Case: 09-30592 Document: 00511212001 Page: 1 Date Filed: 08/23/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 23, 2010
No. 09-30592 Lyle W. Cayce
Clerk
COMBO MARITIME, INC.
Plaintiff
v.
U.S. UNITED BULK TERMINAL, LLC; U.S. UNITED BARGE LINE, LLC;
UNITED MARITIME GROUP, LLC, in personam; MARLENE ELLIS M/V, its
engines, tackle, apparel, etc., in rem; BRENDA KOESTLER M/V, its engines,
tackle, apparel, etc., in rem
Defendants - Appellants
v.
CARNIVAL CORPORATION / FANTASY M/V
Third Party Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JOLLY and GARZA, Circuit Judges, and MILLER * , District Judge.
MILLER, District Judge:
In this barge breakaway case, the appellant-third party plaintiff, U.S.
United Bulk Terminal, LLC and its related entities and vessels (collectively
*
District Judge of the Southern District of Texas, sitting by designation.
Case: 09-30592 Document: 00511212001 Page: 2 Date Filed: 08/23/2010
No. 09-30592
"United"), appeals the district court's order granting appellee-third party
defendant's, Carnival Corp. and its vessel FANTASY (collectively "Carnival"),
motion for summary judgment on United's claims for contribution and
indemnity, and property damage.
I. Facts
Combo Maritime, Inc. (“Combo”) sued United for damages sustained when
a number of barges broke free of their moorings at United’s barge fleeting facility
and drifted downstream, alliding with Combo’s vessel, the M/V ALKMAN, which
lay at anchor nearby. United filed a third-party complaint against Carnival,
alleging that the barge breakaway was caused by the negligent navigation of
Carnival’s cruise ship FANTASY when it navigated too close to the fleeting
facility under full speed. United brought claims against Carnival for (1)
contribution and indemnity, and (2) damage to United’s fleeting equipment and
barges.1 United additionally proffered Carnival as a defendant under Rule 14(c)
of the Federal Rules of Civil Procedure.
Carnival moved for partial summary judgment on United’s complaint
based on the Supreme Court’s decision in THE LOUISIANA, 3 Wall. (70 U.S.)
164, 173, 18 L.Ed. 85 (1866). The LOUISIANA Rule creates the rebuttable
presumption that in collisions or allisions involving a drifting vessel, the drifting
vessel is at fault. See, e.g., James v. River Parishes Co., 686 F.2d 1129, 1131–32
(5th Cir. 1982). After reviewing the submitted evidence, the district court
granted Carnival’s motion for partial summary judgment. It further ordered
that at trial between Combo and United, United could not present evidence that
Carnival’s alleged negligence contributed to the barge breakaway. Later, on a
1
At oral argument, United expressly disclaimed any right to indemnity or claim for
damage to its barges and fleeting equipment, claiming solely a right of contribution from
Carnival.
2
Case: 09-30592 Document: 00511212001 Page: 3 Date Filed: 08/23/2010
No. 09-30592
motion for reconsideration, the district court also ordered that United’s third-
party complaint against Carnival be dismissed with prejudice.
After the district court entered judgment for Carnival, United settled with
Combo. As part of the settlement agreement, Combo specifically released all of
its claims against all parties by name, including Carnival. Combo also assigned
all of its claims against Carnival to United. United then filed the instant appeal
of the district court’s order on summary judgment and judgment on United’s
third-party claims. At this court's request, the parties submitted supplemental
letter briefs regarding whether the appeal is moot in light of United's settlement
with Combo. For the following reasons, we reverse and remand.
II. Mootness
As an initial matter, we must address whether the appeal before us is
moot. “Whether an appeal is moot is a jurisdictional matter, since it implicates
the Article III requirement that there be a live case or controversy.” Bailey v.
Southerland, 821 F.2d 277, 278 (5th Cir. 1987). “[A]ny set of circumstances that
eliminates actual controversy after the commencement of a lawsuit renders that
action moot.” Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 661 (5th
Cir. 2006).
“In admiralty cases, federal courts allocate damages based upon the
parties’ respective degrees of fault.” In re Omega Protein, Inc., 548 F.3d 361, 370
(5th Cir. 2008) (citing United States v. Reliable Transfer Co., 421 U.S. 397, 411
(1975)). “Damages are apportioned among the tortfeasors themselves through
the application of the doctrin[e] of contribution.” T HOMAS J. S CHOENBAUM, 1
A DMIRALTY & M ARITIME L AW § 5-18 (4th ed.). The right of contribution in
admiralty collision claims is of ancient lineage. Cooper Stevedoring Co. v. Fritz
Kopke, Inc., 417 U.S. 106, 110, 94 S. Ct. 2174 (1974) (citing THE NORTH STAR,
106 U.S. 17, 1 S. Ct. 41 (1882)) (tracing the right of contribution in collision cases
back to the Laws of Oleron in the 12th century); Hardy v. Gulf Oil Corp., 949
3
Case: 09-30592 Document: 00511212001 Page: 4 Date Filed: 08/23/2010
No. 09-30592
F.2d 826, 829–30 (5th Cir. 1992). “Contribution is defined as the ‘tortfeasor’s
right to collect from others responsible for the same tort after the tortfeasor has
paid more than his or her proportionate share, the shares being determined as
a percentage of fault.’” United States v. Atlantic Research Corp., 551 U.S. 128,
139, 127 S. Ct. 2331 (2007) (quoting B LACK'S L AW D ICTIONARY 353 (8th ed.
2004)). “The right of contribution exists only in favor of a tortfeasor who has
discharged the entire claim for the harm by paying more than his equitable
share of the common liability.” R ESTATEMENT (S ECOND) OF T ORTS § 886(A)
(1979). Therefore, contribution requires that the claimant have paid more than
he owes, and have discharged the entire claim.
As one commentator puts it, “[d]ifficult and interesting contribution
questions arise where one or more tortfeasors settle before trial.” S CHOENBAUM,
supra, § 5-18. In McDermott, Inc. v. AmClyde, 511 U.S. 202 (1994), the Supreme
Court addressed a part of this question and held that when one defendant of
many settles with a plaintiff, the liability of the remaining non-settling
defendants is calculated based on their proportionate responsibility for the
plaintiff’s injuries without regard to the amount of the settlement. Id. at 221.
In a companion case to McDermott issued the same day, the Supreme Court also
held that when one defendant settles its claim with the plaintiff, “actions for
contribution against settling defendants are neither necessary nor permitted.”
Boca Grande Club, Inc. v. Fla Power & Light Co., 511 U.S. 222, 222 (1994)
(citing AmClyde, 511 U.S. at 202).
Likewise, we have held that AmClyde’s proportionate liability scheme bars
a settling tortfeasor from seeking contribution from a non-settling tortfeasor.
Ondimar Transportes Maritimos v. Beatty St. Props., Inc., 555 F.3d 184, 187 (5th
Cir. 2009). Nor may a settling tortfeasor seek recovery from a non-settling
tortfeasor based on an assignment of the property damage claim by the plaintiff.
Lexington Ins. Co. v. S.H.R.M. Catering Servs., Inc., 567 F.3d 182, 185 (5th Cir.
4
Case: 09-30592 Document: 00511212001 Page: 5 Date Filed: 08/23/2010
No. 09-30592
2009); Ondimar, 555 F.3d at 189. However, in both Ondimar and Lexington, we
indicated that when a settling tortfeasor obtains a full release 2 from the plaintiff
for all parties, an action for contribution might not conflict with AmClyde. We
now make explicit what we have previously implied and hold that AmClyde does
not prevent an action for contribution for a settling tortfeasor who obtains, as
part of its settlement agreement with the plaintiff, a full release for all parties.
As discussed above, in order to bring a claim for contribution, the settling
tortfeasor must have (1) paid more than he owes to the plaintiff, and (2) have
discharged the plaintiff’s entire claim. The AmClyde court held that a litigating
defendant could not pursue a settling defendant for contribution, because the
litigating defendant would, under the proportionate share rule, pay only his
share of the judgment. AmClyde, 511 U.S. at 221. Because a right of
contribution requires that a defendant pay more than he owes, and the
proportionate share rule dictates that a defendant pays only his share of the
judgment—no more, no less—a litigating defendant could never have a
contribution claim, by definition. By extension, the amount a settling defendant,
who obtains only a release for himself, pays represents only his share of the
judgment, regardless of the actual dollar amount. Id.; Murphy v. Fla. Keys Elec.
Coop. Assoc., 329 F.3d 1311, 1314 (11th Cir. 1314). Therefore, he too has no
claim for contribution as long as the settlement represents only his portion of the
damages.
Where the settling tortfeasor takes an assignment of the plaintiff’s claim,
then the settling tortfeasor essentially steps into the plaintiff’s shoes and
pursues the plaintiff’s claim. In that scenario, the plaintiff’s claim is not
extinguished. And, as we discussed in Ondimar, allowing assignment of a claim
2
For the purposes of this opinion, “full release” indicates that the plaintiff has released
all potential tortfeasors from liability, regardless of whether the potential tortfeasor is a party
to the settlement giving rise to the full release.
5
Case: 09-30592 Document: 00511212001 Page: 6 Date Filed: 08/23/2010
No. 09-30592
undermines the goals of AmClyde. Ondimar, 555 F.3d at 188–89. Further, there
are strong policy reasons for not allowing a settling defendant to take an
assignment of a tort claim under these circumstances. Id. at 188 (citing Beech
Aircraft Corp. v. Jinkins, 739 S.W.2d 19, 22 (Tex. 1987)).
If, however, the settling defendant discharges the plaintiff’s entire claim
as evidenced by a total release of all potential joint tortfeasors, then the settling
defendant has met the requirements for a contribution claim. Because he is
responsible for only his portion of the damages, and he paid the entire amount,
he has paid more than he owes. And, because he has obtained a release of all
other potential joint tortfeasors, he has extinguished the plaintiff’s claim.
Therefore, he may bring a claim for contribution against the non-settling
potential tortfeasors.
In the instant case, United settled with Combo. As part of the settlement
agreement, Combo released both United and Carnival, among others, from
liability for damages to the M/V ALKMAN. Additionally, Combo assigned all of
its rights, claims, and causes of action for damage to the M/V ALKMAN to
United. Therefore, we find that although the assignment is invalid under
Ondimar and Lexington, United may bring a claim for contribution against
Carnival. Accordingly, this appeal is not moot. Therefore, the court will proceed
to the merits of the appeal.
III.The Rule of THE LOUISIANA
1. Standard of Review
“We review a grant of summary judgment de novo, applying the same
standard as the district court.” QBE Ins. Corp. v. Brown & Mitchell, Inc., 591
F.3d 439, 442 (5th Cir. 2009). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is
entitled to judgment as a matter of law.” F ED. R. C IV. P. 56(c).
6
Case: 09-30592 Document: 00511212001 Page: 7 Date Filed: 08/23/2010
No. 09-30592
2. Awash in Maritime Presumptions
“Liability in collision and allision cases has always been apportioned based
on fault.” Fisher v. S/Y NERAIDA, 508 F.3d 586, 593 (11th Cir. 2007).
Maritime law, however, uses evidentiary, fault, causation, and other
presumptions throughout its resolution of negligence suits. S CHOENBAUM, supra,
§ 14-3 (4th ed. 2004). These presumptions shift the burden of production and
persuasion to the defendant.
A. Fault in Allisions
Two common presumptions are presumptions of fault, based on the rules
articulated in THE OREGON, 158 U.S. 186, 15 S. Ct. 804 (1895) and THE
LOUISIANA, 3 Wall. (70 U.S.) 164 (1865). The rule of THE OREGON creates
a presumption of fault that shifts the burden of production and persuasion to a
moving vessel who, under her own power, allides with a stationary object. THE
OREGON, 158 U.S. at 192–93; James, 686 F.2d at 1132 n.2. The rule of THE
LOUISIANA creates the same presumption for a vessel who drifts into an
allision with a stationary object. THE LOUSIANA, 3 Wall. (70 U.S.) at 173;
James, 686 F.2d at 1131–32. Both of these presumptions are closely related to
the doctrine of res ipsa loquitor which creates a rebuttable presumption of fault
on the part of the person controlling the instrumentality. S CHOENBAUM, supra,
§ 14-3. And, although the two presumptions apply to different types of
vessels—vessels under their own power and drifting vessels—the courts treat
them similarly, looking to law on one to inform decisions on the other. See S/Y
NERAIDA, 508 F.3d at 593 (doctrines are the same except the vessels to which
they apply); City of Chicago v. M/V MORGAN, 375 F.3d 563, 572 n.11 (7th Cir.
2004); Rodi Yachts, Inc. v. Nat’l Marine, Inc., 984 F.2d 880, 886 (7th Cir. 1993)
(Posner, J.); James, 686 F.2d at 1132 n.2.
These presumptions shift the burden of production and persuasion on the
issue of fault. They are “‘[e]videntiary presumptions . . . designed to fill a factual
7
Case: 09-30592 Document: 00511212001 Page: 8 Date Filed: 08/23/2010
No. 09-30592
vacuum. Once evidence is presented . . . presumptions become superfluous
because the parties have introduced evidence to dispel the mysteries that gave
rise to the presumptions.’” In re Mid-South Towing Co., 418 F.3d 526, 531 (5th
Cir. 2005) (quoting Rodi Yachts, 984 F.2d at 887); see also In re Omega Protein,
Inc., 548 F.3d 361, 368–69 (5th Cir. 2008). But see Bunge Corp. v. M/V
FURNESS BRIDGE, 558 F.2d 790, 795 n.3 (5th Cir. 1977) (“[W]e reject the
holding of the Third Circuit that when both sides had ‘fully presented testimony
regarding their version as to what happened prior to the collision . . . the
presumption disappeared as a matter of law.’” quoting Pa. R.R. Co. v. S.S. Marie
Leonhardt, 320 F.2d 262, 264 (3d Cir. 1963))). And, they must be properly
confined to the issue of breach only—not “causation (either in fact or legal cause)
or the percentages of fault assigned to the parties adjudged negligent.” Mid-
South Towing, 418 F.3d at 532. “Application of [one of these presumptions] does
not supplant the general negligence determination which requires a plaintiff to
prove the elements of duty, breach, causation and injury by a preponderance of
the evidence.” M/V MORGAN, 375 F.3d at 572–73 (citing Bunge Corp., 558 F.2d
at 798; Brown & Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d
724, 726 (5th Cir.1967)).
In a recent case regarding damage to a dock from an allision with a
pleasure yacht drifting during Hurricane Frances, the Eleventh Circuit outlined
the three ways in which a defendant could rebut the presumptions established
by both THE LOUISIANA and THE OREGON. S/Y NERAIDA, 508 F.3d at
593.
The defendant can demonstrate: (1) that the allision was the fault
of the stationary object; (2) that the moving vessel acted with
reasonable care; or (3) that the allision was an unavoidable accident.
. . . Each independent argument, if sustained, is sufficient to defeat
liability.
8
Case: 09-30592 Document: 00511212001 Page: 9 Date Filed: 08/23/2010
No. 09-30592
Id. (internal quotations omitted); see also Zerega Ave. Realty Corp. v. Hornbeck
Offshore Transp., LLC, 571 F.2d 206, 211 (2d Cir. 2009).
The first route is essentially the contributory negligence route. S/Y
NERAIDA, 508 F.3d at 593. For example, the drifting vessel may argue that the
operator of the dock was also negligent in failing to moor the drifting vessel
properly. Rodi Yachts, 984 F.2d at 889. Or, a vessel under its own steam may
argue that its allision was caused by the improper placement of a navigational
buoy. Inter-Cities Navigation Corp. v. United States, 608 F.2d 1079 (5th Cir.
1979) (Brown, J.).
The second route requires the defendant to negate negligence. S/Y
NERAIDA, 508 F.3d at 593. Here, the moving vessel bears the burdens of
production and persuasion, and the risk of non-persuasion. James, 686 F.2d at
1132. “The appropriate standard of care in this regime is based upon ‘(1) general
concepts of prudent seamanship and reasonable care; (2) statutory and
regulatory rules . . . ; and (3) recognized customs and usages.’” S/Y NERAIDA,
508 F.3d at 594 (quoting S CHOENBAUM, supra, § 89); Bunge, 558 F.2d at 802.
The third route places the most difficult burden on the defendant, because
as a superceding causation argument it can free the moving vessel from all
liability. S/Y NERAIDA, 508 F.3d at 596.
If the drifting or moving vessel offers as a defense that the collision
was an unavoidable accident or vis major, “[t]he burden of proving
inevitable accident or Act of God rests heavily upon the vessel
asserting such defense.” The vessel must show that the accident
could not have been prevented by “human skill and precaution and
a proper display of nautical skills[.]”
James, 686 F.2d at 1132 (quoting Petition of United States, 425 F.2d 991, 995
(5th Cir. 1970)). The case of THE LOUISIANA was an Act of God case. 3 Wall.
(70 U.S.) at 173. There, the steamer LOUISIANA loosed her moorings in a stiff
breeze and drifted into a collision with the steamer FLUSHING which was
9
Case: 09-30592 Document: 00511212001 Page: 10 Date Filed: 08/23/2010
No. 09-30592
aground and out of the channel or course of passing vessels. Id. The Court
found that although the wind and tide had risen considerably, “[t]he drifting of
this vessel was not caused by any sudden hurricane which nautical experience
could not anticipate.” Id. The Court concluded that the collision was caused by
inadequate mooring and held the LOUISIANA liable for the collision damage.
Id. Notably, though the Eleventh Circuit’s drifting yacht case, S/Y Neraida,
also involved a hurricane, the argument that prevailed there was not the Act of
God argument, but rather the argument that the yacht’s owner took reasonable
precautions when securing the yacht in light of the impending storm. Arguably,
the NERAIDA could have tried the Act of God route to exoneration had it failed
to demonstrate reasonable care.
B. Swells and Suction of Passing Vessels
In addition to the presumptions of fault placed on moving vessels in
allisions, maritime law recognizes—although not as widely—a presumption of
fault on a passing vessel when its wake causes damage to a properly moored
vessel. See West India Fruit & Steamship Co. v. Raymond, 190 F.2d 673, 674
(5th Cir. 1951); New Orleans Steamboat Co. v. M/T HELLESPONT GLORY, 562
F. Supp. 391, 392 (E.D. La. 1983) (quoting Shell Pipe Line Corp. v. M/T CYS
ALIANCE, 1982 A.M.C. 389, 395 (E.D. La. 1981)); S CHOENBAUM, supra, § 14-2.
The passing vessel may rebut the presumption of fault by showing that it took
reasonable care in passing. Id. Alternatively, it may demonstrate that the
stationary vessel was improperly moored. New Orleans Steamboat, 562 F. Supp.
at 392.
C. Colliding Presumptions
If the two parties to a collision or allision suit each have a presumption of
fault against them, then it is likely that the presumptions would merely cancel
each other out. In Rodi Yachts, Judge Posner examined this question. In that
case, a moored barge slipped its moorings and allided with a dock and two other
10
Case: 09-30592 Document: 00511212001 Page: 11 Date Filed: 08/23/2010
No. 09-30592
vessels. Rodi Yachts, 984 F.2d at 881. The barge owner impleaded the dock
owner, claiming that the dock had improperly moored the barge. Id. The
plaintiffs—the owners of the damaged property—had the rule of THE
LOUISIANA working in their favor. Id. at 886. While the barge owner also had
a presumption against the dock. Id. at 887. “[I]f a vessel that has been docked
for a substantial period of time breaks loose from its moorings and an accident
results, the operator of the dock shall have the burden of proving that the
breaking loose was not the result of his negligence.” Id. The Court examined
two main questions in resolving the issue: (1) against whom do the presumptions
operate; and (2) what happens when the presumptions clash.
First, the Court examined the presumption against the drifting
vessel—here, the barge. It found that the drifting vessel presumption did not
operate between co-defendants.
The issue [on appeal] is not the allocation of responsibility for the
accident between the owner of the drifting vessel and the owners of
the stationary objects that were damaged by it. The issue is the
allocation of responsibility between the owner and the third party
that let the vessel slip its mooring and drift into collision with the
plaintiffs' property. The drifting-vessel presumption is not designed
for the allocation of liability between the injurers, as distinct from
the allocation of the loss between them and their victims, and
although occasionally mentioned in the former context as well it
does not control decision there, as well shown by Pasco Marketing,
Inc. v. Taylor Towing Service, Inc., 554 F.2d 808 (8th Cir.1977), and
Lancaster v. Ohio River Co., 446 F.Supp. 199, 202 and n.1
(N.D.Ill.1978). For while as between drifting vessel and stationary
object struck by it common sense suggests that the former is more
likely to have been at fault in the collision than the latter, there is
no similar “presumption” when the issue is whether the drifting
vessel itself or the dock that, as it were, let it drift was at fault in
the subsequent collision of the vessel with a stationary object.
Id. at 886. Therefore, the Court found that the presumption against the drifting
vessel did not apply to the issue of comparative fault.
11
Case: 09-30592 Document: 00511212001 Page: 12 Date Filed: 08/23/2010
No. 09-30592
This Court, although presented with this argument in Mid-South Towing,
did not reach the issue of the directionality of presumptions. Mid-South Towing,
418 F.3d at 531. We found instead that the district court had determined fault
based on the facts in the case without resort to the presumptions. Id. Citing
Rodi Yachts with favor, we explained that with the presence of evidence of fault
in the record, the need for presumptions evaporates. Id. (citing Rodi Yachts, 984
F.2d at 887).
In Rodi Yachts, the Seventh Circuit went on to determine that if the two
presumptions had clashed, they would have disappeared, leaving the burdens
of production and persuasion in their original pre-presumption state. Id. at 887.
There, however, the Court found that there was sufficient evidence in the record
to dispense with the presumptions altogether. Id.
D. Presumptions and Comparative Fault
In United States v. Reliable Transfer Co., Inc., the Supreme Court ushered
in the practice of comparative fault in maritime collision law.
We hold that when two or more parties have contributed by their
fault to cause property damage in a maritime collision or stranding,
liability for such damage is to be allocated among the parties
proportionately to the comparative degree of their fault, and that
liability for such damages is to be allocated equally only when the
parties are equally at fault or when it is not possible fairly to
measure the comparative degree of their fault.
421 U.S. 367, 411, 95 S. Ct. 1708 (1975). The presumptions under the rules of
THE LOUISIANA and THE OREGON do not affect this principle. See, e.g.,
Mid-South Towing, 418 F.3d at 532 (“[P]roperly cabined the scope of the Oregon
rule, which speaks explicitly only to a presumed breach on the part of the
alliding vessel, and is not a presumption regarding either the question of
causation (either cause in fact or legal cause) or the percentages of fault assigned
parties adjudged negligent.”); accord M/V Morgan, 375 F.3d at 578 (applying
12
Case: 09-30592 Document: 00511212001 Page: 13 Date Filed: 08/23/2010
No. 09-30592
presumption and dividing the damages); Hood v. Knappton Corp., 986 F.2d 329,
332–33 (9th Cir. 1993) (applying presumption and dividing damages); Rodi
Yachts, 984 F.2d at 888–89 (applying presumption and remanding for further
findings on apportionment of damages).
3. Application
The district court applied the rule of THE LOUISIANA improperly when
it (1) applied the presumption between co-defendants; (2) applied the wrong
standard of proof for rebutting the presumption; and (3) interpreted the
presumption as a presumption of sole liability. First, the district court
improperly applied the drifting vessel presumption in favor of Carnival and
against United. Carnival moved for summary judgment based on the argument
that United could not overcome the presumption of fault against it under the
rule of THE LOUISIANA. The district court not only incorrectly applied the
drifting vessel presumption between co-defendants, but also applied the Act of
God test—“the vessel must show that the accident could not have been prevented
by human skill and precaution and a proper display of nautical skills”—instead
of the reasonableness test for negating negligence. The district court reviewed
evidence on the mooring system and the maintenance records and found that the
expert’s testimony regarding “the mooring equipment’s adequacy . . . [is] not
sufficient to satisfy the burden imposed by James.”
Second, the district court addressed United’s argument that Carnival,
under the passing vessel presumption, had the burden to show that it navigated
prudently. The district court first found that the drifting vessel presumption
effectively trumped the passing vessel presumption. Therefore, the district court
placed upon United the burden to show that the Carnival ship navigated
imprudently. United was unable, in the district court’s opinion, to meet this
burden. Notably, the passing vessel presumption first requires the moored
vessel to demonstrate that it was properly moored before the burden is shifted
13
Case: 09-30592 Document: 00511212001 Page: 14 Date Filed: 08/23/2010
No. 09-30592
to the passing vessel. Had the district court, using a reasonableness standard,
determined that the United barges were not properly moored, then the
presumption would not have operated against Carnival. However, the district
court found that United was unable to rebut the presumption of negligence
against it based on an improper Act of God standard. Therefore, there are
insufficient findings in the record to determine whether the passing vessel
presumption should have been applied against Carnival.
Additionally, although the district court made no explicit finding on this
point, its ruling and subsequent dismissal of Carnival as a party suggest that it
interpreted the drifting vessel presumption as a presumption of sole fault on the
part of the drifting vessel. This assumption simply cannot square with the case
law and “[t]he rule in admiralty . . . that joint tortfeasors are entitled to allocate
a plaintiff's damages among themselves in accordance with their relative fault.”
Rodi Yachts, 984 F.2d at 885 (citing Reliable Transfer, 421 U.S. at 411). Even
assuming arguendo that the court had properly applied the rule in THE
LOUISIANA to United relative to Carnival, and properly discarded the
presumption against a passing vessel, United should still be entitled to present
evidence of comparative fault at trial. Mid-South Towing, 418 F.3d at 532.
III. Conclusion
For the foregoing reasons, the district court’s grant of partial summary
judgment in favor of Carnival, and its judgment against United on all of its
claims against Carnival are REVERSED. This case is REMANDED to the
district court for further proceedings consistent with this opinion.
14
Case: 09-30592 Document: 00511212001 Page: 15 Date Filed: 08/23/2010
09-30592
EMILIO M. GARZA, Circuit Judge, dissenting:
The majority opinion depends on the validity of a release contained in a
Receipt, Release, Indemnity and Assignment Agreement between Combo and
United, which was received by the courtroom deputy at oral argument. That
document is not part of the record in this appeal. Nor is it part of the district
court record as the agreement was reached after the district court granted
summary judgment in Carnival’s favor. Without a formal submission of the
agreement and its acceptance into the record, we cannot consider it. See, e.g., In
re GHR Energy Corp., 791 F.2d 1200, 1201–02 (5th Cir. 1986) (“[T]his court is
barred from considering filings outside the record on appeal . . . .”).
Although appellate courts have the discretion to supplement the record on
appeal with evidence not reviewed by the court below, see Dickerson v. Alabama,
667 F.2d 1364, 1367 (5th Cir. 1982), we should do so charily. I would not
exercise this court’s discretion to accept the agreement into the record. At this
time, there has been no determination that the agreement received at oral
argument is a valid, accurate, and complete copy or otherwise competent and
admissible evidence under the Federal Rules of Evidence. The document on
which this appeal turns is materially different in kind from the types of
documents which we have allowed to be supplemented on appeal. See, e.g., In
re GHR, 791 F.2d at 1202 (ordering supplementation of appellate record with
notice of appeal filed in the district court); Dickerson, 667 F.2d at 1367 (ordering
supplementation of appellate record with state court trial transcript). Moreover,
I question whether joint submission of the agreement by United and Carnival
would even be sufficient, since Combo, one of the parties to the agreement, is not
a party to this appeal. It very well may be that an evidentiary hearing is needed
to determine the validity and scope of the agreement, especially in light of the
fact that one of the parties to the agreement is not before the court.
Case: 09-30592 Document: 00511212001 Page: 16 Date Filed: 08/23/2010
09-30592
I would hold judgment in abeyance, remand to the district court to create
a record and to consider, in the first instance, the validity of the release and
whether it moots this case.
Accordingly, I respectfully dissent.
16