Full opinion text
OPINION PATRICK E. CARR, District Judge. This matter was tried before the Court sitting without a jury on Thursday-Friday, April 27-28, 1989. Having considered the evidence, the record, the arguments of counsel, and the applicable law, the Court now rules as follows. To the extent any of the following findings of fact constitute conclusions of law, the Court adopts them as such; to the extent any of the following conclusions of law constitute findings of fact, the Court adopts them as such. This is a maritime property damage case under Rule 9(h). On October 28, 1986, defendants’ vessel the M/V ROBERT N. STOUT picked up thirteen loosely-rigged barges in the Chain of Rocks Canal near St. Louis, Missouri. Without first having his crew completely tighten.the rigging, the captain proceeded down the canal and into the Mississippi River, where eleven of these barges soon broke away in an unexpected current. One or more of these barges struck and severely damaged two of plaintiffs’ marine structures in the river, namely, a mooring cell at the ICG/Peabody facility and a mooring dolphin at the Pillsbury Sauget facility. Plaintiffs seek to recover the replacement costs for these two structures, as well as certain incidental expenses relating to the damage. I. A. The parties Plaintiffs in this action are The Pillsbury Company, Illinois Central Gulf Railroad Company (ICG), Burlington Northern Railroad Company, and ConAgra, Inc. At all material times, ICG and Burlington Northern were and still are the owners of a barge loading facility commonly referred to as the ICG/Peabody facility or Peabody Coal Dock, which is located in East St. Louis, Illinois on the left descending (east) bank of the Mississippi at about UMR Mile 179.2 (i.e., Mile 179.2 of the Upper Mississippi River). At all material times up to January 31, 1989, this facility was under lease to Pillsbury. At issue in this matter is the northern, or upriver, most mooring structure located in the river at this facility, namely, a mooring cell. At all material times, Riverport Terminal and Fleeting Company was and still is the owner of another barge loading facility further downriver and commonly referred to as the Pillsbury Sauget facility, which is located in Sauget, Illinois on the left descending bank of the Mississippi at about UMR Mile 177.6. At all material times up to January 31, 1989, this facility also was under lease to Pillsbury. At issue in this matter is the northern, or upriver, most mooring structure located in the river at this facility, namely, a mooring dolphin. On January 31, 1989, Pillsbury sold its grain merchandising division of about forty facilities to ConAgra, Inc. Included in this sale was Pillsbury’s interest in these two facilities and in all assets thereon. As part of the sale, Pillsbury and ConAgra entered into a three-page ratification agreement concerning the mooring cell, the mooring dolphin, and this litigation; following a preamble, the agreement provides in whole as follows: 1. Pillsbury hereby retains the obligation to restore the above-described marine dolphin and cell to a condition so as to be in compliance with Pillsbury’s repair and maintenance obligations under the applicable leases. 2. ConAgra hereby (1) ratifies the [instant] civil action instituted by Pillsbury, Burlington and Illinois for the recovery of damage to the marine dolphin at the Sauget Terminal and the marine cell at the ICG facility, (2) agrees to be bound by the decision of the United States District Court for the Eastern District of Louisiana in that action, and (3) forever waives any right it had, has or may have to pursue claims for damage to the above-described mooring dolphin and cell contained in the [instant] action instituted by Pillsbury, Burlington and Illinois. ConAgra further agrees that all sums recovered by Pillsbury, Burlington and Illinois relating to damage to the mooring dolphin and cell shall be retained by those parties. Pillsbury hereby agrees to indemnify and hold ConAgra harmless from any and all damages, losses, costs or expenses it may suffer or incur which in any way result from- the [instant] action instituted by Pillsbury, Burlington and Illinois including, without limitation, damages, losses, expenses or costs incurred as a result of any counterclaim(s) or crossclaim(s) filed in said action. According to S. Vincent O’Brien, formerly with Pillsbury and now with ConAgra and who participated in the sale negotiations and closing, this ratification agreement is the sole agreement concerning these two facilities, other than the general sale agreement. Defendants in this action are Midland Enterprises, Inc. and one of its subsidiaries, Orgulf Transport Company, in person-am and the M/V ROBERT N. STOUT in rem. Both Midland and Orgulf admit that at all material times they were and still are doing business in this district. The vessel was never served or arrested, nor was a letter of undertaking, a notice of claim of owner, or any similar formal stipulation filed into the record; further, there is no evidence that the vessel was ever within the Eastern District of Louisiana during the pendency of this action. The pretrial order includes no mention of the vessel as one of the defendants before the Court. In two early, unverified documents in the record, however, defense counsel represented that they were appearing on behalf of not only Midland and Orgulf, but also the vessel itself. The ROBERT N. STOUT is a steel hull push boat (tug) measuring 152.5 feet long and 45 feet wide. It is equipped with two diesel engines and Kort nozzles that generate a total power of about 7,200 horsepower. The vessel is among the largest towing vessels on the Upper Mississippi. At all material times, Midland owned and Orgulf operated the vessel, which was in good operating condition. B. The breakup On Tuesday, October 28, 1986, the Mississippi River in the St. Louis area was at a river stage between 29 and 30 feet and rising. Under this near flood-stage condition, the river current, especially for the topwater, is faster than normal and lateral sets, or drafts or shears, are generally stronger. On that same date, the ROBERT N. STOUT was under the command of Or-gulf’s employee Captain Jimmy Wolfe, a Coast Guard licensed river captain and pilot with over thirty years experience primarily on towing vessels. He was fully aware of the river condition that day. From around noon to 6 p.m., he was off-shift. During this period, the vessel proceeded up the Mississippi River through the St. Louis Harbor, then up the adjoining Chain of Rocks Canal (commencing at UMR Mile 184.1), through its lower-most lock (viz., Lock No. 27 at UMR Mile 185.5), and into the forebay (the northern, or upcanal, side) of the lock in order to exchange tows with another Midland/Orgulf vessel, the OMEGA, which had come southbound down the same canal. The STOUT was to pick up the OMEGA’s thirteen, fully loaded, unmanned, river hopper barges, which ranged from 195 to 200 feet long by 35 feet wide. These barges were joined three abreast by four deep, with a single lead, or spike, barge extending off the front of the group of twelve; together, the STOUT and tow had a total length of 1141 feet and a total width of 105 feet. According to Captain Wolfe, the odd barge was spiked, and not lashed abreast the other barges, in order that the tow could pass through the narrow locks. There were no lateral support, or wing, wires running from either the bow or the side of the spike barge to any of the other barges. Because of their lack of stability, especially without wing wires, Captain Wolfe prefers not carrying spike barges. At some time during his off-shift and while these thirteen barges were still in the OMEGA’s control, Captain Wolfe went for an afternoon exercise walk. During this long walk, he passed over both the STOUT’s original tow and the OMEGA’s original tow. He noticed that a significant portion of the rigging on the tow coming from the OMEGA to the STOUT was improperly rigged; specifically, he observed that, contrary to normal procedure, the rigging was “quite a bit loose” and that the ratchets “were run all the way up” (i.e., not properly adjusted). Nonetheless, he apparently said nothing to anyone at that time about his observation. After his walk, Captain Wolfe returned to the STOUT in order to eat his supper and to take a shower before his evening shift. According to the captain, the two vessels completed their tow exchange sometime during this period; according to the vessel log, the tow exchange was completed at 5:00 p.m. At around 5:50 p.m. to 5:55 p.m., when the STOUT and its new tow were at or near the lockwall and waiting to enter Lock No. 27, the captain began his watch. Sometime before the vessels entered the lock, which according to the vessel log was at 6:30 p.m., his mate on duty approached him to advise him of the loose rigging on the new tow; only then did the captain order the mate and the two deckhands on duty to tighten the rigging as much as possible before the STOUT and tow reached the river. According to Captain Wolfe, it was Or-gulf’s policy that a captain had the complete discretion to order that a tow be rerigged if he was dissatisfied with the tow’s rigging condition. No evidence was introduced of any other, specific policies by Orgulf or Midland concerning the rigging of barges being towed by Orgulf captains on Midland vessels or otherwise. Other than by directing his crew to tighten the tow’s rigging, Captain Wolfe apparently did not exercise any such discretion. During the period when the vessels were entering, in, and exiting the lock — which operation according to the vessel log took a total of thirty minutes — the crew was unable, at least much of this time, to tighten the rigging because it had to handle lines for maneuvering the tug and tow into and out of the lock. As soon as the tow reached the end of the canal, the captain blew his whistle for the crew to stop tightening the rigging and to return to the STOUT; according to the captain, it was his safety policy not to let crewmembers remain on tows during high river conditions. He never specifically asked whether the crew had completed the tightening operation; upon consideration at trial, however, he doubted that the crew would have had enough time to complete the entire tightening operation. The water in the canal was relatively slack (i.e., still, calm, or without current) such that a vessel could safely complete a tow tightening operation. Yet Captain Wolfe did not attempt to stop his tug and tow in the canal. At trial, he acknowledged that there was a danger that the barges might break up. But he added that he had believed the rigging was sufficiently tightened so that he could safely arrive at his destination at the Eagle Fleet facility, which is about five miles downriver from the canal. The lockmaster has a general order in effect that vessels are not to stop in the canal without first seeking his permission; according to plaintiff’s navigation expert, Captain Edgar Allen Poe, this order does not apply, however, to the bottom 1200 feet of the canal, where the canal is about 450 feet wide. Captain Wolfe never sought— indeed, never consciously thought of seeking — the lockmaster’s permission to stop anywhere in the lock or canal in order to ensure that his crew could properly complete its tightening operation. He testified that he would have sought permission had he believed his tow was unsafe, but added that he did not believe his risk to be sufficiently large — especially in light of Or-gulf’s unwritten policy to keep its vessels moving whenever possible — to warrant seeking permission to stop, which might have interfered with the heavy northbound traffic around Lock No. 27 that day. Captain Wolfe acknowledged that he never knew of a time when the lockmaster denied any such request for safety reasons; according to Captain Poe, the lockmaster commonly receives and grants such requests during adverse travel conditions. As soon as the tow reached the river, Captain Wolfe noticed through the dark the spike barge start “wiggling.” This observation, which he termed a “cause for concern,” led him in part to conclude, at least in the back of his mind, that the crew had in fact not finished tightening the tow’s rigging. But he still did not attempt to stop the tug and tow, even though, as he acknowledged at trial, the STOUT had sufficient power to hold the tow still in the river so that the crew could have completed the tightening operation before he proceeded down the river. Instead, he decided that he should operate the STOUT at or below a slow bell (i.e., at a reduced engine power and thus at a reduced speed such that the vessel is travelling little faster, if any, than the river current) in order that the river could put less stress on the tow with its substandard rigging condition and spike barge. The captain would have preferred to have been able to push the tow at a higher speed down the river in this location — as he had done every other time he could recall — so that he could have more control over and maneuverability of both the tug and tow in avoiding the unwanted effects of drafts and currents in the high river. For the first three miles in the river, the tug and tow proceeded uneventfully; Captain Wolfe flanked the tow just outside the canal and then, proceeding at slow bell, passed beneath the Merchants Railroad Bridge (UMR Mile 183.2) and the McKinley Highway and Railroad Bridge (UMR Mile 182.5) without incident. Around UMR Mile 181.0, however, Captain Wolfe began to notice an unexpected right-hand draft (i.e., water pushing on his port side and toward the Missouri bank). In his many years in travelling through the St. Louis Harbor in high waters and otherwise, Captain Wolfe had never experienced or heard of any right-hand draft in this location of the river. According to both Captain Wolfe and plaintiffs’ navigation expert, Captain Poe, there is generally a left-hand draft in this portion of the river. To compensate for this right-hand draft, Captain Wolfe adjusted his direction and increased his speed in order that he could properly pass under the two approaching bridges, first the Veterans Memorial Highway Bridge (now also known as the Martin Luther King Jr. Highway Bridge) (UMR Mile 180.2) and then the Eads Highway and Railroad Bridge (UMR Mile 180.0). As the vessels “came ahead,” they were “out of shape” (i.e., were not facing the proper direction for passing beneath the two bridges). Thus, Captain Wolfe applied a starboard rudder. When it was turned about 10° to 15°, the tow suddenly broke apart just as the tow was passing beneath the Eads Bridge. The breakup occurred within a matter of seconds, which according to the vessel log was around 7:30 p.m. Captain Wolfe was unable to say exactly what portion of the tow broke first or exactly how many of the barges that broke away remained strung together. In total, however, eleven barges separated from the STOUT and freely drifted down the river. Captain Wolfe attributes the breakup to three factors: the loose rigging, the high river, and the right-hand draft. Upon the Court’s questioning, he acknowledged that he, like other riverboat captains, occasionally encounters unexpected river conditions, such as this apparent right-hand draft. Captain Wolfe does not believe he did anything wrong to cause the breakup. Plaintiffs’ navigation expert, Captain Poe, however, disagrees. He suggested that the Captain Wolfe was not experiencing a true right-hand draft, but instead was merely experiencing the normal current. As Captain Wolfe turned toward the Illinois riverbank in order to line his vessels up to pass beneath the two upcoming bridges, Captain Poe suggested, a greater portion of the port side of the STOUT and its tow was exposed to the current; in other words, just as Captain Wolfe had intentionally done when he flanked the tow just outside the canal, Captain Wolfe “created” the draft when he let his vessels become too out of line with the river current. Captain Poe appeared not to suggest that Captain Wolfe’s miscalculation in steering the STOUT was alone negligent; Captain Poe expressed the opinion, however, that Captain Wolfe did not act as a prudent mariner when he proceeded down the river with the knowledge that his tow was loose and without having attempted to stop the vessel earlier in order to completely tighten the rigging on the tow (which tightening Captain Poe estimated could have been completed within 25 to 40 minutes). Indeed, Captain Poe characterized Captain Wolfe’s overall conduct as “reckless,” or “a little worse than imprudent.” On cross-examination, Captain Poe gave a credible explanation of the “physical” cause of the breakup. On the one hand, when a pushtug increases its speed and turns its rudder at about the same time, stress is unevenly placed on its tow; for example, as a pushtug first turns aport, the rigging wires on the port side of the tow become more taut and those on the starboard side loosen. On the other hand, barges in a tow with loose rigging tend to shift relative positions much more than they do if the rigging is tight, and spike barges without wing wires tend to place greater stress on the rigging further back in the tow. Thus, as Captain Wolfe applied a starboard turn to the tow that had just been veering aport, there was a quick change in stress points along the rigging on the tow. At some point, the stress became too great for the loose rigging, and the barges broke loose. C. The aftermath After the breakup, Captain Wolfe attempted to round up what barges he could. He found one “laying crosswise off” the upriver most mooring structure at the ICG/Peabody facility and another further downriver inside the Pillsbury Sauget facility. Another boat “pulled [the barge] off” one of the cells at Sauget, and Captain Wolfe then retrieved this barge, which had become in danger of sinking. Captain Wolfe apparently did not notice any specific damage to either of these two structures, but he readily admits that his primary attention that night was to retrieving his barges and to the damage to those barges, and not to any damage to these or other fixed structures. Paul Roos, a pilot working in the St. Louis Harbor for Eagle Fleet that night, also witnessed the drifting barges. Around 7:45 p.m., he received a radio call from his dispatcher concerning a breakup in the river. At that time, he proceeded upriver to give what help he could. When he reached the Poplar Bridge (UMR Mile 179.2), which is just south of the ICG/Peabody facility, no barges had floated by, but he could see “a large group” of barges, more than nine, adrift just off the ICG/Peabody facility. He saw one block of these barges strike along the line of mooring cells at the facility; from what he saw, some of the barges in this block separated when the block struck the line of cells and others of these barges “hung up” for awhile before drifting off again. Meanwhile, Roos turned downriver in an effort to retrieve another block of these errant barges. Just below the McArthur Bridge (UMR Mile 179.0), which is immediately downriver of the Poplar Street Bridge, he engaged three of these barges (viz., the spike barge and the two barges abreast just aft of it), while at least another four drifted by. His crew discovered that the couplings were “not completely made” for these barges and thus attempted to tighten the couplings, but the spike barge separated from the other two barges before the crew was able to complete the tightening. Roos testified that during this time period in the St. Louis Harbor area, the only breakup of which he was aware was the breakup from the STOUT. According to joint trial stipulations, no other barge breakaway or marine casualty in the St. Louis Harbor area on October 28 or 29, 1986 was reported to or investigated by the Coast Guard; further, representatives of the only barge fleeting facilities and barge loading/unloading terminals in the area would state that no vessels or other marine equipment from their facilities and terminals were adrift or in the vicinity of plaintiffs’ two structures for the period at issue and that defendants’ barges were the only vessels adrift in the St. Louis Harbor and the only vessels in the vicinity of either the ICG/Peabody facility or the Pillsbury Sau-get facility for the period at issue. The day following the breakup, Vince O’Brien, who was then operations manager for Pillsbury’s three facilities in the St. Louis area, formally notified defendants by telex of the damage to the two facilities and made demand therein for all such damage. That morning, both plaintiffs and defendants sent out independent marine surveyors, Mason Eugene Thompson for plaintiffs and John Stickling for defendants, to inspect both the cell at the ICG/Peabody facility and the dolphin at the Sauget facility. Because of the fast current from the high water, no diver was sent out. Pillsbury scheduled a diver inspection for early December 1986, but it had to be rescheduled because the river was still too high for such work. Not until the end of December 1986, when the river had gone down, were the two surveyors able to conduct a more thorough survey with a diving crew. A week following the breakup, Orgulf s director of claims, Paul K. Dykes, completed and filed a Coast Guard Form No. CG-2692 concerning the breakup. In the report, he estimated the cost of damage from the breakup to facilities along the Illinois bank at $410,000; at his deposition, he testified that this figure included, among other amounts, an estimate for damages to the ICG/Peabody facility and the Pillsbury Sauget facility. Steve Sternau was Pillsbury’s superintendent of operations under O’Brien at both the ICG/Peabody and the Sauget facilities in October 1986. Because of the rising river conditions, Sternau had inspected, among other structures, both the cell at the ICG/Peabody facility and the dolphin at the Sauget facility during the daytime on October 28th; he had found both to be standing erect. Both facilities were only operating dayshifts during that general period and had been closed during the evening and night of October 28th and the early morning of October 29th. He discovered no other structure at either of these two facilities to have been damaged during this period and knows of no other time when either of these two structures sustained damage. No contradictory evidence on any of these points was offered. To the knowledge of plaintiffs’ witnesses, some of whom have worked around and see these two structures almost daily, neither structure has been used after the breakup, to tie off barges or for any other purpose. Sternau stated that prior to the December joint survey inspection neither structure was used because no one knew the full extent of damage and that after this inspection neither was used because Pillsbury, through the advice of its consultant marine surveyor and then its consultant civil engineer, did not believe either structure was structurally sound or safe in its damaged condition. According to O’Brien, he instructed that neither structure be used until it is repaired or replaced. The use of these two structures saves production time and the need to use outside tugs and thus saves money in the operations at these two facilities. The loss of these structures has taken away some of the flexibility and convenience in the operations at these two facilities and has made these operations more dependent on outside fleeting services, which cost additional money. Plaintiffs readily admit, however, that both facilities have continued to operate and that the loss of these two structures has not affected the number of barges that either facility can handle. Apparently, plaintiffs never insured either structure from loss or damage. D. Repair/replacement efforts After Thompson submitted his two survey reports concluding that neither structure should be used in its present state, Ralph B. Geest, Pillsbury’s regional superintendent under O’Brien for this area, interviewed three engineering firms in order to choose one for determining what further steps should be taken on the two structures. Geest chose the Campbell Design Group, which provided the lowest bid for the work (viz., $4000) and whose project manager, Richard D. Lodewyck, who is also plaintiffs’ civil and structural engineering expert, had previously helped install the present cell at the ICG/Peabody facility in 1980. Campbell Design inspected the two structures with survey crews in April 1987. It agreed that neither should be used in its present condition. Suggesting various potential options (discussed in greater detail in Parts 1(E) and 1(F) below), Campbell Design made an initial recommendation to Pillsbury as to each structure: in short, to replace the cell and to repair the dolphin. When Pillsbury received these recommendations, it reviewed them with Campbell Design and then had Campbell Design prepare a “bid package” for the two structures. Pillsbury provided the boilerplate portion of the bid package, while Campbell Design provided the bid specifications and reviewed the entire bid package. Campbell Design’s specifications contained modifications from those for the present cell (there were no changes for the dolphin), but the modifications were minor and contained no “significant cost-bearing changes.” Included in the bid package is article 5.2.1, an industry-standard provision in almost every private bidding package that “[t]he owner shall have the right to reject any and all Bids,” and article 5.3.1, another standard provision that “[i]t is the intent of the Owner to award the Contract to the lowest responsible Bidder.” According to Lodewyck’s uncontradicted testimony, article 5.2.1 does not affect bidding prices. On September 21, 1987, Campbell Design sent out the bid package to five regional contractors, some of whose work was primarily in marine construction and others of whose was not. Three submitted sealed bids by the submission date of October 7, 1987; a fourth responded that it had a backlog of other work; and the fifth did not respond. Pillsbury also contacted defendants in order to determine if they wanted to seek any other bids; defendants replied that they were satisfied with the group of contractors to whom Pillsbury had sent the bids. Upon reviewing the bids, Campbell Design, together with Geest, recommended that Pillsbury accept the lowest bids, all by Massman Construction Company of Kansas City, Missouri, whose work is about half marine-related and half non-marine-related. As is industry custom, Campbell Design then commenced preliminary discussions with Mass-man concerning the details of the work, it being Campbell Design and Massman’s understanding at that time that work would begin soon thereafter, to take about two to three months to complete, before the winter ice or spring flood concerns. Defendants’ engineering expert, Paul H. Weis, admitted on cross-examination that Pillsbury followed the generally accepted procedure for obtaining proper prices for such construction work. Pillsbury has not yet accepted Mass-man’s bids. According to O’Brien, whose duties included the budgets for these two facilities, it has been a matter of simple economics: he has not had the money in his budget to pay for the replacement costs and has been awaiting funds from defendants in connection with the instant litigation. In July 1988, Lodewyck spoke with Massman again to determine if their bids were still open; Massman replied that it was still willing to do the work for the same price. According to both Geest and O’Brien, both structures were and are an integral part of the business at these two facilities. According to O’Brien, it had been Pillsbury’s full intent, up to the sale with ConA-gra, to restore and reuse the two structures upon termination of this litigation and has been ConAgra’s intent, after the sale, to have Pillsbury restore the structures upon termination of this litigation and thereafter for ConAgra to begin using the two structures. E. The cell at ICG/Peabody The cell is a large cylindrical structure that stands in the river current off the shore at the ICG/Peabody facility. The outside is composed of continuous interlocking steel sheet pilings that extend into the mudline; the inside contains granular fill for stability and strength; the top is covered with a reinforced concrete cap and is crowned by a navigation light. The cell is about 195 feet upstream from the next cell at the facility. The cell’s purpose is to tie off extra barges waiting to enter the facility and, in the winter, also to act as an ice shearer for the facility. The cell is not permanently attached to any other structure. The record does not reveal whether the Corps of Engineers ever issued a permit for the cell. Lodewyck testified that the cell “clearly” had an expected useful life of 40 years and that his conclusion is corroborated by evidence that other cells at the facility are around 35 years old and still in fine working order. Weis testified that this 40-year figure was “possible” where the cell is protected and that the greater its use, the smaller its expected useful life; nonetheless, he offered no estimate of his own at trial. Like virtually all other assets at the ICG/Peabody facility, the cell has been and is owned by ICG and Burlington Northern. Under the lease agreement for the facility, including the cell: Pillsbury agrees to maintain the Leased Property in good and operable condition, reasonable wear and tear excepted, and will repair, maintain and renew all facilities to a condition existing on the commencement of the agreement [November 1, 1983] at its own expense when in [ICG and Burlington Northern’s judgment such action is required to keep same in good order, condition and repair for purposes intended of this Agreement. Pursuant to this provision, ICG has made demand on Pillsbury to restore the cell to its former condition. The present cell was installed in 1980, in which year a previous cell in the same location had been struck by a barge. The earlier cell was 16 feet in diameter; the present cell is 17x/2 feet in diameter and surrounds the remnants of the earlier cell. According to Lodewyck, four constraints limited the design of the present cell: (1) it was not economically feasible to remove all debris from the earlier cell below the mud-line; (2) the next-smaller size than the original 16-foot cell was structurally inadequate for operating with the barges typically used at this facility; (3) it was not advisable to place a new cell further instream or outstream than the original cell because of unwanted effects of the river current; and (4) it was not practical to place a new cell further upstream or downstream because the earlier cell was already in the optimal location for the operational function for which it was being used (in other words, the distance between cells was already fixed for all practical purposes by the standard 195-foot barges predominantly used in this location). Both Sternau and Thompson inspected the cell from the riverbank on the morning of October 29, 1986. The ten-foot section of the cell exposed above the waterline was leaning downstream about two feet, and a power pole and line had been knocked down. At the December inspection, the cell was leaning to the same extent. The lower water revealed that the sheet pilings of the cell had been separated in several locations and that there was a deep indentation in the cell the perfect size of a barge head. Stickling testified that on two occasions near the beginning of this year, he saw barges moored outside the cell. Once was from a downtown St. Louis office building across the river; the second time was two to three weeks later from a car on a nearby highway. He admitted that on neither occasion could he see whether any barge was attached to the cell, but added that there are no other structures to which a barge could have been attached. Weis similarly testified that he had seen two barges “against” the cell this past March but did not know whose barges these were. Campbell Design proposed five options for the cell; (1) to leave the cell as is, (2) to replace the cell, (3) to remove but not to replace the cell, (4) to repair the cell, or (5) not to remove the cell but to install a new cell nearby. Campbell Design recommended the second option (viz., to cut off the existing cell at or just below the mud-line and to replace it with a new cell at the same location) as the most economic way to have a structure returned to Pillsbury’s previous use. Campbell Design estimated this second option to cost about $180,000. For much the same reasons that the original cell was replaced with a slightly larger cell, Campbell Design recommended that the proposed new cell be 20 feet in diameter, which is the next-larger size than a 17%-foot cell. Despite its slightly larger size, however, a 20-foot cell would not increase the work capacity at the facility. No evidence was presented whether a 20-foot cell generally has an expected useful life the same as or different from a 17V2-foot cell. Another of the cells at the facility had been repaired with the addition of a “half-cell.” This option, Lodewyck explained, however, was not available for the present cell because, unlike the other cell, which merely had a hole in it, the present cell was leaning too far for a half-cell repair to be effective. Massman submitted the low bid of $176,-500 to remove the present cell and replace it with another cell at the same location. Lodewyck testified that, based on his experience in preparing and evaluating costs— including marine construction costs — as part of his work, this bid was reasonable for two principal reasons. First, it was consistent with the previous history of costs; according to him, Massman’s bid to replace the cell was “only slightly over” the cost in 1980 to replace the earlier cell with the present cell. Second, by having qualified contractors respond to a detailed bid package, Pillsbury and Campbell Design followed the industry standard for best determining market costs on such items. Defendants’ engineering expert, Paul Weis, did not contest the conclusion of both Lodewyck and Thompson that the present cell is now structurally inadequate for its full intended purpose. In this regard, Weis testified that it would be speculation whether the cell could support more than one barge at this time. Weis disagreed, however, on the reasonableness of Massman’s figure to implement Campbell Design’s recommendation as well as on the reasonableness of Campbell Design’s recommendation. First, he believed that the cell could be replaced in the same location for $146,000 using land-based construction equipment alone. Second, he believed that it would cost $121,000 to leave the existing cell in place and to install a new cell just south of it, thereby providing extra protection to the new cell and thus actually improving the facility. On cross-examination, Weis admitted that he had never seen a cell installed with land-based equipment and that he had received no commitment from any contractor to do the work for the prices he gave. Plaintiffs’ expert, Rick Lodewyck, criticized Weis’ opinion in several respects. First, Lodewyck believed the use of land-based equipment to be too risky. Land-based equipment could only be considered at times when the river was extremely low such as during last summer’s draught, when Weis did his inspection; however, there are uncertainties and dangers, of which prudent contractors are fully aware, that the river might rise suddenly and significantly while work is in progress. Second, Lodewyck believed that use of land-based equipment would require a sufficiently large-sized crane and the construction of a large crane pad of approximately 100 cubic yards of dirt, which would also require a permit from and testing by the Corps of Engineers. On cross-examination, he admitted that the use of timber mats might be possible in lieu of an entire pad. He nonetheless stressed that a large crane with a boom of at least 60 feet would still be required, for even a smaller crane would be unable to stand right next to a low waterline inasmuch as the riverbank is relatively steep and sandy for cranes. In Lodewyck’s opinion, Weis underestimated these costs. Third, Lodewyck believed that Weis’ estimate for demolition of the present cell (viz., $5000) was unreasonably low. The actual demolition cost in 1980 for the earlier cell was $30,000, and such costs in the St. Louis area have, Lodewyck testified, generally risen about 4-5% annually; Massman’s present estimate is $36,000, and the other two contractors submitted bids at $61,000 and $68,000. He similarly testified that it is unlikely that the cell could physically be removed at or below the mudline without the use of divers or any marine equipment. Weis responded that a viable alternative would be to cut off the present cell well above the mudline and simply to encircle a new cell around the old one. Fourth, Lodewyck testified that if land-based equipment were used, a contractor would still have to use pontoons or other marine equipment to hold the large steel template necessary for guiding the placement of any new cell. This cost as well Weis omits. Finally, Lodewyck noted that Pillsbury’s bid package contained no restrictions against the use of land-based equipment. On cross-examination, he stated that a project manager from Massman had advised him that no prudent contractor would work from shore. In Lodewyck’s opinion, the cheapest amount for which a contractor using land-based equipment could replace the cell is about $195,000. This conclusion, he added, corroborates his belief that no contractor would choose to replace the cell using land-based equipment. F. The dolphin at Sauget The dolphin is a structure consisting of three steel pipes driven into the river bottom in the shape of a triangle. Each pipe is 30 inches in diameter, is filled with sand, and is connected to the other two pipes by horizontal and diagonal steel bracings at three levels. Photographs show a navigation light extending above one of the pipes. The dolphin’s principal purpose is to hold captive a 195-foot maintenance crane barge, which (when not used elsewhere for intermittent repair work) is used at this position to assist in holding cargo barges waiting to be unloaded at the adjacent unloading dock/work barge. Like the cell, the dolphin is occasionally also used to tie off barges, is completely surrounded by water, and is not permanently attached to any other structure. Similarly, the record does not reveal whether the Corps of Engineers ever issued a permit for the dolphin. The experts disagree on the expected useful life of the dolphin. Lodewyck estimated it to be 40 years, while Weis estimated it to be 20 years. Lodewyck admitted that his estimate for the dolphin was “more of a judgment call” than was his estimate for the cell, but added that he knew of no reason why the dolphin should last- shorter than a cell, provided that the welds on the dolphin were properly inspected and maintained over time. His estimate takes into account variables such as location, service, exposure, and environment, but not any variable for likelihood of accidents; the estimate also relies on industry data concerning dolphins’ corrosive and fatigue properties, especially at welding points. Weis did not explain the basis of his figure or suggest any error in the basis of Lodewyck’s figure. According to Superintendent Sternau, Massman Construction Company built the present dolphin in 1984 or 1985 for Pillsbury, who paid for the construction. According to Surveyor Stickling, an earlier dolphin in the same location had been both struck by a barge and replaced in 1984; according to Lodewyck, however, that was a dolphin in a different location. The lease for this facility provides that “Pillsbury shall own any and all improvements of any nature installed by it ... and (i) may remove same at any time ... or (ii) may abandon any and all such improvements.” Vince O’Brien testified that Pillsbury had installed all the dolphins as improvements to the facility. On the October 29th joint inspection from the riverbank, both Thompson and Stick-ling observed the dolphin leaning downstream with bracing that was distorted, buckled, and/or broken. According to Thompson, the exposed 20-25 feet of the dolphin above the waterline was leaning downstream about 2-3 feet. Based on his observation of the acute leaning and disfigured bracing, Thompson was of the initial opinion that the dolphin had to be replaced. At the December joint inspection, the dolphin was also leaning to the same extent. Thompson found, however, that the bracing was damaged to a greater extent than he had originally suspected. Stickling did not contradict, or even comment on, this testimony. At present, according to uncontradicted testimony, it is impossible to use the dolphin for its intended purpose. First, the damage has deprived the dolphin of its structural integrity. Second, because the dolphin is leaning too far downstream, a standard 195-foot barge can no longer fit between the dolphin and its adjacent cell. Campbell Design proposed two options for the dolphin; (1) to remove and replace it in whole, or (2) to attempt to straighten it. Campbell Design estimated the first option to cost about $105,000 and the second about $45,000. Campbell Design initially recommended the second option notwithstanding a slight diminution in structural strength under this option. Massman submitted the low bid of $119,800 to replace it, the low bid of $90,500 to repair it, and the low bid of $136,800 to attempt to repair it but to replace it if necessary. Partially because extensive repairs to a dolphin had not been attempted before, none of the contractors, including Mass-man, would guarantee that any repairs would be successful. Upon receiving these bids and noting that it had underestimated the costs to repair the dolphin, and especially in light of the contractors’ reluctance to guarantee and thus their skepticism in any repair work, Campbell Design changed its recommendation for the dolphin. Because of the risks and uncertainty in attempting to repair the dolphin, Campbell Design thought it more prudent to spend the relatively little extra money for replacing the dolphin. Concurring in this cost/risk analysis, O’Brien accepted this recommendation on behalf of Pillsbury. For the same reasons that he found Massman’s bid to replace the cell reasonable, Lodewyck testified that Massman’s bid to replace the dolphin was reasonable as well. Weis concurred that replacement of the dolphin was necessary and that $119,800 was a reasonable estimate for replacing the dolphin. Unlike his recommendation for the cell, Weis made no mention of placing a new dolphin adjacent to the present one. There is absolutely no evidence that the dolphin has been used for any purpose subsequent to the breakup. According to Geest, no temporary repairs were ever made to the dolphin because such would not have made the dolphin structurally safe to use. G. Incidental expenses At Geest’s recommendation and approval, Pillsbury has spent the following amounts in connection with the damage to these two structures. It paid $567 to Cairo Marine Service, Inc. for the two surveys by Thompson. It paid $516 to Able Marine Divers for its diving services performed in connection with the December joint survey for both structures. It paid $661.25 to American Commercial Marine Service Company for a boat charge when Campbell Design surveyed the cell in April 1987. It paid $143.75 to Louisiana Dock Company for a boat charge in an early December survey of the cell (this survey was aborted because the water level was still too high). These four amounts were paid and necessary to help ascertain the extent of damage in order to determine whether repairs and/or replacement was necessary. Pillsbury paid $4000 to Campbell Design Group for its initial services in submitting recommendations for both structures. For the remaining services to date, Pillsbury has paid $12,870 (65% of $19,800) to Campbell Design. According to both Geest of Pillsbury and Lodewyck of Campbell Design, Pillsbury is already contractually obligated to pay Campbell Design another $6930 (35% of $19,800) for Campbell Design’s inspecting and supervising the installation work when the two structures are actually replaced. II. A. Jurisdiction and venue Because plaintiffs’ complaint states a colorable claim for relief within the Court’s admiralty and maritime jurisdiction and the meaning of F.R.Civ.P. 9(h), the Court has federal subject matter jurisdiction pursuant to 28 U.S.C. § 1333(1). Because the Court has personal jurisdiction over Midland and Orgulf inasmuch as each does business in this district, venue is proper in this district. In two documents in the record, defense counsel (mistakenly?) purported to make an appearance on behalf of the STOUT; counsel did not, however, expressly state, “on oath or solemn affirmation” or otherwise, “that he [was] duly authorized to make” any claim of ownership. Especially because plaintiffs do not still assert that an in rem judgment should be entered against the STOUT, the Court holds that these two references are insufficient to constitute a waiver of the general requirement that a vessel be arrested before a court may assert in rem jurisdiction over it. Because the STOUT has not been seized in this action and neither a notice of claimant for the STOUT nor a letter of undertaking has been filed, the Court lacks in rem jurisdiction over the STOUT. Thus, the Court dismisses without prejudice plaintiffs’ claims against the STOUT. B. Standing At the opening of the trial, defendants moved to dismiss the entire action under F.R.Civ.P. 17 for lack of standing on grounds that with the sale to ConAgra, Pillsbury no longer holds any interest in any of the structures and under F.R.Civ.P. 19 for failure to join indispensable parties on grounds that the owners of the structures are not plaintiffs in this action. The Court rejected this tendentious argument and now adds four remarks. First, any distinction between the interests of Pillsbury and ConAgra is immaterial, for both are now plaintiffs before the Court. In response to defendants’ motion, which defendants did not bring until the morning of trial, plaintiffs' counsel (while maintaining that, with the ratification agreement, joinder of ConAgra was unnecessary) proposed a simple solution to defendants’ argument that ConAgra was an indispensable party: join ConAgra as a party as well. Obtaining authority from Con-Agra for him to represent it as well, plaintiffs’ counsel then moved to join ConAgra. Because this solution would moot this portion of defendants’ objection, did not require the admission of any further evidence, did not prejudice defendants in any way, was brought within “a reasonable time ... after objection,” and generally “eliminate[d] any fear that the judgment debtor may be forced to pay the judgment more than once,” the Court granted the motion. Second, the sole evidence before the Court establishes that the owners of the cell are and have been ICG and Burlington Northern, both of whom are already plaintiffs before the Court and have otherwise agreed to be bound by Pillsbury’s prosecution of the claim for the cell. As between plaintiffs and defendants, it is immaterial that these two owners may have contractual rights of repair against Pillsbury and/or ConAgra under the lease, where as here these two are not seeking any damages additional to what they could have recovered had there been no lessees. Third, all past and present owners of the dolphin (viz., Pillsbury and ConAgra) are similarly plaintiffs before the Court. Citing four Illinois state cases, defendants argue that under Illinois law, any structure affixed to land automatically becomes the property of the land owner. Defendants misconstrue the law; the general rule enunciated in those cases — “where a stranger enters upon the land of another without consent of the owner and makes an improvement of a permanent character ..., the improvement becomes the property of the owner of the land” — does not, by its own parameters, apply where the improvement is made with the consent of the owner or by persons who are not strangers. To determine under Illinois law whether a structure installed by someone other than the land owner has become a part of the real estate upon which it stands (and thus is owned by the land owner) or instead has remained personal property (and thus is still owned by the person who installed it), courts are directed to look to the intent between the land owner and the person installing the structure. The sole evidence in the record of such intent is the language in the lease for the Pillsbury Sau-get facility that any improvements shall be owned by the tenant (formerly Pillsbury and now ConAgra); this language evinces the express intent of the land owner and tenant/improvement maker that any improvements remain personal property of the tenant and not become fixtures to be owned by the land owner. Because the evidence was uncontradicted that Pillsbury installed the dolphin as an improvement to the facility, the Court finds that the owner of the Pillsbury Sauget facility does not own the dolphin and thus is not an indispensable party. Finally, because the four plaintiffs assert their claims jointly and because the Court’s award does not depend on any distinction among any of the four, the Court need not decide the rights of these four among themselves, but need only decide their joint rights as against the defendants. C. Allision It is more likely than not that one or more of the barges from the STOUT’s tow struck and damaged plaintiffs’ two structures. First, both structures were standing erect and undamaged just hours before the breakup and were found to be leaning and damaged just hours after the breakup. Second, there is no evidence that any other barges or vessels, whether or not large enough to cause the damage discovered, were loose during that time period; indeed, Captain Wolfe and Pilot Roos testified that the barges from the STOUT were the only loose or runaway vessels in the area at that time. This circumstantial evidence alone is sufficient to support the finding that it was defendants’ barges that caused the damage to plaintiffs’ two structures. Yet further evidence exists as to each structure. Photographs taken by defendants’ surveyor show the cell’s large indentation that plaintiffs’ surveyor described as being the perfect shape of a barge head. Captain Wolfe found one of the errant barges, which had been drifting down the fast running current and themselves at a noticeable speed, to be laying against the cell at issue. Pilot Roos saw a group of barges strike one of the cells, and evidence showed that the upriver-most cell (i.e., the cell at issue) was the only cell damaged. The slight variance between the two’s testimony — unlike Wolfe, Roos did not recall any barges remaining against the cell — the Court finds to be but the innocent differences often found in common experience when two persons recollect the same event. While no eyewitness saw a barge strike or touching the dolphin, one of defendants’ barges, all of which appear to have been undamaged prior to the breakup, was found inside the Pillsbury Sauget facility and severely damaged in danger of sinking. In their proper state, the cell and dolphin are each sturdy, rigid-standing, permanently-affixed, several-ton structures. They are not structures that suddenly and mysteriously break apart or fall down. The only rational explanation from the evidence presented to the Court is that one or more of defendants’ meandering and similarly-several-ton barges floated down the river and crashed into these two structures. In sum, the Court finds that one or more of the barges from the STOUT caused the damage to the cell and the dolphin at issue. D. Negligence and Causation 1. When an unmanned barge strikes a stationary object such as a dolphin or cell, the custodian of the barge has the burden to prove that his negligence was not a proximate cause of the allision. Where the barge is in the custody of a towboat, the barge’s custodian is held to include both the operator (including the towboat captain’s employer) and the owner of the towboat; in other words, this rule “operates against all parties who participated in the management of” the towboat. This burden-shifting, which is more than simply a rebuttable presumption governed by F.R.Ev. 301, applies whether or not the barge breaks loose from its custodian, and whether or not the barge was owned by its custodian. A person may meet this heavy burden by proving by a preponderance of the evidence that the allision was an “unavoidable,” or “inevitable,” accident such as a vis major (greater force, or Act of God); to establish this defense, the person against whom the burden-shifting is applied “ ‘must exhaust every reasonable possibility which the circumstances admit and show that in each [he] did all that reasonable care required.’ ” In this case, the Court finds not only that defendants have not established any inevitable-accident or other defense to meet this burden-shifting rule, but also that plaintiffs have overwhelmingly established by affirmative evidence that the negligence of both Captain Wolfe and defendants’ management was a proximate cause of the breakup. Both Captain Wolfe and Captain Poe believe, based on their experience as river captains, that the breakup was caused in part by loose rigging on the tow, including a lack of wing wires for the spike barge. The evidence was uncontradicted on this point. First, when the tow first entered the river, Captain Wolfe saw the spike barge “wiggle”; as Captain Wolfe implied, such an observation is a strong indication of insecure rigging and illustrates the merit in his dislike of spike barges in general and in spike barges without wing wires in particular. Second, Captain Wolfe candidly “doubted” that his crew could have tightened all the rigging within the time he gave it. Third, the experience of Pilot Roos' crew in attempting to rescue the spike barge corroborates Captain Wolfe’s conclusions. Fourth, the Court accepts Captain Poe’s explanation of how the barges physically broke apart and why it is likely that a properly rigged tow would not have broken apart under the same conditions. In sum, the Court finds that loose rigging was a proximate cause of the breakup. For two general reasons, the Court finds that Captain Wolfe was negligent in permitting the STOUT to proceed into the high river with this loose rigging. As his limited precautionary (but ultimately ineffective) measures demonstrated, Captain Wolfe was aware (even before he left the canal) of the high, fast river conditions and of the care demanded for those conditions. He should not have proceeded as he did. But he did. First, Captain Wolfe was negligent in waiting as long as he did to have the rigging tightened. Sometime before 5:00 p.m., Captain Wolfe learned of the loose rigging, yet he did not take the initiative to direct anyone to tighten the tow until after his mate approached him sometime after 6:00 p.m. about the loose rigging. Had he directed his crew to begin tightening the rigging, at the latest, as soon as the barge-swapping with the OMEGA was completed, then it is likely that his crew could have tightened the entire rigging on the new tow without his ever having to consider stopping in the canal before proceeding into the river. Second, Captain Wolfe was negligent in not stopping his vessel in the canal in order to let his crew complete its tightening operation. To the extent that the loekmaster required prior permission, he should have sought such by explaining his hazard. Finding that the tow was not properly tightened by the time the tug and tow reached the river, the Court thus finds that Captain Wolfe was negligent in proceeding into the river as he did. Stated another way, the Court is unable to find “that the tug master evaluated his options critically and made a conscious decision that it would be safer” to proceed with the loose tow than to delay his trip slightly in order to ensure no barge was loose. Similarly, defendants’ management itself was negligent in providing Captain Wolfe with a spike barge, at least one without wing wires or other adequate lateral support, for his trip into the high river waters. On the one hand, as Captain Wolfe’s observation of “wiggling” and Pilot Roos' description of his brief encounter with the spike barge suggest, the spike barge proved particularly unstable. On the other hand, as the Court infers from Captain Wolfe’s dislike of spike barges and from Captain Poe’s explanation about the need for secure rigging, the risks and dangers of spike barges, and of travelling on a large river at or near its flood stage, are matters that should be generally known by any competent riverboat company. The Court does not suggest that any company that permits its captains or its boats to push spike barges is negligent per se in all circumstances; however, a company should provide captains with standards for how to exercise their discretion in requiring rerig-ging and with means to exercise such discretion where warranted. Here, no evidence was presented that defendants’ management advised Captain Wolfe about taking any special measures in light of the Mississippi’s high river condition or that it provided him with any means to install wing wires for the spike barge or to guard otherwise against any instability of the spike barge. Had defendants instituted even the most rudimentary rigging standards for their captains to follow or given Captain Wolfe the briefest of reminders about not proceeding on the Mississippi without first ensuring that all tow rigging was secure, then a breakup might well have not occurred. Adopting Captain Wolfe’s opinion that he did nothing wrong, defendants assert that the sole proximate cause of the breakup was the unexpected right-hand draft near the Eads Bridge and that Captain Wolfe’s conduct after he encountered this draft was not unreasonable in light of the in extremis situation at hand. The Court finds that, as Captain Poe indirectly admitted on cross-examination, Captain Wolfe’s conduct after he encountered this draft was reasonable. In this regard, the Court rejects — as being insufficiently established by a preponderance of the evidence, especially in light of this admission by Captain Poe himself — Captain Poe’s suggestion that the right-hand draft was wholly a matter of Captain Wolfe’s making; as Captain Wolfe agreed, experienced riverboat captains all occasionally encounter unexpected river conditions in areas they have trav-elled many a time. Were the Court’s inquiry limited to this short time and distance before the breakup, the Court might well agree with defendants and hold that they had met their heavy burden; like Captain Wolfe’s opinion, however, defendants’ argument is too myopic, for it ignores the events in the canal, specifically, the events concerning the loose rigging. The Court is unable to find that the right-hand draft was of such a nature that the breakup would have occurred whether or not the STOUT’s barges were improperly rigged. As the lack of evidence of any other incidents on the river at that time confirms, this case does not present one of the rare circumstances where the inevitable-accident defense should be upheld. In sum, the Court finds that defendants have not established that