PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
EVERGREEN INTERNATIONAL, S.A.,
Plaintiff-Appellant,
v.
NORFOLK DREDGING COMPANY,
Defendant-Appellee, No. 07-1879
and
MARINEX CONSTRUCTION COMPANY,
Defendant.
EVERGREEN INTERNATIONAL, S.A.,
Plaintiff-Appellee,
v.
NORFOLK DREDGING COMPANY,
Defendant-Appellant, No. 07-1944
and
MARINEX CONSTRUCTION COMPANY,
Defendant.
Appeals from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(2:04-cv-22351-PMD)
Argued: May 14, 2008
Decided: June 25, 2008
Before MOTZ, Circuit Judge, HAMILTON, Senior Circuit Judge,
and Claude M. HILTON, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
2 EVERGREEN INT’L v. NORFOLK DREDGING CO.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Motz and Senior Judge Hilton joined.
COUNSEL
ARGUED: David Michael Collins, BUIST, MOORE, SMYTHE,
MCGEE, PA, Charleston, South Carolina, for Appellant/Cross-
appellee. David Harlen Sump, CRENSHAW, WARE & MARTIN,
PLC, Norfolk, Virginia, for Appellee/Cross-appellant. ON BRIEF:
Gordon D. Schreck, Julius H. Hines, BUIST, MOORE, SMYTHE,
MCGEE, PA, Charleston, South Carolina, for Appellant/Cross-
appellee.
OPINION
HAMILTON, Senior Circuit Judge:
This is a case within the district court’s admiralty jurisdiction. The
appeal comes to us after a six-day bench trial on cross-claims of neg-
ligence under general maritime law. The cross claims stem from an
allision1 between a container ship, the M/V Ever Reach, and a sub-
merged dredge spoil pipeline located outside the federally marked
navigational channel of the Cooper River in Charleston, South Caro-
lina.
On appeal, Plaintiff Evergreen International, S.A. (Evergreen),
owner of the M/V Ever Reach, challenges as inadequate the district
court’s final judgment in its favor ordering defendant Norfolk Dredg-
ing Company (Norfolk), the owner and operator of the dredge spoil
pipeline involved in the allision, to pay it $898,975.42, plus prejudg-
ment interest from March 31, 2003. Evergreen asks that we reject cer-
tain findings of the district court as clearly erroneous, vacate the final
judgment, and remand to the district court with instructions to reas-
1
"An allision is a collision between a moving vessel and a stationary
object." Thomas J. Schoenbaum, Admiralty & Maritime Law § 5-2 n.1
(4th ed. 2004).
EVERGREEN INT’L v. NORFOLK DREDGING CO. 3
sess the parties’ respective fault under a burden-shifting proof scheme
more favorable to itself and to raise Norfolk’s damages cap under the
Oil Pollution Act of 1990 (the OPA), 33 U.S.C. §§ 2701-2761.
On cross-appeal, Norfolk challenges as clearly erroneous the dis-
trict court’s finding that it was ten-percent at fault for the allision.
According to Norfolk, it bears absolutely no fault for the allision, and
therefore seeks reversal of the judgment in toto. Norfolk also takes
issue with the district court’s calculation of its damages cap under the
OPA. In the event we uphold the district court’s finding that it was
ten-percent at fault, Norfolk asks that we vacate the judgment and
remand with instructions for the district court to lower its damages
cap under the OPA to comply with its view of the statutory require-
ments of the OPA.
For the reasons that follow, we affirm in toto.
I.
On February 14, 2002, the United States Army Corps of Engineers
(the Corps) awarded a contract (the Contract) to Marinex Construc-
tion Company (Marinex), for "new work and maintenance dredging"
in the Cooper River between the stretch of the river charted as Ship-
yard Creek and the turning basin above the North Charleston Con-
tainer Terminal ("the Dredging Project"). (J.A. 1267) (internal
quotation marks omitted). Two adjacent sections of this stretch of the
Cooper River, charted as Daniel Island Bend and Clouter Creek
Reach, are relevant to the issues on appeal. Also relevant to the issues
on appeal, the Contract required the work to be conducted "in such
a manner as to obstruct navigation as little as possible" and in compli-
ance with the Corps’ Safety and Health Requirements Manual EM-
385-1-1 (the Corps’ Manual). (J.A. 1379). Notably, the Contract and
the Corps’ Manual both provided that the "[s]ubmerged pipeline shall
rest on the channel bottom where a pipeline crosses a navigation
channel and while submerged;" and "the top of the pipeline . . . shall
be no higher than the required project depth for the navigation chan-
nel in which the pipe is placed." (J.A. 1381).
Marinex hired Norfolk as a subcontractor on the Dredging Project.
The written subcontract between Marinex and Norfolk (the Subcon-
4 EVERGREEN INT’L v. NORFOLK DREDGING CO.
tract) required Norfolk to "perform all work in accordance with U.S.
Army Corps of Engineers Plans and Specifications." (J.A. 1267)
(internal quotation marks omitted).
Norfolk owns and operates various types of dredging equipment,
including a hydraulic dredge named the Charleston (the Dredge
Charleston), which is 250 feet long and fifty feet wide. The Dredge
Charleston operated by swinging a rotating cutter-head along the river
bottom through the use of swing anchors positioned several hundred
feet to either side of the Dredge Charleston. The dredge spoil created
by operation of the Dredge Charleston would then be pumped by the
Dredge Charleston to a designated disposal area through a series of
floating and submerged pipelines.
On September 19, 2002, upon Norfolk’s completion of dredging
the Daniel Island Bend and Clouter Creek Reach to approximately
two feet below the depth required by the Subcontract, Norfolk laid a
submerged dredge spoil pipeline across the dredged bottom of the
federally marked navigational channel of the Cooper River, beginning
in the vicinity of Navy Pier "U". Navy Pier "U" lies approximately
where the Daniel Island Bend transitions to Clouter Creek Reach on
the western edge of the west side of the Cooper River, which side in
admiralty parlance is referred to as the green side.2 Each of the sub-
merged dredge spoil pipeline sections consisted of a 120-foot length
of 24-inch diameter steel pipe with mating ball and socket joints
welded on each end. The submerged dredge spoil pipeline emerged
from the red side of the federally marked navigational channel in the
vicinity of the transition between the dredged channel and the
undredged channel, followed the channel slope up to the river flats
and connected to the supply line at a location known as "cable tight."3
Notably, the channel slope was outside the red side of the federally
marked navigational channel. Every morning, Norfolk issued daily
position reports indicating the area in which the Dredge Charleston
and its attendant equipment were operating.
2
The east side of the Cooper River is known in admiralty parlance as
the red side.
3
Neither a statute or regulation, nor a Contract or Subcontract provi-
sion required the marking of a properly laid submerged dredge spoil
pipeline.
EVERGREEN INT’L v. NORFOLK DREDGING CO. 5
During the period from September 19, 2002 to September 30,
2002, Norfolk’s submerged dredge spoil pipeline operated without
incident across the federally marked navigational channel and up the
channel slope outside the red side of the federally marked naviga-
tional channel in the Daniel Island Bend. Indeed, at least twenty-three
vessels, with drafts at or deeper than the thirty-six foot, eleven inch
draft of the M/V Ever Reach, navigated over this submerged dredge
spoil pipeline without incident.
On the morning of September 30, 2002, the Dredge Charleston
conducted dredging operations in the green side of the Daniel Island
Bend. An attached anchor to the Dredge Charleston was deployed at
approximately two-thirds of the distance across the red side of the
federally marked navigational channel in the Daniel Island Bend.
Attached to the anchor was an anchor buoy lit by a flashing yellow
light, and attached to the anchor buoy was a small crane barge named
the Didapper. The Didapper measured approximately twenty-five feet
by forty-five feet and had a flashing yellow light attached to it as well.
At approximately 3:00 a.m. on September 30, 2002, the M/V Ever
Reach, which is 965 feet long and 106 feet wide, approached the
entrance to Charleston Harbor bound for the North Terminal in North
Charleston. Forty-five minutes later, Charleston Branch Pilot Stephen
Swan, Jr. (Pilot Swan) boarded the M/V Ever Reach to assist its crew,
headed by Captain Liu, in making the transit up the Cooper River to
the North Terminal. An assist tug also tethered to the M/V Ever
Reach at its stern.
At approximately 4:00 a.m., Pilot Swan contacted the Dredge
Charleston to determine its current location and set-up. Dredge
Charleston Leverman Jan Hewitt (Leverman Hewitt) responded that
the Dredge Charleston had moved up river some since the previous
day, and that there was a "swinging anchor across the ranges into the
red side. It’s pretty well out there, out of the way." (J.A. 1272) (inter-
nal quotation marks omitted). At trial, Leverman "Hewitt testified that
‘across the ranges’ meant on the opposite side of the channel center-
line, i.e., in the ‘red’ side of the federal channel." Id. In response to
Pilot Swan’s query as to whether he should proceed between the
Dredge Charleston and the marker buoy for the swinging anchor,
Leverman Hewitt answered in the affirmative. Leverman Hewitt then
6 EVERGREEN INT’L v. NORFOLK DREDGING CO.
requested that Pilot Swan give him fifteen minutes notice in order that
he could "move the stern over and give [Pilot Swan] a wide hole."
(J.A. 1273) (internal quotation marks omitted). Pilot Swan responded
that his vessel was "fairly deep and pretty large," and that "all the
room you can give us we would sure appreciate." Id. (internal quota-
tion marks omitted).
Shortly after 5:00 a.m., Pilot Swan again contacted the Dredge
Charleston and stated that he would reach it in about twenty-five min-
utes. Leverman Hewitt answered that he would "get the stern over."
Id. (internal quotation marks omitted). At about 5:20 a.m., Leverman
Hewitt reported that he had "moved out of the way" and would see
the M/V Ever Reach "on one whistle." Id. (internal quotation marks
omitted).
Based upon Leverman Hewitt’s descriptions, Pilot Swan expected
the Didapper to be well out of the way on the red side. However, once
the M/V Ever Reach got within one-half mile of the Dredge Charles-
ton and its attendant equipment, Pilot Swan could see that the Didap-
per was located closer to the middle of the red side of the federally
marked navigational channel than he had expected based upon Lever-
man Hewitt’s descriptions. Pilot Swan estimated that the actual dis-
tance between the Dredge Charleston and the Didapper at the time of
the allision was approximately 375 feet.
Despite his surprise as to the position of the Didapper and his pref-
erence for a wider hole to navigate, Pilot Swan never requested that
the Didapper be moved. Instead, he continued up river, delaying his
turn to port into the straight away for Clouter Creek Reach until both
the M/V Ever Reach and the assist tug had cleared the Didapper. This
left the M/V Ever Reach further over to the red side of the channel
to make the turn than normally would have been the case. Unbe-
knownst to those aboard the M/V Ever Reach at the time, in the
course of turning into Clouter Creek Reach, the M/V Ever Reach had
strayed fifty feet outside the right edge of the red side of the federally
marked navigational channel, grounding on the soft promontory in
approximately twenty-seven feet of water and alliding with Norfolk’s
EVERGREEN INT’L v. NORFOLK DREDGING CO. 7
submerged dredge spoil pipeline which rested on such promontory
and ran up the channel bank.4
The allision caused significant damage to the underwater hull of
the M/V Ever Reach, including a breach of the No. 4 Starboard fuel
tank, which breach resulted in the spilling of several thousand gallons
of oil into the Cooper River. The allision also caused damage to Nor-
folk’s submerged dredge spoil pipeline. Evergreen has incurred
expenses to repair the M/V Ever Reach’s hull, to remove oil from the
Cooper River, to resolve the claims of various third parties whose
vessels or property were affected by the oil spill, and to assess dam-
ages to the environment.
On September 24, 2004, Evergreen invoked the district court’s
admiralty jurisdiction, 28 U.S.C. § 1333(1), by filing a general mari-
time law negligence cause of action against Norfolk,5 alleging that:
(1) Norfolk acted negligently in its placement of the Dredge Charles-
ton, the attendant equipment, and the submerged dredge spoil pipeline
in the navigable waters of the United States; (2) Norfolk acted negli-
gently in marking the Dredge Charleston, the attendant equipment,
and the submerged dredge spoil pipeline located in the navigable
waters of the United States; and (3) Norfolk acted negligently in
describing to Pilot Swan the location of its dredging equipment in the
navigable waters of the United States, in particular, in describing the
location of the Didapper. Evergreen alleged that such negligence
proximately caused the allision between the M/V Ever Reach and the
submerged dredge spoil pipeline. Evergreen sought to recover for the
hull repair expenses, oil spill clean up costs, third-party settlement
expenditures, and other losses it incurred in connection with the alli-
sion.
4
Of relevance in this appeal, the district court made a factual finding
that 375 feet constituted sufficient space in the federally marked naviga-
tional channel for the M/V Ever Reach to make a safe turn to port into
Clouter Creek Reach if approached properly.
5
Evergreen also named Marinex as a defendant. The district court dis-
missed Evergreen’s claims against Marinex on the ground that Norfolk
was acting as an independent contractor over whom Marinex exercised
no direct supervision or control. Evergreen has not appealed such dis-
missal
8 EVERGREEN INT’L v. NORFOLK DREDGING CO.
Norfolk, in turn, claimed that the negligence of the M/V Ever
Reach’s captain and Pilot Swan proximately caused the allision.
Accordingly, Norfolk argued that Evergreen is liable for the full
amount of its own damages, and also asserted a negligence counter-
claim against Evergreen under general maritime law to recover for the
damage done to its submerged dredge spoil pipeline.
Following a six-day bench trial, the district court found that Ever-
green was ninety-percent at fault for the allision by the M/V Ever
Reach’s crew not using all available means to determine the location
of the Didapper and not changing course sooner. The district court
found that Norfolk was ten-percent at fault by Leverman Hewitt’s
failure to accurately describe the location of its dredging equipment
to Pilot Swan. Based upon this apportionment of fault, the district
court ordered Norfolk to pay Evergreen $898,975.42 in damages, plus
prejudgment interest.
Evergreen noted a timely appeal, and Norfolk noted a timely cross-
appeal.
II.
Findings of fact following a bench trial in an admiralty case are
reviewed under the clearly erroneous standard of review, construing
the evidence in the light most favorable to the appellee. Ente Nazion-
ale Per L’Energia Electtrica v. Baliwag Navigation, Inc., 774 F.2d
648, 654 (4th Cir. 1985). "A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the
entire evidence is left with a definite and firm conviction that a mis-
take has been committed." United States v. United States Gypsum
Co., 333 U.S. 364, 395 (1948).
Notably, questions of negligence in admiralty cases, for example
causation and apportionment of fault are treated as factual issues, and
therefore, are subject to the clearly erroneous standard of review. U.S.
Fire Ins. Co. v. Allied Towing Corp., 966 F.2d 820, 823 (4th Cir.
1992); Ente Nazionale, 774 F.2d at 654. Moreover, when a district
court’s factual finding in a bench trial is based upon assessments of
witness credibility, such finding "is deserving of the highest degree
of appellate deference." United States Fire Ins. Co., 966 F.2d at 824.
EVERGREEN INT’L v. NORFOLK DREDGING CO. 9
III.
The negligence cause of action claimed by Evergreen and the neg-
ligence cause of action cross claimed by Norfolk both arise under the
general maritime law of the United States, which is the substantive
law applicable in this case. Yamaha Motor Corp., U.S.A. v. Calhoun,
516 U.S. 199, 206 (1996); Leathers v. Blessing, 105 U.S. 626, 627
(1881). Under maritime tort law, liability for collisions as well as alli-
sions is apportioned based upon comparative fault. Fischer v. S/Y
Neraida, 508 F.3d 586, 593 (11th Cir. 2007); Folkstone Maritime,
Ltd. v. CSX Corp., 64 F.3d 1037, 1046 (7th Cir. 1995); Hellenic
Lines, Ltd. v. Prudential Lines, Inc., 730 F.2d 159, 162-65 (4th Cir.
1984). "The elements of a maritime negligence cause of action are
essentially the same as land-based negligence under the common law,
free of ‘inappropriate common law concepts.’" Thomas J. Schoen-
baum, Admiralty & Maritime Law § 5-2 (4th ed. 2004) (quoting Ker-
marec v. Compagnie Generale Transatlantique, 358 U.S. 625, 630
(1959)).
Evergreen first challenges as clearly erroneous the district court’s
finding that Norfolk had properly placed and marked its submerged
dredge spoil pipeline involved in the allision. Evergreen argues that
such finding is clearly erroneous because, by failing to lay the pipe-
line completely within a recently dredged area, Norfolk failed to com-
ply with Paragraph 1.5.7 of the Contract (made applicable to Norfolk
via the Subcontract), which required it "to conduct the work in such
a manner as to obstruct navigation as little as possible." (J.A. 1379).
Relying primarily upon Marine Contracting & Towing Co. v.
McMeekin Constr. Co., 302 F. Supp. 804 (D.S.C. 1969), Evergreen
contends that the "navigation" to which this quote refers includes the
full width of the Cooper River, not just the federally marked naviga-
tional channel. Accordingly, Evergreen contends the district court
also clearly erred in finding that Pilot Swan acted negligently in stray-
ing approximately fifty-feet outside the federally marked navigational
channel in piloting the M/V Ever Reach through the Daniel Island
Bend. Under these circumstances, Evergreen argues, Norfolk is one-
hundred-percent at-fault for the allision despite the fact that the alli-
sion occurred outside the federally marked navigational channel.
Evergreen’s argument on this issue is without merit. First, our cir-
cuit precedent has long held that "a dredge lawfully engaged in dig-
10 EVERGREEN INT’L v. NORFOLK DREDGING CO.
ging will be regarded as free from fault [in an allision] if there is
ample free water for passage." The Freeport, 99 F.2d 842, 843 (4th
Cir. 1938). Here, the district court found that the M/V Ever Reach had
ample free water, i.e., 375 feet, in the federally marked navigational
channel, free from obstruction by any equipment of Norfolk, to make
a safe turn to port out of the Daniel Island Bend and proceed up river
without incident, and Evergreen has not shown that this finding is
clearly erroneous.
Second, Evergreen’s reliance upon Marine Contracting & Towing
Co. is misplaced, because it is factually distinguishable in critical
respects. The defendant in Marine Contracting & Towing Co. was a
contractor retained to demolish a railroad bridge over the Ashley
River in Charleston, South Carolina. Id. at 805. "The Defendant had
removed all visible evidences of the trestle save for the clearly
observable dolphin located near the previous pivot pier." Id. at 808.
However, unbeknownst to those navigating the Ashley River, the
defendant contractor had only demolished Pier 5 to a point eleven feet
below the surface. Id. The plaintiff’s barge, which had a draw of
twelve feet, subsequently allided with the submerged remainder of
Pier 5. Id. at 807. In an action for negligence under general maritime
law against the defendant contractor, the plaintiff alleged the defen-
dant contractor’s failure to mark the submerged remainder of Pier 5
proximately caused the allision.
"The [d]efendant [contractor sought to] excuse its failure to provide
suitable warning buoys by observing that it had demolished [P]ier 5
to a point 11 feet below the surface and that such depth was sufficient
for safe passage by the small craft which, under its contention, were
the only vessels that should have been expected in the area." Id. at
809. In rejecting the defendant contractor’s argument, the district
court held that the defendant contractor could not find excuse for its
culpable failure to mark properly the submerged remainder of Pier 5,
because it improperly and without reason assumed that craft with a
depth of more than eleven feet would not use what the U.S. Coast and
Geodetic Chart in effect at the relevant time showed was a safe pas-
sage for vessels twice such depth. Id. The district court also held that
the pilot of the tug boat pulling the barge was not negligent in follow-
ing the courses he did, because "[t]he tug and barge were not limited
to the dredged channel; they were entitled to the full reach of the nav-
EVERGREEN INT’L v. NORFOLK DREDGING CO. 11
igable stream, as it was delineated as safe for boats of the depth of
the tug and barge on the [U.S. Coast and] Geodetic Chart [in effect
at the time of the allision]." Id. at 810 (internal quotation marks omit-
ted).
Here, there is no evidence in the record that the location of the M/V
Ever Reach’s allision with Norfolk’s submerged dredge spoil pipeline
in twenty-seven feet of water was delineated as safe for vessels such
as the M/V Ever Reach with a draft of thirty-six feet, eleven inches
on any relevant geodetic chart of the Cooper River. Accordingly,
Marine Contracting & Towing Co. provides no basis for us to over-
turn as clearly erroneous the district court’s findings of comparative
fault in this case.
IV.
Next, Evergreen argues that the district court erroneously failed to
afford it the benefit of the Pennsylvania Rule when the district court
made its comparative fault findings. According to the Pennsylvania
Rule as first stated, when:
a ship at the time of a collision is in actual violation of a
statutory rule intended to prevent collisions, . . . the burden
rests upon the ship of showing not merely that her fault
might not have been one of the causes, or that it probably
was not, but that it could not have been.
The Pennsylvania, 86 U.S. 125, 136 (1873). There is no dispute that
the Pennsylvania Rule equally applies to allisions such as occurred in
this case. Moreover, although the rule speaks of a statutory violation,
it is equally applicable to violations of federal regulations. Belden v.
Chase, 150 U.S. 674, 698 (1893). Notably, the Pennsylvania Rule
does not establish fault; rather, it shifts the burden of proof on the ele-
ment of causation to the party who violated the statutory rule or regu-
lation at issue to prove that such violation could not reasonably be
held to have been the cause of the collision or allision. U.S. Fire Ins.
Co., 966 F.2d at 824-25.
Here, Evergreen contends that it is entitled to application of the
12 EVERGREEN INT’L v. NORFOLK DREDGING CO.
Pennsylvania Rule because it has established that Norfolk committed
two clear violations of the Contract (made applicable to Norfolk via
the Subcontract), one of which also constitutes a violation of the
Corps’ Safety Manual.6 In this regard, Evergreen first contends that
Norfolk violated the provision of the Contract, which also appears in
the Corps’ Safety Manual, requiring any submerged pipeline crossing
a navigational channel to rest on the channel bottom. In support of
this contention, Evergreen points to expert testimony that as Norfolk’s
pipeline crossed the federally marked navigational channel of the
Cooper River, it did not lay completely flat on the bottom. Second,
Evergreen reiterates its contention that Norfolk failed to comply with
the Contract requirement "to conduct the work in such a manner as
to obstruct navigation as little as possible." (J.A. 1379). Evergreen
attempts to cloak the contractual provisions upon which it relies with
the imprimatur of a federal regulation by pointing out that federal
contracting regulations require dredging contracts such as the one
involved here to include an accident prevention clause requiring com-
pliance with the Corps’ Safety Manual. See 48 C.F.R. § 36.513 (pro-
viding that a contracting officer shall include accident prevention
clause requiring compliance with Corps’ Safety Manual in contract
when a fixed price construction contract or a fixed-price dismantling,
demolition, or removal of improvements contract is expected to
exceed the simplified acquisition threshold).
Evergreen’s argument on appeal with respect to the Pennsylvania
Rule is without merit. At a minimum, violations of the contractual
provisions relied upon by Evergreen to invoke the Pennsylvania Rule
are inoperative to invoke such rule because neither contractual provi-
sion is a statute or federal regulation. Moreover, Evergreen cites no
authority for its proposed extension of the Pennsylvania Rule to a
showing of noncompliance with a provision of the Corps’ Safety
Manual. The provisions of such manual are not federal regulations.
Moreover, their inclusion in a government contract with a dredging
contractor only makes them contractual terms, not regulations. In
6
The district court found that Norfolk complied with the two contract
provisions upon which Evergreen relies to invoke the Pennsylvania Rule,
and thus did not apply the Pennsylvania Rule in apportioning fault for the
allision.
EVERGREEN INT’L v. NORFOLK DREDGING CO. 13
sum, the district court did not err in failing to afford Evergreen the
benefit of the Pennsylvania Rule.
V.
Finally, Evergreen contends the district court erred in concluding
that Norfolk was entitled to limit its liability to Evergreen for dam-
ages under the Oil Pollution Act of 1990 (the OPA), 33 U.S.C.
§ 2704(a)(2). Evergreen’s contention is without merit.
The OPA provides, inter alia, for limitation, i.e., a cap, of a party’s
liability for damages for an oil spill in the navigable waters of the
United States calculated upon the net tonnage of the vessel or vessels
responsible for the spill. Id. However, a party’s ability to benefit from
a damages cap under the OPA is forfeited if an oil spill is "proxi-
mately caused by . . . the violation of an applicable Federal safety,
construction, or operating regulation . . . ." Id. § 2704(c)(1)(B).
Evergreen argues that if we conclude on appeal that it had proven
Norfolk violated a federal regulation such that it could invoke the
Pennsylvania Rule, then we must also conclude that Norfolk is not
entitled to benefit from a damages cap under the OPA. Because Ever-
green failed to prove that Norfolk violated a federal regulation such
that it could invoke the Pennsylvania Rule, see Part IV, supra, a forti-
ori it cannot prevail upon its argument that Norfolk is not entitled to
a damages cap under the OPA.
VI.
On cross-appeal, Norfolk contends the district court erred by find-
ing it ten-percent at fault for the allision. The district court found Nor-
folk ten-percent at fault based upon its finding that Leverman Hewitt
acted negligently in telling Pilot Swan: (1) that there was a "wide
hole" between the dredging equipment; and (2) that the Didapper was
"well over" on the red side of the channel. (J.A. 1298) (internal quota-
tion marks omitted).
Norfolk makes two alternative arguments in support. First, Norfolk
argues that Leverman Hewitt did not act negligently in describing the
14 EVERGREEN INT’L v. NORFOLK DREDGING CO.
locations of its dredging equipment, because his descriptions were
accurate within his experience and such descriptions did not relieve
Pilot Swan of his primary navigational duty to further inquire about
the exact location of the Didapper if he had any concern as to its loca-
tion. Alternatively, Norfolk argues that, assuming arguendo Lever-
man Hewitt failed to properly inform Pilot Swan of the location of the
Didapper, the negligence of Pilot Swan was a superseding cause of
the allision.
Each of Norfolk’s arguments on this issue is without merit. Below,
the district court found that the allision was caused by Pilot Swan’s
misapprehension of the location of Norfolk’s vessels and equipment,
particularly the Didapper. The district court attributed this mistake
both to Norfolk’s failure to provide an accurate description of the
location of its vessels and equipment and to Pilot Swan’s failure to
use all means at his disposal to assess the risk. The district court allo-
cated the major share of fault to Pilot Swan because he did not request
more specific information from Leverman Hewitt and did not use his
radar to determine the position of the equipment before it was visible.
The district court also found that Norfolk had a duty to accurately
convey the layout of its vessels and equipment; that Pilot Swan had
a right to rely on this information; and that the actual description pro-
vided by Leverman Hewitt, on behalf of Norfolk, was misleading.
Significantly, the district court also found that "Evergreen did take
reasonable and timely action to avoid collision once the location of
the equipment was known." (J.A. 1294 n.7) (emphasis added). As
Evergreen correctly observes, Norfolk essentially asks this court to
undo the district court’s factual analysis of the comparative fault
issues in its entirety.
There is simply no basis for us to conclude the district court’s find-
ings as just set forth are clearly erroneous. Moreover, with respect to
the doctrine of superseding cause, the doctrine is inapplicable because
it only applies when "the injury was actually brought about by a later
cause of independent origin that was not foreseeable." Exxon Co.,
U.S.A. v. Sofec, Inc., 517 U.S. 830, 837 (1996) (internal quotation
marks omitted). Here, while the district court assigned a share of neg-
ligence to Pilot Swan, such negligence joined with, rather than super-
seded, Leverman Hewitt’s negligence. As the district court found in
a finding unchallenged on appeal, "Pilot Swan used all reasonably
EVERGREEN INT’L v. NORFOLK DREDGING CO. 15
appropriate means at his disposal to avoid collision with the DIDAP-
PER and make the turn safely once the collision risk was obvious."
(J.A. 1294 n.7).
In sum, there is no basis for us to overturn the district court’s find-
ing that Norfolk was ten-percent at fault for the allision.
VII.
Lastly, in its cross-appeal, Norfolk argues that the district court
erred by calculating its damages cap under the OPA based in part on
the weight of the Didapper and the submerged dredge spoil pipeline.
According to Norfolk, the calculation should have been made solely
on the tonnage of the Dredge Charleston. Notably, however, Norfolk
acknowledges that if we uphold the district court’s finding that it was
ten-percent at fault for the allision, its challenge to the district court’s
calculation of its damages cap under the OPA is moot, because the
amount of damages for which the district court actually held it
responsible is within a damages cap under the OPA based solely upon
the tonnage of the Dredge Charleston. Indeed, because there is no
basis for us to overturn the district court’s finding that Norfolk was
ten-percent at fault for the allision, see Part VI, supra, Norfolk’s argu-
ment alleging the miscalculation of its damages cap under the OPA
is moot.
VIII.
For the reasons stated, we affirm the district court’s judgment in
toto.
AFFIRMED