Tug Barbara E. Bouchard Corp. v. Amazonia MV

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 13, 2004
Charles R. Fulbruge III
No. 03-30054 Clerk
TUG BARBARA E. BOUCHARD CORP. and B NO. 235 CORP.,
Plaintiffs--Third-Party Defendants--Counter
Defendants–-Appellants-–Cross-Appellees,
versus
AMAZONIA MV, her engines, tackle, apparel, etc., in rem,
Defendant--Appellee--Cross-Appellant,
and
A. T. SHIPPING CO. LTD.; STANSHIPS INC.;
STANDARD SHIPPING, INC.; and ABC INSURANCE CO.,
Defendants--Third-Party Plaintiffs--Counter
Plaintiffs--Appellees--Cross-Appellants,
and
STANDARD SHIPPING LTD., in personam,
Cross-Appellant.
Appeals from the United States District Court
For the Eastern District of Louisiana
Before BARKSDALE, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM*:
This appeal concerns a maritime tort suit filed by Plaintiffs-
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
-Third-Party Defendants--Counter Defendants--Appellants--Cross-
Appellees Tug Barbara E. Bouchard Corp. and B No. 35 Corp.
(together, “Bouchard”) against Defendants--Appellees--Cross-
Appellants AMAZONIA MV; A. T. Shipping Co. Ltd; Stanships Inc.,
Standard Shipping, Inc.; and ABC Insurance Co. (together,
“Stanships”). Bouchard appeals the district court’s final judgment
in favor of Stanships after a bench trial.1 For the following
reasons, we AFFIRM the district court.
BACKGROUND
On the morning of October 11, 2001, Charles Culpepper
(“Culpepper”), captain of the tug BARBARA E. BOUCHARD, was en route
to Pascagoula, Mississippi, along the Mississippi River but decided
to anchor the BARBARA E. BOUCHARD and attached BARGE 235 (together,
the “BOUCHARD flotilla”) at the Boothville anchorage due to bad
weather. The BOUCHARD flotilla was approximately 550 feet long.
While anchored, she initially faced upriver; however, the wind and
tide caused the BOUCHARD flotilla to swing toward the concrete
river bank. She was affected by the wind because she was not
loaded with cargo. Culpepper was concerned about possible damage
from the bank, so that evening between 5:00 and 6:00 p.m. he
reanchored the BOUCHARD flotilla about 100 to 150 feet further
toward the center of the river. Culpepper put out about four shots
1
We agree with Stanships that its cross-appeal regarding a Rule
15 amendment to add a party is moot because Bouchard did not appeal
the district court’s ruling or brief any argument pertaining to the
proper parties.
2
of anchor cable, equivalent to about 360 feet. Culpepper stated
the BOUCHARD flotilla’s anchor was still within the Boothville
anchorage. That night the winds got up to 50 miles per hour, and
there were rain squalls. However, the anchor did not drag.
On October 12, 2001, Culpepper remained at the Boothville
anchorage due to the bad weather. The wind was still causing the
stern of the BOUCHARD flotilla to swing toward the east bank of the
river. In this perpendicular position, there was approximately a
quarter of a mile of river between the BOUCHARD flotilla and the
east bank. Other vessels were able to pass safely between the
BOUCHARD flotilla and the east bank. Several of those passing
vessels contacted the BOUCHARD flotilla about her position in the
center of the river.
On October 13, 2001, the loaded AMAZONIA, piloted by Captain
Jack Grubbs (“Grubbs”), was proceeding upriver at full maneuvering
speed. The AMAZONIA’s gyrocompass was not functioning, and the
Coast Guard had granted the vessel permission to proceed during
daylight hours only. The AMAZONIA was required to anchor by
sundown, approximately 6:32 p.m.
Lower Plaquemines Parish had been under a tornado watch all
day, and there were severe weather warnings in the vicinity of
Terrebonne Bay. When Culpepper came on duty at 5:00 p.m., there
was a severe storm warning for southeast Louisiana. By this time,
the Boothville anchorage was filled with a number of other tugs and
barges. Unlike the BOUCHARD flotilla, these vessels were loaded
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with cargo. About 6:00 p.m. a squall approached the area. When
Culpepper noticed the clouds, he had the engineer start the engines
in case he had to maneuver the BOUCHARD flotilla in the wind.
About this time, Culpepper first visually observed the
AMAZONIA, approximately a mile below the BOUCHARD flotilla.
Culpepper was aware that the AMAZONIA was traveling northbound
because he had heard Grubbs on the radio. The BOUCHARD flotilla’s
bow was still pointed toward the west bank, and her stern was
pointed toward the east bank. However, within minutes the squall
approached and the winds began hitting the BOUCHARD flotilla like
a “freight train,” causing the bow to swing toward the center of
the river. The BOUCHARD flotilla began to drag anchor and rotate
in a clockwise manner across the river toward the east bank. This
occurred at the same time the AMAZONIA was passing between the
BOUCHARD flotilla and the east bank of the river.
Culpepper tried to use his engines to back away from the
approaching AMAZONIA. He blew the danger signal and attempted to
contact the AMAZONIA by radio. The AMAZONIA steered hard right to
avoid collision. However, Culpepper lost control and the starboard
bow of the BOUCHARD flotilla collided with the port bow of the
AMAZONIA at approximately 6:05 p.m. After the two vessels
collided, they were parallel to each other in the river. The
AMAZONIA continued to travel northbound and eventually grounded on
the east bank side of the river.
Bouchard filed a complaint under the general maritime laws
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against Stanships for damages sustained when the BOUCHARD flotilla
and the AMAZONIA collided on the Mississippi River. Stanships
counterclaimed for damages sustained by the AMAZONIA and also filed
a third-party complaint against Bouchard’s insurer, Continental
Insurance Co. A bench trial was conducted, and the district court
granted Stanships’s motion for judgment as a matter of law. The
district court found Bouchard solely at fault for the collision and
granted Stanships’s claims against Bouchard. Bouchard timely
appealed.
DISCUSSION
Whether the district court erred by applying a strict liability
theory rather than a negligence standard in finding the BOUCHARD
flotilla responsible for the collision.
Bouchard argues on appeal that the district court erred as a
matter of law in applying a theory of strict liability rather than
a negligence standard in finding the BOUCHARD flotilla responsible
for the collision. Bouchard maintains the court held it strictly
liable because the court found it had violated the anchorage
regulations set forth in 33 C.F.R. § 110.195. Stanships contends
the district court did not impose strict liability and instead
imposed the correct standard of reasonable care in finding Bouchard
solely responsible for the collision.
While Bouchard is correct that the district court determined
that the BOUCHARD flotilla had violated several provisions of §
110.195, the court also noted Culpepper’s testimony that the
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BOUCHARD flotilla was positioned perpendicular to the west bank and
was being blown by the wind, before and after the squall. The
court pointed to Culpepper’s lack of control and the fact he knew
the AMAZONIA was approaching to pass while the BOUCHARD flotilla
was being blown toward the center of the river into oncoming
traffic. The court determined Culpepper failed to take corrective
action and exercise due diligence despite the BOUCHARD flotilla’s
being blown outside the anchorage limits before the squall. The
court found “the force of the wind, combined with the perpendicular
anchorage, length and type of anchor line, and lack of control and
reasonable monitoring of the anchorage” caused the BOUCHARD
flotilla to drag anchor into the path of the AMAZONIA.
Thus, the record does not support Bouchard’s argument that the
court applied a theory of strict liability instead of a theory of
negligence. Moreover, we conclude the court’s factual findings on
Culpepper’s lack of due diligence and his negligence are not
clearly erroneous. See Avondale Indus., Inc. v. Int’l Marine
Carriers, Inc., 15 F.3d 489, 492 (5th Cir. 1994) (treating
negligence questions as factual issues in admiralty actions).
Whether the district court erred in not considering the BOUCHARD
flotilla in extremis.
Bouchard next argues the district court erred as a matter of
law in not considering Culpepper’s actions in light of the in
extremis doctrine. See Employers Ins. of Wausau v. Suwannee River
Spa Lines, Inc., 866 F.2d 752, 771 (5th Cir. 1989) (explaining that
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the in extremis doctrine only applies to a vessel which “without
prior negligence” encounters “destructive natural forces”).
Stanships responds that the district court was correct in finding
that all of Culpepper’s negligent actions occurred prior to the
start of the squall, such that the in extremis doctrine was not
applicable here.
Here, the district court found negligence on the part of
Culpepper because he did not take proper corrective action to
reposition the BOUCHARD flotilla before the squall ever started.
Because the BOUCHARD flotilla was found to be negligent prior to
the storm, we conclude the in extremis doctrine was inapplicable.
Whether the district court’s findings pertaining to proximate cause
were clearly erroneous.
Bouchard also argues the district court’s findings pertaining
to proximate cause are clearly erroneous. Bouchard contends the
proximate cause of the collision was neither the location of the
BOUCHARD flotilla nor the storm, but instead was the AMAZONIA’s
decision to proceed at full speed in a squall in order to reach
anchorage by nightfall (which she was forced to do because of her
unseaworthiness). Bouchard relies on Deutsche Shell Tanker
Gessellschaft mbH v. Placid Refining Co., 993 F.2d 466, 468, 474
(5th Cir. 1993), where this Court affirmed that a vessel’s failure
to maintain her radar in seaworthy condition was the proximate
cause of her grounding.
Stanships argues this case is factually distinguishable from
7
Deutsche Shell. Here, the AMAZONIA’s radar was entirely
functional. While the AMAZONIA did have an inoperable gyrocompass
on the day of the collision, she had permission from the Coast
Guard to operate during daylight hours. The collision occurred
during daylight hours, and there was testimony the collision was
not due to the inoperable gyrocompass. Stanships contends the
district court correctly determined that there was no credible
evidence that the AMAZONIA’s speed or other actions played any role
in causing the collision.
We agree with Stanships that Deutsche Shell is easily
distinguishable from this case. We thus conclude the court’s
findings on proximate cause are not clearly erroneous. See
Avondale Indus., 15 F.3d at 492 (treating causation questions as
factual issues in admiralty actions).
Whether the district court erred by not applying the Pennsylvania
Rule or the moving-vessel doctrine.
Finally, Bouchard argues the AMAZONIA violated several Coast
Guard Inland Rules pertaining to navigation. Because of these
infractions, Bouchard contends the district court erred by not
applying the Pennsylvania Rule of contributory fault to the
AMAZONIA. See THE PENNSYLVANIA, 86 U.S. 125, 135-38 (1873)
(outlining that at least contributory fault is reasonably presumed
when a ship was violating collision regulations or rules of the
road); see also Am. River Trans. Co. v. KAVO KALIAKRA SS, 148 F.3d
446, 450 (5th Cir. 1998) (“To give rise to liability [under the
8
Pennsylvania Rule], a culpable act or omission must have been a
substantial and material factor in causing the collision.”)
(citation and internal quotation marks omitted). Bouchard also
argues the court erred in not applying the moving vessel
presumption of fault to the AMAZONIA. See Am. Petrofina Pipeline
Co. v. M/V SHOKO MARU, 837 F.2d 1324, 1326 (5th Cir. 1988) (noting
the longstanding presumption of negligence against a moving vessel
when she strikes a fixed or nonmoving object).
Stanships replies that the district court did not find the
AMAZONIA to have violated any statutory rules so as to trigger the
Pennsylvania Rule. Stanships also points out that “[o]bviously the
BOUCHARD flotilla, racing across the Mississippi River, was neither
an anchored or moored vessel” at the time of the collision.
Here, the district court found the BOUCHARD flotilla solely at
fault for the collision. We conclude the court’s finding that the
AMAZONIA played no role in causing the collision is not clearly
erroneous. Thus, the Pennsylvania Rule did not apply. The court
found that the collision occurred while the BOUCHARD flotilla was
rotating clockwise across the river and the AMAZONIA was
maneuvering up the river. We conclude the court’s determination
that the collision happened while both vessels were moving is not
clearly erroneous. Thus, the moving-vessel doctrine also did not
apply.
CONCLUSION
9
Having carefully reviewed the record and the parties’
respective briefing and arguments, and for the reasons set forth
above, we AFFIRM the final judgment of the district court.
AFFIRMED.
10