IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-20080
Summary Calendar
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BASALTO SHIPPING COMPANY, S.A.,
Plaintiff-Appellee,
versus
HTCO-3011, ET AL.,
Defendants,
M/V VIKING STAR and
STARGAS S.P.A.,
Defendants-Appellants.
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Appeal from the United States District Court for
the Southern District of Texas
(H-96-CV-836)
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October 21, 1997
Before REAVLEY, JOLLY and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
This litigation arises out of an allision that occurred in
the Houston Ship Channel between the Marrero, a tug owned and
operated by Higman Barge Lines with a long tow of two barges
*
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this opinion should not be published and is not precedent except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.
(HTCO-3011 and HTCO-3012), and the Mare Queen, a moored tanker
owned and operated by Basalto. The district court found the M/V
Viking Star, the vessel that bore down on the Marrero as it
negotiated its turn into the Exxon Baytown terminal, 80% liable
for damages proximately caused to the Mare Queen. The district
court concluded that the Viking Star caused the Marrero to allide
with the Mare Queen because the Viking Star exceeded a safe
speed, failed to reduce her speed in violation of the Inland
Rules,2 and crowded the Marrero in violation of its agreement
with the Marrero to hold back.
At the time of the casualty Stargas SPA owned and operated
the Viking Star. Stargas, which seeks exoneration from or
limitation of liability, asserts that the district court erred in
its factual and legal determinations in apportioning liability
between the Viking Star and the Marrero. Applying the “clearly
erroneous” test to the trial court’s factual findings, we affirm.
Stargas makes three arguments for reversal of the judgment
below: (1) the district court disregarded the “multiple contrary
contemporaneous” statements Marrero Captain Pretince Lee Spinks
2
33 U.S.C. § 2008(e)(“If necessary to avoid collision or allow
more time to assess the situation, a vessel shall slacken her speed
or take all way off by stopping or reversing her means of
propulsion.”); 33 U.S.C. § 2006 (“Every vessel shall at all times
proceed at a safe speed so that she can take proper and effective
action to avoid collision and be stopped within a distance
appropriate to the prevailing circumstances and conditions.”).
2
made to the Coast Guard that do not support allegations of
crowding; (2) the district court improperly applied the doctrine
of in extremis; and (3) the actions of the Marrero were the
superseding cause of the allision with the Mare Queen.
Stargas asserts that because Spinks initially reported to
the Coast Guard that the Viking Star’s wake pushed the Marrero
into the Mare Queen, Spinks cannot subsequently allege that the
Marrero was crowded. As such, Stargas avers that the district
court erred in its determination that the Viking Star crowded the
Marrero. Despite Stargas’s contention, the trial court’s factual
finding that the Viking Star crowded the Marrero will not be
disturbed on appeal unless it is clearly erroneous.
[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. . . . If
the district court’s account of the evidence is
plausible in light of the record viewed in its
entirety, the court of appeals may not reverse even
though convinced that had it been sitting as the trier
of fact, it would have weighed the evidence
differently. Where there are two permissible views of
the evidence, the factfinder’s choice between them
cannot be clearly erroneous. . . . This is so even when
the district court’s findings do not rest on
credibility determinations, but are based instead on
physical or documentary evidence or inferences from
other facts.3
Stargas suggests that the district court did not give proper
weight to the findings and conclusions of the Coast Guard, and
3
Anderson v. Bessemer City, N.C., 470 U.S. 564, 573-74
(1985)(citations omitted).
3
that the court showed bias against the Coast Guard’s reports.
The district court, however, is not bound to accept the entire
report of the Coast Guard. “[T]he admission of a report
containing ‘conclusions’ is subject to the ultimate
safeguard——the opponent’s right to present evidence tending to
contradict or diminish the weight of those conclusions.”4 The
district court was persuaded by other evidence, including
insurance records and evidence the Marrero introduced. Moreover,
the district court doubted the trustworthiness of the Coast
Guard’s reports which consisted of one-page of summary fact
findings and one-half page of conclusions. In such situations
the trial judge has the obligation to exclude portions of the
report that she deems untrustworthy.5
Stargas next argues that the district court improperly
applied the doctrine of in extremis which holds that “where,
without prior negligence, a vessel is put in the very center of
destructive natural forces and a hard choice between competing
courses must immediately be made, the law requires that there be
something more than mere mistake of judgment by the master in
that decision in extremis.”6 Stargas contends that the doctrine
4
Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 168 (1988).
5
Id. at 167.
6
Employers Ins. of Wausau v. Suwannee River Spa Lines, Inc.,
866 F.2d 752, 771 (5th Cir. 1989)(quoting Boudoin v. J. Ray
McDermott & Co., 281 F.2d 81, 84 (5th Cir. 1960)).
4
of in extremis is applicable only when the party asserting it is
at no fault for being placed in a perilous position. Stargas
asserts that because the court found the Marrero 20% liable, the
court cannot appropriately use the in extremis doctrine.
Although the district court found the Marrero negligent in
failing to maintain a proper lookout, the court also determined
that the Viking Star’s failure to reduce her speed, in violation
of its agreement and the Inland Rules, contributed to the
accident. Under such circumstances, any error of Spinks must be
judged leniently in accord with the in extremis doctrine.7
Stargas further contends that the Marrero’s failure to
communicate a problem and its failure to maintain a safe speed,
were the superseding cause of the allision with the Mare Queen.
The issue of superseding cause involves application of law to
fact, which is left to the fact finder, subject to limited
review.8 The alleged negligence of the Marrero is not (as a
matter of law) a superseding cause exonerating Stargas from
liability for damages which the district court determined
primarily resulted from the actions of the Viking Star. We find
no clear error in the district court’s determination that the
causal initial negligence of the Viking Star in its failure to
7
Id. at 772-73.
8
Exxon v. Sofee, Inc., 116 S.Ct. 1813, 1819 (1996).
5
slow down as previously agreed contributed to the later accident
and makes Stargas liable for its apportioned share of the loss to
the Mare Queen.
AFFIRMED.
6