United States Court of Appeals,
Fifth Circuit.
No. 93-3612.
SEA-LAND SERVICE, INC. Plaintiff-Appellee
v.
CRESCENT TOWING & SALVAGE COMPANY, INC., etc., et al.,
Defendants,
Crescent Towing & Salvage Company, Inc., f/k/a Harbor &
Tideland's Towing Corporation, Defendant-Appellant.
Jan. 24, 1995.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before POLITZ, Chief Judge, SMITH, Circuit Judge, and HAIK,1
District Judge.
HAIK, District Judge:
Crescent Towing & Salvage Company, Inc. (Crescent) appeals the
district court's finding of fault and the award of attorneys fees.
For the reasons discussed below, we affirm on the issues of fault
and reverse the award of attorneys fees.
I.
STANDARD OF REVIEW
Crescent advocates de novo as the appropriate standard of
review. Crescent argues that a de novo standard should apply where
factual findings are based on mainly documentary evidence.
Crescent cites Bose Corp. v. Consumers Union of the United States,
1
District Judge of the Western District of Louisiana,
sitting by designation.
1
Inc.2 Bose is inappropriate because it involves first amendment
litigation in which the appellate court has an obligation to make
an independent examination of the entire record. Crescent's
position is not supported by the controlling rule,3 which provides
that "[F]indings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous...."
II.
BACKGROUND
Crescent owned and operated the tug BETTY SMITH. Sea-Land
Service, Inc. (Sea-Land) owned and operated the M/V SEA LAND
EXPEDITION, an oceangoing container vessel. On July 30, 1989,
Miguel Acevedo, a sternmate aboard the SEA LAND, was injured during
an unberthing maneuver.
At the time of the accident, the SEA LAND was docked at the
France Road Wharf. Two tugs, the BETTY SMITH at the stern and the
PORT ALLEN at the bow, were standing-by, until needed to assist the
SEA LAND in a turnaround.
The SEA LAND's sternmates, Juan Toro, Pedro Torres and Acevedo
were singling up the shorelines. The stern was secured using three
wires and two lines. When all lines were released except one
springline, Acevedo indicated to Thirdmate Sink that the line was
taut. Sink does not speak Spanish and Acevedo does not speak
English. Sink indicated to Acevedo to continue.
After Acevedo removed two wraps of the line off the bitt, the
2
466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).
3
Fed.R.Civ.P. 52(a).
2
line jumped the bitt, striking Acevedo in both wrists, breaking his
forearms.4
Acevedo sued Sea-Land in Puerto Rico. Sea-Land settled for
$125,000, then filed suit for indemnification against Crescent.
The trial court found Crescent at fault for prematurely pulling on
the towline. Sea-Land was also assessed with fault for failure to
intercede when Acevedo indicated that there was a hazardous
situation.
The bench trial resulted in judgment in favor of Sea-Land for
$94,228.16. The allocation of fault was sixty-five percent to
Crescent and thirty-five percent to Sea-Land. Damages included
(among other items) $15,728.00 attorney fees for the defense
against Acevedo's claims in the Puerto Rico suit.
Crescent now appeals the allocation of fault and the award of
attorneys fees. We affirm the allocation of fault and reverse the
award of attorneys fees.
III.
SUFFICIENCY OF EVIDENCE
Crescent appeals the finding of the trial court that Crescent
breached its duty of workerlike performance and its duty to
exercise reasonable maritime skill. Crescent alternatively claims
Sea-Land should have been assessed a greater degree of fault.
In support of its position on appeal, Crescent identifies
indicators of Sea-Land fault as follows: The SEA LAND crew was
4
As a result of his injuries, Acevedo underwent two
surgeries, one on each hand, to repair carpal tunnel syndrome.
3
working fast because of a delay; the stern was understaffed; SEA
LAND crew members knew the taut springline was unsafe; the SEA
LAND crew did nothing to prevent the accident; the language
barrier prevented clear communication of the problem to the pilot.
Crescent makes the argument that a tug cannot maintain a
"belly" in the hawser line at all times. A twin screw tug, such as
the BETTY SMITH, must periodically engage alternating engines to
maintain a steady position in the water. Crescent argues that a
finding of fault based primarily on evidence of a taut hawser
places an unrealistic burden on tugboats.
This argument is well taken.
However, during an unberthing procedure, it is especially
important that a tug maintain a belly in the hawser line. This is
important to prevent precisely the type of accident which occurred
in this case.
Captain Johnson testified5 that the tug should not have
propeller wash while the ship is undocking. He testified that the
tug should have been in neutral gear at the time of the accident.
He went further to say that if the tug were not in a neutral gear
and there was propeller wash, then the tug acted without orders
from the ship's pilot.
In the instant case there was ample evidence to support the
finding that the tug pulled away prematurely and without orders
from the pilot. Thirdmate Sink's observation of propeller wash and
Captain Johnson's testimony combine to give a clear indication that
5
Page 159 et seq. of Exhibit One of the trial exhibits.
4
Crescent was at fault.
Thirdmate Sink's observations immediately after the accident
were given considerable weight in evaluating the cause of the
accident. He saw smoke from the springline, propeller wash from
the tug, and an unusually taut hawser line between the tug and
ship. In fact, Sink said the hawser was "straight out". This
indicates more than just a temporary loss of the "belly" in the
towline. The trial judge found this persuasive proof that the tug
pulled away prematurely, placing a strain on the springline and
thereby creating a dangerous situation. A tug can be liable to a
seaman aboard the vessel being towed where the seaman is injured
due to the tug's premature attempt to tow the vessel.6
The trial court stated in its reasons that Crescent would
have been held completely responsible for Acevedo's injuries but
for the actions or failure to act on the part of Thirdmate Sink,
and/or Pilot Johnson.
A finding of fact is clearly erroneous only if our review of
the entire record impels the definite and firm conviction that a
mistake has been committed.7 No such mistake was made in this
case.
IV.
ATTORNEYS FEES
Crescent contends that there is no basis for including
6
Simeon v. T. Smith & Son, Inc., 852 F.2d 1421 (5th
Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104
L.Ed.2d 1019 (1989).
7
Sullivan v. Rowan Cos., 952 F.2d 141, 147 (5th Cir.1992).
5
attorney fees (incurred in the Puerto Rico suit between Sea-Land
and Acevedo) as an item of damages; Crescent urges that each party
should bear its own attorney fees. Crescent was not named in the
first suit and was not informed of that suit until after the
settlement. Crescent also contends that since Sea-Land and
Crescent were adverse, Sea-Land would have incurred the attorney
fees anyway.
Sea-Land contends that since Crescent breached the warranty of
workerlike performance, attorney fees are a recoverable item. Sea-
Land cites Singer v. Dorr8 and Stevens v. East-West Towing9 in
support.
The facts presented in both cases are different from the
facts presented here. Indemnification was awarded in both Singer
and Stevens. Indemnification was not awarded and is not
appropriate in this case because both Crescent and Sea-Land were
found to be at fault. When the warranty of workerlike performance
is breached, a co-tortfeasor (Sea-Land in this case) is not
shielded from a claim for contribution. And where contribution is
appropriate, an award of attorneys fees is not.
Sea-Land contends that the holding in Odd Bergs Tankrederi A/S
v. S/T Gulfspray10 has no effect on this case because Sea-Land is
not claiming recovery under a contribution theory. Sea-Land seeks
recovery under an indemnification theory for breach of warranty of
8
272 F.Supp. 931 (E.D.La.1967).
9
649 F.2d 1104 (5th Cir.1981).
10
650 F.2d 652, 655 (5th Cir.1981).
6
workerlike performance.
It is uncontroverted that Sea-Land was partially at fault for
the injuries suffered by Acevedo. Sea-Land does not appeal the
thirty-five percent allocation of fault. While the trial court
found that there was a breach of the warranty of workerlike
performance, Sea-Land is not entitled to full indemnity. Sea-
Land's partial fault precludes full indemnification. That is, Sea-
Land is entitled to a contribution (or partial indemnity) from
Crescent and no more.
Attorneys fees, under the facts of this case, are not a
recoverable element of damages. While attorneys fees may be an
appropriate item for damages when a vessel is vicariously liable
for the acts of a tug, it may not be awarded when proportionate
fault and contribution are applied.
Odd Bergs holds that attorneys fees and legal costs incurred
by a defending co-tortfeasor are not recoverable by way of
contribution from other parties who are liable. That rule is clear
and directly on point in this case.
V.
CONCLUSION
For the above stated reasons, we AFFIRM the judgment of the
trial court in part and REVERSE and RENDER the judgment in so far
as it awards attorneys fees.
7