           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 10, 2008

                                       No. 07-31073                   Charles R. Fulbruge III
                                                                              Clerk

TRANSCONTINENTAL GAS PIPE LINE CORPORATION

                                                  Plaintiff - Appellee
v.

SOCIETE D’EXPLOITATION DU SOLITAIRE SA; ALLSEAS USA INC;
ALLSEAS MARINE CONTRACTORS SA; GULFTERRA ENERGY
PARTNERS LP; ENTERPRISE PRODUCTS PARTNERS LP; ENTERPRISE
GTM HOLDINGS LP; CAMERON HIGHWAY OIL PIPELINE CO

                                                  Defendants - Appellants



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:05-CV-1295


Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendants-Appellants Societe D’Exploitation du Solitaire, along with
other affiliated entities (collectively “Allseas”), appeal the district court’s
damages award in favor of Plaintiff-Appellant Transcontinental Gas Pipe Line
Corporation (“Transco”). For the reasons set forth below, we affirm.
                         I. FACTS AND PROCEEDINGS


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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      This appeal arises out of a dispute regarding damages to a pipeline. In
early April of 2004, while installing a pipeline in the Gulf of Mexico, one of
Allseas’s ships deployed its anchor which became lodged in a pipeline owned and
operated by Transco. In an attempt to retrieve the anchor, Allseas damaged
Transco’s pipeline by displacing it from its concrete trench.
      The parties initially surveyed the damage and attempted to cooperate in
the repair efforts.        Ultimately, this process broke down and each party
undertook its own investigation to determine the extent of the damage and the
length of pipeline that needed to be replaced. Allseas argued that replacing only
part of the damaged pipeline would be adequate while Transco submitted that
the entire length of the pipeline displaced—1200 feet—needed to be replaced.
      Because they could not agree on a resolution, on April 4, 2005, Transco
commenced suit. Allseas conceded liability but retained the right to dispute the
damage amount.          Transco claimed over $10.5 million in repair costs and
$654,742 in lost revenue. Transco also sought pre-judgment interest. Allseas
conceded that Transco was entitled to $8.7 million but challenged certain
invoiced costs as not being related to the pipeline damage. It further maintained
that pre-judgment interest was not warranted but did not dispute the lost
revenue amount.
      On September 20, 2007, following a bench trial, the district court found for
Transco, awarding the company its full repair costs as well as lost revenue, pre-
judgment interest, and post-judgment interest.1 Allseas appealed, arguing that
the district court erred in its application of the standard of proof for damages




      1
          Allseas does not challenge the district court’s award of post-judgment interest.

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cases, miscalculated the total repair costs,2 and should not have awarded
Transco pre-judgment interest.
                               STANDARD OF REVIEW
       “When a judgment after a bench trial is on appeal, we review the findings
of fact for clear error and the legal issues de novo. Under the clearly erroneous
standard, we will reverse only if we have a definite and firm conviction that a
mistake has been committed.” Canal Barge Co. v. Torco Oil Co., 220 F.3d 370,
375 (5th Cir. 2000) (citation omitted).             A district court’s determination of
damages is an issue of fact and therefore reviewed under the clearly erroneous
standard. Id. at 379. Where the credibility of witnesses is a factor in the district
court’s decision, “[t]he burden of showing that the findings of the district court
are clearly erroneous is heavier” because “due regard shall be given to the
opportunity of the trial court to judge of the credibility of the witnesses.” Id. at
375 (quotations omitted). Furthermore, we have long held that “[d]istrict courts
are given broad discretion in rulings on the admissibility of evidence; we will
reverse an evidentiary ruling only when the district court has clearly abused this
discretion and a substantial right of a party is affected.” Rock v. Huffco Gas &
Oil Co., 922 F.2d 272, 277 (5th Cir. 1991) (internal quotation and alternation
omitted). When reviewing a sufficiency-of-the-evidence claim in a bench trial,
this court must determine whether the trial court’s findings are supported by



       2
         At trial, Allseas admitted that Transco is entitled to $8.7 million in repair costs plus
interest from the date of the anchor damage. Allseas now argues that the repair project should
have only cost $3.4 million and only 200 feet of the damaged pipeline should have been
replaced. Having waived the argument, Allseas cannot now raise the issue on appeal. See,
e.g., Lemaire v. Louisiana, 480 F.3d 383, 387 (5th Cir. 2007). Nevertheless, Allseas’s
contention that certain invoiced items should not have been charged as part of the repair
project is properly before this court.

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“substantial evidence.” United States v. Ybarra, 70 F.3d 362, 364 (5th Cir. 1995).
A claim challenging the award of pre-judgment interest is reviewed for abuse of
discretion. Curry v. Fluor Drilling Servs., Inc., 715 F.2d 893, 896 (5th Cir. 1983).

                                III. ANALYSIS

A. Standard of Proof in Damages Cases

      Allseas asserts that the district court misapplied the basic principles of
damages and its decision should be reviewed de novo. The company states that
the court should have sought to return Transco to its pre-accident position where
the pipeline operated below optimal capacity rather than allowing Transco to
make repairs that placed the pipeline at full capacity. Arguing that the district
court erred in applying the standard of proof for damages, Allseas asserts that
the district court did not assess whether Transco carried its burden but only
found that the company’s reliance on expert advice was reasonable. Allseas
further argues that the district court erred because it admitted into evidence
expert testimony which was really “junk science.” While Allseas does not make
a sufficiency-of-the evidence argument, it appears that its contentions are an
attempt to bring this point of error before the court.

      Transco responds that Allseas misunderstands the legal standard for
damages and mischaracterizes the district court’s ruling, asserting that the
district court expressly stated that the damages ruling was based on the court’s
review of exhibits, depositions, and the parties’ proposed findings of fact and
conclusions of law. Transco maintains that the district court found its expert
testimony credible and determined that any margin of error in the analysis was
outweighed by other factors. Thus, the district court’s decision should be
reviewed for clear error.

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       “The purpose of compensatory damages . . . is to place the injured person
as nearly as possible in the condition he would have occupied if the wrong had
not occurred.” Pizani v. M/V Cotton Blossom, 669 F.2d 1084, 1088 (5th Cir.
1982) (quotation omitted).         In cases of maritime collision,3 the maximum
recoverable damages are those established by the doctrine of restitutio in
integrum. This principle measures damages as the “cost of necessary repairs
and the loss of earnings while they are being made.” Delta Marine Drilling Co.
v. M/V Baroid Ranger, 454 F.2d 128, 129 (5th Cir. 1972).

       The party claiming damages bears the burden of proof on the fact, as well
as the amount, of damages. Pizani, 669 F.2d at 1088. “Damages need not be
proved with exact degree of specificity. It suffices if a state of facts is shown from
which a court or jury can find with reasonable certainty that the damages
claimed were actually or may be reasonably inferred to have been incurred” due
to the injury. Mitsui O.S.K. Lines, K.K. v. Horton & Horton, Inc., 480 F.2d 1104,
1106 (5th Cir. 1973).

       A review of the record demonstrates that the district court applied the
appropriate legal standard and had ample evidence to find that Transco met its
burden of proving damages. The district court first set forth the basic damages
principle that remedies ought to restore the injured party to the position he
enjoyed prior to the wrongful act. In its findings of fact, the court specifically
found that Transco was justified in seeking to restore the pipeline to its normal
operating range. Transco was in a position to use its pipeline’s full capacity


       3
        We note that, in causes of action arising under maritime law, “the damages issues are
decided under federal rather than state law.” Pizani, 669 F.2d at 1088 n.2 (quotation omitted).


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before the accident and the damages award returned them to that same position.
There is no indication—and Allseas does not argue—that Transco sought to
somehow improve its pipeline beyond its original condition.

      The court’s decision correctly cited Fifth Circuit precedent on maritime
damages—specifically setting forth the holdings of Delta Marine as well as
Pizani and Mitsui O.S.K. Lines—and appropriately applied the law to the facts
before it. Transco carried its burden of proof by: (1) providing invoices detailing
the costs of the pipeline replacement, and (2) introducing testimony regarding
the company’s cost-tracking system to establish the accuracy of the invoices. A
review of the record shows that the district court had several hundred invoices
before it, along with back-up data and detailed summaries.             Testimony
explaining how invoices were reconciled and checked for accuracy was also
introduced. Thus, the district court had ample evidence before it to find that
Transco met its burden of proving damages. The court’s findings of fact,
announced at the close of the bench trial, also determined that Transco was
reasonable in relying on its expert’s recommendations in making repairs. The
reliability of the expert reports and the analysis undertaken to determine the
repairs required was established by the district court.

      Allseas’s next argument that the district court should be reversed because
Transco’s expert relied on “junk science” is without merit. The record shows that
the district court did not commit clear error in evaluating Transco’s expert
testimony and in choosing to rely upon this evidence in its holding.

      It is the trial judge’s function to ensure the expert testimony is both
reliable and relevant. Daubert v. Merrell Down Pharm., 509 U.S. 579, 589
(1993).   The district court must evaluate both the “methodology and the

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applicability of contested scientific evidence in admissibility decisions.” In re
Joint E. & S. Dist. Asbestos Litig., 52 F.3d 1124, 1132 (2d Cir. 1995). We have
long held that “[b]ecause a district court has broad discretion in deciding the
admissibility vel non of expert testimony, we will not find error unless the ruling
is manifestly erroneous.” Guy v. Crown Equip. Corp., 394 F.3d 320, 325 (5th Cir.
2004).

      In its findings of fact, the district court stated that Transco’s expert was
highly qualified in the area of pipeline damage assessment based on his years
of experience in the field of offshore pipeline engineering. The expert’s approach
as well as the equipment used to assess the damages to the pipeline were also
found to be reasonable and reliable.        The court further stated that the
“unknowns” present in the accident made the “potential for danger more serious”
and therefore substantiated, rather than undermined, the reasonableness of
replacing the entire length of displaced pipeline. The district court analyzed the
evidence and found Transco’s expert evidence credible and reliable; it committed
no clear error.

B. Calculation of Reasonable Repair Costs

      Allseas argues that the district court improperly calculated Transco’s
damages by: (1) accepting unreliable invoices and testimony as proof of
expenditure; (2) allowing unrelated charges to be calculated as part of the
damages award; and (3) determining that Transco was entitled to the applicable
mark-ups in its repair contracts. Allseas also asserts that Transco failed to
mitigate damages and its compensable recovery should therefore be decreased.
In essence, Allseas’s arguments are a sufficiency-of-the-evidence challenge to the
district court’s damages award.

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      Transco responds that the district court had ample evidence before it upon
which to make the determination that Transco was entitled to its claimed repair
costs and that all charges were related to the necessary repairs. Citing Delta
Marine, Transco argues that costs of repair, incidental expenses, and attendant
lost earnings are the appropriate measure of recovery.

      While Allseas seems to argue that Transco could have repaired the
pipeline in a more cost-effective manner, this is not the standard for damages
recovery. As this court stated in Mitsui O.S.K. Lines, an injured party is entitled
to recovery if a set of facts is presented whereby the trier of fact can find, with
reasonable certainty, that the damages claimed were incurred as a result of the
harm suffered. 480 F.2d at 1106.

      Because the damages award is a factual determination, we review for clear
error. Furthermore, because Allseas lodges a sufficiency-of-the-evidence attack
on the district court’s decision, we must determine whether the district court had
sufficient evidence before it to substantiate its determination.

      Allseas’s assertions of error are without merit. The district court had
sufficient evidence before it from which to determine that the invoices and
testimony were reliable, the charges challenged by Allseas were in fact related
to the repairs and reasonable, and the repair contracts did not set out
unnecessary mark-ups. As previously noted, the district court evaluated the
credibility of witnesses who testified regarding Transco’s billing system and its
methods of reconciling invoices. The district court also reviewed the contracts
Transco entered into in order to undertake the repairs along with the time-
sheets and invoices setting out the costs associated with each task. The district
court found these contracts reasonable. The district court also ruled on seven

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line-items challenged by Allseas and found that Transco was entitled to recovery
on all seven. Allseas revives all seven assertions on appeal but provides no basis
on which this court can find clear error, especially since the district court had
voluminous evidence before it to find in Transco’s favor.

      Allseas also fails in its assertion that Transco should have mitigated its
damages.    Where the tort-feasor challenges the injured party’s damages
calculation, arguing that he failed to mitigate the harm, the tort-feasor must
demonstrate: “(1) that the injured party’s conduct after the accident was
unreasonable and (2) that the unreasonable conduct had the consequence of
aggravating the harm.” Marathon Pipe Line Co. v. M/V Sea Level II, 806 F.2d
585, 592 (5th Cir. 1986). Allseas never states what conduct on the part of
Transco was unreasonable nor how this conduct exacerbated the pipeline
damage. The mitigation argument is a renewal of its assertions that the repairs
should have cost less and is another attempt to call into question Transco’s
damages claim. For the reasons already discussed, this argument fails.

C. Pre-Judgment Interest Award

      Allseas argues that Transco is not entitled to pre-judgment interest and
the district court should be reversed for finding otherwise. While conceding that
pre-judgment interest is typically awarded in admiralty cases, Allseas asserts
that this case presents specific facts—particularly that “Transco has unjustly
inflated its claim by millions of dollars”—which militate against awarding such
interest. As further grounds for error, Allseas states that the district court
should be reversed because: (1) it erred in finding that interest should accrue
from the date of the accident; and (2) the court should have chosen the interest



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on the date of the accident rather than the average interest rate between the
date of injury and the date of judgment.

      Transco asserts that no special circumstances exist to deprive it of pre-
judgment interest typically awarded in maritime cases. Further, Transco points
out that awarding pre-judgment interest from the date of injury is the rule in
this circuit and argues that the district court did not abuse its discretion in
awarding the average interest rate.

      In Ryan Walsh Stevedoring Co. v. James Marine Services, Inc., 792 F.2d
489, 492 (5th Cir. 1986), we held that “an award for prejudgment interest in
actions under the general maritime law is the rule rather than the exception;
prejudgment interest must be awarded unless unusual circumstances make an
award inequitable.” The award of pre-judgment interest is “committed to the
sound discretion of the district court.” Marathon Pipe, 806 F.2d at 593.
Furthermore, pre-judgment interest is usually awarded from the date of
accident. Id. Allseas has provided no special circumstances to deprive Transco
of the usual protections under maritime law.

      In setting the rate, district courts may look to “the judgment creditor’s
actual cost of borrowing money or to other reasonable guideposts indicating a
fair level of compensation.” Bosnor, S.A. de C.V. v. Tug L.A. Barrios, 796 F.2d
776, 786 (5th Cir. 1986) (quotation omitted). The district court held that the
average rate of interest between the date of the accident and judgment was
appropriate. While the district court did not give a detailed explanation for this
determination, it did balance the equities between the parties and determined
that neither should be placed at a financial disadvantage by virtue of fluctuating



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interest rates. There is nothing to indicate that such an analysis amounts to
abuse of discretion.

      The district court did not abuse its discretion in finding that Transco is
entitled to pre-judgment interest, setting the accident date as the date from
which interest was to accrue, and selecting the average rate of interest.

                               CONCLUSION

      The judgment of the district court is AFFIRMED.




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