Stolt Achievement, Ltd. v. Dredge B.E. Lindholm
| Decision Date | 19 April 2006 |
| Docket Number | No. 04-20773.,04-20773. |
| Citation | 447 F.3d 360 |
| Parties | STOLT ACHIEVEMENT, LTD. Plaintiff-Appellant, v. DREDGE B.E. LINDHOLM, its engines, tackle, appurtenances, etc., in rem, Weeks Marine, Inc., in personam, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
William Andrew Durham (argued), Christina K. Schovajsa, Eastham, Watson, Dale & Fornay, Houston, TX, for Plaintiff-Appellant.
Robert Joseph Killeen, Jr., Killeen & Associates, Houston, TX, Robert Craig Stern (argued), Law Offices of Robert C. Stern, New Orleans, LA, for Defendants-Appellees.
James Thomas Brown, Jr. (argued), Legge, Farrow, Kimmitt, McGrath & Brown, Houston, TX, for Houston Pilots, Amicus Curiae.
Appeal from the United States District Court for the Southern District of Texas.
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED in part and GRANTED in part as reflected in the substitute opinion filed today. No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc (Fed. R.App. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED. We withdraw our previous opinion, reported at 440 F.3d 266, and substitute the following.
Two ships passing in the Houston Ship Channel collided. Litigation ensued. Stolt Achievement, Ltd. complains of various errors in the district court's resolution of its claims against the dredge B.E. LINDHOLM and its owner, Weeks Marine, Inc. We affirm.
On October 21, 2002, the STOLT ACHIEVEMENT, a chemical tanker, was traveling inbound in the Houston Ship Channel. The LINDHOLM, a dredge boat, having recently concluded dredging operations, was traveling outbound in the area of the Red Fish Island Shoal, a part of Galveston Bay. The Houston Ship Channel is a busy port, and all vessels are required to navigate under the Inland Rules.1 At the point of the collision, the Channel is approximately 400 feet wide.
At approximately 1:40 P.M., the STOLT ACHIEVEMENT, captained by Anthony Shoonkind and piloted by Captain Richard Fisher, contacted the LINDHOLM, navigated by Third Mate Timothy Maginn, and the vessels agreed to a customary port-to-port or "one whistle" passing. The STOLT ACHIEVEMENT, proceeding at a speed of 11 knots, was traveling in the center and later on the starboard side of the Channel; the LINDHOLM, accelerating to 10-12 knots, was proceeding along its far to starboard side.
Two minutes later, Maginn lost control of the LINDHOLM, causing the vessel to sheer off to its port, cross the Channel's centerline, and collide with the STOLT ACHIEVEMENT midship on its port side. Recognizing the sheer, Captain Fisher attempted to contact the LINDHOLM three times. Maginn did not answer the first two calls, presumably busy attempting to avoid the sheer; upon answering the third call, Maginn told Fisher he had lost control of the LINDHOLM. Fisher turned hard starboard and accelerated, both evasive maneuvers designed to minimize the damage of the now-inevitable collision.
Following a two-day bench trial, the district court concluded that both the STOLT ACHIEVEMENT and the LINDHOLM were responsible for the collision. The court found: (1) the LINDHOLM was running too close to the side of the Channel, thus making it more susceptible to the bow wave of the STOLT ACHIEVEMENT; (2) the STOLT ACHIEVEMENT was proceeding at an excessive speed, exacerbating the suction caused by its bow wave, thus violating Inland Navigational Rule 6; (3) the STOLT ACHIEVEMENT disregarded the U.S. Coast Guard's bulletin requiring vessels to "transit at their slowest safe speed to minimize wake and proceed with caution" after making passing arrangements; (4) the STOLT ACHIEVEMENT stayed too close to (or over) the centerline of the Channel as the vessels approached each other, thus violating rules of prudent seamanship; (5) the LINDHOLM proceeded too fast with a large tanker approaching, thus violating Inland Rule 6; and (6) Maginn should have informed the STOLT ACHIEVEMENT sooner that he was experiencing difficulty steering, thus violating rules of prudent seamanship.
"Taking into consideration both the number and quality of negligent acts of each party," the district court apportioned liability equally. Each party received 50% of the damages claimed for reasonable repairs, and the court awarded Stolt 50% of its loss-of-use damages. Although prevailing in large respects, Stolt appealed. We have jurisdiction under 28 U.S.C. § 1291.
Stolt presents five issues on appeal. First, Stolt argues that the district court clearly erred in concluding that the STOLT ACHIEVEMENT was negligent in causing the collision with the LINDHOLM. Second, Stolt argues that the district court abused its discretion in admitting testimony from LINDHOLM's expert witness. Third, Stolt argues that the district court clearly erred when it refused to find that the negligence of the LINDHOLM was a superseding cause of the collision. Fourth, Stolt argues that the district court clearly erred when it apportioned liability equally between the parties. Fifth, Stolt argues that the district court erred in holding that Stolt failed to prove entitlement to average adjuster's fees. We address each in turn.
First, Stolt argues that the district court erred in concluding that the STOLT ACHIEVEMENT was negligent in causing the collision with the LINDHOLM. In an admiralty action following a bench trial, the factual findings are binding unless clearly erroneous.2 A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on all of the evidence, is left with the definite and firm conviction that a mistake has been made.3 If the district court's account of the evidence is plausible in light of the record, this Court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.4
The applicable standards of care in a collision case stem from the traditional concepts of prudent seamanship and reasonable care, statutory and regulatory rules, and recognized customs and uses.5 Establishing liability in a collision case is eased by the Pennsylvania rule, which provides that when a vessel is in violation of a statutory duty, the burden is on the offending vessel to prove that its conduct did not and could not have caused the collision.6 Where both parties to a collision are in violation of statutes designed to prevent collisions, the court may apportion fault between the parties, unless either party proves that its statutory violation was not a substantial contributing cause of the collision.7 Even without a statutory violation, liability may be imposed simply where there is negligence.8
Stolt advances two arguments at the district court's conclusion. First, Stolt contends the district court erred in concluding that the STOLT ACHIEVEMENT breached its duty of ordinary care; second, Stolt contends that the district court erred in finding the STOLT ACHIEVEMENT in violation of Inland Rule 6. We address each in turn.
Stolt argues that the STOLT ACHIEVEMENT did not breach principles of ordinary care and thus was not negligent in causing the collision with the LINDHOLM. Stolt, with support from amicus curiae Houston Pilots, primarily challenges the district court's statement that "[t]he M/V STOLT ACHIEVEMENT displaces approximately 41,000 tons of water at a time, and creates a very substantial bow wave that can push water out more than a mile in front and to the sides of a ship." The Houston Pilots urge that this effect is "physically impossible" and, if true, would leave the Channel unnavigable.
Although we too question the accuracy of the district court's statement, especially given the lack of scientific expert testimony in this case, we find ample support for the district court's conclusion that the STOLT ACHIEVEMENT was negligent. First, the court found that the STOLT ACHIEVEMENT "was proceeding at an excessive speed in the Red Fish Island Shoal area at a time when a small vessel such as a dredge was in the same location."9 Second, the district court found that the STOLT ACHIEVEMENT "stayed too close to (or over) the Channel centerline too long as the vessels approached each other for their passing."10 Whatever hydrodynamic effect the STOLT ACHIEVEMENT had on the LINDHOLM, that effect was increased by the STOLT ACHIEVEMENT's location in the narrow Channel. Third, the court found that "the substantial suction caused by the bow wave of the M/V STOLT ACHIEVEMENT was exacerbated by that vessel's speed," especially given that "the shoal created a relatively restricted passage on the west side." Although perhaps tied to the court's conclusion concerning the magnitude of the STOLT ACHIEVEMENT's bow wave, Stolt never disputes that the hydrodynamic forces produced by a vessel are directly related to its speed and the peculiarities of the Houston Ship Channel at the Red Fish Island Shoal. Lastly, the court concluded that the U.S. Coast Guards "Notice to Mariners," which cautioned vessels to travel at their "slowest safe speed" when near the Red Fish Island Shoal, made travel at customary speeds inappropriate.11 Although we may have reached a different conclusion, that alone is not sufficient for us to find that the district court's findings were clearly erroneous.12
Next, Stolt contends that the district court erred in finding the STOLT ACHIEVEMENT in violation of Inland Rule 6. Stolt argues the district court used two inconsistent definitions of "safe speed," one of which erroneously required the STOLT ACHIEVEMENT to consider the effect of its vessel on other vessels in the vicinity.
We do not agree that the district court used two inconsistent definitions of "safe speed." Without...
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