UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 96-30829
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AMERICAN RIVER TRANS COMPANY, ET AL.,
Plaintiffs,
AMERICAN RIVER TRANS COMPANY; TULANE FLEETING; NEW ORLEANS
SHIPYARD INC.; ARCHER DANIELS MIDLAND COMPANY;
Plaintiffs-Appellees,
versus
KAVO KALIAKRA SS, her engines, tackle, appurtenances, etc., in
rem, ET AL.,
Defendants,
KAVO KALIAKRA SS, her engines, tackle, appurtenances, etc., in
rem; UNITED KINGDOM MUTUAL STEAMSHIP ASSURANCE ASSOCIATION
(Bermuda) LTD., in personam,
Defendants-Appellants,
and
AROSITA SHIPPING COMPANY, LTD.,
Claimant-Defendant-Appellant
AROSITA SHIPPING COMPANY, LTD, as owner of the M/V Kavo
Kaliakra; GROMAR SHIPPING COMPANY, LTD, as owners of the M/V
Kavo Kaliakra; GOURDOMICHALIS MARITIME S A, as owners of the
M/V Kavo Kaliakra,
Petitioners-Appellants,
versus
COMPASS CONDO CORP, ET AL.,
Claimants,
COMPASS CONDO CORP; NEW ORLEANS SHIPYARD INC; ARCHER DANIELS
MIDLAND COMPANY; TULANE FLEETING, INC.,
Claimants-Appellees.
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Appeal from the United States District Court for the
Eastern District of Louisiana
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July 22, 1998
Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
In this appeal, we consider whether the Pennsylvania Rule
compels a finding that the presence in navigable water of barges
that lacked a permit caused a carrier to allide with the barges.
The district court entered judgment in favor of the barge owners,
holding that the mere presence of the barges was not the cause of
the allision. We affirm.
I.
On March 30, 1992, the M/V Kavo Kaliakra, a bulk carrier
measuring approximately 825 feet and weighing approximately 65,000
tons, fully laden with a cargo of corn, allided with barges fleeted
at the Tulane Fleeting Facility on the Mississippi River near
Waggaman, Louisiana.
2
For approximately a year and a half prior to the allision,
American River Transportation Co., Archer Daniels Midland Co.,
Tulane Fleeting, Inc., New Orleans Shipyard, Inc., and Compass
Condo Corp. (collectively “ARTCO”) had been running a barge-washing
operation at the Tulane Fleeting Facility. The facility consisted
of a permanently moored floating barge dock, measuring
approximately 240 feet long and 50 feet wide, which served as a
station where ARTCO temporarily tied inland river hopper barges for
cleaning and repairs.
On March 30, 1992, two fleets of barges were moored at the
facility: an upriver fleet consisting of twenty barges moored in
two tiers of ten, and a downriver fleet consisting of eight barges
moored in two tiers of four. The M/V Kavo Kaliakra was headed
downriver at 11-12 knots when it lost all power and steering. The
vessel drifted for about two miles, slowing to a speed of
approximately 2-3 knots before alliding with the outermost barge of
the upriver fleet of barges at the Tulane facility, scraping
alongside it at an angle of approximately 45 degrees. The force of
the impact caused the permanently moored barge to move about 20
feet toward the shore, deforming its spuds, flooding various
compartments, and twisting and partially sinking its shoreside
access walkway. The M/V Kavo Kaliakra continued about 300 feet
downriver and struck one of the barges in the downriver fleet as
well.
3
ARTCO filed suit against Arosita Shipping Co., Ltd., Gromer
Shipping Co., Ltd., Gourdomichalois Maritime S.A., owners and/or
operators of the M/V Kavo Kaliakra, their limited liability
insurer, United Kingdom Mutual Steamship Assurance Association
(Bermuda) Ltd., and the M/V Kavo Kaliakra (collectively “Arosita”),
seeking compensation for property damage. Arosita filed an action
seeking exoneration or limitation of liability under 46 U.S.C. §
183.
The two actions were consolidated and tried to the bench. The
district court rejected Arosita’s claim that the allision was
caused by ARTCO’s having had barges moored in violation of the
Rivers and Harbors Act, 33 U.S.C. § 403. The district court also
found that Arosita failed to prove that ARTCO’s permits were
insufficient.1 Arosita timely filed notice of appeal.2
II.
1
Because we affirm based on the district court’s causation
analysis, we assume for the purposes of this decision that ARTCO’s
permits were insufficient.
2
American River Transportation Co., Archer Daniels Midland
Company, Tulane Fleeting, Inc., and New Orleans Shipyard, Inc., are
each owners and/or operators of the Tulane Fleeting Facility, while
Compass Condo Corp. is the employer of individuals who were working
on barges fleeted at the facility. Arosita concedes that Compass
Condo Corporation is not responsible for the alleged statutory
violation. Compass, however, submitted the appellee brief jointly
with the other ARTCO entities.
4
This court reviews the district court’s findings of fact for
clear error, see Fed. R. Civ. P. 52(a); Phillips Petroleum Co. v.
Best Oilfield Servs., 48 F.3d 913, 915 (5th Cir. 1995), and
findings of law de novo, see Phillips Petroleum Co., 48 F.3d at
915. We note at the outset that Arosita contends that this court
should approach the district court’s findings more skeptically than
we otherwise would because many of the district court’s findings of
fact and conclusions of law were drawn directly from those proposed
by ARTCO, citing Falcon Construction Co. v. Economy Forms Corp.,
805 F.2d 1229, 1232 (5th Cir. 1986), and Amstar Corp. v. Domino’s
Pizza, Inc., 615 F.2d 252, 258 (5th Cir. 1980). Nevertheless,
Arosita concedes that the standard remains clear error. We reject
Arosita’s suggestion that we should afford the district court’s
factual findings less deference than usual. See Kaspar Wire Works,
Inc. v. Leco Engineering & Mach., 575 F.2d 530, 543 (5th Cir. 1978)
(concluding that the district court’s findings reflected a careful
review despite the fact that it adopted one party’s language
verbatim). The district court’s findings of fact, though they
borrow from the parties’ post-trial briefs, manifest no infidelity
to the district court’s obligations.
III.
In challenging the district court’s determination that the
presence of the barges without a permit did not cause the allision,
5
Arosita relies on the Pennsylvania Rule, a presumption in admiralty
law that a statutory violation by a party to a collision is a cause
of the damage unless it is established that the violation could not
have caused or contributed to the collision. See The Steamship
Pennsylvania v. Troop, 86 U.S. 125 (1873). Arosita contends that
the barges at the Tulane Fleeting Facility were moored in violation
of the Rivers and Harbors Act, 33 U.S.C. § 403, and that their
unpermitted presence was a cause of the allision. Arosita stresses
that the Rivers and Harbors Act prohibits any obstruction of the
navigable capacity of United States waters absent affirmative
authorization from the Army Corps of Engineers.3 Arosita also
3
The relevant portions of the Rivers and Harbors Act
provide:
The creation of any obstruction not affirmatively authorized
by Congress, to the navigable capacity of any of the waters of
the United States is prohibited; and it shall not be lawful to
build or to commence the building of any wharf, pier, dolphin,
boom, weir, breakwater, bulkhead, jetty, or other structures
in any port, roadstead, haven, harbor, canal, navigable river,
or other water if the United States . . . except on plans
recommended by the Chief of engineers and authorized by the
secretary of the Army; and it shall not be lawful . . . in any
manner to alter or modify the . . . capacity of . . . the
channel of any navigable water of the United States, unless
the work has been recommended by the Chief of Engineers and
authorized by the secretary of the army prior to beginning the
same.
33 U.S.C. § 403.
It shall not be lawful to tie up or anchor vessels or other
craft in navigable channels in such a manner as to prevent or
obstruct the passage of other vessels or craft.
33 U.S.C. § 409.
6
points to testimony of several witnesses that the Tulane Fleeting
Facility obstructed the navigability of the river, which would
otherwise have been navigable bank to bank in that area, and that
no allision would have resulted from the ship’s loss of power if
there had been fewer barges moored at the facility. The district
court, however, concluded that ARTCO’s barges did not cause the
accident, explaining:
The Court finds that ARTCO in no way caused this
allision. The Court finds it unnecessary to decide what
types of permits ARTCO had or was required to have. The
ship intended to pass 1000 feet away from ARTCO’s barges.
ARTCO’s stationary barges, did not, in fact, obstruct the
navigable channel, thus rebutting any presumption of
fault due to the purported violation by ARTCO of any
statutory rules as alleged by Arosita.
We agree with the district court’s conclusion with respect to
causation.
This court has stressed that the Pennsylvania Rule is a rule
regarding the burden of proof, not a rule of ultimate liability.
See Pennzoil Producing Co. v. Offshore Exp., Inc., 943 F.2d 1465,
1472 (5th Cir. 1991). As we have explained, the Supreme Court in
The Pennsylviania “did not intend to establish a hard and fast rule
that every vessel guilty of a statutory fault has the burden of
establishing that its fault could not by any stretch of the
imagination have had any causal relation to the collision, no
matter how speculative, improbable or remote.” Compania de Maderas
de Caibarien, S.A. v. Queenston Heights, 220 F.2d 120, 122-23 (5th
Cir. 1955).
7
The reasoning of this court in Dow Chemical Co. v. Dixie
Carriers, Inc., 463 F.2d 120 (5th Cir. 1972), applies in this case.
In Dow Chemical, a tugboat owned by Dixie Carriers had, on three
occasions, struck a stationary railroad bridge fender system
constructed by Dow. Stressing that Dixie was aware of the location
of the fender system, this Court found that Dow Chemical’s failure
to secure approval from the Army Corps of Engineers for the system,
although technically a violation of the Rivers and Harbors Act, did
not cause the allisions. The court explained: “The record refutes
any suggestion that the fender system caused or contributed to the
collisions simply by being there.” Id. at 122 (emphasis added;
internal quotation marks omitted). Similarly, the unpermitted
barges moored at ARTCO’s fleeting facility did not cause the
allision simply because they were there.
To be sure, the presence of the barges in this case was a but-
for cause of the allision, just as the presence of the fender
system was a but-for cause of the allisions in Dow Chemical. But
in admiralty, the “fault which produces liability must be a
contributory and proximate cause of the collision, and not merely
fault in the abstract.” Inter-Cities Navig. Corp. v. United
States, 608 F.2d 1079, 1081 (5th Cir. 1979). To give rise to
liability, a culpable act or omission must have been “a substantial
and material factor in causing the collision.” Id.
8
In this case, the presence of the barges was not a substantial
and material factor in causing the accident. The district court
found that the fleeting facilities and barges were not an
obstruction to navigation. That finding was not clearly erroneous.
The captain of the M/V Kavo Kaliakra acknowledged that the
Mississippi River is 2400 feet wide where ARTCO’s fleeting facility
was located and that had he stayed on course (down the middle of
the river) he would have passed 1000 feet away from the barges.
That the river would have been navigable bank to bank in the
absence of the fleeting facility does not compel a finding that the
fleeting facility obstructed the navigable channel.
Moreover, we noted in Dow Chemical that the Pennsylvania Rule
“cannot ‘be pressed to such an extreme as to justify a division of
damages when the accident was undoubtably due to the negligence of
an offending vessel whose actions could not be anticipated.’” Dow
Chemical, 463 F.2d at 122 at n.5 (quoting Webb v. Davis, 236 F.2d
90, 93 (5th Cir. 1956)). As in Dow, the ship’s crew in this case
was aware of the location of the stationary object. Arosita does
not challenge the district court’s factual findings that it was at
fault for the M/V Kavo Kaliakra’s having lost power on the day in
question and for not slowing the ship more quickly after the loss
of power prior to the allision.
Arosita argues that Dow is distinguishable from the case at
hand because here a different design or placement of the structures
9
would have avoided the allision. Specifically, Arosita points to
testimony that, if one less barge had been moored at the fleeting
facility, the M/V Kavo Kaliakra would not have allided with it. At
bottom, however, this argument is no more than a restatement of the
position that the unpermitted barges caused the accident by “being
there.”
For the foregoing reasons, we affirm the judgment of the
district court.
10