F.C. Wheat Maritime Corp. v. United States

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2011)(unpublished).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