Brunet v. United Gas Pipeline Co.

• Decision Date: 07 March 1994
• Docket Number: No. 92-3915,92-3915
• Citation: 15 F.3d 500
• Parties: Vernon BRUNET, Plaintiff, v. UNITED GAS PIPELINE CO., Defendant-Appellee, v. BOWMECH MARINE, INC., Defendant-Appellant. In the Matter of BOWMECH MARINE, INC., for Exoneration from or Limitation of Liability, Petitioner-Appellant, Cross-Appellee, v. UNITED GAS PIPELINE CO., Am. Commercial Barge Line, and National Marine, Inc., Claimants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 500

15 F.3d 500

1994 A.M.C. 1565

Vernon BRUNET, Plaintiff, v. UNITED GAS PIPELINE CO., Defendant-Appellee, v. BOWMECH MARINE, INC., Defendant-Appellant.

In the Matter of BOWMECH MARINE, INC., for Exoneration from

or Limitation of Liability, Petitioner-Appellant, Cross-Appellee, v. UNITED GAS PIPELINE CO., Am. Commercial Barge Line, and National Marine, Inc., Claimants-Appellees,

Cross-Appellants.

No. 92-3915.

United States Court of Appeals, Fifth Circuit.

March 7, 1994.

Gerard T. Gelpi, G. Beauregard Gelpi, James D. Bercaw, Gelpi, Sullivan, Carroll & Gibbens, New Orleans, LA, for appellant.

Charles Rowand Talley, James Robert Silverstein, Lemle & Kelleher, New Orleans, LA, for United Gas Pipeline.

Estelle Elouise Mahoney, Louis J. St. Martin, Houma, LA, for Gremillion.

Glenn Gill Goodier, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for Nat. Marine, et al.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before DUHE, EMILIO M. GARZA, Circuit Judges and STAGG, ¹ District Judge.

DUHE, Circuit Judge:

Bowmech Marine Company, Inc. ("Bowmech") appeals the district court's denial of its petition for exoneration from or limitation of liability for the damages sustained when barges in tow by its vessel came in contact

with a pipeline owned by United Gas Pipe Line Company ("United Gas"). Bowmech also seeks review of the damages awarded to United Gas.

BACKGROUND

On January 18, 1991, the KAREN ELIZABETH, a pushboat owned and operated by Bowmech, was assigned to deliver four empty barges from the Mississippi River near New Orleans to Weeks Island Salt Mine, via the Gulf Intracoastal Waterway ("GIW"). Two of the barges were owned by American Commercial Barge Line Company ("ACBL"), and the other two were owned by National Marine, Inc. ("National"). The KAREN ELIZABETH was manned by a crew of four: Irvin Gremillion, captain; Vernon Brunet, pilot; and Ricky Kramer and Eugene Cheramie, deckhands.

Due to weather forecast for heavy winds, Gremillion determined that the safest way to proceed was to push the empty barges in a two-by-two configuration, which reduces the effects of the wind on the tow and minimizes the risk of becoming windbound. ² A Coast Guard permit was obtained to allow the vessel to sail with the special configuration.

The voyage began about 2:00 a.m. on January 18, 1991. At about 2:00 p.m., with Brunet at the wheel, the KAREN ELIZABETH approached a bend in the GIW near Mile 51. As Brunet maneuvered the bend, the tow became windbound. The wind pushed the tug and barges to the south bank of the GIW. The barges landed on rocks that had been placed on the south bank to protect a United Gas pipeline, which ran underneath the GIW. Shortly after the barges came into contact with the rocks, the pipeline exploded. The KAREN ELIZABETH and the four barges were damaged.

Bowmech filed a petition for exoneration from or limitation of liability arising out of the allision. ³ United Gas, National, ACBL, Gremillion, and Brunet filed answers and claims in the limitation action. The liability and damage issues were tried separately. At the conclusion of the bench trial on the liability issues, the district court determined that Bowmech was solely at fault for the casualty and had knowledge of the negligence causing the casualty. Accordingly, the court denied Bowmech's petition for exoneration from or limitation of liability. After a bench trial on damages, the district court ordered Bowmech to pay damages to United Gas, ACBL, and National.

Bowmech appeals the district court's orders denying its petition for exoneration from or limitation of liability, denying its motion in limine to exclude evidence regarding its crew's drug use, and awarding damages to United Gas. United Gas, National, and ACBL filed cross-appeals to be addressed in the event that we disturb the district court's decision.

DISCUSSION

I. Findings of Fault

A. Standard of Review

In maritime actions, questions of fault are "factual issues which cannot be disturbed on appeal unless the resolutions are clearly erroneous." Valley Towing Serv., Inc. v. S.S. American Wheat, Freighters, Inc., 618 F.2d 341, 346 (5th Cir.1980); see also Fed.R.Civ.P. 52(a). "If the district court's findings are plausible in light of the record viewed in its entirety, we may not reverse even if we would have weighed the evidence differently and arrived at a contrary conclusion." Frota Oceanica Brasileira, S.A. v. M/V Alice St. Philip, 790 F.2d 412, 414 (5th

Cir.1986) (citing Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985)). Having viewed the record, we cannot conclude that the district court's factual findings were clearly erroneous.

B. The Fault of Bowmech

When a moving vessel collides with a stationary object, the moving vessel is presumed to be at fault. The Oregon, 158 U.S. 186, 192-93, 15 S.Ct. 804, 806-08, 39 L.Ed. 943 (1895); Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1471 (5th Cir.1991); American Petrofina Pipeline Co. v. M/V Shoko Maru, 837 F.2d 1324, 1326 (5th Cir.1988). This presumption operates to shift the burden of producing evidence and the burden of persuasion onto the moving vessel. American Petrofina Pipeline, 837 F.2d at 1326. The moving vessel may rebut the presumption by showing, with a preponderance of the evidence, that the allision was the fault of the stationary object, that the moving ship acted with reasonable care, or that the allision was an unavoidable accident. Id.

In this case, the district court applied the presumption and found that it was not rebutted. The district court, going further than required, also found that Bowmech's negligence caused the accident. Either finding alone would have been sufficient. And despite Bowmech's objections, we are persuaded that both findings are adequately supported by the record.

Bowmech's first objection is that the district court erred in applying the presumption of fault against it. Citing dicta in a Fifth Circuit case, Bowmech urges that where the stationary object is an obstruction to navigation, the presumption of negligence created when a moving vessel strikes a stationary object disappears once evidence of the obstruction is presented. See S.C. Loveland, Inc. v. East West Towing, Inc., 608 F.2d 160, 165 n. 3 (5th Cir.1979) (citing Pennsylvania R.R. v. S.S. Marie Leonhardt, 320 F.2d 262, 264 (3rd Cir.1963)), cert. denied, 446 U.S. 918, 100 S.Ct. 1852, 64 L.Ed.2d 272 (1980). Bowmech then argues that the presumption should not have been applied in this case because the pipeline was an obstruction to navigation. We rejected this disappearing presumption argument in Bunge Corp. v. M/V Furness Bridge, 558 F.2d 790, 795 n. 3 (5th Cir.1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1488, 55 L.Ed.2d 518 (1978), stating that the presumption of fault affects the burden of proof, not merely the burden of going forward with the evidence. Furthermore, we have also stated that "when a mariner knows of obstructions to navigation, he must avoid them." Pennzoil, 943 F.2d at 1470. As Brunet, the mariner in this case, was aware of the pipeline's presence, it was appropriate to erect the presumption of fault against Bowmech.

Next, Bowmech argues that the district court erred in finding that the allision was its fault. Given that the KAREN ELIZABETH commenced her voyage with knowledge of the forecast for heavy winds, and that she continued her voyage despite knowledge of the forecast for heavier winds and the presence of a gas pipeline, the district court was not clearly erroneous in finding that the KAREN ELIZABETH was negligent. ⁴

C. Limitation of Liability

Bowmech contends that it should have been entitled to limit its liability under the maritime Limitation of Liability Act which allows the shipowner to limit its liability for any loss or injury involving the vessel to the value of the vessel and its freight. 46 U.S.C.App. Sec. 183(a). Under the Act, a party is entitled to limitation only if it is "without privity or knowledge" of the cause of the loss. Id. When the shipowner is a corporation, knowledge is judged by what the corporation's managing agents knew or should have known with respect to conditions or actions likely to cause the loss. Pennzoil, 943 F.2d at 1473-74. The burden is on the shipowner to prove lack of knowledge or privity of the negligent activity or unseaworthy condition that caused the accident. Id. at 1474.

Bowmech contends that navigational decisions, including decisions regarding weather conditions en route, are delegated to the wheelman of the KAREN ELIZABETH and are not within the privity or knowledge of Bowmech. We disagree. The record indicates that on the day of the accident Bowmech's managing officer, Chris Bowler, knew that the vessel was being operated in high winds. He also knew that the vessel routinely operated in high winds and occasionally became windbound. Such knowledge vitiates the right to limit liability. See id., at 1474. ⁵

D. The Fault of United Gas

Bowmech contends that the trial court erred in finding that United Gas was not at fault. First, it argues that the court should have applied the rule of The Pennsylvania ⁶ against United Gas. Under the rule of The Pennsylvania, the owner of a pipeline that is in violation of a statutory rule intended to prevent allisions is presumed to be at fault and bears the burden of proving that the violation did not cause the allision. See Pennzoil, 943 F.2d at 1471-72; see also Sheridan Transp. Co. v. United States, 897 F.2d 795, 799 (5th Cir.1990). Bowmech alleges that the rule of The Pennsylvania applies because United Gas violated various permits and regulations by failing to maintain sufficient cover over the pipeline and failing to perform adequate inspections. Because both sides presented substantial evidence regarding the amount of cover on the pipeline, the district court's finding...