In Re: Mobro Marine, Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 05-10110 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ April 14, 2006
THOMAS K. KAHN
D. C. Docket No. 02-00471-CV-J-20-HES-TEM CLERK

IN RE: SUPERIOR CONSTRUCTION COMPANY, INC.,
as the owner pro hac vice of the vessel, “Barge Mobro 605,”
in a cause of action of exoneration from, or limitation of, liability,

Consolidated In Re:-Appellant,

versus

CHARLES BROCK, ROBERT BOWERS, et al.,

Claimants-Appellees,

JIMMIE WHITE,

Claimant-Consolidated Claimant-Appellee.
________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(April 14, 2006)

Before BLACK, HULL and FARRIS*, Circuit Judges.

*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
BLACK, Circuit Judge:

On December 29, 2001, a pleasure boat carrying 12 passengers allided1 with

Appellant Superior Construction Co.’s (Superior) stationary barge. After a bench

trial, the district court found Superior liable to the pleasure boat’s injured

passengers and awarded a total judgment of $19,214,689.63 in economic and non-

economic damages. We affirm.

I. BACKGROUND

Although the district court made extensive findings, we set forth only the

findings necessary to place the issues in context. Superior was the general

contractor for the Florida Department of Transportation’s project to widen and

expand the Blanding Boulevard Bridge (the Bridge) over the Cedar River in

Jacksonville, Florida. To assist with the project, Superior entered into a bareboat

charter agreement2 with Mobro Marine, Inc. (Mobro Marine), for use of (1) a 128-

1
An allision is “[t]he sudden impact of a vessel with a stationary object such as an
anchored vessel or a pier.” Black’s Law Dictionary 75 (7th ed. 1999). A collision, on the other
hand, is “[t]he crashing together of two vessels.” Id. at 258. Because Appellees’ moving vessel
crashed into Superior’s stationary vessel, we will refer to the December 29, 2001, incident as an
allision. Regardless, for purposes of this appeal, the distinction between “allision” and
“collision” does not have any bearing on our legal analysis.
2
Under a bareboat charter, also known as a demise charter, “the shipowner surrenders
possession and control of the vessel to the charterer, who then succeeds to many of the
shipowner’s rights and obligations.” Black’s Law Dictionary, supra, at 228–29. The
charterer—in this case Superior—is known as the “owner pro hac vice” of the chartered vessel.
See id. at 229 (emphasis in original).

2
foot long, 38.5-foot wide, and 7-foot deep barge called the Mobro 605 (the Barge);

and (2) a 36-foot long, 14.5-foot wide, and 4-foot deep tugboat called the Mary

Anne (the Tug). The Barge is painted completely black, as are the Tug’s hull and

lower superstructure.

Mobro Marine furnished the Barge to Superior without any permanent or

fixed navigational or mooring lights; thus, Superior devised its own lighting

scheme. Superior’s lighting plan called for a total of ten lights positioned on

strategic sections of the Barge, and two lights on the Tug’s stern.3 On the night of

the allision, however, only three of the ten lights on the Barge, and one of the two

lights on the Tug, actually worked. Two of the Barge’s three functioning lights

were flashing white lights and one was an extremely dim light described by an

eye-witness as “looking like a bathroom nite-light or a distant porch light.” The

Tug’s one operational light was a flashing white light. These four lights—which

were old, scratched, sun-damaged, rust-stained, dirty, and generally in poor

condition—provided the only illumination of the Barge and the Tug.

The Bridge’s 528-foot wide passageway is divided into multiple spans by

support pilings that rise out of the water and connect to the Bridge’s underside.

3
Superior’s and Appellees’ expert witnesses agreed neither the Inland Navigation Rules,
33 U.S.C. §§ 2001–2038, nor the Annex to those Rules, 33 C.F.R. §§ 84–88, address the lighting
of a barge that is tied to a bridge under construction.

3
Although the U.S. Coast Guard has not designated a specific section of the Cedar

River as a federally-marked channel, recreational boaters generally pass through

one of three spans located on the Bridge’s northwest end. The support pilings on

the edges of these three spans have been unofficially marked with spray-painted

arrows. This generally-recognized travel channel possesses deeper water and best

enables recreational boaters to safely navigate their vessels beneath the Bridge.

During the six months of construction work preceding the allision, Superior not

only saw the spray-painted arrows, but also witnessed recreational boaters

traveling through the channel at speeds as high as 70 miles per hour (mph) both

day and night.

Throughout the project, Superior usually stationed the Barge and the Tug

such that recreational boaters could safely pass through the Bridge’s commonly

used spans. On December 29, 2001, however, Superior tied the Barge to the base

of the Bridge so that it ran parallel to the Bridge and blocked all but 38 feet of the

120-foot wide channel—i.e., two of the three spans commonly used by

recreational boaters. It then moored the Tug perpendicular to the Barge’s midship,

such that the Barge and the Tug essentially formed a “T”-shape. Although

Superior’s employees could have removed the Barge and the Tug from the channel

within 15 to 20 minutes, they instead opted to leave the vessels in this location and

4
head home for the holiday weekend. Moreover, Superior never checked to see

what the Barge and the Tug looked like from the water after dark. Upon nautical

twilight at 6:29 p.m., the Barge’s black color, inadequate lighting, and unorthodox

location rendered it virtually invisible to recreational boaters on the Cedar River.

That same evening, Appellees Robert Bowers, Tammy Bowers, Charles

Brock, Cynthia Tipton, Jimmie White, Betty Wright, and Connie Wright attended

a family gathering at a house located near the Cedar River.4 During this gathering,

several attendees, including Brock, consumed alcoholic beverages. After sunset,

Brock invited eleven of the gathering’s attendees to go for a ride on his 25-foot

long, 8-foot wide pleasure boat (the Boat).

As the Boat approached the Bridge at approximately 6:52 p.m., Brock

slowed the Boat’s speed from 34 mph to 22 mph and aimed the Boat to travel

through one of the three commonly used spans. Brock had frequently driven the

Boat under the Bridge at night and, given Superior’s usual practice of stationing

the Barge and the Tug to allow safe passage through the travel channel, he had no

4
Appellee Jim Tipton did not attend the family gathering, and, consequently, neither
rode on the Boat nor suffered physical injuries arising from the allision. Rather, he received non-
economic damages for loss of consortium stemming from the severe injuries his wife, Cynthia,
sustained in the allision.

5
reason to suspect the vessels’ unorthodox location.5 He and his fellow

passengers—including the three passengers sitting on the bow who were not

intoxicated and who enjoyed a completely unobstructed view of the upcoming

Bridge—could not see the Barge until it was too late to avoid the allision.

Consequently, the Boat slammed into the Barge, throwing the passengers forward

and causing serious injuries. A blood sample drawn from Brock roughly three and

a half hours after the allision indicated his blood alcohol level (BAL) exceeded the

legal limit set forth under 33 C.F.R. § 95.020 and Florida Statutes § 327.35.6

On June 27, 2002, Superior, as the owner pro hac vice of the Barge and the

Tug, brought an admiralty action in federal district court for exoneration from or

limitation of liability, pursuant to the Limitation of Liability Act. See 46 U.S.C.

§§ 183–189. Appellees contested Superior’s right to exoneration from or

5
Brock testified that, during one of his prior trips under the Bridge, he had noticed the
Barge stationed on the Bridge’s south end. Additionally, the one time he previously saw the
Barge at night, Superior had illuminated it with light plants and he spotted it from a considerable
distance away. On the night of the allision, however, the Barge was located on the Bridge’s
north end and Superior had not utilized light plants.
6
Under Florida and federal law, it is unlawful to operate a recreational boat while having
a BAL of 0.08 or more. Fla. Stat. § 327.35; 33 C.F.R. § 95.020. Roughly 3.5 hours after the
allision, Brock’s BAL was 0.112. At trial, Appellees presented an expert witness who asserted
the severe internal injuries Brock suffered may have caused his BAL to increase between the
allision and the blood draw. Superior countered with an expert witness who stated the 3.5-hour
time gap may have meant Brock’s BAL decreased between the allision and the blood draw.
Rather than expressly resolve this factual dispute, the district court assumed Brock violated 33
C.F.R. § 95.020 and Florida Statutes § 327.35, but nevertheless found Brock’s legal intoxication
was not a cause of the allision.

6
limitation of liability. Additionally, Appellees asserted in personam claims against

Superior, and in rem claims against the Barge and the Tug, under admiralty and

maritime law.7

Following a bench trial, the district court determined Superior was not

entitled to exoneration from or limitation of liability under the Limitation of

Liability Act. Additionally, the district court (1) found Superior, the Barge, and

the Tug liable for Appellees’ injuries,8 (2) determined none of the Appellees were

comparatively at fault, and (3) awarded Appellees a total of $19,214,689.63 in

economic and non-economic damages.9 This appeal ensued.

On appeal, Superior argues the district court erred when it found the Barge

obstructed navigation in violation of 33 U.S.C. § 409, placed a presumption of

7
Mobro Marine also brought an action for exoneration from or limitation of liability
under the Limitation of Liability Act, and Appellees counterclaimed against Mobro Marine. On
January 26, 2004, the district court dismissed all claims filed by and against Mobro Marine
because the parties resolved these claims in mediation. Mobro Marine is thus not a party to this
appeal.
8
Although Appellees’ injuries stemmed solely from the Boat’s allision with the Barge,
the district court also placed liability on the Tug. Specifically, the district court determined the
Barge was an unpowered “passive instrument” that relied on the Tug’s “dominant mind” for
propulsion and lighting. The district court thus found “the Tug was the ‘controlling vessel’ and
is liable for damages, even if [Appellees’] boat did not strike the Tug until after the injuries
occurred.” Superior does not challenge this conclusion on appeal.
9
The district court awarded $3,000,218 to Robert Bowers, $1,249,911.23 to Tammy
Bowers, $770,841.83 to Charles Brock, $1,925,504.69 to Cynthia Tipton, $250,000 to Jim
Tipton, $3,317,277 to Jimmie White, $8,600,000.57 to Betty Wright, and $100,936.31 to Connie
Wright (on behalf of her minor son, Ashton Wright).

7
fault on Superior under the Pennsylvania Rule, and determined Superior failed to

show its violation could not have been a cause of the allision. Superior also

contends the district court erred when it determined Appellees satisfied their

burden under the Pennsylvania Rule of showing Brock’s legal intoxication could

not have been a cause of the allision, and, consequently, refused to apportion a

percentage of fault to Appellees. Additionally, Superior asserts the district court

clearly erred in determining the total damages it awarded to Appellees Tammy

Bowers and Jimmie White.

II. STANDARDS OF REVIEW

In an action tried without a jury, the district court’s findings of fact “shall

not be set aside unless clearly erroneous, and due regard shall be given to the

opportunity of the trial court to judge the credibility of the witnesses.” Fed. R.

Civ. P. 52(a). Likewise, we review for clear error a district court’s findings on the

questions of statutory fault, negligence, causation, and damages. See Am.

Dredging Co. v. Lambert, 153 F.3d 1292, 1295 (11th Cir. 1998); Simmons v.

Conger, 86 F.3d 1080, 1084 (11th Cir. 1996); Orange Beach Water, Sewer & Fire

Prot. Auth. v. M/V Alva, 680 F.2d 1374, 1380 (11th Cir. 1982). We will not find

the district court committed clear error unless, “after assessing the evidence, [we

are] left with a definite and firm conviction that a mistake has been committed.”

8
Worthington v. United States, 21 F.3d 399, 400 (11th Cir. 1994) (quotations and

citations omitted). “We review the district court’s conclusions of law de novo.”

Am. Dredging Co., 153 F.3d at 1295.

III. ANALYSIS

A. Legal Framework for Cases Involving the Oregon and Pennsylvania Rules

This appeal implicates two common law burden-shifting presumptions

invoked when a moving vessel allides with a stationary vessel. First, the Oregon

Rule creates a rebuttable presumption of fault against a moving vessel that, under

its own power, allides with a stationary object. The Oregon, 158 U.S. 186, 197, 15

S. Ct. 804, 809 (1895).10 “This presumption of negligence may be rebutted by

showing, by a preponderance of the evidence, either that the allision was the fault

of the stationary object, that the moving vessel acted with reasonable care, or that

the allision was an unavoidable accident.” Bunge Corp. v. Freeport Marine

Repair, 240 F.3d 919, 923 (11th Cir. 2001). Second, under the Pennsylvania

Rule,

10
The Oregon Rule should not be confused with the Louisiana Rule. See The Louisiana,
70 (3 Wall.) U.S. 164, 173 (1866). Although both of these rules place a presumption of fault on
a moving vessel that allides with a stationary object, the Oregon Rule applies to vessels moving
under their own power when they allide with a stationary object, whereas the Louisiana Rule
applies to vessels that drift into a stationary object. See Chicago v. M/V Morgan, 375 F.3d 563,
572 n.7 (7th Cir. 2004) (differentiating between the Oregon Rule and the Louisiana Rule).

9
 when . . . a ship at the time of a[n allision] is in actual violation of a
statutory rule intended to prevent [allisions], it is no more than a
reasonable presumption that the fault, if not the sole cause, was at
least a contributory cause of the disaster. In such a case the burden
rests upon the ship of showing not merely that her fault might not
have been one of the causes, or that it probably was not, but that it
could not have been.

The Pennsylvania, 86 U.S. (19 Wall.) 125, 136 (1873). The Pennsylvania Rule “is

not a rule of liability, but shifts the burden of proof as to causation. This burden is

strict, but it is not insurmountable.” Orange Beach, 680 F.2d at 1381 (citations

omitted).

Because Appellees’ boat, moving under its own power, allided with

Superior’s stationary barge, Superior argues the Oregon Rule should apply to

Appellees. Appellees, on the other hand, assert the Pennsylvania Rule should

apply to Superior because it violated 33 U.S.C. § 409, a statute intended to prevent

allisions, by obstructing navigation. We must thus briefly review the interplay

between the Oregon and Pennsylvania Rules.

In cases where a stationary vessel violates a statute intended to prevent

allisions and a moving vessel allides with that stationary vessel, we apply the

burden-shifting analysis set forth in Sunderland Marine Mutual Insurance Co. v.

Weeks Marine Construction Co.:

10
 The general rule is that the presumption of fault for the allision lies
against the moving vessel [(i.e., Oregon Rule)]. This burden of proof
shifts, however, to the stationary vessel when the stationary vessel is
in violation of a statutory rule intended to prevent accidents [(i.e.,
Pennsylvania Rule)]. The stationary vessel then bears the burden of
proof in showing that its statutory violation could not have been a
contributory cause of the allision.

338 F.3d 1276, 1279 (11th Cir. 2003) (citations omitted); see also Parker Towing

Co. v. Yazoo River Towing, Inc., 794 F.2d 591, 594 (11th Cir. 1986); Orange

Beach, 680 F.2d at 1380–81. In short, the burden of proof initially rests with the

moving vessel under the Oregon Rule. If the moving vessel can establish the

stationary vessel violated a statutory rule intended to prevent allisions, however,

then the Pennsylvania Rule shifts the burden to the stationary vessel.

Our overview of the applicable legal framework cannot end here, however,

because Superior contends that, given Brock’s legal intoxication, the Boat violated

33 C.F.R. § 95.020 and Florida Statutes § 327.35 (i.e., provisions intended to

prevent allisions), and, therefore, the Pennsylvania Rule should also apply to

Appellees.

When both vessels involved in the allision are operating in violation
of statutes designed to prevent such mishaps, the [Pennsylvania] rule
requires “the district court to find that the statutory fault of both
vessels contributed to the accident, unless it [finds] that the fault of
either . . . could not have been a cause of the [allision].”

11
Parker Towing Co., 794 F.2d at 594 (quoting Otto Candies, Inc. v. MV Madeline

D, 721 F.2d 1034, 1036 (5th Cir. 1983)). In other words, if each vessel

successfully invokes the Pennsylvania Rule against its opponent, then each vessel

must overcome a presumption of fault by showing its violation could not have

been a cause of the allision.

If neither vessel can satisfy its burden under the Pennsylvania Rule, then the

district court must “determine the comparative fault of each vessel and allocate

liability for damages accordingly.” Gele v. Chevron Oil Co., 574 F.2d 243, 250

(5th Cir. 1978) (citing United States v. Reliable Transfer Co., 421 U.S. 397, 408,

95 S. Ct. 1708, 1715–16 (1975)); Bonner v. City of Prichard, 661 F.2d 1206, 1209

(11th Cir. 1981) (stating Fifth Circuit decisions rendered prior to September 30,

1981, are binding precedent in our circuit); see also Parker Towing Co., 794 F.2d

at 594 (affirming (1) the district court’s finding that both vessels failed to satisfy

their burden under the Pennsylvania Rule and (2) its apportionment of damages

between the vessels based on their respective degree of fault). With this legal

framework in mind, we proceed to the merits of Superior’s appeal.

B. District Court’s Application of the Pennsylvania Rule to Superior

As indicated above, the Oregon Rule placed an initial presumption of fault

on Appellees because their moving boat allided with Superior’s stationary barge.

12
Based on our precedent, however, the district court determined Superior violated

33 U.S.C. § 409,11 shifted the presumption of fault onto Superior under the

Pennsylvania Rule, and found Superior could not satisfy its burden of proving its

§ 409 violation could not have been a cause of the allision. Superior argues the

district court clearly erred when it found Superior violated § 409 and,

consequently, erroneously applied the Pennsylvania Rule to Superior.12 These

errors, Superior asserts, “tainted the court’s entire opinion with error and

ultimately led to its erroneous and insupportable conclusion that Superior was

entirely at fault for the accident.”

Section 409 provides in relevant part: “It shall not be lawful to tie up or

anchor vessels or other craft in navigable channels in such a manner as to prevent

11
Because we conclude the district court did not clearly err when it found Superior
violated 33 U.S.C. § 409, we will not address the district court’s alternative findings that
Superior violated 33 C.F.R. §§ 84.15 and 88.13, and 33 U.S.C. § 2002.
12
In the alternative, Superior contends a § 409 violation cannot invoke the Pennsylvania
Rule because § 409 “does not set forth a clearly-delineated standard, but instead calls for
interpretation and judgment as to what constitutes an ‘obstruction’ under the particular
circumstances of each individual navigable channel.” To support this assertion, Superior cites
four cases from the Second and Fifth Circuits. See Tokio Marine & Fire Ins. Co., 235 F.3d 963,
966 (5th Cir. 2001); Interstate Towing Co. v. Stissi, 717 F.2d 752, 757 (2d Cir. 1983); In re
Marine Sulphur Queen, 460 F.2d 89, 98 (2d Cir. 1972); Afran Transp. Co. v. United States, 435
F.2d 213, 218 (2d Cir. 1970). Yet, these four cases never even mention § 409, let alone establish
that district courts cannot apply the Pennsylvania Rule based on a § 409 violation. Moreover,
regardless of other circuits’ precedent, our circuit has repeatedly affirmed the district courts’ use
of § 409 violations to invoke the Pennsylvania Rule. See Sunderland Marine, 338 F.3d at 1279;
Self Towing, Inc. v. Brown Marine Servs., Inc., 837 F.2d 1501, 1504 (11th Cir. 1988); Orange
Beach, 680 F.2d at 1380.

13
or obstruct the passage of other vessels or craft . . . .” District courts must

determine whether a party violated § 409 “by reference to all the relevant facts and

circumstances.” Orange Beach, 680 F.2d at 1380. In Orange Beach, for example,

the defendants moored two barges and a tug such that they blocked 40 percent of a

waterway’s bank-to-bank width and a portion of the 12-foot navigation channel.

Id. at 1378. Additionally, the defendants moored their vessels “in close proximity

to [a] pipeline crossing, at night, between two bends in the Waterway which were

about a mile apart . . . , and rendered navigation by other vessels difficult in an

area where they would normally be straightening out for the second bend.” Id. at

1380. Given these relevant facts and circumstances, we concluded the district

court did not clearly err by finding the defendants’ mooring constituted an

obstruction of navigation, in violation of § 409. Id.; see also Sunderland Marine,

338 F.3d at 1279 (upholding a district court’s finding that a stationary barge

violated § 409 based on expert testimony that the barge’s location created a

“navigational hazard”).13

13
Superior mischaracterizes our prior holdings when it claims that “[c]ase law
interpreting section 409 has uniformly held that where there is room available for safe passage of
vessels, there is no violation of 33 U.S.C. § 409.” Our previous cases establish that district
courts should not limit their § 409 analyses to the question of whether a stationary vessel’s
location permitted safe passage of moving vessels; rather, district courts must determine whether
a vessel obstructed navigation “by reference to all the relevant facts and circumstances.” Orange
Beach, 680 F.2d at 1380; see also Sunderland Marine, 338 F.3d at 1279. In Orange Beach, for
example, “[v]essels rounding the bends from either direction could pass” the defendants’ moored

14
 Four subsidiary findings support the district court’s conclusion that Superior

obstructed navigation in violation of § 409. First, Superior’s 128-foot long Barge

blocked roughly 24 percent of the 528-foot bank-to-bank width of the passageway

beneath the Bridge. The parties do not dispute this finding. Second, Superior tied

its Barge to the Bridge in a highly unorthodox location, obstructing roughly 82

feet (i.e., 68 percent) of the 120-foot travel passage generally accepted as the

safest, and most commonly used, navigational channel for recreational boaters.

Several local boaters testified they saw the Barge before sunset on the day of the

allision and were “shocked” to discover its location. Additionally, Lieutenant

Kevin L. Ivey of the U.S. Coast Guard’s Marine Safety Office stated that if he had

known the Barge’s location on the evening of December 29, 2001, he would have

broadcast a local notice to “alert the boating public of the barge’s presence and

position in the river.” Third, Superior not only left the Barge and the Tug in this

unexpected location after nautical twilight, but also failed to light the vessels

adequately. Only four of the twelve lights Superior deemed necessary for lighting

the Barge and the Tug actually functioned on the night of the allision, and,

vessels. 680 F.2d at 1378. Such availability of safe passage did not enable the defendants to
evade § 409’s reach, however, because, as we explained above, the other relevant facts and
circumstances nevertheless indicated the moored vessels unlawfully obstructed navigation. Id. at
1380. Similarly, the fact Appellees’ boat theoretically could have navigated around Superior’s
Barge did not automatically preclude the district court from finding Superior violated § 409.

15
according to several witnesses, these four lights were old, scratched, sun-damaged,

rust-stained, dirty, and generally in poor condition.14 Indeed, one witness

described the Barge’s only non-blinking light as “looking like a bathroom nite-

light or a distant porch light.” Based on these three findings, the district court

reached a fourth finding: at the time of the allision, the Barge and the Tug were

virtually invisible from the water, eliminating any chance Appellees might have

had to safely navigate around the vessels. Superior’s creation of such a

navigational hazard, the district court concluded, constituted a violation of § 409.

After reviewing the record, we determine the district court had ample

evidence to support its four subsidiary findings. Furthermore, considering all the

relevant facts and circumstances as required under Orange Beach, we conclude the

district court did not clearly err when it found Superior obstructed navigation in

violation of § 409, and, therefore, did not err by shifting the presumption of fault

14
Superior failed to preserve the lights aboard the Barge and the Tug on December 29,
2001, so the district court never had the opportunity to inspect these lights. On appeal, Superior
contends the district court committed clear error because it (1) found Superior disposed of the
relevant lights in bad faith and, consequently, (2) drew “adverse inferences against Superior as to
the condition of the actual lights that were in use when the accident occurred.” See Bashir v.
Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (stating “an adverse inference is drawn from a
party’s failure to preserve evidence only when the absence of that evidence is predicated on bad
faith”). This argument lacks merit. The district court’s findings about the lights’ generally poor
condition derived from the testimony of several witnesses, not adverse inferences arising from
Superior’s alleged bad-faith spoliation of evidence. Furthermore, although the district court
stated “there is evidence of bad faith on the part of Superior warranting sanctions,” it neither
expressly held Superior acted in bad faith nor expressly drew adverse inferences regarding the
quality of the relevant Barge and Tug lights.

16
onto Superior under the Pennsylvania Rule. Nor did the district court clearly err

when it found Superior failed to satisfy its burden of showing its § 409 violation

could not have been a cause of the allision. In fact, as we explain in greater detail

below, the district court had ample evidence to conclude Superior’s § 409

violation was the allision’s sole cause. The district court accordingly did not

clearly err when it found Superior liable to Appellees for damages arising from the

allision.

C. District Court’s Application of the Pennsylvania Rule to Appellees

As discussed above, if a district court finds each vessel involved in an

allision (1) violated a statute intended to prevent allisions and (2) failed to show

its violation could not have been a cause of the allision, then the district court must

determine the parties’ comparative fault and apportion liability for damages

accordingly. See Parker Towing, 794 F.2d at 594. After applying the

Pennsylvania Rule to Superior and concluding Superior’s § 409 violation was a

cause of the allision, the district court considered Superior’s argument that the

Pennsylvania Rule also applied to Appellees. First, the district court assumed

Brock violated 33 C.F.R. § 95.020 and Florida Statutes § 327.35, the Florida and

17
federal boating-under-the-influence (BUI) provisions,15 and applied the

Pennsylvania Rule against Appellees.16 Second, the district court found Appellees

nevertheless satisfied their burden of showing Brock’s legal intoxication could not

have been a cause of the allision.17 Based on this finding, it determined “any

evidentiary presumption created [under the Pennsylvania Rule] by Brock’s blood

alcohol level . . . is overcome and vanishes due to the overwhelming evidence to

the contrary.”

15
Appellees concede that 33 C.F.R. § 95.020 and Florida Statutes § 327.35 are “rule[s]
intended to prevent [allisions]” for purposes of the Pennsylvania Rule. See The Pennsylvania, 86
U.S. (19 Wall.) at 136.
16
As we explained in Footnote 6, supra, the parties’ expert witnesses presented
conflicting opinions as to whether Brock’s BAL actually exceeded the Florida and federal limits
at the time of the allision. The district court did not expressly resolve this dispute. Instead, it
(1) assumed Brock violated 33 C.F.R. § 95.020 and Florida Statutes § 327.35, and (2) found
Appellees nevertheless satisfied their burden under the Pennsylvania Rule of showing Brock’s
violation could not have been a cause of the allision. Contrary to Superior’s assertions, this
analytical approach did not constitute an error of law. See Self Towing, 837 F.2d at 1504 n.7
(approving the district court’s approach of (1) assuming a vessel violated a statute intended to
prevent allisions and (2) finding this vessel nevertheless satisfied its burden under the
Pennsylvania Rule of showing its violation could not have been a cause of the allision).
17
Again, once a district court finds a vessel violated a statute intended to prevent
allisions, the “burden rests upon the ship of showing not merely that her fault might not have
been one of the causes, or that it probably was not, but that it could not have been.” The
Pennsylvania, 86 U.S. (19 Wall.) at 136 (emphasis added). Superior asserts the district court
applied the wrong standard under the Pennsylvania Rule because it repeatedly stated Brock’s
legal intoxication “was not a cause of the allision,” rather than stating Brock’s legal intoxication
“could not have been a cause of the allision.” In other words, Superior invites us to transform
“could not have been” into a talismanic phrase district courts must recite to correctly apply the
Pennsylvania Rule. We decline to do so. As we explain below, the district set forth myriad facts
and findings supporting its conclusion that Appellees satisfied their Pennsylvania Rule burden of
proof. Thus, even though the district court never uttered the phrase “could not have been” in its
memorandum opinion, it did not fail to apply the Pennsylvania Rule against Appellees.

18
 Superior forwards two primary challenges to the district court’s finding that

Brock’s violation of 33 C.F.R. § 95.020 and Florida Statutes § 327.35 could not

have been a cause of the allision. First, at oral argument, Superior claimed that,

given Brock’s legal intoxication, it was “impossible,” as a matter of law, for the

district court to find Appellees satisfied their evidentiary burden under the

Pennsylvania Rule. Second, Superior argues that, even if it was legally possible

for Appellees to satisfy their burden, the district court clearly erred when it found

Brock’s legal intoxication could not have been a cause of the allision. We will

address these arguments in turn.

1. Stringent, but Not Insurmountable, Presumption of Fault Under the
Pennsylvania Rule

As we stated above, the Pennsylvania Rule “is not a rule of liability, but

shifts the burden of proof as to causation. This burden is strict, but it is not

insurmountable.” Orange Beach, 680 F.2d at 1381 (citations omitted). For more

than 50 years, we have repeatedly stated:

[T]he Supreme Court, in [The Pennsylvania], did not intend to
establish a hard and fast rule that every vessel guilty of a statutory
fault has the burden of establishing that its fault could not by any
stretch of the imagination have had any causal relation to the
collision, no matter how speculative, improbable, or remote.

19
Compania de Maderas de Caibarien, S.A. v. The Queenston Heights, 220 F.2d

120, 122–23 (5th Cir. 1955); see also Self v. Great Lakes Dredge & Dock Co., 832

F.2d 1540, 1555 (11th Cir. 1987); Orange Beach, 680 F.2d at 1381; Inter-Cities

Navigation Corp. v. United States, 608 F.2d 1079, 1082–83 (5th Cir. 1979); China

Union Lines, Ltd. v. A.O. Andersen & Co., 364 F.2d 769, 782 (5th Cir. 1966);

Parker Bros. & Co. v. De Forest, 221 F.2d 377, 380–81 (5th Cir. 1955). In other

words, district courts may not place an insurmountable presumption of fault on

vessels that violate statutes intended to prevent allisions.

Despite our longstanding precedent, Superior, at oral argument, repeatedly

argued it was “impossible,” given Brock’s intoxicated state, for the district court

to find Appellees satisfied their Pennsylvania Rule burden. The gravamen of this

argument is that, due to Brock’s legal intoxication, the district court should have

placed an insurmountable presumption of fault on Appellees under the

Pennsylvania Rule and apportioned them a percentage of the liability.

After reviewing the relevant case law, we reject Superior’s contention that

district courts must always apportion some fault to a vessel whose operator was

legally intoxicated at the time of the allision. No circuit has ever expressly held a

BUI-law violation gives rise to an insurmountable presumption of fault under the

Pennsylvania Rule. Indeed, to the best of our knowledge, no circuit has even

20
implicitly reached such a conclusion. Given the apparent non-existence of such

persuasive authority, we are especially disinclined to establish a rule making it

“impossible,” as a matter of law, for district courts to find a boat driver’s legal

intoxication could not have been a cause of an allision.

Under Compania de Maderas de Caibarien and its progeny, we thus

conclude BUI-law violations—like all other violations of statutes intended to

prevent allisions—give rise to a stringent, but not insurmountable, presumption of

fault. Needless to say, we condemn the dangerous practice of boating under the

influence. We also recognize that, when a legally-intoxicated boat driver’s vessel

allides with a stationary vessel, the boat driver’s legal intoxication will generally

be a contributory cause of the allision. Yet, generally does not mean always. In

rare cases, a district court may find, after carefully considering all the evidence,

that a boat driver’s legal intoxication simply could not have been a cause of the

allision. Contrary to Superior’s repeated assertions, therefore, it was not legally

“impossible” for the district court to find Appellees satisfied their burden of proof

under the Pennsylvania Rule.

2. District Court’s Finding that Brock’s Legal Intoxication Could Not
Have Been a Cause of the Allision

21
 This appeal involves one of the rare cases where a district court had ample

evidence with which to determine a boat driver’s legal intoxication could not have

been a cause of the allision. Four primary findings support the district court’s

conclusion on this issue. First, Brock handled the Boat in such a way as to

indicate his motor skills, mental faculties, and control of the Boat were not

impaired due to intoxication. Appellees’ expert witness, Captain George Kirk

Greiner, Jr., supported this conclusion, testifying Brock’s handling of the Boat was

reasonable for a mariner and his intoxication did not play a role in the allision.

Second, as Brock began to approach the Bridge, he slowed the Boat’s speed from

34 mph to 22 mph—the safest speed for maneuvering the Boat. Unrefuted expert

witness testimony bolsters this finding. Third, Brock perfectly aimed the Boat

such that it would have passed safely under the Bridge if not for the unexpected

location of the Barge. This finding draws support from not only the testimony of

Captain Greiner and Appellee Robert Bowers, but also the relevant physical

evidence and measurements. Fourth, and most important to our decision,

passengers on the Boat who (1) were not legally intoxicated and (2) looked ahead

with a completely unobstructed view of the upcoming Bridge could not see the

virtually invisible Barge until it was impossible to avoid the allision or even

significantly reduce the force of the impact. For example, Appellee White, who

22
was sitting on the Boat’s bow, testified that from the time the Barge became

visible to the time of the allision, he barely had enough time to shout

“Barge—Jump!” and immediately roll overboard. When he tumbled into the

water, the Boat was already so close to the Barge that his body struck the Barge.

Given these four key findings, each of which rests on sufficient record evidence,

the district court concluded Brock’s legal intoxication could not have been a cause

of the allision.

After considering all of the evidence, we hold the district court did not

clearly err when it determined Appellees satisfied their burden of proof under the

Pennsylvania Rule. In fact, the district court had ample evidence to support its

conclusion that the allision’s sole cause was “Superior’s dangerous placement,

improper lighting, and failure to make any attempt to alert the Coast Guard or to

warn the boating public that a huge, black, unlit Barge and Tug would be blocking

travel channels popular with local boaters at night.” The district court thus did not

clearly err when it found Brock’s legal intoxication could not have been a cause of

the allision and, therefore, did not err by refusing to apportion liability for

damages between Superior and Appellees.18

18
Superior argues that, even if Brock’s intoxication could not have been a cause of the
allision, he was nevertheless comparatively negligent for failing to give safety instructions to his
passengers, designate a lookout, require all of the passengers to wear life jackets, and take

23
D. Appellees Tammy Bowers’ and Jimmie White’s Economic and Non-
Economic Damages

Finally, Superior asserts the district court clearly erred by awarding

Appellees Tammy Bowers and Jimmie White damages so excessive as to “shock

the conscience.” As suggested in Part II, “in an admiralty action, the trial court’s

findings of damages are matters of fact and should be affirmed if not clearly

erroneous.” Fla. E. Coast Ry. v. Revilo Corp., 637 F.2d 1060, 1067 (5th Cir.

1981). When determining whether a district court’s damages award constituted

clear error, “we must be especially careful about reversing findings of fact based

on the district court’s evaluation of live witness testimony because the district

court is ‘better positioned’ to evaluate such evidence.” Lindsey v. Navistar Int’l.

Transp. Corp., 150 F.3d 1307, 1319 (11th Cir. 1998).

As an initial matter, we note the district court did not state the specific

findings underlying Bowers’ and White’s economic and non-economic damages.

Generally, where a district court fails to make sufficient findings to permit

adequate appellate review of a claim for damages, a remand for the appropriate

various other safety measures. Additionally, Superior contends Appellees Robert Bowers,
Cynthia Tipton, and Jimmie White were comparatively negligent for riding on the Boat’s bow.
After carefully reviewing the record, we conclude the district court did not clearly err when it
found Brock, Bowers, Tipton, and White neither caused the accident nor contributed to the extent
of their own injuries. We thus reject Superior’s alternative arguments for allocating a percentage
of fault to one or more Appellees.

24
findings is the normal procedure. See Self, 832 F.2d at 1549. We will not remand

for appropriate findings, however, “if a complete understanding of the issues is

possible in the absence of separate findings and if there is a sufficient basis for

[our] consideration of the merits” of the district court’s damages award. See id.

Because the record provides us a complete understanding of the issues and a

sufficient basis for considering the merits of the damages awarded to Bowers and

White, we need not remand to the district court for additional findings. Instead,

we will review the record to determine whether the district court clearly erred

when it awarded total damages of $1,249,911.23 to Tammy Bowers and

$3,317,277 to Jimmie White.

1. Tammy Bowers

Bowers’ expert witness, Dr. M.W. Kilgore, testified that, as a result of the

allision, Bowers suffered a ligament tear in her right hip; a scar on her lip and right

cheek; two disk herniations in her cervical spine; musculoskeletal and soft-tissue

injuries in her neck and lower back; and a concussion, which has given rise to

recurring migraine headaches. According to another of Bowers’ expert witnesses,

Professor Paul Mark Mason, these injuries created the need for a total present-

value amount of $423,834.28 in future medical expenses. After hearing this

testimony, the district court awarded Bowers $249,911.23 in economic

25
damages—an amount considerably lower than Bowers’ expert witness’s estimate.

Considering the testimony of Bowers’ expert witnesses, we conclude the district

court’s economic damages award was not clearly erroneous.

As for non-economic damages, Bowers and/or her expert witnesses testified

about such issues as (1) the hardship she endured while financially supporting and

caring for her husband and their two children during her husband’s prolonged

recovery from his debilitating, allision-related injuries, (2) the ongoing hip, neck,

and back pain and migraine headaches stemming from her injuries, (3) the

permanent disfigurement of her lip and right cheek, and (4) the permanent

ligament tear in her right hip that will likely continue to deteriorate. The district

court awarded her $1,000,000 in non-economic damages. Given the testimony

about the hardship and suffering she experienced, and continues to experience, as

a result of the allision, we cannot say the district court committed clear error in

awarding her this non-economic damages amount.

2. Jimmie White

According to White’s expert witnesses, Dr. Christopher Roberts, the allision

caused him to suffer such short-term injuries as a broken rib, a cervical neck

injury, and a forehead laceration. Moreover, Dr. Roberts testified that White

sustained permanent neurological injuries to his lumbar spine, which cause him

26
chronic, persistent pain in various parts of his body and necessitate lifelong pain

management treatment. Professor Mason estimated White’s pain management

treatments for his neurological injuries equate to a present-value cost of

$1,939,781 in future medical expenses. Following this testimony, the district

court awarded White $1,317,277 in economic damages—again, a figure well

below White’s expert witness’s estimate. We determine the district court did not

clearly err in awarding him this economic damages amount.

Turning to White’s non-economic damages, we note White testified about

(1) the trauma he experienced during the allision (e.g., regaining consciousness

underwater and having to overcome pain, bleeding, and cold temperatures to swim

to safety); (2) the loss of independence and frustration stemming from his physical

inability to pursue his previous career as a self-employed drywall installer; and

(3) the suffering associated with a lifetime of severe, constant neurological pain

that afflicts multiple parts of his body. The district court awarded White

$2,000,000 in non-economic damages, and we conclude the record contains ample

evidence to support this amount.

In summary, although the district court’s total damages awards are

substantial, “in view of all the circumstances, we cannot say that the district court,

which heard all of the testimony and saw all of the evidence, committed clear

27
error” in awarding $1,249,911.23 to Bowers and $3,317,277 to White. See

Lindsey, 150 F.3d at 1319. We therefore reject Superior’s challenges to Bowers’

and White’s total damages.

IV. CONCLUSION

The district court did not clearly err when it found Superior violated § 409

and failed to satisfy its Pennsylvania Rule burden of showing its violation could

not have been a cause of the allision. Nor did the district court clearly err when it

found Appellees met their Pennsylvania Rule burden of showing Brock’s violation

of 33 C.F.R. § 95.020 and Florida Statutes § 327.35 could not have been a cause

of the allision. Therefore, the record contains ample evidence to support the

district court’s conclusion that Superior was solely liable for the allision and

Appellees’ resulting injuries. The district court also did not clearly err in

awarding total damages of $1,249,911.23 to Bowers and $3,317,277 to White. We

accordingly affirm the district court’s judgment.

AFFIRMED.

28