PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
F.C. WHEAT MARITIME
CORPORATION; WHEAT
INTERNATIONAL COMMUNICATIONS
CORPORATION,
Plaintiffs-Appellants,
and
FEDERAL INSURANCE COMPANY,
No. 10-1906
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(2:09-cv-00093-RAJ-FBS)
Argued: October 25, 2011
Decided: December 14, 2011
Before SHEDD and DUNCAN, Circuit Judges, and
William L. OSTEEN, Jr., United States District Judge for
the Middle District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Shedd and Judge Osteen joined.
2 F.C. WHEAT MARITIME CORP. v. UNITED STATES
COUNSEL
Patricia Ann Smith, LAW OFFICES OF PATRICIA A.
SMITH, Alexandria, Virginia, for Appellants. Sarah Keast,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Appellee.
OPINION
DUNCAN, Circuit Judge:
This appeal arises out of a case involving an allision1
between a United States Army Corps of Engineers
("USACE") vessel and a private yacht, the Marquessa, owned
by F.C. Wheat Maritime Corp. ("Wheat Maritime") and oper-
ated by its parent company Wheat International Communica-
tions Corp. ("Wheat International"). Wheat Maritime and
1
"An allision is a collision between a moving vessel and a stationary
object." Evergreen Int’l., S.A. v. Norfolk Dredging Co., 531 F.3d 302, 304
n.1 (4th Cir. 2008) (quoting Thomas J. Schoenbaum, Admiralty & Mari-
time Law § 5-2 n.1 (4th ed. 2004)). See also Black’s Law Dictionary 88
(9th ed. 2009) (defining an allision as "[t]he contact of a vessel with a sta-
tionary object such as an anchored vessel or a pier"). The Marquessa was
stationary at the time of the incident in this case.
Black’s explains, however, that "collision" is often used where "alli-
sion" was once the preferred term. Black’s Law Dictionary at 88. And as
the Fifth Circuit has noted, "[i]n modern practice, courts generally use the
term ‘collision’ as opposed to ‘allision’ when describing contact between
vessels that gives rise to a suit." Apache Corp. v. Global Santa Fe Drilling
Co., No. 10-30795, 2011 WL 2747575, at *1 n.1 (5th Cir. Jul. 13,
2011)(unpublished). Indeed, the district court here used the term collision.
We adhere to the more precise usage, and are particularly mindful that
admiralty law draws a distinction (albeit not one relevant to this appeal)
between allisions and collisions. See Bessemer & Lake Erie R.R. Co. v.
Seaway Marine Transp., 596 F.3d 357, 362 (6th Cir. 2010) (noting that
admiralty law establishes a rebuttable presumption that in an allision, the
moving object is at fault).
F.C. WHEAT MARITIME CORP. v. UNITED STATES 3
Wheat International (collectively, "Appellants") brought suit
against the United States. The case proceeded to a bench trial
in the district court, resulting in a damages judgment for
Appellants. Appellants appeal from the district court’s award
of damages in their favor, arguing that it is infirm in various
respects. For the reasons that follow, we affirm.
I.
A.
The Marquessa was originally built in 1982 as a 58-foot
Bertram motor yacht, but like many vessels of her kind, was
subsequently extended. After the extension, the Marquessa
measured 70’ from bow to transom, with an additional four-
foot swim platform extending beyond the transom. Wheat
Maritime purchased the Marquessa in 1998 for $875,000 and
made numerous modifications.2 Wheat Maritime ultimately
chartered the vessel to Wheat International. Forrest Wheat
owns both Wheat Maritime and Wheat International.
On February 2, 2008, a USACE vessel allided with the
Marquessa, which was docked at a pier at Ocean Marine
marina in Portsmouth, Virginia. The allision occurred because
the USACE vessel’s captain fell asleep at the helm. The Mar-
quessa was damaged significantly. Appellants brought the
underlying action against the United States under the Public
Vessels Act, 46 U.S.C. § 31101 et seq., and the Suits in
Admiralty Act, 46 U.S.C. § 30901 et seq., in the United States
District Court for the Eastern District of Virginia.
2
The modifications consisted of (1) adding a heating furnace and
enclosing the flybridge for cold weather operation, (2) replumbing and
sanitation work, (3) rebuilding and upgrading engines to ensure compli-
ance with regulations, (4) adding a bow thruster, and (5) electrical alter-
ations.
4 F.C. WHEAT MARITIME CORP. v. UNITED STATES
B.
The United States admitted liability for the allision. The
matter proceeded to a bench trial on the issue of damages.
Appellants and the United States presented evidence regard-
ing the reasonable costs of repairing the Marquessa as well as
her fair market value at the time of the accident. The parties
did so because, as we discuss in greater detail in the next sub-
section, damages determinations in admiralty are governed by
the doctrine of constructive total loss. Under that doctrine,
where the costs of repairing a vessel exceed her pre-casualty
fair market value, damages are limited to fair market value.
1.
a.
We now turn to a consideration of each component of con-
structive total loss. With respect to repair costs, Appellants
argued that they were entitled to $1,117,859.67. This figure
derives from two sources. First, Appellants relied upon an
estimate from the shipyard, Ocean Marine, for $784,000 in
actual repair costs. Second, Appellants contended the addi-
tional $333,859.67 was necessary to account for other related
expenses: the cost of replacing certain items that were on
board the Marquessa, such as certain satellite antennas and
laptop computers owned by Wheat International; the cost for
the captain to be aboard during all shipyard work; travel
expenses to inspect the repairs; and storage costs. Appellants’
evidence with respect to these related expenses was limited.
For example, they presented no evidence that the antennas
were visually inspected for damage, or tested. Similarly,
Appellants presented an estimate of the amount required to
replace the laptops, but presented no evidence that they first
sought to determine whether the laptops were repairable.
b.
Three experts testified regarding the Marquessa’s fair mar-
ket value, relative to her cost of repair. Two of the witnesses,
F.C. WHEAT MARITIME CORP. v. UNITED STATES 5
Jack Hornor, the United States’ expert, and Val Lippa, who
testified for Appellants, were marine surveyors. Gregory
Pierce, who testified for Appellants, was a yacht broker.
Hornor, who has been surveying vessels since 1971 and is
certified as a marine surveyor by the National Association of
Marine Surveyors,3 testified that the Marquessa’s market
value was $440,000. Hornor based his assessment on his
inspection of the vessel, a review of a database of sales of
comparable vessels, and an evaluation of the features that
added to or detracted from the vessel’s value. According to
Hornor, the database in question, soldboats.com, is the source
used most often in the industry and is generally relied upon
in the field. From this website, Hornor identified seven sales
of similar vessels, all of which, like the Marquessa, started
life as 58’ Bertrams, were extended 10-12” just as the Mar-
quessa, and sold at various times for between $275,000 and
$695,000.
Hornor opined that although some of the modifications
enhanced the vessel’s value, many did not. He testified that
the replumbing and sanitation work did not increase the ves-
sel’s comparable value because it was mandated by law and
expected on a boat such as the Marquessa. He explained that
the heating furnace did not increase the value of the boat
because boats of her size and class are expected to have heat
and air conditioning. Wheat’s electrical alterations, he noted,
were of similarly limited importance. The number of rooms
on the Marquessa did not increase the value of the vessel
compared to the comparables, he stated, as the interior vol-
3
This certification requires a five-year apprenticeship, a minimum level
of experience conducting surveys, a day-long examination, and Board
approval. Hornor is also certified in standards and in systems by the
American Boat and Yacht Council, and sits on that body’s board of direc-
tors. He has published over 220 articles in his field. Over the course of his
career, he has determined the market value of 1200 to 1500 vessels, and
he has evaluated the reasonable repair costs of a vessel following a marine
casualty on several thousand occasions.
6 F.C. WHEAT MARITIME CORP. v. UNITED STATES
ume in the extended Bertram yachts was generally the same,
and dividing up the space into five rooms instead of the typi-
cal three results in very small rooms. Hornor testified that the
Marquessa’s larger flybridge contributed little because,
should the flybridge actually be used to hold additional peo-
ple, the extra weight at that height could significantly
decrease the vessel’s stability. Finally, he noted that the four-
foot swim platform, which is irrelevant for purposes of deter-
mining a vessel’s length (as defined by Coast Guard stan-
dards), also did not make the Marquessa so unique that she
could not be compared to the other extended Bertrams.
Moreover, Hornor opined, any increase in the Marquessa’s
value resulting from the improvements was offset by the con-
dition of the vessel’s exterior and her age. Hornor placed par-
ticular emphasis on the paint, noting that the condition of the
finish of a vessel can be a substantial factor in establishing the
vessel’s value. Hornor stated that the paint used on yachts of
this type has a maximum lifespan of ten years, in the best of
conditions. Hornor stated that the painting was not completed
to yacht-quality standards, leaving the Marquessa’s finish
with the texture of an "orange peel" in places. He further testi-
fied that the hull also showed patches of non-matching paint
from spot repairs and refinishing, as well as a "halo effect"
that can result from spot refinishing. The government intro-
duced into evidence photographs reflecting the patchwork
effect and halos. With respect to the cost of repairing the Mar-
quessa, Hornor testified that reasonable cost would be in the
range of $460,000 to $470,000.
Lippa, also an accredited marine surveyor,4 was called by
Appellants to testify as to the costs of repair. Similar to Hor-
nor, Lippa opined that the Marquessa’s market value was
$470,000.5 Lippa based this figure on examining the vessel
4
Lippa is a Member of the Society of Accredited Marine Surveyors. He
has surveyed recreational vessels for nine years. He surveyed vessels in
the United States Navy for four years prior to that.
5
Having called Lippa to testify regarding the costs of repairing the Mar-
quessa, Appellants objected to the government’s questioning him regard-
F.C. WHEAT MARITIME CORP. v. UNITED STATES 7
and using the same subscription website as Hornor did. Lippa
further opined that the Marquessa was a constructive total
loss, in that the costs of repairing the vessel exceeded her
market value.
Pierce, on the other hand, departed significantly from the
opinions of Hornor and Lippa in setting the market value of
the Marquessa at the time of the allision at $900,000. Pierce,
a yacht broker, stated that he represented Wheat during his
purchase of the Marquessa, and advised about her over the
years. He estimated having visited her fifty times or more.
According to Pierce, these visits were primarily social occa-
sions, and he acknowledged receiving much of his informa-
tion about the vessel from Wheat. Pierce testified that he
arrived at his valuation based on a review of market listings
of asking prices in early 2008, as well as a later review of ask-
ing prices for 80-foot Hatterases in January 2009. He specifi-
cally identified only one sold vessel as a comparable—an 82-
foot Hatteras that sold for $875,000, almost double the price
of boats of similar size and vintage, because of her customer
improvements. As a yacht broker and not a marine surveyor,
Pierce described his valuation process as, "Not very scientific
and certainly not a lot of weight in a courtroom, but it’s what
I did." J.A. 237.
2.
At the conclusion of trial, the district court issued a com-
prehensive opinion containing its factual findings and legal
conclusions. To a considerable extent, the district court’s find-
ings of fact were grounded in credibility determinations.
ing "the Marquessa’s preloss actual cash value" as "exceed[ing] the scope
of his expertise in this case." J.A. 182. The district court, however, ruled
that it would allow the testimony because "he’s talking about the cost of
repair and what needs to be repaired." J.A. 183.
8 F.C. WHEAT MARITIME CORP. v. UNITED STATES
a.
First, the district court found that Hornor and Lippa were
more credible than Pierce. Consequently, it agreed with the
assessment of both surveyors that the Marquessa was a con-
structive total loss because the cost of repairs exceeded her
market value.6 Second, crediting Hornor’s (and to some extent
Lippa’s) testimony, the district court found the market value
of the Marquessa at the time of the allision to be $440,000.
The district court further concluded that Hornor’s method-
ology for computing the Marquessa’s market value was the
most sound and comprehensive. In reaching this conclusion,
the district court found no reason to question the accuracy of
the soldboats.com database. The district court held that both
Hornor and Lippa had inspected the vessel extensively and
could assess her value and condition. And the district court
agreed, based on Hornor’s testimony and the photographs in
evidence, that the vessel was in worse condition than Appel-
lants claimed.
The district court noted that Lippa was Appellants’ expert
surveyor, and that Lippa and Hornor found the value of the
Marquessa to be $470,000 and $440,000 respectively—in
stark contrast to Pierce’s figure of $900,000. The district court
doubted Pierce’s estimate because of his personal relationship
with Wheat; indeed, the court noted, Pierce had only made
social visits to the vessel. Unlike Hornor and Lippa, Pierce is
not a surveyor but a yacht broker. Pierce did not conduct an
inspection of the boat or have the boat surveyed, and much of
his information about the vessel’s condition was admittedly
6
The district court did not make a specific factual finding regarding the
cost of repairs (including alleged damage to certain antennas and laptop
computers owned by Wheat International that were onboard the Mar-
quessa). It noted, however, that "[e]ven under the [P]laintiffs’ estimations,
the [c]ourt could find the vessel to be a constructive total loss. Appellants’
expert on value testified that the vessel was worth $900,000, while their
estimates for repairs reach over $1.1 million." J.A. 410.
F.C. WHEAT MARITIME CORP. v. UNITED STATES 9
provided by Wheat. Significantly, in contrast to the other
experts, Pierce’s estimates were largely drawn from a listing
service that provided asking price rather than sale price. In
addition, Pierce only provided the sale price for one boat he
considers a comparable, which notably is almost 10’ longer
than the Marquessa and a different make and model. By con-
trast, both Hornor and Lippa looked to sale prices of compara-
ble vessels when conducting their market analyses.
b.
Based on these factual findings, the district court entered
judgment for Appellants, finding that they were entitled to
$440,000, the value of the vessel at the time of the allision.
The United States moved to amend the judgment because the
parties had previously stipulated that Wheat Maritime subro-
gated to its insurer its rights to recover $682,500 paid toward
physical damage to the Marquessa. Should such damages be
awarded, neither Wheat Maritime nor Wheat International
could claim the right to recover the first $682,500 awarded.7
The district court granted the motion, holding that in view of
the parties’ stipulation of subrogation, Appellants were not
entitled to receive $440,000 from the United States. Appel-
lants now appeal from the district court’s amended judgment.
II.
Appellants present the following issues on appeal: whether
the district court erred in applying the constructive loss doc-
trine to this case; whether the district court erred in finding
that the Marquessa had a market value of $440,000 (specifi-
cally whether the district court erred in crediting Hornor’s and
Lippa’s testimony regarding market value and erred in failing
to consider other evidence of market value); whether appel-
7
Appellants received $682,500 from their insurer for damage to the
Marquessa. The United States settled with the Appellants’ insurer in the
same amount.
10 F.C. WHEAT MARITIME CORP. v. UNITED STATES
lant Wheat International was entitled to a separate judgment
for damage alleged to certain equipment on board the Mar-
quessa; and whether the district court correctly amended its
initial judgment to account for Appellants’ stipulation that
they were not entitled to the first $682,500 in damages for the
physical damage done to the Marquessa. We consider each
contention in turn.
A.
We first consider whether the district court erred in apply-
ing the doctrine of constructive total loss. Appellants argue
that the doctrine is inapplicable where it can be shown that no
vessel could provide an adequate replacement. We review this
legal question de novo. See Garris v. Norfolk Shipbuilding &
Drydock Corp., 210 F.3d 209, 211 (4th Cir. 2001).
"It is fundamental in the law of damages that the injured
party is entitled to compensation for the loss sustained." Std.
Oil Co. v. Southern Pac. Co., 268 U.S. 146, 155 (1925). We
have held that "restitutio in integrum"—that is, restoration of
the injured party to the position it occupied before the
wrong—is the "precept in fixing damages." Hewlett v. Barge
Bertie, 418 F.2d 654, 657 (4th Cir. 1969). Accordingly,
"where repairs are practicable[,] the general rule followed by
the admiralty courts . . . is that the damages assessed against
the respondent shall be sufficient to restore the injured vessel
to the condition in which she was at the time the collision
occurred." Id. (quoting The Baltimore, 75 U.S. (8 Wall) 377,
385 (1869)). In the event of a total loss, the injured party is
restored to the position it occupied before the wrong if it
receives the vessel’s pre-casualty fair market value. Std. Oil
Co., 268 U.S. at 155; Hewlett, 418 F.2d at 657. Similarly, if
the cost of repairing the vessel exceeds her pre-casualty fair
market value, the limit of compensation is the vessel’s fair
market value at the time of the casualty. Hewlett, 418 F.2d at
657 (citing O’Brien Bros. v. The Helen B. Moran, 160 F.2d
502 (2d Cir. 1947)); see also U.S. Fire Ins. Co. v. Allied Tow-
F.C. WHEAT MARITIME CORP. v. UNITED STATES 11
ing Corp., 966 F.2d 820, 825-28 (4th Cir. 1992) (reversing the
district court’s damages calculation without disturbing its
finding that the vessel was a constructive total loss because
the cost of repair exceeded the value of the vessel at the time
of the collision).
This rule flows from the principle that by receiving the ves-
sel’s monetary equivalent in damages, the owner is put in as
good of a position pecuniarily as he would have been in if his
property had not been destroyed. See Std. Oil Co., 268 U.S.
at 155. Moreover, the rule limiting damages to market value
in the event of constructive total loss is premised on the sound
assumption that a shipowner of ordinary prudence would not
go to the expense of repairing a vessel if the cost of repair
would be greater than the fair market value of the vessel after
repair. A plaintiff is therefore entitled to be made whole, but
only in the least expensive way: market value or replacement
cost, whichever is less.8 Cf. Maryland Cas. Co. v. Armco, Inc.,
822 F.2d 1348, 1353 (4th Cir. 1987) (noting that the purpose
of damages is to replace the loss in value with a sum of
money and that it might very well cost far more to restore
damaged property than it would to pay damages for its
loss)(citing Peevyhouse v. Garland Coal & Mining Co., 382
P.2d 109 (Okla. 1962)); Fisher v. Qualico Contracting Corp.,
779 N.E.2d 178, 181-82 (N.Y. 2002) (affirming New York’s
rule that as between market value and replacement cost, the
plaintiff is entitled to the lesser of the two); Douglas Laycock,
Modern American Remedies 26 (4th ed. 2010) (noting that
New York’s "lesser of two" rule is well-settled in most juris-
dictions, although not entirely uncontroversial).
Appellants’ argument regarding the uniqueness of the Mar-
8
It bears note that under the rule Appellants seek, vessel owners would
receive greater compensation if the vessel were capable of repair than if
it were a total loss. Stated another way, tortfeasors would be worse off if
they merely damaged, rather than destroyed, a vessel. Such a distorted set
of results and incentives militates against Appellants’ proposed rule.
12 F.C. WHEAT MARITIME CORP. v. UNITED STATES
quessa is not without some merit. We recognize that courts
have awarded a vessel’s replacement cost, even when it is
greater than her purported market value, where the person
who suffered the loss proved a unique use for the vessel that
would not be recognized in her market price. See King Fisher
Marine Serv., Inc. v. NP Sunbonnet, 724 F.2d 1181, 1185-87
(5th Cir. 1984) (upholding a replacement cost award where
plaintiff had purchased a barge because of her unique capabil-
ities and repurposed her as a drydock platform and the market
did not value the barge’s use as a drydock platform); Thomas
J. Schoenbaum, Admiralty & Maritime Law, § 14-6, at 143
(5th ed. 2011) (observing that replacement cost may be deter-
mined to be a more accurate measure where the person who
suffered the loss proved a unique use of the vessel). In those
rare cases, the vessel effectively has no market value because
of her unique use, and it may be appropriate to award her
replacement cost in damages. Cf. Allied Towing, 966 F.2d at
826 (concluding that "[a] court may permissibly value a ves-
sel for which a market value is not ascertainable by relying
upon any number of methodologies, including the vessel’s
replacement cost depreciated").
Because we agree with the government that Appellants
simply used the Marquessa as a yacht and did not prove that
their use of the vessel was so idiosyncratic as to lack any mar-
ket comparables, we hold that the Marquessa possessed no
special qualities that filled legitimate commercial needs that
would not be recognized in her market price.
We therefore affirm on these facts the longstanding rule
that if the cost of repairing a vessel exceeds her pre-casualty
fair market value, the limit of compensation is the vessel’s
fair market value at the time of collision.
B.
We next consider whether the district court erred in finding
that at the time of the allision, the Marquessa had a market
F.C. WHEAT MARITIME CORP. v. UNITED STATES 13
value of $440,000. Appellants raise two challenges in this
regard. First, Appellants contend that the district court erred
in crediting the testimony of Hornor and Lippa regarding mar-
ket value over that of Pierce; with respect to Lippa, they also
assert that the district court improperly admitted portions of
his testimony. Second, they argue that the district court erred
in failing to consider other evidence as to the Marquessa’s
value. We address each contention in turn.
This court reviews findings of fact following a bench trial
in an admiralty case for clear error, construing the evidence
in the light most favorable to the appellee. Evergreen Int’l
S.A. v. Norfolk Dredging Co., 531 F.3d 302, 308 (4th Cir.
2008). We review a mixed question of law and fact "by
inspecting factual findings for clear error and examining de
novo the legal conclusions derived from those facts." Meson
v. GATX Technology Servs. Corp., 507 F.3d 803, 806 (4th
Cir. 2007). A finding is clearly erroneous when, although
there is evidence to support it, the reviewing court on the
entire evidence is left with a definite and firm conviction that
a mistake has been committed. Evergreen, 531 F.3d at 308.
Where a district court’s factual finding in a bench trial is
based upon an assessment of witness credibility, such finding
"is deserving of the highest degree of appellate deference." Id.
We review a district court’s decision to admit expert testi-
mony for abuse of discretion. See, e.g., Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 141-42 (1997); Christopher Phelps &
Assocs., LLC v. Galloway, 492 F.3d 532, 542 (4th Cir. 2007).
As noted above, the measure of damages for a total loss
(including a constructive total loss) is market value estab-
lished by contemporaneous sales of like property in the ordi-
nary course of business. Std. Oil Co., 268 U.S. at 155;
Hewlett, 418 F.2d at 658.
1.
Appellants argue that the trial court erred by crediting Hor-
nor’s and Lippa’s expert testimony regarding the Marquessa’s
14 F.C. WHEAT MARITIME CORP. v. UNITED STATES
market value. Appellants attack Hornor’s credibility in two
principal ways. First, they argue that at the time he prepared
his expert report and stated his opinion on market value, Hor-
nor had reviewed no documents or other evidence related to
the purchase of the Marquessa, surveys at the time of pur-
chase, the modifications made to the Marquessa, or an inter-
rogatory response listing all of her custom modifications. As
the district court noted, however, Hornor had inspected the
vessel extensively and could assess her value and condition.
Moreover, Hornor ultimately reviewed the relevant evidence
and testified that none of this information changed his opinion
of the value of the Marquessa. The fact that he had not done
so earlier is therefore of little import.
Second, Appellants contend that the seven other extended
Bertrams used by Hornor for comparison were not compara-
ble to the Marquessa because they were not identical in
length; did not have the same number of staterooms, heads,
and crew quarters; and did not have a 60’ flybridge. The dis-
trict court, however, reasonably credited Hornor’s expert tes-
timony that the modifications to the Marquessa not only did
not improve her value, but in some instances decreased her
stability.
Appellants also contend that the district court erred in
admitting Lippa’s expert testimony on pre-incident market
value of the vessel and in significantly relying upon that evi-
dence in its decision. While the former assertion presents a
somewhat close question, the latter is belied by the record.
As noted above, Appellants did object to the government’s
questioning Lippa regarding "the Marquessa’s preloss actual
cash value" as "exceed[ing] the scope of his expertise in this
case," and the district court, somewhat puzzlingly, ruled that
it would allow the testimony because "he’s talking about the
cost of repair and what needs to be repaired." J.A. 182-83. In
fact, Lippa went on to testify regarding the Marquessa’s fair
market value based upon the market approach, which involves
F.C. WHEAT MARITIME CORP. v. UNITED STATES 15
looking at sales of comparable vessels. Thus, the district
court’s expressed rationale for allowing Lippa’s expert testi-
mony somewhat misses the mark. However, as the govern-
ment points out, Appellants offer no serious contention that
Lippa—an accredited marine surveyor with nine years’ expe-
rience with recreational vessels—is unqualified to value the
Marquessa. In the absence of any evidence that Lippa in fact
lacked the requisite expertise, the district court did not abuse
its discretion in admitting Lippa’s expert testimony.
Moreover, the record clearly indicates that the district court
did not significantly rely on Lippa’s expert testimony. To the
contrary, it only briefly addressed Lippa’s conclusion regard-
ing the value of the vessel, instead focusing the bulk of its dis-
cussion on Hornor’s analysis.
In sum, Appellants’ arguments fall short of establishing
that the district court, having considered the expert testimony
and arguments presented, erred in choosing to credit Hornor’s
(and to some extent Lippa’s) conclusions regarding the Mar-
quessa’s value. The district court also had ample reason to
doubt Pierce’s credibility for the reasons we have noted: he
was not an expert surveyor; his methodology lacked reliability
(he conducted no inspections or surveys, based his valuation
on the asking—not sales—prices of vessels, could identify
only one purportedly comparable vessel, and admitted that his
valuation process was not very scientific); and he was likely
influenced by his longstanding personal relationship with
Wheat. On this record, we see no reason to disturb the district
court’s well-supported credibility determination—even were
it not deserving of our highest deference on appeal.
2.
Next, we address Appellants’ contention that the district
court erred by failing to consider other evidence of the Mar-
quessa’s value. Specifically, Appellants assert that insurance
16 F.C. WHEAT MARITIME CORP. v. UNITED STATES
valuation and the fact of the Marquessa’s unique suitability to
them were relevant considerations.
"Where there is no market value, such as is established by
contemporaneous sales of like property in the way of ordinary
business, as in the case of merchandise bought and sold in the
market, other evidence is resorted to." Std. Oil Co., 268 U.S.
at 155; Barton v. Borit, 316 F.2d 550, 553 (3d Cir. 1963)
(same); Carl Sawyer, Inc. v. Poor, 180 F.2d 962, 963 (5th Cir.
1950)(same). As noted above, we have concluded that "[a]
court may permissibly value a vessel for which a market value
is not ascertainable by relying upon any number of methodol-
ogies, including . . . expert opinion regarding the value of the
vessel . . . and the amount for which the vessel was insured."
Allied Towing Corp., 966 F.2d at 826 (citing Standard Oil,
268 U.S. at 156, and Sawyer, 180 F.2d at 963). Appellants are
therefore correct to note that other evidence may be probative
of value in some circumstances. Here, however, the district
court established the Marquessa’s market value based on
expert opinion regarding contemporaneous sales, and there-
fore did not need to consider any other evidence as to her
value. Appellants’ argument that the district court erred in
failing to consider the Marquessa’s idiosyncratic value also
falters for the same reason. We have held that "[t]he special
value to the owner is a consideration of substance," but only
where the vessel has no ascertainable market value. Hewlett,
418 F.2d at 658. Here, the district court reasonably credited
expert testimony establishing a market value for the Mar-
quessa.
C.
Next, we consider whether appellant Wheat International
was entitled to a separate judgment for damage alleged to
antennas and computers it owned that were on board the Mar-
quessa. Appellants argue that these items are not inherently
part of the vessel and have nothing to do with repair of the
vessel, and thus appellant Wheat International is entitled to
F.C. WHEAT MARITIME CORP. v. UNITED STATES 17
damages for them whether or not the Marquessa is considered
a constructive total loss.
A plaintiff has the burden to prove both the fact of damage
and the extent of that damage with reasonable certainty. See
Yarmouth Sea Products Ltd. v. Scully, 131 F.3d 389, 395-97
(4th Cir. 1997) (applying the reasonable certainty standard to
lost profit damages); Turecamo Mar., Inc. v. Weeks Dredge
No. 516, 872 F. Supp. 1215, 1233 (S.D.N.Y. 1994) (applying
the reasonable certainty standard to recovery for the reason-
able cost of repairs).
We conclude that there is insufficient basis in the record for
determining the fact or extent of the alleged damage to the
antennas and computers. Notably, Appellants do not dispute
that they failed to visually inspect the antennas for damage
and did no testing. Likewise, with regard to the computers,
Appellants obtained an estimate to replace them, but appar-
ently without first determining whether they were repairable.
On this record, the fact of loss is speculative, and there is no
certainty as to the extent of any damage.9
D.
Finally, we consider whether the district court erred in
amending its initial judgment to account for Appellants’ stipu-
lation that they were not entitled to the first $682,500 in dam-
ages for the physical damage done to the Marquessa. This
court recognizes three grounds for amending an earlier judg-
ment: (1) an intervening change in controlling law, (2) the
emergence of evidence not previously available, and (3) the
correction of a clear error of law or the prevention of manifest
injustice. Pacific Ins. Co. v. Am. Nat’l Fire Ins. Co., 148 F.3d
9
Because we conclude that the Appellants did not meet their burden of
proof with respect to the fact and extent of damage, we need not resolve
whether Wheat International’s equipment formed an inherent part of the
Marquessa.
18 F.C. WHEAT MARITIME CORP. v. UNITED STATES
396, 403 (4th Cir. 1998). The district court found that amend-
ment was appropriate to avoid the manifest injustice of having
Appellants recover a reward of $440,000 to which they are
not entitled.
Appellants argue that awarding them damages would not be
a manifest injustice because the damages award was for the
value of the vessel, rather than physical damage done to the
vessel. This is pure sophistry. As the government points out,
under either measure of damage, reasonable repair cost or
market value, the government would be compensating Appel-
lants for the physical damage it did to the Marquessa. More-
over, we are persuaded by the government’s argument that the
amended judgment comports with the interests of justice, as
any further recovery for Appellants would constitute a double
recovery for them (because they already received $682,500
from their insurer for damage to the Marquessa), and a double
payment by the United States (which states that it settled with
the Appellants’ insurer in the same amount, based, in part,
upon the stipulations by the Appellants that they were not
entitled to that sum).
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED