The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 19, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-20773
Stolt Achievement, Ltd.
Plaintiff-Appellant,
versus
Dredge B.E. Lindholm,
its engines, tackle, appurtenances, etc., in rem;
Weeks Marine, Inc., in personam
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
HIGGINBOTHAM, Circuit Judge:
Treating the Petition for Rehearing En Banc as a Petition for
Panel Rehearing, the Petition for Panel Rehearing is DENIED in part
and GRANTED in part as reflected in the substitute opinion filed
today. No member of the panel nor judge in regular active service
of the court having requested that the court be polled on Rehearing
En Banc (Fed. R. App. P. and 5th Cir. R. 35), the Petition for
Rehearing En Banc is DENIED. We withdraw our previous opinion,
reported at 440 F.3d 266, and substitute the following.
Two ships passing in the Houston Ship Channel collided.
Litigation ensued. Stolt Achievement, Ltd. complains of various
errors in the district court’s resolution of its claims against the
dredge B.E. LINDHOLM and its owner, Weeks Marine, Inc. We affirm.
I
On October 21, 2002, the STOLT ACHIEVEMENT, a chemical tanker,
was traveling inbound in the Houston Ship Channel. The LINDHOLM,
a dredge boat, having recently concluded dredging operations, was
traveling outbound in the area of the Red Fish Island Shoal, a part
of Galveston Bay. The Houston Ship Channel is a busy port, and all
vessels are required to navigate under the Inland Rules.1 At the
point of the collision, the Channel is approximately 400 feet wide.
At approximately 1:40 P.M., the STOLT ACHIEVEMENT, captained
by Anthony Shoonkind and piloted by Captain Richard Fisher,
contacted the LINDHOLM, navigated by Third Mate Timothy Maginn, and
the vessels agreed to a customary port-to-port or “one whistle”
passing. The STOLT ACHIEVEMENT, proceeding at a speed of 11 knots,
was traveling in the center and later on the starboard side of the
Channel; the LINDHOLM, accelerating to 10-12 knots, was proceeding
along its far to starboard side.
1
The district court’s reference to the Inland Rules as the COLREGS was a
misstatement. As noted by Schoenbaum,
In most countries the [International Regulations for Preventing
Collisions at Sea (COLREGS)] govern ship navigation in internal
waters as well as on the high seas. The United States, however, has
adopted a second set of navigational rules, the Uniform Inland
Navigational Rules, which are in effect generally in internal
waters. The Inland Rules are applicable inside certain demarcation
lines set forth in regulations by the Coast Guard.
2 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 256 (2d ed. 1994).
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Two minutes later, Maginn lost control of the LINDHOLM,
causing the vessel to sheer off to its port, cross the Channel’s
centerline, and collide with the STOLT ACHIEVEMENT midship on its
port side. Recognizing the sheer, Captain Fisher attempted to
contact the LINDHOLM three times. Maginn did not answer the first
two calls, presumably busy attempting to avoid the sheer; upon
answering the third call, Maginn told Fisher he had lost control of
the LINDHOLM. Fisher turned hard starboard and accelerated, both
evasive maneuvers designed to minimize the damage of the now-
inevitable collision.
Following a two-day bench trial, the district court concluded
that both the STOLT ACHIEVEMENT and the LINDHOLM were responsible
for the collision. The court found: (1) the LINDHOLM was running
too close to the side of the Channel, thus making it more
susceptible to the bow wave of the STOLT ACHIEVEMENT; (2) the STOLT
ACHIEVEMENT was proceeding at an excessive speed, exacerbating the
suction caused by its bow wave, thus violating Inland Navigational
Rule 6; (3) the STOLT ACHIEVEMENT disregarded the U.S. Coast
Guard’s bulletin requiring vessels to “transit at their slowest
safe speed to minimize wake and proceed with caution” after making
passing arrangements; (4) the STOLT ACHIEVEMENT stayed too close to
(or over) the centerline of the Channel as the vessels approached
each other, thus violating rules of prudent seamanship; (5) the
LINDHOLM proceeded too fast with a large tanker approaching, thus
violating Inland Rule 6; and (6) Maginn should have informed the
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STOLT ACHIEVEMENT sooner that he was experiencing difficulty
steering, thus violating rules of prudent seamanship.
“Taking into consideration both the number and quality of
negligent acts of each party,” the district court apportioned
liability equally. Each party received 50% of the damages claimed
for reasonable repairs, and the court awarded Stolt 50% of its
loss-of-use damages. Although prevailing in large respects, Stolt
appealed. We have jurisdiction under 28 U.S.C. § 1291.
II
Stolt presents five issues on appeal. First, Stolt argues
that the district court clearly erred in concluding that the STOLT
ACHIEVEMENT was negligent in causing the collision with the
LINDHOLM. Second, Stolt argues that the district court abused its
discretion in admitting testimony from LINDHOLM’s expert witness.
Third, Stolt argues that the district court clearly erred when it
refused to find that the negligence of the LINDHOLM was a
superseding cause of the collision. Fourth, Stolt argues that the
district court clearly erred when it apportioned liability equally
between the parties. Fifth, Stolt argues that the district court
erred in holding that Stolt failed to prove entitlement to average
adjuster’s fees. We address each in turn.
A
First, Stolt argues that the district court erred in
concluding that the STOLT ACHIEVEMENT was negligent in causing the
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collision with the LINDHOLM. In an admiralty action following a
bench trial, the factual findings are binding unless clearly
erroneous.2 A finding is clearly erroneous when, although there is
evidence to support it, the reviewing court, based on all of the
evidence, is left with the definite and firm conviction that a
mistake has been made.3 If the district court’s account of the
evidence is plausible in light of the record, this Court may not
reverse, even though convinced that had it been sitting as the
trier of fact, it would have weighed the evidence differently.4
The applicable standards of care in a collision case stem from
the traditional concepts of prudent seamanship and reasonable care,
statutory and regulatory rules, and recognized customs and uses.5
Establishing liability in a collision case is eased by the
Pennsylvania rule, which provides that when a vessel is in
violation of a statutory duty, the burden is on the offending
vessel to prove that its conduct did not and could not have caused
2
In re Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005); Avondale
Indus. v. Int’l Marine Carriers, Inc., 15 F.3d 489, 492 (5th Cir. 1994); Todd
Shipyards Corp. v. Turbine Service, Inc., 674 F.2d 401, 405 (5th Cir. 1982).
3
Walker v. Braus, 995 F.2d 77, 80 (5th Cir. 1993); Consolidated Grain &
Barge Co. v. Marcona Conveyor Corp., 716 F.2d 1077, 1082 (5th Cir. 1983); United
States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).
4
Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).
5
See Folkstone Maritime, Ltd. v. CSX Corp., 64 F.3d 1037, 1046 (7th Cir.
1995); The Tokio Marine & Fire Ins. Co. v. M/T FLORA, 1999 AMC 1569, 1583 (E.D.
La. 1999); see also 2 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 255 (2d ed. 1994).
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the collision.6 Where both parties to a collision are in violation
of statutes designed to prevent collisions, the court may apportion
fault between the parties, unless either party proves that its
statutory violation was not a substantial contributing cause of the
collision.7 Even without a statutory violation, liability may be
imposed simply where there is negligence.8
Stolt advances two arguments at the district court’s
conclusion. First, Stolt contends the district court erred in
concluding that the STOLT ACHIEVEMENT breached its duty of ordinary
care; second, Stolt contends that the district court erred in
finding the STOLT ACHIEVEMENT in violation of Inland Rule 6. We
address each in turn.
1
Stolt argues that the STOLT ACHIEVEMENT did not breach
principles of ordinary care and thus was not negligent in causing
the collision with the LINDHOLM. Stolt, with support from amicus
curiae Houston Pilots, primarily challenges the district court’s
statement that “[t]he M/V STOLT ACHIEVEMENT displaces approximately
41,000 tons of water at a time, and creates a very substantial bow
6
86 U.S. (19 Wall.) 125, 136 (1873). Stolt never argues that it was not
a contributing cause of the collision. Rather, Stolt focuses on challenging the
district court’s findings and conclusions that the STOLT ACHIEVEMENT breached the
standard of care, proceeded at an excessive speed (in violation of Rule 6), and
disregarded the Notice to Mariners requiring slow transit around the LINDHOLM.
7
Marine Transport Lines, Inc. v. TAKA INVADOR, 37 F.3d 1138, 1142 (5th Cir.
1994); Union Pacific R.R. Co. v. Kirby Inland Marine, Inc., 296 F.3d 671, 674
(8th Cir. 2002).
8
Folkstone Maritime, 64 F.3d at 1046.
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wave that can push water out more than a mile in front and to the
sides of a ship.” The Houston Pilots urge that this effect is
“physically impossible” and, if true, would leave the Channel
unnavigable.
Although we too question the accuracy of the district court’s
statement, especially given the lack of scientific expert testimony
in this case, we find ample support for the district court’s
conclusion that the STOLT ACHIEVEMENT was negligent. First, the
court found that the STOLT ACHIEVEMENT “was proceeding at an
excessive speed in the Red Fish Island Shoal area at a time when a
small vessel such as a dredge was in the same location.”9 Second,
the district court found that the STOLT ACHIEVEMENT “stayed too
close to (or over) the Channel centerline too long as the vessels
approached each other for their passing.”10 Whatever hydrodynamic
9
Whether the STOLT ACHIEVEMENT’s “excessive speed,” and resultant violation
of Inland Rule 6, triggers the Pennsylvania rule is of no moment. A previous
panel of this Court, relying on authority from the Second Circuit, stated that
the Pennsylvania rule “applies only to violations of statutes that delineate a
clear legal duty, not regulations that require judgment and assessment of a
particular circumstance.” Tokio Marine & Fire Ins. Co. v. Flora MV, 235 F.3d
963, 966-67 (5th Cir. 2001); see also Complaint of Interstate Towing, 717 F.2d
752, 756 (2d Cir. 1983); In re Marine Sulphur Queen, 460 F.2d 89, 98 (2d Cir.
1972); Afran Transport Co. v. United States, 435 F.2d 213, 218-19 (2d Cir. 1970).
As it is unnecessary to decide, we leave open the question of whether Inland Rule
6, 33 U.S.C. § 2006, presents a sufficiently “clear legal duty” to trigger
application of the Pennsylvania rule, but we note that the one district court
addressing the question concluded that Rule 6 was a clear, nondiscretionary
requirement. See In re Diamond B Marine Svcs., Inc., Nos. 99-951, 99-984 & 99-
1346, 2001 WL 1164914, at *10 (E.D. La. Sept. 28, 2001) (unpublished).
10
We recognize that a variety of maritime treatises suggest staying in the
center of the channel as long as possible. See, e.g., HENRY H. HOOYER, BEHAVIOR AND
HANDLING OF SHIPS 93 (1983) (“When two ships must pass each other in a narrow
channel, they should stay close to the middle of the channel or canal as long as
possible. How close to each other they can approach before taking action depends
on the situation, and on the maneuverability of the ships.”). The district
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effect the STOLT ACHIEVEMENT had on the LINDHOLM, that effect was
increased by the STOLT ACHIEVEMENT’s location in the narrow
Channel. Third, the court found that “the substantial suction
caused by the bow wave of the M/V STOLT ACHIEVEMENT was exacerbated
by that vessel’s speed,” especially given that “the shoal created
a relatively restricted passage on the west side.” Although
perhaps tied to the court’s conclusion concerning the magnitude of
the STOLT ACHIEVEMENT’s bow wave, Stolt never disputes that the
hydrodynamic forces produced by a vessel are directly related to
its speed and the peculiarities of the Houston Ship Channel at the
Red Fish Island Shoal. Lastly, the court concluded that the U.S.
Coast Guards “Notice to Mariners,” which cautioned vessels to
travel at their “slowest safe speed” when near the Red Fish Island
Shoal, made travel at customary speeds inappropriate.11 Although
we may have reached a different conclusion, that alone is not
sufficient for us to find that the district court’s findings were
clearly erroneous.12
court’s statement does not contradict the treatises; and, sitting as an appellate
court, we do not find reason to discount its judgment that the STOLT ACHIEVEMENT
should have started moving to its starboard side sooner than it did.
11
See Theriot v. United States, 245 F.3d 388, 401-02 (5th Cir. 1998)
(finding pilot negligent for failing to consult Coast Guard’s “Notice to
Mariners” regarding danger in unfamiliar area); United States v. The Washington,
241 F.2d 819, 822 (4th Cir. 1957) (finding vessel negligent given that it was on
notice of information provided by Coast Guard).
12
See Anderson, 470 U.S. at 573 (“[The clearly erroneous standard] plainly
does not entitle a reviewing court to reverse the finding of the trier of fact
simply because it is convinced that it would have decided the case
differently.”).
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2
Next, Stolt contends that the district court erred in finding
the STOLT ACHIEVEMENT in violation of Inland Rule 6. Stolt argues
the district court used two inconsistent definitions of “safe
speed,” one of which erroneously required the STOLT ACHIEVEMENT to
consider the effect of its vessel on other vessels in the vicinity.
We do not agree that the district court used two inconsistent
definitions of “safe speed.” Without citing any authority, the
court initially defined “safe speed” as a speed “that does not have
an adverse effect on other vessels in the area.” Then, the court
quoted Rule 6 and found the STOLT ACHIEVEMENT in violation. To us,
a speed that allows a vessel to “take proper and effective action
to avoid collision and be stopped within a distance appropriate to
the prevailing circumstances,”13 as required by Inland Rule 6, is
also a speed “that does not have an adverse effect on other vessels
in the area,” as defined by the district court. Moreover, Inland
Rule 6 provides several factors for determining a safe speed, one
of which requires courts to take into account “the traffic density
including concentration of fishing vessels or any other vessels.”14
It was not error for the district court to apply a definition of
safe speed that required the STOLT ACHIEVEMENT to consider the
13
33 U.S.C. § 2006.
14
Id. § 2006(a)(ii).
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effect of its vessel on other vessels in the vicinity. Stolt’s
contentions regarding application of Rule 6 are without merit.
B
Second, Stolt argues that the district court erred when it
admitted testimony of David Scrunton, LINDHOLM’s expert witness.
Stolt contends that while Scrunton was qualified to testify as to
proper ship handling, navigation, and observations on the basis of
his general experience, he was not qualified to testify as to the
specific hydrodynamic effects of the STOLT ACHIEVEMENT on the
LINDHOLM at the time of the collision. We review the admission of
expert testimony for an abuse of discretion.15
Daubert v. Merrell Dow Pharmaceuticals, Inc. established the
baseline criteria for scientific expert testimony;16 Kumho Tire Co.
v. Carmichael extended Daubert to all forms of expert testimony;17
and these principles apply in admiralty matters.18 In addition,
Kumho Tire recognized that experts may testify on the basis of
their own “personal knowledge or experience” and refused to hold
that the Daubert factors must be addressed in every case, given the
15
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).
16
509 U.S. 579, 593-95 (1993) (instructing courts to examine whether a
particular scientific theory can be tested, whether a theory has been through
peer review, the theory’s rate of error, and whether the theory has been
generally accepted in the scientific community).
17
Kumho Tire Co., 526 U.S. at 147-49.
18
See, e.g., Wills v. Amerada Hess Corp., 379 F.3d 32, 48-50 (2d Cir.
2004); Rothfos Corp. v. M/V NUEVO LEON, 123 F.Supp.2d 362, 371-72 (S.D. Tex.
2000).
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wide variety of experts and issues that may come before the
district courts.19
Stolt contends that the district court allowed Scrunton to
testify as to specific hydrodynamic effects. The transcript does
not bear this contention out. The district court consistently
refused to allow Scruton to testify to the specific hydrodynamic
effect of the STOLT ACHIEVEMENT on the LINDHOLM at the time of the
collision. As Scrunton began to testify about the bow wave from
the STOLT ACHIEVEMENT, the following colloquy is occurred:
MR. DURHAM [counsel for Stolt Achievement]: Objection.
This is the area we contend that this witness is not
qualified to testify. The calculations can be done as to
the forces generated. He has not done this. The effect
that would be reached to the other vessels can be
calculated. He has not done this. And he, I can take
him on voir dire, but he’s not a hydro dynamic expert.
THE COURT: All right. That’s clear. Okay. You can’t
testify about anything that technical or the calculations
as counsel’s indicating.
THE WITNESS: All right.
THE COURT: You just to keep it more general ––
THE WITNESS: Okay, your Honor.
THE COURT: –– based on your experience from what you can
perceive and what you observed over your years on the
water and studying it.20
19
Kumho Tire, 526 U.S. at 149.
20
Trial Transcript, vol. 4, at 81. A subsequent passage is also
illustrative. The court stated: “I’m less interested in your conclusions as to
the reasoning as –– because there’s a question about have far you can go on this
given your . . . expertise, or your lack of technical study. But I am interested
in what you saw, okay? I’m very interested in what you saw.” Trial Transcript,
vol. 4, at 82.
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Scruton’s testimony never delved into specific hydrodynamic
effects. His conclusions were based on his experience as a Master
Mariner, as well as his examinations of the Red Fish Island Shoal
in the Houston Ship Channel. In addition, Stolt never disputed the
existence of a general hydrodynamic effect upon a vessel in water.
Finally, the district court allowed similar testimony from Captain
Karl Haupt, Stolt’s expert witness and also a Master Mariner.21 As
the district court stated in response to Stolt’s motion to alter or
amend under Rule 59, “Technical hydrodynamic expert testimony as to
the size and force of the bow wave was not necessary in this case.”
Admission of Scruton’s testimony was not an abuse of discretion.
C
Third, Stolt argues that the district court clearly erred in
refusing to find that negligence of Maginn, the LINDHOLM’s
navigator, occurring after the negligence of the STOLT ACHIEVEMENT,
was a superseding cause of the collision. Questions of causation
in admiralty are questions of fact, reviewed for clear error.22
In Exxon Co., USA v. Sofec, Inc., the Supreme Court held that
the common law negligence doctrines of proximate causation and
superseding cause apply in admiralty notwithstanding the adoption
21
Following another objection from Stolt regarding Scruton’s testimony on
the effect of the bow wave, the Court stated: “Okay. Neither side has any such
calculations. But your witness [Haupt], who is not a hydraulogist[,] was allowed
to testify to his impressions of what he thought the bow wake would or wouldn’t
do, and the stern suction, and whatever else there was. So I’m allowing this.
It goes to weight. And I do respect that.” Trial Transcript, vol. 4, at 127.
22
Wilkins v. P.M.B. Systems Engineering, Inc., 741 F.2d 795, 800 (5th Cir.
1984).
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of comparative fault.23 The superseding cause doctrine applies
where the defendant’s negligence in fact substantially contributed
to the plaintiff’s injury, but the injury was actually brought
about by a later cause of independent origin that was not
foreseeable.24 It is predicated on the notion that “there must be
a terminus somewhere, short of eternity, at which the second party
becomes responsible in lieu of the first.”25
Stolt attempts to analogize this case to Lone Star Industries,
Inc. v. Mays Towing Co., Inc.,26 but that analogy fails. There, a
barge owner brought suit against a towing company for damage to the
barge that occurred when it sunk while being unloaded. It was
undisputed that the barge sunk because of a crack in its hull
caused by the negligence of the towing company. Due to inclement
weather, however, the barge owner failed to inspect the barge prior
to unloading, which would have allowed for discovery of the crack.
A split panel of the Eighth Circuit found the barge owner negligent
23
517 U.S. 830, 836-39 (1996). The doctrine of comparative fault was
adopted in United States v. Reliable Transfer, 421 U.S. 397 (1975), which is
discussed in the section III(D), infra.
24
1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 165 (2d ed. 1994); see also
Nunley v. M/V Dauntless Colocotronis, 727 F.2d 455 (5th Cir. 1984) (en banc).
25
In re Kinsman Transit Co., 338 F.2d 708, 722 (2d Cir. 1964) (Friendly,
J.). Many courts, including this one, rely upon the factors set forth in
RESTATEMENT (2ND) OF TORTS § 442 for guidance in this inquiry. Two such factors are
relevant here: first, courts inquire into whether the intervening force “brings
about harm different in kind from that which would otherwise have resulted from
the actor’s negligence”; second, courts look to see whether the intervening force
“appear[s] . . . to be extraordinary rather than normal in view of the
circumstances existing at the time of its operation.” RESTATEMENT (2ND) OF TORTS §
442(a), (b).
26
927 F.2d 1453 (8th Cir. 1991).
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for failing to inspect the barge prior to unloading. The court
found the barge owner’s negligence brought about a harm “different
in kind” from the harm brought about by the towing company. The
barge owner’s negligence caused the barge to sink; the towing
company’s negligence only caused a crack in the hull. Next, the
court found the barge owner’s failure to inspect an affirmative act
“unrelated to any negligence” of the towing company. On this
basis, the negligence of the barge owner was a superseding cause of
the damage to the barge.
This case is distinguishable. Here, all of the negligent acts
occurred within a very small window of time. The STOLT ACHIEVEMENT
and the LINDHOLM agreed to a port-to-port passing at 1:40 P.M.; two
minutes later, the collision occurred. In Lone Star, the
negligence of the towing company started and finished before the
start of any negligence of the barge company.27 We agree with the
conclusions of the district court: first, “The commencement of the
shear [sic] . . . was not an event of independent origin from the
27
Id. at 1459-60. Exxon presents a similar scenario. There, the tanker,
the Exxon Houston, broke from a mooring system due to the alleged negligence of
the system and its manufacturer. Exxon, 517 U.S. at 832-33. Between 1728 and
1830 (nautical time), the Exxon Houston went through a series of maneuvers to
avoid further damage from the hose that previously connected the ship to the
mooring system. Id. at 833. Then, between 1830 and 2004 after the vessel was
no longer in danger from the hose, the captain of the Exxon Houston negligently
navigated the vessel into a reef, running it aground, and resulting in the ship’s
constructive total loss. Id. at 833-34. Exxon sued the owner and manufacturer
of the mooring system for damages to the ship caused by running into the reef.
Id. The Supreme Court affirmed the district court’s finding that the negligence
of the Exxon Houston’s captain was a superseding cause, thus preventing the
mooring system from being held responsible. Id. at 840-41. Unlike the instant
case, Exxon involved two wholly separate, independent negligent acts: the
breaking from the mooring system and the navigation into the reef.
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other acts by the parties”; second, “[T]he negligent acts of the
parties took place almost simultaneously, encompassing only a
period of about two minutes.”
Next, Stolt points to various actions that Maginn could have
taken in order to possibly prevent the collision: increased the
speed of his vessel (which would increase maneuverability); steered
“hard right rudder” (which would have moved the LINDHOLM back to
its right); or, at the very least, maintained his speed. On this
basis, Stolt argues that Maginn’s subsequent acts caused a type of
harm (“collision”) that was different than the harm caused by prior
negligent acts (“sheer”).
We reject Stolt’s argument. First, “A subsequent negligent
act does not excuse prior negligence except in most unusual
circumstances.”28 Second, Stolt’s characterizations of the types
of harm makes little sense. The “sheer” itself did not cause any
harm; a variety of negligent acts, by both the LINDHOLM and the
STOLT ACHIEVEMENT, caused the sheer, which ultimately led to the
collision. Lone Star, in contrast, involved two different harms:
the crack in the barge’s hull (caused by the towing company) and
the sinking of the barge (caused, at least in part, by the barge
company’s failure to inspect the barge prior to unloading).29 Here,
28
Transorient Navigators Co., S.A. v. M/S SOUTHWIND, 714 F.2d 1358, 1371
(5th Cir. 1983) (citing RESTATEMENT (2ND) OF TORTS § 442(b)).
29
Lone Star, 927 F.2d at 1455. Likewise, Exxon involved two different
damages: first, the damage caused by the break in the hose connecting the vessel
to the mooring system; second, the damage caused when the captain of the Exxon
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there is one harm: damage from the collision. Stolt’s attempt to
cast the collision in a different light is unpersuasive.
All the relevant events occurred within a very short time
frame (two minutes). At the point of collision, the Houston Ship
Channel is only 400 feet wide, and the STOLT ACHIEVEMENT is a large
tanker, with a breadth of approximately 102 feet. We refuse to
conclude that Maginn’s actions in the face of the sheer were
sufficiently “extraordinary” as to be unforeseeable to the STOLT
ACHIEVEMENT. Thus, we conclude that the district court did not
clearly err in refusing to find the negligence of Maginn to be a
superseding cause of the collision.
D
Fourth, Stolt argues that the district court clearly erred
when it apportioned responsibility for the collision equally
between the parties. We review the district court’s apportionment
of fault in a collision case for clear error.30
Apportionment of fault in a collision case sets sail with the
Supreme Court’s decision in United States v. Reliable Transfer Co.,
in which the Court jettisoned the divided damages rule in favor of
Houston ran the ship aground on a reef. Exxon, 517 U.S. at 832-34. Here, all
the negligent acts, by both STOLT ACHIEVEMENT and LINDHOLM, caused a single
event: the collision.
30
Allied Chemical Corp. v. Hess Tankship Co. of Delaware, 661 F.2d 1044,
1057 (5th Cir. 1981) (“Our review of the Court’s apportionment of damages is
governed by the ‘clearly erroneous’ standard.”); Inland Oil & Transport Co. v.
Ark-White Towing, 696 F.2d 321, 325 (5th Cir. 1983).
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an allocation of responsibility based on comparative fault.31 The
Court, in Reliable Transfer, held that equal apportionment of
responsibility was proper only if “the parties [were] equally at
fault” or if “it [was] not possible fairly to measure the
comparative degree of their fault.”32
As we have recognized, “[t]he calibration of culpability
simply is not susceptible to any real precision.”33 Apportionment
is not a mechanical exercise that depends upon counting up the
errors committed by both parties. The trial court must determine,
based upon the number and quality of faults by each party, the role
each fault had in causing the collision.34
Stolt argues that a finding of equal fault is the exception,
not the rule, and that appellate courts “often” reverse 50/50
allocations. Although perhaps true, we have never held that
Reliable Transfer “delete[d] the number ‘50' from the federal
courts’ vocabulary.”35 As Judge Brown noted in Mac Towing Inc. v.
American Commercial Lines, “[i]f the court finds the parties
31
421 U.S. 397, 411 (1975).
32
Id.
33
Gele v. Wilson, 616 F.2d 146, 148 (5th Cir. 1980).
34
See United Overseas Export Lines, Inc. v. Medluck Compania Naviera, 785
F.2d 1320, 1325-26 (5th Cir. 1986).
35
See Mac Towing Inc. v. Am. Commercial Lines, 670 F.2d 543, 547 (5th Cir.
1982) (recognizing that simply because a court “divided damages equally among the
parties does not mark a failure to follow Reliable Transfer”).
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equally at fault, so be it.”36 Here, the district court identified
a variety of negligent acts by both the STOLT ACHIEVEMENT and the
LINDHOLM,37 and it concluded, “Taking into consideration both the
number and quality of negligent acts of each party, the court finds
and concludes that the fault of each vessel contributed equally to
the accident.”
Moreover, Stolt’s reliance on Portacci v. Moran Towing &
Transportation Co. is misplaced. There, the district court
determined that two vessels’ “mutual fault” caused the collision,
and thus allocated fault equally. On appeal, we remanded the
allocation question to the district court, concluding that a
finding of “mutual fault” does not imply “equal fault.” We stated
that “mutual fault . . . describes 10%-90% just as accurately as it
does 50%-50%.” Moreover, we found no indication in the district
court’s opinion that a specific apportionment was not practicable.
Here, in contrast, the district court found that both the
STOLT ACHIEVEMENT and the LINDHOLM “contributed equally to the
accident.” It is true that the district court never stated that it
would not be practicable to allocate fault comparatively; however,
36
Id.
37
Specifically, the district court found that: (1) the LINDHOLM was running
too close to the side of the dredged area in the Channel; (2) the STOLT
ACHIEVEMENT was proceeding at an excessive speed; (3) the STOLT ACHIEVEMENT
violated rules of prudent seamanship as well as Inland Navigational Rule 6; (4)
the STOLT ACHIEVEMENT stayed too close to (or over) the Channel’s centerline; (5)
the LINDHOLM proceeded too fast in the area, thus also violating Rule 6; (6)
Third Mate Maginn was negligent in failing to notify the STOLT ACHIEVEMENT of his
steering issues.
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the Supreme Court indicated that such a finding was unnecessary
when the court finds both parties “equally at fault.” We reject
Stolt’s appeal of the district court’s findings on negligence, and
we see no reason to upset its allocation of liability.
E
Finally, Stolt argues that the district court erred in holding
that it failed to prove entitlement to average adjuster’s fees.38
Stolt contends that the parties stipulated to an award of fees
prior to trial; Weeks responds that the parties stipulated to the
amount of fees, but never to whether fees were recoverable.
The district court did not err in denying Stolt fees. The
stipulation entered by the parties provides:
2. Stolt Achievement, Ltd. also seeks recovery of the
fees and expenses of Maritime Adjusting Services in the
agreed amount of $72,925.00, which Weeks Marine, Inc.
contends is not a recoverable item. This amount is the
average adjuster’s fee and expenses[,] and whether such
are recoverable as an element of damages is a question of
law to be resolved by the Court.
As should be plainly obvious, a stipulation as to the amount of
fees is not a stipulation to liability for such damages. The
stipulation is clear: Stolt and Weeks agreed to an amount; Weeks
38
Average is an ancient maritime doctrine which provides that ship and
cargo share ratably in the overall loss resulting from efforts to extricate the
ship and cargo from a danger common to both. See Usinas Siderugicas de Minas
Geras, Sa-Usiminias v. Scinda Steam Navigation Co., 118 F.3d 328, 330 (5th Cir.
1997). To recover for average, a party must show: (1) a common peril or danger
that is imminent, (2) a voluntary sacrifice of cargo for the common benefit, and
(3) the successful avoidance of the peril. Barnard v. Adams, 51 U.S. (10 How.)
270 (1850). Typically, the average adjuster performs the complicated task of
calculating the contributing values and the assessment of general average losses.
2 BENEDICT ON ADMIRALTY § 184 (7th ed. 2003).
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contested whether that amount was recoverable.39 Stolt was the
party moving for an award of fees; Stolt had the burden of
establishing it was so entitled.40 Merely resting on this
stipulation was insufficient.
III
Accordingly, the district court’s judgment is AFFIRMED.
39
The district court found no evidence regarding (1) the general average,
(2) the hiring of an adjuster, (3) what the adjuster did, (4) whether it was
reasonable for Stolt to engage an average adjuster, (5) what cargo was damaged,
(6) whether there was contribution from cargo owners, and (7) whether the
collision at issue qualifies for general average procedures.
40
See The Potomac, 105 U.S. 630, 632 (1881). Stolt made a similar argument
to the district court in its motion to alter or amend the judgment under Rule 59,
and the district court similarly rejected Stolt’s claim. It stated: “The court
did not rule that average adjuster’s fees [were] not a recoverable item in this
type of case. The court ruled only that [Stolt] wholly failed to meet its burden
in this case.”
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