Gaines Towing & Transp. v. Atlantia Tanker

• Decision Date: 19 October 1999
• Docket Number: No. 98-20283,98-20283
• Citation: 191 F.3d 633
• Parties: (5th Cir. 1999) GAINES TOWING AND TRANSPORTATION INCORPORATED, Plaintiff-Appellee-Cross-Appellant, v. ATLANTIA TANKER CORPORATION; ET AL, Defendants, ATLANTIA TANKER CORPORATION; NORTH AMERICAN SHIP AGENCIES; GENERAL SHIP SERVICE INCORPORATED, Defendants-Appellants-Cross-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 633

191 F.3d 633 (5th Cir. 1999)

GAINES TOWING AND TRANSPORTATION INCORPORATED, Plaintiff-Appellee-Cross-Appellant, v. ATLANTIA TANKER CORPORATION; ET AL, Defendants, ATLANTIA TANKER CORPORATION; NORTH AMERICAN SHIP AGENCIES; GENERAL SHIP SERVICE INCORPORATED, Defendants-Appellants-Cross-Appellees.

No. 98-20283

United States Court of Appeals For the Fifth Circuit

October 19, 1999

Appeals from the United States District Court For the Southern District of Texas

Before REAVLEY, HIGGINBOTHAM, and DENNIS, Circuit Judges.

PER CURIAM:

Atlantia Tanker Corporation, North American Ship Agencies, and General Ship Services, Inc., appeal from the district court's determination that the M/T ATLANTIA, a tanker, was solely at fault for damages sustained by the M/V PATRICIA, a tug owned by Gaines Towing and Transportation, Inc. (Gaines Towing). The M/V PATRICIA moored at a dock on the Houston Ship Channel to unload a shipment of sand. After securing the barge and tug, the captain contacted the Coast Guard to obtain a slow bell broadcast, which is a request that passing vessels significantly reduce their speed. The M/T ATLANTIA reduced its speed to 6.3 knots in response to the slow bell. Nonetheless, when the tanker passed the M/V PATRICIA it created a wall of water three to four feet high which caused the tug to surge back and forth. The M/V PATRICIA struck the rear retaining wall of the berth and sustained extensive damages as a result of the surge incident. Gaines Towing filed suit against the M/T ATLANTIA, in rem, and North American Ship Agencies and General Ship Services, in personam, to recover the cost of repairing the tug and lost profits.

The district court found that the M/V PATRICIA was properly moored at the time of the surge incident and that the M/T ATLANTIA proceeded through the channel at the minimum speed necessary to maintain control over its steerage. The district court then concluded that the M/T ATLANTIA should have taken additional precautions given that it knew the configuration of the berth, had been forewarned about other traffic and chose to proceed without the benefit of tug boats. After concluding that the M/V PATRICIA prevailed on the liability claim, the district court awarded $198,868 for damages and $15,000 for lost profits.

Both parties agree that the district court did not have in rem jurisdiction over the M/T ATLANTIA. Therefore, we reverse and set aside the in rem judgment against the M/T ATLANTIA.

After reviewing the record and considering the parties' written and oral arguments, we affirm the district court's rulings on the issue of liability for essentially the same reasons stated by the district court in its memorandum opinion. See Gaines Towing & Transportation, Inc. v. Atlantia Tanker Corp., No. 96-2339 (S.D. Tex. Feb. 2, 1998). However, the district court's award of damages and lost profits appears to have been based on errors of law and possibly on clearly erroneous findings of fact as well.

The proper measure of damages in a tort action "'is to place the injured person as nearly as possible in the condition he would have occupied if the wrong had not occurred.'" Pizani v. M/V Cotton Blossom, 669 F.2d 1084, 1088 (5th Cir. 1982) (quoting Freeport Sulphur Co. v. S/S Hermosa, 526 F.2d 300, 304 (5th Cir.1976)). As corollaries to this general rule, a defendant cannot be held liable for damages that he has not been shown to have caused, or for the cost of repairs that enhance the value of the damaged property compared with its pretort condition. Id.

When a vessel is damaged in a collision or other marine casualty, the amount of recovery depends on whether it is deemed a total (or constructive total) loss or whether its partial damage justifies repair. See 2 Thomas J. Schoenbaum, Admiralty and Maritime Law 14-6, at 278 (1994). A vessel is considered a constructive total loss when the damage is repairable but the cost of repairs exceeds the fair market value of the vessel immediately before the casualty. See Ryan Walsh Stevedoring Co. v. James Marine Services, Inc., 792 F.2d 489, 491 (5th Cir. 1986). In such a case repair is...