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



1
  An allision occurs when a vessel strikes a stationary object. 2
Thomas J. Schoenbaum, Admiralty & Maritime Law § 14-2 (2d ed.
1994).
2                                                 No. 03-1789

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, 

(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


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 loosen-
ing a line.
No. 03-1789                                                     3

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 super-
structure of the bridge from common allisions, horizontal
rubbing, or incidental contact with vessels, the City in-
stalled 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 ca-
bles 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 deteriora-
tion of the fender, the City chose not to replace it.7


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 out-
side consultants, recommended replacing the fender system.
However, the City’s Deputy Commissioner Chief Engineer of
the Department of Transportation, Bureau of Bridges, Stan
                                               (continued...)
4                                                      No. 03-1789

  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 main-
tained solely through contact rather than by an independ-
ent 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 approx-
imately 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



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.
No. 03-1789                                                5

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 for-
ward momentum of the vessel, Captain Long put the en-
gines 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).


10
  The coaming is a raised frame around the deck of the vessel
used to keep out water.
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 fend-
ers 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 elec-
trical cables. The damage was extensive, requiring replace-
ment 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 star-
board 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 in-
spected, or which member of the crew inspected the winches
on the day of the accident. In addition, the Captain admit-
ted 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., 

, 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 substruc-
   tures 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 pro-
   tected from sideways, i.e., parallel, contact by being
   placed in a slot. It was nevertheless reasonably foresee-
   able 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, 

, 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 ap-
portioned 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

     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 

. 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., 

,
674 (8th Cir. 2002) (applying de novo review to determine
whether the district court properly applied the rule of The
Pennsylvania, 

(1873), over the Oregon rule).11
However, we review for clear error the district court’s
factual findings, Folkstone Maritime, 

,
and apportionment of fault, Cement Div., Nat’l Gypsum Co.
v. City of Milwaukee (National Gypsum), 

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

, 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.” 

States v. Gypsum Co., 

, 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, 

.



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, 

(1865), or “under
power” and subject to the Oregon rule, the analysis remains un-
changed. 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 main-
tain the fender system over the cable slot. See supra note 6.
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, 

, 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, 

(quoting
Wardell v. Nat’l Transp. Safety Bd., 

, 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, 

. 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., 

, 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.,

, 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, 

, 1326 (5th
Cir. 1988) (recognizing that slight damage to a fender sys-
tem during “normal docking” may fall outside the purview
of the presumption) (collecting cases); Manufacturers Rys.
Co. v. Riverway Harbor Serv. St. Louis, 

,
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

; Brown and Root Marine Operators,
Inc. v. Zapata Off-Shore Co., 

, 726 (5th Cir.
No. 03-1789                                                11

1967). Once fault is presumed the defendant may come
forward with evidence to rebut the presumption, The

, 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 Mari-
time, 

(finding Oregon presumption
rebutted when bridge failed to fully open); I&M Rail Link,
L.L.C. v. Northstar Navigation, Inc., 

, 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., 

, 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., 

, 411 (1975); Brother-
hood Shipping Co., Ltd. v. St. Paul Fire & Marine Ins. Co.,

, 325 (7th Cir. 1993). Therefore, under the
comparative fault analysis between a vessel and a station-
ary 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 

(emphasis added).
12                                                    No. 03-1789

     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 evi-
dence to dispel [some of] the mysteries” of what occurred
during the accident, Rodi Yachts, 

, the
M/V Morgan has not supplied any reason for the mechani-
cal 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 presump-
tion. 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. . . .” 

  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 

(arguing for the inappli-
cability 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



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 gen-
erally do not allide with the structure of a bridge at an acute angle
and that the damage caused to the bridge was extensive. There-
fore, 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, 

.
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 cor-
rectly 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 presump-
tion 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 “inevita-
ble 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

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 “ac-
tual 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 Mari-
time, 

.
   The district court found that the City’s decision not to re-
place 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., 

, 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 dock-
ing). Under a pure comparative fault analysis, “[t]he plain-
tiff’s negligence reduces the amount of damages that he can
collect, but it is not a defense to liability.” Brotherhood
Shipping Co., 

(citing Reliable Transfer

); Bryant v. Partenreederei-Ernest Russ,

, 615 (4th Cir. 1965) (in admiralty “contribu-



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, 

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.” 

No. 03-1789                                                     15

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 unrea-
sonable 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 plain-
tiff’s relative degree of fault.


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., 

, 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 com-
pletely open, in a navigable waterway, with no protection whatso-
ever, 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 

03-1789

     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 an-
gular 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 mainte-
nance 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. 

(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).


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 

(citing The Jumna, 

, 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. . .”).
No. 03-1789                                                   17

     3. The allision was not the result of an “inevita-
        ble 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,

, 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 

; Frost v. Saluski (The Blue Goddess), 

,
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, 

, 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., 

, 947 (8th Cir. 2003). If applicable, each party is respon-
sible for his respective damages and no liability attaches.
The Continental, 

, 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., 

, 274 (2d Cir. 1929) (finding that vessel


16
  “The defendants say ‘Our tiller rope broke, and the vessel be-
came 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?” 

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 main-
tained and inspected); The William E. Reed Hudson River
Shipyards Corp. v. Metropolitan Sand & Gravel Corp., 

, 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., 

, 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 star-
board 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 mechani-
cal 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 

(rejecting the
“inevitable accident” defense when captain could have
prevented the allision by properly handling vessel after
failure of rudders); Meadows and 

(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, 

, 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, 

, 939-40 (7th Cir. 1912) (same). As
explained in The Blue Jacket, 

, 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 maneu-
vered 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 occur-
rence. Puerto Rico Ports Authority v. M/V Manhattan
Prince, 

, 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, ap-
plicability of the doctrine does not prevent a finding of
liability, it merely requires courts to judge a captain’s reac-
tions more leniently because of the crisis situation. Grosse
Ile Bridge Co. v. American Steamship Co., 

,
625-26 (6th Cir. 2002).
  Whether to rebut the presumption or argue for its inap-
plicability, defendants incorrectly attempt to avail them-
20                                                No. 03-1789

selves of the in extremis doctrine equating it to the “in-
evitable 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 

(finding in extremis applica-
ble 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 

(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 suffi-
cient 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. 

and Nat’l Gypsum 

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 pre-
vented the accident by placing a wooden fender in front of
the recessed slot and the cost of such prevention is negligi-
ble, the City’s should be held 100% liable for the damage to
the bridge.
  We find this analysis irreconcilable with the circum-
stances 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 unreason-
able reaction to the equipment failure.
  Defendants correctly assert that National Gypsum
and Rodi Yachts involved ships which slipped their moor-
ings and struck stationary objects. However, in National
Gypsum the vessel was suing the City of Milwaukee ar-
guing that it was negligently assigned to a slip contain-
ing 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 main-
tenance 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

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., 

(“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 con-
tact 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 signifi-
cant. The court also acknowledged that the allision could


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 

.
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 unex-
pected. 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 ar-
gument 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 

(citing 

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.,

, 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 apportion-
ment is 

. 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 

, and affirm the district court’s determina-
tion 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