Burma Navigation Corp. v. Reliant Seahorse MV
| Decision Date | 29 October 1996 |
| Docket Number | No. 95-30803,95-30803 |
| Citation | 99 F.3d 652 |
| Parties | , 36 Fed.R.Serv.3d 333 BURMA NAVIGATION CORP., Plaintiff-Appellee Cross-Appellant, v. RELIANT SEAHORSE MV, in Rem; Zapata Gulf Marine Operators Inc.; Tidewater Marine Inc.; Tidewater Marine Service Inc., in Personam, Defendants-Appellants Cross-Appellees. ZAPATA GULF MARINE OPERATORS, et al., Plaintiffs-Appellants Cross-Appellees, v. ALASKA M/V, in Rem, Defendants-Appellees Cross-Appellants. PENNZOIL EXPLORATION AND PRODUCTION COMPANY, Plaintiff-Appellant Cross-Appellee, v. BURMA NAVIGATION CORP., et al., Defendants-Appellees Cross-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
J. Dwight LeBlanc, Jr., Thomas D. Forbes, Kenneth J. Servay, Daphne P. McNutt, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, LA, for Burma Navigation Corp., plaintiff-appellee-cross-appellant, and ALASKA M/V.
James K. Carroll, Charles A. Cerise, Jr., C. Gordon Starling, Jr., Gelpi, Sullivan, Carroll & Gibbens, New Orleans, LA, for defendants-appellants-cross-appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges.
In this case, two vessels were unable to successfully navigate the Mississippi River and avoid colliding with one another in the process. The district court found the M/V ALASKA and the M/V RELIANT SEAHORSE to be equally at fault in causing the collision and assessed liability 50% against each ship. After a complete review of the record, we find that sufficient evidence exists to support the district court's findings and we AFFIRM the decision of the district court. The judgment of the district court is, however, modified to reflect the parties' in rem and in personam claims.
On March 6, 1994, the M/V ALASKA and the M/V RELIANT SEAHORSE collided while attempting to navigate the Southwest Pass of the Mississippi River in heavy fog. The owner of the M/V ALASKA, Burma Navigation Corporation, filed suit against the M/V RELIANT SEAHORSE, in rem, and Zapata Gulf Marine Operators, Inc., Tidewater Marine, Inc., and Tidewater Marine Service, Inc., in personam. Zapata Gulf Marine and Tidewater Marine sued the M/V ALASKA, in rem, and Burma Navigation, in personam, for damages arising out of the same collision. Pennzoil Exploration & Production Company also brought suit against Burma Navigation for damage to cargo carried by the M/V RELIANT SEAHORSE. Burma Navigation filed third-party claims and cross-claims seeking defense, contribution, and indemnity from the Pennzoil claims. The cases were consolidated and the parties agreed to a bench trial. The district court then bifurcated the trial on the issues of liability and damages.
The M/V RELIANT SEAHORSE, a 176-foot long offshore supply vessel, owned by Zapata Gulf Marine, Inc. and operated by Tidewater Marine, Inc., was outbound from the Southwest Pass of the Mississippi River headed toward the entrance/exit channel to the Gulf of Mexico at clutch speed, the slowest available maneuvering speed. The M/V ALASKA, a 600-foot ocean-going cargo vessel, was inbound traveling full ahead. The two vessels agreed on a port-to-port passing. The two ships collided at 8:36 a.m. The ALASKA struck the RELIANT SEAHORSE about 22 feet aft of her pilothouse near the starboard exhaust stack, impaling the RELIANT SEAHORSE on the ALASKA's bow. The parties disputed almost all other facts relevant to the collision, such as the exact speed of the ALASKA, course changes of each vessel, the communications between each vessel, and the location of the vessels before and at the time of the collision.
After hearing the testimony and reviewing the evidence presented, the district court found both vessels to be equally at fault and assessed liability 50% against the ALASKA and 50% against RELIANT SEAHORSE. All parties appealed.
The district court made the following findings and conclusions:
(1) This was clearly a heavy fog situation wherein visibility was restricted and I am satisfied after listening to further testimony that the captain of the motor vessel RELIANT became disoriented in that particular fog situation;
(2) the motor vessel ALASKA was proceeding at an excessive rate of speed, given the circumstances and weather conditions then existing;
(3) the motor vessel ALASKA's course recorder does not have a four and a half degree error, no course change from full ahead was ever recorded on this course recorder. To believe Pilot Durabb when he indicated that he ordered 350 when coming on board, whether there was or was not a four and a half degree error, it would have to have been recorded at the time and that does not appear on that course recorder.
As to that aspect, the Court is convinced that the vessel, up until 8:32, was on a course of 340 or 345 which would have put that vessel in a different position then [sic] is testified to by Durabb. Further, Durabb did not maintain sufficient radar contact or radar observation during the period of time;
(4) the Court finds that Webb is not credible with respect to his actions and entry of his Loran points. I am unconvinced that Captain Webb made accurate or correct entries nor am I satisfied with respect to his version of the events as related by him. I am satisfied that Webb clearly became disorientated in the fog and make that specific factual finding;
(5) Web's [sic] activity in approaching the number one sea buoy clearly put him in a situation where he had to take evasive maneuvers to avoid the number one buoy and after rounding the number one buoy, then chose the course of conduct which would put him in a situation perpendicular to the then appearing motor vessel ALASKA;
(6) [t]he Court clearly finds that Futcher is credible with respect to reporting the ship being on the port bow the entire time. The Court believes that for Mr. Futcher to have testified contrary would have been for him to disregard his own safety and this Court is not convinced that Futcher would have manufactured and/or fabricated his testimony to his detriment.
(7) This accident did occur or likely occurred on the western side of the channel. I reach this conclusion based upon no finding of a four and a half degree error in this particular course recorder.
(8) [T]he Court finds that the cases cited by the defendant, specifically one case of Judge Rubin, Indian Towing v. The Tug Westerly [Wesley] W, 264 F.Supp. 892 [E.D.La.1967], and the other cases cited therein are factually distinguishable. The Westerly [Wesley ] W saw the approaching vessel and even grounded her tow into the trees. Therefore, that tug absolutely took every possible maneuver available to avoid the pending accident. In this case, however, Captain Webb, upon rounding the number one sea buoy, instead of either stopping, slowing, or maintaining additional contact, chose to go to a port maneuver which put his vessel across the bow of the motor vessel ALASKA.
In this case, the Court feels that Webb made no sight of the ALASKA and if his version is correct, never got any reports from Futcher. However, the Court disregards that testimony and believes that Futcher was giving reports, although Captain Webb apparently did not receive or acknowledge same.
The same can be said with respect to Pilot Durabb, although Pilot Durabb may believe that he ordered a course change upon entry on to the vessel, I am convinced that he took no appropriate measures to ensure if the order was given that it in fact was executed.
Having made all of these findings, the Court must therefore decide if one vessel is solely or exclusively at fault and if not what degrees of fault are attributable to each vessel. After listening to the entire testimony and finding the actions of both vessels equally caused and contributed to this accident, when added one on top of the other, the Court finds that both vessels in this collision were equally liable, at fault, and therefore assess liability of these vessels specifically at fifty percent.
Appellants RELIANT SEAHORSE, Zapata Gulf Marine, and Tidewater Marine (collectively "Tidewater") argue that the ALASKA (1) failed to proceed along the course of the channel as near to the outer limit of the channel on her starboard side as is safe and practicable; (2) improperly traveled at full speed in poor visibility; (3) failed to properly check the radar; (4) proceeded through the channel at an excessive speed; and (5) failed to have her lookout immediately report the sighting of the RELIANT SEAHORSE. According to Tidewater, these acts violated the Navigation Safety Regulations, 33 C.F.R. § 164, and the Inland Navigational Rules, 33 U.S.C. §§ 2001-2038, in particular, Rules 9(a)(i) and 9(a)(ii)--the Narrow Channel Rule. 1
Tidewater maintains that the district court failed to make specific findings as required by FED.R.CIV.P. 52(a) as to these violations and, as a result, improperly apportioned fault in this case. Interfirst Bank of Abilene, N.A. v. Lull Mfg., 778 F.2d 228, 234 (5th Cir.1985). Tidewater also contends Marine Transport Lines, Inc. v. M/V TAKO INVADER, 37 F.3d 1138, 1143 (5th Cir.1994), requires the district court to decide whether the Narrow Channel Rules applied and whether these rules affected the apportionment of fault under the facts presented. The absence of sufficient findings on these issues undermined the district court's application of the Pennsylvania Rule. 2
Appellees ALASKA and Burma Navigation (collectively "ALASKA") argue that Tidewater did not object to the district court's oral findings and conclusions nor did they file post-judgment motions asking the court to make more specific findings. As such, ALASKA contends that Tidewater raises this Rule 52(a) specificity argument for the first time on appeal and, therefore, the argument is not properly before this Court. Miller v. Bittner, 985 F.2d 935, 940-41 (8th Cir.1993) (...
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