Sea-Land Service, Inc. v. Crescent Towing & Salvage Co., Inc.

United States Court of Appeals,

Fifth Circuit.

No. 93-3612.

SEA-LAND SERVICE, INC. Plaintiff-Appellee

v.

CRESCENT TOWING & SALVAGE COMPANY, INC., etc., et al.,
Defendants,

Crescent Towing & Salvage Company, Inc., f/k/a Harbor &
Tideland's Towing Corporation, Defendant-Appellant.

Jan. 24, 1995.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before POLITZ, Chief Judge, SMITH, Circuit Judge, and HAIK,1
District Judge.

HAIK, District Judge:

Crescent Towing & Salvage Company, Inc. (Crescent) appeals the

district court's finding of fault and the award of attorneys fees.

For the reasons discussed below, we affirm on the issues of fault

and reverse the award of attorneys fees.

I.

STANDARD OF REVIEW

Crescent advocates de novo as the appropriate standard of

review. Crescent argues that a de novo standard should apply where

factual findings are based on mainly documentary evidence.

Crescent cites Bose Corp. v. Consumers Union of the United States,

1
District Judge of the Western District of Louisiana,
sitting by designation.

1
Inc.2 Bose is inappropriate because it involves first amendment

litigation in which the appellate court has an obligation to make

an independent examination of the entire record. Crescent's

position is not supported by the controlling rule,3 which provides

that "[F]indings of fact, whether based on oral or documentary

evidence, shall not be set aside unless clearly erroneous...."

II.

BACKGROUND

Crescent owned and operated the tug BETTY SMITH. Sea-Land

Service, Inc. (Sea-Land) owned and operated the M/V SEA LAND

EXPEDITION, an oceangoing container vessel. On July 30, 1989,

Miguel Acevedo, a sternmate aboard the SEA LAND, was injured during

an unberthing maneuver.

At the time of the accident, the SEA LAND was docked at the

France Road Wharf. Two tugs, the BETTY SMITH at the stern and the

PORT ALLEN at the bow, were standing-by, until needed to assist the

SEA LAND in a turnaround.

The SEA LAND's sternmates, Juan Toro, Pedro Torres and Acevedo

were singling up the shorelines. The stern was secured using three

wires and two lines. When all lines were released except one

springline, Acevedo indicated to Thirdmate Sink that the line was

taut. Sink does not speak Spanish and Acevedo does not speak

English. Sink indicated to Acevedo to continue.

After Acevedo removed two wraps of the line off the bitt, the

2
466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).
3
Fed.R.Civ.P. 52(a).

2
line jumped the bitt, striking Acevedo in both wrists, breaking his

forearms.4

Acevedo sued Sea-Land in Puerto Rico. Sea-Land settled for

$125,000, then filed suit for indemnification against Crescent.

The trial court found Crescent at fault for prematurely pulling on

the towline. Sea-Land was also assessed with fault for failure to

intercede when Acevedo indicated that there was a hazardous

situation.

The bench trial resulted in judgment in favor of Sea-Land for

$94,228.16. The allocation of fault was sixty-five percent to

Crescent and thirty-five percent to Sea-Land. Damages included

(among other items) $15,728.00 attorney fees for the defense

against Acevedo's claims in the Puerto Rico suit.

Crescent now appeals the allocation of fault and the award of

attorneys fees. We affirm the allocation of fault and reverse the

award of attorneys fees.

III.

SUFFICIENCY OF EVIDENCE

Crescent appeals the finding of the trial court that Crescent

breached its duty of workerlike performance and its duty to

exercise reasonable maritime skill. Crescent alternatively claims

Sea-Land should have been assessed a greater degree of fault.

In support of its position on appeal, Crescent identifies

indicators of Sea-Land fault as follows: The SEA LAND crew was

4
As a result of his injuries, Acevedo underwent two
surgeries, one on each hand, to repair carpal tunnel syndrome.

3
working fast because of a delay; the stern was understaffed; SEA

LAND crew members knew the taut springline was unsafe; the SEA

LAND crew did nothing to prevent the accident; the language

barrier prevented clear communication of the problem to the pilot.

Crescent makes the argument that a tug cannot maintain a

"belly" in the hawser line at all times. A twin screw tug, such as

the BETTY SMITH, must periodically engage alternating engines to

maintain a steady position in the water. Crescent argues that a

finding of fault based primarily on evidence of a taut hawser

places an unrealistic burden on tugboats.

This argument is well taken.

However, during an unberthing procedure, it is especially

important that a tug maintain a belly in the hawser line. This is

important to prevent precisely the type of accident which occurred

in this case.

Captain Johnson testified5 that the tug should not have

propeller wash while the ship is undocking. He testified that the

tug should have been in neutral gear at the time of the accident.

He went further to say that if the tug were not in a neutral gear

and there was propeller wash, then the tug acted without orders

from the ship's pilot.

In the instant case there was ample evidence to support the

finding that the tug pulled away prematurely and without orders

from the pilot. Thirdmate Sink's observation of propeller wash and

Captain Johnson's testimony combine to give a clear indication that

5
Page 159 et seq. of Exhibit One of the trial exhibits.

4
Crescent was at fault.

Thirdmate Sink's observations immediately after the accident

were given considerable weight in evaluating the cause of the

accident. He saw smoke from the springline, propeller wash from

the tug, and an unusually taut hawser line between the tug and

ship. In fact, Sink said the hawser was "straight out". This

indicates more than just a temporary loss of the "belly" in the

towline. The trial judge found this persuasive proof that the tug

pulled away prematurely, placing a strain on the springline and

thereby creating a dangerous situation. A tug can be liable to a

seaman aboard the vessel being towed where the seaman is injured

due to the tug's premature attempt to tow the vessel.6

The trial court stated in its reasons that Crescent would

have been held completely responsible for Acevedo's injuries but

for the actions or failure to act on the part of Thirdmate Sink,

and/or Pilot Johnson.

A finding of fact is clearly erroneous only if our review of

the entire record impels the definite and firm conviction that a

mistake has been committed.7 No such mistake was made in this

case.

IV.

ATTORNEYS FEES

Crescent contends that there is no basis for including

6
Simeon v. T. Smith & Son, Inc., 852 F.2d 1421 (5th
Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104
L.Ed.2d 1019 (1989).
7
Sullivan v. Rowan Cos., 952 F.2d 141, 147 (5th Cir.1992).

5
attorney fees (incurred in the Puerto Rico suit between Sea-Land

and Acevedo) as an item of damages; Crescent urges that each party

should bear its own attorney fees. Crescent was not named in the

first suit and was not informed of that suit until after the

settlement. Crescent also contends that since Sea-Land and

Crescent were adverse, Sea-Land would have incurred the attorney

fees anyway.

Sea-Land contends that since Crescent breached the warranty of

workerlike performance, attorney fees are a recoverable item. Sea-

Land cites Singer v. Dorr8 and Stevens v. East-West Towing9 in

support.

The facts presented in both cases are different from the

facts presented here. Indemnification was awarded in both Singer

and Stevens. Indemnification was not awarded and is not

appropriate in this case because both Crescent and Sea-Land were

found to be at fault. When the warranty of workerlike performance

is breached, a co-tortfeasor (Sea-Land in this case) is not

shielded from a claim for contribution. And where contribution is

appropriate, an award of attorneys fees is not.

Sea-Land contends that the holding in Odd Bergs Tankrederi A/S

v. S/T Gulfspray10 has no effect on this case because Sea-Land is

not claiming recovery under a contribution theory. Sea-Land seeks

recovery under an indemnification theory for breach of warranty of

8
272 F.Supp. 931 (E.D.La.1967).
9
649 F.2d 1104 (5th Cir.1981).
10
650 F.2d 652, 655 (5th Cir.1981).

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workerlike performance.

It is uncontroverted that Sea-Land was partially at fault for

the injuries suffered by Acevedo. Sea-Land does not appeal the

thirty-five percent allocation of fault. While the trial court

found that there was a breach of the warranty of workerlike

performance, Sea-Land is not entitled to full indemnity. Sea-

Land's partial fault precludes full indemnification. That is, Sea-

Land is entitled to a contribution (or partial indemnity) from

Crescent and no more.

Attorneys fees, under the facts of this case, are not a

recoverable element of damages. While attorneys fees may be an

appropriate item for damages when a vessel is vicariously liable

for the acts of a tug, it may not be awarded when proportionate

fault and contribution are applied.

Odd Bergs holds that attorneys fees and legal costs incurred

by a defending co-tortfeasor are not recoverable by way of

contribution from other parties who are liable. That rule is clear

and directly on point in this case.

V.

CONCLUSION

For the above stated reasons, we AFFIRM the judgment of the

trial court in part and REVERSE and RENDER the judgment in so far

as it awards attorneys fees.

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