This case arises out of the striking and damaging of libellant's wharf on the Cooper River near Charleston, South Carolina, on October 19, 1963, by the tanker S/S CITIES SERVICE NORFOLK which was attempting to dock at a nearby oil wharf. The ship was being assisted by tugs supplied by White Stack Towing Corporation and the docking operation was being directed by a docking master employed by the towing corporation. The libel demanded the cost of repairs to the wharf, together with interest and costs. In the answer respondent interposed a general denial and alleged that the liability if any was on White Stack Towing Corporation as an independent contractor. When the case came on for trial, the parties submitted the issues to the Court without testimony upon the following agreed stipulation:
The sole issue before the court is the proper measure of damages to which libellant is entitled. Libellant contends that it should recover the full cost of repairing the wharf without any deduction for depreciation, but that if there should be an allowance for depreciation it should be applied against the cost of new materials only, and not against labor and similar construction costs. Respondent contends that the wharf being 40% depreciated at the time of the accident, it is chargeable with only 60% of the entire repair costs, including both labor and materials.
Libellant bases its claim that no depreciation should be allowed upon the theory that the Act of June 19, 1948 [46 U.S.C.A. § 740] extending the admiralty and maritime jurisdiction of the United States to "all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land" extends to cases of injury to a wharf the rule
The rule is thus stated in Shepard Steamship Company v. United States, 111 F.2d 110, 113 [2nd Cir. 1940]:
In a number of cases courts have refused to allow the entire cost of repairs to a vessel damaged in collision, where parts replaced were not in good condition at the time of the accident. In Exner Sand & Gravel Corporation v. Maher Stevedoring Corporation, 1955 A.M.C. 2286 [D.C.N.J.] the court awarded only two-thirds of the full cost of repairs to a barge, saying:
Also in Anthony O'Boyle, Inc. v. Tug Cleveland, 1959 A.M.C. 1172, [E.D.N.Y.] where it appeared that a barge damaged by the respondent was old and needed recaulking, the court made a 25% deduction from the full cost of repairing the damage.
Likewise in Atkins v. Alabama Drydock and Shipbuilding Company, 195 F.Supp. 944, 949 [D.C.Ala.], a case of damage to a wooden vessel, the court said:
It thus appears that even if the general admiralty rule of damages were applicable in the present case, respondent would still be entitled to a reduction of its liability in view of the admitted deterioration of the wharf at the time of the collision. At any rate, the courts have generally allowed depreciation in cases of damages to wharves and similar structures, and this practice has continued
Thus, in General American Transportation Corporation v. Tug Patricia Chotin, 120 F.Supp. 246 [D.C.La.], the court said: "Since the life expectancy of a pile cluster is twenty years and since the 7 pile cluster was five years old at the time of the collision, libellant is entitled to three-fourths of its replacement cost;" and in Jemison v. Dredge Duplex, 163 F.Supp. 947 [D.C.Ala.], where the cost of repairing a wharf was $3,000.00, the court, having found that there had been a 50% depreciation, awarded only $1500.00 damages. In Patterson Terminals, Inc. v. SS Johannes Frans, 209 F.Supp. 705 [D.C.Pa.], the court said:
Apparently, in all the above cases the percentage of depreciation was applied to the entire cost of repairs and in my opinion it would be distinctly unjust to respondent here to limit depreciation to material cost alone. The wharf was repaired with new and sound material so that the repaired portion of the structure had its useful life extended as a result. This extension of life expectancy was purchased at a certain cost for materials and a certain cost for labor. Libellant is entitled to be restored as nearly as possible to its position preceding the accident, but no more. Its position has actually been improved and respondent is entitled to credit for such improvement.
In accordance with the foregoing the court is of the opinion:
That libellant should have judgment for Two Hundred Seventy Five [$275.00] Dollars for temporary repairs and Four Hundred [$400.00] Dollars for damage to fender piling, without deduction for depreciation, with interest at 6% on Two Hundred Seventy Five [$275.00] Dollars from July 9, 1964, and interest at 6% on Four Hundred [$400.00] Dollars from January 31, 1964;
That as to other repairs totaling Eleven Thousand Three Hundred [$11,300.00] Dollars libellant's recovery must be reduced in proportion to prior depreciation of the repaired portions of the structure, stipulated to be 40%, such depreciation allowance to apply to the entire cost of repairs, without distinction between cost of materials and cost of labor; that as to these repairs libellant should have judgment against respondent for 60% of Eleven Thousand, Three Hundred [$11,300.00] Dollars, or Six Thousand Seven Hundred Eighty [$6,780.00] Dollars, with interest at 6% from January 31, 1964.
And it is so ordered.