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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