RG Steel Sparrows Point, LLC v. Kinder Morgan Bulk Terminal
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cv-01668-WMN. Copies to all parties and the district court/agency. [999572880]. [14-1245]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1245
RG STEEL SPARROWS
Point, LLC,
POINT,
LLC,
f/k/a
Severstal
Sparrows
Plaintiff – Appellee,
and
SEVERSTAL SPARROWS POINT, LLC,
Plaintiff,
v.
KINDER MORGAN BULK TERMINALS,
Chesapeake Bulk Stevedores,
INC.,
d/b/a
Kinder
Morgan
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William M. Nickerson, Senior District
Judge. (1:09-cv-01668-WMN)
Argued:
January 28, 2015
Before TRAXLER,
Judges.
Chief
Judge,
Decided:
and
DIAZ
and
Affirmed by unpublished per curiam opinion.
separate concurring opinion.
April 28, 2015
THACKER,
Circuit
Judge Diaz wrote a
ARGUED: Thomas M. Wolf, LECLAIRRYAN, PC, Richmond, Virginia, for
Appellant.
Denise A. Lazar, BARNES & THORNBURG, LLP, Chicago,
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Illinois, for Appellee.
ON BRIEF:
Joseph M. Rainsbury,
LECLAIRRYAN, PC, Roanoke, Virginia, for Appellant.
L. Rachel
Lerman, BARNES & THORNBURG, LLP, Los Angeles, California; Linda
S. Woolf, GOODELL DEVRIES LEECH & DANN, LLP, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
This case arose in the aftermath of the catastrophic
collapse of a bridge crane used by Kinder Morgan Bulk Terminals
Inc. (“Appellant”) to unload coke used to fuel a steel mill
located near Baltimore, Maryland.
and
the
history.
bridge
crane
changed
Ownership of the steel mill
hands
several
times
in
recent
The appellee in this case, RG Steel Sparrows Point LLC
(“RG Steel”), 1 acquired the company that owned the steel mill and
the bridge crane through a stock purchase on March 31, 2011.
Following the bridge crane collapse, Appellee sued Appellant for
negligence.
Appellee also claimed its right to indemnification
for losses pursuant to a lease and service contract governing
Appellant’s use of the bridge crane (“Lease”).
Appellant
maintained
that
it
was
that it had no duty to indemnify Appellee.
not
negligent
and
It argued that the
limitation-of-liability provision of a purchase order that was
in force at the time of the crane accident applied instead of
the Lease’s indemnity clause.
After a bench trial, the district
court entered judgment in Appellee’s favor.
The district court
found that the parties renewed the Lease by an implied-in-fact
contract and concluded that the purchase order did not supersede
1
For ease of reference, we refer to RG Steel and the
companies that previously owned the steel mill and the bridge
crane collectively as “Appellee.”
3
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the
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Lease’s
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indemnity
Lease
defined
crane
and
matter.
the
the
clause
parties’
purchase
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under
Maryland
relationship
order
governed
law
with
a
because
respect
different
to
the
the
subject
The district court held Appellant liable for over $15.5
million,
awarding
Appellee’s
compensatory
property
and
damages
consequential
for
destruction
damages
for
of
Appellee’s
resulting business losses.
In the instant action, Appellant does not challenge
the district court’s award of compensatory damages, nor does it
dispute
the
operating
Instead,
court’s
under
it
finding
an
that
the
implied-in-fact
argues
the
district
parties
renewal
court
were
of
erred
generally
the
in
Lease.
concluding
Appellant was liable for consequential damages pursuant to the
Lease’s indemnity clause.
Appellant claims the district court
should have applied the limitation-of-liability provision of a
purchase order agreement that was in force at the time the crane
collapsed -- a provision that Appellant contends superseded the
Lease’s
indemnity
damages award.
if
the
Lease’s
clause
and
foreclosed
any
consequential
In the alternative, Appellant avers that, even
district
indemnity
court
was
clause,
correct
the
to
hold
district
Appellant
court
erred
to
when
the
it
qualified Appellee’s damages expert to testify and relied on the
expert’s
calculation
in
ordering
damages.
4
its
award
for
consequential
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We
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affirm
the
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district
court’s
entirety, albeit on different grounds.
rulings
in
their
See Hutto v. S.C. Ret.
Sys., 773 F.3d 536, 549-50 (4th Cir. 2014) (affirming “for a
reason supported by the record but not relied on by the district
court”).
Appellant is liable for consequential damages even
under the express terms of the purchase order it wishes us to
apply.
Furthermore,
the
district
court
did
not
abuse
its
discretion by permitting Appellee’s damages expert to testify,
and
it
did
not
clearly
err
in
determining
the
amount
of
Appellee’s damages award.
I.
A.
The Lease at issue originated in 1992, although both
parties
acquired
their
interests
relationship at a much later date.
leased
the
bridge
crane
to
mill’s
services
for
the
steel
undertook
to
keep
the
in
bridge
crane
contractual
Under the Lease, Appellee
companies
“A
this
stevedoring 2
providing
Yard.”
in
good
The
stevedores
repair
and
to
maintain an insurance policy on it.
The Lease contained an indemnity provision, which read
as follows:
2
Stevedores load and unload cargo from ships.
Law Dictionary 1549 (9th ed. 2009).
5
See Black’s
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[The stevedores] shall . . . indemnify and
save harmless [Appellee] from and against
all loss or liability for or on account of
any injury (including death) or damages
received or sustained by any person or
persons
(including
[Appellee]
and
any
employee, agent, or invitee thereof) by
reason of any act or omission, whether
negligent or otherwise, on the part of [the
stevedores]
or
any
employee,
agent,
subcontractor, representative, invitee, or
business
visitor
of
[the
stevedores],
including any breach or alleged breach of
any statutory duty which is to be performed
by [the stevedores] hereunder but which is
or may be the duty of [Appellee] under
applicable provisions of law.
J.A. 692-93 (emphasis supplied). 3
The stevedores also “assume[d]
the entire risk of loss, theft, or destruction of the [bridge
crane]
resulting
from
any
cause
whatsoever.”
Id.
at
690.
During the life of the Lease, Appellee entered into purchase
order
contracts
with
the
stevedores
to
unload
coke-carrying
vessels in the port.
In December 2002, Appellant, a company that provides
stevedoring
services,
purchased
liabilities under the Lease.
terminate
at
the
end
of
its
predecessor’s
rights
and
Although the Lease was set to
July
2003,
Appellant
and
Appellee
entered into a separate short-term interim agreement to extend
the Lease.
Initially, this interim agreement was set to expire
3
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
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when
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Appellee
and
Appellant
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executed
a
long-term
agreement
governing the use of the bridge crane or on December 31, 2003,
whichever
occurred
sooner.
However,
Appellant
extended the interim period several times.
and
Appellee
When they ultimately
were unable to reach a long-term agreement, the Lease finally
expired at the end of 2005.
Although Appellant never expressly renewed the Lease
after
2005,
it
continued
to
conduct
business
with
Appellee
“largely in the same manner as [it] had under the Lease.”
600.
J.A.
For example, Appellant “repeatedly referenced the Lease”
in its communications with Appellee and it “maintain[ed] the
[b]ridge [c]rane at its own expense,” in accord with the terms
of the Lease.
Id. at 600–01.
Appellant also continued to use
the bridge crane to unload ships pursuant to various purchase
order contracts.
B.
1.
On June 4, 2008, the National Weather Service issued a
tornado watch for the central Maryland area.
By 3:35 p.m. that
day, wind speeds measured over 90 miles per hour.
own
procedures
preventative
and
measures
federal
during
regulations
high
winds,
Despite its
which
Appellant
require
did
not
deploy hurricane tie downs, and the bridge crane’s automatic
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rail clamps had been removed at some point in the mid-1990s. 4
Without the benefit of these safety measures, the wind toppled
one the bridge crane’s A-frame legs, and the crane fell.
2.
As an immediate result of the crane collapse, Appellee
closed
the
A
facilities.
Yard
and
paid
for
emergency
repairs
to
its
Appellee also suffered other consequential losses
arising from delays and increased handling charges attributable
to the loss of the crane.
Without a crane to unload coke for
the steel mill’s blast furnace, cargo ships carrying coke were
required to unload their cargo at another terminal farther away
from the blast furnace: the New Ore Pier.
Because the New Ore
Pier already serviced a number of ships on a regular basis, it
struggled
to
accommodate
the
additional
traffic.
To
make
matters worse, in order to keep the blast furnace lit, Appellee
was required to schedule the coke-carrying ships before other
non-coke-carrying vessels also waiting to unload at the New Ore
Pier.
This rescheduling, coupled with port congestion caused by
4
Appellant does not dispute the fact that its own standard
operating procedures “instructed [Appellant] to employ hurricane
tie downs [on the crane to secure it] in the event of strong
winds.” J.A. 603. Additionally, Occupational Safety and Health
Administration regulations require bridge cranes to be equipped
with automatic rail clamps “that prevent cranes from moving
during high wind events.”
Id. at 614-15; see also 29 C.F.R.
§ 1910.179(b)(4).
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re-routing the coke-carrying ship traffic to the New Ore Pier,
resulted
in
transit
delays.
As
a
result,
Appellee
paid
demurrage 5 fees pursuant to its contracts with these ships.
When the A Yard reopened in the latter half of 2008,
Appellant
used
floating
cranes
to
unload
placed the coke in piles near the mill.
coke
ships
and
it
Because the floating
cranes unloaded cargo at a rate significantly slower than the
bridge crane, Appellee faced the possibility of future demurrage
fees.
To
mitigate
its
losses,
Appellee
renegotiated
its
contracts with cargo ships and agreed to pay increased fees to
offset the delays.
Appellee also needed to restore and modify a
conveyor in order to move the coke from piles in the A Yard to
the
blast
furnace.
Mill
operations
did
not
normalize
until
approximately three years later, in August 2011, when Appellant
purchased and installed its own crane at the A Yard.
3.
At the time of the bridge crane’s collapse on June 4,
2008, Appellee and Appellant were bound by a February 21, 2008
purchase
order
(“Purchase
Order”)
that
required
Appellee
to
“unload[] up to 500,000 [tons] of coke from ships with bridge
5
In maritime law, the term “demurrage” applies to
“[l]iquidated damages owned by a charterer to a shipowner for
the charterer’s failure to load or unload cargo by the agreed
time.” Black’s Law Dictionary 498 (9th ed. 2009).
9
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crane [sic].”
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J.A. 992.
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The Purchase Order also incorporated
the terms of another document entitled “AMUSA-100.”
The
AMUSA-100
defined
the
parties’
liabilities with respect to the Purchase Order.
the
AMUSA-100
contained
the
following
See id.
rights
and
Section 7.6 of
limitation-of-liability
provision:
In no event shall either party be liable to
the
other
under
this
order
for
consequential, indirect or special damages,
including without limitation lost profits,
revenues, production or business . . . .
J.A. at 1000.
“specific
However, per section 1.4 of the AMUSA-100, other
terms
agreed
in
writing”
that
“contradict[]”
“corresponding” terms in the AMUSA-100 “shall prevail.”
Id. at
997.
C.
Appellee filed suit against Appellant in the District
Court for the District of Maryland on June 24, 2009.
In its
amended complaint, Appellee claimed that Appellant was negligent
for failing to secure the bridge crane from the impending storm,
and that it was liable in contract for breaching the Lease by
refusing to indemnify Appellee for losses arising from the crane
collapse.
The parties fought this dispute at a seven-day bench
trial in November and December 2013.
At trial, Appellee offered
the testimony of its Corporate Controller, Jeffrey Gennuso, who
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testified
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about
the
general
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effect
of
the
crane
collapse
on
steel mill operations and Appellee’s contractual relationships.
Jeffrey Cohen, an economist, provided expert testimony about the
calculation of consequential damages Appellee suffered.
The
district
court
reached
a
verdict
in
favor
of
Appellee on both its negligence and breach of contract claims.
The district court awarded a total of $15,555,884 6 to Appellee,
which covered the following categories of damages:
•
compensatory damages
bridge crane;
•
compensatory
damages
for
emergency
repairs to Appellee’s facilities and
for restoration and modification of the
conveyor,
all
of
which
Appellant
conceded at trial; and
•
consequential
damages
for
demurrage
fees, changes in commercial terms, and
increased handling costs. 7
for
loss
of
the
Appellant does not appeal any part of the district
court’s award of compensatory damages.
Instead, it argues only
6
The court’s original damages award was approximately $13
million, but it increased this amount after correcting a
clerical error.
This adjustment only affected the district
court’s calculation of Appellee’s compensatory damages for loss
of the bridge crane. See Order Granting Motion to Amend/Correct
Clerical Error, Severstal Sparrows Point, LLC v. Kinder Morgan
Bulk Terminals, Inc., No. 1:09-cv-01668 (D. Md. Jun. 24, 2009;
filed May 6, 2014), ECF No. 183.
7
At trial, Appellant conceded it was liable for damages due
to Appellee’s increased handling costs.
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that the district court erred in ordering consequential damages
for demurrage fees and changes in commercial terms.
II.
A.
Contract Interpretation
1.
The threshold question is whether the district court
correctly
concluded
that
Appellant
should
be
required
to
indemnify Appellee, or whether an agreement between the parties
prohibits such an award.
Interpretation
of
a
contract
renders
a
legal
conclusion, and we review the district court’s legal conclusions
de novo.
See FTC v. Ross, 743 F.3d 886, 894 (4th Cir. 2014);
Perini/Tompkins Joint Venture v. Ace Am. Ins. Co., 738 F.3d 95,
101 (4th Cir. 2013).
We apply substantive state law to resolve
appeals
court
of
district
rulings
that
rest
on
state
law,
including those involving interpretation of private contracts.
See James v. Circuit City Stores, Inc., 370 F.3d 417, 421-22
(4th Cir. 2004).
The district court found that the parties renewed the
Lease
by
an
implied-in-fact
agreement
and
therefore
“the
Lease . . . [and] its terms and conditions were in effect” at
the time of the crane collapse.
district
court
found
that
this
12
J.A. 612.
In essence, the
implied-in-fact
contract
was
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nothing more than an agreement to renew the Lease and to amend
its duration term.
was
renewed
required
But Appellant argued that, even if the Lease
by
that
an
the
implied-in-fact
later-in-time
precedence over the Lease.
contract,
written
Maryland
Purchase
Order
law
took
Cf. Cnty. Comm’rs of Caroline Cnty.
v. J. Roland Dashiell & Sons Inc., 747 A.2d 600, 607 (Md. 2000)
(holding
that
a
contract
implied
in
law
cannot
express contract governing the same subject).
supplant
an
It argued that
under the AMUSA-100, which was incorporated into the Purchase
Order, Appellant was not required to indemnify Appellee.
district court
the
Purchase
rejected
did
not
Appellant’s
govern
the
argument,
same
concluding
subject
and
The
that
that
the
Lease’s indemnity clause therefore applied.
Appellant does not appeal the district court’s finding
that it renewed the Lease through an implied-in-fact contract.
Nor
does
would
be
indemnity
it
dispute
liable
the
for
provision
district
court’s
consequential
applied.
conclusion
damages
Instead,
if
Appellant
the
that
it
Lease’s
renews
its
argument that the Lease did not apply and that Appellant should
prevail by virtue of the AMUSA-100.
We disagree, and conclude
that Appellant would be liable pursuant to the AMUSA-100’s plain
terms in any event.
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2.
Appellant argues that the district court erred because
it permitted an implied-in-fact agreement to renew the Lease to
supersede an express contract on the same subject matter -- the
Purchase Order -- in contravention of Maryland law.
the
Lease
and
the
Purchase
Order
address
the
Although
same
matter, Appellant’s argument is nonetheless flawed.
subject
For one,
the Maryland courts have not adopted the rule Appellant pushes;
they
have
only
held
that
a
contract
implied
in
law
cannot
supplant an express contract governing the same subject.
Cnty. Comm’rs of Caroline Cnty., 747 A.2d at 607.
See
And even
assuming Appellant’s interpretation of Maryland law is correct,
the
AMUSA-100’s
plain
text
and
Appellant’s
implied-in-fact
agreement to renew the Lease compel us to reach the same result
as the district court: Appellant is liable to indemnify Appellee
for consequential damages.
3.
When a contract is unambiguous, Maryland courts give
full effect to the plain meaning of its terms.
See Wells v.
Chevy Chase Bank, F.S.B., 768 A.2d 620, 630 (Md. 2001).
Per
section 1.4 of the AMUSA-100, “specific terms agreed in writing”
by the parties that contradict “corresponding . . . provisions”
of the AMUSA-100 “shall prevail.”
J.A. 997.
The effect of this
safety valve provision is unambiguous: the AMUSA-100 bows to
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similar, yet contradicting, terms of a written agreement between
the parties.
There is no question that the Lease’s indemnity clause
is a “specific term[] in writing” that “correspond[s]” to the
AMUSA-100’s
limitation-of-liability
provision.
J.A.
997.
Appellant instead argues that the implied-in-fact renewal of the
Lease is not a term agreed to in writing and section 1.4 “does
not prevent the Purchase Order from trumping any prior impliedin-fact
agreement.”
implied-in-fact
Appellant’s
agreement
is
Reply
Br.
necessarily
13.
not
in
Although
writing,
an
the
implied-in-fact agreement in this case only amended the Lease
term
and
does
not
“contradict[]”
provision of the AMUSA-100.
“corresponding”
temporal
clause,
other
on
the
the
the
J.A. 997.
limitation.
hand,
is
an
limitation-of-liability
The AMUSA-100 has no
The
Lease’s
agreement
AMUSA-100’s
in
indemnity
writing
that
conflicts
with
provision.
Therefore, the AMUSA-100 unambiguously requires that
Appellant be held to the Lease.
limitation-of-liability
The Lease states that the crane
operator “assumes the entire risk of loss of the . . . [b]ridge
[c]rane resulting from any cause whatsoever.”
Id. at 690.
Therefore, we affirm the district court’s conclusion
that
Appellant
was
required
to
indemnify
Appellee
for
consequential damages it incurred as a result of the crane’s
collapse.
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B.
Damages
We now turn to whether the district court’s awards for
demurrage
and
support.
changes
in
commercial
terms
have
evidentiary
The evidence upon which the district court principally
relied when ordering these awards was the calculation provided
by Cohen; Appellant asserts Cohen was unqualified to testify as
an expert on such matters.
Accordingly, Appellant claims the
district court lacked sufficient evidence to order damages for
demurrage and changes in commercial terms.
1.
Admissibility of Expert Testimony
A district court’s decision to qualify and admit the
testimony of an expert witness is one that we review for abuse
of discretion.
“A court abuses its discretion if its decision
is guided by erroneous legal principles or rests upon a clearly
erroneous factual finding.”
United States v. Garcia, 752 F.3d
382, 390 (4th Cir. 2014) (internal quotation marks omitted).
Appellant claims that the district court abused its
discretion by qualifying Cohen as an expert to testify about
Appellee’s
terms.
damages
Appellant
for
demurrage
concentrates
on
experience with maritime contracts.
16
and
changes
Cohen’s
in
commercial
admitted
lack
of
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Rule
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702
of
the
Pg: 17 of 33
Federal
Rules
of
Evidence
permits
expert witnesses to testify if their “scientific, technical, or
other
special
knowledge
will
help
the
trier
of
fact
to
understand the evidence or to determine a fact in issue,” such
as the amount of damages due.
Fed. R. Evid. 702.
The question
of whether a witness is qualified to testify is context-driven
and “can only be determined by the nature of the opinion he
offers.”
Gladhill v. Gen. Motors Corp., 743 F.2d 1049, 1052
(4th Cir. 1984).
Because our general preference is to admit
evidence that will aid the trier of fact, the expert need only
have
“sufficient
specialized
knowledge
to
assist
deciding the particular issues in the case.”
jurors
in
Belk, Inc. v.
Meyer Corp., U.S., 679 F.3d 146, 162 (4th Cir. 2012) (internal
quotation marks omitted); see Westberry v. Gislaved Gummi AB,
178 F.3d 257, 261 (4th Cir. 1999) (“Rule 702 was intended to
liberalize
the
introduction
of
relevant
expert
evidence.”);
Thomas J. Kline, Inc. v. Lorillard, Inc., 878 F.2d 791, 799 (4th
Cir. 1989) (“Generally, the test for exclusion is a strict one,
and
the
purported
knowledge,
skill,
expert
experience,
must
have
training
neither
nor
issue for which the opinion is offered.”).
opinion,
“one . . . need
not
be
precisely
satisfactory
education
on
the
In order to offer an
informed
about
all
details of the issues raised” or even have prior experience with
the particular subject the testimony concerns.
17
Lorillard, 878
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F.3d at 799; see Fed. R. Evid. 703 (providing that “[a]n expert
may base an opinion on facts or data in the case that the expert
has been made aware of [at trial] or personally observed”).
In
this
case,
Appellant
requirement far too narrowly.”
Cohen
had
no
prior
“reads
this
Belk, 679 F.3d at 162.
experience
with
maritime
opinion did not call for such expertise.
was
to
calculate
economics.
Appellee’s
[qualification]
damages. 8
Although
contracts,
his
Rather, his function
Cohen
has
an
MBA
in
reviewing
He created mathematical formulas for this case after
information
that
he
obtained
before
trial
by
personally interviewing Appellee’s employees and reading their
deposition
testimony.
Cohen
then
formed
his
opinion
on
the
extent of Appellee’s losses by applying his formulas.
The fact that Cohen had not previously analyzed issues
that
are
specific
to
maritime
contracts
does
not
mean
the
district court abused its discretion in admitting Cohen’s expert
testimony.
Meyer
Corp.,
Here, similar to the appellant in Belk, Inc. v.
U.S.,
Appellant
“provide[d]
no
support
for
its
argument” that the economics of maritime contracts and steel
mill operations “is so sui generis such that an expert’s lack of
8
Cohen testified at trial as to his limited role: “I mean,
as an economist, looking at the data, the best I can do is make
a comparison between two conditions and the result of that
analysis attributes only the incremental effect to that
condition.” J.A. 325.
18
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expertise
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in . . . these
Pg: 19 of 33
specific
[areas]
disqualifies him from giving an expert opinion.”
at 162.
steel
necessarily
Belk, 679 F.3d
Background issues that required special knowledge of
mills
and
maritime
commerce
witnesses at trial, including Gennuso. 9
were
addressed
by
other
Although Cohen relied on
information provided by other witnesses at trial to devise his
formula, the Federal Rules of Evidence specifically authorized
him to do so.
Thus,
See Fed. R. Evid. 703.
abuse
its
testimony
we
conclude
discretion
as
to
his
by
that
the
permitting
calculation
of
district
Cohen
court
to
Appellee’s
offer
did
not
expert
damages
for
demurrage and changes in commercial terms.
9
Gennuso’s testimony drew a relationship between lower
discharge rates and the higher prices Appellee paid on coke
contracts after the accident:
So when we entered into new coke
contracts, that portion that determined the
delivery cost of the material required a
discharge rate in order for them to properly
calculate the freight.
The discharge rate of 5,000 tons a day
[using
the
floating
cranes,
which
is
approximately 3,000 tons per day slower than
rates achieved using the bridge crane] was
provided to us from Kinder Morgan. . . .
. . . So we used the 5,000 tons per day
[discharge
rate
in
the
renegotiated
contracts], which again was provided by
Kinder Morgan . . . .
J.A. 485.
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2.
Sufficiency of Evidence for Damages Award
a.
When considering an appeal after a bench trial, we
review the district court’s factual findings for clear error and
its legal conclusions de novo.
See Universal Furniture Int’l,
Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 427 (4th Cir.
2010).
“A court’s calculation of damages is a finding of fact
and is therefore reviewable only for clear error . . . .”
(internal
quotation
marks
omitted).
Furthermore,
when
Id.
“a
district court’s factual findings turn on . . . the weighing of
conflicting evidence during a bench trial, such findings are
entitled to even greater deference.”
Ross, 743 F.3d at 894
(internal quotation marks omitted); see also F.C. Wheat Mar.
Corp. v. United States, 663 F.3d 714, 723 (4th Cir. 2011).
A
court
sitting
in
diversity
must
apply
state
law
governing the threshold of proof necessary for a damages award
and the amount of that award.
See Defender Indus., Inc. v. Nw.
Mut. Life Ins. Co., 938 F.2d 502, 504-05 (4th Cir. 1991) (en
banc).
According to Maryland law, “if the fact of damage is
proven with certainty, the extent of amount thereof may be left
to
reasonable
inference.”
David
Sloane,
Inc.
v.
Stanley
G.
House & Assocs. Inc., 532 A.2d 694, 696 (Md. 1987) (internal
quotation marks omitted).
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b.
Our task is to determine whether the district court
had sufficient evidence to conclude that Appellee proved, to a
reasonable certainty, that it suffered damages for demurrage and
change in commercial conditions.
We must also decide if the
amount the district court awarded was supported by a reasonable
inference from the record.
During
damages
and
approximately
million
in
trial,
Cohen
concluded
$2.7
that
million
damages
for
presented
in
his
Appellant
demurrage
changes
in
calculation
was
fees
liable
and
commercial
of
for
about
$1.5
terms.
The
district court agreed with Cohen on his demurrage calculations
and
awarded
damages
to
Appellee
accordingly.
However,
the
district court disagreed, in part, with Cohen’s calculation of
Appellee’s damages for changes in commercial terms.
Therefore,
the court awarded $1.06 million for these damages according to
its own calculation.
Appellant claims the district court clearly erred in
ordering damages awards for demurrage and changes in commercial
terms.
suffered
Regarding demurrage, Appellant concedes that Appellee
demurrage
damages,
but
21
it
disagrees
with
Cohen’s
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conclusions regarding the amount of such damages. 10
Relating to
changes in commercial terms, Appellant argues that the evidence
failed
to
reasonable
establish
certainty,
the
and
extent
thus
of
no
Appellee’s
damages
losses
should
have
to
a
been
awarded in this category.
i.
Demurrage
Because Appellant only challenges the amount of the
district court’s award for demurrage, our inquiry focuses on
whether the district court had substantial evidence to find that
Cohen’s
demurrage
calculation
--
which
the
district
accepted -- was a reasonable inference from the record.
court
See
Universal Furniture Int’l, Inc., 618 F.3d at 427; David Sloane,
Inc., 532 A.2d at 696.
Appellant has failed to demonstrate that
the district court’s award for demurrage was not supported by
reasonable inferences from the record.
Cohen’s $2.7 million figure represented the amount in
demurrage fees that Appellee paid to ships bringing materials to
the steel mill as a result of the crane collapse, regardless of
whether their cargo was coke.
To arrive at this number, Cohen
found a “baseline” demurrage figure by averaging the amounts of
10
Appellant concedes it is liable for only approximately
$400,000 in demurrage damages, as opposed to the $2.7 million
the district court awarded.
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demurrage Appellee paid, per ton of cargo, for several months
before the crane collapse.
Appellee
paid
in
To determine the incremental amount
demurrage
due
to
the
accident,
Cohen
then
considered the difference between the baseline figure and the
average demurrage amount that Appellee paid over the two months
following the accident.
Cohen
asked
Appellee’s
accounting
personnel
if
any
factors other than the crane collapse (e.g., changes in labor
relations,
inflationary
commercial
terms,
components)
prices,
could
have
interest
caused
increase in its payment of demurrage fees.
the
rates
or
pronounced
After reviewing the
evidence and discussing the subject with Appellee’s accountants,
Cohen concluded that these other factors were not responsible
for the increase in demurrage.
safely
attribute
collapse.”
the
J.A.
He “was satisfied that one could
[incremental
327.
As
demurrage]
the
to
district
the
court
bridge
noted,
“no . . . [other] data quantifying the [demurrage] loss directly
attributable to the [b]ridge [c]rane [loss] was available.”
at 627-28.
Id.
The district court also had access to Gennuso’s
testimony that one of Appellee’s employees worked with a member
of
Appellant’s
staff
to
“determine[]
that
[the
increased]
demurrage charges were directly a result of not being able to
unload those ships at the A Pier.”
23
Id. at 217.
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Nonetheless, Appellant assails Cohen’s methodology for
failing “to account for factors that could have affected his
demurrage
other
computation”
causes
bridge
of
crane
equipment,
the
and
in
him
incremental
accident,
delays
faults
such
tugs,
for
demurrage
as
“problems
problems
shortages, scheduling issues, etc.”
with
not
investigating
unrelated
with
the
to
the
shore-side
ships,
labor
Appellant’s Br. 55-56, 58.
Yet Appellant offered no evidence to support its speculative
claim
that
other
potential
factors
that
“could
have
significantly affected the amount of demurrage charges” actually
had such an effect.
Id. at 56.
In light of the considerable deference we afford to
district
court
findings
during
bench
trials,
the
record’s
surplus of support for the court’s factual findings, and the
wholly speculative nature of Appellant’s argument, we conclude
the
district
court’s
damages
award
for
demurrage
was
a
reasonable inference from the record.
ii.
Changes in Commercial Terms
After losing the bridge crane, Appellee renegotiated
several of its contracts with coke-carrying vessels to account
for the increased unload time and to avoid further demurrage.
Gennuso testified that unloading delays increased transportation
costs and, in turn, drove up the price Appellee paid for coke.
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Cohen
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relied
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on
this
Pg: 25 of 33
assumption
to
calculate
an
approximate
damages amount for changes in commercial terms.
The district court did not take issue with Cohen’s
method, but it found that his calculation of the discharge rate
in
the
post-collapse
concluded
that
period
Cohen’s
was
not
analysis
entirely
failed
to
reliable.
recognize
It
that
Appellant built a new crane in the A Yard in the second half of
2011, which dramatically increased discharge rates above those
measured soon after the bridge crane collapsed.
Accordingly,
the district court awarded Appellee approximately $1.06 million
for changes in commercial terms, which was substantially less
than the approximately $1.5 million Appellee sought.
But Appellant argues that the district court should
not have awarded damages for changes in commercial terms at all.
In
this
committed
regard,
three
Appellant
errors
in
argues
relying
that
on
the
Cohen’s
district
court
calculation
of
damages for changes in commercial terms: (1) Cohen only reviewed
two shipping contracts in assessing the incremental discharge
rate, which was an unreliably small sample size; (2) Cohen did
not examine certain other potential causes for the change in
contract terms, such as market fluctuations in the price of coke
and Appellee’s credit history; and (3) Cohen lacked a basis to
assume a positive correlation between a decreased discharge rate
and the price of coke.
Appellant claims that these alleged
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deficiencies
rendered
unreasonably
uncertain;
sufficient
evidence
changes
commercial
in
Pg: 26 of 33
Cohen’s
calculation
the
therefore,
to
conclude
terms.
of
court
district
Appellee
Each
of
proved
these
damages
lacked
damages
arguments
for
lacks
merit.
First,
that
it
was
Appellant’s
fatally
attack
uncertain
on
Cohen’s
because
it
methodology
--
relied
an
on
impermissibly small sample size for calculating the incremental
discharge rate -- is plainly inconsistent with the evidence.
Cohen viewed the two charter contracts merely to confirm that
the pre- and post-accident discharge rates were accurate.
As
the district court noted, “Mr. Cohen testified that he did not
rely on the contracts to glean the prices charged for coke, but
instead sought verification of the discharge rates.”
J.A. 633.
In any event, as we discussed with respect to the demurrage
award, Cohen bolstered his conclusion by ruling out other causes
for the delays that precipitated Appellee’s renegotiation of the
coke shipping contracts.
We likewise reject Appellant’s two remaining arguments
because
Appellant
evidence.
The
failed
district
to
support
court’s
decision
testimony was not clearly erroneous.
district
inference”
court’s
from
conclusion
Cohen’s
was
challenges
to
credit
with
Cohen’s
No evidence suggests the
not
testimony
26
these
and
a
“legally
the
justifiable
entirety
of
the
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record.
Filed: 04/28/2015
Pg: 27 of 33
Miller v. Mercy Hosp., Inc., 720 F.2d 356, 365 (4th
Cir. 1983).
Appellant
possible
offered
alternative
calculations.
no
evidence
causes
indicating
actually
that
impacted
the
Cohen’s
In fact, Appellant argued to the district court
“that coke prices did not appreciably change from prices before
the
[b]ridge
[c]rane
collapse.”
J.A.
632.
Furthermore,
a
district court’s decision on how much weight to give testimony
at a bench trial is one that we afford great deference.
Ross, 743 F.3d at 894.
See
This principle applies to the district
court’s determination of whether Cohen sufficiently ruled out
possible alternative causes for the increase in the contract
prices
Appellee
paid
for
coke
after
the
accident.
See
Westberry, 178 F.3d at 265 (providing that, unless a plaintiff’s
expert provides “no explanation” for why a defendant’s suggested
alternative causes are not plausible, these alternative causes
“affect
the
testimony
weight
and
not
that
the
jury
should
the
admissibility
of
give
that
the
expert’s
testimony”).
Without question, Gennuso logically linked the crane accident to
actual changes in the contract price for coke.
Here, whether
Cohen sufficiently ruled out other causes is only a question of
how much weight to give Cohen’s opinion, and so we defer to the
district court’s conclusion.
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Further,
although
Pg: 28 of 33
Appellant
argues
Cohen
improperly
assumed a positive correlation between decreased discharge rates
and the price of coke, Appellant again failed to point to any
evidence
in
the
record
showing
that
the
district
court’s
decision to credit this assumption was clear error.
reasoning
which
that
then
discharge
impact
the
rates
cost
of
affect
coke,
Cohen’s
transportation
was
built
on
costs,
Gennuso’s
testimony that Appellee renegotiated coke shipping contracts at
a higher rate to account for slower discharge rates caused by
the crane collapse.
Mindful that district court findings in a bench trial
should be given the “highest degree of appellate deference,” we
find
no
reason
to
upset
the
district
court’s
determination.
F.C. Wheat Mar. Corp., 663 F.3d at 723 (internal quotation marks
omitted).
The district court had a sufficient basis to conclude
that Cohen proved Appellee’s damages for changes in commercial
terms to a reasonable certainty.
III.
For
the
foregoing
reasons,
the
judgment
of
the
district court is
AFFIRMED.
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DIAZ, Circuit Judge, concurring:
Although I share the majority’s view of the outcome of this
case, I diverge slightly in my understanding of the nature of
the relationship between the parties after the expiration of the
Interim Agreement in 2005.
I would find that Kinder Morgan was
bound by the Lease terms as a holdover tenant, and that the
later purchase orders do not supersede the Lease terms in this
case because they cover a different subject matter.
The record before the court does not support the conclusion
that Kinder Morgan objectively intended to be bound by the terms
of the 1992 Lease after the expiration of the final Interim
Agreement in 2005.
suggests
that
To the contrary, the undisputed evidence
Kinder
Morgan
specifically
did
not
wish
to
be
bound by the original lease terms because it wanted to negotiate
a
new
long-term
improvements
to
agreement
the
“A”
in
order
Pier.
In
to
invest
fact,
when
in
capital
RG
Steel’s
predecessor proposed a new contract that would have extended the
interim period through March 2006, Kinder Morgan refused to sign
it.
Kinder
Morgan’s
occasional
post-2005
references
to
the
expired Lease do not alter this conclusion, and indeed, some of
the
references
support
Kinder
Morgan’s
assertion
longer considered itself bound by the Lease.
that
it
no
See, e.g., J.A.
888 (in which Kinder Morgan references “the previous contractual
relationship” under the Lease) (emphasis added).
29
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Nonetheless,
Kinder
Pg: 30 of 33
Morgan’s
consistent with a holdover tenancy.
actions
are
entirely
Importantly, a holdover
tenancy under Maryland law is not based on objective assent or
intent to be bound by a lease.
Rather, it exists automatically
when a lessee overstays the term of a leasehold.
Ann.,
Real
Prop.
§ 8-402(c)
(West
2015)
See Md. Code
(“Unless
stated
otherwise in the written lease . . . when a landlord consents to
a holdover tenant remaining on the premises, the holdover tenant
becomes . . . a periodic month-to-month tenant . . . .”).
When
a tenant holds over, the tenancy remains “on all the terms and
conditions of the original lease.”
Straley v. Osborne, 278 A.2d
64, 68 (Md. 1971).
Despite
terms
of
demonstrating
the
predecessors,
Point
after
district
Lease
Kinder
the
court
in
an
its
Morgan
final
intent
undoubtedly
it
to
negotiations
Interim
observed,
not
bound
with
remained
Agreement
also
be
by
RG
Steel’s
at
Sparrows
expired.
continued
to
the
As
pay
the
rent,
utilities, and wharfage fees to the owners of the property, and
it continued to operate and maintain the Bridge Crane.
Kinder
Morgan also failed to take any of the actions that would have
been
required
upon
the
expiration
of
the
Lease,
including
surrendering the property and conducting a final inspection of
the Bridge Crane.
Based on Kinder Morgan’s behavior, I agree
with the district court’s conclusion that the purchase orders
30
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alone could not possibly be construed to govern the parties’
relationship.
And
although
Kinder
Morgan
did
not
consider
itself bound by any agreement with RG Steel’s predecessors, its
continued presence at the site and “good faith” adherence to the
terms of the Lease is consistent with a holdover tenancy.
Due to the holdover tenancy, the Lease terms remained in
force beginning on January 1, 2006, to the extent the parties
did not replace those terms with express, written agreements.
Among the Lease terms was an entire section dedicated to the
Bridge Crane wherein Kinder Morgan and its predecessors agreed
to assume “the entire risk of loss, theft, or destruction of the
No. 4 Bridge Crane resulting from any cause whatsoever.”
690.
J.A.
The Lease’s indemnity provision further clarified Kinder
Morgan’s liability, stating that it would “indemnify and save
harmless” the crane’s owner from any loss or liability resulting
from any damages sustained by the owner as a result of any act
or omission of Kinder Morgan, “whether negligent or otherwise.”
J.A. 692.
Undoubtedly, the terms of the Lease directly covered
the subject matter of Kinder Morgan’s liability in the event of
damage
to
the
Bridge
Crane,
and
did
not
provide
for
any
limitation on consequential damages.
In February 2008, the parties entered into a purchase order
under which Kinder Morgan agreed to unload “up to 500,000 nton
of coke from ships with Bridge Crane.”
31
J.A. 992.
Delivery of
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the coke was promised approximately four months later, and the
purchase order provided for a delivery location, a unit price,
and a total price.
The purchase order also made reference to
the buyer’s terms and conditions, contained in a document called
the
AMUSA-100
“General
Goods or Services.”
Purchasing
Conditions
for
Purchase
of
The first sentence of the AMUSA-100 clearly
states its scope: “These General Purchasing Conditions (“GPC”)
shall
apply
to
the
products . . . and
any
purchase
related
of
services
provided by suppliers (‘Seller’).”
The
terms
of
the
procurement
of
topics
price
as
AMUSA-100
specific
any
and
adjustments,
(“Goods”)
items,
offered
or
J.A. 997 (emphasis added).
thus
goods
materials,
explicitly
services,
delivery,
apply
to
addressing
inspection
of
the
such
the
product, and warranties on the goods exchanged.
Although the “Warranty – Liability” portion of the terms
states
that
neither
party
will
be
liable
for
consequential
damages “under this order,” that language is preceded by five
sections referring to the nature of the goods delivered under
the purchase order, including their quality, performance, and
timely delivery.
The limitation on liability under the purchase
order is narrow in scope: it only covers liability resulting
directly from Kinder Morgan’s delivery of goods and services to
RG
Steel
and
its
predecessors.
The
purchase
order
and
its
accompanying terms do not address Kinder Morgan’s liability in
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the event that it fails to maintain and protect the Bridge Crane
itself, despite the fact that Kinder Morgan was unloading coke
at
the
time
of
the
accident.
I
would
therefore
find
that
because the terms of the Lease were the only manifestation of
the parties’ intent with respect to the damages caused by the
accident, those terms apply and there is no limitation on Kinder
Morgan’s liability. *
Ultimately, I agree with the majority’s view that the terms
of
the
Lease
remained
in
force
and
continued
to
parties’ relationship at the time of the accident.
govern
the
Although the
parties subsequently entered into written purchase orders, those
orders (and their accompanying terms and conditions) addressed a
subject matter distinct from the events of this case and thus do
not
supersede
majority’s
the
Lease
conclusion
terms.
that
Kinder
I
therefore
Morgan
is
join
in
liable
the
for
consequential damages, and that the district court did not err
in relying on Appellee’s expert in calculating those damages.
*
The majority applies the Lease terms indirectly through
the AMUSA-100’s “safety valve provision.” But because I do not
agree that the limitation on liability in the purchase order and
the
indemnity
clause
in
the
Lease
are
“corresponding . . . provisions” “in contradiction with” each
other, J.A. 997, I conclude that Kinder Morgan’s liability for
the accident is governed only by the Lease.
33
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