13.93 per hr.                      5,250.30
                   e)  Freeport's services in providing
                       alignment and grade for reconstruction,
                       244 hours at $14.25 per
                       hr.                                              3,476.24
                   f)  Travel expense, Freeport engineering               539.74
                                                                      __________
                       TOTAL FOR RECONSTRUCTION
                       OF DAMAGED DOCK                                               $77,261.54
                   GRAND TOTAL                                                       $84,141.20
                                                                                     ==========
                

The repairs were let to the lowest bidder, Boh Bros. Construction Co.

While the defendant challenges Freeport's internal expenses (items 1c, 2a, 2b, 3c, 3d, 3e, and 3f above), the evidence indicates that this work was in fact done as a result of the collision. The hourly amounts on which the calculation is based are reasonable. The only evidence to the contrary was by a consulting engineer, called as a witness by the defendant, who said he found the total overhead "high" but who further testified his own firm would not undertake such work for a fixed fee or a percentage of cost, but only on an hourly basis. The evidence indicates that hourly records were properly kept. Freeport's services included some work that might normally be done by the contractor. All in all, I find its records accurate and its charges reasonable.

The damages properly include the engineering costs that were incurred by Freeport for work by its own engineers in aiding, inspecting and supervising the repairs. Baltimore and Ohio R. Co. v. Commercial Transport, Inc., 7 Cir. 1960, 273 F.2d 447; Crain Brothers, Inc. v. Duquesne Slag Products Company, 8...

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