Avondale Indust Inc v. Intl Marine Carr Inc

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-30093
Summary Calendar
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AVONDALE INDUSTRIES, INC.,

Plaintiff-Appellant,

versus

INTERNATIONAL MARINE CARRIERS, INC., AND
UNITED STATES OF AMERICA, in personam,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court for
the Eastern District of Texas
(90 CV 4570)
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October 3, 1995

Before REAVLEY, SMITH and PARKER, Circuit Judges.

REAVLEY, Circuit Judge:*

Appellant Avondale Industries, Inc. (Avondale) brings this

second appeal of a judgment awarding a recovery to the United

States for damages caused to the USNS BELLATRIX. Avondale's

property was also damaged when the vessel struck its dry dock.

Avondale argues that the district court, after remand from this

*
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that this opinion should not be published.
court, erred in the manner in which it allocated fault between

Avondale and the government, and in failing to award certain

damages to Avondale. We affirm.

A. Allocation of Fault

The district court originally found that the allision was

solely the fault of Avondale's subcontractor, Pilot Thomas. In

the first appeal we held that the district court clearly erred in

finding that no act or omission on the part of the master of the

vessel, Captain Rivera, or his crew contributed to the accident.

Avondale v. International Marine Carriers, Inc., 15 F.3d 489, 493

(5th Cir. 1994). We further concluded that under the relevant

contract (1) the pilot's negligence was chargeable to Avondale,

(2) the negligence of the vessel's captain and crew were

chargeable to the government, and (3) damages to the vessel and

Avondale's facilities should therefore be apportioned according

to the comparative degree of fault of the two parties. Id. at

494-95. On remand the district court found that Avondale was 80

percent at fault and the government was 20 percent at fault.

The allocation of fault is a finding of fact subject to the

clearly erroneous standard of review. Id. at 492. Avondale does

not dispute that its negligence contributed to the accident, and

indeed we concluded in the prior appeal that Avondale was partly

at fault.1

1
"[T]he contract does not require Avondale to show that
acts or omissions of the agents and employees of the Government
and IMC were the sole proximate cause of the damage, and indeed,
in this case they were not." Id. at 495.

2
 Instead, Avondale argues that the district court did not

follow the law of the case established by our prior opinion, and

instead "virtually ignored" and "paid only lip service to" that

decision. We disagree. Our prior opinion did not require any

particular allocation of fault, or suggest that the facts would

only support an allocation of the greater proportion of fault to

the government. If anything, our prior decision suggests

otherwise. We noted that the primary responsibility for

operating the vessel in these circumstances lies with the pilot.2

We did not question the district court's findings that the pilot

was affirmatively negligent in attempting to turn the vessel with

only one operating engine, instead of two engines and two tugs.3

We did however conclude that the captain failed "to pay attention

so that he would know that he needed to intervene," and that the

first mate who was aware that the pilot had released the first

tug attempted to notify the bridge of this action, but failed to

follow up on communicating this action after the first attempt

2
"[T]he master has a duty to intervene when a compulsory
pilot is on board only `in cases of the pilot's intoxication or
manifest incapacity, in cases of danger he does not foresee, and
in all cases of great necessity.' . . . The pilot's
responsibilities are broad and he supersedes the master for the
time being in the command and navigation of the ship and his
orders must be obeyed in all matters connected with navigation."
Id. at 492-93.
3
"The district court found that the casualty was caused
by Pilot Thomas because he (1) failed to wait until the BELLATRIX
had both of her engines available before commencing the left turn
down river; (2) prematurely released the AVON II from the turning
maneuver; and (3) released the MISS SARAH before the BELLATRIX
fully completed her turn and was safely headed down river." Id.
at 492.

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failed. Id. at 493. The actions of the captain and crew were

acts of omission in failing to recognize the affirmative acts of

negligence committed by the pilot, who was primarily in charge of

the operation. The district court's allocation of fault is not

clearly erroneous.

Avondale complains that the district court did not account

for other alleged acts of negligence by the crew of the

BELLATRIX. First, it argues that one of the third mates became

aware that an accident would probably occur approximately five

minutes before the casualty, and said nothing. Avondale fails to

establish that this silence, even if negligent, was a proximate

cause of the accident. The government points out that the pilot

was aware that he had released the tugs, that the third mate in

question repeatedly advised the pilot that one engine was

unavailable, and that another third mate did advise the pilot

that he did not think the vessel would make the turn.

Avondale also complains that the district court ignored

findings of the Coast Guard that the accident occurred in part

because "the Master failed to counter the pilot's order and thus

prevent the accident," and because of the failure of the

starboard engine. The district court did admit the Coast Guard

report. The report found fault with both the pilot and the

master, and the court was not required to afford it any

particular weight. Regardless, the report did not attempt to

apportion fault. Further, the district court, in allocating

fault, did take into account the master's duty to intervene and

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failure to adequately monitor the situation, and the inoperable

engine. The Coast Guard report does not alter our conclusion

that the district court's allocation of fault, in light of all

the relevant facts, was not clearly erroneous.

Avondale argues that the vessel was unseaworthy because the

rudder functioned improperly. It points to brief testimony from

a third mate that at one point the rudder was far left yet the

ship swung right. The third mate did not explain why this

movement occurred, and testified that another crew member

confirmed that the rudder was hard left as ordered. This brief,

inconclusive, uncorroborated testimony does not render the

district court's liability findings clearly erroneous.

B. Damages

After allocating fault, the district court considered the

damages sustained by Avondale and the government. It agreed with

most of the damages Avondale claimed, but granted it only about

half the overhead damages it claimed, and none of the lost

profits it claimed.

When repairs are performed internally, overhead charges for

the use of one's own labor, materials, and equipment are

recoverable.4 Avondale claimed overhead equal to almost 100% of

labor costs. Its only evidence was testimony from its own

manager of financial projects, who stated that this percentage

had been used by Avondale in 1989 and 1990. He explained the

4
Boh Bros. Const. Co. v. M/V Tag-Along, 569 F.2d 217,
219 (5th Cir. 1978); Freeport Sulphur Co. v. S/S Hermosa, 526
F.2d 300, 303-4 (5th Cir. 1976).

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various components of overhead, and that the Navy had approved

Avondale's methodology, but "had not made a final audit of

dollars." Avondale's shipyard is primarily a shipbuilding and

not a repair facility. The court found that Avondale had not

shown it proof of "the accuracy of the overhead percentage as to

the period of these repairs," and awarded overhead of 50 percent

of labor costs. The government files no cross-appeal on this

award. We agree with the district court that while Avondale

offered evidence of the various components of overhead that might

be attributable to the repair work, it offered no underlying

proof as to the accuracy of the percentage it claimed for this

particular work. We will not disturb the district court's award.

Finally, Avondale complains that the district court erred in

refusing its request for a 15 percent profit. A plaintiff who

effects his own repairs may recover lost profits for "the use of

its own equipment which might otherwise be engaged in profitable

outside employment." Boh Bros., 569 F.2d at 219. Avondale

admitted at trial, however, that it did not turn away any

business as a result of the accident.

AFFIRMED.

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