Teco Barge Line v. Exmar Lux

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED AUGUST 9, 2005
July 25, 2005
UNITED STATES COURT OF APPEALS
For the Fifth Circuit Charles R. Fulbruge III
Clerk
No. 04-30064
In Re: In the Matter of: MID-SOUTH TOWING CO., as Owner and
Operator of M/V Diane Oak, Praying for Exoneration from and/or
Limitation of Liability
MID-SOUTH TOWING COMPANY, Etc.; ET AL
Petitioners,
DOW CHEMICAL COMPANY
Claimant
-------------------------
TECO BARGE LINE, INC., Successor in Interest to Mid-South Towing
Company
Plaintiff – Appellant,
VERSUS
EXMAR LUX; ET AL
Defendants,
BONA SHIPHOLDING; WEST OF ENGLAND SHIP OWNERS MUTUAL
INSURANCE ASSOCIATION, (LUXEMBOURG); STANDARD STEAMSHIP
OWNERS’ PROTECTION & INDEMNITY ASSOCIATION BERMUDA LTD;
TEEKAY SHIPPING CANADA LTD; AMERICAN RIVER TRANSPORTATION
CO; EXMAR LUX SA; TECTO LUXENBOURG SA
Defendants-Appellees;
Appeal from the United States District Court
For the Eastern District of Louisiana
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Before SMITH, DENNIS, and PRADO, Circuit Judges.
DENNIS, Circuit Judge:
This case stems from an allision1 between M/V DIANE OAK, a
vessel now owned and operated by Teco Barge Line, Inc., and a
wharf owned by Dow Chemical Company (“Dow”). The allision caused
severe damage to the wharf. Consequently, M/V DIANE OAK2 filed a
petition for limitation of liability; Dow countered by filing a
claim in the limitation proceeding seeking recovery of the
damages sustained from the allision. Thereafter, M/V DIANE OAK
brought suit in rem against three other vessels on the river that
morning and in personam against related interests, alleging that
those vessels had so embarrassed her navigation as to be
contributory and proximate causes of the allision and thus
deserving of some liability for the damages incurred by Dow.
After a bench trial solely on the question of liability, the
district court found that the M/V DIANE OAK was solely at fault
for the allision. M/V DIANE OAK timely appeals contending that
the district court: (1) erroneously applied a presumption of
fault against her; (2) erroneously relied on the “last clear
chance” doctrine to excuse negligence on the part of the other
1
“An allision is a collision between a moving vessel and a
stationary object.” THOMAS J. SCHOENBAUM, ADMIRALTY & MARITIME LAW, § 14-
2 (4th ed. 2004).
2
For the sake of clarity, we, like the parties, generally refer
to each of the vessels and their respective interests simply by
referring to the vessel itself.
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vessels; and (3) failed to properly apply controlling principles
of proximate causation and comparative fault amongst all of the
vessels. Finding no reversible error, we affirm.
I. BACKGROUND
On the morning of March 5, 2001, four vessels traveling on the
Mississippi River converged on 35 Mile Point. Two of those
vessels, the M/V DIANE OAK and the M/V GOTLAND SPIRIT were headed
south, down the river. The other two, the M/V GINNY STONE and the
DONAU were headed north, up the river. It is undisputed that all
four vessels safely passed 35 Mile Point. It is also undisputed
that the M/V DIANE OAK allided with the Dow wharf two miles and
nearly sixteen minutes downriver from 35 Mile Point.
In this case, the district court determined that as the lead
southbound vessel, M/V DIANE OAK was the privileged vessel and thus
had the right-of-way over each of the other three vessels. Second,
the court determined that with this privilege, the M/V DIANE OAK
was under a concomitant obligation to give instructions to the
other vessels as to the manner and place of meeting and passing.
See Inland Navigation Rule 9(a)(ii), 33 U.S.C. § 2009(a) (“A power-
driven vessel operating in narrow channels . . . and proceeding
down-bound with a following current shall have the right-of-way
over an up-bound vessel, shall propose the manner and place of
proper passage, and shall initiate the maneuvering signals . . . as
appropriate.”) (emphasis added). Citing M/V DIANE OAK’s failure to
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“adequately direct the traffic in this area that morning” and to
“give adequate and timely instructions on the place and manner of
passing,” the district court identified M/V DIANE OAK’s failure to
adhere to her duties as the lead southbound vessel as “the primary
problem” in this allision.
Specifically, the district court faulted M/V DIANE OAK for
allowing M/V GOTLAND SPIRIT to overtake her so close to the Point
with both vessels traveling at high speeds. According to the
court, this created a situation where M/V GOTLAND SPIRIT became the
privileged vessel and allowed M/V GOTLAND SPIRIT to keep M/V GINNY
STONE on the Point (for a port to port passing, instead of the
starboard passing M/V DIANE OAK arranged with M/V GINNY STONE), as
well as allowing GOTLAND SPIRIT to direct traffic and permit DONAU
to come up to the Point. Similarly, the court also faulted M/V
DIANE OAK for miscalculating the speed and location of the various
vessels, an error that caused all four vessels to come up on the
Point around the same time and that, according to the district
court, could have been avoided had M/V DIANE OAK held M/V GINNY
STONE below the Point or communicated earlier with M/V DONAU and
held her up below the Point.
The district court then turned its attention to the conduct of
the other vessels, stating that their liability, if any, “boils
down to two relatively simple factual issues to be resolved.” The
first being, “whether or not any neglect or fault that did occur on
the part of the GINNY STONE and/or NOBRA 56 [M/V GOTLAND SPIRIT]
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had anything to do with proximately causing the allision that later
occurred.” The district court answered this first question in the
negative, and in so doing relied on the testimony of M/V DIANE
OAK’s pilot, Captain Couey, in which he admitted—after being
impeached with his prior deposition testimony—that he had “all the
chance in the world” to successfully navigate “35 Mile Point but
for the actions of DONAU.” Thus the district court held that:
in all probability, regardless of what had gone on up
until that the action of the DONAU coming upriver, the
upriver tanker, [Captain Couey] would have safely
navigated the Point despite the fact that the GINNY STONE
was right on the Point and despite the fact that NOBRA 56
[M/V GOTLAND SPIRIT] had come downriver at what the DIANE
OAK claims was too fast a speed and passed her too close
to the Point. That passing had occurred and it’s obvious
to me that the DIANE OAK at that point had plenty of room
to clear that Point.
In essence, then, the court found that even assuming arguendo that
both M/V GOTLAND SPIRIT and M/V GINNY STONE were in some respects
at fault, that fault would only be fault in the abstract to the
extent it was neither a contributory nor proximate cause of the
subsequent allision.
The second question for the district court was whether the
northbound M/V DONAU embarrassed the navigation of M/V DIANE OAK,
with its fault thereby being a contributory and proximate cause of
the subsequent allision with Dow’s wharf. In answering this
question, the district court examined the evidence supporting
Captain Couey’s claim that, as he was trying to navigate around 35
Mile Point, the northbound M/V DONAU passing starboard to starboard
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had initially moved to the west bank to allow her room to pass, but
then for some unexplained reason suddenly veered back directly at
the stern of DIANE OAK’s tow.
The district court explicitly rejected Couey’s testimony on
this score:
I just find not credible that testimony because it seems
to me that, first of all, if the DONAU and the DIANE OAK
had passed within 20 feet of each otherSSthat’s almost
“reach out and touch” distance between these two
vesselsSSthen there would have been a lot of . . .
excited utterances . . ., a lot of noise, a lot of
racket, or screaming over those VHF radios. There would
have been bells and whistles and emergency signals. You
would have expected there would be something I didn’t see
and I didn’t hear that makes me believe the passing was
not nearly that close.
The court thus concluded, “So I think the preponderance of the
credible evidence is that the passing, although perhaps closer than
would be an ideal situation, was certainly not 20 feet and was
probably more like somewhere between 125 and 150 feet away. . .
.[and] the actions of the DONAU/NOBRA 97 did not embarrass the
navigation of the DIANE OAK or her tow and was not a proximate
cause of the subsequent allision.” Having thus resolved the two
factual disputes, the court concluded that “the sole fault in the
allision was the negligence of the DIANE OAK.” M/V DIANE OAK
timely appeals.
II. ANALYSIS
“The standard of review for a bench trial is well established:
findings of fact are reviewed for clear error and legal issues are
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reviewed de novo.”3 Furthermore, this court reviews a district
court’s findings of fact regarding the respective fault, if any, of
each of the four vessels and whether they were contributory and
proximate causes of the allision for clear error.4
The M/V DIANE OAK challenges both the district court’s
findings of fact and conclusions of law on appeal. Specifically,
M/V DIANE OAK contends that the district court: (1) erroneously
applied the Oregon presumption of fault against her; (2)
erroneously relied on the “last clear chance” doctrine to excuse
negligence on the part of the other vessels; and (3) failed to
properly apply controlling principles of proximate causation and
comparative fault. We address each contention in turn.
A. The Oregon
M/V DIANE OAK’s first contention on appeal is that the
district court erroneously applied the presumption of fault
announced in The Oregon, 158 U.S. 186 (1895), against her and thus
in favor of the three other vessels.5 Applying this presumption of
3
Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601
(5th Cir. 2000).
4
See FED. R. CIV. P. 52(a); Avondale Indus. v. Int’l Marine
Carriers, Inc., 15 F.3d 489, 492 (5th Cir. 1994) (“In an admiralty
action tried by a court without a jury, the factual findings of the
District Court are binding unless clearly erroneous. Questions
concerning the existence of negligence and causation are treated as
factual issues subject to the clearly erroneous standard.”).
5
It is important to distinguish at the outset between the
presumption of fault announced in The Oregon and the presumption of
causation announced in The Pennsylvania; the latter case holding
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fault was error, she contends, because the Oregon rule should apply
only in favor of the damaged stationary object and therefore is
inapposite given the facts at hand: where liability is uncontested
as between the damaged stationary object and the alliding vessel
and the only question (beyond the extent of damages sustained by
the stationary object) is liability for the allision as between the
navigating vessels.
We conclude, however, that we need not decide the
applicability vel non of the Oregon rule in order to resolve this
appeal. “Evidentiary presumptions . . . are designed to fill a
factual vacuum. Once evidence is presented . . . presumptions
become superfluous because the parties have introduced evidence to
that a vessel in violation of a statutory rule designed to prevent
collisions bears the burden of showing “not merely that her fault
might not have been one of the causes, or that is probably was not,
but that it could not have been.” The Pennsylvania, 86 U.S. 125
(1874). Compare SCHOENBAUM, ADMIRALTY & MARITIME LAW , § 14-3, at 104-05
(classifying the rule of The Oregon as a “presumption of fault”
akin to the common law doctrine of res ipsa loquitor “primarily
applicable in allision cases,” which “creat[es] a rebuttable
presumption of negligence on the part of a party who is in
exclusive control of an instrumentality with regard to a mishap
that ordinarily does not occur in the absence of negligence”)
(emphasis added), with id. at § 14-3, at 101 (classifying the rule
of The Pennsylvania as not establishing a rule of fault but as
being “limited to causation”) (emphasis added), and DAVID W. ROBERTSON
ET AL, ADMIRALTY & MARITIME LAW IN THE UNITED STATES 384 (2d ed. 2001)
(describing the rule of The Pennsylvania as creating “a strong
presumption that the statutory violation was a cause in fact of the
accident,” and distinguishing this rule from the common-law concept
of negligence per se famously applied in Martin v. Herzog, 126 N.E.
814 (N.Y. 1920) (Cardozo, J.)).
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dispel the mysteries that gave rise to the presumptions.”6
In this case, the outcome-determinative questions in this
allision case concern: (1) breach of the duty of care on the part
of the four vessels, and (2) causation, with causation having sub-
elements of: (a) cause in fact and (b) proximate or legal cause.
And on all of these scores, the district court considered all of
the evidence presented at trial and made specific findings. So
even though the court may have framed its breach analysis through
the lens of the Oregon rule, the court nevertheless made findings
of duty, breach, and causation regarding M/V DIANE OAK and each of
the other three vessels independent of that presumption that
account for the result it reached. These findings, therefore,
properly cabined the scope of the Oregon rule, which speaks
explicitly only to a presumed breach on the part of the alliding
vessel,7 and is not a presumption regarding either the question of
causation (either cause in fact or legal cause) or the percentages
6
See Rodi Yachts, Inc., 984 F.2d at 887; see also GRIFFIN, THE
AMERICAN LAW OF COLLISION, § 25, at 43 (“Such ‘presumptions’ are, of
course, not rules of law or even of evidence. They merely express
inferences of fact, based on experience and probabilities, and
their only effect is to put upon the vessel subject to the
presumption the burden of going forward with evidence to show that,
in the particular case, the inference is unwarranted.”); id. (“The
exact scope and operation of these prima facie presumptions are to
cast upon the party against whom they operate, the duty of going
forward in argument or evidence, on the particular point to which
they relate.”).
7
The Oregon, 158 U.S. at 197-98.
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of fault assigned parties adjudged negligent.8
Because the district court did not erroneously apply the
Oregon presumption here, the only available basis for this appeal
becomes the propriety of the district court’s findings regarding
the respective fault of each of the four vessels and whether any or
all of that fault was a contributory and proximate cause of the
allision.9 Evaluating the propriety of the district court’s
findings requires this court to consider M/V DIANE OAK’s second
contention on appeal, viz., that the district court’s proximate
cause analysis with regard to the M/V GOTLAND SPIRIT and the M/V
GINNY STONE amounted to an application of the last clear chance
doctrine.
B. Last Clear Chance
M/V DIANE OAK contends that the district court erroneously
excused acknowledged negligent conduct on the part of each vessel
“by essentially invoking, [the] discredited last clear chance
doctrine,” in finding that:
[I]n all probability, regardless of what had gone on up
until that the action of the DONAU coming upriver, the
upriver tanker, [M/V DIANE OAK] would have safely
navigated the Point despite the fact that the GINNY STONE
was right on the Point and despite the fact that NOBRA 56
had come downriver at what the DIANE OAK claims was too
fast a speed and passed her too close to the Point. That
passing had occurred and it’s obvious to me that the
8
Id.; see also SCHOENBAUM, ADMIRALTY & MARITIME LAW , § 14-3, at 104-
05.
9
See FED. R. CIV. P. 52(a); Avondale Indus., 15 F.3d at 492.
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DIANE OAK at that point had plenty of room to clear that
Point.
While we agree with the M/V DIANE OAK that the last clear
chance doctrine is obsolete in light of admiralty’s comparative
fault regime, we do not share M/V DIANE OAK’s view of the rationale
employed by the district court in assessing liability for the
damage to Dow’s wharf. Specifically, we do not read the record of
the district court’s reasoning as indicating that the district
court found all of the vessels at fault in causing the accident or
that the court excused certain fault on the part of M/V GOTLAND
SPIRIT and M/V GINNY STONE because that fault was slight relative
to the fault the court attributed to M/V DIANE OAK. Instead, it
appears clear to us that the district court found that any
negligent conduct of these two vessels, assuming that either vessel
was negligent, was not a proximate cause of the subsequent
allision. Thus the district court applied a valid rule of legal
causation, not a rule of major or minor fault as the traditional
(and now discredited) last clear chance cases did.10
10
See Crawford v. Indian Towing Co., 240 F.2d 308 (5th Cir.
1957) (“Where, as here, an act is negligent, but is not the
proximate cause of the injury, it is merely a condition. As such
it is not the basis of liability.”); Am. River Trans. Co. v. Kavo
Kaliakra SS, 148 F.3d 446, 450 (5th Cir. 1998) (“To be sure, the
presence of the barges in this case was a but-for cause of the
allision . . . . But in admiralty, the ‘fault which produces
liability must be a contributory and proximate cause of the
collision, and not merely fault in the abstract.’”) (quoting Inter-
Cities Navig. Corp. v. United States, 608 F.2d 1079, 1081 (5th Cir.
1979)); see also In re Kinsman Transit Co., 338 F.2d 708 (1964) (2d
Cir. 1965) (distinguishing two lines of cases where courts employed
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In sum, we conclude that the district court’s findings that
neither the GOTLAND SPIRIT nor the GINNY STONE were at fault for
the subsequent allision is not the product of an application of the
discredited last clear chance doctrine. Rather, the district
court’s findings are the result of a valid proximate cause
analysis. Whether the district court’s proximate cause findings
are clearly erroneous based on the evidence in the record, is a
separate question. And, answering that question fortuitously
implicates the M/V DIANE OAK’s third and final contention on
appeal.
C. Proximate Cause
M/V DIANE OAK contends that the district court’s finding that
she was solely at fault for the allision is clearly erroneous.
Intertwined with this contention is DIANE OAK’s claim that the
district court failed to consider the various violations of the
Inland Rules committed by the other three vessels, and thus failed
to apply the presumption of cause in fact announced in The
Pennsylvania, 86 U.S. 125 (1873). After reviewing the record, we
the phrase “last clear chance” and finding that sometimes it was
not “clear that the fault of the exonerated vessel was a ‘cause’ in
the sense that the accident was within the risk that made her
action negligent,”); Etta M. Davidson, Last Clear Chance in
Admiralty: A Divided Doctrine, 66 TEX. L. REV. 133, 157 (1987)
(noting that while the last clear chance doctrine has been used as
an escape valve from the divided damages rule it has also
historically “embodied a rule of legal causation: liability does
not attach to a ship in an improper position when that position was
not the legal cause of the collision.”).
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disagree.
In her brief, M/V DIANE OAK argues various violations of the
Inland Rules committed by each of the other three vessels, and then
charges error to the district court’s failure to apply the
Pennsylvania rule, by which a vessel in derogation of a statutory
rule bears the burden of demonstrating that its fault could not
have been the cause in fact of the casualty. “The Pennsylvania
established a sometimes awesome rule of causation in maritime
collision upon the showing of any statutory violation.”11 But
“methods of rebutting the rule are not few or tightly
circumscribed.”12 Indeed, this Circuit has long adhered to the view
that:
The Pennsylvania did not intend to establish a hard and
fast rule that every vessel guilty of a statutory fault
has the burden of establishing that its fault could not
by any stretch of the imagination have had any causal
relation to the collision, no matter how speculative,
improbable, or remote.13
“As this Circuit’s progeny of The Pennsylvania reveals, fault which
produces liability must be a contributory and proximate cause of
the collision, and not merely fault in the abstract.”14
11
Bd. of Commr’s of Port of New Orleans v. M/V FARMSUM, 574 F.2d
289, 297 (5th Cir. 1978).
12
Id.
13
Compania De Maderas De Caibarien v. The Queenston Heights, 220
F.2d 120, 122-23 (5th Cir. 1955).
14
M/V Farmsum, 574 F.2d at 297; see also G. GILMORE & C. BLACK, THE
LAW OFADMIRALTY, at 494 (2d ed. 1975).
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Applying this precedent to this case, we conclude that the
district court correctly recognized that fault in the abstract does
not give rise to liability.15 Instead, the fault must be a
contributory and proximate cause of the damages sustained.16
Consequently, the fulcrum upon which this last issue on appeal
turns is whether the district court’s findings resulting from its
causation analysis were clearly erroneous.17
“A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court is left with a definite
and firm conviction that a mistake has been committed.”18 Here,
district court answered the question of whether any neglect or
fault of the M/V GINNY STONE or M/V GOTLAND SPIRIT was a proximate
cause of the allision with the Dow wharf in the negative. In so
doing, the district court relied on Captain Couey’s own testimony
15
Moreover, the presumption is ultimately irrelevant insofar as
DIANE OAK herself violated various Inland Rules, most notably by
her failure to direct the manner and means of passing pursuant to
Rule 9 and 14(a), and thus the presumption would apply in both
directions, essentially cancelling out any impact. Cf. Rodi
Yachts, 984 F.2d at 887 (“The method of decision by presumptions
could not work in this case, where each party is armed with a
presumption . . . .”); id. (commenting that “[w]here presumptions
clash, they disappear”).
16
M/V FARMSUM, 574 F.2d at 297.
17
See Avondale Indus., 15 F.3d at 492 (“In an admiralty action
tried by a court without a jury, the factual findings of the
District Court are binding unless clearly erroneous. Questions
concerning the existence of negligence and causation are treated as
factual issues subject to the clearly erroneous standard.”).
18
Walker v. Braus, 995 F.2d 77, 80 (5th Cir. 1993).
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that but for M/V DONAU’s embarrassing the M/V DIANE OAK’s
navigation, he would have safely navigated 35 Mile Point.
Furthermore, we observe that Captain Couey’s accident report
prepared immediately after the incident failed to mention the M/V
GOTLAND SPIRIT or any southbound river traffic at all. Thus, based
on the record, we are not convinced that the district court made a
mistake when it concluded that the allison between the M/V DIANE
OAK and the Dow wharf was not proximately caused by the actions of
the M/V GINNY STONE and the M/V GOTLAND SPIRIT.
Similarly, based on the evidence in the record, we do not
conclude the district court was mistaken when it concluded that the
M/V DONAU’s actions did not embarrass M/V DIANE OAK’s navigation in
order for those actions to be a proximate cause of the allision.
This conclusion rested almost entirely on the district court’s
credibility determination on the specific issue of how close the
ships were during their starboard to starboard passing. The
district court explicitly found incredible Captain Couey’s
testimony that M/V DONAU veered at the M/V DIANE OAK’s tow within
as close as 20 feet; instead, the district court credited the
testimony of the M/V DONAU’s pilot and his shipmate, the gist of
which was that the passing was not within 20 feet but instead
closer to 150 feet. The district court also found Captain Couey’s
claim that the M/V DONAU embarrassed his navigation incredible
because Captain Couey did not complain about that navigation, i.e.,
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by sounding an alarm or otherwise expressing his displeasure, until
after the allision.
Credibility determinations are the province of the trier of
fact, which in this case is the district court.19 Moreover, our
review of that credibility determination and the concomitant
proximate causation finding is for clear error, not just mere
error.20 Thus, even though a different fact finder may have reached
a different conclusion regarding M/V DIANE OAK’s claim that the M/V
DONAU embarrassed her navigation, we can only reverse if we have a
“definite and firm conviction that a mistake has been made.”21 In
this case, we are neither firmly nor definitely convinced that a
mistake has been made with respect to the district court’s
determination that the M/V DONAU did not proximately cause M/V
DIANE OAK’s allision with Dow’s wharf. Accordingly, the district
court’s final judgment is AFFIRMED.
19
See Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 378 (5th
Cir. 2000); Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1154
(5th Cir. 1990).
20
See, e.g., Reich v. Lancaster, 55 F.3d 1034, 1045 (5th Cir.
1995) (citing Anderson v. City of Bessemer, 470 U.S. 564, 573-74,
(1985)); In re Placid Oil Co., 158 Bankr. 404, 412 (N.D. Tex. 1993)
(“This court does not find facts. Neither is it free to view the
evidence differently as a matter of choice.”); E.E.O.C. v. Clear
Lake Dodge, 25 F.3d 265, 270 (5th Cir. 1994) (“We are not permitted
to re-weigh the evidence on appeal simply because we disagree with
the choices made by the district court.”).
21
Braus, 995 F.2d at 80.
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