[30ASR2d131]
v.
M/V FOTU O SAMOA, ITS CARGO,
GEAR, TACKLE, AND APPURTENANCES, and WESTERN SAMOA SHIPPING CORPORATION,
Defendants
High Court of
Trial Division
CA No. 24-95
[1] When a
moving vessel strikes an anchored vessel, a presumption of negligence on the
part of the moving vessel arises. This
presumption is even stronger where the moving vessel lurches onto the shore and
strikes a dry-docked vessel.
[2] Persons
engaged in the business of navigation are bound to see that the vessel is
seaworthy, well manned, and equipped for the business in which it is engaged,
and whenever a collision ensues from the defective condition or unfitness of
the colliding vessel for the voyage, the vessel and the owner are liable.
[3] Where a
company is aware that fraying is going to occur in a vessel’s throttle cables,
resulting in navigational difficulties and possible collisions, the failure to
take steps to prevent such an occurrence may be grossly negligent, reckless or
willful. However, in order to so find,
the court requires evidence of the standard of care in the industry, the number
of accidents that occur in the same type of situation, the cost of replacement
of faulty parts, etc.
[4] Damages
in vessel collision cases are estimated in the same manner as in other suits of
like nature for injuries to personal property.
The award should include all losses proximately resulting from the
collision, the general rule being that the owner of the vessel is to be placed
in the same position he would have occupied had the disaster not occurred. Although the injured party may be entitled to
full indemnity, the respondents are not, as a rule, liable for such damages as
might have been reasonably avoided by the exercise of ordinary skill and
diligence, after the collision on the part of those in charge of the injured
ship.
[5] Where
repairs are practicable, the measure of damages is the cost of restoring the
injured vessel to the condition in which it was at the time of the collision.
[6] The court is not
required to assess damages with mathematical precision, though it must strive
to be as accurate as possible.
[7] The court must
sometimes make damage determinations in areas that require more than layman’s
skill. In doing so, the court may make
judgments on the veracity of experts’ statements, such as whether the expert
inflated figures.
Before KRUSE, Chief Justice, LOGOAI, Associate
Judge, and SAGAPOLUTELE, Associate Judge.
Counsel: For Plaintiffs, Charles V. Ala`ilima
For Defendants, Ellen A.
Ryan
Opinion and Order:[30ASR2d132]
This case is relatively straightforward, both as to
the facts and the law. On
Liability in this case is not really an issue. The Fotu
o
[1-3] When a moving vessel strikes
an anchored vessel, a presumption of negligence on the part of the moving
vessel arises. 70 Am. Jur. 2d Shipping
§ 654 (1987). This presumption is
even stronger where the moving vessel lurches onto the shore and strikes a
dry-docked vessel. Furthermore,
[p]ersons
engaged in the business of navigation are bound to see that the vessel is
seaworthy, well manned, and equipped for the business in which it is engaged,
and whenever a collision ensues from the defective condition or unfitness of
the colliding vessel for the voyage, . . . the vessel and the owner are liable.
[4-5] Having disposed of the
question of negligence, the primary debate in this case centered around the
measure of damages:
Damages in collision cases
are estimated in the same manner as in other suits of like nature for injuries
to personal property. The award should
include all losses proximately resulting from the collision, the general rule
being that the owner of the vessel is to be placed in the same position he
would have occupied had the disaster not occurred. Although the injured party may be entitled to
full indemnity, the respondents are not, as a rule, liable for such damages as
might have been reasonably avoided by the exercise of ordinary skill and
diligence, after the collision on the part of those in charge of the injured
ship.
Where repairs are
practicable, the measure of damages is the cost of restoring the injured vessel
to the condition in which it was at the time of the collision . . . .
We have a plethora of estimates for the repair of the boat
and other damages before us. First, we
have the preliminary claim sent by Mr. Rizzo to Western Samoa Shipping about
two weeks after the accident. The total
estimate is $45,985, broken down as follows:
Materials to repair
boat: $
9,935
Labor to repair boat: $
30,250 (605 hours at $ 50/ hour)2
Labor & crane to
relocate boat: $ 800
Shelter: $
5,000
Other personal property: n/a
Second, we have a damage
assessment prepared by Mr. Rizzo, apparently around November or December
1995. This report is structured much the
same as the first Rizzo report, but does not list all of the materials listed
in the first report. Some of the prices
have also been changed, mostly lowered.
The labor estimates are all greatly reduced. The total estimate equals $39,642. This report gives the following figures:
Materials to repair
boat: $
5,782
Labor to repair boat: $
19,750 (395 hours at $ 50/ hour)
Labor & crane rental to
relocate boat: $ 800
New shelter: $ 2,500
Other personal
property: $ 10,810
Mr. Rizzo appears to know
more about composite materials and composite construction than any other
witness. Unfortunately, he is an
interested party, and his ability to function as an expert witness is
questionable. We assume that the first
estimate is higher than the second because it constituted an "offer"
to the defendants to settle the case.3
Third, we have an estimate
prepared at the request of the Rizzos by Lewis Tung and Lawrence Goodson.
Mr. Tung, who testified at trial, has
extensive experience with composite materials and construction. Unfortunately, he has limited experience with
marine surveying and is not a licensed surveyor. The Tung/Goodson
report's material estimates match the first Rizzo report almost exactly. Their labor estimates are even higher than
that of the first Rizzo report. The Tung/Goodson’s report provides a total damage estimate of
$61,585:
Materials to repair
boat: $
9,9254
Labor to repair boat: $
37,500 (750 hours at $ 50/ hour)
Labor & crane rental to
relocate boat: n/a
New shelter: n/a
Other personal
property: $ 14,160
This report seems to be
largely a copy of the first Rizzo report, which is of questionable value, as
discussed above.
Fourth, we have a report
prepared by Michael Spencer of Westside Shipping at the Rizzo's request. This report is very brief, and is not broken
down into components like the others. We
have numerous problems with this report, and question its impartiality. Among other things, the report is of hearsay
value and there is a possible conflict of interest for Westside Shipping. This report makes no mention of composite
materials or construction. The total
estimate is $12,895. It contains the following
partial estimates:
Materials to repair
boat: $
2,725
Labor to repair boat: $
9,520 (272 hours at $ 35/ hour)
Labor & crane rental to
relocate boat: n/a
New shelter: n/a
Other personal property: n/a
Outside labor: $
750
Fifth, we have a report
prepared by Wickham Marine at the request of the
defendants. Mr. Wickham
has a great deal of experience in marine surveying, but very little experience
with composite materials. His report
contradicts the other reports by stating that there is little or no composite
construction and that the boat contains foam, which it does not. His labor factor does not reflect the local
market and he does not include estimates for composite materials. For these reasons, we attribute little value
to his report. He gives a total estimate
range of $7,304.37 to $8,612. The higher
amount is broken down as follows:
Materials to repair
boat: $3,482
Labor to repair boat: $5,940 (270 hours at $22/hour)
Labor & crane rental to
relocate boat: $400
New shelter: n/a
Other personal
property: n/a
Sixth, we have a report
prepared by Maselino Ioane
at the request of the defendants. Ioane is a shipbuilder currently residing in American Samoa
with considerable boat building experience.
However, his experience with composites seemed to be very limited, and
the epoxies listed in his report do not seem to be suitable matches for the composites
he listed. According to his own
testimony, he spent a very short time examining the boat. Ioane [30ASR2d137]
was not a convincing expert witness. Of
considerable note to us, however, is the fact that Ioane
lists his labor rate at $50/hour, the same as Rizzo's. Ioane's total
estimated price is $8,550, parsed as follows:
Materials to repair
boat: $4,100
Labor to repair boat: $4,750
(95 hours at $50/hour)
Labor & crane rental to
relocate boat: n/a
New shelter: n/a
Other personal
property: n/a
Thus we have six estimates supposedly prepared by
six expert witnesses.5
Of these six, the most experienced expert in the type of composite
construction with which we are dealing is Mr. Rizzo. He is, however, a party to this action and
his testimony is, therefore, troublesome.6 The second most competent witness in the
field of composite construction, Mr. Tung, is not a
certified surveyor, and seems to have primarily parroted one of Rizzo's reports.7 The Ioane, Wickham, and Spencer reports are simply inapplicable--they
deal with the wrong materials and construction techniques for this boat, and
thus are of little help in assessing damages.
[6] We are not required to
assess damages with mathematical precision, though we strive to be as accurate
as possible. See Cunningham v.
City of Overland, 804 F.2d 1066, 1070 (8th Cir. 1986). In striving to come to an accurate
determination of damages to the boat, we feel we must also discuss the damage
estimates for the personal property.[30ASR2d138]
The Rizzos have submitted a list
of 21 personal property items for which they are seeking compensation.8 The prices on this list seem highly inflated
to us. For instance, they have valued
their 1972 Ford van at $2,500. There was
extensive testimony, however, as to the dilapidated condition of this van. It is questionable whether it even ran before
the accident. From our examination of
the photographic exhibits and testimony, we believe its value to be closer to
$200 - $300. They value a damaged
container at $1,000, the price that they paid for it. From our assessment of the evidence, there is
little or no damage to this container.
Furniture damage was estimated at $1,500, a price that we find far too
high. In all, we believe that the nearly
$11,000 personal property claim made by the Rizzos is
probably worth about $2,000 - $3,000.
[7] We have more skill, as
laymen, in assessing the value of the Rizzos'
personal property than we do in assessing the damage to a high-tech sailing
vessel. While Mr. Rizzo was the most
convincing expert regarding this type of construction, we are left with doubt
about his veracity in making estimates for the boat's repair. While we do not think that he inflated the
boat repair estimates as much as those for the personal property, we are
convinced that there was some inflation.
Troubling to us is the fact that the Rizzos
submitted no supporting receipts whatsoever.
According to Mr. Rizzo's testimony, the damage suffered by the Curved
Air in the collision is very similar to damage suffered by the boat during
Hurricane Ofa.
He has been repairing that damage for the past few years, yet he
produced no receipts for the materials he purchased, and no estimates of the
time he spent in making these repairs.
He did not even produce a receipt for the crane, which he has already
rented to relocate the vessel.
Additionally, Mr. Rizzo has consistently priced all
labor at the rate he charges for shipbuilding and repair--$50 per hour. This price was confirmed by Ioane as a fair price for shipbuilding by someone of Mr.
Rizzo's experience. However, this does
not make it a fair rate for such things as clean up or relocating a ship. Even if Mr. Rizzo does this work himself, and
even if he could prove, which he has not, that he is missing time from
shipbuilding that would otherwise be compensated, he does not receive a
shipbuilder's salary for work that is not shipbuilding.
Having said all of this, we believe the most
accurate basis for estimating damages to be Mr. Rizzo's second report, estimating
ship repair costs at $5,782 for materials, $19,750 for labor, and $800 for
relocation--a total of [30ASR2d139] $26,332.
For the reasons listed above, we believe this estimate is inflated, and
thus award $22,000 in total for ship repair.
We award an additional $3,000 for other property damage including the
claimed damage to the shelter.
Judgment will accordingly enter in favor of the
plaintiffs and against the defendants in the amount of $25,000.
It is so ordered.
*********
1 Where a company is aware that fraying such as this is going to occur, resulting in navigational difficulties and possible collisions, the failure to take steps to prevent such an occurrence seems to us to be grossly negligent, reckless or willful. However, in order to so find, we require evidence of the standard of care in the industry, the number of accidents which occur from throttle cables fraying, the cost of replacement, etc. The Rizzos have presented no such evidence, and thus we cannot find gross negligence or more.[30ASR2d135]
2 This report only includes labor times, without an hourly rate. We have assumed a $50 per hour rate for Mr. Rizzo's labor.
3 We are aware that parties to a lawsuit often inflate estimates when communicating to achieve a better "bargaining position."[30ASR2d136]
4 We have not corrected the mathematical errors in this report, but have simply totaled the material subtotals provided.
5 Two of the reports were prepared by Mr. Rizzo, while one was prepared by two people--Tung and Goodson.
6 We
have further reason to believe that the Rizzos may
have inflated the estimate for the boat repair because their other estimate for
personal property damage is substantially inflated. See infra.
7 The defendants went to great length at trial to show how the Tung/Goodson report was similar to the preliminary report sent by Rizzo to Western Samoa Shipping. We note that the two reports are not identical, but are similar. This does not, however, mean either that there was collusion or that the reports have no value. It is quite likely that Tung and Goodson, the only experts besides Rizzo who seem competent to assess damages to composite construction, could have substantially agreed with Mr. Rizzo's assessment and provided the same or similar numbers. This is particularly true where we are dealing with materials which only have one or a very few suppliers, and where there is only one competent builder in the territory, meaning that prices are fixed.
8 Calling this list "personal property" is not wholly accurate, since it also includes labor for clean up.