Damages Disputed After Cargo Ship Damages Coal-Loading Machine

_________________ , seaway presented the uncontested opinion of its economic expert to underscore the for the sixth circuit unloading operations . . . there would have been no violation of 33 u.s.c. § 403."). because a demonstrated violation of § 403, which has not been shown here. city of portland, 217 of some liability--that is, to raise a comparative fault defense against the stationary object. recommended for full-text publication extended over navigable water while not in use. see consolidated rail, 1983 a.m.c. 1242, but bessemer's initial disclosures gave few answers. under the heading "a been incurred . . . as a result of the planned carriage" as well as "a breakdown of the actual seaway marine transport, et al. third, bessemer claims that there was nothing to turn over because it saved nothing - seaway marine transport, et al. machine operated by bessemer & lake erie railroad company and the pittsburgh & page 4 percentages of fault assigned parties adjudged negligent." in re mid-south towing co., 418 crew of the vessel is solely responsible . . . even where the vessel's crew receives assistance for the northern district of ohio at cleveland. 487 (4th cir. 1920) (illegal obstruction of navigation to extend a crane "over the navigable extended across the ship and shiploader operator james fertig in the cab, the shiploader significantlyflawed." r.33-22,8. givenbessemer'schronicallyinadequatedisclosuresand page 15 unloader was headed for the boom. r.42-6 at 26­27. perhaps fertig could have looked of its claim. bessemer turned over tonnage rates for its various clients and train schedules revenues, not the exact amount of lost profits. and if it can rebut the presumption, that makes it completely fault free. either way, the no triable issue of fact over bessemer's comparative negligence. seaway raises three seaway marine transport, et al. finally, bessemer claims that seaway asks for too much. rule 26, bessemer argues, information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure information about the basis of bessemer's lost profits claim, with bessemer alternatively because it had no evidence of lost profits left to consider, granting summary judgment to seaway marine transport, et al. to spot the distances the enterprise needed to travel. to account for genuine issues of fact concerning bessemer's comparative negligence. to support a coal conveyor system," not the boom itself. see r.44-3 at 7. in the absence of shipping ltd., upper lakes shipping inc., previously provided." r.33-7 at 8. subsequent rounds of requests yielded little additional company and the pittsburgh and protective order, it is true, enabled bessemer to produce additional information in support in their appellate papers, the parties primarily square off over whether the oregon rule from the interruption. bessemer reply 12­19. but it suspends reality to suggest that 26, bessemer produced "all evidence as to `lost profits'" after the district court entered a mid-south towing co., 418 f.3d 526, 532 n.6 (5th cir. 2005); see also thomas j. the absence of a statutory violation, an inappropriately extended crane can become a "de "(1) the allision was actually the [sole] fault of the stationary object; (2) the moving vessel elsewhere also go only to lost gross revenues. still missing, even after entry of the protective oleron, article xiv (circa 1150 a.d.) (fault should ordinarily be apportioned between unloading boom, a crane-like device that allows the ship to unload its own cargo. on-deck counsel representatives acknowledged, the spreadsheet showed the exact amount of lost gross for losing the stelco contract came at suter's deposition approximately six months later. that does not end the matter. as the operator of a dock, bessemer had a duty to civ. pro. 26(a)(1)(a)(iii). because bessemer never provided a critical piece of the lost- over whether bessemer met this standard of care. see in re city of new york, 522 f.3d 279, renewed its contract for that year, the first mention of bessemer's intent to claim damages omissions were not harmless. because bessemer never turned over supporting circumstances"). that claim. we affirm the district court's rejection of bessemer's lost-profits claim but "[t]he oregon rule . . . speaks explicitly only to a presumed breach on the part of the witnesses could provide "an estimate and breakdown as to the actual costs that would have a. raffa dietz, richard a. dietz, a. poppy goudsmit, foster, meadows & shift and fertig's uncertainty as to whether he did so creates a genuine factual issue over the operator walks out across the boom and enters the operator's cab, which is suspended _________________ spreadsheet entitled "canadian enterprise incident 10-04-05" and listing dollar amounts for due to its alleged comparative fault? the answer to that question does not turn on the inappropriately over the enterprise while the vessel completed its shift. seaway br. 15­19. perhaps as a result of the way the parties briefed the case, the district court took the v. shiploader operators employed by bessemer control the movement of the boom and occurs when a moving vessel strikes a stationary object, and a collision occurs when two nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. stelco contract claim prevented seaway from exploring the basis of that claim during argued: brian j. miles, d'luge, miles, miles & cameron p.l.c., mount 402 n.3 (1975). "the rule in admiralty, when property damage results from a[n] [a]llision bessemer. explanation of why rule 26 was not complied with or the mistake was harmless." vance ex with a maneuver that resulted in an allision). called for the shiploader to empty coal into hatch fourteen, located midship, which required that is not how the oregon rule works. it is a burden-shifting doctrine, "not a rule know of anyone who would. a544­46. james rogers, a second corporate representative, and unattended machinery extended over the water with "enough permanency to bring "simpl[icity]" and "efficien[cy]" of the one-page spreadsheet it produced, claiming it fertig acknowledges that, on prior occasions, he has checked behind him before giving damages. in view of bessemer's noncompliance with rule 26, the court excluded evidence a navigational statute). page 8 - introduced evidence to dispel the mysteries that gave rise to the presumption," the oregon emptied coal into hatch five, which is near the bow of the vessel. the loading plan then and two deck hands handling the ship's wires from the dock. drolet could not see the self- seaway marine transport, et al. to resolve. not "tell you whether it was a cost saved or a cost incurred." a191; see also a178, a179. beginning the shift. unloader from his location, and donnelly acknowledges that he was looking at the controls, who fails to provide adequate clearance at fault when vessel hits bridge). page 13 striking machinery that obstructed its path across a waterway. see city of portland, 217 f.2d of coal from the shiploader. captain frederick penney secured the ship and turned control seaway marine transport, et al. f.3d at 532; accord zerega ave. realty corp. v. hornbeck offshore transp., llc, 571 f.3d according to first mate drolet, the vessel must receive clearance from the shiploader of railroad cars, the number of engines required, the personnel needed and the number of lost-profits claim. a183, 184. bessemer insists that it provided sufficient notice of this claim by including with permitting statute], it would have been . . . an obstruction to navigation," but based its - - of lost profits under civil rule 37(c)(1) and granted summary judgment on the lost-profits copy of all documents that relate to, support, or are in any way connected with the allegation 3. bessemer takes on the district court's ruling from several angles. first, it touts the vessel was entitled to prove comparative fault without rebutting the oregon rule, there was (1899); see also algoma cent. corp. v. michigan limestone operations, no. 94-1917, 1996 for lost profits based on its loss of a major customer. we agree. costs incurred" relating to canceled shipments. a314. fell short of this basic requirement in two respects: by not disclosing the costs it saved seaway fared no better in its depositions of bessemer employees. seaway's the parties, to be sure, spar over whether the rule applies to the self-unloader, with bessemer shouldhavecheckedtheself-unloader'spositiononcethevesselbeganmoving,wedisagree. at the same time, however, the district court found that bessemer had failed to comply with leitch upper lakes shipping in personam, cost-of-repair damages to bessemer but determined that bessemer did not adequately seaway marine transport, et al. maintained and available." r.33-23, ¶ 10. bessemer thus cannot excuse its conduct by "any future loss of business revenue that may become known through the course of nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. not shown a genuine issue as to whether doing so fell within the scope of the operator's swung out or not" prior to giving the go-ahead. r.42-2 at 51, r.60 at 54:22­55:3. taken deposition notices to bessemer's corporate representatives detailed its expectation that the together, the evidence of the operator's responsibility to ensure proper clearance prior to the notifying seaway of its stelco lost-contract claim. bessemer's meager excuses, the court inadequate disclosure and when it ultimately granted summary judgment to seaway on the - "properly identified the exact amount of [bessemer's] claimed lost profits for diverted trains clemens, michigan, for appellants. camille a. raffa dietz, foster, meadows & wl 23214, at *7 (6th cir. jan. 22, 1996). and in this instance bessemer's alleged with the self-unloader off to the ship's side, drolet radioed fertig and asked for clearance to see if any vessel structures might hit the boom. yet during his deposition he bessemer also did not timely disclose its approximately $1 million claim for loss of responsibility for the accident. it admits that it does. the question is whether, even if the seaway adds that some of the fault belongs to bessemer because fertig did not check a letter saying that stelco might cancel its contract did not adequately inform seaway about 648, 2001 wl 34037327 (n.d. cal. aug. 27, 2001) (shore personnel did not assist vessel permissibly concluded, did not amount to substantial justification. the damage was not the kind the statute was designed to prevent, see folkstone, 64 f.2d at applies--seaway claiming that the rule does not apply because bessemer's movable boom facto obstruction to navigation." contrary to seaway's argument, the court speculated that - before: norris, clay and sutton, circuit judges. claim. but that is not what rule 26 says. it requires documents "on which each computation cir. 2007). (an elision occurs when lawyers mistakenly lump the two concepts together.) a. not the self-unloader. fertig watched the ship move beneath him from his cab suspended (6th cir. 2009). transform a modest evidentiary presumption into a rule that wiped away a longstanding behind him once the shift began and done something to avert the allision. but seaway has argues that it should not be held solely to account for the accident. seaway principally the chute. an operator initially lowers the boom from its vertical stowed position using reverse in part as to liability, finding a genuine dispute of fact over bessemer's comparative inadequacies of bessemer's disclosures. bessemer, the expert said, did not turn over case, seaway had to "rebut the presumption" of fault before it could consider seaway's nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. seaway marine transport, et al. 1999) (rejecting a similar argument). streett had no information about any costs bessemer may have saved and said that he did not the interruption in operations or referring seaway to documents "already in [seaway's an obstruction-to-navigation theory of liability does not apply where the alleged obstruction once the oregon rule is triggered, the moving vessel has three ways to rebut all liability: > seaway. when "a party fails to provide information . . . the party is not allowed to use that although bessemer would have known by the last month of 2006 that stelco had not the boom, with in-cab controls that allow the operator to raise the boom by as much as documenting one train diversion as a result of the incident. r.33-5. nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. seaway marine transport, et al. seaway marine transport, upper lakes the appropriateness of dismissal as a discovery sanction under rule 37(b). see phillips v. cir. 1995) (describing ways to rebut the presumption of fault against the party in breach of 1 receiving the load. a chute hangs from the boom and deposits coal in the ship's hatches. it determined that bessemer did not adequately disclose the basis for its lost-profits claim unpublished district court case from another circuit--is neither "applicable law" nor responded that he "simply [didn't] know what those documents would be." a222. to the extent seaway claims that there remains a triable issue over whether fertig - 206, 212 (2d cir. 2009). negligence. bessemer's internal operating procedure required "shiploader operators . . . to raise statutory violation did not affect the allision, a party's noncompliance does not factor into "[could not] say whether" he "look[ed] out the back window to see whether the boom was total" of $1,601,675, but provided no explanation and no supporting documentation to back insisting it had no documents to produce. nor can it justify its actions on the ground that it depositions and discovery. shiploader's boom. relying on the rule of the oregon, 158 u.s. 186 (1895)--a rebuttable comparative negligence defense. r.45 at 16. when seaway could not do so, the court found violation and noted that it might not have arrived at the same conclusion. 217 f.2d at 897. approach leaves no room for a comparative negligence defense. yet comparative and file name: 10a0055p.06 worse, royster guano and city of portland found liability primarily on the basis of ii. moving object hits a stationary object, the moving object is at fault. see the oregon, 158 the oregon rule applies to allisions, establishing a rebuttable presumption that, when a once the vessel started shifting, his role was to let the vessel know "how close" it was to twenty-two hatches for storing coal. on its deck near the stern, it has a 250-foot-long self- materials bearing on the nature and extent of injuries suffered." fed. r. civ. p. given their relevance to the lost-profits claim, the district court did not abuse its discretion vessel was negligent, may it still shift some responsibility for the accident to the dock owner nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. was merely waiting for a protective order before turning over what seaway needed. even order, were figures addressing the costs bessemer saved. bessemer's alleged noncompliance was not a contributing cause of the allision and because and controls the dispensing of coal into the ship. the operator also has some control over provide safe facilities to vessels using its facilities. smith v. burnett, 173 u.s. 430, 433 894; royster guano, 266 f. 484; consolidated rail corp. v. m/v lagada beach, 1983 radioed the distances to drolet. insisting that seaway has somehow taken the statements frombessemer personnel regarding ruling. moving vessels strike each other. see fischer v. s/y neraida, 508 f.3d 586, 589 n.1 (11th became a "de facto obstruction to navigation" when bessemer left it positioned page 16 prevent. see city of portland, 217 f.2d at 898 ("if the boom . . . were lowered only for nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. _________________ regarding tonnage rates and train schedules) and waited nearly two months more before while the shiploader underwent repairs. see the potomac, 105 u.s. 630, 632 (1881) (lost contributory negligence not only are venerable doctrines in general, but they also turn on moving vessel and stationary object), contained in schoenbaum, 3 admiralty and maritime of lost business," r.33-7 at 7. bessemer responded by referring seaway to "documents shiploader, a large, land-based steel structure. conveyor belts transport coal from silos to page 2 in close proximity to any vessel structure which would come in contact with the shiploader sutton, circuit judge. when the enterprise, a large cargo ship, positioned itself chute, boom, cab, and/or etc." r.44-9. bessemer personnel acknowledged that the self- page 5 operator prior to beginning the maneuver "because it's a serious matter" if one of the vessel's process, seaway br. 15; and (3) that factual issues remain over whether bessemer should presumption that, when a moving object strikes a stationary object, the moving object is at because the ship's self-unloader obstructs access to hatch fourteen when it is in a resting for which "the test is very simple: the sanction is mandatory unless there is a reasonable - iii. all documents relating to the issue of damages." r.33-2. theories of comparative fault: (1) that bessemer did not show that it had a proper permit for argued: november 19, 2009 during discovery, when it excluded evidence of the claim under rule 37 as a result of the structure[]" without a permit from the united states. 33 u.s.c. § 403. yet, as seaway unless the vessel is mishandled in some way," the rule presumptively allocates fault when a. acknowledged at his deposition that raising the boom high enough to avoid the enterprise's _________________ nos. 08-4676/4678 does not show whether it was stationary at the time of the incident. from the center of the boom. from inside the cab, the operator adjusts the angle of the chute obstruction to navigation. see consolidated rail, 1983 a.m.c. 1242, r.42-9 at 4 (finding opposing party "a computation of each category of damages claimed" as well as "the second, bessemer argues that, even if the one-page spreadsheet did not satisfy rule admiralty law draws a distinction between allisions and collisions. an allision that is true here, as seaway has admitted some negligence, but not full controls allow the crew to swing the self-unloader to either side of the vessel. - require the vessel to prove it bore none of the fault. that leaves the moving vessel in an all- protective order for its proprietary information in may 2007. bessemer reply at 9. the chicago v. m/v morgan, 375 f.3d 563, 572 (7th cir. 2004). but when "the parties have responsibility, for the accident. what matters then is not whether the vessel bears some - seaway marine transport, et al. were it otherwise, the moving vessel could never raise a comparative fault defense. (4) whether less drastic sanctions have been imposed or ordered"). but that four-part test and "general ledgers" necessary to verify and analyze bessemer's claim for lost profits. claiming that "no . . . documents exist" that would address "overhead savings" as a result of i. nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. seaway also challenges the district court's alternative conclusion that, even if the f.2d at 898; royster guano, 266 f. at 486 (violation of predecessor statute to § 403, u.s. rule creates a prima facie case of negligence, not a final case of sole negligence. see in re oregon rule. cf. id. common-senseobservationthatmovingvesselsdonotusually[a]llidewithstationaryobjects view that, once it determined that the oregon rule's presumption of fault applied to this - have moved the boom out of the ship's way or checked to see whether the self-unloader law 118 and cited with approval by united states v. reliable transfer co., 421 u.s. 397, ask for supplementation on the issue ofnet lostprofits, without any significant response from cohen, 400 f.3d 388, 402 (6th cir. 2005) (to justify dismissal as a discovery sanction under also testified about lost gross revenue, and he too had no information about costs saved and that the absence of a permit for the boom affected this sequence of events. when § 403 computation of damages claimed by disclosing party pursuant to frcp 26(a)(1)[(a)(iii)]," possession]." r.33-8, req. no. 21; see also r.33-11 interrog. no. 2. seaway continued to as to liability, seaway concedes that it bears some fault for what happened, but it bessemer responds that the district court used the wrong standard in evaluating expert detailing incompleteness of bessemer's initial disclosures). whether discovery sanctions were appropriate. rather than rule 37(c)'s "substantially page 14 not renewing its contract. but the district court did not abuse its discretion in finding that with drolet using controls at the bow, wheelsman jim donnelly using controls at the stern the one-page spreadsheet conveyed all of the necessary information--including costs iv. 26(a)(1)(a)(iii). the district court found that, with regard to its lost-profits claim, bessemer defendants-appellants/cross-appellees. determination of avoided costs," which precluded the expert from "express[ing] an opinion nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. the waterway while not in use and with a sufficient degree of permanency to become an page 3 was a temporary, anticipated and necessary part of the loading process. miles, miles & cameron p.l.c., mount clemens, michigan, for appellants. camille claims that the district court misapplied the oregon rule's presumption of fault and failed district court did not abuse its discretion in excluding evidence of lost-profits damages and, schoenbaum, 2 admiralty and maritime law § 14-3, 104­05 (4th ed. 2004). based on "the laid off or the day-to-day cost of operating a shiploader. see r.33-22 (report of seaway's bessemer for the year 2006 and that bessemer intended to claim damages for the loss. after streett and rogers failed to answer these questions, seaway issued a detailed documents or other evidentiary material . . . on which each computation is based, including damages "any future loss of business revenue that may become known through the course self-unloader was feasible and "maybe" would have avoided the accident. see r.42-2 at 66. the circumstances of an allision are unknown--requiring the party most likely to know what bessemer's disclosures consistently failed to account for a critical factor in its lost- fault--the district court granted summary judgment on liability, holding seaway solely permission to shift the ship, which fertig granted. the crew began to move the boat slowly, "managers time," "employees lay-off," "trains diverted" and "tonnage lost." r.33-4. at the its initial disclosures an october 27, 2005 letter from stelco stating that it was considering analyze bessemer's claim. and bessemer's six-month delay in disclosing its million-dollar requires disclosure only of enough evidence to put seaway on notice of the lost-profits business related to the decision of one of its major customers, stelco, not to renew a contract to receive a load of coal on the shores of lake erie, it struck a land-based coal-loading bessemer has not justified its actions. the requested records, according to the and remand for further proceedings. absent a § 403 violation is a factually dissimilar district court case involving a crane authorized by permit, became a "de facto obstruction to navigation" during the loading pursuant to sixth circuit rule 206 enterprise and its owners and operators, seaway marine transport, upper lakes shipping pounds of coal as a result of the dock shutdown, whether it be from fuel not used, employees know of no case law to the effect that the vessel must rebut the presumption to relieve itself bessemer referred seaway only to its pre-suit demand letter and noted its intent to claim as nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. points out, the only permit that bessemer has produced authorizes "two steel sheet pile cells bessemer disclosed and concluded that bessemer "provided insufficient data for a proper and the motor vessel canadian district court granted bessemer summary judgment as to liability, finding seaway and its water" "while not in use"). when, by contrast, a temporary obstruction occurs as a necessary the shiploader. bessemer owns and operates several docks on the coast oflake erie the ship's crew negligently failed to swing the self-unloader out far enough to clear the or-nothing-at-all position. if it cannot rebut the presumption, that puts it completely at fault. justified or harmless" standard for determining whether to excuse inadequate disclosures, city of chicago does not support a different rule. after finding that the moving opinion n requests for information about costs avoided (save for its release of additional information of chicago, 375 f.3d at 573. no matter which of these routes the vessel takes, all of them ballard, p.c., detroit, michigan, for appellees. the boom . . . each time a vessel shifts to a compartment that is immediately adjacent to or page 7 b. conneaut dock company. bessemer and its affiliate filed this admiralty action against the with about 45 feet to go, the ship's self-unloader struck the shiploader's boom, holding on a proven statutory violation. 266 f. at 487. in the end, the only holding seaway reaching its next loading position. r.42-2 at 55. that task requires the operator to "look[] 217 f.2d 894, 898 (9th cir. 1954) (city positioned a crane over the water in violation of its unloader. the record, moreover, contains sufficient evidence to create a dispute over of ultimate liability." city of chicago, 375 f.3d at 572. while it may be the case that a profits are calculated by deducting costs saved from the lost gross revenue). bessemer first in its cross-appeal, bessemer argues that the district court abused its discretion when page 12 rule 37(b), courts should consider "(1) evidence of willfulness or bad faith; (2) prejudice to in conneaut, ohio. ships arrive at dock 3 to receive loads of coal from the dock's bessemer's comparative negligence. cf. penn. r.r. co. v. s.s. marie leonhardt, 320 f.2d moving vessel must rebut the presumption to absolve itself of all liability, id. at 573, we nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. structures strikes the boom. r.42-3 at 32. bessemer's dock foreman concurred, saying that inc. and upper lakes group inc., seeking recovery of repair costs and lost profits. the of discovery." r.33-3 at 4­5. bessemer submitted with its disclosures a one-page royster guano, for its part, theorized that "even if [the crane] had [not violated the concluding that bessemer came up short in meeting its rule 26 obligations. . . . between ship and shore, is comparative negligence." bhd. shipping co. v. st. paul fire is "an altogether different test" than the one for exclusion of the evidence under rule 37(c), proximately caused the allision. the enterprise pulled into bessemer's docks so that the 1. up the calculations. r.33-4. bessemer also submitted a letter from a railroad company nor did the district court exceed its discretion in concluding that bessemer's whether fertig's decision not to raise the boom was a proximate cause of the allision. fertig seaway adds that, even if § 403 does not supply a basis for liability, the boom over the deck of the ship. he faced forward with the shiploader behind him, and he had the boom, suggesting it was an illegal obstruction to navigation; (2) that the boom, even if fifteen degrees. part of the loading process, that is not the kind of obstruction that § 403 was designed to announced its intent to seek "loss of business damages" in a pre-suit letter demanding deposition notice, asking a bessemer corporate representative to produce "all documents in the shiploader, and a part of the shiploader known as the boom--a steel, drawbridge-like r.33-22, 7­8. the expert confirmed the summary nature of the financial documents responsibilities,especiallybecauseturningaroundwouldhavetakenhimawayfromhisduty seaway solely liable for the accident. unloader was part of the enterprise's "vessel structure" and that the internal rule suggests page 9 law. windows in front of and behind him but watched the ship only from the front windows. - spreadsheet was a calculation of bessemer's lost gross revenue, not its lost profits. a544. saved--to support the "exact" amount of lost profits. it did not. as bessemer's corporate position, the crew swung the self-unloader to the side of the ship away from the dock before decided and filed: february 25, 2010 to see whether the self-unloader would clear the boom before the maneuver began. profits puzzle--evidence of avoided costs--the district court did not abuse its discretion in "payrolljournals,""payrolltaxreturns,""financialstatements,""financialsummaryreports" the rule's applicability out of context. but that debate is one for the trier of fact, not for us, the apportionment of fault. see folkstone mar. ltd. v. csx corp., 64 f.3d 1037, 1047 (7th permit and left it there for more than a year); f.s. royster guano co. v. outten, 266 f. 484, has to support its theory that a stationary object can become an "obstruction to navigation" disclose the basis of its lost-profits claim and thus granted seaway summary judgment on 2. position" over the water); city of portland, 217 f.2d at 897; royster guano, 266 f. at 487. over to first mate louis drolet, who coordinates the loading process. with the boom page 6 owner of a crane negligent for "allowing the operator's cab to extend, when in a stowed bessemer would not have avoided any costs when it did not have to transport millions of "[i]n order to give permission to shift the boat, the shiploader operator verifieshis equipment acted with reasonable care; or (3) the allision was the result of an inevitable accident." city documentation for its lost-profits calculation, seaway's expert could not independently nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. is in the clear of all vessel structures . . . including the self unload[er]." r.42-6 at 25­26. ballard, p.c., detroit, michigan, for appellees. on brief: brian j. miles, d'luge, apparatus--lowers from its upright storage position to extend horizontally across the ship profits claim: the costs it saved by not incurring the expenses necessary to earn revenue vessel had not rebutted the oregon rule's presumption, city of chicago apportioned nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. oversaw bessemer's docking and railroad operations, confirmed that the one-page the requisite permit for the boom, seaway says, bessemer would be negligent as a matter of page 11 1. train cars bound for the shiploader while it was under repair, suter answered that he could the enterprise. seaway operates the enterprise, a 730-foot cargo ship, which has 86 u.s. (19 wall.) 125, 136 (1873) (placing burden on the party in breach of a navigational bessemer & lake erie railroad damages between the moving vessel and the stationary object based on the stationary miles trains would have traveled and the cost per mile, see r.33-21 at ¶¶ 6, 7), suter - alliding vessel, and is not a presumption regarding either the question of causation . . . or the seaway marine transport, et al. - did not know of anyone who would. a462­63. tradition of shared fault in allision cases. united states court of appeals discovery." r.33-3 at 5. it did not mention that stelco had not renewed its contract with the adversary; (3) whether the violating party had notice of the potential sanction; nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. supplies a premise for liability, that is normally because the violation involves unauthorized seaway marine transport, et al. page 10 as to the actual amount of damages, other than that [bessemer's] presentation [was] nos. 08-4676/4678 bessemer & lake erie railroad, et al. v. seaway marine transport, et al. r.42-9 at 4. the district court properly rejected this theory of comparative fault. [them] within the prohibition of the statute." see city of portland v. luckenbach s.s. co., any way supporting plaintiffs' loss of revenue claim, including savings realized as a result seaway marine transport, et al. to demand lost-profits documentation. seaway's first request for production asked for "a & marine ins. co., 985 f.2d 323, 325 (7th cir. 1993). it would be odd, we think, to 1047, the district court properly rejected this theory of comparative fault as a matter of law. comp. statutes 1916, sec. 9910). nor does city of portland alternatively hold that, even in the rates bessemer would have charged for the loads that did not run or were diverted and trapped coal." bessemer reply 9. but "simplicity" and "efficiency" are virtues only if north and down," not behind him to the south, where he might have realized that the self- in support, seaway points to three cases where a moving vessel recovered damages for in finding that bessemer failed to satisfy rule 26. see dortch v. fowler, 588 f.3d 396, 400 - responsiblefortheincidentandentitlingbessemerto$522,605.73incost-of-repairdamages. and upper lakes group inc., a/k/a jack given these shortfalls in bessemer's compliance with its discovery obligations, the with the entry of a protective order in may 2007, bessemer continued to evade seaway's x whether the oregon rule applies. not unlike the doctrine of res ipsa loquitur, the oregon approximately $1.4 million from seaway. before bessemer turned over its initial understandably dissatisfied with bessemer's initial disclosures, seaway continued no. 06-02392--patricia a. gaughan, district judge. here, we cannot say (and seaway has not argued) that the statutory violation, if any, boom could lower over the vessel and load coal into its hatches. there is no reason to think the district court "would have found portland entirely responsible" even without a statutory disclosures, seaway notified bessemer that it was "especially looking forward to receipt of bottom of the page, bessemer noted that each of these dollar amounts came to the "grand happened (the moving vessel) to present evidence to rebut the presumption of fault. city of when asked whether bessemer saved any costs by not having to assemble, load and fuel with bessemer. bessemer's initial rule 26 disclosure in december 2006 stated as a loss 262, 267 (3d cir. 1963) (drawbridge operator who signals that he will allow passage and from shore." bessemer br. 55. but the only case it offers to support its position--an petroleum co. v. stokes oil co., 863 f.2d 1250, 1254­55 (6th cir. 1988); the pennsylvania, principles that have centuries of relevance in the context of admiralty law. see rolls of civil rule 26's requirement that it produce documents supporting its claim for lost profits federal law prohibits "build[ing] . . . any wharf, pier, . . . boom . . . or other noncompliance with its own internal operating procedures establishes a material issue of fact whenseawaypressedsuterfordocumentsdetailingothercostssaved(includingthenumber b. bessemer claims that the district court should have used a four-part test used to determine bessemer resists this conclusion, claiming that "applicable law" dictates that "the rel hammons v. united states, no. 98-5488, 1999 wl 455435, at *6 (6th cir. june 25, identifying which trains it diverted in the aftermath of the allision. a324, a623­a633. but for these reasons we affirm as to lost-profits damages, reverse in part as to liability plaintiffs-appellees/cross-appellants, was substantially justified or is harmless." fed. r. civ. p. 37(c)(1). controls in a small compartment in the shiploader. after positioning the boom over the ship, statute to prove that its violation could not have been a contributing cause). but if the throughout the maneuver, fertig counted off the distance the ship needed to travel and causing damage to the boom, which took five weeks to repair. bessemer sued, alleging that is not a stationary object and bessemer insisting that simply because the boom can move rule has no factual void to fill. in re mid-south towing, 418 f.3d at 531. 2. during the time its machinery was under repair and by not timely disclosing a further claim rule 26 of the federal rules of civil procedure requires a party to provide the claim to seaway. seaway appeals the liability ruling, and bessmer appeals the lost-profits is based, including materials bearing on the nature and extent of injuries suffered." fed. r. of the cancellation of the shipments described in" the one-page spreadsheet. r. 33-21 at 3. supportive of its proposition. see kure shipping s.a. v. louisiana pac. corp., no. 98-cv- the incident. in october 2005, the enterprise pulled into dock 3 to receive a load a.m.c. 1242 (e.d. pa. 1982). but all of these cases involved machinery left extended over u.s. at 197; see also superior constr. co. v. brock, 445 f.3d 1334, 1339 (11th cir. 2006). would clear the boom. we consider each in turn. conneaut dock company, michael suter appeared in response to the request, but he did not have the information either. object's comparative fault. see 375 f.3d at 578­80. enterprise in rem, that the operator had some responsibility to ensure that the boom would not contact the self- the ship to move forward 210 feet to align hatch fourteen with the boom and the chute. affiliates wholly at fault. when it came to damages, the district court awarded $522,000 in seaway marine transport, et al. appeal from the united states district court but the outcome of this case does not turn on this distinction or for that matter on the extent of damages claimed if stelco canceled the contract. a statutory violation, it is true, may provide a basis for negligence. see phillips 283, 288 (2d cir. 2008) (ferry boat's internal rules bear on the "reasonable care under the none of bessemer's corporate representatives could do the job. james streett, who unrebutted opinion of seaway's expert, were "standard accounting records that are clearly