United States v. American Commercial Barge Line Co.

988 F.2d 860, 25 Fed. R. Serv. 3d 677, 1993 U.S. App. LEXIS 5547, 1993 WL 79308
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 23, 1993
DocketNo. 92-1333
StatusPublished
Cited by13 cases

This text of 988 F.2d 860 (United States v. American Commercial Barge Line Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. American Commercial Barge Line Co., 988 F.2d 860, 25 Fed. R. Serv. 3d 677, 1993 U.S. App. LEXIS 5547, 1993 WL 79308 (8th Cir. 1993).

Opinion

RICHARD S. ARNOLD, Chief Judge.

This is an admiralty case arising under the Rivers and Harbors Act of 1899, 33 U.S.C. § 408. The District Court1 held the American Commercial Barge Line Company (the Company) strictly liable for damage to a Mississippi River lock gate, but limited its award of damages, including prejudgment interest. The United States appeals. We affirm in part and reverse in part.

I.

On May 27, 1986, the Company’s boat, the Motor Vessel J.W. Hershey (the Hershey), towed loaded barges through Lock and Dam 24 on the Mississippi River near Clarksville, Missouri. While going through, the barges struck and damaged a miter gate at the lock and dam. The Army Corps of Engineers (the Corps) operates the locks and dams on the Mississippi. It inspected the damaged gate and determined that, while it was damaged to the point of needing repair, it was still operational so long as the water level was high. The Corps decided to repair the gate soon.

Repairing a miter gate is quite an undertaking. In order not to have to close the river to navigation for any longer than necessary while making repairs, a gate is removed from its lock and replaced, temporarily, with a spare gate. The Corps followed this procedure in this case. It removed the damaged gate on July 16, 1986, and floated it by barge downstream to St. Louis. In St. Louis, the Corps fixed not only the damage caused by the Hershey’s barges, but also damage from an earlier collision with the Motor Vessel Mark Roberts. The Corps also took this opportunity to perform ordinary repairs and maintenance, since there was no regular schedule for removing gates from their locks for maintenance, and to make improvements. The gate was reinstalled at Lock and Dam 24 on December 2, 1986.

Under the Rivers and Harbors Act of 1899, the Company is strictly liable for the [862]*862damage the Hershey and its barges caused to the gate. This point was never contested. The Corps sent the Company a bill for $148,398.67. This bill charged the Company with the entire cost of removing the gate, replacing it with a spare, and reinstalling it on the lock after it was repaired (referred to as the “pulling and replacing” cost), as well as the cost of actually repairing it. The Company objected to this amount as unreasonable, and the government sued.

After a bench trial on the single question of the amount of the United States’ damages, the District Court found “the fair and reasonable cost of pulling and repairing gate four was $65,743.66.” United States v. American Commercial Barge Line Co., No. 88-1793-C-7, slip op. 19 (E.D.Mo. Sept. 30, 1991). Additionally, the Court held that the United States could not charge the Company the full amount because the damage from the Hershey’s barges did not require the immediate pulling of the gate. Id. at 14. The Court divided the cost among the different types of work done on the gate, finding that the damage from the Hershey collision accounted for only 20.3% of the work and, therefore, the Company was liable for $13,345.96 of the pulling and replacing cost, its proportionate share. The cost of actually repairing the damage from the Hershey collision, $34,795.67, is not an issue on appeal.

After the District Court entered its judgment awarding the United States $50,-641.63 with prejudgment interest, the Company moved the Court to amend its judgment. On October 16, 1989, the Company had made an offer of judgment of $80,-000.00 plus accrued costs to the United States, pursuant to Rule 68 of the Federal Rules of Civil Procedure, which the United States rejected. When the Company called these and other facts to the Court’s attention, the Court amended its judgment to reflect the United States’ obligation to pay the Company’s costs incurred after the date of the offer. The Court also amended its judgment to deny the United States prejudgment interest after October 16, 1989. This denial of prejudgment interest is the second issue on appeal.

II.

The United States argues that the entire cost of removing and replacing the damaged gate should be charged to the Company. In support of this proposition, the United States cites Bouchard Transportation Co. v. The Tug OCEAN PRINCE, 691 F.2d 609 (2d Cir.1982). The Company says this cost was properly divided by the District Court and also cites Bouchard. Neither party cites any decision of this Court which bears on this issue, but both agree that drydocking cases, such as Bouchard, provide a useful analogy. We agree.

In Bouchard a barge was damaged when it coasted into the tug that was towing it, the Ocean Prince. The owners of the barge immediately sent it to be “gas-freed” — “a prerequisite to the performance of welding and other repairs.” Id. at 610. The barge was then put in drydock, where the collision damage was repaired, along with other work which was originally scheduled to be done in drydock two months later, called “owner’s work.” Id. at 610-11.

The Second Circuit held that because the damage to the barge from the collision with the Ocean Prince required immediate repair, the owners of the Ocean Prince were liable for the cost of gasfreeing the barge “to the extent that it was necessary to repair the collision damage.” Id. at 615. That court also allowed Bouchard to charge the tug owners for that portion of the drydock time used to repair the collision damage. Id. at 614.

The United States urges us to consider the cost of pulling and replacing the damaged miter gate to be like the cost of gasfreeing Bouchard’s barge. It claims that the test for deciding whether or not it can charge the whole cost to the Company is whether the pull and replacement was done as part of a regular maintenance schedule, not caused by the collision. If not, then the Company would bear the full cost. The Company argues that the correct test, as applied in Bouchard, is wheth[863]*863er the collision damage required immediate repair. If so, and if removing the gate from the lock was necessary to make those repairs, then the Company bears the full cost.

We have carefully studied the Bouchard opinion, and considered the other Second Circuit cases discussed in the opinion. The Second Circuit is the locus of a great deal more admiralty litigation than this Circuit, and we view that Court’s opinions with special respect. In addition, Judge Leval’s opinion in Bouchard is both closely analyzed and lucid. We find it persuasive. Our reading of Bouchard supports the company’s position in the present appeal. The key passage in the opinion reads as follows:

The difficulty here attaches to losses and costs that are commonly attributable both to the repair of the tort damage and to owner’s work. As to such jointly caused ... losses, the owner’s entitlement to damages has been held to turn on whether or not the collision damage required immediate repair, taking out of service a vessel [here, a gate] which otherwise would have been in service....

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988 F.2d 860, 25 Fed. R. Serv. 3d 677, 1993 U.S. App. LEXIS 5547, 1993 WL 79308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-american-commercial-barge-line-co-ca8-1993.