Bertucci Contracting Corp. v. M/V Antwerpen
| Decision Date | 19 September 2006 |
| Docket Number | No. 04-31200.,04-31200. |
| Citation | 465 F.3d 254 |
| Parties | BERTUCCI CONTRACTING CORPORATION, Plaintiff, v. M/V ANTWERPEN, etc.; et al., Defendants, Marvita Shipping Company Ltd., Defendant-Third Party Plaintiff-Appellant, v. M/V LADY JEANETTE, her engines, boilers, tackle, equipment, furniture, apparel, etc., in rem; F&L Marine Management Inc.; Sandbar III Inc., Third Party Defendants-Appellees. Marvita Shipping Company Ltd., Plaintiff-Appellant, v. M/V LADY JEANETTE, etc.; et al., Defendants, M/V LADY JEANETTE, her engines, boilers, tackle, equipment, furniture, apparel, etc., in rem; Sandbar III Inc., in personam; F&L Marine Management Inc., Defendants-Appellees. In Re: In the Matter of the Complaint of F&L Marine Management Inc.; Sandbar III Inc., for Exoneration from or Limitation of Liability. F&L Marine Management Inc., as owner pro hac vice; Sandbar III Inc., as owner of M/V LADY JEANETTE, her engines, tackle, appurtenances, furniture, etc., Petitioners-Appellees, v. Marvita Shipping Company Ltd., Claimant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Antonio J. Rodriguez, A.T. Chenault, IV (argued), Henry J. Rodriguez, Fowler Rodriguez & Chalos, New Orleans, LA, for Marvita Shipping Co., Ltd.
James G. Burke, Jr., Paul Newman Vance (argued), Burke & Mayer, New Orleans, LA, for Third Party Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GARWOOD, PRADO and OWEN, Circuit Judges.
This appeal arises out of an unsuccessful claim by Marvita Shipping Company, Ltd., the owner of the M/V ANTWERPEN against the interests of the M/V LADY JEANETTE for allegedly "embarrassing the navigation" of the ANTWERPEN and causing it to allide with a fleet of stationary barges on the east bank of the Mississippi River.1 Marvita claims that a new trial is necessary because the LADY JEANETTE created a risk of collision and violated several navigation rules as a matter of law, and accordingly, the district court should have required the LADY JEANETTE to prove that her navigation could not have been a contributory and proximate cause of the accident.2 Because the district court's judgment was not based on a clearly erroneous view of the facts or a misunderstanding of the applicable law, we affirm.
Around 2:00 a.m. on January 19, 2003, several vessels passed through the Carrollton Bend, a turn in the Mississippi River located near the Nine Mile Point, which is below the Huey P. Long Bridge and immediately above the City of New Orleans. The LADY JEANETTE, a 50.5-foot long and 24-foot wide tugboat, was pushing four loaded barges in a two-by-two configuration downbound (south) on the river. Also proceeding downbound were the BAYOU BLACK and the BEVERLY ANDERSON. The ALICE HOOKER and the ANTWERPEN, a 653-foot long and 96-foot wide oceangoing bulk freighter, were headed upbound (north) on the river. Captain Kenneth Ayars of the LADY JEANETTE radioed Teal M. Grue, a compulsory river pilot assisting the ANTWERPEN, to discuss the traffic situation. Pilot Grue proposed to overtake the upbound ALICE HOOKER, which decided to hold up on the west bank until the traffic cleared, on the ANTWERPEN's port (left) side. Continuing to proceed across the river, the upbound ANTWERPEN would then meet the downbound BEVERLY ANDERSON for a starboard-to-starboard (right side or "two whistle"3) passing. Pilot Grue and Captain Ayars agreed to then pass each other on their port sides (a "one whistle" passing), with the LADY JEANETTE navigating close to the right descending (west) bank (the bank to the right when proceeding down the river).
Though the vessels passed each other successfully, Marvita maintains that the LADY JEANETTE violated the passing agreement by failing to stay close to the right descending bank and, instead, headed straight toward the ANTWERPEN. Marvita further claims that Pilot Grue had to decrease his speed and turn the front end of the ANTWERPEN (the bow) and then the back end (the stern) to the right in a "see-sawing" motion to avoid colliding with the LADY JEANETTE. Captain Ayars, on the other hand, claims that he did not steer toward the ANTWERPEN until he was "in the pocket," with his bow past the ANTWERPEN's bow, and that the ANTWERPEN could not have hit the LADY JEANETTE if she tried. In any event, after passing the LADY JEANETTE, Pilot Grue realized he faced an imminent allision with a stationary fleet of barges located on the left descending bank, across from the Nine Mile Point. He then sounded the danger signal, ordered the engines reversed, and crashed into the barges.
The owner of the barges, Bertucci Construction, sued the ANTWERPEN in rem and Marvita in personam for damages. Marvita claimed that the LADY JEANETTE caused the allision by failing to navigate close enough to the right descending bank in accordance with the passing agreement and by forcing the ANTWERPEN to navigate too close to the left descending bank (and toward the barges) in an effort to avoid a collision with the LADY JEANETTE. Marvita filed a third-party complaint against the LADY JEANETTE, its owner Sandbar III, Inc., and its operator F&L Marine Management, Inc. Marvita also filed a separate complaint, asserting an admiralty and maritime claim under Rule 9(h) of the Federal Rules of Civil Procedure against the LADY JEANETTE, Sandbar, and F&L. Sandbar and F&L then sought exoneration from liability or limitation of liability to the value of the LADY JEANETTE. The claims were consolidated for trial, Marvita and Bertucci settled before trial, and Marvita's remaining claims against the LADY JEANETTE, Sandbar, and F&L proceeded to a bench trial.
The district court found that the LADY JEANETTE adhered to the passing agreement and complied with the applicable navigation rules and that the ANTWERPEN's allision with the Bertucci fleet was caused by Pilot Grue's failure to maintain proper steerageway—by decreasing his speed too much when navigating around the Carrollton Bend, he got caught in the current and lost control of the vessel. The district court entered judgment in favor of the LADY JEANETTE, Sandbar, and F&L upon concluding that the LADY JEANETTE was not negligent in its navigation and did not embarrass the ANTWERPEN's navigation. Marvita moved for a new trial, and the district court denied the motion after finding that Marvita simply reiterated the evidence already considered by the court at trial and failed to demonstrate error or injustice in the court's decision. Marvita appeals the district court's judgment and requests that this court vacate the judgment and remand for a new trial.
Because this case was decided by the district court without a jury, we review the district court's factual findings for clear error: "Findings of fact . . . 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."4 If the district court's finding is plausible in light of the record viewed as a whole, the court of appeals cannot reverse even though, if sitting as the trier of fact, it would have weighed the evidence differently.5 "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous."6 A finding is clearly erroneous when the appellate court, viewing the evidence in its entirety, "is left with the definite and firm conviction that a mistake has been committed."7 The court owes even greater deference to findings based on the credibility of witnesses and must uphold them if based on coherent, internally consistent, and facially plausible testimony that is not contradicted by external evidence.8 In an admiralty case tried before a court without a jury, the district court's findings of negligence, cause-in-fact, and proximate cause are treated as factual findings subject to the clearly erroneous standard.9 As we have previously stated:
Although the question of whether given behavior is sufficiently improper to constitute negligence is frequently reviewed on appeal, the question of whether a party is at fault in causing or contributing to the causation of some calamity is largely one of fact . . . . [T]he standards of behavior [] are set by law—whether behavior meets those standards is a question of fact, measured on appeal by the clearly erroneous standard.10
If a finding is based on a mixed question of law and fact, this court should only reverse "if the findings are based on a misunderstanding of the law or a clearly erroneous view of the facts."11
The crux of Marvita's argument is that, because Captain Ayars of the LADY JEANETTE testified to (1) seeing the ANTWERPEN's masthead lights nearly in line, (2) "falling off the point" on the right descending bank, and (3) steering the LADY JEANETTE toward the left descending bank, he could not have complied with the passing agreement or with Inland Navigational Rule 7 (Risk of Collision), Rule 8 (Action to Avoid Collision), Rule 9 (Narrow Channels), or Rule 14 (Head-on Situation).12 Instead, according to Marvita, the LADY JEANETTE must have been navigating on the left descending bank side of the river and directly toward the ANTWERPEN, thereby creating a risk of collision.13 Once a risk of collision exists, the navigation rules mandate the appropriate response—here, for each vessel to turn to starboard and pass on each other's port side.14 Marvita contends that once the vessels faced a risk of collision, the LADY JEANETTE turned to port instead of starboard, thus creating a close-quarters, near-miss situation and violating several Inland Rules. Marvita argues that the district court took an impermissible view of the evidence and erred as a matter of law by failing to find that a risk of collision existed and that the LADY JEANETTE's response was in violation of Rules 7, 8, 9, and 14. If the district court had concluded that the LADY JEANETTE violated one...
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