United States Court of Appeals,
Fifth Circuit.
No. 92-3915.
Vernon BRUNET, Plaintiff,
v.
UNITED GAS PIPELINE CO., Defendant-Appellee,
v.
BOWMECH MARINE, INC., Defendant-Appellant.
In the Matter of BOWMECH MARINE, INC., for Exoneration from or Limitation of Liability,
Petitioner-Appellant, Cross-Appellee,
v.
UNITED GAS PIPELINE CO., Am. Commercial Barge Line, and National Marine, Inc.,
Claimants-Appellees, Cross-Appellants.
March 7, 1994.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before DUHÉ, EMILIO M. GARZA, Circuit Judges and STAGG,1 District Judge.
DUHÉ, Circuit Judge:
Bowmech Marine Company, Inc. ("Bowmech") appeals the district court's denial of its
petition for exoneration from or limitation of liability for the damages sustained when barges in tow
by its vessel came in contact with a pipeline owned by United Gas Pipe Line Company ("United
Gas"). Bowmech also seeks review of the damages awarded to United Gas.
BACKGROUND
On January 18, 1991, the KAREN ELIZABETH, a pushboat owned and operated by
Bowmech, was assigned to deliver four empty barges from the Mississippi River near New Orleans
to Weeks Island Salt Mine, via the Gulf Intracoastal Waterway ("GIW"). Two of the barges were
owned by American Commercial Barge Line Company ("ACBL"), and the other two were owned
by National Marine, Inc. ("National"). The KAREN ELIZABETH was manned by a crew of four:
1
District Judge of the Western District of Louisiana, sitting by designation.
Irvin Gremillion, captain; Vernon Brunet, pilot; and Ricky Kramer and Eugene Cheramie,
deckhands.
Due to weather forecast for heavy winds, Gremillion determined that the safest way to
proceed was to push the empty barges in a two-by-two configuration, which reduces the effects of
the wind on the tow and minimizes the risk of becoming windbound.2 A Coast Guard permit was
obtained to allow the vessel to sail with the special configuration.
The voyage began about 2:00 a.m. on January 18, 1991. At about 2:00 p.m., with Brunet at
the wheel, the KAREN ELIZABETH approached a bend in the GIW near Mile 51. As Brunet
maneuvered the bend, the tow became windbound. The wind pushed the tug and barges to the south
bank of the GIW. The barges landed on rocks that had been placed on the south bank to protect a
United Gas pipeline, which ran underneath the GIW. Shortly after the barges came into contact with
the rocks, the pipeline exploded. The KAREN ELIZABETH and the four barges were damaged.
Bowmech filed a petition for exoneration from or limitation of liability arising out of the
allision.3 United Gas, National, ACBL, Gremillion, and Brunet filed answers and claims in the
limitation action. The liability and damage issues were tried separately. At the conclusion of the
bench trial on the liability issues, the district court determined that Bowmech was solely at fault for
the casualty and had knowledge of the negligence causing the casualty. Accordingly, the court denied
Bowmech's petition for exoneration from or limitation of liability. After a bench trial on damages,
the district court ordered Bowmech to pay damages to United Gas, ACBL, and National.
Bowmech appeals the district court's orders denying its petition for exoneration from or
limitation of liability, denying its motion in limine to exclude evidence regarding its crew's drug use,
2
Windbound is a situation when the pilot can no longer control the tow because the wind
forces against it are stronger than the engines of the boat.
3
Two of the crew members, Brunet and Gremillion, claimed injuries from the allision. Brunet
filed a personal injury claim against Bowmech and United Gas in federal court. This suit was
consolidated with Bowmech's action and then settled prior to trial. Gremillion filed a personal
injury claim against Bowmech in state court. Additionally, Gremillion filed a counterclaim,
mirroring his state action, in Bowmech's limitation action. The district court severed Gremillion's
counterclaim and stayed Gremillion's state action until the issue of Bowmech's liability was
resolved. It then dismissed his counterclaim as moot and lifted the stay of his state court
proceeding.
and awarding damages to United Gas. United Gas, National, and ACBL filed cross-appeals to be
addressed in the event that we disturb the district court's decision.
DISCUSSION
I. Findings of Fault
A. Standard of Review
In maritime actions, questions of fault are "factual issues which cannot be disturbed on appeal
unless the resolutions are clearly erroneous." Valley Towing Serv., Inc. v. S.S. American Wheat,
Freighters, Inc., 618 F.2d 341, 346 (5th Cir.1980); see also Fed.R.Civ.P. 52(a). "If the district
court's findings are plausible in light of the record viewed in its entirety, we may not reverse even if
we would have weighed the evidence differently and arrived at a contrary conclusion." Frota
Oceanica Brasileira, S.A. v. M/V Alice St. Philip, 790 F.2d 412, 414 (5th Cir.1986) (citing Anderson
v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985)). Having
viewed the record, we cannot conclude that the district court's factual findings were clearly
erroneous.
B. The Fault of Bowmech
When a moving vessel collides with a stationary object, the moving vessel is presumed to be
at fault. The Oregon, 158 U.S. 186, 192-93, 15 S.Ct. 804, 806-08, 39 L.Ed. 943 (1895); American
Petrofina Pipeline Co. v. M/V Shoko Maru, 837 F.2d 1324, 1326 (5th Cir.1988); Pennzoil
Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1471 (5th Cir.1991). This presumption
operates to shift the burden of producing evidence and the burden of persuasion onto the moving
vessel. American Petrofina Pipeline, 837 F.2d at 1326. The moving vessel may rebut the
presumption by showing, with a preponderance of the evidence, that the allision was the fault of the
stationary object, that the moving ship acted with reasonable care, or that the allision was an
unavoidable accident. Id.
In this case, the district court applied the presumption and found that it was not rebutted. The
district court, going further than required, also found that Bowmech's negligence caused the accident.
Either finding alone would have been sufficient. And despite Bowmech's objections, we are
persuaded that both findings are adequately supported by the record.
Bowmech's first objection is that the district court erred in applying the presumption of fault
against it. Citing dicta in a Fifth Circuit case, Bowmech urges that where the stationary object is an
obstruction to navigation, the presumption of negligence created when a moving vessel strikes a
stationary object disappears once evidence of the obstruction is presented. See S.C. Loveland, Inc.
v. East West Towing, Inc., 608 F.2d 160, 165 n. 3 (5th Cir.1979) (citing Pennsylvania R.R. v. S.S.
Marie Leonhardt, 320 F.2d 262, 264 (3rd Cir.1963)), cert. denied, 446 U.S. 918, 100 S.Ct. 1852,
64 L.Ed.2d 272 (1980). Bowmech then argues that the presumption should not have been applied
in this case because the pipeline was an obstruction to navigation. We rejected this disappearing
presumption argument in Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 795 n. 3 (5th Cir.1977),
cert. denied, 435 U.S. 924, 98 S.Ct. 1488, 55 L.Ed.2d 518 (1978), stating that the presumption of
fault affects the burden of proof, not merely the burden of going forward with the evidence.
Furthermore, we have also stated that "when a mariner knows of obstructions to navigation, he must
avoid them." Pennzoil, 943 F.2d at 1470. As Brunet, the mariner in this case, was aware of the
pipeline's presence, it was appropriate to erect the presumption of fault against Bowmech.
Next, Bowmech argues that the district court erred in finding that the allision was its fault.
Given that the KAREN ELIZABETH commenced her voyage with knowledge of the forecast for
heavy winds, and that the she continued her voyage despite knowledge of the forecast for heavier
winds and the presence of a gas pipeline, the district court was not clearly erroneous in finding that
the KAREN ELIZABETH was negligent.4
4
The voyage commenced around 2:00 a.m. on January 18, 1993. The accident occurred at
about 2:00 p.m. on January 18, 1993. As of 3:30 p.m. and 9:30 p.m. on January 17, the weather
forecast for the area was:
Tonight ... East to Northeast winds near 15 knots. Seas 3 to 4 feet. Choppy in
protected water.
Friday and Friday night ... East winds near 20 knots. Seas 4 to 6 feet. Rough in
protected water. Scattered showers and few thunderstorms.
As of 3:30 a.m. on January 18 (90 minutes after departure), the weather forecast was:
Small craft advisory in effect.
C. Limitation of Liability
Bowmech contends that it should have been entitled to limit its liability under the maritime
Limitation of Liability Act which allows t he shipowner to limit its liability for any loss or injury
involving the vessel to the value of the vessel and its freight. 46 U.S.C.App. § 183(a). Under the
Act, a party is entitled to limitation only if it is "without privity or knowledge" of the cause of the
loss. Id. When the shipowner is a corporation, knowledge is judged by what the corporation's
managing agents knew or should have known with respect to conditions or actions likely to cause the
loss. Pennzoil, 943 F.2d at 1473-74. The burden is on the shipowner to prove lack of knowledge
or privity of the negligent activity or unseaworthy condition that caused the accident. Id. at 1474.
Bowmech contends that navigat ional decisions, including decisions regarding weather
conditions en route, are delegated to the wheelman of the KAREN ELIZABETH and are not within
the privity or knowledge of Bowmech. We disagree. The record indicates that on the day of the
Today ... East to Northeast winds near 20 knots. Seas 5 to 8 feet. Choppy in
protected waters. Winds and seas higher near scattered showers and
thunderstorms.
Tonight ... East to Northeast winds near 20 knots. Seas 5 to 8 feet. Choppy in
protected waters. Winds and seas higher near scattered showers and
thunderstorms.
As of 9:30 a.m. (four and a half hours before the accident), the weather forecast was:
Small craft advisory in effect.
This afternoon ... East winds 20 to 30 knots. Seas 5 to 7 feet. Rough in protected
waters. Winds and seas higher near scattered showers and thunderstorms.
Tonight ... East to Southeast winds 20 to 25 knots. Seas 5 to 8 feet. Rough in
protected waters. Winds and seas higher near scattered showers and
thunderstorms.
As of 11:15 a.m. (less than three hours before the accident), the weather forecast was:
Small craft advisory in effect.
This afternoon ... East winds 20 to 30 knots. Seas 6 to 9 feet. Rough in protected
waters. Winds and seas higher near scattered showers and thunderstorms.
Tonight ... East to Southeast winds 20 to 25 knots. Seas 5 to 8 feet. Rough in
protected waters. Winds and seas higher near scattered showers and
thunderstorms.
accident Bowmech's managing officer, Chris Bowler, knew that the vessel was being operated in high
winds. He also knew that the vessel routinely operated in high winds and occasionally became
windbound. Such knowledge vitiates the right to limit liability. See id., 943 F.2d at 1474.5
D. The Fault of United Gas
Bowmech contends that the trial court erred in finding that United Gas was not at fault.
First, it argues that the court should have applied the rule of The Pennsylvania6 against United Gas.
Under the rule of The Pennsylvania, the owner of a pipeline that is in violation of a statutory rule
intended to prevent allisions is presumed to be at fault and bears the burden of proving that the
violation did not cause the allision. See Pennzoil, 943 F.2d at 1471-72; see also Sheridan Transp.
Co. v. United States, 897 F.2d 795, 799 (5th Cir.1990). Bowmech alleges that the rule of The
Pennsylvania applies because United Gas violated various permits and regulations by failing to
maintain sufficient cover over the pipeline and failing to perform adequate inspections. Because both
sides presented substantial evidence regarding the amount of cover on the pipeline, the district court's
finding that Bowmech failed to prove that the cover was insufficient cannot be clearly erroneous. See
Frota Oceanica Brasileira, 790 F.2d at 414-15. Furthermore, we have thoroughly reviewed
Bowmech's claims that United Gas failed to inspect the pipeline in accordance with the regulations
and are convinced that the district court properly found that there was no statutory violation.
Therefore, the burden of proving that United Gas was at fault properly remained on Bowmech.
Next, Bowmech argues that United Gas was negligent in three respects: (1) there was
insufficient cover over the pipeline; (2) the pipeline inspections were inadequate; and (3) the signs
marking the pipeline's presence did not warn that the pipeline was exposed. As discussed above,
there was substantial evidence supporting the district court's finding that Bowmech did not prove that
there was insufficient cover over the pipeline or that the inspections were inadequate. Finally, as the
5
The district court also found that Bowmech had delegated enough responsibility to Brunet
and Gremillion to make them managing agents of Bowmech. Bowmech argues that the
delegation of navigational decisions is not sufficient to make Brunet and Gremillion managing
agents. We need not address this contention because we affirm the district court's finding that
Bowmech had knowledge through Bowler.
6
86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874).
district court found that there was sufficient cover over the pipeline, there was no need for a sign
warning of an exposed pipeline.
E. Fault of Gremillion
Bowmech contends that the district court erred by not deciding the issue of Gremillion's
comparative fault. We disagree. The record indicates that the district court severed this issue along
with Gremillion's personal injury claim against Bowmech.7 The trial court has broad discretion to
sever issues to be tried before it. See Fed.R.Civ.P. 21. The trial court later dismissed Gremillion's
claim as moot so it could proceed to trial in state court where it was originally filed. Finding no abuse
of discretion, we reject Bowmech's contention.
II. Denial of Bowmech's Motion to Exclude Evidence of Drug and Alcohol Use
Before the bench trial on liability, Bowmech moved in limine, to exclude from evidence prior
convictions and instances of drug and alcohol use by the crew of the KAREN ELIZABETH and the
results of a drug test performed on Brunet two days after the accident. The district court denied
Bowmech's motion. Bowmech contends that the evidence should have been excluded under Rule
404(b) of the Federal Rules of Evidence, which provides that evidence of other crimes, wrongs, or
acts is not admissible to prove that a person acted in conformity therewith.
We review the admission of evidence for abuse of discretion and will reverse only if the
challenged ruling is erroneous and affects a substantial right of the party. Southern Pacific Transp.
Co. v. Chabert, 973 F.2d 441, 448 (5th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1585, 123
L.Ed.2d 152 (1993). We find that the district court did not abuse its discretion in admitting the
evidence. Under Rule 404(b), evidence of other crimes, wrongs, or acts is admissible if offered for
purposes other than to prove action in conformity therewith. Fed.R.Evid. 404(b). In this case, the
evidence of prior convictions and instances of drug and alcohol use were offered to show that
Bowmech was negligent in hiring its crew. The evidence of Brunet's post-accident drug test was
offered to show that Brunet was under the influence of drugs at the time of the accident and that this
was the cause of the accident. Furthermore, even if the court had abused its discretion in admitting
7
See supra note 3.
the evidence, Bowmech was not substantially prejudiced because the court expressly found that the
crew's drug use did not cause the allision.
III. Damages
Following the trial on damages, t he district court awarded United Gas $270,000 for
permanent repairs, including $220,000 to install a new pipeline crossing and $50,000 for removal of
the existing crossing. The district court's determination on the amount of damages may not be
overturned unless clearly erroneous. Todd Shipyards Corp. v. Turbine Serv., Inc., 674 F.2d 401, 405
(5th Cir.), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982).
Bowmech complains that the award for installing a new pipeline places United Gas in a better
position than before the accident. Bowmech contends that the court should have reduced the award
to install a new pipeline crossing by the estimated depreciation on the old pipeline crossing. We
disagree. In Freeport Sulphur Co. v. S.S. Hermosa, 526 F.2d 300, 305-06 (5th Cir.1976), we
recognized that depreciation should not be applied in every instance. "[W]here the repairs do not
extend the useful life of the property as it existed just before the collision, there should be no
deduction for depreciation." As an example, we cited Oregon v. Tug Go-Getter, 468 F.2d 1270 (9th
Cir.1972). In Oregon, the defendant's barge collided with and caused severe damage to the south pier
of the plaintiff's bridge. The Ninth Circuit held that the cost of repairs should not be reduced by
depreciation on the old pier. The court reasoned that the repairs did not add to the life expectancy
because the pier was an integral part of the bridge structure, and regardless of the pier's condition it
would have to be replaced when the bridge required replacement.
The same is true here. The pipeline crossing is a small part of a much larger pipeline system.
According to expert testimony at trial, the new crossing will have to be replaced when the pipeline
is replaced. Moreover, there was no evidence that the crossing was scheduled for early replacement.
Therefore, there should be no deduction for depreciation.
Second, Bowmech contends that because the new pipeline will be placed at a depth of fifty
feet below the mudline, United Gas will get an erosion-free crossing. Bowmech argues that this is
a betterment that should have been deducted from the damages. The record does not contain
evidence regarding the value of the an erosion-free crossing. Nor does the record indicate that this
issue was raised in the district court. Based on our review of the record, we find no error.
Finally, Bowmech contends that the district court erred in awarding damages for removal of
the old pipeline because removal is not necessary. The record supports the finding that removal was
necessary.
CONCLUSION
For the foregoing reasons the district court's judgment is
AFFIRMED.