(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4704
Summary Calendar
Gulf States Utilities Co., Plaintiff-Appellee,
versus
M/V Chilbar, et al., Defendants,
Chilbar Shipping Co., and Keystone Shipping,
Defendants-Appellants.
Appeal from the United States District Court
for the Eastern District of Texas
(CA1:91-711)
February 10, 1993
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
The issue in this case is whether the damages awarded to
plaintiff should be reduced to avoid a windfall. Defendants
admitted liability for damage caused when M/V Chilbar allided with
a flume wall in the Neches River at plaintiff's power plant. After
a bench trial on damages, the district court refused to reduce

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plaintiff's recovery due to depreciation of the flume wall. We
affirm.
Plaintiff Gulf States Utilities owns the Neches Power Station,
located on the west bank of the Neches River below Beaumont. This
power plant was originally built in the 1920's and enlarged in the
1950's. When generating electricity, the plant discharges warm
water into the river. To facilitate the integration of effluent
with the cooler river water, GSU was required to build a flume
wall.
Pursuant to Army Corps of Engineers permits, GSU built and
extended the flume wall in 1954 and 1956. The flume wall extends
from the shore and then runs roughly parallel to the shoreline in
the navigable waters of the Neches River. The wooden, steel, and
concrete structure is approximately 770 feet long. Its sole
purpose is to allow warm effluent to cool before entering the main
river channel.
On February 15, 1990, M/V Chilbar negligently allided with the
flume wall, running through and over the wall and crashing into the
river bank. About 84 feet of the flume wall was destroyed, with
damage to five pile clusters and their attachments. The Chilbar
also destroyed a thermocouple located on the end of the flume wall.
Neches Power Station has not been used to generate electricity
since 1984. Nonetheless, the plant has been kept in working order
and a crew maintains the facility. At trial marine surveyor Robert
Hanson testified, and the district court found as fact, that the
flume wall's useful life would be indefinite.

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Appellants' claims all resolve around the district court's
refusal to reduce the compensatory damages awarded because of
depreciation of the flume wall. They point to the testimony of
marine surveyor Steve Hale, who stated that the flume wall had only
six to seven years of useful life remaining. Appellants emphasize
that GSU spent $40,000 annually before 1984 maintaining the flume
wall, and claim that it had deteriorated before the allision.
In maritime cases, the plaintiff is generally entitled to
costs of repairs needed to restore damaged property to its
condition before the collision. Tug June S v. Bordagain Shipping
Co., 418 F.2d 306, 307 (5th Cir. 1969). The fact that repairs may
utilize new materials does not affect the general rule in maritime
cases. This well-settled principle was recognized in The
Baltimore, 75 U.S. (8 Wall.) 377 (1869), which stated:
[W]here repairs are practicable the general rule followed
by the admiralty courts in such cases is that the damages
assessed against the respondent shall be sufficient to
restore the injured vessel to the condition in which she
was at the time the collision occurred; and in respect to
the materials for the repairs the rule is that there
shall not, as in insurance cases, be any deduction for
the new materials furnished in the place of the old,
because the claim of the injured party arises by reason
of the wrongful act of the party by whom the damage was
occasioned . . . .
Id. at 385.
This principle, that plaintiff's recovery need not be reduced
on account of new materials used for repair, has continued into
this century. See e.g. Phillips Petroleum Co. v. Stokes Oil Co.,
863 F.2d 1250 (6th Cir. 1988). In Stokes, the crew of a vessel
contributed to a fire that damaged a terminal facility. The court

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assessed damages based on the cost of restoring the damaged
terminal to its condition before the fire. The court rejected an
argument to reduce the damages on a "new for old" theory, noting
that "usually repairs are made with new materials." Id. at 1257.
While the substitution of new materials for old does not
equate with an unjust windfall, appellants note that courts will
reduce plaintiff's recovery when repairs constitute a betterment to
a structure and enhance its useful life. See e.g. Pizani v. M/V
Cotton Blossom, 669 F.2d 1084, 1088 (5th Cir. 1982); Freeport
Sulphur Co. v. S/S Hermosa, 526 F.2d 300, 304 (5th Cir. 1976).
Where repair costs form the basis of the damage award, the court
must determine whether the repair adds new value to or extends the
useful life of the property. Pillsbury Co. v. Midland Enterprises,
Inc., 715 F. Supp. 738, 764 (E.D. La. 1989), aff'd, 904 F.2d 317
(5th Cir.), cert. denied, 111 S. Ct. 515 (1990).
In this case, the findings show that repair will not add value
to or extend the life of the flume wall. The trial judge found
that before the allision the flume wall "was still in sound
condition" and that its useful life was "indefinite." The factual
findings of the district court are presumed correct and should not
be set aside unless they are clearly erroneous. Mills v. Damson
Oil Corp., 931 F.2d 346, 351 (5th Cir. 1991). This standard of
review applies to the trial judge's findings on the question of
damages. Hernandez v. M/V Rajaan, 841 F.2d 582, 587 (5th Cir.),
cert. denied, 488 U.S. 981 (1988). Moreover, the trial judge's
decisions regarding the credibility and weight to be given evidence

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are "integral parts of [the] findings of facts" to which we will
give great weight. Tri-State Petroleum Corp. v. Saber Energy,
Inc., 845 F.2d 575, 579 (5th Cir. 1988).
The district court heard appellants' evidence suggesting
deterioration of the flume wall, and appellee's evidence to the
contrary. The findings demonstrate that the trial judge gave
greater weight and credibility to the latter. The court chose to
give less weight to the appellants' expert because his testimony
was found to be speculative and not credible. There was no
evidence showing that the flume wall had deteriorated prior to the
allision. On the other hand, the trial judge's finding was
supported by evidence that the flume wall was in sound condition
before the allision, and testimony that it would serve its purpose
indefinitely. We note that much of the damaged portion of the
flume wall was constructed of steel sheeting. Reviewing the whole
record, we are not left with a definite and firm conviction that a
mistake has been committed. See Lewis v. Timco, Inc., 736 F.2d
163, 166 n.2 (5th Cir. 1984)(citing Pullman v. Swint, 456 U.S. 273
(1982)).
This case most resembles Petition of M/V Elaine Jones (Canal
Barge Co. v. Griffith), 480 F.2d 11 (5th Cir. 1973), modified, 513
F.2d 911 (5th Cir.), cert. denied, 423 U.S. 840 (1975). In that
case, an alliding vessel damaged a bridge. The trial court found
that before the allision the bridge was in sound condition and that
it had a remaining useful life of an indefinite number of years.
Id. at 27. We held that under these circumstances, the bridge

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owner was entitled to restoration costs without reduction for
depreciation. No recovery less than full repair costs would have
replaced the bridge's value commensurate with its pre-allision
worth. Id. "[W]here the repairs do not extend the useful life of
the property as it existed just before the collision, there should
be no deduction for depreciation." Freeport Sulphur Co. v. S/S
Hermosa, 526 F.2d 300, 305-06 (5th Cir. 1976); see also City of New
Orleans v. American Commercial Lines, Inc., 662 F.2d 1121, 1124
(5th Cir. 1981)(holding depreciation inappropriate when structure
not deteriorated).
On these findings, the same result will follow. Since repairs
will not enhance the value of the flume, allowing GSU to recover
the entire amount of its repair costs will not constitute a
windfall. We need not address whether or not the flume is an
integral part of the Neches Power Station.
AFFIRMED.

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