1 An allision occurs when a vessel strikes a stationary object. 2

Thomas J. Schoenbaum, Admiralty & Maritime Law § 14-2 (2d ed.

1994).

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1789

CITY OF CHICAGO,

Plaintiff-Appellee,

v.

M/V MORGAN, KINDRA LAKE TOWING, L.P.,

and KINDRA LAKE TOWING, INC.,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 CV 46—Samuel P. King, Judge (sitting by designation).

____________

ARGUED NOVEMBER 5, 2003—DECIDED JULY 9, 2004

____________

Before FLAUM, Chief Judge, and BAUER and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. The M/V Morgan, a tugboat

pushing four barges, allided1

 with the 95th Street Bridge in

Chicago, Illinois. The impact disabled the bridge, severing
2 No. 03-1789

2 The M/V Morgan is owned by Kindra Lake Towing, L.P.

References to the M/V Morgan encompass all relevant defendants.

3 A winch is a mechanical device used for drawing in and loosening a line.

eight of its ten electrical cables. A suit by the City followed.

The district court, applying the Oregon presumption of fault

against a moving vessel which strikes a stationary object,

The Oregon, 158 U.S. 186 (1895), found the M/V Morgan

presumptively at fault based on its negligent reaction to a

mechanical failure but also held the City partially liable for

the allision for failing to adequately protect the electrical

cables. The court determined that the parties were equally

liable and apportioned damages accordingly. The M/V

Morgan appeals, arguing that the district court erred in its

application of the Oregon rule and its apportionment of

damages. We find that the Oregon rule applies, the M/V

Morgan failed to exonerate itself from liability, and the

record supports the district court’s decision to apportion

damages equally. Therefore, we affirm.

I. BACKGROUND

On April 17, 1998, the M/V Morgan,2

 a 134-ton tugboat,

was pushing four barges, weighing approximately 5,000

tons, down the Calumet River in Chicago, Illinois, from the

Federal Marine Terminal to the Ceres Trans-Oceanic

Service Terminal, a trip which required passing under the

95th Street Bridge. During its voyage, the M/V Morgan’s

starboard winch3

 brake failed causing its crew to lose

control of the vessel and strike the western pier face of the

95th Street Bridge. The foremost barge struck the bridge at

an acute angle such that it entered a recessed slot which

housed the cables.

The 95th Street Bridge is managed and maintained by the

City of Chicago in trust for the general public. The bridge
No. 03-1789 3

4 A dolphin is a pile cluster, here composed of wood and steel,

placed near the draw of the bridge which protects the bridge’s

most vulnerable areas including its underwater substructure.

5 The fender system is comprised of long planks of wood, placed

along the face of the substructure of the bridge.

6 The United States Coast Guard files for the 95th Street Bridge

indicate that its original design plans from December 19, 1958,

contained fender-covers for the recessed slot. However, the permit

issued for the construction of the bridge did not include a fender

system.

7 A December 1994 report, prepared by one of the City’s outside consultants, recommended replacing the fender system.

However, the City’s Deputy Commissioner Chief Engineer of

the Department of Transportation, Bureau of Bridges, Stan

(continued...)

uses submarine electrical cables to control its mechanical

functions. The electrical cables run from the eastern pier

face of the bridge, 25 feet below the waterline, to its

western pier face. From its western pier face, the

cables travel above ground into a machine house, from

which the bridge operator controls the opening and closing

of the bridge. Though the full distance from the eastern to

the western side of the bridge is 206 feet, the navigable

waterway spans only 200 feet and the portion of the bridge

which houses the electrical cables on the western pier face

is outside of the navigable channel. To protect the superstructure of the bridge from common allisions, horizontal

rubbing, or incidental contact with vessels, the City installed protective dolphins4

 and fenders5 along the sides of

the bridge. The City attempted to protect the submarine

cables by placing them in a recessed slot; however, the cables remained exposed to river debris or vessels moving at

certain angles. Prior to 1994, the recessed slot was also

covered by a wooden fender.6

 However, upon the deterioration of the fender, the City chose not to replace it.7
4 No. 03-1789

7 (...continued)

Kaderbek, deemed replacement of the fender over the recessed

slot a low priority and focused on the dolphin system as the

bridge’s primary protective measure.

8 A cleat is a two-horned fitting used to secure a line.

9 The winch controls are located in the pilot house. Two buttons

control each winch. A green button drew in the line and a red

button released the line and also held it automatically in place.

The M/V Morgan’s crew included James Long, serving as

Captain, Brian Grzybowski, the deck engineer, and John

Kindra and Ryan Campbell, serving as deck hands. The

crew was inexperienced with the M/V Morgan. Captain

Long began his employ with Kindra Inc. two and one half

months prior to the accident, while Kindra and Campbell

had primarily served in an administrative capacity as office

staff. 

The four barges were tied two long and two abreast,

forming a square. The M/V Morgan was positioned behind

the barges, which allowed it to push the barges forward.

The barges and the boat were connected at three points.

First, the nose of the boat abutted the two rear barges at

the center point of the boat. This connection was maintained solely through contact rather than by an independent line. The second point of connection was a line which

ran from the winch located on the starboard (right) deck of

the vessel to the starboard cleat8

 on the rear-most barge.

Lastly, another line ran from the winch located on the port

(left) deck of the vessel to the port cleat on the rear-most

barge. The two winches on the M/V Morgan were approximately four feet high and controlled electrically.9

 When the

winch lines are taut, the M/V Morgan and barges form a

single body, and the vessel is deemed “facing up.” Winches

control the degree of tension on the lines and in turn control

the steering of the unit. Winch brakes also maintain the
No. 03-1789 5

10 The coaming is a raised frame around the deck of the vessel

used to keep out water.

tension on the line when the vessel’s motor is not powered.

Thus, if the starboard winch line is released, the vessel

turns left and if the port winch line is released, the vessel

turns right. 

To depart from the Federal Marine dock that morning,

Captain Long directed the crew to tighten the winch lines,

start the vessel’s motor and draw in the starboard winch

line to move the vessel right and away from the dock.

Captain Long then put the boat in reverse and slowly began

to back out of the dock. As the vessel proceeded, he noticed

that the rear of the M/V Morgan was too close to the dock.

In response, he put more slack in the starboard winch line

to force the rear of the vessel to move away from the dock.

After achieving a safe distance from the dock and down the

river, Captain Long tightened the starboard winch line

using the green button on the control panel to face up the

M/V Morgan. However, when he released the green button

controlling the starboard winch line, the starboard winch

brakes failed and the line began paying out (unwinding).

This caused the vessel to turn to port (left). The starboard

winch brake failure also meant that the Captain lost the

ability to steer the vessel to starboard (right). 

Captain Long responded to this unexpected mechanical

failure by contacting Grzybowski by radio and asking him

to send someone to the deck of the M/V Morgan to stop the

paying out of the starboard winch line. To reduce the forward momentum of the vessel, Captain Long put the engines in reverse. He also radioed the bridge and asked that

it be opened to prevent the vessel’s coaming10 from striking

the underside of the bridge. At this time, the vessel was

approximately 100 feet south of the bridge and favoring

port (gliding left). 
6 No. 03-1789

Kindra responded to Grzybowski’s request, although he

had to travel over 400 feet from the front end of the barges,

across the vessel, to the starboard winch. Captain Long

directed Kindra, by radio, to dog the starboard winch, which

prevents the winch line from unwinding, and also to put out

a fiber line from the center of the vessel to the center of the

barges. The fiber line alone would not have caused the M/V

Morgan to line up, but, both measures caused the vessel

and the barges to properly face up. By this time, the lead

barges were passing under the draw of the bridge.

While moving at approximately one mile per hour, the

barge made contact with the bridge. It slid down the fenders located on the western pier face and into the recessed

slot which housed the electrical wires without causing any

visible damage to the fenders it impacted or to the barge

itself. The impact was so slight that neither Long nor

Kindra were aware that the barge had made contact with

the bridge. Even at this slow speed, however, the vessel’s

angular impact damaged the bridge by severing the electrical cables. The damage was extensive, requiring replacement of the eight cables which cost the City of Chicago

$625,128.11. 

The district court conducted a two-day bench trial, during

which the M/V Morgan presented evidence that the starboard winch functioned properly on the morning of April 17

prior to the accident and that winches were inspected

weekly. However, Grzybowski, the deck engineer, was not

able to identify which day of the week was designated for

inspection, the last day the winches were actually inspected, or which member of the crew inspected the winches

on the day of the accident. In addition, the Captain admitted that he did not inspect the winches as he did not

consider that a necessary part of his routine. The court then

rendered a written decision listing several findings of fact

which this court will accept absent clear error. Folkstone

Maritime, Ltd. v. CSX Corp., 64 F.3d 1037, 1046 (7th Cir.

1995). Specifically, the trial court found the following:
No. 03-1789 7

17. It is fairly common for barges and vessels to touch

or rub—and in that sense “allide” with—the substructures of bridges.

18. When a vessel allides with a bridge in the City of

Chicago the damage to the bridge is most often to the

superstructure.

19. It is more common for a vessel to allide with a

bridge through rubbing rather than striking at an acute

angle.

20. There was no evidence presented of any specific

allision with the East 95 Street bridge before April 17,

1998.

37. Without a fender or timber waler, the cables were

exposed to the river. The cables, however, were protected from sideways, i.e., parallel, contact by being

placed in a slot. It was nevertheless reasonably foreseeable that the cables could be damaged by a minor

allision in the form of the fairly common “rubbing” or

“touching.” 

85. Long has no explanation why the brake shoes on the

starboard winch failed.

104. One way to have restored tension to the starboard

line earlier would have been to draw in the starboard

line using the motor on the winch. That is, even if the

brake in the winch did not hold, the line could have

been drawn in periodically.

105. If Long had used the motor on the starboard winch

to draw in the starboard line, he might have been able

to maintain tension on the line by intermittently

punching the control button for the winch.

106. Long recalls punching the control button for the

winch about three times. He also described his actions

in this regard as “continually” or “intermittently”
8 No. 03-1789

hitting it to get it to come in. The button on the winch

is an electrical connection; therefore, once the button is

pushed, the motor should almost instantaneously begin

to draw in the wire. On the other hand, continually

holding down the winch button could blow the breaker.

111. If the timber waler had been in place across the

cable slot, the port bow corner of the barge would have

slid along the timber waler and probably would not

have contacted the cables.

City of Chicago v. M/V Morgan, 248 F. Supp. 2d 759, 763-

69 (N.D. Ill. 2003) (internal citations omitted). Applying

pure comparative fault principles, the district court found

that both parties were responsible for the damage and apportioned fault equally between them.

II. ANALYSIS

The M/V Morgan makes several arguments on appeal.

First, defendants contend that the Oregon presumption is

unnecessary and inapplicable because the facts of the case

are apparent and the accident was an “expected” and

“minor” allision. Second, defendants assert that even if we

find the application of the presumption appropriate, we

should deem it rebutted and exonerate the vessel from

liability. Defendants seek exoneration based on the district

court’s determination that the City’s decision not to replace

the wooden fender over the recessed slot was a proximate

cause of the allision. They also maintain they were without

fault as they contend that the allision was an “inevitable

accident.” Finally, defendants take issue with the district

court’s apportionment of liability between the parties,

arguing that an equal apportionment is not supported by

the record and is contrary to this court’s cost avoidance

doctrine and the general principles of comparative fault.
No. 03-1789 9

11 We agree with the district court’s determination that whether

the M/V Morgan is deemed “drifting” and therefore subject to the

Louisiana presumption of fault against a vessel which drifts into

a stationary object, The Louisiana, 70 U.S. 164 (1865), or “under

power” and subject to the Oregon rule, the analysis remains unchanged. We also agree that the Pennsylvania rule, which creates

a presumption of fault against a vessel that is found to have

violated a statutory rule intended to prevent allisions, does not

apply as the City was under no statutory duty to erect and maintain the fender system over the cable slot. See supra note 6.

A. The Oregon Rule.

The Oregon rule creates a rebuttable presumption of fault

against a moving vessel, which under its own power, allides

with a stationary object. 158 U.S. at 192-93. As a conclusion

of law, we review the district court’s decision to apply the

Oregon rule to the underlying matter de novo. See Union

Pac. R.R. Co. v. Kirby Inland Marine, Inc., 296 F.3d 671,

674 (8th Cir. 2002) (applying de novo review to determine

whether the district court properly applied the rule of The

Pennsylvania, 86 U.S. 125 (1873), over the Oregon rule).11

However, we review for clear error the district court’s

factual findings, Folkstone Maritime, Ltd., 64 F.3d at 1046,

and apportionment of fault, Cement Div., Nat’l Gypsum Co.

v. City of Milwaukee (National Gypsum), 915 F.2d 1154,

1159 (7th Cir. 1990) (citing McAllister v. United States, 348

U.S. 19, 20 (1954)). “A finding is ‘clearly erroneous’ when

although there is evidence to support it, the reviewing court

on the entire record is left with the definite and firm

conviction that a mistake has been committed.” Id. (citing

United States v. Gypsum Co., 333 U.S. 364, 395 (1948)).

Furthermore, when sitting in admiralty, we treat a district

court’s findings of negligence as factual determinations also

reviewed for clear error. Folkstone Maritime, Ltd., 64 F.3d

at 1046.
10 No. 03-1789

In admiralty, “[t]hose in control of the vessel’s navigation

must bear the greater responsibility for bringing their ship

safely into and out of port.” Bunge Corp. v. M/V Furness

Bridge, 558 F.2d 790, 802 (5th Cir. 1977). Applying this

logic, the Oregon rule is premised on “the common-sense

observation that moving vessels do not usually collide with

stationary objects unless the vessel is mishandled in some

way.” Folkstone Maritime, Ltd., 64 F.3d at 1050 (quoting

Wardell v. Nat’l Transp. Safety Bd., 884 F.2d 510, 512 (9th

Cir. 1989)). This presumption merely addresses a party’s

burden of proof and/or burden of persuasion; it is not a rule

of ultimate liability. Folkstone Maritime, Ltd., 64 F.3d at

1050. Generally, presumptions “are designed to fill a factual

vacuum,” and if the facts of a case are apparent, the need

for a presumption is eviscerated. Rodi Yachts, Inc. v. Nat’l

Marine, Inc., 984 F.2d 880, 887 (7th Cir. 1993). 

Liability will not arise unless a party’s act or omission

is a “substantial” and “material” factor in causing the

allision. American River Trans. Co. v. Kavo Kaliakra S.S.,

148 F.3d 446, 450 (5th Cir. 1998). If, however, the vessel’s

contact with the stationary object is “expected” or “minor,”

the presumption is not applied unless that contact rises

“above a certain minimal level.” See American Petrofina

Pipeline Co. v. M/V Shoko Maru, 837 F.2d 1324, 1326 (5th

Cir. 1988) (recognizing that slight damage to a fender system during “normal docking” may fall outside the purview

of the presumption) (collecting cases); Manufacturers Rys.

Co. v. Riverway Harbor Serv. St. Louis, 646 F. Supp. 796,

798 (E.D. Mo. 1986) (same).

Application of the Oregon presumption does not supplant

the general negligence determination which requires a

plaintiff to prove the elements of duty, breach, causation

and injury by a preponderance of the evidence; rather, it

merely satisfies the plaintiff’s prima facie case. Bunge

Corp., 558 F.2d at 798; Brown and Root Marine Operators,

Inc. v. Zapata Off-Shore Co., 377 F.2d 724, 726 (5th Cir.
No. 03-1789 11

1967). Once fault is presumed the defendant may come

forward with evidence to rebut the presumption, The

Oregon, 158 U.S. at 192-93, by showing that: (1) the allision

was actually the fault of the stationary object; (2) the

moving vessel acted with reasonable care; or (3) the allision

was the result of an inevitable accident. Folkstone Maritime, Ltd., 64 F.3d at 1050 (finding Oregon presumption

rebutted when bridge failed to fully open); I&M Rail Link,

L.L.C. v. Northstar Navigation, Inc., 198 F.3d 1012, 1013

(7th Cir. 2000) (finding Oregon presumption rebutted and

remanding for trial when bridge was an unreasonable

obstruction to navigation); Graves v. Lake Michigan Car

Ferry Transp. Co., 183 F. 378, 380 (7th Cir. 1910). 

Rebutting the presumption does not necessarily exonerate

the vessel from all liability. Under the principles of pure

comparative fault, both parties may be found to have

contributed to the accident. “When two or more parties have

contributed by their fault to cause property damage in a

maritime collision or stranding, liability for such damage is

to be allocated among the parties proportionately to the

comparative degree of their fault, and that liability for such

damages is to be allocated equally only when the parties are

equally at fault or when it is not possible fairly to measure

the comparative degree of their fault.” United States v.

Reliable Transfer Co., 421 U.S. 397, 411 (1975); Brotherhood Shipping Co., Ltd. v. St. Paul Fire & Marine Ins. Co.,

985 F.2d 323, 325 (7th Cir. 1993). Therefore, under the

comparative fault analysis between a vessel and a stationary object, a vessel may minimize its liability by providing

evidence that the stationary object contributed to the injury

it incurred, however, it will be absolved of liability only if

the stationary object is deemed the sole proximate cause of

the injury. Bunge Corp., 558 F.2d at 802 (emphasis added).
12 No. 03-1789

12 We note that the M/V Morgan’s contention that the Oregon rule

should not apply to “expected” or “minor” allisions is in fact a

challenge to the district court’s factual findings that boats generally do not allide with the structure of a bridge at an acute angle

and that the damage caused to the bridge was extensive. Therefore, the standard of review for these determinations is not the de

novo standard applied to questions of law, but rather we review

these findings to determine whether they are clearly erroneous.

Folkstone Maritime, Ltd., 64 F.3d at 1048.

B. The Oregon presumption applies. 

The parties agree that the allision with the 95th Street

bridge was the result of the crew of the M/V Morgan losing

control of the vessel due to the mechanical failure of the

starboard winch. While the “parties have introduced evidence to dispel [some of] the mysteries” of what occurred

during the accident, Rodi Yachts, Inc., 984 F.2d at 887, the

M/V Morgan has not supplied any reason for the mechanical failure. The vessel asks this court to focus on its reaction

once the mechanical failure occurred, however, this does not

resolve the question of what caused the starboard winch

brake to fail. This lack of an explanation is sufficient to find

a “factual vacuum” meriting the application of the presumption. Furthermore, in Rodi Yachts, this court reasoned that

“as between [a] drifting vessel and stationary object struck

by it common sense suggests that the former is more likely

to have been at fault than the latter. . . .” Id. at 886-87.

Nor was the M/V Morgan’s contact with the 95th Street

Bridge the type of “expected” and “minor” contact which

occurs during a “normal docking.”12 See American Petrofina

Pipeline Co., 837 F.2d at 1326 (arguing for the inapplicability of the Oregon presumption where the vessel was

properly piloted, the contact made with the fender system

occurred during a “normal docking” and was minimal, and

the fenders were defective). It is undisputed that the barge

contacted the bridge at an angle sharp enough for it to
No. 03-1789 13

enter the recessed slot which housed the electrical cables.

The district court expressly found that common allisions do

not occur at acute angles. Thus, the district court’s finding

suggests that the allision at issue was not a common

parallel rubbing which would constitute “expected” contact.

 Also, the western pier face of the bridge, which housed

the severed cables, is outside the navigable waterway and

therefore contact with this portion of the bridge is not

“expected” or frequent. Lastly, the district court also correctly found that damage to the bridge was extensive. We

recognize that the vessel was moving very slowly when

impact was made, however, the speed of the tugboat is not

determinative of whether the impact was minor. The

contact caused substantial damage, in the amount of

$625,128.11, and cannot be characterized as “minor.”

Therefore, the district court properly applied the Oregon

presumption of fault to the M/V Morgan.

C. Defendants have failed to rebut the Oregon

presumption or exonerate themselves from

liability.

The M/V Morgan has failed to rebut the Oregon presumption or exonerate itself from liability by proving either that

(1) the allision was the sole fault of the bridge, (2) it acted

reasonably, or (3) the allision was the result of an “inevitable accident.” In addition, the in extremis doctrine does not

aid the M/V Morgan.

1. The allision was not the sole fault of the

stationary object.

To prove that the allision was the sole fault of the bridge

and exonerate itself from liability, the M/V Morgan asks

this court to draw a distinction between what it character-
14 No. 03-1789

13 The M/V Morgan points to the following language in the district

court opinion in support of this distinction: “Although the Court

does not necessarily find specific acts of negligence on the part of

the Defendants, the Court need not do so. Rather, the Defendants

have not demonstrated by a preponderance of the evidence that

they were not at fault under the standards necessary to rebut the

presumption under the Oregon rule.” M/V Morgan, 248 F. Supp.

2d at 724 (emphasis in original). To support its argument

concerning the significance of the City’s “actual fault,” defendants

seize on the district court’s statement that the City’s negligence

in failing to replace the fender system over the recessed slot “was

a proximate cause of the damages from the allision.” Id. at 775.

izes as the “actual fault” of the bridge and the “presumed

fault” of the vessel.13 For the purposes of this analysis, we

find no real distinction between “presumed fault” and “actual fault.” As discussed above, presumptions are merely

tools used by courts to analyze the facts which underlie an

allision and address any factual voids in the record. A

presumption implicates the burden of production and proof,

not the ultimate liability determination. Folkstone Maritime, Ltd., 64 F.3d at 1050. 

The district court found that the City’s decision not to replace the fender over the recessed slot was not the sole

cause of the damage to the electrical cables. See White Stack

Towing Corp. v. Hewitt Oil Co., 216 F.2d 776, 778-79 (4th

Cir. 1954) (exonerating vessel of liability when damage to

breasting dolphins was solely caused by their negligent

construction and vessel was properly piloted during docking). Under a pure comparative fault analysis, “[t]he plaintiff’s negligence reduces the amount of damages that he can

collect, but it is not a defense to liability.” Brotherhood

Shipping Co., Ltd., 985 F.2d at 325 (citing Reliable Transfer

Co., 412 U.S. at 397); Bryant v. Partenreederei-Ernest Russ,

352 F.2d 614, 615 (4th Cir. 1965) (in admiralty “contribu-
No. 03-1789 15

14 The district court also properly rejected defendants’ superceding

cause argument. “The doctrine of superceding cause is thus

applied where the defendant’s negligence in fact substantially

contributed to the plaintiff’s injury, but the injury was actually

brought about by a later cause of independent origin that was not

foreseeable.” 2 Thomas J. Schoenbaum, Admiralty & Maritime

Law § 5-3 (4th ed. 2004). Here, the City’s decision not to replace

the wooden fender over the recessed slot was not a superceding

cause of the injury to the cables because it did not cut off the M/V

Morgan’s negligence in failing to face up the vessel after the

mechanical failure of the starboard winch. See Exxon Co. v. Sofec,

Inc., 517 U.S. 830, 837-38 (1996) (discussing the continued

viability of the superceding cause doctrine after Reliable Transfer

Co.). The City’s decision not to replace the fender could be deemed

a superceding cause if, for example, the cables were left completely open, in a navigable waterway, with no protection whatsoever, and the M/V Morgan’s contact with the cables was made at

a parallel angle. This would amount to the type of “extraordinary”

negligence necessary to break the causal nexus and completely

shield the defendants from liability. See id.

tory negligence is properly considered in mitigation of

damages.”).14

The district court’s finding that the fender system (or lack

thereof) contributed to the accident is supported by the

record and therefore was not clearly erroneous. The district

court reasoned that while the City placed the cables in a

recessed slot to protect them, placing a wooden fender in

front of the slot would have likely prevented the accident.

Thus, the court determined that while the City took some

preventative action, it did not take sufficient action. On the

part of the defendants, the court found that the crew’s

response to the starboard winch brake failure was unreasonable in that it was not able to face up the M/V Morgan

and this negligence lead to the unusual angular impact. It

was therefore proper for the court to decrease the M/V

Morgan’s percentage of liability in proportion to the plaintiff’s relative degree of fault.
16 No. 03-1789

15 It is important to note that these facts support a finding of

negligence against the defendants absent the presumption. See 2

Thomas J. Schoenbaum, Admiralty & Maritime Law § 5-2 (4th ed.

2004). These facts clearly demonstrate that “the allision could

have been prevented by the exercise of due care.” Folkstone

Maritime Ltd., 64 F.3d at 1046 (citing The Jumna, 149 F. 171, 173

(2d Cir. 1906). See also Paige Hess, Applying the Pennsylvania

Rule—Circumstances to Consider in Allisions: American River

Transportation Co. v. M/V Kavo Kaliakra, 24 Tul. Mar. L.J. 343,

352 (1999) (“In light of modern day technology and practices, the

value of such presumptions has diminished. . .”).

2. The vessel did not react to the mechanical

failure in a reasonable manner.

The M/V Morgan’s fault is based on the district court’s

finding that the defendants could have prevented the angular impact by properly facing up the M/V Morgan.

Specifically, the district court found that: (1) the M/V

Morgan did not respond reasonably to the starboard

winche’s failure; (2) the crew was inexperienced with the

M/V Morgan; (3) the crew was not diligent in its maintenance of the vessel’s winches in that they did not inspect

the winches that day and could not recall when they were

last inspected; (4) Captain Long’s decision to cast a center

line was unreasonable in that it delayed drawing in the

starboard winch line; and (5) Captain Long’s decision to

plug the control box was ineffective to restore tension to the

winch line.15 The district court was correct that the vessel

must bear some of the responsibility for the allision. See

American River Trans. Co., 148 F.3d at 450 (finding a

drifting vessel liable for alliding with a moored barge based

on the vessel’s negligent reaction to the mechanical failure

of its steering system); In re American Milling Co., 270 F.

Supp. 2d 1068, 1091 (E.D. Mo. 2003) (holding a vessel liable

for an allision with a bridge when the vessel failed to prove

that a mechanical failure caused the allision as opposed to

the captain’s navigational errors).
No. 03-1789 17

16 “The defendants say ‘Our tiller rope broke, and the vessel became unmanageable, and the collision was unavoidable.’ That only

shows that the breaking of the tiller rope was the cause of the

collision. They must go further, and show that the cause was

operated to break the tiller rope was unavoidable. The collision

was but the result of the cause which produced a broken tiller

rope. If that cause is not shown to be unavoidable, how can it be

said that the collision was an inevitable accident?” Id.

3. The allision was not the result of an “inevitable accident.” 

The “inevitable accident” doctrine applies when “the cause

of the collision was a cause not produced by [the vessel], but

a cause of which [the vessel] could not avoid.” The Olympia,

61 F. 120, 123 (6th Cir. 1894). Generally, this doctrine is

invoked when an act of God, or vis major, causes a vessel to

collide with another object or vessel. The Louisiana, 70 U.S.

at 173; Frost v. Saluski (The Blue Goddess), 199 F.2d 460,

462 (7th Cir. 1952). “Unless it appears that both parties

have endeavored by all means in their power, with due care

and a proper display of nautical skill, to prevent the

collision, the defense of inevitable accident is inapplicable

to the case.” The Clarita, 90 U.S. 1, 13 (1874). Therefore,

the defense cannot be “sustained where it appears that the

disaster was caused by negligence.” Id.; American River

Transp. Co., Inc. v. Paragon Marine Serv., Inc., 329 F.3d

946, 947 (8th Cir. 2003). If applicable, each party is responsible for his respective damages and no liability attaches.

The Continental, 81 U.S. 345, 355 (1872). 

The doctrine has been applied to collisions brought about

by a vessel’s loss of control due to a mechanical failure,

however, the inquiry is whether the defect which caused the

malfunction was latent in nature or detectible by the vessel

through proper inspection. See The Olympia, 61 F. at 122;16

Cranberry Creek Coal Co. v. Red Star Towing & Transp.

Co., 33 F.2d 272, 274 (2d Cir. 1929) (finding that vessel
18 No. 03-1789

failed to rebut presumption of fault by proving “inevitable

accident” when it failed to present evidence that mechanical

defect was latent or that the vessel was properly maintained and inspected); The William E. Reed Hudson River

Shipyards Corp. v. Metropolitan Sand & Gravel Corp., 104

F.2d 167, 168 (2d Cir. 1939) (finding that the vessel failed

to establish “inevitable accident” defense as it did not

present evidence that broken steering gear was in good

condition prior to accident, properly or frequently inspected,

or purchased from a reputable manufacturer); Arkansas

River Co. v. CSX Transp., 780 F. Supp. 1138, 1142 (W.D.Ky.

1991); Meadows and Markulis, Apportioning Fault in

Collision Cases, 1 U.S.F. Mar. L.J. 1, 21 (1989) (discussing

applicability of the inevitable accident doctrine when a

collision occurs as a result of a latent defect in properly

inspected and maintained vessel machinery). 

The M/V Morgan failed to prove that the accident

was inevitable. The vessel did not put forth any evidence

that the defect in the starboard winch was latent or could

not be uncovered through proper inspection. In fact, the

defendants testified that they did not know when the starboard winch was last inspected or who was responsible for

its continued inspection. Most importantly, the district

court found that the M/V Morgan could have prevented the

accident by properly handling the vessel after the mechanical failure. This finding suggests that the allision was not

caused by the failure of the starboard winch, but rather

by the subsequent mishandling of the vessel. See In re

American Milling Co., 270 F. Supp. 2d at 1091 (rejecting the

“inevitable accident” defense when captain could have

prevented the allision by properly handling vessel after

failure of rudders); Meadows and Markulis, supra (an

inevitable accident is one “which occurs without fault”).

Thus, the defendants have not sustained the very heavy

burden of proving that the accident was inevitable.
No. 03-1789 19

4. The in extremis doctrine is inapplicable. 

Sometimes confused with the inevitable accident doctrine,

the in extremis doctrine or “agony of the moment defense”

applies when a ship is placed in sudden peril through no

fault of its own and is forced to take “evasive maneuvers

that may be a violation of a rule.” 2 Thomas J. Schoenbaum,

Admiralty & Maritime Law § 14-2 n. 49 (4th ed. 2004). See,

e.g., N.M. Paterson & Sons, Ltd. v. City of Chicago, 324 F.2d

254, 259 (7th Cir. 1963) (applying in extremis doctrine to

absolve a vessel from liability for striking a bridge when the

bridge failed to open and failed to give advance warning to

the vessel or tug of its inability to open); Monroe v. City of

Chicago, 194 F. 936, 939-40 (7th Cir. 1912) (same). As

explained in The Blue Jacket, 144 U.S. 371, 392 (1892) an

example of such an occurrence is “where one ship has, by

wrong maneuvers, placed another ship in a position of

extreme danger, that other ship will not be held to blame if

she has done something wrong, and has not been maneuvered with perfect skill and presence of mind.”

The party relying on the in extremis doctrine must be

completely free from fault prior to the emergency occurrence. Puerto Rico Ports Authority v. M/V Manhattan

Prince, 897 F.2d 1, 6 (1st Cir. 1990). “It does not excuse a

vessel making a wrong maneuver in extremis where the

imminence of the peril was occasioned by the fault or

negligence of those in charge of the vessel, or might have

been avoided by earlier precautions which it was bound to

take.” 70 Am. Jur. 2d Shipping § 619 (2003). Further, applicability of the doctrine does not prevent a finding of

liability, it merely requires courts to judge a captain’s reactions more leniently because of the crisis situation. Grosse

Ile Bridge Co. v. American Steamship Co., 302 F.3d 616,

625-26 (6th Cir. 2002). 

Whether to rebut the presumption or argue for its inapplicability, defendants incorrectly attempt to avail them-
20 No. 03-1789

selves of the in extremis doctrine equating it to the “inevitable accident” doctrine. Based on the district court’s

findings, it is clear that the M/V Morgan was not operating

in extremis. The dangerous situation was caused by a

mechanical failure of the vessel itself; it was not placed in

sudden peril by an outside force or party. Cf. Grosse Ile

Bridge Co., 302 F.3d at 625-26 (finding in extremis applicable where bridge failed to timely open but reasoning that

captain’s reaction to emergency situation was still negligent

even under more lenient standard because his delay in

dropping anchor to stop vessel’s forward movement was

unreasonable); Puerto Rico Ports Authority, 897 F.2d at 6-7

(applying in extremis doctrine to shield a tug from liability

for striking a pier after it was forced to cast off its lines to

avoid a collision with a tanker). 

Moreover, the district court’s finding that the vessel

had sufficient time to respond properly to the failure of

the starboard winch brake negates the applicability of

this doctrine as it was not in “sudden peril” and had sufficient time to prevent the allision. See Richard J. Nikas,

Skimming the Surface: A Primer on the Law of Collision, 9

U.S.F. Mar. L.J. 225, 240 (1996) (“Normally, the law of

collision assumes there will be a reasonable opportunity for

decision, however, this assumption is abandoned in cases of

sudden peril.”). Defendants attempt to merge the two

doctrines of “inevitable accident” and in extremis, however,

we find the in extremis doctrine inapplicable to accidents

caused by mechanical failures.

D. The district court properly apportioned fault

equally between the parties. 

Defendants attack the district court’s finding that both

parties were 50% liable as violative of (1) this court’s cost

avoidance doctrine as set forth in Rodi Yachts, Inc., 984
No. 03-1789 21

F.2d at 886-87 and Nat’l Gypsum Co., 915 F.2d at 1159 and

(2) the rule of comparative fault in admiralty established by

the Court in Reliable Transfer. Defendants’ first argument

takes a far too literal reading of Rodi Yachts and National

Gypsum. In National Gypsum, we stated that “the doctrine

of comparative fault is generally supposed to be used to

assess liability in proportion to the cost of avoiding the

entire accident to each side.” 915 F.2d at1159. A fortiori,

argue the defendants, because the City could have prevented the accident by placing a wooden fender in front of

the recessed slot and the cost of such prevention is negligible, the City’s should be held 100% liable for the damage to

the bridge. 

We find this analysis irreconcilable with the circumstances of the allision in this action. Taking the defendants’

analysis to its logical conclusion, it would be absolved of

liability (or at least significantly shielded) regardless of its

actions or negligent reaction to a mechanical failure.

Defendants acknowledge that the crew lost control of the

vessel due to the failure of the starboard winch brake. They

were in sole control of the maintenance and inspection of

the winch—therefore the City cannot be held responsible for

the M/V Morgan’s failed machinery or the crew’s unreasonable reaction to the equipment failure. 

Defendants correctly assert that National Gypsum

and Rodi Yachts involved ships which slipped their moorings and struck stationary objects. However, in National

Gypsum the vessel was suing the City of Milwaukee arguing that it was negligently assigned to a slip containing hidden dangers, while in Rodi Yachts the issue was

whether the defendant dock owner’s chafed ropes or the

defendant barge owner’s improper mooring caused the

vessel to come loose. The “fault” assessment, i.e., the maintenance of the slip dock or the upkeep/inspection of the

ropes used to moor the vessel, involved an analysis of the
22 No. 03-1789

17 We explained in Rodi Yachts that “the sort of accident that

happened here can be prevented, or at least the probability of its

occurring can be greatly reduced, by regular inspection of the

ropes to make sure that they are not chafing, or otherwise fraying,

or loosening, or coming untied.” 984 F.2d at 884.

cost of preventing the vessels from drifting and causing

the injuries.17

Here, by contrast, the comparative “fault” assessment

is bifurcated between the affirmative actions of the M/V

Morgan once the mechanical failure occurred and the City’s

contributory fault for failing to replace the fender system.

The cost of avoiding the accident is relevant to the degree

of contributory fault on the part of the plaintiff, however,

this degree of fault is limited to foreseeable harms. Put

another way, a plaintiff is not a soothsayer and is not

responsible to prevent every possible harm. Rather, a

plaintiff must undertake its own cost benefit analysis and

choose between types and degrees of protective measures.

See Brotherhood Shipping Co., Ltd., 985 F.2d at 327 (“The

cost-justified level of precaution . . . is thus higher, the

likelier the accident that the precaution would have

prevented was to occur . . . and the greater the loss that the

accident was likely to inflict if it did occur.”). And that is

exactly what occurred in this case. The City took some

preventative measures by placing the cables outside of the

navigable waterway in a recessed slot which would protect

them from the more typical parallel rubbing or minor contact with the bridge’s superstructure. However, the cables

did remain exposed to river debris and foreign objects. The

district court’s decision to hold the City partially liable for

the allision for failing to replace the wooden fender over the

recessed slot which housed the cables was supported by the

evidence. The court recognized that the cost of prevention

was minimal and the potential harm to the bridge significant. The court also acknowledged that the allision could
No. 03-1789 23

have been prevented if the City had taken this further

preventative measure. However, the district court also

found the M/V Morgan crew’s inability to face up the vessel

caused an angular impact that was uncommon and unexpected. Thus, we find that the district court properly

balanced the M/V Morgan’s affirmative actions with the

City’s omissions and found both parties at fault.

We can quickly dispense with the defendants’ second argument as we find that the district court did not clearly err

in apportioning damages equally between the parties for

the reasons stated above. Nat’l Gypsum Co., 915 F.2d at

1159 (citing McAllister, 348 U.S. at 20 and finding clear

error where the “district court apportioned liability based

on the amount of property each side had at risk.”); Feeder

Line Towing Serv. Inc. v. Toledo, Peoria & Western R.R. Co.,

539 F.2d 1107, 1111 (7th Cir. 1976) (upholding district

court’s finding that defendant bridge was 65% liable based

on its failure to light its protective system and that plaintiff

was 35% liable based on the pilot’s negligent angular

alignment of vessel). Though an equal apportionment of

fault is unusual, the Reliable Transfer Court explicitly held

that if the parties are equally at fault, an equal apportionment is appropriate. 421 U.S. at 411. The district court

found that both parties could have avoided the accident

with more prudent behavior. Its decision to hold the City

50% liable for its omission reflects the court’s recognition

that the City could have prevented this accident cheaply, by

simply replacing the wooden fender. This figure also

acknowledges the M/V Morgan’s liability in failing to face

up the vessel. Therefore, we do not find that a “mistake”

has been made in this apportionment, Nat’l Gypsum Co.,

915 F.2d at 1159, and affirm the district court’s determination to apportion fault equally between the parties.
24 No. 03-1789

III. CONCLUSION

For the foregoing reasons, the decision of the district

court is AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-9-04