1 A/S Dampskibsselskabet Svendborg is the owner of the M/V SVENDBORG MAERSK;

A.P. Moller is the operator of that vessel. United States Court of Appeals,

Fifth Circuit.

No. 92-9526

Summary Calendar.

In Re In the Matter of M/V NICOLE TRAHAN, Gulfgate Marine Transportation Company, Inc.,

as Owner of M/V Nicole Trahan for Exoneration From or Limitation of Liability.

GULFGATE MARINE TRANSPORTATION COMPANY, INC., as Owner of M/V NICOLE

TRAHAN and Gulfgate Shipyard, Inc., Appellants-Cross-Appellees,

v.

A/S DAMPSKIBSSELSKABET SVENDBORG, et al., Claimants-Appellees-Cross-Appellants.

Jan. 12, 1994.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before JOLLY, WIENER, and EMILIO M. GARZA, Circuit Judges.

WIENER, Circuit Judge:

Plaint iffs in Limitation-Appellants/Cross-Appellees Gulfgate Marine Transportati on Co. and

Gulfgate Shipyard, Inc. (collectively, Gulfgate) appeal the district court's award of $144,909.86 in

detention damages to Claimants-Appellees/Cross-Appellants A/S Dampsk ibsselskabet Svendborg and

A.P. Moller 1 (collectively, Svendborg), asserting that Svendborg has not shown that repair-related

delays after a casualty suffered by the M/V SVENDBORG MAERSK (the vessel) caused Svendborg

to lose prof

it s. Svendborg cross-appeals the district court's finding that $5,090 in travel expenses

incurred by Svendborg's n aval architect to conduct a s econd inspection of the vessel were not

necessary expenses. Svendborg also cross-appeals the district court's award of prejudgment interest

at the legal rate established under federal law (28 U.S.C. § 1961), rather than the rate specified by

state law (La.Civil Code art. 2924). Finding no reversible error, we affirm.

I

FACTS AND PROCEEDINGS2 These facts are based on express findings by the district court, which, except for the finding

that the vessel was continuously employed, Gulfgate does not contest on appeal.

3 Under a voyage charter, a tanker is paid by the voyage rather than for its time, i.e., paid a sum

certain in consideration for carrying a metric ton of freight to its destination port. Such a charter

requires the shipowner to defray all operating expenses of the journey. Atlantic Richfield Co. v.

Good Hope Refineries, Inc., 604 F.2d 865, 871 (5th Cir.1979). Costs of travel between charters,

or "deadheading," are automatically (and properly) deducted from gross profits, as that travel time

is considered part of the voyage. See Nathaniel Shipping, Inc. v. General Electric Co., 920 F.2d

1256, 1267-68 (5th Cir.1991). A back-haul charter carries cargo to the U.S. and earns

substantially less per metric ton of freight than a front-haul charter, which carries cargo from the

U.S. to forei gn ports.

4 Gulfgate's Tugs, MICHEL TRAHAN and NICOLE TRAHAN, had pushed their tow of three

barges into the bank because of the fog. One barge broke loose, and one or both of the barges

remaining in the flotilla drifted away from the bank and collided with the vessel. The vessel is a liquefied petroleum gas tanker operating in th e "spot m arket" on a

catch-as-catch-can basis. During 1989, t he Danish-flagged vessel was never idle and was

continuously engaged in trade in a strong, ready market for its services 2 under voyage charters—as

opposed to time charters—to carry cargo from Europe to the United States and to the Far East and

ba ck again. 3 Svendborg usually negotiates the vessel's next charter and its commencement date

during t he course of the then-current charter. Every voyage charter for the vessel contained a

commencement period of several days to allow for the vessel's arrival at port and commencement of

loading operations (laydays). The collision charter laydays were March 4-18 (the vessel was loaded

on March 11) and the subsequent charter had laydays of May 3-12 (the vessel arrived on May 2, and

was allowed to berth on May 3—the briefs on appeal do not indicate when the vessel was loaded).

On March 12, 1989, while fogbound on the Mississippi River and anchored along the shore,

the vessel was struck by Gulfgate's flot illa, 4 which caused a horizontal gash in the hull of the vessel

above the waterline and also caused internal damage in her engine room adjacent to the gash. At the

time, the vessel was operating under a front-haul charter (the collision charter). Cognizant officials

(a U.S. Coast Guard inspector; the staff surveyor from the vessel's Classification Society, Lloyd's

Register of Shipping; and an independent surveyor from Technical Maritime Associates, Inc.) told

Svendborg that it could effect temporary repairs and co nt inue on its way, on condition that

Svendborg permanently repair the vessel at the vessel's next regular dry docking (which was expected5 With this plan, Svendborg was able to carry out some repairs en route and minimize

down-time.

6 Of the 6.6 days for repairs, the vessel was delayed almost two days during the collision

charter for temporary repair.

7 L A .C IV .C ODE art. 2924. to occur in May 1990), but no later than September 1990.

Two naval architects inspected the collision damage and approved arrangements for necessary

repairs. One inspector was a naval architect who resided in New Orleans; the other inspector was

Svendborg's own

naval architect who was flown in from Europe, incurring $5,090 in travel and

inspection expenses (travel expenses). The vessel received temporary repairs in New Orleans, then

proceeded to Houston to pi ck up other cargo.

In Houston, the vessel was again inspected, this time by a U.S. Coast Guard inspector and

a Lloyd's staff surveyor, as a result of which the condition for permanent repair was changed. Under

the new condition, the vessel had to be repaired before its return to the U.S., by next dry docking and

by May 1989. Knowing that it had to repair the vessel before returning to the U.S. ona back-haul

charter, Svendborg decided to repair the vessel after unloading in the Far East. 5 Only subsequently

did the vessel negotiate the back-haul charter, choosing a commencement date of May 3, which

would allow the time between charters necessary to effect permanent repairs.

During the collision charter, Svendborg secured its next charter, a back-haul charter, and—to

illustrate the market in which the vessel was operating—even secured the following front-haul

charter. The vessel was able to complete the collision charter by its termination date and earned its

full freight. All necessary permanent repairs to the vessel were carried out between the termination

of the collision charter on April 24, 1989 and the commencement of the subsequent charter on May

3, 1989. The vessel was delayed 6.6 days for both temporary and permanent repairs, 6 but Svendborg

neither bypassed nor turned down any charter because of those repairs.

The district court awarded co st s of temporary and permanent repairs, detention damages,

pre-judgment interest at the legal rate established pursuant to state law 7 ; and post-judgment interest8 28 U.S.C. § 1961.

9 L A .C IV .C ODE art. 2924.

10 28 U.S.C. § 1961.

11 715 F.Supp. 738 (E.D.La.1989), aff'd, 904 F.2d 317 (5th Cir.), cert. denied, 498 U.S. 983,

111 S.Ct. 515, 112 L.Ed.2d 527 (1990). at the lower legal rate established under federal law. 8 The district court also awarded the travel

expenses of both naval architects, including $5,090 in travel expenses incurre d by Svendborg's

architect.

Gulfgate moved f

o r a new trial, which the district court granted in part and denied in part.

Gulfgate first argued that the district court's award of detention damages was erroneous, contending

that Sve ndbo rg sho uld not be compensated for 6.6 days of delay that did not translate into any

c o ncrete loss of income. The district court rejected this argument and reaffirmed its award of

detention damages.

Gulfgate also argued that the court erred in awarding $5,090 to compensate Svendborg for

the travel expenses incurred by Svendborg's naval architect. As Svendborg had hired a local naval

architect to inspect the vessel, Gulfgate reasoned, the travel expenses for Svendborg's own architect

to conduct a second inspection were unnecessary. The district court agreed with Gulfgate, amending

and reducing its judgment accordingly.

Gulfgate further argued that the court erred in selecting the Louisiana rate of pre-judgment

interest, 9 askin g instead that the court apply the lower federal rate. 1 0 Relying on P illsbury Co. v.

Midland Enterprises, Inc., 11 the district court again agreed with Gulfgate, and amended the judgment

to reflect the lower rate of prejudgment interest.

Not surprisingly, Gulfgate appeals the district court's award of detention damages, arguing

that detention damages should not have been awarded in this c ase wit hout specific proof of lost

profits. Svendborg cross-appeals the district court's eradication of $5,090 in travel expenses from

the judgment, and the court's award of prejudgment interest at the federal rather than the state rate.

II12

Mitsui O.S.K. Lines, K.K. v. Horton & Horton, Inc., 480 F.2d 1104, 1106 (5th Cir.1973).

13 747 F.2d 995, 1001 (5th Cir.1984). ANALYSIS

A. Detention Damages

Findings supporting a determination that an injured party is entitled to detention damages are

findings of fact and are thus reviewable for clear error. 12

Gulfgate argues that to be entitled to detention damages, Svendborg must prove lost profits

specific ally. Svendborg argues that it would have set the commencement date for the back-haul

(post-collision) charter earlier than May 3 if it had not been forced to effect permanent repairs to the

vessel. Gulfgate argues that the shippers on the back-haul voyage did not need or want the vessel

until May 3: when the vessel arrived at Oita, Japan on May 2, it had to wait until May 3 to berth.

Moreover, argues Gulfgate, Svendborg introduced no evidence that it bypassed or turned down any

charter beginning earlier than May 3—because none existed.

This is the heart of the appeal: the argument is that the vessel, operating solely on a voyage

charter basis, "tramping" from one job to the next, and being managed by owners who rema ined

active in the market, cannot claim a loss of revenue unless it is proved t hat t he vessel missed an

available voyage; and no proof of any such lost opportunity was presented at trial. As the vessel had

"lag time," claims Gulfgate, from April 24, 1989 to May 3, 1989, for which it could not earn profit

(even though the days were charged to the subsequent charter), Gulfgate urges that there has been

no "lost o ppo rtunity." Gulfgate basically asks this court to make vessels operating under voyage

charters, as distinguished from time charter s, prove lost profits by showing a specific lost

opportunity—a type of showing which, under Delta S.S. Lines, Inc. v. Avondale Shipyards, Inc., 13

this circuit has not heretofore required.

Avondale Shipyards states:

Loss of profit arising from a maritime casualty may be awarded as long as it is proved with

reasonable certainty. T

he CONQUEROR, 166 U.S. at 125, 17 S.Ct. at 516, 41 L.Ed. at 944.

This usually involves a showing in commercial cases that a vessel "has been engaged, or was capable of being engaged in a profitable commerce...." I d., 166 U.S. at 133, 17 S.Ct. at 519.

See also Skou v. United States, 478 F.2d 343, 344 (5th Cir.1973): "[M]ost clear, however,14 747 F.2d at 1001.

15 Mitsui O.S.K. Lines, 480 F.2d at 1106 (quoting The CONQUEROR, 166 U.S. 110, 127, 17

S.Ct. 510, 517, 41 L.Ed. 937, 945 (1897)). Gulfgate states this rule as dispositive of this case,

but does not inform this court that the "something more" required here is proof of a market for

the vessel's services, not specific proof of lost profits or a lost charter, as Gulfgate would

apparently have this court believe.

16 Skou v. United States, 478 F.2d 343, 345 (5th Cir.1973).

17 Id.

18 Id.

19 Gulfgate does not even half-heartedly contest these findings as clearly erroneous, but rather

simply argues that the time period between charters was lag time as Svendborg was not earning

revenue during that period. is the proof that MADS SKOU was in immediate demand, as were her sister ships, upon her

return to service. This demonstrates "that profits may be reasonably supposed to have been

lost because the vessel was active in a ready market.' " 14

So met hing mo re than the simple fact that the vessel was laid up for repairs must be shown 1 5

— a

market for the vessel must be shown. 16 Testimony that the voyages before and after the casualty to

the vessel were profitable, and that cargo was carried in between, is sufficient under Avondale

Shipyards. 17 The rationale for not requiring specific proof of lost profits is as follows:

To require the vessel owner to prove that specific cargos were not carried beca use of the

casualty would be unsound for several reasons. First, it would impose an onerous burden not

called fo r in t his type of case. Second, it would be a rejection of the time honored rule in

marit ime cases that a proper method of determining lost detention profits is to seek a fai r average based on a number of voyages before and after (citing N.D.Cal.1943 case). 18

Under Avondale Shipyards, the issue is whether profits may be reasonably supposed to have

been lost—i.e., whether in fact the second charter commencement date could have been negotiated

earlier had permanent repairs not been required. The answer is, in a word, yes. Even t ho ugh t he

vessel had earned all of its freight on the front-haul collision charter and the subsequent back-haul

charter, the vessel lost valuable time in a market ready for its services. (And time is money in such

a market.) The court found that the vessel's sailing toward the loading port on a new charter was part

of the voyage and part of the vessel's employment and thus was not "lag time" when a vessel is "idle

in port or puttering around aimlessly in search of work." 19 This is confirmed by the maritime practice

of deducting the expenses of a vessel under a voyage charter, incurred while sailing in ballast from20 See Skou v. United States, 478 F.2d 343, 346 (5th Cir.1973).

its last delivery port in one voyage to the first loading port in the next, from the vessel's gross profit.

The proof requi red by A vondale Shipyards has been made: profits may be reasonably

supposed to have been lost by Svendborg because the vessel was active in a m arket ready f or i ts

services. The question is whether we will require more, and find that A vondale Shipyards does not

apply: is this the type of case in which requiring a vessel owner to prove lost profits specifically

would not be an onerous burden?

Although Avondale Shipyards may easily be distinguished on its facts, the factual differences

between that case and this one do not mandate our application of a rule, contrary to A vondale

Shipyards, that would require specific proof of lost profits or a lost opportunity. In A vondale

Shipyards, it was considered onerous for a vessel out of commission for almost six months to prove

its lo st pro fit s. Although the vessel in the instant case was only "detained" 6.6 days, it is no less

difficult to prove lost profits or a lost charter. The verity of this statement is demonstrated by the

dearth of evidence in the record before us that the vessel lost an opportunity, or that the

commencement date could have been set earlier had Svendborg not had to make permanent repairs

to the vessel. After learning that the vessel had to be permanently repaired by May 1989, Svendborg

negotiated for a commencement date on the next charter that would allow time for such repair to be

completed. 20 Svendborg put the vessel off charter for 10 days knowing that the 10-day period would

have to suffice for travel and repair. We thus apply the rule in A vondale Shipyards that lost profits

do not have to be proven specifically: we do not penalize Svendborg for not going thro ugh t he

useless process of setting a load date, not meeting it, and then attempting to show detention damages

by that route.

Gulfgate also argues that Svendborg mitigated its damages by seeking permanent repair after

the termination of the collision charter, and thus cannot "contradict itself" by seeking compensation

for lost profits it never suffered. Svendborg did mitigate its damages, and does not seek damages for

freights it did not lose. As the district court specifically found, if Svendborg had permanently repaired

the vessel in New Orleans during the collision charter, the profits of the collision voyage would have21 Gulf Oil Corp. v. Panama Canal Co., 481 F.2d 561, 572 (5th Cir.1973); Reliable Transfer

Co. v. United States, 1973 A.M.C. 930, 933 (E.D.N.Y.1973). The party at fault bears the cost of

damage surveys like any other actual damages. Valley Tow ing v. S.S. AMERICAN WHEAT, 1981 been jeopardized. Permanent repair during the collision voyage would have required the vessel to

forego delivery to a third optional port of discharge in the Far East, and thus cost Svendborg $45,000

in additional gross freights.

Gulfgate misses the point when it argues that Svendborg' s mitigation of damages does not

now entitle it to detention damages. Although Svendborg mitigated its d etention damages as much

as possible under the circumstances, it could not completely avoid those damages. It could not have

reduced the amount of time necessary to effect repairs any more than it did, without suffering lost

freights as well. And we do not require Svendborg to suffer—in addition to repair delays—lost

freights on the collision charter (i.e., lost profits) just to show its entitlement to detention damages.

Such a rule would discourage mitigation of damages! Svendborg chose the most efficient route it

could: it avoided lost freight on both the collision charter and the subsequent charter by repairing the

vessel in the 10-day period that Svendborg created to encompass the repair time.

We find no error , and cert ainly not clear error, in the district court's award of detention

damages to Svendborg for the vessel's 6.6 days of repair-related delay caused by Gulfgate.

B. Travel Expenses

The district court init ially awarded $5,090 in travel expenses to Svendborg. In its Order and

Reasons granting Gulfgate's motion for new trial in part, the district court amended its judgment to

delete the $5,090 award of expenses for Svendborg's technical personnel to travel from Denmark to

New Orleans to survey the damage to the vessel. Noting that Svendborg had hired a local surveyor,

the court concluded that Svendborg had not established the need for a second survey and could not

recover the transportati on costs of its "unnamed owner's representative." Svendborg argues that the

court erred in denying this proven, reasonable expense that proximately resulted from the collision,

insisting that the damage to the high tech specialized vessel was significant, and that the services of

its naval architect were necessary to ensure a safe, cost-effective repair.

Substantively, travel expenses are recoverable as damages, 21 but the question is whether theA.M.C. 445, 451 (E.D.La.1979).

22 International Union Lines v. Interstate Tow ing Co., 1982 A.M.C. 2230 (E.D.La.1980).

23 In a bench trial, the assessment of damages is reviewed for clear error.

24 Gulfgate argues that abuse of discretion is the standard of review.

25 Reeled Tubing, Inc. v. M/V CHAD G, 794 F.2d 1026, 1029 (5th Cir.1986).

26 Evidence that interest rates were higher: The T-Bill rate at that time was 9.517, but in

November 1992 it was 3.76%; the Louisiana rate was 11.57 in 1989 and 9.007 in November

1992. costs incurred were necessary. Regardless o f the applicable standard of review, the "finding" that

these damages were not necessary, producing the concomitant reduction of the amount of judgment,

is neither clearly erroneous nor an abuse of discretion. Svendborg does not call the court's attention

to the fact that two inspections occurred, and cites no evidence in its brief as to why it was necessary

to have two inspectors survey the extent of damage. Svendborg does not introduce evidence that it

relied on the foreign inspector's advice over the local inspector's advice. Svendborg also cites no

authority that would allow recovery of travel expenses of two persons performing the same, duplicate

function. In fact, case law supports t he opposite position: owners are not entitled to recover the

costs of duplicate surveys. 22 Either under a clear error 2 3 or abuse of discretion 24 standard of review,

then, the district court did not err in amending its judgment to delete the award of $5,090 in travel

expenses.

C. Interest Rate

The district court chose the lower federal interest rate to apply to prejudgment interest (a

discretionary decision 25 ) because Svendborg had suffered no hardship without the interest monies.

Svendborg first argues that "hardship" is not to be considered by the court; and then asks that we

take notice that the commercial interest rate at the time of the collision (1989 26 )—which would have

applied had Svendborg had the money to invest—is much higher than the rate (on the date of final

judgment, November 30, 1992) chosen by the court. Therefore, Svendborg posits, selection of the

lower rate resulted in a gross inequity.27 715 F.Supp. 738 (E.D.La.1989), aff'd, 904 F.2d 317 (5th Cir.), cert. denied, 498 U.S. 983,

111 S.Ct. 515, 112 L.Ed.2d 527 (1990).

28 Reeled Tubing, Inc., 794 F.2d at 1029. The district court held specifically that Pillsbury Co. v. Midland Enterprises, Inc. 27 controls

the rate of prejudgment interest to be awarded. As there was no evidence that Svendborg borrowed

money, or was pre vent ed from paying off loans because of the casualty, and as the pertinent

facts—neither party was domiciled, i nco rpo rat ed, or had its principal place of business in

Louisiana—mitigated against applying the Louisiana rate, the district court awarded pr ejudgment

interest at the federal rate. In the court's view, the federal rate, tied to rates of investment return,

more accurately compensated Svendborg for the loss Svendborg has suffered.

We have upheld an award of prejudgment interest at a lower rate when no inequity has been

shown. 28 As Svendborg has not demonstrated inequity, we conclude that the district court did not

abuse its discretion in awarding prejudgment interest at the lower, federal rate.

III

CONCLUSION

For the foregoing reasons we find no error in the district court's award of $144,909.86 in

detention damages to Gulfgate. We agree with the district court's conclusion that travel costs

totalling $5,090 for a second naval archi t ect to conduct a second inspection were not necessary

expenses. And we find no abuse of discretion in the district court's award of prejudgment interest at

the legal rate established under 28 U.S.C. § 1961. The judgment of the district court is in all respects

AFFIRMED.