damaged by vessels passing under the bridge.
Plaintiff had the damage to the south sheer fence repaired, and
it brought this action to recover the cost of the repairs from
defendant. The case was heard under the court's maritime
jurisdiction. 46 U.S.C. § 740; 28 U.S.C. § 1333(a).
There is little doubt that defendant was negligent. When a
moving vessel, such as the Chicago Trader, strikes a stationary
object, such as plaintiff's protective fence, an inference of
negligence arises, and the vessel has the burden of establishing
that it was free from fault. The Oregon, 158 U.S. 186, 15 S. Ct.
804, 39 L.Ed. 943 (1894); Brown & Root Marine Operators, Inc. v.
Zapata Off-Shore Co., 377 F.2d 724 (5th Cir. 1967); Dibble v.
United States, 295 F. Supp. 669 (N.D.Ill. 1968). Not only did
defendant not rebut this presumption, but negligence in the
operation of the Chicago Trader was proved affirmatively. The
weather on the afternoon of May 28, 1968, was good. The pilot of
the Chicago Trader had navigated through plaintiff's bridge at
least twenty times in the past. Defendant's vessel was pushing a
total of eight tugs, each 35 feet wide and 195 feet long. They
were arranged three abreast in the first two rows, and two
abreast in the back row. Thus the tow was at least 105 feet wide
and 585 feet long, not counting defendant's vessel. The bridge
draw was 113.6 feet, leaving a clearance of only 4.3 feet on each
side of the tow. These facts, plus the pilot's admission in a
subsequent accident report that his error was responsible for the
collision, establish affirmatively that defendant was negligent.
The major issues in this case relate to the proper measure of
damages. Defendant contends that plaintiff failed in its duty to
mitigate damages. After the Chicago Trader collided with
plaintiff's protective fence, plaintiff asked for bids on the
repair work from two companies, Fitz Simons and Connel and John
D. Simpson Company. The Simpson bid was approximately $7000
higher than the Fitz Simons and Connel bid. However, Simpson
assured plaintiff that it could begin the repair work
immediately, while Fitz Simons and Connel stated that it could
not begin work for three months. As a result, plaintiff accepted
the higher Simpson bid, and the repair work was completed within
approximately one month. Defendant now argues that by accepting
the higher bid, plaintiff failed to mitigate its damages.
It is well settled that a party who is injured by the negligent
act of another is required to exercise reasonable care to
minimize the resulting damage, and to the extent that damage is
the result of a failure to exercise such reasonable care, the
injured party cannot recover. Industrial Sugars, Inc. v. Standard
Accident Insurance Co., 338 F.2d 673 (7th Cir. 1964); Ellerman
Lines, Ltd. v. President Harding, 288 F.2d 288 (2d Cir. 1961).
The facts clearly show that plaintiff exercised reasonable care
to minimize its damages. Had plaintiff accepted the lower bid and
then waited three months for repair work to begin on the south
sheer fence, the safety of the bridge would have been
jeopardized. The pilings and bracings, which were only about six
feet from the bridge support, had been badly damaged by the
Chicago Trader. If plaintiff had delayed in having the bridge
repaired, and if the south sheer fence had again been struck by
a passing vessel, the bridge might well have been knocked into
the river, thus blocking river traffic completely at that point.
In accepting the Simpson bid to repair the damaged fence
immediately, plaintiff exercised reasonable care to minimize its
Another issue is whether plaintiff's damages should be reduced
to allow for the fact that its fence, depreciated in value prior
to the collision, was restored to substantially new condition by
the repair work. Plaintiff relies on the rule of restitutio in
integrum, which denies a depreciation deduction for damage done
to vessels. See The Baltimore, 75 U.S. (8 Wall.) 377,
19 L.Ed. 463 (1869). Plaintiff argues that the rule which denies
a depreciation allowance for damage done to vessels has been
extended to deny a similar allowance for damage to a structure on
land, when struck by a vessel in navigable water.
Plaintiff relies on 46 U.S.C. § 740 (1948) to support its
argument. That statute extends admiralty jurisdiction to injuries
which are done or consummated on land by a vessel on navigable
water. While admittedly extending admiralty jurisdiction, the
statute does not purport to change the substantive rules of law
relating to damages and depreciation. It merely permits federal
courts, in their admiralty jurisdiction, to hear cases which were
formerly not within the admiralty jurisdiction. See G. Gilmore
and C. Black, The Law of Admiralty, § 7-17 (1957). The
traditional rule with respect to damage done to land-based
objects by vessels on navigable water, and the rule which applies
in this case, is that an allowance is made for depreciation of
the damaged object at the time of the collision. Oakdene Compress
and Warehouse Co. v. S/S Cities Service Norfolk, 242 F. Supp. 148
(E.D.S.C. 1965); Patterson Terminals, Inc. v. S.S. Johannes
Frans, 209 F. Supp. 705 (E.D.Pa. 1962).
At trial, the useful life of the south sheer fence was
variously estimated as between twenty and thirty-five years. Most
of the parts of the fence damaged by the Chicago Trader had been
replaced within six years prior to the collision, hence the fence
was substantially new. Substantial repairs were done on the
timbers and pilings in 1962 and again in 1965. Numerous back
whalers and back braces behind the fence were replaced in 1966.
Considering these factors, and considering that it was common for
tows navigating through plaintiff's bridge to rub up against the
south sheer fence and add to its wear and tear, I find that
plaintiff's fence had depreciated 20 per cent at the time of the
collision. Plaintiff is entitled to 80 per cent of the cost of
repairs ($23,100), or $18,480.
The final issue relates to the award of interest. In cases of
this sort, the court will generally allow the plaintiff interest
from the date of the collision. Harris v. Sabine Transportation
Co., 202 F.2d 537 (5th Cir. 1953). There is no reason to deviate
from this practice here. Defendant argues that the case of
Patterson Terminals, Inc. v. S.S. Johannes Frans, supra, is
controlling, in which the court refused to award plaintiff
interest. However, the court's refusal was predicated upon the
fact that plaintiff, after repairing a damaged caisson, enjoyed
one which was bigger and more stable, and which had a larger
capacity than the old caisson. Patterson Terminals, Inc. v. S.S.
Johannes Frans, supra 209 F. Supp. at 710. Here, however,
plaintiff's repaired fence was precisely the same size as the old
one. Plaintiff claimed no more than its actual loss occasioned by
the collision with defendant's vessel. See Samincorp. v. S.S.
Rivadeluna, 277 F. Supp. 943 (D.Del. 1967).
For the foregoing reasons, judgment will be entered for
plaintiff in the sum of $18,480, plus interest from May 28, 1968.
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