Bertucci Contracting Corp. v. M/V ANTWERPEN

United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals September 19, 2006
for the Fifth Circuit
Charles R. Fulbruge III
Clerk
No. 04-31200

BERTUCCI CONTRACTING CORPORATION,

Plaintiff,
v.

M/V ANTWERPEN, Etc.; ET AL.,

Defendants,

MARVITA SHIPPING COMPANY LTD.,

Defendant - Third Party Plaintiff -
Appellant,
v.

M/V LADY JEANETTE, her engines, boilers, tackle, equipment,
furniture, apparel, etc., in rem; F & L MARINE MANAGEMENT
INC.; SANDBAR III INC.,

Third Party Defendants - Appellees.

MARVITA SHIPPING COMPANY LTD.,

Plaintiff - Appellant,
v.

M/V LADY JEANETTE, Etc.; ET AL.,

Defendants,

M/V LADY JEANETTE, her engines, boilers, tackle, equipment,
furniture, apparel, etc., in rem; SANDBAR III INC., in
personam; F & L MARINE MANAGEMENT INC.,
 Defendants - Appellees.

In Re: In the Matter of the Complaint of F & L MARINE
MANAGEMENT INC.; SANDBAR III INC., for Exoneration from or
Limitation of Liability
F & L MARINE MANAGEMENT INC., as owner pro hac vice; SANDBAR
III INC., as owner of M/V Lady Jeanette, her engines, tackle,
appurtenances, furniture, etc.,

Petitioners - Appellees,
v.

MARVITA SHIPPING COMPANY LTD.,

Claimant - Appellant.

Appeal from the United States District Court
for the Eastern District of Louisiana

Before GARWOOD, PRADO, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

This appeal arises out of an unsuccessful claim by Marvita Shipping Company, Ltd.,

the owner of the M/V ANTWERPEN, against the interests of the M/V LADY JEANETTE

for allegedly “embarrassing the navigation” of the ANTWERPEN and causing it to allide

with a fleet of stationary barges on the east bank of the Mississippi River.1 Marvita claims

that a new trial is necessary because the LADY JEANETTE created a risk of collision and

1
“An allision is a collision between a moving vessel and a stationary object.” THOMAS J.
SCHOENBAUM, ADMIRALTY & MARITIME LAW 14-2 (4th ed. 2004).

2
violated several navigation rules as a matter of law, and accordingly, the district court should

have required the LADY JEANETTE to prove that her navigation could not have been a

contributory and proximate cause of the accident.2 Because the district court’s judgment was

not based on a clearly erroneous view of the facts or a misunderstanding of the applicable

law, we affirm.

I

Around 2:00 a.m. on January 19, 2003, several vessels passed through the Carrollton

Bend, a turn in the Mississippi River located near the Nine Mile Point, which is below the

Huey P. Long Bridge and immediately above the City of New Orleans. The LADY

JEANETTE, a 50.5-foot long and 24-foot wide tugboat, was pushing four loaded barges in

a two-by-two configuration downbound (south) on the river. Also proceeding downbound

were the BAYOU BLACK and the BEVERLY ANDERSON. The ALICE HOOKER and

the ANTWERPEN, a 653-foot long and 96-foot wide oceangoing bulk freighter, were headed

upbound (north) on the river. Captain Kenneth Ayars of the LADY JEANETTE radioed

Teal M. Grue, a compulsory river pilot assisting the ANTWERPEN, to discuss the traffic

situation. Pilot Grue proposed to overtake the upbound ALICE HOOKER, which decided

to hold up on the west bank until the traffic cleared, on the ANTWERPEN’s port (left) side.

Continuing to proceed across the river, the upbound ANTWERPEN would then meet the

2
See, e.g., Tokio Marine & Fire Ins. Co. v. FLORA MV, 235 F.3d 963, 966 (5th Cir. 2001)
(“Under the Pennsylvania rule, if a vessel involved in a collision was violating a statutory rule
intended to prevent collisions, the burden shifts to the violating vessel to show that its fault could not
have been a cause of the accident.”).

3
downbound BEVERLY ANDERSON for a starboard-to-starboard (right side or “two

whistle”3) passing. Pilot Grue and Captain Ayars agreed to then pass each other on their port

sides (a “one whistle” passing), with the LADY JEANETTE navigating close to the right

descending (west) bank (the bank to the right when proceeding down the river).

Though the vessels passed each other successfully, Marvita maintains that the LADY

JEANETTE violated the passing agreement by failing to stay close to the right descending

bank and, instead, headed straight toward the ANTWERPEN. Marvita further claims that

Pilot Grue had to decrease his speed and turn the front end of the ANTWERPEN (the bow)

and then the back end (the stern) to the right in a “see-sawing” motion to avoid colliding with

the LADY JEANETTE. Captain Ayars, on the other hand, claims that he did not steer

toward the ANTWERPEN until he was “in the pocket,” with his bow past the

ANTWERPEN’s bow, and that the ANTWERPEN could not have hit the LADY

JEANETTE if she tried. In any event, after passing the LADY JEANETTE, Pilot Grue

realized he faced an imminent allision with a stationary fleet of barges located on the left

descending bank, across from the Nine Mile Point. He then sounded the danger signal,

ordered the engines reversed, and crashed into the barges.

The owner of the barges, Bertucci Construction, sued the ANTWERPEN in rem and

Marvita in personam for damages. Marvita claimed that the LADY JEANETTE caused the

3
See generally Inland Navigational Rules, Rule 34, 33 U.S.C. § 2034(a) (mandating that when
two vessels are headed toward one another, each vessel shall propose the manner of passing by radio
communication or by blowing her whistle—once to propose passing on each vessel’s port side and
twice to propose passing on each vessel’s starboard side).

4
allision by failing to navigate close enough to the right descending bank in accordance with

the passing agreement and by forcing the ANTWERPEN to navigate too close to the left

descending bank (and toward the barges) in an effort to avoid a collision with the LADY

JEANETTE. Marvita filed a third-party complaint against the LADY JEANETTE, its owner

Sandbar III, Inc., and its operator F&L Marine Management, Inc. Marvita also filed a

separate complaint, asserting an admiralty and maritime claim under Rule 9(h) of the Federal

Rules of Civil Procedure against the LADY JEANETTE, Sandbar, and F&L. Sandbar and

F&L then sought exoneration from liability or limitation of liability to the value of the LADY

JEANETTE. The claims were consolidated for trial, Marvita and Bertucci settled before

trial, and Marvita’s remaining claims against the LADY JEANETTE, Sandbar, and F&L

proceeded to a bench trial.

The district court found that the LADY JEANETTE adhered to the passing agreement

and complied with the applicable navigation rules and that the ANTWERPEN’s allision with

the Bertucci fleet was caused by Pilot Grue’s failure to maintain proper steerageway—by

decreasing his speed too much when navigating around the Carrollton Bend, he got caught

in the current and lost control of the vessel. The district court entered judgment in favor of

the LADY JEANETTE, Sandbar, and F&L upon concluding that the LADY JEANETTE was

not negligent in its navigation and did not embarrass the ANTWERPEN’s navigation.

Marvita moved for a new trial, and the district court denied the motion after finding that

Marvita simply reiterated the evidence already considered by the court at trial and failed to

demonstrate error or injustice in the court’s decision. Marvita appeals the district court’s

5
judgment and requests that this court vacate the judgment and remand for a new trial.

II

Because this case was decided by the district court without a jury, we review the

district court’s factual findings for clear error: “Findings of fact . . . shall not be set aside

unless clearly erroneous, and due regard shall be given to the opportunity of the trial court

to judge [] the credibility of the witnesses.”4 If the district court’s finding is plausible in light

of the record viewed as a whole, the court of appeals cannot reverse even though, if sitting

as the trier of fact, it would have weighed the evidence differently.5 “Where there are two

permissible views of the evidence, the factfinder’s choice between them cannot be clearly

erroneous.”6 A finding is clearly erroneous when the appellate court, viewing the evidence

in its entirety, “is left with the definite and firm conviction that a mistake has been

committed.”7 The court owes even greater deference to findings based on the credibility of

witnesses and must uphold them if based on coherent, internally consistent, and facially

plausible testimony that is not contradicted by external evidence.8 In an admiralty case tried

before a court without a jury, the district court’s findings of negligence, cause-in-fact, and

4
FED. R. CIV. P. 52(a); see also Anderson v. Bessemer City, 470 U.S. 564, 573–75 (1985)
(discussing the clearly erroneous standard).
5
Anderson, 470 U.S. at 573–74.
6
Id. at 574.
7
Walker v. Braus, 995 F.2d 77, 80 (5th Cir. 1993).
8
Anderson, 470 U.S. at 575.

6
proximate cause are treated as factual findings subject to the clearly erroneous standard.9 As

we have previously stated:

Although the question of whether given behavior is sufficiently
improper to constitute negligence is frequently reviewed on appeal, the
question of whether a party is at fault in causing or contributing to the
causation of some calamity is largely one of fact. . . . [T]he standards of
behavior [] are set by law—whether behavior meets those standards is a
question of fact, measured on appeal by the clearly erroneous standard.10

If a finding is based on a mixed question of law and fact, this court should only reverse “if

the findings are based on a misunderstanding of the law or a clearly erroneous view of the

facts.”11

The crux of Marvita’s argument is that, because Captain Ayars of the LADY

JEANETTE testified to (1) seeing the ANTWERPEN’s masthead lights nearly in line,

(2) “falling off the point” on the right descending bank, and (3) steering the LADY

JEANETTE toward the left descending bank, he could not have complied with the passing

agreement or with Inland Navigational Rule 7 (Risk of Collision), Rule 8 (Action to Avoid

Collision), Rule 9 (Narrow Channels), or Rule 14 (Head-on Situation).12 Instead, according

to Marvita, the LADY JEANETTE must have been navigating on the left descending bank

9
In re Luhr Bros., Inc., 325 F.3d 681, 684 (5th Cir. 2003).
10
Movible Offshore, Inc. v. M/V WILKEN A. FALGOUT, 471 F.2d 268, 272–73 (5th Cir.
1973).
11
Tokio Marine, 235 F.3d at 966.
12
See Inland Navigational Rules, Rule 7, 33 U.S.C. § 2007; Rule 8, 33 U.S.C. § 2008; Rule
9, 33 U.S.C. § 2009; Rule 14, 33 U.S.C. § 2014.

7
side of the river and directly toward the ANTWERPEN, thereby creating a risk of collision.13

Once a risk of collision exists, the navigation rules mandate the appropriate response—here,

for each vessel to turn to starboard and pass on each other’s port side.14 Marvita contends

that once the vessels faced a risk of collision, the LADY JEANETTE turned to port instead

of starboard, thus creating a close-quarters, near-miss situation and violating several Inland

Rules. Marvita argues that the district court took an impermissible view of the evidence and

erred as a matter of law by failing to find that a risk of collision existed and that the LADY

JEANETTE’s response was in violation of Rules 7, 8, 9, and 14. If the district court had

concluded that the LADY JEANETTE violated one of those rules, the court would have had

to apply the Pennsylvania rule and require the LADY JEANETTE to prove that her

navigation could not have been a contributory and proximate cause of the allision.15 Since

13
See Inland Navigational Rules, Rule 14, 33 U.S.C. § 2014(b) (“Such a situation [risk of
head-on collision] shall be deemed to exist when a vessel sees the other ahead or nearly ahead and
by night she could see the masthead lights of the other in a line or nearly in a line or both sidelights
and by day she observes the corresponding aspect of the other vessel.”); Rule 7, 33 U.S.C. § 2007(a)
(“Everyvessel shall use all available means appropriate to the prevailing circumstances and conditions
to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.”).
14
See Inland Navigational Rules, Rule 14, 33 U.S.C. § 2014(a) (“Unless otherwise agreed,
when two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to
involve risk of collision each shall alter her course to starboard so that each shall pass on the port side
of the other.”).
15
See, e.g., Tokio Marine, 235 F.3d at 966 (“Under the Pennsylvania rule, if a vessel involved
in a collision was violating a statutory rule intended to prevent collisions, the burden shifts to the
violating vessel to show that its fault could not have been a cause of the accident.”); In re Mid-South
Towing Co., 418 F.3d 526, 534 (5th Cir. 2005) (explaining that, even under the burden of the
Pennsylvania rule, “fault which produces liability must be a contributory and proximate cause of the
collision, and not merely fault in the abstract”) (quoting Bd. of Comm’rs of Port of New Orleans v.
M/V FARMSUM, 574 F.2d 289, 297 (5th Cir. 1978)); see also The Pennsylvania, 86 U.S. (19 Wall.)
125 (1873).

8
the district court did not find a violation, and accordingly did not apply the Pennsylvania

rule, Marvita argues that a new trial is necessary.

Although there is evidence to support Marvita’s claim that the LADY JEANETTE

violated the navigation rules and the passing agreement by failing to navigate close to the

right descending bank, we are not “left with the definite and firm conviction that a mistake

has been committed” after reviewing the evidence in its entirety.16 In addition to testifying

that, at one point, he saw the ANTWERPEN’s masthead lights nearly in line and to drawing

two sketches (admitted into evidence) showing the same, Captain Ayars testified that the

ANTWERPEN’s lights were “opening all the time” as the vessels approached. The LADY

JEANETTE’s expert explained that as two vessels properly pass each other in a bend, like

the Nine Mile Point–Carrollton Bend, the vessels’ lights should be constantly changing as

one vessel rounds the point and the other rounds the bend. According to the expert’s

testimony, Captain Ayars’s sketches and his testimony that he saw the lights in line at one

moment represent a snapshot of the vessels’ passing and are consistent with his testimony

that the lights were constantly changing. Crediting this testimony, the district court did not

clearly err by concluding that Captain Ayars did not navigate directly toward the

ANTWERPEN.

Marvita also argues that Captain Ayars admitted that he violated the passing

agreement by failing to navigate close to the right descending bank when he testified that he

16
Walker v. Braus, 995 F.2d 77, 80 (5th Cir. 1993).

9
“fell off the point,” referring to the Nine Mile Point on the right descending bank. The

district court credited Captain Ayars’s testimony that he initially navigated close to the right

descending bank, in accordance with the passing agreement, and that he only started heading

toward the ANTWERPEN and the left descending bank when he saw that he would be able

to navigate safely behind the ANTWERPEN’s stern (the back end of the vessel). Captain

Ayars testified that when he moved toward the ANTWERPEN, he was “in the pocket,” with

his bow (the front end of the vessel) past the bow of the ANTWERPEN. According to

Captain Ayars, the LADY JEANETTE was about 400 feet (give or take 100 feet) off the

right descending bank when the vessels passed, and the vessels were between 150 to 200 feet

apart. He further testified that the ANTWERPEN could not have hit the LADY JEANETTE

if she tried. Putting Captain Ayars’s testimony that he “fell off the point” in context, the

district court did not clearly err in finding that the LADY JEANETTE complied with the

passing agreement by navigating on the right descending bank side of the river.

Furthermore, the district court found that there was contemporaneous evidence

supporting the LADY JEANETTE’s version of events. First, neither the ANTWERPEN nor

the LADY JEANETTE recorded any incident with the other vessel in their deck logs. The

LADY JEANETTE’s expert testified that if the ANTWERPEN had viewed the passing of

the LADY JEANETTE as a near collision or as embarrassing the ANTWERPEN’s

navigation, the ANTWERPEN would likely have recorded the matter in its deck log for the

day. Moreover, considering the radio transmissions as a whole, the district court found that

neither vessel thought that a collision was possible or that the ANTWERPEN needed more

10
room to safely pass the LADY JEANETTE. Although Pilot Grue at one point asked the

LADY JEANETTE if she was all right and radioed that he did not think “it’s gonna work,”

he did not sound the danger signal prior to or while he was passing the LADY JEANETTE,

and he did not communicate that he needed more room. The district court could have

reasonably concluded that Pilot Grue’s transmissions would have conveyed a greater sense

of alarm if the vessels were at risk of colliding. Furthermore, Captain Ayars continuously

radioed that he was all right and that the ANTWERPEN had plenty of room. Marvita relies

heavily on one transmission, in which Pilot Grue states “hard over . . . laying along side me,”

and on Pilot Grue’s testimony that he would never have had to ask the LADY JEANETTE

to lay flat, alongside the ANTWERPEN, if the vessels passed at a safe distance. The district

court was free to weigh the evidence as it saw fit and did not have to credit Pilot Grue’s

testimony.17

Finally, the district court’s factual finding with regard to the cause of the

ANTWERPEN’s allision with the Bertucci fleet of barges was not clearly erroneous. The

LADY JEANETTE’s expert, Captain Strouse, opined that the ANTWERPEN failed to

proceed at the speed necessary to maintain steerageway—the minimum rate of motion

needed to maneuver the vessel—and therefore got caught in the current and was pushed

toward the right descending bank. Captain Strouse testified as to his opinion why the

17
See Anderson, 470 U.S. at 573–74 (“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 it even
though convinced that had it been sitting as the trier of fact, it would have weighed the evidence
differently.”).

11
ANTWERPEN allided with the barges:

Because of the current pushing them. Well, because of the slow
speed, because they did not try to drive out of it, or if they did
try to drive out of it, it was too late. And with that current
coming down at slow speed, you have no [] response from your
rudder and you’ve got a deeply laden ship, that current is going
to take it right in towards the eastbank.

The district court chose to credit this testimony over the testimony of the witnesses offered

by the ANTWERPEN, specifically the captain of the ALICE HOOKER, who testified that

the only reason the LADY JEANETTE did not collide with the ANTWERPEN was Pilot

Grue’s “beautiful job” maneuvering the ship, and who thereby implied that the LADY

JEANETTE embarrassed the ANTWERPEN’s navigation and contributed to the allision.

Only the district court, hearing the testimony firsthand, “can be aware of the variations in

demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief

in what is said.”18

When the evidence is viewed in its entirety, we are not “left with the definite and firm

conviction”19 that the district court clearly erred by concluding that the LADY JEANETTE

complied with the passing agreement and passed the ANTWERPEN at a safe distance and

that the ANTWERPEN’s allision was caused solely by her failure to maintain proper

steerageway. Moreover, under the version of events that the district court credited or could

have reasonably credited, the LADY JEANETTE did not violate any of the applicable

18
Id. at 575.
19
Walker, 995 F.2d at 80.

12
navigation rules. Marvita argues that Rules 9 and 14, the Narrow Channel rules, applied to

the passing and required the LADY JEANETTE to stick as close to the right descending bank

as was safe and practicable and to turn to starboard and pass the ANTWERPEN on its port

side. Marvita contends that the LADY JEANETTE violated Rule 9 by “falling off the point”

on the right descending bank20 and Rule 14 by turning to port even though the vessels were

meeting on “reciprocal or nearly reciprocal courses.”21 Even assuming that the Carrollton

Bend–Nine Mile Point, which was estimated at trial to be between 1320 and 2100 feet wide

at its narrowest point, is a “narrow channel,”22 and that Rules 9 and 14 apply despite the

passing agreement between the parties,23 the LADY JEANETTE complied with both rules

according to the evidence that the district court credited or could have plausibly credited.

20
Inland Navigational Rules, Rule 9, 33 U.S.C. § 2009(a)(i) (“A vessel proceeding along the
course of a narrow channel or fairway shall keep as near to the outer limit of the channel or fairway
which lies on her starboard side as is safe and practicable.”).
21
Inland Navigational Rules, Rule 14, 33 U.S.C. § 2014(a) (“Unless otherwise agreed, when
two power-driven vessels are meeting on reciprocal or nearly reciprocal courses so as to involve risk
of collision each shall alter her course to starboard so that each shall pass on the port side of the
other.”); Id. § 2014(b) (“Such a situation shall be deemed to exist when a vessel sees the other ahead
or nearly ahead and by night she could see the masthead lights of the other in a line or nearly in a
line . . . .”).
22
See, e.g., Canal Barge Co. v. China Ocean Shipping Co., 770 F.2d 1357, 1362 (5th Cir.
1985) (noting that the determination of what constitutes a narrow channel is a mixed question of law
and fact, depending not only on the physical dimensions of the water, but also on the character of the
navigational use); Marine Transp. Lines, Inc. v. M/V TAKO INVADER, 37 F.3d 1138, 1142–43 (5th
Cir. 1994) (observing that lower courts have generally not deemed channels wider than 1200 feet as
narrow channels, but noting that physical dimension is not dispositive).
23
See, e.g., Burma Navigation Corp. v. RELIANT SEAHORSE MV, 99 F.3d 652, 658 (5th
Cir. 1996) (“Vessels navigating the Mississippi River must adhere to the Narrow Channel Rules
(Rules 9 and 14) unless otherwise agreed.” (emphasis added)).

13
Specifically, she navigated close to the right descending bank, passed the ANTWERPEN on

the vessel’s port side at a safe distance, and did not turn to port (toward the ANTWERPEN

and the left descending bank) until she was “in the pocket” and able to safely navigate behind

the ANTWERPEN’s stern.

Moreover, according to the evidence presented at trial, when viewed as a whole, the

district court could reasonably have concluded that the LADY JEANETTE and the

ANTWERPEN passed at a safe distance and were never at risk of colliding. Therefore, the

navigation rules regarding risk of collision in general (specifically Rules 7 and 8) would not

apply, and the district court’s conclusion that the LADY JEANETTE did not violate them

was not based on a misunderstanding of the law. Marvita’s principal argument to the

contrary is that the district court misunderstood the meaning of “risk of collision” and thus

erred in its application of the law to the facts. Specifically, because the court, in finding no

risk of collision, mentioned Pilot Grue’s failure to communicate to Captain Ayars that he

thought the vessels were at “imminent” risk of collision, Marvita argues that the district court

erroneously thought a risk of collision exists only when a collision is imminent. Marvita

cites a Second Circuit decision, which states that “it is not necessary for a collision to be

imminent or even probable before the obligation imposed by [the rules] accrues[,] . . . [but]

‘[t]here is danger or risk of collision whenever it is not clearly safe to go on.’”24 We are not

persuaded that the district court misunderstood the law by using the term “imminent” in

24
Ocean Marine Ltd. v. U.S. Lines Co., 300 F.2d 496, 499 (2d Cir. 1962) (quoting The
Aurania, 29 F. 98, 123 (S.D.N.Y. 1886)).

14
reference to the existence of a risk of collision because the court concluded that the risk of

collision was not imminent, not that the collision itself was not imminent. Moreover, in

finding no risk of collision, the district court could reasonably have credited Captain Ayars’s

testimony that the ANTWERPEN could not have hit the LADY JEANETTE if she tried and

concluded that collision was not simply a remote possibility, but an impossibility.

Because we do not find the district court’s factual findings regarding negligence and

causation clearly erroneous, nor its legal conclusions based on a misunderstanding of the

navigation rules, we AFFIRM the district court’s judgment in favor of the LADY

JEANETTE, F & L Marine Management, and Sandbar III, Inc.

15