Transorient Navigators Co., S.A. v. M/S Southwind
| Citation | 788 F.2d 288 |
| Decision Date | 28 April 1986 |
| Docket Number | No. 85-3282,85-3282 |
| Parties | TRANSORIENT NAVIGATORS COMPANY, S.A., Plaintiff-Appellee, Cross-Appellant, v. M/S SOUTHWIND, her engines, tackle, apparel, etc., In Rem and Westwind Africa Line, Ltd., Defendants-Third Party Plaintiffs-Appellants, Cross-Appellees, v. M/V ASTROS, In Rem and Transorient Navigators Co., S.A. In Personam, et al., Third-Party Defendant-Appellees, Cross-Appellants. FLOUR MILLS OF NIGERIA, LTD., Plaintiff-Appellee, v. M/V ASTROS, In Rem and Transorient Navigators Co., S.A. In Personam, et al., Defendants-Appellees, Cross-Appellants, v. WESTWIND AFRICA LINE, LTD., and the M/S SOUTHWIND, her engines, tackle, apparel, Etc., In Rem, Appellant-Cross Appellee. WESTWIND AFRICA LINE, LTD, Plaintiff-Appellant, v. The UNITED STATES of America and the U.S. Army Corp of Engineers, New Orleans District, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
J. Dwight LeBlanc, Jr., Kenneth J. Servay, New Orleans, for Westwind Africa Line and The M/S Southwind.
William E. Wright, New Orleans, La., for Transorient Navigators Co. & M/V Astros.
Glenn G. Goodier, John J. Broders, New Orleans, La., for Flour Mills Nigeria, Ltd.
Allen vanEmmerik, James A. Lewis, Admiralty & Shipping Section, Dept. of Justice, Washington, D.C., for U.S.A. & U.S. Army Corp of Engineers.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before THORNBERRY, POLITZ, and RANDALL, Circuit Judges.
This admiralty case arises from the collision of two ships near a U.S. Army Corps of Engineers dredging site in the Mississippi River-Gulf Outlet (MR-GO). Westwind Africa Line appeals the district court's allocation of fault between Westwind's ship, the SOUTHWIND, and the United States. Westwind also contends that the district court erred in awarding the United States contribution against the SOUTHWIND and in computing the interest owed by Westwind to Transorient Navigators Co., owner of the ASTROS, the second ship involved in the collision. Transorient cross-appeals, arguing that the district court erred in refusing to permit it to recover from Westwind the interest on its damages that by statute it cannot recover from the United States. We affirm in part, reverse in part, and remand.
The M/S SOUTHWIND and the M/V ASTROS collided in the MR-GO on June 17, 1977 when the SOUTHWIND sheered across the center line. The sheer was the result of hydrodynamic forces caused by the underwater configuration of a borrow pit left by the U.S. Army Corps of Engineers. The SOUTHWIND was carrying a cargo owned by Flour Mills of Nigeria, Ltd. Both ships and the cargo suffered damage in the collision. 1 Transorient sued Westwind in personam and the SOUTHWIND in rem. Transorient later sued the United States. Westwind sued Transorient in personam and the ASTROS in rem. Westwind also sued the United States, alleging that the Corps of Engineers was negligent in digging the borrow pit and in failing to warn pilots of the pit's configuration. Flour Mills sued Transorient in personam, the ASTROS in rem, and the United States for damage to its cargo. The district court consolidated these actions. At trial the district court found that the entire fault for the collision rested with the SOUTHWIND's compulsory pilot, Mark Delesdernier. Transorient Navigators Co. S/A v. M/S Southwind, 524 F.Supp. 373, 380-81 (E.D.La.1981).
On appeal, this Court found that the district court had clearly erred in absolving the United States of all fault in the collision. The Court concluded that the Army Corps of Engineers' failure to publish information concerning the configuration of the borrow pit constituted a failure to use due care and further held that the Corps' breach of duty was a proximate cause of the collision. Transorient Navigators Co., S.A. v. M/S Southwind, 714 F.2d 1358, 1367, 1370 (5th Cir.1983). The Court also held that the district court had clearly erred in finding that Pilot Delesdernier knew of the borrow pit's underwater contours; rather, we concluded that the pilot should have known of the pit's characteristics and that he breached his duty to inform himself of them. Id. at 1369. We remanded the case to the district court for allocation of liability on the basis of comparative fault under the rule of United States v. Reliable Transfer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 (1975).
On remand the district court allocated 80% of the fault for the collision to Pilot Delesdernier and 20% to the United States. Transorient Navigators Co. S/A v. M/S Southwind, 609 F.Supp. 634, 636 (E.D.La.1985). The court awarded Transorient $516,576.98 against the SOUTHWIND and $129,144.25 against the United States. The court assessed interest against the SOUTHWIND in accordance with La.Civ.Code Ann. art. 2924 (West Supp.1985), compounded daily. The court assessed interest against the United States at the 4% simple rate provided by 46 U.S.C. Secs. 743, 745 (1982). The court rejected Transorient's argument that it was entitled to recover from the SOUTHWIND the portion of interest for which the United States was not liable by virtue of Secs. 743 and 745. 609 F.Supp. at 637.
The district court's finding of liability against the United States revived the claims of Flour Mills and Westwind. The court concluded that both Flour Mills and Westwind could recover their full damages against the United States. 2 The court held further that the United States could recover from the SOUTHWIND 80% of the damages paid by the government to Flour Mills and Westwind. Id. at 638-39.
Westwind appeals the district court's judgment. Transorient cross-appeals.
A. Appeal by Westwind
Westwind contends that the district court erred in apportioning fault between Pilot Delesdernier and the United States. It also argues that the court erred in awarding the United States contribution against the SOUTHWIND and in assessing interest against the SOUTHWIND for the damages it owes Transorient. We consider these points in turn.
1. Allocation of Fault --The district court apportioned 80% of the fault for the collision to Pilot Delesdernier and 20% to the Army Corps of Engineers. We review the court's apportionment of fault under the "clearly erroneous" standard. See Canal Barge Co. v. China Ocean Shipping Co., 770 F.2d 1357, 1362 (5th Cir.1985); Fed.R.Civ.P. 52(a). We have carefully reviewed the record on this appeal, as we did on the first appeal in this case. Although we might have apportioned fault differently in the first instance, the district court's 80%-20% division is well supported by the record. Nothing in our earlier opinion is to the contrary.
2. Contribution Against the SOUTHWIND.--The district court permitted the United States to recover from the SOUTHWIND 80% of the damages that the government was ordered to pay Flour Mills and Westwind. Westwind contends that the court erred in awarding contribution.
The district court properly held that because Delesdernier was a compulsory pilot, his negligence could be imputed to the SOUTHWIND, but not to Westwind. See Homer Ramsdell Transportation Co. v. La Compagnie Generale Transatlantique, 182 U.S. 406, 416-17, 21 S.Ct. 831, 835-836, 45 L.Ed. 1155 (1901); The Steamship China v. Walsh, 74 U.S. (7 Wall.) 53, 67-69, 19 L.Ed. 67 (1869); 2 S. Bellman, A. Jenner, B. Chase & J. Loo, Benedict on Admiralty Sec. 9 (7th ed. 1985). Thus, Westwind was without fault in the collision. If the United States is to receive contribution, it must do so against the SOUTHWIND in rem.
Westwind argues that the United States cannot recover contribution against the SOUTHWIND for two reasons: (1) an action against a ship in rem will lie only if the plaintiff has a maritime lien against the ship, and the United States has no lien against the SOUTHWIND; (2) even if the United States had a maritime lien against the SOUTHWIND, it never arrested the ship, a necessary prerequisite for an action in rem. The United States responds that neither a maritime lien nor seizure of the ship is necessary for contribution in rem when the issue of the ship's liability has been fully litigated. Because we resolve the second point against the United States, we do not address the first.
Rule C of the Supplemental Rules for Certain Admiralty and Maritime Claims prescribes the procedure for obtaining jurisdiction in rem in admiralty cases. Rule C(2) requires the filing of a verified complaint stating that the property which is the subject of the action "is within the district or will be during the pendency of the action." Rule C(3) provides for issuance of a warrant for the arrest of the vessel or other property that constitutes the res of the action. The United States did not follow the procedures specified in Rule C. It filed no cross-claim for contribution against the SOUTHWIND, and it did not procure a warrant for the vessel's arrest.
The United States contends that the district court had jurisdiction over the SOUTHWIND in rem notwithstanding the government's failure to observe Rule C's procedures because the SOUTHWIND had already been brought before the court to respond to Transorient's action in rem, and Westwind had posted a bond for its release. But this argument overlooks the distinction between a special bond and a general bond. Rule E(5)(a) permits in rem process to be stayed or the property released "on the giving of security, to be approved by the court or clerk, or by stipulation of the parties, conditioned to answer the judgment of the court or of any appellate court." This form of security, the special bond, permits the shipowner to restrict his appearance to the action for which the bond has been posted. See Overstreet v. Water Vessel "Norkong," 706 F.2d 641, 644 (5th Cir.1983). By contrast, a shipowner may post a general bond, "conditioned to answer the judgment of such court in all or any actions that may be brought thereafter in such court...
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