* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in Local Rule

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-30740

CHEVRON PIPE LINE COMPANY;

CHEVRON U.S.A., INC.,

Plaintiffs-Appellees/

Cross-Appellants,

versus

JOHN E. CHANCE AND ASSOCIATES, INC.;

LLOYDS UNDERWRITERS OF LONDON,

Defendants-Appellants/

Cross-Appellees.

Appeal from the United States District Court

For the Eastern District of Louisiana

(90-CV-3770)

February 10, 1997

Before POLITZ, Chief Judge, WIENER and BARKSDALE, Circuit Judges.

POLITZ, Chief Judge: *

A pipeline ruptu re and oil spill resulted in this litigation between Chevron2

Pipe Line Company (CPL) and Chevron U.S.A., Inc. against John E. Chance &

Associates, Inc. and certain underwriters at Lloyd’s London, and London

Companies. The appeal and cross-appeal relate solely to damages. For the reasons

assigned we affirm in part and vacate and remand in part.

Background

On the night of September 18, 1989, a pipeline owned by CPL was ruptured

during a dredging operation, causing 300 barrels of crude oil to spill in the Bayou

Casotte ship channel near Pascagoula, Mississi p pi. Chance & Associates had

marked the location of the pipeline incorrectly. Escaping oil reached the beach of

nearby Horn Island, a national refuge area.

The 20-inch common carrier crude oil pipeline extends 105 miles from

E mpire, Louisiana to a Chevron refinery in Pascagoula, traversing the Bay o u

C asotte ship channel near Pascagoula. The bayou needed dredging and the U.S.

Army Corps of Engineers hired C.F. Bean Dredging to perform that service. It was

necessary that the location of the pipeline be marked carefully. Chance was hired

to survey and mark the pipelin e, doing so in the presence of an assigned CPL

employee. After a bench trial before a magistrate judge by consent under 28 U.S.C.

§ 636(c), the court found that because of the error in the marking, Chance and CPL

were each liable, in contract and tort, for 50% of the loss. Negligence of the CPL1 Pizani v. M/V Cotton Blossom , 669 F.2d 1084 (5th Cir. 1982).

2 Nerco Oil & Gas, Inc. v. Otto Candies, Inc. , 74 F.3d 667 (5th Cir. 1996).

3 employee was imputed to Chevron.

The pipeline supplements the refinery’s oil supply, the great bulk of which

is delivered by tanker through the Bayou Casotte ship channel.

A day or so following the break in the pipeline CPL contractors made

temporary repairs. Permanent repairs were completed by October 4, as was the

cleanup operation.

Because of the interruption in the pipeline flow and the closure of the ship

channel for repairs Chevron claimed a loss for reduced production in the amount

of $6,370,000 and $4441 for lost oil. The court awarded the $4441 claim for lost

oil and $349,191 for the claimed loss of production. CPL sought and recovered

$663,975 in pipeline repair costs and $1,119,811 in oil spill cleanup expenses. The

court also awarde d unspecified prejudgment interest. Chance appeals; CPL and

Chevron cross-appeal various elements of the award.

Analysis

This action arises under admiralty jurisdiction and federal law governs the

damages issues. 1 We review factual findings for clear error and legal conclusions

de novo

. 2 As is the norm in actions in tort and for contractual breach, the plaintiffs3 526 F.2d 300 (5th Cir. 1976).

4

bear the burden of proving the specifics of each item of claimed damages.

1. Salaried employees.

Chance first contends that the district court erred in awarding compensation

for the time of salaried CPL and Chevron employees who participated in the repair

and cleanup. Chance maintains that where, as here, an injured party hires outside

contractors to conduct repair work, the injured party cannot be compensated for its

own overhead. Chevron and CPL respond that the loss of the employees’

productivity is compensable because they had other work to do.

Acknowled ging Chance’s argument, the trial court made general findings

that the Chevron cleanup efforts were commendable, that CPL and Chevron made

downward adjustments to their claim for cleanup and repair expenses, and that the

expenses were reasonable.

In Freeport Sulphur Co. v. S/S Hermosa

, 3 we held that the time of salaried

employees engaged in repairs can be a legitimate element of a damages award in

an admiralty case. The obvious purpose of compensatory damages is to place the

injured party, as nearly as possible, in the position it would have been if the wrong

had not occurred. When an injured party uses its own labor to perform repairs, its

overhead is recoverable because a contractor hired to perform the repairs typically4 United States v. Peavy Barge Line

, 748 F.2d 395 (5th Cir. 1984) (citing Freeport

Sulphur ).

5 Creole Shipping Ltd. v. Diamandis Pateras, Ltd.

, 410 F.Supp. 313 (S.D.Ala. 1976),

aff’d , 554 F.2d 1348 (5th Cir. 1977).

6 Pelican Marine Carriers, Inc. v. City of Tam pa , 791 F.Supp. 845 (M.D.Fla. 1992)

(citing Freeport Sulphur ), aff’d , 4 F.3d 999 (11th Cir. 1993).

5 would have charged for overhead. 4 Freeport Sulphur , however, relied in part on

evidence that the salaried employees would have been doing other productive work

if they had not been required to do the repair work. Where the duties of a salaried

employee include the work for which the employer seeks recovery, and there is no

evidence presented that the employee was unable to perform the other duties, the

time of the employee is not compensable. 5 Furthermore, where repairs are made

by a third party, the salaries of management or administrative employees of the

injured party should not be considered a cost of repairs. 6

Chevron and CPL contracted with more than 15 companies to clean up the

oil spill and repair the pipeline. A Chevron employee testified that $53,000 in time

of salaried Chevron employees was c laimed, including the time of supervisors;

administrative, accounting and environmental staff; accountants; operators;

operating assistants; and process engineers who participated in the cleanup. A CPL

employee testified that its claim for repair expenses included the time of CPL

engineers, as well as seven or eight sa laried employees who were on site to6

supervise the repairs even though the c ontractors also had supervisors there.

Neither Chevron nor CPL offered evidence reflecting whether: (1) the job

responsibilities of salaried employees included participation in repairs and accident

cleanup, (2) any work performed was necessary and nonduplicative of the work of

the contractors, and ( 3) the repair and cleanup responsibilities deterred their

performance of other productive work.

We must conclude that as a matter of law compensation for the time of

sala ried administrative and supervisory staff cannot be granted. Contractors

performed t he repair work; recovery for the overhead expenses of the injured

parties would be duplicative. Further, the claim for time of other salaried

employees herein must be disallowed for lack of evidence that their efforts were

not duplicative of the contractors’ work and that actual employee productivity was

lost.

On remand the $53,000 allowed for the time of salaried employees of

Chevron must be deducted from the damages award. There being no quantification

of the amount awarded for CPL salaried employees in the record, briefs, or oral

argument, on remand this amount must be determined and deducted from the

award.7 Tennessee Valley Sand & Gravel Co. v. M /V Delta , 598 F.2d 930 (5th Cir. 1979),

modified in part , 604 F.2d 13 (5th Cir. 1979).

7 2. Down time of dredge and vessel.

Chance also appeals recovery for the down time of two vessels, the dredge

owned b y Bean and the AMERICAN EXPLORER, which was used to perform

permanent repairs to the pipeline.

CPL made two payments to Bean

-- $ 26,667 for use of its dredge in the

temporary repairs, and $79,600 for down time caused by the interruption of the

ongoing dredging pro

ject. The CPL engineer-in-charge of cost control for the

repairs testified that a high-powered suction dredge was necessary for removal of

the pipeline cover to patch the pipeline and stop the oil leak. The Bean dredge was

on site and the engineer believed that bringing in a dredge from another site would

not be cost-effective. He therefore agreed to pay Bean for down time of its dredge.

Chance disputes these facts and contends that this payme nt was gratuitous

because the Chevron companies h ad no contract with Bean and no obligation to

compensate Bean for its inabili ty to earn money during the interruption in the

dredging project.

An injured party is preclud ed from recovering for damages caused by its

unreasonable conduct after the accident. 7 The tortfeasor, however, has the burden8 Marathon Pipe Line Co. v. M/V Sea Level II , 806 F.2d 585 (5th Cir. 1986).

9 Tennessee Valley Sand & Gravel

.

8 of proving that the injured party failed to minimize damages by demonstrating that

its post-accident conduct was unreasonable and aggrav ated the losses. 8 In

determining whether the conduct of the injured party was reasonable, we must

consider whether the decisions were made in times of crisis, ever mindful that we

should allow the injured party appropriate latitude in its determination of how best

to deal with an emergency situation. 9

Although the trial court did not make specific findings of fact on this issue,

it found that the repair costs as a whole were reasonable and that Chevron’s

decisions relative to containing the oil spill were made in an emergency setting and

with a view toward preventing environmental damages to the Horn Island national

refuge. The magistrate judge extensively questioned the expert tendered by Chance

about his basis for disputing the $79,600 payment. On the record before us, and in

v iew of the atmosphere of crisis in which the decisions were made, we are not

persuaded that the award for this payment was in error.

Chance also disputes the award of $116,161 to CPL for seven to eight days

of standby time of the AMERICAN EAGLE, a large vessel needed for permanent

repair of the pipeline. The trial court found that the AMERICAN EAGLE was used9

as a standby vessel in case the temporary patch failed, and that CPL’s payment for

that standby time was reasonable. Chance contends that CPL failed to mitigate its

damages by unreasonably releasing the PIPELINE SURVEYOR, a smaller, less

expensive vessel us ed in the temporary repairs, and by placing the AMERICAN

EAGLE on standby.

We find no clear error in the trial court’s conclusio n that Chance failed to

prove the unreasonableness of this payment. The CPL engineer-in-charge of cost

control on the repair testified that: (1) the AMERICAN EAGLE was docked in

Pascagoula at the time of the temporary repairs, (2) because the ship originated in

Louisiana, additional mobilization charges would have been incurred had CPL not

retained the ship, (3) the decision to retain the ship was made after investigating the

availability of other vessels, (4) the AMERICAN EAGLE had the crane and deck

s ize necessary to perform the permanent repairs, and (5) preparation work was

necessary before the permanent repairs could be done. Again, we are mindful that

the decision to retain the AMERICAN EAGLE was made during an emergency

situation resulting from the oil spill.

3. Allegedly unsubstantiated expenses.

Chance contends that $55,888 of the award for repair expenses and $93,044

of the award for cleanup expenses are wholly unsubstantiated. Chevron responds10

that “nearly all” of the disputed items are fully supported by the evidence, relying

on sweeping testimony that CPL and Chevron used detailed accounting procedures

to verify each charge by outside contractors. Finding that the claims for repair and

cleanup expenses were reasonable, the trial court awarded the total amount

requested making no factual findings about these disputed sums.

Without evidenc e specific to each charge for which recovery is sought,

essentially advisory testimony that a reliable accounting system was used to verify

charges will not suffice to prove compensatory damages. Of the disputed charges

awarded t o CPL for repairs, $17,364.64 for “marine equipment usage” is

unsubstantiated. This amount must be deducted from the award. We do find, albeit

sometim es sketchy, testimonial or documentary evidence in support of the other

dis puted repair charges. Accordingly, we cannot say that the award of

compensation for those expenses is clearly erroneous.

Of the disputed charges awarded to Chevron for cleanup we must exclude

$11,638 for materials or equipment unrelated to cleanup. Chevron’s expert

testified that certain expenses for equipment not normally used in cleanups should

have been deducted. Chance’s expert quantified these expenses. Chevron did not

prove that the materials were used in the cleanup.

The Chevron exp ert also testified that its claim included nonconsumable10 Pizani ; Freeport Sulphur

.

11 We find no clear error in the award of $23,000 for rental of a skimmer for the cleanup

which did not have to be used because the oil did not move back into shallow waters, or in

the award of $25,647 for equipment and materials lost or damaged in the cleanup.

12 Dow Chemical Co. v. M/V Roberta Tabor , 815 F.2d 1037 (5th Cir. 1987).

11 purchases with continued value, which he recommended be excluded or given to

Chance. The Chance expert quantified these expenses at $32,507. In keeping with

the goal of placing the injured party as nearly as possible in the position that would

have been occupied had the wrong not occurred, we must deny recovery of repair

costs beyond what is necessary to restore property to its pre-accident condition. 10

Because Chevron failed to show that these nonconsumable items lack continuing

value, $32,507 must be deducted from the award. 11

4. Economic loss.

Claims for economic loss in admiralty cases must be proved with reasonable

certainty. 12 The trial court based its award of $349,191 for economic loss on the

testimony of an oil refinery economics expert tendered by Chance that the pipeline

rupture caused a delay in producing 240,000 barrels of oil but did not cause a

permanent loss of production. The compensation awarded was for loss of use of

those funds during the period of delay. The court rejected Chevron’s contention

that the Pascagoula refinery always operated at maximum capacity and was12

incapable of compensating for production interruptions. Relying on documentary

evidence and an assessment that Chance’s expert testimony was more credible than

Chevron’s, the cour t found that the refinery had the capacity to make up for

decreases in production and that it did so after the pipeline rupture by operating at

its highest levels ever in October and November of 1989.

Chance challenges the award for economic loss on the grounds that Chevron

failed to prove that it sustained any financial losses due to the pipeline rupture. On

cross-appeal, Chevron contends that the trial court erred in finding that production

was made up after the accident. Chevron seeks compensation for lost sales of the

product it contends that it was unable to manufacture during the pipeline shutdown.

We find an adequate basis in the record for the trial court’s conclusion that

Chevron had the ability to compensate for the decrease in production and did so.

In addition to our review of th e documentary evidence, we give the deference

which reason dictates that we must to the trial judge’s assessment of the credibility

of witnesses.

We are persuaded, however, that the court erred in awarding any damages

for economic los ses for production delays. To prove economic loss from a

production decrease, an injured party must show that it was unable to substitute for

lost production or that the substitution resulted in a net loss. The record contains13

no such acceptable evidence.

Chevron stipulated that it lost no contract sales as a result of the pipeline

rupture but contended that it lost sales on the spot market. The proof of loss of

sales was confined to the testimony of two employees that all of the Pascagoula

refinery products that would otherwise have been made during the period of

decreased production would have been sold on the spot market.

Chevron failed to prove inability to substitute product to cover spot market

opportunities during the period in which production at the Pascagoula refinery was

reduced. A management witness testifying on behalf of Chevron, in a Fed.R.Civ.P.

30(b)(6) corporate deposition entered into the record, acknowledged that Chevron

refineries often experience upsets causing decreased production. He testified that

Chevron compensat es for these upsets in a variety of ways, including exchange

agreements with other oil companies in which they supply Chevron with finished

product and are paid back with Chevron’s product after the reduced production has

been made up. He also testified that Chevron sometimes finds it profitable to buy

and resell finished product on the spot market. The trial court made a factual

finding rejecting the contention that Che vron’s refineries were incapable of making

up for reduced production. Chevron made no showing that it could not cover spot

market opportunities by increasing production at another of its refineries during the13 Reeled Tubing, Inc. v. M/V CHAD G , 794 F.2d 1026 (5th Cir. 1986).

14 115 S.Ct. 2091 (1995) (genuine dispute over liability in a mutual fault setting cannot

justify denial of prejudgment interest).

14 Pascagoula upset. Finding a complete failure of proof that Chevron was unable to

substitute product during the relevant period, we must conclude that the economic

losses alleged are speculative and have not been proved with the requisite certainty.

Therefore, on remand the $349,191 awarded must be deducted from the final

computation.

5. Prejudgment interest.

Chance contends that the award of prejudgme n t interest was inappropriate

for four reasons: (1) the plaintiffs waited a full year to bring this action, (2) they

caused substantial litigation delays, (3) the damages award was substantially less

than the claim, and (4) the factual issues in the case were extremely complex.

As a general rule, prejudgment interest should be awarded in maritime tort

cases to comp ensate for the loss of use of funds from the time the claim accrues

until judgment is ent ered. 13 That presumption has been strengthened by C ity of

Milwaukee v. Cement Division, National Gypsum Co.

, in which the S upreme Court

recently limited a trial court’s discretion to deny prejudgment interest. 14

Whether peculiar circumstances exist that would allow the trial c ourt to15 Corpus Christi Oil & Gas Co. v. Zapata Gulf Marine Corp.

, 71 F.3d 198 (5th Cir.

1995).

16 Id. ; Noritake Co. v. M/V Hellenic Champion , 627 F.2d 724 (5th Cir. Unit A 1980).

17 See Reeled Tubing (the rate provided for postjudgment interest in 28 U.S.C. § 1961 is

one appropriate measure of prejudgment interest).

15 conside r denying prejudgment interest is a fact issue reviewed for clear error. 1 5

Even if an appellant can demonstrate that a finding of no peculiar circumstances

is clearly erroneous, there remains the formidable hurdle of showing an abuse of

the discretion created by the peculiar circumstances. 16

In the case at bar, the trial court explicitly considered Chance’s arguments

and rejected them, finding that CPL and Chevron had no control over some of the

factors leading to trial delays and that the equities favored the award of interest.

Our review of the record persuades that the award of prejudgment interest was well

within the court’s discretion. The court, however, did not specify the interest rate.

W e conclude that the interest to be paid is the rate set forth for postjudgment

interest in 28 U.S.C. § 1961. 17

I n accordance with the foregoing analysis, we AFFIRM in part, VAC ATE

the portion of the trial court judgment setting damages, and REMAND for a

recasting of the damages award consistent herewith.