UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-30803
BURMA NAVIGATION CORP.,
Plaintiff - Appellee
Cross-Appellant,
VERSUS
RELIANT SEAHORSE MV, in rem; ZAPATA GULF
MARINE OPERATORS INC.; TIDEWATER MARINE INC.;
TIDEWATER MARINE SERVICE INC., in personam,
Defendants - Appellants
Cross-Appellees.
------------------------------------------------
ZAPATA GULF MARINE OPERATORS, ET AL,
Plaintiffs - Appellants
Cross-Appellees,
VERSUS
ALASKA M/V, in rem,
Defendants - Appellees
Cross-Appellants.
------------------------------------------------
PENNZOIL EXPLORATION AND PRODUCTION COMPANY,
Plaintiff - Appellant
Cross-Appellee,
VERSUS
BURMA NAVIGATION CORP., ET AL,
Defendants - Appellees
Cross-Appellants.
Appeals from the United States District Court
For the Eastern District of Louisiana
October 29, 1996
Before REYNALDO G. GARZA, DeMOSS, and PARKER, Circuit Judges.
DeMOSS, Circuit Judge:
In this case, two vessels were unable to successfully navigate
the Mississippi River and avoid colliding with one another in the
process. The district court found the M/V ALASKA and the M/V
RELIANT SEAHORSE to be equally at fault in causing the collision
and assessed liability 50% against each ship. After a complete
review of the record, we find that sufficient evidence exists to
support the district court’s findings and we AFFIRM the decision of
the district court. The judgment of the district court is,
however, modified to reflect the parties’ in rem and in personam
claims.
BACKGROUND
On March 6, 1994, the M/V ALASKA and the M/V RELIANT SEAHORSE
collided while attempting to navigate the Southwest Pass of the
Mississippi River in heavy fog. The owner of the M/V ALASKA, Burma
Navigation Corporation, filed suit against the M/V RELIANT
SEAHORSE, in rem, and Zapata Gulf Marine Operators, Inc., Tidewater
Marine, Inc., and Tidewater Marine Service, Inc., in personam.
Zapata Gulf Marine and Tidewater Marine sued the M/V ALASKA, in
rem, and Burma Navigation, in personam, for damages arising out of
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the same collision. Pennzoil Exploration & Production Company also
brought suit against Burma Navigation for damage to cargo carried
by the M/V RELIANT SEAHORSE. Burma Navigation filed third-party
claims and cross-claims seeking defense, contribution, and
indemnity from the Pennzoil claims. The cases were consolidated
and the parties agreed to a bench trial. The district court then
bifurcated the trial on the issues of liability and damages.
The M/V RELIANT SEAHORSE, a 176-foot long offshore supply
vessel, owned by Zapata Gulf Marine, Inc. and operated by Tidewater
Marine, Inc., was outbound from the Southwest Pass of the
Mississippi River headed toward the entrance/exit channel to the
Gulf of Mexico at clutch speed, the slowest available maneuvering
speed. The M/V ALASKA, a 600-foot ocean-going cargo vessel, was
inbound traveling full ahead. The two vessels agreed on a port-to-
port passing. The two ships collided at 8:36 a.m. The ALASKA
struck the RELIANT SEAHORSE about 22 feet aft of her pilothouse
near the starboard exhaust stack, impaling the RELIANT SEAHORSE on
the ALASKA’s bow. The parties disputed almost all other facts
relevant to the collision, such as the exact speed of the ALASKA,
course changes of each vessel, the communications between each
vessel, and the location of the vessels before and at the time of
the collision.
After hearing the testimony and reviewing the evidence
presented, the district court found both vessels to be equally at
fault and assessed liability 50% against the ALASKA and 50% against
RELIANT SEAHORSE. All parties appealed.
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DISCUSSION
The district court made the following findings and
conclusions:
(1) This was clearly a heavy fog situation wherein
visibility was restricted and I am satisfied after
listening to further testimony that the captain of
the motor vessel RELIANT became disoriented in that
particular fog situation;
(2) the motor vessel ALASKA was proceeding at an
excessive rate of speed, given the circumstances
and weather conditions then existing;
(3) the motor vessel ALASKA’s course recorder does
not have a four and a half degree error, no course
change from full ahead was ever recorded on this
course recorder. To believe Pilot Durabb when he
indicated that he ordered 350 when coming on board,
whether there was or was not a four and a half
degree error, it would have to have been recorded
at the time and that does not appear on that course
recorder.
As to that aspect, the Court is convinced that
the vessel, up until 8:32, was on a course of 340
or 345 which would have put that vessel in a
different position then [sic] is testified to by
Durabb. Further, Durabb did not maintain
sufficient radar contact or radar observation
during the period of time;
(4) the Court finds that Webb is not credible with
respect to his actions and entry of his Loran
points. I am unconvinced that Captain Webb made
accurate or correct entries nor am I satisfied with
respect to his version of the events as related by
him. I am satisfied that Webb clearly became
disorientated in the fog and make that specific
factual finding;
(5) Web’s [sic] activity in approaching the number
one sea buoy clearly put him in a situation where
he had to take evasive maneuvers to avoid the
number one buoy and after rounding the number one
buoy, then chose the course of conduct which would
put him in a situation perpendicular to the then
appearing motor vessel ALASKA;
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(6) [t]he Court clearly finds that Futcher is
credible with respect to reporting the ship being
on the port bow the entire time. The Court
believes that for Mr. Futcher to have testified
contrary would have been for him to disregard his
own safety and this Court is not convinced that
Futcher would have manufactured and/or fabricated
his testimony to his detriment.
(7) This accident did occur or likely occurred on
the western side of the channel. I reach this
conclusion based upon no finding of a four and a
half degree error in this particular course
recorder.
(8) [T]he Court finds that the cases cited by the
defendant, specifically one case of Judge Rubin,
Indian Towing v. The Tug Westerly W, 264 F. Supp.
892 [E.D.La. 1967], and the other cases cited
therein are factually distinguishable. The
Westerly W saw the approaching vessel and even
grounded her tow into the trees. Therefore, that
tug absolutely took every possible maneuver
available to avoid the pending accident. In this
case, however, Captain Webb, upon rounding the
number one sea buoy, instead of either stopping,
slowing, or maintaining additional contact, chose
to go to a port maneuver which put his vessel
across the bow of the motor vessel ALASKA.
In this case, the Court feels that Webb made
no sight of the ALASKA and if his version is
correct, never got any reports from Futcher.
However, the Court disregards that testimony and
believes that Futcher was giving reports, although
Captain Webb apparently did not receive or
acknowledge same.
The same can be said with respect to Pilot
Durabb, although Pilot Durabb may believe that he
ordered a course change upon entry on to the
vessel, I am convinced that he took no appropriate
measures to ensure if the order was given that it
in fact was executed.
Having made all of these findings, the Court
must therefore decide if one vessel is solely or
exclusively at fault and if not what degrees of
fault are attributable to each vessel. After
listening to the entire testimony and finding the
actions of both vessels equally caused and
contributed to this accident, when added one on top
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of the other, the Court finds that both vessels in
this collision were equally liable, at fault, and
therefore assess liability of these vessels
specifically at fifty percent.
Appellants RELIANT SEAHORSE, Zapata Gulf Marine, and Tidewater
Marine (collectively “Tidewater”) argue that the ALASKA (1) failed
to proceed along the course of the channel as near to the outer
limit of the channel on her starboard side as is safe and
practicable; (2) improperly traveled at full speed in poor
visibility; (3) failed to properly check the radar; (4) proceeded
through the channel at an excessive speed; and (5) failed to have
her lookout immediately report the sighting of the RELIANT
SEAHORSE. According to Tidewater, these acts violated the
Navigation Safety Regulations, 33 C.F.R. § 164, and the Inland
Navigational Rules, 33 U.S.C. §§ 2001-2038, in particular, Rules
9(a)(i) and 9(a)(ii) - the Narrow Channel Rule.1
Tidewater maintains that the district court failed to make
specific findings as required by FED. R. CIV. P. 52(a) as to these
violations and, as a result, improperly apportioned fault in this
case. Interfirst Bank of Abilene, N.A. v. Lull Mfg., 778 F.2d 228,
234 (5th Cir. 1985). Tidewater also contends Marine Transport
Lines, Inc. v. M/V TAKO INVADER, 37 F.3d 1138, 1143 (5th Cir.
1994), requires the district court to decide whether the Narrow
Channel Rules applied and whether these rules affected the
1
The Narrow Channel Rule, 33 U.S.C. § 2009(a)(i), states:
A vessel proceeding along the course of a narrow
channel or fairway shall keep as near to the outer limit
of the channel or fairway which lies on her starboard
side as is safe and practicable.
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apportionment of fault under the facts presented. The absence of
sufficient findings on these issues undermined the district court’s
application of the Pennsylvania Rule.2
Appellees ALASKA and Burma Navigation (collectively “ALASKA”)
argue that Tidewater did not object to the district court’s oral
findings and conclusions nor did they file post-judgment motions
asking the court to make more specific findings. As such, ALASKA
contends that Tidewater raises this Rule 52(a) specificity argument
for the first time on appeal and, therefore, the argument is not
properly before this Court. Miller v. Bittner, 985 F.2d 935, 940-
41 (8th Cir. 1993) (challenges to the sufficiency of the district
court’s findings will not be considered on appeal in the absence of
a timely Rule 52 motion).
Even if this Court reaches Tidewater’s sufficiency arguments,
the ALASKA contends that the arguments lack merit and are merely an
attempt to circumvent the clearly erroneous standard of review.
The ALASKA argues that Rule 52 only requires the district court to
make findings that show a clear understanding for the basis of its
decision. Chandler v. City of Dallas, 958 F.2d 85, 89 (5th Cir.
1992), cert. denied, 114 S. Ct. 1386 (1994). Further, the district
court’s findings need only be specific enough to provide a basis
for the judgment and for meaningful appellate review. Id. The
ALASKA contends that the district court’s findings provide a
2
In The Pennsylvania, 86 U.S. (19 Wall.) 125, 136 (1873),
the Supreme Court held that when a party violates a rule or
regulation enacted to prevent collisions, the burden of proof
shifts to the party who violated the rule to show that the
violation did not cause the collision.
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sufficient basis for appellate review by orally summarizing the
testimony of the major fact witnesses and experts and indicating
which testimony and evidence it found credible.
Appellees further contend that The Pennsylvania rule is a
burden of proof rule and is not applicable to apportionment of
liability. Pennzoil Producing Co. v. Offshore Express, Inc., 943
F.2d 1465, 1472 (5th Cir. 1991). United States v. Reliable
Transfer, 421 U.S. 397, 95 S. Ct. 1708 (1975), holds that the
apportionment of liability must be determined according to the
comparative fault of the parties. According to the ALASKA, the
district court properly applied Reliable Transfer to the present
case and correctly refused to consider The Pennsylvania rule.
A. Specificity/Sufficiency under Rule 52
Tidewater’s challenge to the specificity of the district
court’s fact findings under Rule 52(a) appears to be a thinly
veiled attempt to turn a sufficiency-of-the-evidence argument into
a legal challenge.3 Assuming we were to “take the bait,” Rule
52(a) provides “[f]indings of fact, whether based on oral or
documentary evidence, 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). Rule 52(a) “exacts neither punctilious detail nor
3
“When findings of fact are made in actions tried without a
jury, the sufficiency of the evidence supporting the findings may
be later questioned whether or not in the district court the party
raising the question objected to the findings, moved to amend them,
or moved for partial findings.” FED. R. CIV. P. 52(b).
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slavish tracing of the claims issue by issue and witness by
witness.” Schlesinger v. Herzog, 2 F.3d 135, 139 (5th Cir. 1993)
(internal quotations omitted). In fact, Rule 52 requires the
district court to simply issue findings with sufficient detail to
enable the appellate court to consider the findings under the
applicable reviewing standard. Id.; Collins v. Baptist Memorial
Geriatric Ctr., 937 F.2d 190, 194 (5th Cir. 1991), cert. denied,
502 U.S. 1072 (1992). Rule 52 is satisfied if the district court’s
findings give the reviewing court a clear understanding of the
factual basis for the decision. Interfirst Bank of Abilene, 778
F.2d at 234. Upon reviewing the district court’s oral findings and
conclusions, we have a clear understanding of the factual basis for
the decision and we hold that the district court sufficiently
specified its findings for purposes of satisfying Rule 52(a).
Finding no legal error with the specificity of the district
court’s findings and conclusions, we are then asked to determine
whether sufficient evidence exists to support those findings. We
may not set aside the district court’s findings of fact unless
those findings are clearly erroneous. Gaspar v. Dowell Div., Dow
Chem. Co., 750 F.2d 460, 462 (5th Cir. 1985).
When, as in this instance, a case turns on credibility
assessments, “Rule 52(a) demands even greater deference to the
trial court’s findings.” Anderson v. City of Bessemer City, N.C.,
470 U.S. 564, 575 (1985). “Where the court’s finding is based on
its decision to credit the testimony of one witness over that of
another, `that finding, if not internally inconsistent, can
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virtually never be clear error.’” Schlesinger, 2 F.3d at 139
(quoting Anderson, 470 U.S. at 575). The district court orally
summarized the testimony of the major fact and expert witnesses and
made specific credibility assessments of those witnesses. The
district court then found specific instances of fault on the part
of each vessel which contributed to the collision. After a
complete review of the record, we find sufficient evidence exists
to support the district court’s findings. Consequently, we are
convinced that the district court did not clearly err in assessing
fault at 50% for each vessel.
Furthermore, appellees correctly state that The Pennsylvania
rule “does not determine a party’s ultimate share of liability for
a loss.” Offshore Express, 943 F.2d at 1472. Reliable Transfer
requires that the courts use a comparative fault scheme for
maritime matters. Id. (citing Reliable Transfer, 421 U.S. 397, 95
S. Ct. 1708). As such, the district court committed no legal error
by using comparative fault principles in assessing fault in this
case.
B. The Narrow Channel Rules
Tidewater contends that the district court erred as a matter
of law in dividing liability equally between the parties because
vessels crossing the centerline in violation of the Narrow Channel
Rule are considered at fault for all resulting damages. State of
Louisiana v. M/V TESTBANK, 564 F. Supp. 729 (E.D. La. 1983), aff’d,
767 F.2d 916, 917 (5th Cir. 1985). Based on the Narrow Channel
10
Rules, Tidewater contends that it was entitled to presume that the
ALASKA would keep to her own side and would pursue the customary
track of vessels in the channel.
The appellees ALASKA and Burma Navigation contend that,
assuming the ALASKA violated Rule 9, violations of this
navigational rule have never constituted greater than 50%
negligence as a matter of law nor have such violations established
per se liability. M/V TESTBANK, 564 F. Supp. 729. Appellees
further point out that Reliable Transfer makes allocation of fault
in maritime collision cases a fact question. See Southern Natural
Gas Co. v. Pontchartrain Materials, Inc., 711 F.2d 1251, 1259 (5th
Cir. 1983). In support of the district court’s liability
allocation, the appellees note that the district court found (1)
that Captain Webb lacked credibility; (2) that Webb became
disorientated in the heavy fog; (3) that Webb turned his vessel to
port across the bow of the oncoming ALASKA while taking measures to
avoid the number one buoy; and (4) that the Coast Guard report
showed that the SEAHORSE’s turn was the primary cause of the
collision.
Finally, appellees argue on their cross appeal, that the
district court clearly erred in finding that the ALASKA was on the
west side of the channel and in allocating 50% fault to the ALASKA.
The appellees base their contention on the facts that (1) the
channel is only 600 feet wide and (2) the mate of the RELIANT
SEAHORSE, Futcher, testified that the SEAHORSE was running the
western edge of the channel with the ALASKA 300 feet to her east.
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This testimony put the ALASKA to the east of the center of the
channel. Appellees maintain that the SEAHORSE’s mate’s position
fix, photographs of the ALASKA taken minutes after the collision,
and the debris caused by the collision reflect that the ALASKA was
on the eastern side of the channel. Therefore, appellees maintain
that the district court clearly erred in assessing 50% fault to the
ALASKA in this case.
Vessels navigating the Mississippi River must adhere to the
Narrow Channel Rules (Rules 9 and 14) unless otherwise agreed. See
Marine Transport, 37 F.3d at 1143-44. However, a vessel’s position
on one side or the other of the center of the river does not
conclusively establish that a rule was violated. Id. at 1145. We
have previously held that a downbound vessel’s right-of-way under
Rule 9 is conditional in that the downbound vessel, in this case
the RELIANT SEAHORSE, must have proposed a manner and place for
passage and initiated maneuvering signals under Rule 34(a)(i). Id.
at 1144. When the downbound vessel exercises its authority under
Rule 9(a)(ii), the upbound vessel must give way. 33 U.S.C. §
2009(a)(ii); and see Marine Transport, 37 F.3d at 1144.
In this case, the district court specifically found that
Captain Webb did not maintain contact with the ALASKA and, in fact,
chose a course of conduct which put the RELIANT SEAHORSE in a path
perpendicular to the oncoming vessel. Although the district court
did not expressly delineate the various rules violations, its fact
findings are more than sufficient to show that its apportionment of
fault was based on rules violations by both vessels. Even though
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the district court found the ALASKA to be on the western side of
the river, a technical violation of Rule 9(a)(i), this finding does
not support the imposition of 100% liability on the ALASKA. The
district court also found that Captain Webb did not stop, slow his
vessel, or maintain additional contact with the ALASKA. Instead,
Webb chose to initiate a port maneuver which put his vessel across
the bow of the oncoming ALASKA. The district court also found that
Webb did not see the ALASKA and apparently did not receive or
acknowledge his mate’s reports of the location of the oncoming
vessel. These findings support its apportionment of fault at 50%
for each vessel. After carefully reviewing relevant portions of
the record itself, we are satisfied that the district court’s
apportionment of fault is not clearly erroneous.
C. Other Claims
The parties agree that the judgment should be amended to
reflect in personam liability as to Burma Navigation, Zapata Gulf
Marine, and Tidewater Marine as well as in rem liability as to the
ALASKA and the RELIANT SEAHORSE. We agree. Therefore, we amend
the judgment of the district court to reflect both in rem and in
personam liability in this case.
Next, Tidewater contends that Burma Navigation “manufactured”
a 4.5 degree error in the course recorder to show that the ALASKA
was on the east side of the channel in an effort to avoid
liability. Tidewater argues that they incurred substantial costs
in repudiating the fabricated course recorder error and that the
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district court erred in refusing to sanction Burma Navigation for
this fabrication.
ALASKA and Burma Navigation contend that Tidewater’s argument
is frivolous and presents nothing for this Court to review because
no Rule 11 motion was ever made by Tidewater. They also argue
that, even if the appellants properly filed a motion in accordance
with FED. R. CIV. P. 11(c)(1), the sanctions issue is moot because
the case has been tried, no objections to ALASKA’s theories were
made, and Rule 11 requires that a written motion be served on the
offending party.
In their reply brief, Tidewater concedes that the sanctions
issue is not properly before this Court. As such, it is not
necessary for this court to reach the issue of sanctions.
CONCLUSION
Sufficient evidence exists to support the district court’s
findings in this case. Further, the district court committed no
legal error in assessing fault at 50% for each vessel. All parties
agree that the district court erred in entering judgment only in
rem when the suit also contained in personam claims. Therefore,
the judgment of the district court is recast to reflect the in
personam claims. Finally, appellants admit in their reply brief
that the sanctions issue was not raised below. As such, we do not
reach the sanctions issue.
g:\opin\95-30803.opn
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For the foregoing reasons, the judgment of the district court
is modified to reflect the in rem and in personam claims and, in
all other respects, the judgment is AFFIRMED.
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