American Petrofina Pipeline Co. v. M/V Shoko Maru

• Decision Date: 22 February 1988
• Docket Number: No. 87-2303,87-2303
• Parties: AMERICAN PETROFINA PIPELINE COMPANY, Plaintiff-Appellant, v. M/V SHOKO MARU, Her Engines, Tackle, etc., and the Sanko Steamship Co., Ltd. (Sanko Kisen K.K.) Her Owners and/or Charterers, and/or Operators, Defendant- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1324

837 F.2d 1324

1993 A.M.C. 2404

AMERICAN PETROFINA PIPELINE COMPANY, Plaintiff-Appellant, v. M/V SHOKO MARU, Her Engines, Tackle, etc., and the Sanko

Steamship Co., Ltd. (Sanko Kisen K.K.) Her Owners

and/or Charterers, and/or Operators,

Defendant- Appellee.

No. 87-2303.

United States Court of Appeals, Fifth Circuit.

Feb. 22, 1988.

Rehearing Denied March 24, 1988.

Thomas O. Deen, Brown, Sims, Wise & White, Houston, Tex., for plaintiff-appellant.

Leslie Denis Cassidy, III, Kleberg, Dyer, Redford & Weil, Corpus Christi, Tex., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, JOHNSON and HIGGINBOTHAM, Circuit Judges

JOHNSON, Circuit Judge:

American Petrofina Pipeline Co. appeals an adverse judgment in a suit for damage to a dock allegedly caused by the ship M/V Shoko Maru. Because we do not believe that the district court clearly erred in finding that the Shoko Maru was not at fault, we affirm.

I. BACKGROUND

The M/V Shoko Maru is an oil tanker owned by the Sanko Steamship Co., Ltd. (Sanko Kisen K.K.). On September 1, 1983, the Shoko Maru, commanded by Captain Naritu and handled by a Corpus Christi harbor pilot, approached a dock owned by the American Petrofina Pipeline Co. in Harbor Island, Texas. Because the ship was not correctly aligned for discharging oil, the harbor pilot ordered the vessel moved forward along the face of the dock. In the course of this maneuver, Petrofina's dock fenders 4a and 6y were damaged.

Petrofina sued the Shoko Maru for $62,313.98 in repairs. Trial was held to the district court. The principal witnesses were Kenneth Lambertson, a surveyor hired by the shipowner, and Captain Robert Jung, an employee of Exxon Corp., the ship charterer, who observed the incident. The Shoko Maru did not call the harbor pilot, the captain, or any members of the ship's crew. The district court gave a judgment for the Shoko Maru, and Petrofina appeals.

II. DISCUSSION

Under general maritime law and the law of this Court, there is a long-standing presumption that, when a moving ship collides with a stationary object, the moving ship is at fault. The Oregon, 158 U.S. 186, 192-93, 15 S.Ct. 804, 807, 39 L.Ed. 943 (1895); Delta Transload, Inc. v. M/V Navios Commander, 818 F.2d 445, 449 (5th Cir.1987); United States v. T/B Arcadian, 714 F.2d 470, 474 (5th Cir.1983). This presumption operates to shift the burden of proof--both the burden of producing evidence and the burden of persuasion--onto the moving ship. Delta Transload, 818 F.2d at 449; James v. River Parishes Co., Inc., 686 F.2d 1129, 1131-33 (5th Cir.1982). The moving ship may rebut the presumption by showing, with a preponderance of the evidence, that the collision was the fault of the stationary object, that the moving ship acted with reasonable care, or that the collision was an unavoidable accident. Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 795 (5th Cir.1977), cert. denied 435 U.S. 924, 98 S.Ct. 1488, 55 L.Ed.2d 518 (1978); see also, Delta Transload, 818 F.2d at 449; James, 686 F.2d at 1132; Woods v. United States, Dept. of Transportation, 681 F.2d 988, 990 (5th Cir.1982). Ultimately, the presumption derives from the common-sense observation that moving vessels do not usually collide with stationary objects unless the vessel is mishandled in some way. Delta Transload, 818 F.2d at 449; Bunge, 558 F.2d at 795.

Remarks of the district court indicate that the court may have believed the presumption to be inapplicable in cases where damage occurs to parts of wharves designed to come into contact with ships or where witnesses observe the accident. If the district court did so hold, the court erred. We have found no case in which the initial application of the presumption depended on the absence of witnesses. Some district courts in this Circuit and elsewhere have absolved ships from liability for damage to parts of wharves, like the fenders of the instant case, designed to absorb impact during normal docking. A careful reading of these cases reveals that the courts either found that the presumption did not apply or that the wharf was so defective as to rebut the presumption. See, e.g., Manufacturers Railways Co. v. Riverway Harbor Service, 646 F.Supp. 796 (E.D.Mo.1986) (no collision involved in normal docking; presumption does not apply); Mississippi Grain Elevator, Inc. v. M/V Nai Alberto, 1983 A.M.C. 1133, 1135-36 (E.D.La.1982) (presumption does not apply where vessel makes only "normal impact" on wharf parts designed to absorb such impact); Phillips Petroleum Co. v. Trinidad Corp., 1979 A.M.C. 1352, 1358 (M.D. Fla. 1978) (proportional fault used to reduce damages payable by vessel that struck improperly maintained breasting dolphins; vessel liable only for damages to extent that impact was greater than normal). These cases do not counsel an exception to the presumption when damage occurs to stationary objects designed to come into contact with vessels; rather, they make the obvious observation that contact must rise above a certain minimal level before it constitutes a collision at all, thus activating the presumption.

The district court's...