Zapata Haynie Corp. v. Arthur

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 91-4432
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ZAPATA HAYNIE CORPORATION,

Plaintiff-Appellee,

versus

FRANCIS ARTHUR, ET AL.,

Defendants,

MARY KING-HILL, Etc., MARGARET HEBERT
JACKSON, Etc., and NATURAL GAS PIPELINE
COMPANY OF AMERICA, LILLIE MAE WILLIS,
MRS. GUSSIE MAE JACKSON, Etc., LINDA
BENJAMIN, Etc., FRANCIS McNEAL GOUGH,
BILLIE McDOUGLE, Etc.,

Defendants-Appellants.

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Appeals from the United States District Court
for the Western District of Louisiana
_________________________________________________________________
(December 15, 1992)

Before JOLLY and HIGGINBOTHAM, Circuit Judges, and WILLIAMS,
District Judge:*

E. GRADY JOLLY, Circuit Judge:

In this appeal, we review the district court's judgment

exonerating Zapata Haynie Corporation from liability for injuries

and damages resulting from the collision of its vessel, the F/V

NORTHUMBERLAND, with a natural gas pipeline owned by Natural Gas

*
District Judge of the Northern District of California,
sitting by designation.
Pipeline Company of America ("NGP"). We find no reversible error,

and therefore AFFIRM the judgment of the district court.

I

Shortly before 6:00 p.m. on October 3, 1989, the F/V

NORTHUMBERLAND, a menhaden fishing vessel owned and operated by

Zapata, struck a submerged sixteen-inch-diameter natural gas

pipeline owned by NGP. Although the pipeline was required to be

buried three feet below the surface of the Gulf of Mexico, it had

become partially exposed. Within seconds after striking the

pipeline, the vessel was engulfed in flames. Of the fourteen

persons on board at the time of the accident, eleven died (two in

the explosion and fire, and nine by drowning).

Zapata filed a complaint for exoneration from and/or

limitation of liability pursuant to the Limitation of Shipowners'

Liability Act, 46 U.S.C. §§ 181, et seq. NGP, the crewmembers, and

the survivors of the deceased crewmembers ("the Jones Act

claimants") filed claims and contested Zapata's right to limitation

or exoneration. Following a three-week trial, the district court

found that the accident was caused solely by the negligence of NGP,

and that Zapata was not at fault for either the accident or any of

the resulting injuries or deaths. NGP has not appealed the finding

that it was negligent.

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 II

A

NGP and the Jones Act claimants contend on appeal that the

district court clearly erred in finding that Zapata was not

negligent in causing the accident or the resulting injuries and

deaths. NGP further contends that, because the district court made

no reference to the legal standard it applied in determining

whether Zapata was negligent in striking the pipeline, it must have

applied the wrong standard. We disagree. When addressing the

Jones Act claimants' arguments that Zapata had a duty to require

the crewmembers to wear flotation devices at all times and/or to

teach them to swim, the district court stated that Zapata "did not

breach any duty which would subject it to liability under either

routine negligence or Jones Act standards." Based on our review of

the record and the district court's opinion, we are convinced that

the district court applied the appropriate legal standards in

determining all of the issues before it.

Under the Jones Act, Zapata "must bear the responsibility for

any negligence, however slight, that played a part in producing the

plaintiff[s'] injury." In re Cooper/T. Smith, 929 F.2d 1073, 1076-

77 (5th Cir.), cert. denied sub nom. Abshire v. Gnots-Reserve,

Inc., ___ U.S. ___, 112 S. Ct. 190 (1991). The burden of proving

causation under the Jones Act is "very light" or "featherweight."

Id. at 1076. "Questions of negligence in admiralty cases are

treated as factual issues, and are thus subject to the clearly

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erroneous standard." Noritake Co., Inc. v. M/V Hellenic Champion,

627 F.2d 724, 728 (5th Cir. 1980). A factual 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." Anderson

v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (citation

omitted). "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. Where there are two permissible views of the

evidence, the factfinder's choice between them cannot be clearly

erroneous." Id. at 573-74.

B

NGP contends that Zapata was negligent in failing to heed

published warnings regarding the dangers of navigating near

pipelines; failing to ensure that the master of the F/V

NORTHUMBERLAND, Captain Gough, knew how to read a nautical chart,

and used it for navigation; failing to equip the vessel with a

fathometer; and failing to use caution in shallow water pipeline

areas or to leave a margin of safety below its keels. It further

contends that Zapata's assumption that all pipelines are always

buried was negligent in the light of its knowledge of two prior

collisions with exposed pipelines, Captain Gough's personal

experience in pulling up a pipeline with his anchor, and the lack

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of any authoritative navigational aid advising mariners of the

depth at which pipelines are buried.

(1)

NGP contends that Zapata negligently ignored Coast Guard

publications warning of the higher level of care required of

mariners navigating near pipelines. The district court found that

there was no evidence that Captain Gough's failure to consult these

publications caused or contributed to the accident. This finding

is supported by the evidence and is not clearly erroneous.

(2)

NGP next contends that Zapata negligently failed to use

nautical charts. The nautical chart of the area depicted the NGP

pipeline, but did not indicate whether it was buried. The chart

warns mariners to use caution "when anchoring, dragging or

trawling" in pipeline areas. Captain Gough did not consult this

chart before the collision, and there was evidence indicating that

he did not know how to read and interpret the chart. However, the

district court found that Captain Gough's failure to consult the

chart was not a cause of the accident:

Even had Captain Gough noted the location of the
pipeline on the chart, or plotted it from the chart
or Loran, he had no reason to believe that he could
not safely navigate over it; he had fished the
waters in the area for thirteen years five days a
week, six months a year, and made thousands of sets
without any problems. Nor would avoidance of the
charted location have prevented this accident
because the charted location of the pipeline was
approximately [150] feet west of the actual
location of the pipeline.

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The record contains ample evidence to support these findings.

(3)

NGP maintains that Zapata was negligent in failing to equip

the F/V NORTHUMBERLAND with a fathometer, leaving Captain Gough

with no way to determine the depth of the water other than by

nudging the bottom and backing off. The record contains

considerable evidence that Zapata's vessels frequently touch bottom

while engaged in menhaden fishing operations. However, Captain

Gough and the two other survivors all testified that the vessel was

not touching bottom at the time of the collision. The district

court found that all of Zapata's navigational equipment was in

working order and met or exceeded Coast Guard requirements. It

further found that there was no showing that a fathometer would

have enabled the vessel to avoid this accident. Those findings are

not clearly erroneous.

(4)

NGP introduced evidence that Zapata and Captain Gough

routinely operated their ships at or below the mudline in shallow

water. Because the menhaden fish often school close to the shore

in six to twelve feet of water, and Zapata had a policy of "no

fish, no pay," NGP asserts that economic pressures led the crews to

pursue the fish into this shallow water despite the fact that the

draft of the ships often exceeded the water depth. Nevertheless,

the district court found that the F/V NORTHUMBERLAND was not

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operating below the mudline when the accident occurred. As we have

previously stated, that finding is not clearly erroneous.

(5)

NGP cites the following as evidence that Zapata's reliance on

the assumption that all pipelines are always buried was

unreasonable: (1) in 1981, the Zapata ship MISSISSIPPI SOUND,

operating in shallow waters, struck a gas pipeline that had become

exposed; (2) Zapata was aware that in 1987, the menhaden ship SEA

CHIEF struck a pipeline that had become exposed, and the Coast

Guard's investigation found a contributing cause to have been the

ship's operation at or near the sea bottom; (3) earlier in 1989

prior to the collision, Captain Gough picked up another pipeline

with the NORTHUMBERLAND's anchor in the Sabine Pass area and set it

back down, without reporting the incident to the government or any

pipeline company; and (4) Zapata's spotter pilot, who directed the

NORTHUMBERLAND to a school of menhaden prior to the collision, knew

that NGP's pipeline traversed that area, and knew that coastal

erosion had occurred in the area. NGP contends that because Zapata

and Captain Gough knew of these incidents, they had no legitimate

basis for assuming that the pipelines were buried, especially since

they did not even know the depth of such assumed burial.

The district court found that the incidents cited by NGP were

not of a nature to put Zapata on notice that it should expect other

pipelines to be unburied. Based on the evidence in this record, we

cannot say that the district court's finding is clearly erroneous.

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Although we consider Zapata's assumption that all pipelines are

always buried to be somewhat troubling in the light of its

knowledge of these other incidents, we are mindful of Captain

Gough's testimony that he had fished the waters in the area for

thirteen years without any problems, and of the evidence that

numerous other fishing vessels operated in the same area over the

years without mishap.

C

NGP relies on our court's recent decision in Pennzoil

Producing Co. v. Offshore Express, Inc., 943 F.2d 1465 (5th Cir.

1991) in support of its argument that Zapata must bear some

responsibility for the accident. In that case, Offshore's vessel

struck a natural gas pipeline 25 feet outside of the dredged

channel on a dark and foggy night. The district court found that

the Offshore vessel's captain was negligent in proceeding up a

canal in the fog, at a speed greater than was prudent under the

circumstances, without using his spotlight or fathometer, and

without posting a look-out in the bow. Offshore argued that the

right to navigation was paramount, and that by allowing its

pipeline to become an obstruction to navigation, United Gas should

bear sole responsibility for the accident. Our court rejected that

argument, and affirmed the district court's assessment of

Offshore's fault at fifty percent, stating:

It is certainly true that the right to navigate is
paramount, and that those who place objects in,
under, or over a waterway must do so in a way that

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 does not interfere with navigation, including
navigation outside a dredged channel. Offshore
Express is incorrect, however, to assert that this
right of navigation is wholly unfettered: when a
mariner knows of obstructions to navigation, he
must avoid them.

943 F.2d at 1470.

NGP contends that the district court's findings in this case

and our court's holding in Pennzoil cannot both be correct, because

the cases are indistinguishable. NGP's argument fails to apprehend

our function as an appellate court. We do not sit as the trier of

fact, and we cannot reverse a district court's findings simply

because we might have viewed the evidence differently. The

district court in Pennzoil found that the master of the Offshore

Express vessel knew of the existence and location of the pipeline

and was negligent in failing to use a fathometer and in running at

an imprudently high speed on a dark and foggy night. On appeal,

our court held that those findings were not clearly erroneous. In

this case, the district court found that Captain Gough was

navigating the vessel in a prudent manner at the time of the

accident, and that he had no reason to know that the NGP pipeline

was not buried. Those findings are supported by the evidence and

are not clearly erroneous. The difference in the results of this

case and the Pennzoil case reflects nothing more than a proper

application of the clearly erroneous standard of review.

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 D

The Jones Act claimants, relying on case law holding that

maritime employers have a duty to instruct employees as to the

proper use of life-saving devices, contend that Zapata was

negligent in failing to either require its crewmembers to wear

flotation devices at all times, or teach them to swim. They point

out that Zapata knew that most of the crewmembers could not swim,

and further note that the only non-swimmer who survived happened to

be wearing a ski belt at the time of the accident. The other two

survivors were both swimmers. The nine crewmembers who drowned

were not wearing any flotation devices at the time of the

collision.

The district court found that the NORTHUMBERLAND met or

exceeded all Coast Guard requirements for safety training and

equipment. Safety drills were conducted to teach emergency

procedures, and crewmembers were instructed as to the use of safety

equipment on board. Each crewmember had a personal flotation

device, and additional flotation devices were located on deck and

in the pilot house. Although Zapata required crewmembers to wear

flotation devices while aboard the purse boats and while crossing

back and forth between the purse boats and the steamer, it did not

require them to wear flotation devices while on the steamer.

Although the district court found that the nine crewmembers

who drowned might have had an increased chance for survival if they

had been wearing flotation devices at the time of the collision, it

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concluded that Zapata had no legal duty to require the crewmembers

to wear flotation devices on board the steamer at the time of the

accident. The district court pointed out that the vessel was in

calm seas, under clear skies in daylight, and was not engaged in

any dangerous maneuver at the time of the accident. It found that

the crewmembers were unable to make use of the life jackets and

other safety equipment on board because the vessel was engulfed in

flames in three to five seconds, and there was not enough time for

anyone to grab flotation devices before abandoning ship.

The district court's finding that Zapata took all reasonable

precautions to safeguard the crew is not clearly erroneous. We

decline to impose a general duty on vessel owners to teach

crewmembers to swim or to require crewmembers to wear flotation

devices at all times.

E

Because we hold that the district court did not clearly err in

finding that Zapata was not at fault for the collision and

resulting injuries, it is unnecessary to address the Jones Act

claimants' contention that exoneration can be granted as to some

claimants and denied as to others.

III

Our review of the record in its entirety convinces us that the

district court's factual findings are not clearly erroneous.

Accordingly, the judgment of the district court is

A F F I R M E D.

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