[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR TH E ELEV ENTH C IRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-16691
JULY 24, 2003
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 00-00218-CV -T-27-F
SUN DER LAN D M ARIN E MU TUA L INS URA NCE COM PAN Y, LT D.,
CER TAIN UND ERW RITE RS A T LL OYD S,
Subscribing to Policy Number
97-HV123/HV 126, as their
interests m ay appea r,
Plaintiffs -App ellees,
versus
WEE KS M ARIN E CO NST RUC TION COM PAN Y,
Defen dant-A ppellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 24, 2003)
Before CAR NES, W ILSON and GOD BOLD , Circuit Judges.
PER CURIAM:
This case arises from the allision of two vessels. Sunderland Marine Mutual
Insuran ce Com pany, L td. and C ertain U nderw riters at Llo yd’s bro ught su it in
admiralty against Weeks Marine Inc. The district court sitting without a jury found
that both vessels equally contributed to the allision and apportioned the damages
accordingly. Weeks now appeals, alleging that it did not contribute to the allision
for it was not in violation of Navigational Rules. Alternatively, Weeks says that
even if it w as at fault, th e district co urt erred in appo rtioning damag es equally
betwee n the par ties. We a ffirm the judgm ent of the district cou rt.
The appellees shrimp boat was caught in a fog en route to a fishing trip. The
captain, who had a trace of cocaine in his system, negligently took the wrong
marker setting co urse tow ards Ed mont K ey. The a ppellant, in connec tion with its
dredging project, had used a mooring buoy to anchor an unlit barge in open water,
outside Edmont Key’s channel. The appellees’ boat allided with the barge. The
allision caused a crack in the boat, causing the boat to eventually sink. The
appellees sued for damages. The district court found both parties negligent and
apportioned the damages acc ordingly. The appellant now appeals.
The dis trict court’s legal con clusions are subje ct to de no vo revie w. New ell
v. Prudential Ins. Co. of Am., 904 F.2d 644, 649 (11th Cir. 1990) but the district
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court’s fa ctual find ings w ill not be d isturbed unless th ey are clear ly errone ous.
American Dredging Co. v. Lambert, 153 F .3d 129 2, 1295 (11th C ir. 1998 ).
There are four issues on appeal. Whether the trial court correctly found that
the appellant violated the Navigational Rules; whether such violations contributed
to the resulting allision; whether the district court correctly apportioned the
damages between the parties; and whether the district court properly awarded pre-
judgm ent interes t.
Anchored v. Moored
Anchoring is a subset of mooring. Per Black’s Law Dictionary, one can
either mo or via an chor or moor b y makin g fast to th e shore o r dock. B LACK’S L AW
D ICTIONARY 909 (5 th Ed. 1979). The traditional distinguishing factor of a moored
vessel versus an anchored vessel has been that the former is moored to a permanent
object su ch as a do ck or a p ier while the anch ored ve ssel is anch ored in o pen w ater.
T HE O XFORD C OMPANION TO S HIPS & THE S EA 559 (1988). “A m ooring is a
permanent location to which a vessel ties and thus moored vessels are located in an
expected place. In contrast, an anchorage is a temporary location, often occurring
in the traveled way, and thus anchored vessels are not located in expected places.”
Self Towing, Inc. v. Brown Marine Services, Inc., 837 F.2d 1501, 1505 (11th Cir.
1988). The safety requirements for an anchored vessel, thus, are generally higher,
for its pre sence is in unexp ected plac es. Id.
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The us age of m ooring buoys c hanges the perm anency o f tradition al moor ing.
T HE O XFORD C OMPANION TO S HIPS & THE S EA 119-120 (1988). Generally, the
moorin g buoy is anchored wh ile the vess el is conn ected to th e moor ing buo y via
moorin g lines. T hus, mo oring b uoys can be and a re located in open water. Id.
Since the presence of the mooring buoy and any vessel moored to it is unexpected,
the Coa st Guar d clarified the respo nsibilities o f the vess el operato rs who moor to
mooring buoys and other similar devices by adding interpretive rules to the Inland
Navigation Rules. “The interpretative rules are added to ensure that the term
vessels at anchor in Rule 30 of the COLREGS and the Inland Rules includes
vessels moored to a mooring buoy.” 63 F.R. 5728, 5729.
Here, the appellant had secured the barge to the mooring buoy via mooring
lines, located in open water. The barge was, therefore, not moored in the
traditional sense. It was not connected to a permanent location, such as a dock or a
pier, but w as located in open water, sim ilar to a trad itionally an chored vessel.
The district court did not err in finding that the mooring lines extending from the
mooring buoy anchored the barge owned by the appellant, and therefore, that the
barge w as at anch or, subje ct to the ru les applica ble to an a nchore d vessel.
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The Navigational Rules Violated
Lighting
The ob ligation to display p roper lig hts is firm ly establish ed by bo th
domestic and international regulation as part of the law of the sea. John Wheeler
Griffin , LL.B ., T HE A MERICAN L AW OF C OLLISION §83 (1 949). T he basis f or this
universal requirement is to protect persons and property by enabling vessels to be
able to see at night. Waring v. Clare, 46 U.S. 441, 465 (1847). “The extreme
blackness of water at night makes a ny departure from light rules ‘one of the m ost
wrecklessly [sic] unlawful acts a vessel can commit.’” Cliffs-Ned rill Turnkey In t’l
Oranjestad v. M/T Rich Duke, 947 F .2d 83, 8 8 (3d C ir. 1991 ). Failure to comp ly
“shall be proved to exist when injury shall occur to persons or property, it throws
upon the master and owner of a steamer the burden of proof, to show that the
injury done was not the consequence of it.” Waring, 46 U.S . at 465.
The Navigational Rules requiring lights for anch ored vessels are 33 U.S.C.
§2030 and 33 U.S.C . §2022 . 33 U.S .C. §2030 (“Rule 30”), states in pertinent part
in subpar t (a) that ve ssels at anc hor w ill display tw o all-round white lights: on e in
the fore part and one near the stern. 33 U.S.C. §2022 (“Rule 22”), details the
intensity of the lights required for all vessels regardless of whether they are moored
or anchored. The level of intensity required changes based on the size of the
vessel. §2022.
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The co urt corre ctly foun d that the a ppellant v iolated R ule 30 b y failing to
equip th e ancho red barg e with th e appro priate ligh ts as requ ired by § 2030 ( a).
Moreover, despite repeated warnings, it failed to ensure that the lights with which
the barge was equipped were in working order. “The law as to lights is imperative
. . . The m aster, or o fficer in ch arge, mu st know that the lights are continually up.”
The Conoho, 24 Fed. 758, 760 (1885). The district court correctly found that the
appellant violated Rule 30.
Furthe r, the app ellant viola ted 33 U .S.C. §2 022 (a) . The ap pellant faile d to
ensure that the barge was equipped with lights that were visible to passersby at the
specified intensity. In this case the appellant was required to install lights on the
barge that could be seen between approximately six to two miles away pending on
the location of the lights. §2022. The district judge did not err in finding that the
appellan t violated R ule 22.
Sound
The N avigation al Rules r equire th at vessel at a nchor e mit soun d signals in
restricted v isibility, wh ether it is da y or nigh t, 33 U.S .C. §20 35(f) (“R ule 35”) .
Both statute and prudence require that in times of fog an anchored vessel ring her
bell in accordance with the intervals set out in Rule 35. The appellant’s vessel was
not sounding as required by Rule 35. In fact, it was not even equipped to make
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sound during times of inclement weather. The district court was correct in finding
that that the appellan t had vio lated Ru le 35.
Obstruction of Navigab le Waters
A vessel may not be placed in navigable waters unless a permit is obtained,
33 U.S .C. §40 3. Mo reover, n o vessel m ay be anc hored in navigab le chann els in
such a manner that prevents the safe passage of other vessels, 33 U.S.C. §409. The
purpo se of thes e statutes is to preserv e safe pas sage by o ther vess els. US v. Raven,
500 F.2d 728, 732 (5th Cir. 1974). The issue of “whether an anchorage or
mooring constitutes an obstruction to navigation is to be determined by reference
to all the relevant facts and circumstances . . . .” Orange Beach Water v. M/V Alva,
680 F.2d 1374, 1380 (11th Cir. 1982). A violation of §409 shifts the burden of
proof o nto the p arty wh o obstru cted the n avigable waters. Id at 1381 .
The district court found that the allision took place within the inland waters
in the vicinity of Edgmont Key. The court placed emphasis on the testimony of
Matthew Bryce Lester, a Tampa Bay Pilot, that he had found the barge to be a
navigatio nal hazar d and h ad prev iously inf ormed the appe llant abou t its
obstruction. The court correctly found that the appellant violated not only 33
U.S.C. §409 but also had failed to prove that such violation did not constitute a
navigational hazard.
Additionally, by creating such an obstruction in the navigational water, the
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appellan t was req uired to o btain a pe rmit. §40 3. No s uch per mit was obtained .
The district court did not err finding that appellant violated 33 U.S.C. §403.
The Navigational Rules Violations Contributed to the Allision
The general rule is that the presumption of fa ult for the allision lies against
the mov ing vess el. Bunge Corp. v. M/V Furness Bridge, 558 F .2d 790 , 795 (5 th
Cir. 1997). This burden of proof shifts, however, to the stationary vessel when the
stationary vessel is in violation of a statuto ry rule inte nded to preven t accidents .
The stationary vessel then bears the burden of proof in showing that its statutory
violation could n ot have b een a con tributory cause of the allision . The
Pennsylvania, 86 U.S. 125, 136 (1873). The Pennsylvania rule only determines
who b ears the b urden o f proof and do es not allo cate liability. Pennzoil Producing
Co., et al., v. Offshore Express, Inc., 943 F .2d 146 5, 1472 (5th Cir . 1991) .
As aforementioned, the appellant violated four safety statutes regarding
location, light and sound. Based on these violations the appellant bore the burden
of proving that its violations did not contribute in any way to the allision. The
appellant did n ot meet its burd en. The lack o f sound an d light and the b arge’s
location contributed to the allision. The district court correctly found that the
appellees were n ot the sole cause of the accide nt.
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Apportioned Damages
The dis trict court m ay appo rtion dam ages betw een the p arties pro portion ate
to their degree of fault. The district court may allocate equally “only when the
parties are equally at fault or when it is a not possible fairly to measure the
comparative degree of their fault.” U.S. v. Reliable Transfer Co., Inc., 421 U.S.
397, 411 (1975). Here, the district court found that the appellant had violated four
significan t safety statu tes, Rule 3 0, 35, 33 U.S.C . §403 a nd §40 9. By fin ding bo th
parties equally negligent the district court implicitly stated that either both parties
were eq ually at fau lt or that the compa rative fau lt of each p arty was not fairly
measured. The court did not err in apportioning damages equally between the
parties.
Pre-Judgment Interest
It is the gen eral rule o f this circu it to awar d pre-ju dgmen t interest in
admiralty cases. Ins. Co. of N. Am. v. M/V Ocean Lynx, 901 F .2d 934 , 942 (1 1th
Cir. 199 1). In aw arding p re-judg ment inte rest the dis trict court d oes not n eed to
make sp ecific find ings. Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540,
1550 (11th Cir. 1987). The “district court’s decision on whether to award pre-
judgment interest [is reviewed] for abuse of discretion.” Ins. Co., 901 F .2d at 94 2.
The rate of pre-judgment interest that should be awarded is the prime rate during
the releva nt period . First Nat’l Bank of Chicago v. Standard Bank & Trust, 172
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F.3d 472, 480 (7th Cir. 1999) (unless the rate is statutorily defined, the district
court is bound to award prime interest rate, anything other will be an abuse of
discretion ); The Ohio River Co. v. Peavey Co., 731 F.2d 547, 549 (8th Cir. 1984)
(the interest should be the average prime rate during the relevant period of injury).
The district court awarded the appellees pre-judgment interest at the
prevailing rate per annum from the date of the allision. It correctly found that the
rate wo uld be th e prime r ate durin g the per iod of injury. It did not abu se its
discretion in awar ding pr e-judgm ent interes t.
The jud gment o f the distric t court is A FFIR MED .
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