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.

-----------------------------------------------------------------

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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