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`NOT RECOMMENDED FOR PUBLICATION
`File Name: 20a0382n.06
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`No. 19-6088
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`UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
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`Plaintiffs-Appellees,
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`RIVERFRONT DEVELOPMENT, INC., and
`CITY OF MEMPHIS, TENNESSEE,
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`v.
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`WEPFER MARINE, INC.,
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`Defendant-Appellant.
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`ON APPEAL FROM THE UNITED
`STATES DISTRICT COURT FOR
`THE WESTERN DISTRICT OF
`TENNESSEE
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`BEFORE: BATCHELDER, STRANCH, and MURPHY, Circuit Judges.
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`MURPHY, Circuit Judge. One clear July day, a towboat making its way to the Mississippi
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`River ran aground on the foot of Mud Island in Memphis, Tennessee. The vessel left large holes
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`on Mud Island’s banks. The City of Memphis and its agent, Riverfront Development, Inc., invoked
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`the district court’s admiralty jurisdiction to bring this negligence suit against Wepfer Marine, Inc.,
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`the owner of the grounded vessel. After finding Wepfer liable for the grounding, the district court
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`awarded $1,145,990 in damages. Wepfer now challenges only the damages ruling. For the most
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`part, we reject Wepfer’s claims under our deferential standard of review. But the district court did
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`commit one clear error in calculating the damages award. We thus reverse the judgment and
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`remand for entry of an amended award consistent with this opinion.
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`No. 19-6088, Riverfront Development, Inc., et al. v. Wepfer Marine, Inc.
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`I
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`A
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`Mud Island sits in Memphis, Tennessee, where the Wolf River Harbor meets the
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`Mississippi River. It is not in fact an island, but a peninsula running north-and-south down the
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`Tennessee side of the Mississippi River. To the island’s west lies the Mississippi River and then
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`Arkansas; to its east lies the Wolf River Harbor and then downtown Memphis. Mud Island’s
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`undeveloped southern tip juts out where the Wolf River Harbor meets the Mississippi.
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`On July 6, 2015, Captain Jared LaFrance was piloting the M/V Lucy Wepfer southbound
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`through the Wolf River Harbor toward the Mississippi. The Lucy Wepfer pushed a barge loaded
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`with concrete slurry. LaFrance intended to make a “U-turn” and steer his vessel northward up the
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`Mississippi River. As he entered the Mississippi, Mud Island was to his starboard (right) side.
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`The Mississippi was high that day, and Mud Island’s southern tip was submerged. LaFrance made
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`his starboard turn into the Mississippi prematurely, and the Lucy Wepfer ran aground on Mud
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`Island’s submerged southern tip. In the language of admiralty law, this was an “allision,” which
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`“occurs when a moving vessel strikes a stationary object[.]” Bessemer & Lake Erie R.R. Co. v.
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`Seaway Marine Transp., 596 F.3d 357, 362 (6th Cir. 2010). The Lucy Wepfer and the barge were
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`extracted after some effort. The water’s later receding revealed two large gashes on Mud Island’s
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`eastern shore.
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`B
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`Riverfront Development, Inc., Mud Island’s managing agent, sued Wepfer Marine, Inc.,
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`the Lucy Wepfer’s owner, for negligence. Riverfront sought to recover the costs of repairing the
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`damage to Mud Island. The City of Memphis later intervened as a plaintiff. (The distinction
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`between the two plaintiffs does not matter on appeal so we will refer to them both as “Riverfront.”)
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`The district court determined that Wepfer was fully liable and that the proper measure of damages
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`was restitutio in integrum—the cost of restoring Mud Island to its previous condition. The
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`Baltimore, 75 U.S. 377, 385 (1869).
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`The district court held a hearing to establish the cost of repairing Mud Island. Following
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`the grounding, the Mississippi’s rising and falling waters had started filling the holes with
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`sediment. The parties disputed whether this sediment needed to be removed to restore Mud Island
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`to its original condition. Wepfer argued that the sediment was the same material that had built
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`Mud Island and that the river would naturally refill the holes. Alternatively, Wepfer contended
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`that it needed only to pay to fill the holes above the sediment. Riverfront, by contrast, maintained
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`that the accumulating sediment would not restore Mud Island to its original condition. It wanted
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`to excavate the sediment so that the holes could be “filled and packed by human intervention with
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`sand and/or limestone.” At the hearing, then, the district court needed to resolve (a) the volume
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`of the holes; (b) whether the sediment needed to be removed; (c) the material that should be used
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`to fill the holes, if any; and (d) the total cost of the repairs.
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`1. Volume. The parties debated the size of the two large holes. Both sides measured the
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`holes within eight months of each other.
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`James Reeder, a Riverfront project director with a bachelor’s degree in civil engineering,
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`first measured the holes in November 2016, about 16 months after the accident. Reeder explained
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`his process. Using a “tape measure and electronic devices,” he “divided the two gouges into five
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`different areas” and then “took measurements of these five parts . . . and came up with the cubic
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`yardage.” Reeder estimated the holes’ irregular depths by using “engineering judgment” and his
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`own height as a reference. Based on rounded-up measurements, he calculated the volume of the
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`holes as 10,000 or 10,100 cubic yards. When Reeder sought a quote for refilling the holes, he
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`added a 20-percent contingency to account for “compaction” of the material. This contingency
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`was necessary, Reeder explained, “because a lot of times when you fill up holes, you have material
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`that’s not compacted and you have to buy more material than what is the volume of the hole. So
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`when you end up compacting it, you have to have 20 percent more material to get to the final
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`grade.” That resulted in a total volume of 12,000 cubic yards of fill material to fill the 10,000 or
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`so cubic yards of holes.
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`Wepfer hired Ollar Surveying Company to measure the holes again eight months later in
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`July 2017. The court recognized Douglas Swink, the surveyor, as an expert in the fields of land
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`surveying, topographic surveys, slope analysis, and soil analysis. Swink measured the holes using
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`common surveyor methods. He calculated their volume as 2,792.30 cubic yards, a number that
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`fell more than 70 percent below Reeder’s. But all agreed that Ollar’s measurements were more or
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`less accurate in July 2017.
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`The disparities in measurements mattered greatly to Wepfer, as they suggested the amount
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`of sediment accumulating in the holes. Wepfer tried to paint Reeder’s earlier tape-measure
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`calculations as unsophisticated and inaccurate. Even Riverfront’s expert opined that it did not
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`“seem very likely” that the holes could have filled with over 7,000 cubic yards of sediment in eight
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`months. Benny Lendermon, Riverfront’s former president and a civil engineer, also agreed that,
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`when he saw the holes in March 2017 (after Reeder’s measurements but before Ollar’s), it appeared
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`that they “had filled in very little[.]” But Riverfront’s witnesses also suggested that erosion and
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`“sloughing” (instability of the holes’ slopes) could account for some of the accumulation.
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`2. Excavation. The parties next debated whether the accumulated sediment needed to be
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`removed before refilling the holes.
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`No. 19-6088, Riverfront Development, Inc., et al. v. Wepfer Marine, Inc.
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`Riverfront’s witnesses testified that excavation was necessary because Mud Island is made
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`of sand and the sediment accumulating in the holes was “muck.” Those witnesses included Reeder;
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`Lendermon; and Clinton S. Willson, a professor of civil and environmental engineering. Dr.
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`Willson testified that Mud Island, in its present form, is largely made of sand. Around the turn of
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`the twentieth century, it was little more than a sand bar. But today, he explained, it is “a highly
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`engineered system” composed of “dredged material that was . . . placed in a way that would allow
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`for . . . development[.]” The dredged material was mainly “granular sand” from the bottom of the
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`Mississippi River.
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`While Mud Island is made of sand, Riverfront’s witnesses testified that the sediment
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`settling in the holes was likely “muck.” They admitted that they did not test the sediment to
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`determine whether it was muck or sand—the most accurate way to answer the question. But they
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`explained why they believed it was muck. According to Dr. Willson, the Mississippi carries a
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`range of sediments, from “large course-grain sand, down through medium, fine, very fine sand,”
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`and then “down into silts and clays[.]” The heavier sand settles near the river bottom. The finer
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`material is no match for the Mississippi’s current and so remains afloat. The Wolf River Harbor,
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`by contrast, has little to no current. An eddy thus forms as the Mississippi’s current meets the
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`Wolf River Harbor’s stagnant water. The Wolf River Harbor’s lack of a current allows the
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`Mississippi River’s fine materials to settle, resulting in “more loose material”—known as
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`“muck”—accumulating in the harbor. Because the holes were on Mud Island’s harbor side,
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`Riverfront’s witnesses testified, it was highly likely that they contained the settling muck rather
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`than sand.
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`Riverfront’s witnesses added that muck is not a suitable replacement for sand. Dr. Willson
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`defined muck as “typically some combination of water, mud, organic material . . . very fine
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`particles.” It has very little “integrity in terms of being able to step on it, in terms of loading on
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`top of it.” He explained that “there’s a big difference between the [structural] stability of the clay
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`and the stability of the sand.” Lendermon agreed, and described a riverfront development project
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`near Mud Island in which the builders allowed “too much silty material” to mix with the sand.
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`“[T]hat soft material there was creating a sliding plane that created no stability” and resulted in “a
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`major failure of [a] dike.”
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`To dispute these points, Wepfer presented evidence that Riverfront needed to undertake no
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`excavation because the holes were filling with the same material used to build Mud Island. Dr.
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`Charles Morris, an expert in river engineering, agreed that Mud Island had been built of dredged
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`Mississippi River sand. But Dr. Morris believed that the sediment now filling the holes was
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`“mostly sand,” not muck. Because Mud Island sat on the outer side of a Mississippi River bend,
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`he explained, it was more likely for sand to be deposited on the island’s foot. On the bend’s inner
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`side, closer to Arkansas, the water travels at a slower rate. But the water on the bend’s outer side
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`accelerates as it travels more distance. When the water is “flowing faster,” Dr. Morris explained,
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`“it carries sand with it.” In Dr. Morris’s opinion, the fast-flowing water was depositing sand on
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`Mud Island. He did not think “human intervention” was necessary to return the holes to their
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`original condition
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`Riverfront called Dr. Willson in rebuttal. In his view, the higher speed in the bend creates
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`“a corkscrew effect of the flow. So if the flow is trying to go around the bend, it’s also then
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`corkscrewing back under down to the bottom of the river.” That phenomenon would push the sand
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`away from Mud Island toward Arkansas.
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`3. Materials. The parties also debated the materials that would be suitable to refill the
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`holes. The two options were sand ($43.50 per cubic yard) and limestone ($37 per cubic yard). In
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`its pretrial brief, Riverfront requested the more expensive sand. All witnesses agreed that both
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`sand and limestone would be acceptable. A Riverfront witness, Lendermon, testified that
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`limestone was “certainly” suitable, and that sand would be “suitable as long as you can hold it in
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`place.” Dr. Willson also thought that “some kind of construction-grade limestone” or “maybe
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`sand” would be appropriate fill materials. He could not say that “one or the other is better.” Dr.
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`Morris, Wepfer’s expert, believed limestone was “a sufficient material”; indeed, he testified that
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`limestone would make the island “much more stable” than it was before and so “would be an
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`enhancement to stability.”
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`4. Costs. Riverfront lastly introduced the sole estimates that it had received to repair Mud
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`Island. Luhr Brothers, Inc., estimated a cost of $623,990 for excavating 9,208 cubic yards of
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`material. The company received that 9,208 number from Reeder. To calculate this number,
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`Reeder started with his 12,000 cubic yard estimate—an estimate that included both the size of the
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`holes that he had measured (about 10,000 cubic yards) and the 2,000 cubic yards worth of extra
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`fill material needed because of compaction. Reeder then subtracted 2,792 cubic yards—the size
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`of the hole that Ollar later measured in July 2017.
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`The cost estimate for refilling the holes with limestone was $444,000, while the cost to
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`refill with sand was $522,000. These amounts were based on 22,000 tons of fill material reflecting
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`12,000 cubic yards—the quantity of fill that Reeder had initially calculated.
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`C
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`The district court’s damages order awarded Riverfront “the cost of excavating and refilling
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`the depressions caused by Wepfer’s negligence.” It credited Riverfront’s witnesses that the
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`sediment filling the holes was “muck” and thus that Riverfront needed to excavate it. It noted that
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`Wepfer’s alternative theory that the accumulated sediment was sand did not “overwhelm[]”
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`No. 19-6088, Riverfront Development, Inc., et al. v. Wepfer Marine, Inc.
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`Riverfront’s “substantial evidence” to the contrary. The court next accepted Reeder’s initial
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`measurements as an acceptable estimate of the original size of the holes, and seemingly used
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`Ollar’s later measurements to conclude that the holes had filled with roughly 9,208 cubic yards of
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`sediment. It also found that Riverfront had established sand as an appropriate material for refilling
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`the holes. Finally, the court found the cost of repair to be essentially uncontradicted, and accepted
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`Luhr Brothers’ estimates. It entered a judgment awarding Riverfront $1,145,990 in damages.
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`Wepfer filed a motion to alter or amend the judgment under Federal Rule of Civil
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`Procedure 59(e). The court denied the motion, concluding that it sought “a wholesale relitigation
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`of the case” and raised “no new arguments.”
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`II
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`On appeal, Wepfer challenges the district court’s damages award without disputing the law
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`that the court applied. So we may assume (without deciding) that the court properly determined
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`that the correct measure of damages was the cost of restoring Mud Island to its prior condition.
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`The Baltimore, 75 U.S. 377, 385 (1869). And we may assume (without deciding) that Riverfront
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`needed only to prove this restoration cost “to a ‘reasonable degree of certainty.’” Nat’l Steel Corp.
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`v. Great Lakes Towing Co., 574 F.2d 339, 342 (6th Cir. 1978) (quoting Cranston Print Works Co.
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`v. Pub. Serv. Co. of N.C., 291 F.2d 638, 649 (4th Cir. 1961)).
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`Instead, Wepfer challenges the district court’s factual findings. We review “findings of
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`fact following a bench trial in an admiralty case for clear error, construing the evidence in the light
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`most favorable to the appellee.” F.C. Wheat Maritime Corp. v. United States, 663 F.3d 714, 723
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`(4th Cir. 2011); ConAgra, Inc. v. Inland River Towing Co., 252 F.3d 979, 983 (8th Cir. 2001). We
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`must affirm the findings if they are “plausible in light of the entire record,” even if we might have
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`“weighed the evidence differently.” Harlamert v. World Finer Foods, Inc., 489 F.3d 767, 771 (6th
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`Cir. 2007) (citing Anderson v. City of Bessemer City, 470 U.S. 564, 574–75 (1985)); Fed. R. Civ.
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`P. 52(a)(6). And we may reverse only if we are “left with the definite and firm conviction that a
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`mistake has been made[.]” Pearce v. United States, 261 F.3d 643, 647 (6th Cir. 2001) (quoting
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`Graves v. United States, 872 F.2d 133, 136 (6th Cir. 1989)).
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`Wepfer alleges four factual errors. It argues that the district court: (1) wrongly estimated
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`the size of the holes in Mud Island; (2) mistakenly found a need to excavate the sediment out of
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`the holes; (3) miscalculated the amount of sediment needed to be excavated; and (4) chose the
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`wrong fill material. The deferential standard of review requires us to reject all but the third
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`argument. We find that the district court committed clear error in calculating the amount of
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`sediment to excavate. Wepfer also challenges the district court’s denial of its Rule 59(e) motion,
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`but it makes no separate argument on the merits. So our resolution of these four main issues
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`suffices to resolve that issue.
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`1. Size of Holes. Wepfer first argues that the district court erred in crediting Reeder’s
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`measurements of the size of the holes in November 2016. To recap, the district court accepted
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`Reeder’s measurements that, as of November 2016, the holes were “roughly 10,000 cubic yards”
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`in size. And it accepted Reeder’s 20-percent “contingency” for additional material necessary to
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`compact the holes to the final grade.
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`The district court’s reliance on Reeder’s measurements for the holes’ initial size suffices
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`to survive the clear-error standard. Reeder has a degree in engineering. Using basic tools, he took
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`the holes’ average widths, lengths, and depths, and calculated a volume of 10,000 or so cubic
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`yards. He also explained the need for a 20-percent compaction contingency when refilling the
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`holes. He testified that, in his judgment, the measurements were “reasonably accurate.” The
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`evidence sufficed to prove the size of the holes to “a reasonable degree of certainty.” Nat’l Steel
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`Corp., 574 F.2d at 343.
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`Wepfer’s contrary arguments ask us to reweigh the evidence and reach a contrary
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`conclusion. That is not our job on appeal. See Harlamert, 489 F.3d at 771. Wepfer argues that
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`Reeder simply “ballparked” his estimate of about 10,000 cubic yards, using unsophisticated tools
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`and calculations. Wepfer contrasts Reeder’s approach with Ollar’s measurements, which used
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`standard surveying techniques to reach a much lower estimate of 2,972 cubic yards. And Wepfer
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`points to evidence suggesting that it was unlikely that the holes had filled with nearly 7,000 cubic
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`yards of sediment between the two measurements. Yet, invoking Tennessee law for this admiralty
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`case, Wepfer concedes that Riverfront needed only to present “substantial evidence” to allow the
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`district court to make a “fair and reasonable assessment of the amount of damages.” Apt. Br. 19
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`(quoting Grantham & Mann, Inc. v. Am. Safety Prods., Inc., 831 F.2d 596, 602 (6th Cir. 1987)).
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`Reeder’s measurements meet that substantial-evidence requirement. While we might not have
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`taken the same view of the facts, we cannot say the district court’s finding was clearly erroneous.
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`2. Need for Excavation. Wepfer next argues that the district court erred in crediting the
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`testimony from Riverfront’s witnesses that accumulated sediment must be excavated to restore
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`Mud Island to its original condition. There was no clear error. To begin with, both parties’
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`witnesses agreed that Mud Island is largely made of dredged sand. And Riverfront presented
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`uncontradicted evidence that river muck is not a suitable replacement for sand. So the parties
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`disputed only whether the sediment accumulating in the holes was sand (suitable) or muck (not
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`suitable).
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`Riverfront presented enough evidence for the court to find that the holes were mostly filling
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`with muck, not sand. Dr. Willson opined as to this fact and gave a reasoned explanation why—
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`because the Wolf River Harbor was mostly filled with muck and the holes were on the harbor side.
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`His expert opinion, rooted in his understanding of river dynamics, comported with Lendermon’s
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`practical experience. In Lendermon’s experience from other projects, the material in the mouth of
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`the Wolf River Harbor is “unsuitable” muck. The district court could rationally credit Dr.
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`Willson’s explanation as “persuasive” and could rationally conclude that Lendermon’s testimony
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`lent “further credibility” to those expert views. We treat these credibility findings with great
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`deference. See Fed. R. Civ. P. 52(a)(6); Madden v. Chattanooga City Wide Serv. Dep’t, 549 F.3d
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`666, 674 (6th Cir. 2008). The district court thus had “sufficient” evidence to make a “just and
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`reasonable” determination that the holes required excavation before refilling. Nat’l Steel Corp.,
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`574 F.2d at 342.
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`Wepfer’s counterarguments lack merit. It argues that the district court’s ruling was
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`improperly speculative because Riverfront never tested the sediment. To be sure, Dr. Willson and
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`Lendermon admitted that they did not know the holes’ contents with absolute certainty. But their
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`opinions were far from “speculation or guesswork.” See id. They were rooted in understanding
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`of, and experience with, the Mississippi River. As Lendermon explained, there were two ways to
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`determine the makeup of the accumulated sediment: to test it or to know “how it got there.” While
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`the first approach would provide greater clarity, the second approach, on this record, was sufficient
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`for the district court to reach a reasonably certain conclusion. Cf. ConAgra, 252 F.3d at 985.
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`Wepfer next points to contrary evidence. It cites Dr. Morris’s opinion, for example. But
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`“when a trial judge’s finding is based on [the] decision to credit the testimony of one or two or
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`more witnesses, each of whom has told a coherent and facially plausible story that is not
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`contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never
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`be clear error.” Madden, 549 F.3d at 674 (quoting Anderson, 470 U.S. at 575). Wepfer also cites
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`the observation from Ollar’s surveyor (Swink) that the holes contained material like the
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`undamaged portions of Mud Island. As the district court elsewhere found, however, “collapse of
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`other parts of the island” could account for some of the material in the holes. The court’s
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`excavation finding was not clearly erroneous.
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`3. Amount of Excavation. Wepfer argues that the district court erred in its calculation of
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`the volume of sediment to be excavated. It has a point. Recall that Reeder measured the size of
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`the holes as 10,000 or 10,100 cubic yards, but added a 20-percent “contingency” to account for
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`the extra fill material that Riverfront would need to compact the holes to grade level. When
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`Riverfront sought a quote for refilling the holes, it used this 12,000-cubic-yard figure. It also used
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`that same enhanced figure (12,000, not 10,000) when later seeking a quote for removing the
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`accumulated sediment from the holes. It asked Luhr Brothers to price out the excavation of 9,208
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`cubic yards of sediment. Riverfront reached the 9,208-cubic-yard figure by taking the difference
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`between Reeder’s enhanced estimate (12,000 cubic yards) and Ollar’s later measurement (2,792
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`cubic yards). And the district court awarded Riverfront $623,990, the cost of removing 9,208
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`cubic yards of material. The court clearly erred in calculating the amount to be excavated as 9,208
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`cubic yards.
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`The error comes from accepting the 12,000 cubic yards as the baseline size of the holes for
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`excavation purposes, when that figure included roughly 1,900 to 2,000 extra cubic yards of
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`material for filling purposes. By Reeder’s own telling, the compaction contingency for filling a
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`hole represents “more material than what the volume of the hole indicates[.]” He later repeated
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`this explanation, saying that “when you fill up holes, you have material that’s not compacted and
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`you have to buy more material than what is the volume of the hole.” So using the compaction-
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`enhanced volume for excavation overestimates the actual size of the holes, which were only 10,000
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`or so cubic yards by Reeder’s own telling. Reeder himself seemed to concede during cross-
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`examination that the compaction number should not be used to calculate the excavation number.
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`When Wepfer’s attorney asked him to explain why “the 20 percent compaction figure” should be
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`used to calculate the excavation amount, Reeder replied: “I didn’t say it would.” And Riverfront
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`has identified no other evidence supporting the use of this 12,000-cubic-yard figure for excavation
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`purposes. Given Reeder’s own explanation and the lack of other evidence, we have a “definite
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`and firm conviction that a mistake has been made” on this calculation. Pearce, 261 F.3d at 647
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`(quoting Graves, 872 F.2d at 136).
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`The true excavation volume likely should have been about 7,208 cubic yards (the “roughly
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`10,000 cubic yards” found by the district court, less 2,792). Ollar’s estimate included $60,000 in
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`fixed costs, plus variable costs based on excavation volume, with a multiplier of $61.25. See
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`Exhibit 25. Plugging in the new volume results in a total excavation cost of $501,490, which
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`would reduce the damages award by roughly $122,500. Yet the district court did not precisely
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`identify the actual size of the hole that Reeder measured. The court described Reeder’s estimate
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`as “roughly 10,000 cubic yards” based on his testimony that “I believe the number was 10,000
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`cubic yards, 10,100 cubic yards.” We will leave it to the district court to recalculate the proper
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`number on remand without the use of any compaction contingency.
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`Riverfront makes no argument to justify the use of the larger 12,000-cubic-yard number.
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`It claims that Wepfer’s “arguments on this finding are tethered to its position that Mr. Reeder’s
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`volume measurements were incorrect.” Ape. Br. 29. Not so. Wepfer makes this argument
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`“without waiving its [separate] argument that Reeder’s volume estimate [was] so exaggerated as
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`to render it incredible[.]” Apt. Br. 29–30. One can fully accept that Reeder correctly calculated
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`the size of the hole as roughly 10,000 cubic yards in volume and also conclude that the 2,000 cubic
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`No. 19-6088, Riverfront Development, Inc., et al. v. Wepfer Marine, Inc.
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`yards in compaction volume should not be used to calculate the excavation volume. Riverfront
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`also portrays the 9,208-cubic-yards figure as “consistent with all [the district court’s] other
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`findings,” including “that the volume of the land gouged out measured 12,000 cubic yards.” Ape.
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`Br. 29–30. That is mistaken. The district court found that Reeder had calculated an actual volume
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`of “roughly 10,000 cubic yards,” and separately allowed the 20-percent “contingency for
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`compression of the material.” The district court gave no explanation as to why the contingency
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`should also apply to determine the amount of excavation needed, and we have found no evidence
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`in the record that would suggest the contingency should have carried over in this way.
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`4. Material to Use. The district court lastly did not clearly err in concluding that “sand
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`would be an appropriate material to refill the depressions.” Several witnesses testified that sand
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`would restore Mud Island to its original condition.
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`In response, Wepfer points to evidence suggesting both that limestone was an acceptable
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`(or even preferable) material and that it was cheaper. But Wepfer asserts no legal argument that
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`Riverfront had any admiralty-based duty to mitigate damages by picking that alternative. And the
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`district court could reasonably require the same material that was used to create Mud Island.
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`For these reasons, we reject all of Wepfer’s arguments save one. We hold that the district
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`court clearly erred when it calculated the excavation amount. We reverse the district court’s
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`judgment and remand for entry of an amended damages award consistent with this opinion.
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