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UNITED STATES v. PEAVEY BARGE LINE

January 9, 1984

UNITED STATES OF AMERICA, PLAINTIFF,
v.
PEAVEY BARGE LINE, IN PERSONAM, AND THE M/V GREMCO, BARGE PV 5985, BARGE PV 5996, BARGE PV 5978, BARGE ABS 1448, BARGE UMC 2464, BARGE PV 5903, BARGE PV 2926, BARGE PV 2923, AND BARGE PV 5997, THEIR APPURTENANCES, ETC., IN REM, DEFENDANTS.



The opinion of the court was delivered by: Robert D. Morgan, District Judge.

DECISION AND ORDER

This cause is pending for decision following a bench trial limited to the issue of allowable damages.

At all times pertinent to this cause, the United States owned Lock and Dam No. 15, located in the Mississippi River, at Rock Island, Illinois, and the Rock Island Arsenal Bridge, which is situated closely adjacent to, and upstream from, the dam. On July 15, 1978, the M/V Gremco, operated by defendant,*fn1 towing nine loaded barges, was moving downstream, approaching the dam from a northerly direction. As the tow approached the dam, one of the barges struck the upper end of a guide wall leading to the lock. The barges broke loose as a result of that impact. Some collided with the miter gates in the lock, inflicting substantial damage to the gates. Others floated downstream colliding, first, with sections of the bridge and, second, with the roller gates in the dam.

The substantial damage sustained by each the guide wall, the miter gates, and the bridge has now been repaired. The roller gates had not been repaired at the time of trial, and the only evidence as to the amount of damages sustained is an original estimate by the Rock Island District of the Corps of Engineers, of $12,627, if repairs were made by the Corps.

A summary judgment was entered on December 28, 1982, for the United States and against defendant on the issue of liability. The issue of liability having been determined adversely to defendant on both counts of the complaint, no comment upon the theories of complaint is necessary. It is noted that 33 U.S.C. § 408 imposes absolute liability for the damages done to the dam, which is a facility built by the United States for the preservation and improvement of navigable waters of the United States, while liability for damages done to the bridge is predicated upon a negligence theory.*fn2

Defendant concedes that it is liable to the United States in the amount of $237,701, whereas the United States claims total damages in the amount of $430,929.82, plus prejudgment interest. Defendant contests the reasonableness of charges stated for repairs made to the miter gates, the guide wall and the bridge. It also contests certain overhead items which enter into the computation by the United States, and to the imposition of prejudgment interest.

Repairs to the Miter Gates

The repairs to the miter gates were done by the Corps.*fn3 Temporary repairs were begun on July 31, 1978. The work was completed by April 27, 1979. There was no solicitation for bids from outside contractors. The gates had originally been constructed by riveting shortly after 1930. Because of variations in carbon in the original steel, as compared to modern steel, and variations in thickness of steel, the Corps had, since the advent of what is termed the huck fastener in the late 1960's, used the huck fastener method of repairing all riveted miter gates. The evidence tends to indicate that few, if any, general contractors have the equipment which huck fastening entails, or experience in its use. Repair to the miter gates required that the gates be removed from the lock onto repair barges, the same being replaced in the interim by temporary replacement gates.*fn4 The huck fastener is a modern version of the rivet. Its use entailed the removal of damaged steel from the gate, the punching of corresponding holes in the original steel, the new steel and appropriate fastening plates to accommodate the huck fasteners. The installation of the fasteners through those corresponding holes required a two-man crew. A total of 9,432 man-hours were expended in making the repairs to the gates, including their removal from and reintroduction into the lock complex. The cost figure claimed by the United States for that repair totalled $232,024.57.

Defendant attacks the method of repair used by the Corps as rendering the repair costs claimed unreasonable. It also challenges the inclusion in the computation of certain claimed items of expense related principally to claimed overhead items.

Defendant's major challenge to the charges stated for repair of the miter gates is fairly summarized by its contention that welding, in lieu of the huck method, presents a more efficient method of repair. However, the evidence upon which it relies has no considerable tendency to sustain its position. A marine surveyor did testify that the upper Mississippi, specifically the Rock Island, St. Louis and St. Paul Districts of the Corps, is the only area in which huck fastening is widely used. He fortified his opinion in favor of welding over huck fastening by his reference to gate repairs made at various points on the Ohio River, at Lock 26 in the St. Louis District, and repairs done in 1982 on the gates at Lock 9 by a private contractor in the St. Paul District. Yet there was a woeful lack of specificity in his testimony related to the type of fabrication of the original gates being repaired, or the age of the gates, by comparison to the gates at Lock 15. The one exception is the Lock 9 gates, which are shown to be about the same age as those at Lock 15 and to have been originally fabricated by riveting. Repairs to those gates were made by the welding process. The one positive statement found in the evidence, related to the other incidents cited, is the rebuttal testimony of a Rock Island employee that the Lock 26 gates had been originally fabricated by welding.*fn5 Thus the Lock 9 repair is the only certain instance reflected in the evidence in which repairs to the 1930's riveted gate were done by the welding method.

Also, the evidence as to comparative cost effectiveness of welding over huck fastening upon riveted gates is far short of convincing. Defendant's expert witness, Dr. Gomez, who was the consulting engineer on the Lock 9 repairs, estimated that that repair had entailed the use of more than 60,000 pounds of steel, as opposed to slightly more than 50,000 pounds billed by the Corps on Lock 15. Although he did not have complete cost figures for Lock 9, he estimated that those repairs had a total cost figure in the range of $310,000, which included a consulting fee paid to his firm in the amount of $150,000. He did admit that not all steel can be welded, and that welding of the type steel used in both Lock 9 and Lock 15 requires extensive chemical analysis and radiological analysis to determine whether welding could be used as a proper method of repair. Rock Island had done some of the work on Lock 9. Its charges were not included in Dr. Gomez's estimate of total cost.

Samuel Doak, a structural engineer, who is chief of the design branch at Rock Island, testified on rebuttal, subject to an objection by the defendant.*fn6 He testified that the Lock 15 gates were fabricated from A-7 steel which was manufactured without quality controls adequate to achieve a uniform carbon content. He testified that some A-7 steel is weldable while other steel of the same genre is not, and that it is entirely possible in a single gate to encounter some steel which is weldable and some which is not. Analysis of each section of steel is thus necessary to determine whether or not it can be welded. Before testifying, Mr. Doak had examined defendant's Exhibit 1, an engineering appraisal prepared by Dr. Gomez's organization, which concluded that it would have been practical and feasible to have repaired the Lock 15 gates by the welding method. Doak testified that material references in that appraisal are limited entirely to A-36 steel which was first fabricated in about 1960. He found no reference whatsoever to A-7 steel as the material treated in that appraisal.*fn7

The evidence does not admit of any intelligible cost comparison between the repairs to the Lock 9 gates and the repairs to the Lock 15 gates, although it does include positive testimony as to certain specific costs incurred in the Lock 9 incident which refute Dr. Gomez's estimate of total cost. Dr. Gomez's firm was paid $150,000 in consulting engineers fees. A Rock Island official testified in rebuttal that his district had been paid $190,000 by St. Paul for services which it had rendered to the Lock 9 project. Clearly, those two items alone exceed the $310,000 estimate of total costs to which Dr. Gomez testified. The same rebuttal witness testified that the most recent figures which he had seen, as compiled by St. Paul, reflected a total repair cost in excess of $600,000 for the Lock 9 repairs.

Not only does the total comparative evidence have no tendency to refute the reasonableness of the basic charges for the Lock 15 gate repairs, but it also must be recognized that the owner of damaged property does have discretion to choose the repair method which is deemed by him best suited to the restoration of his property to its predamaged state. Midwest Marine, Inc. v. Sturgeon Bay Shipbuilding and Dry Dock Co., 247 F. Supp. 283, 289-90 (E.D.Wis. 1965). A damage claim is supported by proof that the repairs made, by whatever method repairs were ...


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