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.
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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that this opinion should not be published.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.
3
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
4
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).
5
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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