In Re: Luhr Bros Inc

Revised October 19, 1998
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 97-40841
___________________________
IN THE MATTER OF THE COMPLAINT OF LUHR BROS. INCORPORATED, as
Owner, Owner Pro Hac Vice, Operator and/or charterer of the M/V
The Admiral, in the Cause of Exoneration from and/or Limitation
of Liability, Civil and Maritime,
Plaintiff,
LUHR BROS. INCORPORATED,
Petitioner-Appellant,
VERSUS
BARRE SHEPP; WILLIAM COON; MATTHEW M. SHEPP, Estate of; AUDREY
JEROME; ALLEN JEROME, Estate of; CONNIE SUE VALVERDE,
Individually and as representative of the estate of Matthew
Marvin Shepp, deceased,
Claimants-Appellees.
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THE ESTATE OF ALLEN L. JEROME, OWNER OF THE F/V AUDREY, Praying
for Exoneration from or Limitation of Liability,
Plaintiff,
LUHR BROS. INCORPORATED,
Claimant-Appellant,
VERSUS
BARRE SHEPP; WILLIAM COON; CONNIE SUE VALVERDE, Individually and
as representative of the estate of Matthew Marvin Shepp,
deceased; MATTHEW M. SHEPP, Estate of,
Claimants-Appellees.
___________________________________________________
Appeal from the United States District Court
For the Eastern District of Texas
___________________________________________________
September 30, 1998
Before WISDOM, KING, and DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Following a bench trial in this maritime collision case, the
district court denied Luhr Bros. Incorporated’s Petition for
Limitation of Liability and awarded the Claimants damages totaling
$4,397,308.37. For the reasons that follow, we reverse and render.
I.
A.
This case arises out of a collision between the M/V THE
ADMIRAL, a tugboat pushing a flotilla of six barges loaded with
crushed rocks, and the F/V AUDREY, a shrimp boat carrying four
people. Two passengers aboard the AUDREY, Allen L. Jerome and
Matthew M. Shepp, died as a result of the collision. The parties
present contrasting accounts as to how the collision occurred and
who is responsible.
The following facts are not in dispute. THE ADMIRAL is a 2400
horsepower, twin screw, inland river tugboat owned and operated by
Luhr Bros., Incorporated (“Luhr” or “Luhr Bros.”). It is
approximately 120 feet long and 35 feet wide. On the morning of
April 20th, 1996, THE ADMIRAL received instructions to relieve the
M/V THE ROBERT T., another tugboat operated by Luhr Bros. At the
time, THE ROBERT T. was pushing six barges loaded with crushed
2
rock, made up two abreast and three long, through the Intracoastal
Waterway. Each barge was 195 feet long and 35 feet wide. THE
ADMIRAL relieved THE ROBERT T. and continued pushing the barges
westbound along the Intracoastal Waterway, headed for Sergeant
Beach, Texas, where the crushed rock was to be used in a coastal
stabilization project. THE ADMIRAL proceeded to the intersection
of the Neches River and the Sabine-Neches Canal, part of the
Intracoastal Waterway.
The AUDREY, a shrimp boat owned by Allen L. Jerome, left the
dock at the Rainbow Bridge near Orange, Texas at approximately 6:30
that morning. William Coon piloted the boat, with Connie Valverde,
née Jones (“Connie Jones”), Matthew Shepp, Connie Jones’s seven-
year-old son, and Mr. Jerome as passengers. The group was taking a
pleasure cruise and was planning to go fishing. The AUDREY left
the dock and proceeded south down the Neches River towards the
Intracoastal Waterway and Sabine Lake, their intended destination.
THE ADMIRAL and the AUDREY met at the intersection of the
Intracoastal Waterway and the Neches River. Captain Michael Coyle,
at the helm of THE ADMIRAL, observed the AUDREY on his starboard,
or right, side as he crossed through the intersection. The AUDREY
entered the intersection and crossed behind the stern of THE
ADMIRAL and its flotilla, which measured approximately 700 feet in
total length. Both vessels then continued westbound down the
Sabine-Neches Canal.
The AUDREY circled around and again passed under the stern of
THE ADMIRAL, returning to the starboard side of THE ADMIRAL and her
3
tow.1 It is undisputed that the AUDREY eventually passed THE
ADMIRAL on her starboard side, at least fifty to sixty feet from
the tow.2 Both parties further agree that the AUDREY got as far as
the stern of THE ADMIRAL’s starboard lead barge. The events from
then until the collision are disputed. The collision occurred
around mile marker 277. As a result of the collision, the AUDREY
capsized and sank. Both William Coon and Connie Jones were able to
swim out from underneath the AUDREY and were rescued by other
vessels. Sadly, Allen Jerome and Matthew Shepp could not escape
and both drowned. It was later discovered that they had become
entangled in shrimping gear, which prevented their escape.
The respective versions of the events leading up to the
collision are widely divergent. According to the AUDREY’s version,
Mr. Coon initially attempted to pass THE ADMIRAL and her flotilla
1
Although the barges in a flotilla such as THE ADMIRAL’s are
pushed rather than towed, they are nonetheless referred to as the
“tow”.
2
As the overtaking vessel, the AUDREY was subject to Inland
Navigation Rule 13, 33 U.S.C. § 2013 (1994), which provides,
(a) Overtaking vessel to keep out of the overtaken
vessel’s way
Notwithstanding anything contained in Rules 4
through 18, any vessel overtaking any other shall
keep out of the way of the vessel being overtaken.
. . .
(d) Overtaking vessel to become crossing vessel only when
finally past and clear
Any subsequent alteration of the bearing between the
two vessels shall not make the overtaking vessel a
crossing vessel within the meaning of these Rules or
relieve her of the duty of keeping clear of the
overtaken vessel until she is finally past and
clear.
4
of barges on the port, or left, side. Encountering rough and
choppy seas, Mr. Coon decided to place the AUDREY on the starboard
side of THE ADMIRAL and her barges, where the flotilla would block
the wind and the water would be calmer. Therefore, Mr. Coon turned
the AUDREY to port to avoid THE ADMIRAL’s wake, looped around,
passed under THE ADMIRAL’s stern, and moved down the starboard side
of THE ADMIRAL. As he approached and passed THE ADMIRAL, Mr. Coon
made no attempt to contact the tugboat.
Mr. Coon testified that he intended to run alongside THE
ADMIRAL and her flotilla until he reached the AUDREY’s destination.
Consistent with this plan, he slowed the AUDREY as it reached the
stern of the starboard lead barge and maintained this position.
According to Mr. Coon, the AUDREY traveled along the edge of the
ship channel, approximately fifty yards from the starboard bank and
fifty yards from THE ADMIRAL and her barges, which were on the
AUDREY’s port side. Mr. Coon’s testimony placed THE ADMIRAL
approximately 100 yards (300 feet) from the bank, or roughly in the
center of the shipping channel. As the AUDREY came alongside THE
ADMIRAL, Allen Jerome was working in the rear of the shrimp boat.
Thus, Mr. Jerome, Mr. Coon, and Connie Jones had unobstructed views
of THE ADMIRAL.
According to both Mr. Coon and Connie Jones, the AUDREY
maintained her course and speed and Mr. Coon never made a port turn
towards or in front of THE ADMIRAL’s tow. Both testified that they
looked over at THE ADMIRAL several times but never saw the gap
between the barges and the AUDREY closing. They also testified
5
that the first indication of danger was when the starboard lead
barge in THE ADMIRAL’s tow struck the port stern of the AUDREY,
resulting in the AUDREY being spun around in front of THE ADMIRAL’s
tow. Immediately following this first collision, Mr. Coon pushed
the AUDREY’s throttle to full in an attempt to escape from the
barges. However, his efforts proved futile as the AUDREY was
struck again, this time by the port lead barge, causing the AUDREY
to capsize and eventually sink.
THE ADMIRAL’s account of the collision paints a vastly
different picture. Captain Coyle testified that after passing
through the intersection of the Neches River and the Intracoastal
Waterway, he did not see the AUDREY again until he observed it
attempting to pass on THE ADMIRAL’s starboard side. Captain Coyle
did not initiate any radio contact with the AUDREY. The AUDREY
proceeded along the starboard side of THE ADMIRAL’s tow and,
according to Captain Coyle, the AUDREY maintained a constant speed
of approximately five miles per hour faster than THE ADMIRAL and
remained fifty to one hundred feet from the starboard side of THE
ADMIRAL’s tow.3
According to Captain Coyle, shortly after the AUDREY passed
THE ADMIRAL’s starboard lead barge, it made an abrupt turn to port
and crossed approximately thirty feet in front of the bow of THE
ADMIRAL’s tow. At this point, Captain Coyle radioed his deckhand
3
Captain Coyle estimated that THE ADMIRAL and her tow were
making roughly three miles per hour. In contrast to Captain
Coyle’s estimation of the AUDREY’s speed, Mr. Coon testified that
the AUDREY was proceeding at the same speed as THE ADMIRAL.
6
Robert Witt and told him that a boat was crossing the bow. Captain
Coyle also sounded a danger signal, shifted THE ADMIRAL’s engines
from full ahead to full astern (a process that takes approximately
eighteen seconds to complete), and attempted to contact the AUDREY
over the radio. Unfortunately, at this point the collision was
imminent and the bow of the port lead barge of THE ADMIRAL’s tow
struck the port side of the AUDREY amidships. The AUDREY capsized,
went underneath the bow of the barge, and popped up on the port
side of the port lead barge. When THE ADMIRAL and her tow finally
came to a stop, the AUDREY was sinking in the middle of the channel
some 200 to 300 feet behind THE ADMIRAL.
B.
Following the collision, Luhr Bros., as owner and operator of
THE ADMIRAL, filed a limitation of liability proceeding pursuant to
the Limitation of Vessel Owner’s Liability Act, 46 App. U.S.C. §§
181-196 (1994). Allen Jerome’s widow, Audrey Jerome, filed a
separate limitation of liability petition on behalf of the estate
of Allen Jerome, the owner of the AUDREY. The court consolidated
these actions. Connie Jones and her former husband, Barre Shepp,
filed claims against Luhr Bros. in both their individual capacities
and as representatives of the estate of their deceased son, Matthew
Shepp. William Coon filed a claim against Luhr Bros. for personal
injuries he sustained in the collision. Finally, Audrey Jerome
filed claims against Luhr Bros. in her individual capacity and as
representative of the estate of Allen Jerome. Following a two-day
bench trial, the district court found THE ADMIRAL solely at fault
7
and adopted almost verbatim the Findings of Fact and Conclusions of
Law proposed by the Claimants.
Additionally, the district court denied Luhr’s Petition for
Limitation of Liability and awarded the Claimants the following
damages: $300,000.00 to the Estate of Matthew Shepp for damages
sustained prior to his death; $500,000.00 to Barre Shepp for
wrongful death damages; $1,525,535.81 to Connie Jones for medical
expenses, personal injury damages, and wrongful death damages;
$602,191.25 to William Coon for medical expenses and personal
injury damages; $419,173.00 to the Estate of Allen Jerome for
damage to the AUDREY, the cost of removing the AUDREY, funeral
expenses, and damages sustained prior to his death; and
$1,000,000.00 to Audrey Jerome for wrongful death damages.
Including interest, the court awarded Claimants a total of
$4,397,308.37. This appeal followed.
II.
A.
In reaching its conclusion that THE ADMIRAL was solely at
fault in the collision with the AUDREY, the district court accepted
almost entirely the version of events as related by William Coon
and Connie Jones, and concluded that THE ADMIRAL allowed her tow to
drift to the right side of the channel where it struck the AUDREY,
pushing the AUDREY into the path of the barges.
The district court found that: (1) THE ADMIRAL’s barges were
only partially “made up” when THE ADMIRAL got underway and Captain
Coyle was distracted by crew members working on the decks of the
8
barges; and (2) Captain Coyle was unaware of the heightened level
of diligence compelled by the Coast Guard’s requirement of permits
for oversized tows.
The district court concluded that Captain Coyle and THE
ADMIRAL violated several Inland Navigational Rules and related
regulations including: (1) failure to obtain an oversized tow
permit as required by 33 C.F.R. § 162.75(b)(5)(I) (1996); (2)
failure to keep a proper lookout, in violation of Inland
Navigational Rule 5, 33 U.S.C. § 2005; (3) failure to take proper
evasive action when the risk of a collision became apparent, in
violation of Inland Navigational Rule 8, 33 U.S.C. § 2008; (4)
failure to keep track of THE ADMIRAL’s position in relation to the
AUDREY, in violation of Inland Navigational Rule 7, 33 U.S.C. §
2007; and (5) failure to sound a danger signal when the AUDREY’s
intentions were not clear, in violation of Inland Navigational Rule
34, 33 U.S.C. § 2034.
In denying limitation of liability to Luhr Bros., the district
court found that Captain Coyle was “incompetent,” and that his
negligent conduct caused the collision with the AUDREY.
Furthermore, the district court found that Luhr Bros. did not have
any written policy or procedure for the “training, hiring, firing,
review or to establish the qualifications of personnel who captain
their vessels.” According to the district court, this failure to
supervise its captains adequately was a proximate cause of the
accident, and this failure was within Luhr Bros.’s privity or
knowledge, thus barring limitation of liability.
9
On appeal, Luhr Bros. makes a number of challenges to the
Judgment entered against it. First, Luhr Bros. contends that the
district court’s determination of the cause of the collision was
based upon findings of fact that are clearly erroneous. Before
proceeding to the merits of Luhr Bros.’s argument, we pause to
revisit the standards by which we review a challenge to the
district court’s factual findings.
B.
In Anderson v. City of Bessemer City, 470 U.S. 564, 105 S. Ct.
1504 (1985), the Supreme Court elucidated the standard of review
contained in Federal Rule of Civil Procedure 52(a), which mandates
that “[f]indings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous, and due
regard shall be given to the opportunity of the trial court to
judge of the credibility of the witnesses.” The Court set forth
“certain general principles governing the exercise of the appellate
court’s power to overturn findings of a district court . . . .”
Anderson, 470 U.S. at 573, 105 S. Ct. at 1511. Foremost among
these principles
is that “[a] finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” This
standard plainly does not entitle a reviewing court to
reverse the finding of the trier of fact simply because
it is convinced that it would have decided the case
differently. The reviewing court oversteps the bounds of
its duty under Rule 52(a) if it undertakes to duplicate
the role of the lower court.
Id. (alteration in original) (citation omitted) (quoting United
10
States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct.
525, 542 (1948)). The appellate court must accept the district
court’s account of the evidence if it is plausible when viewed in
light of the entire record. Moreover, “[w]here there are two
permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” Anderson, 470 U.S. at 574, 105
S. Ct. at 1511; see also Henderson v. Norfolk S. Corp., 55 F.3d
1066, 1069 (5th Cir. 1995).
The Court based this deference to the original finder of fact
not only on the trial judge’s expertise in fulfilling the role of
factfinder and determining credibility, but also on the principle
that a “[d]uplication of the trial judge’s efforts in the court of
appeals would very likely contribute only negligibly to the
accuracy of fact determination at a huge cost in diversion of
judicial resources.” Anderson, 470 U.S. at 574-75, 105 S. Ct. at
1512. As the Court succinctly stated, “the trial on the merits
should be ‘the “main event” . . . rather than a “tryout on the
road.”’” Id. at 575, 105 S. Ct. at 1512 (alteration in original)
(quoting Wainwright v. Sykes, 433 U.S. 72, 90, 97 S. Ct. 2497, 2508
(1977)).
The Court observed that Rule 52(a) requires greater deference
to the trial court’s findings when they are based upon
determinations of credibility. Nevertheless, it cautioned against
permitting a trial judge to insulate findings from review simply by
denominating them credibility determinations. Anderson, 470 U.S.
at 575, 105 S. Ct. at 1512. A witness’s demeanor and inflection
11
are only two considerations the trial court must take into account
when deciding whether to credit a witness’s testimony. The court
must also consider relevant documents or objective evidence that
may contradict the witness’s story and whether a witness’s story is
internally consistent and plausible on its face. Id.
In addition, in cases such as the instant one, where the
district court’s Findings of Fact and Conclusions of Law are near-
verbatim recitals of the prevailing party’s proposed findings and
conclusions, with minimal revision, we should approach such
findings with “caution.” Sierra Club, Lone Star Chapter v. Cedar
Point Oil Co. Inc., 73 F.3d 546, 574 (5th Cir. 1996). We may “take
into account the District Court’s lack of personal attention to
factual findings in applying the clearly erroneous rule,” Federal
Deposit Insurance Corp. v. Texarkana National Bank, 874 F.2d 264,
267 (5th Cir. 1989) (quoting Amstar Corp. v. Domino’s Pizza, Inc.,
615 F.2d 252, 258 (5th Cir. 1980)), and we “can feel slightly more
confident in concluding that important evidence has been overlooked
or inadequately considered when factual findings [are] not the
product of personal analysis and determination by the trial judge.”
Amstar Corp., 615 F.2d at 258 (quoting James v. Stockham Valves &
Fittings Co., 559 F.2d 310, 314 n.1 (5th Cir. 1977)).4
4
Stricter appellate scrutiny of “rubber-stamped” findings by
the district court is mandated in at least four other circuits.
See, e.g., Cuthbertson v. Biggers Bros., Inc., 702 F.2d 454, 458-59
(4th Cir. 1983); Gimbel v. Commodity Futures Trading Comm’n, 872
F.2d 196, 199 (7th Cir. 1989); Alcock v. Small Bus. Admin., 50 F.3d
1456, 1459 n.2 (9th Cir. 1995); Ramey Constr. Co., Inc. v. Apache
Tribe, 616 F.2d 464, 467 (10th Cir. 1980). The practice of
“rubber-stamping” findings has been routinely discouraged. See,
12
The trial court’s adoption of the prevailing parties’ proposed
findings, however, does not alter the bedrock principle that the
findings may not be overturned on appeal absent clear error.
Anderson, 470 U.S. at 572, 105 S. Ct. at 1510-11. As the Supreme
Court has made clear, and as our cases have reinforced, on
appellate review we owe great deference to the trial court’s
findings.5 This is not to say, however, that we will never find
clear error. When, after an examination of the entire evidence, we
are “left with the definite and firm conviction that a mistake has
been committed,” clear error exists and it is our duty as the
reviewing court to correct this mistake. Justiss Oil Co., Inc. v.
Kerr-McGee Refining Corp., 75 F.3d 1057, 1062 (5th Cir. 1996)
(citing United States v. United States Gypsum Co., 333 U.S. 364,
395, 68 S. Ct. 525, 542 (1948)).
III.
A.
We structure our analysis around the factors that the Supreme
Court cited in Anderson as potentially casting doubt upon the
district court’s credibility determinations, and therefore its
findings. See Anderson, 470 U.S. at 575, 105 S. Ct. at 1512. In
e.g., Anderson, 470 U.S. at 572, 105 S. Ct. at 1510-11; Gimbel, 872
F.2d at 199; Amstar Corp., 615 F.2d at 258.
5
See, e.g., Amadeo v. Zant, 486 U.S. 214, 223, 108 S. Ct.
1771, 1777 (1988) (“clearly-erroneous standard of review is a
deferential one”); Anderson, 470 U.S. at 573-75, 105 S. Ct. at
1504, 1511-12; In re Port Arthur Towing Co., 42 F.3d 312, 318-19
(5th Cir. 1995); Sockwell v. Phelps, 20 F.3d 187, 190 (5th Cir.
1994).
13
this case, these interrelated factors include: (1) the physical
evidence presented at trial; (2) the expert testimony analyzing
such evidence; (3) the testimony of independent witnesses; and (4)
the plausibility and internal consistency of the AUDREY’s version
of events.
1. The Physical Evidence
The physical evidence collected after the collision conflicts
with the AUDREY’s version of events. This evidence includes the
damage sustained by the barges and the AUDREY and the location of
the sunken AUDREY.
Daniel Carter and John Stickling, Jr., who independently
inspected THE ADMIRAL’s six barges following the accident,
testified as to the damage that the barges had incurred.6 Their
task was to examine the AUDREY and the two lead barges--the M-8005
and the M-878--to determine whether evidence existed of a collision
between either of those barges and the AUDREY. As mentioned above,
according to the AUDREY, there were two points of impact with THE
ADMIRAL’s barges, the first with the starboard lead barge, the M-
878, and the second with the port lead barge, the M-8005.
In contrast to the AUDREY’s version, the only evidence of
fresh or new contact on either barge was found on the port side of
the bow of the M-8005 barge, consistent with THE ADMIRAL’s account.
Two horizontal scrapes of paint, a white scrape at the top and a
6
Mr. Carter conducted his survey approximately two hours
after the collision. Mr. Stickling conducted his survey roughly
two weeks later.
14
blue scrape at the bottom, ran along the port edge of the M-8005's
bow. These scrapes matched the color scheme of the AUDREY.
Neither surveyor found any evidence of a recent impact on the M-
878, the starboard lead barge. Similarly, the AUDREY only
exhibited damage to the port side amidships, consistent with one
impact with the bow of the M-8005 barge.
To explain the lack of physical damage to the AUDREY from the
first alleged impact, both Mr. Coon and Captain Underhill, an
expert witness for the Claimants, cited a rubber tire fender as
responsible for preventing any damage to the rear port quarter of
the AUDREY or the starboard bow of the M-878. It is implausible,
however, that a collision of the force needed to spin and push the
AUDREY in the manner that Mr. Coon alleged, even if cushioned by a
rubber tire, would leave no marks--not even tire marks--on either
the AUDREY or the M-878 barge.
Furthermore, the location of the sunken AUDREY does not square
with the AUDREY's version of the accident. According to the
AUDREY’s version of the collision, THE ADMIRAL drifted or angled
towards the starboard bank where it struck the AUDREY at a point
close to the edge of the shipping channel, approximately 100 to 150
feet from the north bank. The AUDREY eventually sank approximately
70 feet south of this point, after it had been thrust across the
entire width of the barge flotilla. Had the collision occurred in
this manner, we would expect to find the sunken AUDREY
approximately 170 to 220 feet away from the north bank. The Corps
of Engineers’ survey, however, revealed that the AUDREY was raised
15
from a point south of the center of the channel, at least 300 feet
from the north bank.
It is true that the AUDREY did not sink immediately, and thus
theoretically could have drifted farther (south) into the channel.
However, all trial testimony indicated that both wind and tide were
pushing towards the north bank. Thus, to the extent that the
AUDREY moved as it sank, it would have moved to the north, not the
south. Again, this supports THE ADMIRAL’s version of the events.
Moreover, those advocating the AUDREY’s version provided no
evidence or argument to explain the location of the sunken AUDREY.
In sum, the physical evidence strongly supports THE ADMIRAL’s
version of events--a single collision taking place near the middle
of the channel with a single point of impact between the port side
of the AUDREY and the port bow of the port lead barge.
2. Expert Witnesses
The district court also had before it expert witness testimony
interpreting the physical evidence and analyzing the movements of
the two vessels. Captain R.J. Underhill testified for the
Claimants, and Donald Green testified for Luhr Bros.
Captain Underhill, a marine surveyor, testified as an expert
witness to, among other things, the AUDREY’s version of the
collision. He theorized during his deposition and on direct
examination that THE ADMIRAL had canted or angled fifteen degrees
across the channel and had struck the AUDREY, which had been
running parallel to the front of the lead starboard barge. On
cross-examination, after his version of events was challenged by
16
Luhr’s counsel, he altered his opinion, stating that THE ADMIRAL
did not angle or cant, but instead remained almost parallel to the
bank and was set into the AUDREY by the current.7 His testimony
was based almost exclusively on Mr. Coon’s explanation of the
collision.8 He did not attempt to support the AUDREY’s version of
the events with an explanation of the physical evidence or other
scientific analysis.
This is in contrast to the expert testimony provided by Luhr
Bros. One of Luhr's experts, Donald Green, operates a marine
school that specializes in preparing candidates for Coast Guard
examinations and training boat captains for licenses and radar
endorsements required by the Coast Guard. He is a retired Coast
Guard commander who spent twenty-three years in the Coast Guard,
five and one-half of those years as an investigator. Mr. Green
reviewed depositions, surveyors’ reports describing the physical
evidence, the Coast Guard post-accident report, charts, vessel
logs, and other relevant information. He also spoke to a witness
and attempted to recreate the collision on a computer. Based upon
his investigation, Mr. Green believed that the AUDREY had attempted
to pass in front of THE ADMIRAL’s tow. During his trial testimony
and accompanying video presentation, Mr. Green analyzed a number of
7
It is this explanation of the events--THE ADMIRAL drifted
to starboard--that the district court adopted in its findings.
8
Even so, as we explain in more detail later, Captain
Underhill was forced to admit that his understanding of the
mechanics of the collision was not consistent with Mr. Coon’s
testimony. See Section III.A.4.
17
possible versions of the collision, confirming his opinion that the
AUDREY was at fault in the collision.9
3. Independent Witnesses
In addition to the testimony of Mr. Coon, Ms. Jones, and
Captain Coyle, the district court heard from witnesses, with no
connection to any party, whose testimony was inconsistent with the
AUDREY’s account of the collision.
Captain Joe Holloway was the relief captain aboard the M/V
CITY OF PORT ALLEN. On the morning of the collision he was
proceeding west, trailing THE ADMIRAL by approximately one-quarter
to one-half mile. He testified that he twice contacted THE ADMIRAL
to arrange for his vessel to overtake THE ADMIRAL. On the second
request, Captain Coyle advised Captain Holloway not to pass because
a shrimp boat had pulled in front of THE ADMIRAL’s tow and he was
backing THE ADMIRAL down. Captain Holloway testified that for the
entire time that he observed THE ADMIRAL, it remained near the
center of the channel, consistent with THE ADMIRAL’s version of
events. This testimony contradicts Mr Coon’s testimony and Captain
Underhill’s theory that THE ADMIRAL moved to starboard and struck
the AUDREY near the north bank.10
9
Oddly, the trial judge made no mention of Mr. Green’s
testimony in his findings. At trial, counsel for the Claimants
complained of Mr. Green’s failure to consider Ms. Jones’s account
of the collision in rendering an opinion of the cause of the
accident. However, because Ms. Jones’s testimony was almost
identical to Mr. Coon’s testimony, we are not persuaded that this
omission bears in any way upon the validity of Mr. Green’s opinion.
10
Curiously, similar to Donald Green’s testimony, the
district court did not mention Captain Holloway or his testimony in
18
In contrast to Luhr Bros., the Claimants presented no
independent fact witnesses supporting their theory of the
collision. The Claimants did offer the deposition of Robert Witt,
a deckhand aboard THE ADMIRAL, in an attempt to discredit Captain
Coyle’s story. Mr. Witt’s deposition testimony, however, is
generally consistent with the version offered by THE ADMIRAL.
Specifically, Mr. Witt testified that he was working on the
starboard side of the tow when he observed the AUDREY pass
approximately 100 feet off the starboard beam. Shortly thereafter,
Captain Coyle called Mr. Witt over the radio to report that a boat
was crossing his bow, and Captain Coyle began to blow the danger
signal. Mr. Witt immediately looked towards the bow, where he
observed the AUDREY crossing the bow of the tow. A second or two
later, the AUDREY disappeared behind the rocks piled on the barges,
and Mr. Witt began to move to the port side of the tow. As he
moved to the port side, he caught a glimpse of the AUDREY from the
middle of the barges between the rock piles. Mr. Witt next saw the
AUDREY bottom up, coming down the port side of THE ADMIRAL’s tow.
Thus, Mr. Witt's testimony is consistent with Captain Coyle's
version of the accident: the AUDREY cut across the bow of THE
its findings.
The only independent witness that the district court did
mention was Captain Jimmy Lewis, whom Luhr Bros. had presented as
a witness to the collision. Captain Lewis was piloting a tugboat
that had been approaching THE ADMIRAL head-on. His testimony was
generally consistent with THE ADMIRAL’s account of the collision.
The district court declined to credit Captain Lewis’s testimony
because of inconsistencies between his trial testimony and his
earlier deposition testimony. A review of the record indicates
that the district court was justified in so doing.
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ADMIRAL's tow and the port lead barge collided with the AUDREY near
the middle of the channel.
4. Implausibility
Finally, we are struck with the facial implausibility of the
AUDREY’s version of the collision.
Mr. Coon testified that he proceeded to pass THE ADMIRAL’s
flotilla on its starboard side, approximately 150 feet from the
barges. He stated that when he drew even with the stern of the
starboard lead barge and the bow of the starboard middle barge, he
slowed to the same speed as THE ADMIRAL’s flotilla and held this
position relative to the barges. Ms. Jones supported this account.
However, as Captain Underhill was forced to concede, the collision
could not physically have occurred with the AUDREY and THE
ADMIRAL’s tow in this relative position as testified to by Mr. Coon
and Ms. Jones.11 It was critical to the AUDREY’s version of the
collision that the AUDREY collided with the bow of THE ADMIRAL’s
starboard lead barge, rather than some other part of the starboard
side of the flotilla. Otherwise the AUDREY could not explain how
she was thrust across the bow of the starboard lead barge and
collided with the bow of the port lead barge.
Furthermore, it is implausible that not one person aboard the
AUDREY saw THE ADMIRAL’s tow--piled with rock sitting twelve to
11
Captain Underhill was faced with the task of explaining the
mechanics of the collision, using Mr. Coon’s description of the
events. Captain Underhill was unable to do so and stated that Mr.
Coon’s explanation of the events was “impossible.” Captain
Underhill then offered his own version of what took place.
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fifteen feet out of the water--slowly drifting toward the AUDREY.
Yet the AUDREY's witnesses maintained that they had no warning of
impending danger until the impact.
Mr. Coon testified as follows:
Q: And you’ve [sic] navigating with that depth finder
and you’re looking straight ahead, right?
A: [by Mr. Coon] Right.
Q: You never look over here again, do you? You never
saw that tow coming, did you?
A: I looked over there several times.
Q: Every time you looked over there, that tow still
looked like it was 50 yards away.
A: Every time I looked over there, that tow looked
just exactly like it was the first time I looked at
it.
Q: Which is 50 yards away?
A: Right.
. . .
Q: Did you see the tow coming, sir?
A: No, sir.
Q: Why not?
A: I don’t know why. I really don’t know why I never
seen [sic] it coming.
Ms. Jones testified similarly:
Q: Now, no one -- you said nobody said anything or
nobody in the boat ever discussed anything prior to
the collision about “the positions of the vessels
are closing,” “we need to look out,” “look out!
Something is coming!” Nothing like that was ever
said.
A: [by Ms. Jones] No, sir.
Q: And nobody on the AUDREY, to your knowledge, was
aware that this tow was drifting to the starboard
side?
A: No, sir.
Q: And the only thing you know is that you got hit,
and that’s the first indication you or anyone else
on that boat had that this [sic] six loaded barges
had come starboard towards your boat?
A: That’s correct.
Mr. Coon also testified that prior to the collision, Mr.
Jerome was working at the back of the boat, with a completely
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unobstructed view behind the AUDREY and to its port and starboard
sides. According to Mr. Coon’s testimony, Mr. Jerome gave no
indication that he noticed THE ADMIRAL’s barges closing in on the
AUDREY. Moreover, Captain Underhill stated that Mr. Coon and Ms.
Jones stood in the best position to maintain a proper lookout.
Given these circumstances, we find it implausible that THE ADMIRAL
drifted to starboard, and that not one person aboard the AUDREY
realized that this ten- to twelve-foot-high wall of crushed rock
was on a collision course with the AUDREY until THE ADMIRAL’s barge
struck the AUDREY. Rather, THE ADMIRAL’s version that no collision
occurred until the AUDREY crossed the bow of the flotilla is much
more plausible.
In view of the sheer implausibility of the AUDREY’s account of
the collision, the district court committed clear error in
accepting this version of the accident.
B.
Based upon the foregoing discussion, we are left with the
definite and firm conviction that the physical evidence, the
testimony of independent witnesses, and the inconsistency and
implausibility of the AUDREY’s version of the collision demonstrate
that the district court erred in finding THE ADMIRAL solely at
fault for this collision. The only evidence to support such a
finding is the eyewitness testimony of Mr. Coon and Ms. Jones.
Captain Underhill’s testimony, apart from being inconsistent with
that of Mr. Coon, is unsupported by the physical evidence and adds
no support to Claimant's case. Opposed to that testimony is the
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testimony of Captains Coyle and Holloway, as well as deckhand
Robert Witt’s testimony, the physical evidence, and the expert
testimony interpreting that physical evidence. The overwhelming
weight of credible evidence establishes that the AUDREY, for
whatever reason, attempted to cross the bow of THE ADMIRAL’s tow
and was unsuccessful, resulting in a single impact at the bow of
the port lead barge. Mr. Coon’s actions in proceeding across the
bow of THE ADMIRAL, thereby placing the AUDREY in extremis, were
the sole cause of this collision.
Because we agree with Luhr’s principal argument on appeal--
that the district court committed clear error--we need not address
Luhr’s remaining arguments challenging the district court’s refusal
to allow Luhr to limit its liability, the court’s valuation of THE
ADMIRAL for limitation purposes, and the basis and quantum of the
Claimants’ damages awards.
IV.
We are ever mindful of our limited role as an appellate court.
A corollary to this awareness is the deference given to a district
court’s factual findings by way of clear error review. However,
for the reasons stated above, we are convinced that the district
court clearly erred. Because we conclude that the action of the
AUDREY was the sole proximate cause of this collision, we REVERSE
the judgment rendered against THE ADMIRAL, and RENDER a take
nothing judgment against the Claimants.
REVERSED and RENDERED.
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