IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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NO. 95-30015
Summary Calendar
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MARINE TRANSPORT LINES, INCORPORATED,
Plaintiff-Appellee,
versus
TAKO INVADER MV, her engines, tackle, etc.,
in rem; TAKO TOWING INCORPORATED;
LUMAR MARINE INCORPORATED, Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court for the
Eastern District of Louisiana
(CA 92 3882 "N")
_________________________________________________________________
August 1, 1995
Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM*:
Tako Towing, Inc., and Lumar Marine, Inc., appeal the district
court's judgment determining that the M/V Tako Invader violated
Rule 14 of the Inland Navigational Rules1 and allocating to her 75%
of the fault for the collision. We affirm.
I.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
1
Inland Navigational Rules Act of 1980 ("Inland
Navigational Rules"), 33 U.S.C. § 2001 et seq.
Marine Transport Lines, Inc. ("Marine Transport"), brought an
admiralty action against M/V Tako Invader, Lumar Marine, Inc. and
Tako Towing, Inc. (collectively referred to as "Tako Towing") to
recover damages its barge sustained in a collision with the M/V
Tako Invader on the Mississippi River.2 Marine Transport alleged
that the M/V Tako Invader's negligent operation and failure to
adhere to the applicable navigational rules caused the collision
and resulting damage to Marine Transport's barge. The district
court found the M/V Tako Invader in violation of Rules 7, 8, 9, and
14 of the Inland Navigational Rules, and the M/V Marine Guardian in
violation of Rules 7, 8, 14, and 34. Based on this finding, the
court apportioned 75% of the fault to the M/V Tako Invader and 25%
to the M/V Marine Guardian.
Tako Towing appealed, arguing that the district court's
findings were clearly erroneous and that the district court
misinterpreted Rules 9 and 14. This Court determined that,
although the district court found that M/V Tako Invader's position
on the eastern side of the river in contravention of the port-to-
port passage established by Rules 9 and 14 violated the statute,
the case should be remanded because the M/V Tako Invader's position
did not "conclusively establish that she violated Rule 14, and the
court did not make the findings necessary to support its
application of Rule 9." Marine Transp. Lines, Inc., 37 F.3d at
1145. We further opined that if the district court determined that
2
A complete recitation of the facts can be found in this
Court's previous opinion in this case: Marine Transp. Lines,
Inc. v. M/V Tako Invader, 37 F.3d 1138, 1139-40 (5th Cir. 1994).
2
the M/V Tako Invader violated Rules 9 and 14, a 75-25 apportionment
of fault in favor of Marine Transport would not be clearly
erroneous. Id. at 1146.
On remand, the district court found that (1) the Luling Bridge
section of the Mississippi River is 1200 feet wide and is not a
narrow channel requiring the application of Rule 9; (2) "[g]iven
the M/V Tako Invader's position on the east (port) side of the
river, it was unable to pass the upbound M/V Marine Guardian port-
to-port as required by [Rule 14]"; (3) there is no evidence
suggesting that M/V Tako Invader complied with the requirements of
Rule 14(d); and (4) the evidence established that the M/V Tako
Invader failed to comply with Rule 14(d) and was required to comply
with Rule 14(a). The district court also determined that its
previous allocation of fault should stand.
II.
We review the district court's factual findings of relative
fault in a collision for clear error. Inland Oil & Transp. Co. v.
Ark-White Towing, 696 F.2d 321, 325 (5th Cir. 1983). "A 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."
United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525,
92 L.Ed. 746 (1948). Tako Towing does not challenge the district
court's determination that Rule 9 was not applicable because the
Luling Bridge section of the Mississippi is not a narrow channel,
or the determination that the M/V Tako Invader did not satisfy the
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requisites of Rule 14(d). Tako Towing contends that the
determination of whether M/V Tako Invader violated Rule 14 requires
an examination of the undisputed location of the collision. Tako
Towing argues that because Rule 14(d) bestowed the right-of-way
upon the M/V Tako Invader and burdened the M/V Marine Guardian with
avoiding her and because M/V Tako Invader's position in the river
did not render M/V Marine Guardian unable to pass port-to-port as
required by Rule 14, the district court's determination that the
M/V Tako Invader violated Rule 14 by virtue of her position in the
river without considering the course and location of the two
vessels was clearly erroneous.
Rule 14(a) of the Inland Navigational Rules states the general
rule that when two power-driven vessels are meeting on reciprocal
courses, "each shall alter her course to starboard so that each
shall pass on the port side of the other." 33 U.S.C. § 2014(a).
We find that Tako Towing's assertion that the right-of-way
provision set forth in Rule 14(d)3 burdened the M/V Marine Guardian
to avoid the downbound M/V Tako Invader misperceives this Court's
holding in the first appeal. Although the Court held that "Rule
3
Rule 14(d) provides as follows:
Notwithstanding paragraph (a) of this Rule, a power-driven
vessel operating on the Great Lakes, Western Rivers, or
water specified by the Secretary, and proceeding downbound
with a following current shall have the right-of-way over an
upbound vessel, shall propose the manner of passage, and
shall initiate the maneuvering signals prescribed by Rule
34(a)(i) as appropriate.
33 U.S.C. § 2014(d).
4
14(d)'s right-of-way for downbound vessels modifies Rule 14(a) in
the same way that Rule 9(a)(ii) modifies Rule 9(a)(i)," it further
instructed that
a vessel descending the Mississippi River must adhere to
the default requirements of Rules 9 and 14 . . . unless
otherwise agreed [and that] downbound vessels may force
a departure from these default rules provided they comply
with the requirements in Rules 9(a)(ii) and 14(d) that
they propose the manner of passage and initiate
maneuvering signals prescribed by Rule 34(a)(i) as
appropriate.
Marine Transp. Lines, Inc., 37 F.3d at 1145. Tako Towing concedes,
and the evidence elicited from its witness supports, the district
court's determination that M/V Tako Invader did not satisfy Rule
14(d)'s requirements because M/V Marine Guardian did not receive or
assent to a proposal from the M/V Tako Invader for a starboard-to-
starboard passage. Having failed to comply with the statutory
requisites for invoking the conditional right-of-way, M/V Tako
Invader was bound by Rule 14(a), which mandated a port-to-port
passing. Id. The uncontested testimony of M/V Marine Guardian's
Captain Jack Sears established that (1) the Luling Bridge section
of the Mississippi is approximately 1200 feet wide; (2) immediately
prior to the collision, the M/V Marine Guardian passed the upbound
M/V Creole Rivers on her starboard side; (3) he did not hear the
M/V Tako Invader attempt radio contact with the M/V Marine Guardian
or attempt to communicate a passing agreement by whistle; (4) he
heard the M/V Tako Invader confirm a port-to-port passing agreement
with the M/V Creole Rivers; and (5) at the time of the collision,
there was approximately 800 feet between the port side of the M/V
Marine Guardian and the pylon located on the west (starboard) side
5
of the river. Because the district court's findings that M/V Tako
Invader did not satisfy Rule 14(d) and did not maintain the
starboard-to-starboard course even though it was in a position to
do so, the district court's determination that the M/V Tako Invader
violated Rule 14 was not clear error. See Ohio Barge Line, Inc. v.
Oil Transp. Co., 280 F.2d 448, 453 (5th Cir. 1960) (downbound
vessel was solely at fault for crowding upbound vessel in
starboard-to-starboard passage without concurrence when evidence
adduced at trial placed upbound vessel on her side of the river).
III.
Tako Towing further asserts that this Court's determination
that it could not find that a 75/25 apportionment of fault in favor
of Marine Transport would be clearly erroneous if the district
court found on remand that the M/V Tako Invader violated Rules 9
and 14 of the Inland Navigational Rules contains an implicit
determination that the apportionment may be clearly erroneous if
Rule 9 is found to be inapplicable because the district court
failed to conclusively establish a Rule 14 violation. We find that
Tako Towing has misconstrued this Court's rationale for remanding
the case. The original findings of the district court were
insufficient to establish a "conclusive" violation of Rule 14
because the district court had not found explicitly that the M/V
Tako Invader failed to comply with the requisites of Rule 14(d);
had she complied, her position on the eastern side of the river may
have been appropriate. Because the district court subsequently
determined that the M/V Tako Invader did not prove her entitlement
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to the Rule 14(d) right-of-way, the M/V Tako Invader was required,
but did not effect, the port-to-port passing mandated by Rule
14(a). We reject Tako Towing's argument that the apportionment was
clearly erroneous based on our previous decision and the district
court's subsequent finding that Rule 9 did not apply. Accordingly,
we find the apportionment of damages was not clearly erroneous; the
district court was not required to address Tako Towing's
speculation that such an apportionment "might be clearly erroneous"
if Rule 9 did not apply.
IV.
For the reasons articulated above, the judgment of the
district court is AFFIRMED.
7