201 F.3d 632 (5th Cir. 2000), 98-20630, Folger Coffe Co. v Olivebank

Docket Nº:98-20630
Citation:201 F.3d 632
Party Name:THE FOLGER COFFEE COMPANY; GULF INSURANCE CO., Plaintiffs-Appellants, v. OLIVEBANK; CHARMAIN SHIPPING, INC.; SAFBANK LINE LIMITED; ANDREW WEIR SHIPPING LIMITED; LYKES BROTHERS STEAMSHIP COMPANY, INC., Defendants-Appellees. GULF INSURANCE COMPANY,Plaintiff-Appellant, V. M/V OLIVEBANK; CHARMAIN SHIPPING, INC.; SAFBANK LINE LIMITED, Defendants-Appelle
Case Date:February 03, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 632

201 F.3d 632 (5th Cir. 2000)

THE FOLGER COFFEE COMPANY; GULF INSURANCE CO., Plaintiffs-Appellants,

v.

OLIVEBANK; CHARMAIN SHIPPING, INC.; SAFBANK LINE LIMITED; ANDREW WEIR SHIPPING LIMITED; LYKES BROTHERS STEAMSHIP COMPANY, INC., Defendants-Appellees.

GULF INSURANCE COMPANY,Plaintiff-Appellant,

V.

M/V OLIVEBANK; CHARMAIN SHIPPING, INC.; SAFBANK LINE LIMITED, Defendants-Appellees.

ASSOCIATED MARINE UNDERWRITING AGENCY; SOUTH AFRICAN EAGLE INSURANCE COMPANY; CARGO UNDERWRITING AGENCY; AEGIS INSURANCE COMPANY LIMITED;

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MUTUAL & FEDERAL INSURANCE COMPANY LIMITED; CESAM; UNDERWRITERS OF LLOYD'S; HENRY VOET-GENICOT BVBA; CHUBB & SON, INC.; MARINE OFFICE OF AMERICA CORPORATION; SUN ALLIANCE GENERAL INSURANCES; SUN ALLIANCE INTERNATIONAL LIMITED; ALEXANDER & ALEXANDER (ACTING ON BEHALF OF LLOYD THOMPSON); COMMERCIAL UNION ASSURANCE COMPANY PLC; UNDERWRITERS OF AMSTERDAM BOURSE AND OTHER UNDERWRITERS; CIGNA INSURANCE CO. OF EUROPE SA NV/CIGNA PROPERTY & CASUALTY INSURANCE COMPANY OF NORTH AMERICA; CEEMIS (ACTING ON BEHALF OF UNDERWRITING MANAGEMENT SERVICES); PACIFIC EMPLOYERS INSURANCE COMPANY, Plaintiffs-Appellants,

v.

M/V OLIVEBANK, her engines, boilers, tackle, etc., in rem; CHARMAIN SHIPPING, INC.; ANDREW WEIR SHIPPING LIMITED; SAFEBANK LINE LTD.; LYKES BROTHERS SHIPPING CO., INC.; BLUE ANCHOR LINES, INC.; BLUSHIP LTD., Defendants-Appellees.

INTERCARGO INSURANCE COMPANY; FIREMAN'S FUND INSURANCE COMPANIES (NEW YORK); FIREMAN'S FUND INSURANCE COMPANIES (CHICAGO), Plaintiffs-Appellants,

v.

M/V OLIVEBANK, her Engines, Boilers, Tackle, etc., in rem; CHARMAIN SHIPPING, INC.; ANDREW WEIR SHIPPING LIMITED; LYKES BROTHERS SHIPPING CO., INC; ICON CARRIERS, Defendants-Appellees.

No. 98-20630

IN THE UNITED STATES COURT OF APPEALS, FOR THE FIFTH CIRCUIT

February 3, 2000

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Appeals from the United States District Court Southern District of Texas

Before FARRIS1, WIENER, and STEWART, Circuit Judges.

FARRIS, Circuit Judge.

In this admiralty and maritime appeal, Folger Coffee Co. and its insurer, Gulf Insurance Company, seek to reverse the district court's judgment that (1) the vessel M.V. Olivebank is entitled to use general average on a salvage lien and (2) that Folger Coffee and Gulf Insurance owe their proportional share to the general average fund. We affirm.

BACKGROUND

The M.V. Olivebank left the Port of Durban, South Africa on June 12, 1996, with cargo that included granite blocks, steel wire and earth moving equipment. On the morning of June 15, 1996, the vessel encountered severe weather and extremely rough seas which caused seawater to come over the aft deck. At approximately 8:00 a.m., seawater in the vessel's alternator room, two levels below the deck, shorted the two active alternators and caused a complete loss of electrical power to the ship. Electricity was required to run the main engine and steer the ship. The third alternator, which was on standby, should have engaged but either did not or was immediately turned off so that it could be evaluated for water damage. The vessel's emergency electrical system, required by the Safety of Life at Sea Convention of 1974, should have provided emergency lighting from batteries, followed by the automatic start-up of the emergency generator to provide electrical services for steering. The batteries failed and the emergency generator was ultimately started manually. The emergency system was not designed to provide motive power.

The parties dispute the exact means by which the seawater reached the alternator room. It is, however, undisputed that a skylight, or raised hatch, nine feet above deck and two levels above the alternators was open at some point during the relevant period. The floor of the room below

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the skylight was the ceiling of the alternator room. Several small holes had been cut in this floor/ceiling to enable equipment to operate properly while resting on the floor. Water coming through the skylight could have gone through these holes into the alternator...

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