Torch, Inc. v. Alesich
| Decision Date | 11 June 1998 |
| Docket Number | No. 96-31256,96-31256 |
| Citation | 148 F.3d 424 |
| Parties | TORCH, INCORPORATED, Owner of the L/B TORCH I and Operator of the M/V CHANTEL LYNN for Exoneration from or Limitation of Liability, Plaintiff, Thomas Allemand; Patricia Alesich; Texaco Exploration and Production, Inc; Texaco, Inc; and Texaco Pipeline Company Incorporated; Ernest Allemand, Claimants-Appellants, v. Raymond ALESICH, Individually and as Administrator of the Estates of the Minors, Raymond Alesich, Ryan Alesich, and Catherine Alesich; Alesich Company, Inc., Claimants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Perrin C. Butler, Metairie, LA, Michael A. Fenasci, New Orleans, LA, for Alesich and Alesich Co., Inc.
Robert B. Acomb, Jr., James E. Wright, III, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, for Claimants-Appellants.
Daniel L. Daboval, Eric J. Simonson, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, LA, for Texaco Exploration and Production, Inc.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before POLITZ, Chief Judge, and REYNALDO G. GARZA and DENNIS, Circuit Judges.
Claimants appeal the trial court's decision holding that Alesich & Company, as owner of the CHANTEL LYNN, was entitled to a limitations decree and thus was absolved from liability exceeding the value of the vessel. For the reasons assigned, we affirm.
These consolidated cases arise out of a tragic accident which occurred on July 6 On the day of the accident, Raymond Alesich, a Torch employee, ordered the lugger to push the barge forward. Thereafter, he gave a hand signal indicating to other employees to drop the barge's spuds to stop the barge. Unfortunately, the spuds ruptured a gas line and a propane torch on the barge ignited the escaping gas. In the resulting fire one crew member drowned and others were injured.
1994. Torch, Inc. was hired by Texaco Exploration and Production, Inc. to lay pipelines in canals in Plaquemines Parish. The job was performed by using the lugger CHANTEL LYNN to position and move the pipe-laying barge, TORCH I, forward in the canal. The lugger would push the barge forward at intervals the length of a 30 foot section of pipe. In order to stop the barge after it was pushed forward, Torch employees would drop the barge's 9,000 pound spuds into the canal. Once the barge was in place, Torch employees built the pipeline by screwing each pipe joint into a string of pipe. The joints were then sealed by using a propane torch to heat a plastic sleeve over same.
After the accident Torch, Inc. and Alesich & Company sought exoneration from or limitation of liability as owners of vessels involved in the accident. The district court denied Torch's right to limitation because it found that the negligence of Torch was within the privity and knowledge of its management. Alesich's request for limitation was granted because the court found a bareboat or demise charter agreement between Torch and Alesich and determined that the CHANTEL LYNN was seaworthy at the inception of the charter and at all relevant times. A timely appeal followed.
The factual findings of the trial court in a bench trial may not be set aside unless clearly erroneous and due regard must be given to its credibility evaluations. 1 Determining whether a bareboat charter exists is a mixed question of law and fact and is subject to broad appellate review. 2
The CHANTEL LYNN, the only asset of Alesich & Company, was leased to Torch at the time of the accident. Torch and Alesich agreed, inter alia, that Torch would: (1) pay $165 to Alesich for every day the vessel was used; 3 (2) provide a crew and the necessary supplies to work the vessel; (3) maintain insurance on the vessel; and (4) absorb the cost of all repairs and maintenance to the vessel. Although this agreement was reduced to writing it apparently was never signed by Torch. Nevertheless, the actions of the parties were consistent with this agreement. Further, a charter party need not be in writing. 4
A bareboat charter requires that the owner relinquish complete and exclusive possession, command, and navigation of the vessel to the charterer. 5 With the exclusive control of the vessel, the charterer assumes many of the rights and obligations of the owner. The inquiry whether a bareboat charter exists in this case is complicated by the fact that in addition to being a Torch employee, Raymond Alesich is the president and principal stockholder of Alesich & Company, the owner of the CHANTEL LYNN. As part of his duties as a Torch employee Alesich occasionally served as captain of the CHANTEL LYNN. While having its president serve as captain seems to call into question whether Alesich & Company surrendered navigation and control of the vessel, it is clear from the record that while serving as captain, Raymond Alesich was working as a Torch employee and not as an individual or an employee of Alesich & Company.
Appellants contend that because Torch paid for the vessel only on the days that it was actually used negates the existence of a bareboat charter. The essence of a bareboat charter is the complete surrender of possession and control by the vessel owner to the charterer. When the factual situation is not otherwise clear, the assumption of possession and control by the charterer may be evidenced by the charterer paying for use of the vessel "without regard to whether the charterer uses the vessel gainfully or not." 6 The existence of...
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