Grand Ltd Inc v. Koch Oil

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 96-30055 Summary Calendar _____________________

GRAND LIMITED INCORPORATED,

Plaintiff-Appellee,

versus

KOCH OIL CO., ET AL.,

Defendants,

D&W UNDERWATER WELDING SERVICE INCORPORATED,

Defendant-Appellant. _________________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (94-CV-1524) _________________________________________________________________ September 12, 1996

Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.

PER CURIAM:*

D&W Underwater Welding Service, Inc. ("D&W") appeals the

district court's final judgment in favor of Grand Limited, Inc.

("Grand"). We affirm.

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. This case arises from an oral charter agreement between Grand

and D&W for the rental and use of Grand's vessel, the M/V GRAND.

The M/V GRAND is a three-legged, self-elevating vessel, commonly

called a "jack-up rig" or "lift boat," which can be used to perform

offshore pipeline services.

D&W chartered the M/V GRAND to perform a "hot tap"

installation on a pipeline located near Cameron, Louisiana. The

water depth at the job site was approximately 87 to 91 feet. D&W's

representative testified at trial that she had informed Grand of

the water depth at the job site during their contract discussions.

Grand's representative testified that he informed D&W that the M/V

GRAND could operate in water depths greater than 85 feet but that

United States Coast Guard restrictions limited the vessel's

operations in rough seas.

Bad weather delayed the M/V GRAND's voyage to the offshore job

site. While the vessel docked in Cameron to wait for a change of

weather, D&W became concerned about the M/V GRAND's ability to

operate in water depths greater than 85 feet and in rough seas.

D&W decided to secure another jack-up rig for the job, and it

unloaded all D&W personnel and equipment from the M/V GRAND.

Grand invoiced D&W for the charter; D&W refused to pay. Grand

filed suit asserting a claim under the Louisiana Oil and Gas Well

Lien Act, La. Rev. Stat. Ann. § 9:4801 (West 1991). Following a

-2- bench trial, the district court found that Grand had provided an

adequate vessel and crew according to its oral contract with D&W,

but that D&W had unilaterally terminated their contract. The

district court awarded damages to Grand.

On appeal, D&W claims that the trial evidence and testimony

does not support the district court's finding that the M/V GRAND

was capable of performing the hot tap installation. D&W further

claims that the district court clearly erred in failing to consider

liability insurance requirements that were, according to D&W,

inherent in its oral charter agreement with Grand.

As D&W correctly states in its appellate brief, we review a

trial court's findings of fact under the "clearly erroneous"

standard mandated by Fed.R.Civ.P. 52. In so doing, we must accord

due deference to the trial court's opportunity to hear witnesses

and judge their credibility. Pavlides v. Galveston Yacht Basin,

Inc., 727 F.2d 330, 337 (5th Cir. 1984). "It is not our duty or

right on appeal to sift through the evidence and determine whether

we would have drawn the same inferences as the trier of fact and

would have resolved credibility determinations in a like fashion."

Harrison v. Flota Mercante Grancolombiana, S.A., 577 F.2d 968, 976

(5th Cir. 1978). In its written opinion, the district court

emphasized that its decision was based on the reliable testimony of

Grand's representative and "the credible testimony of the

-3- experienced [c]aptain" of the M/V GRAND to the effect that the

vessel could legally operate and complete its particular hot tap

assignment in normal weather conditions. The district court

further credited the captain's testimony that he had permission,

under normal weather conditions, to work in water depths exceeding

eighty-five feet and that the M/V GRAND's crew was capable of

performing the operational tasks.1 Based on our review of the

appellate record, including pertinent parts of the trial

transcript, we hold that the district court's finding that the M/V

1 The district court asked the M/V GRAND's captain the following clarifying questions at the close of the captain's cross- examination testimony:

THE COURT: Did you ever work this vessel in depths over 85 feet?

CAPTAIN: Yes, I have.

THE COURT: What is the deepest water you've worked this vessel in, if you recall?

CAPTAIN: ... Right at 100 is the most I've been able to work.

THE COURT: So 91 feet would not be a problem if the weather is calm, if there is not a storm coming through, and the waves are flat ..., right?

CAPTAIN: If this was the dock and you had 118 or whatever feet at that dock, I could pull up there and jack that boat down and work at that dock, unless the winds and seas picked up to stop me, yes. ...

Trial Transcript at 79-80.

-4- GRAND was capable of performing its requisite duties at the

specifically requested water depth in normal weather conditions was

not clearly erroneous.

We also reject D&W's argument that the district court erred in

failing to consider liability insurance requirements inherent

(although admittedly not stated) in the oral charter agreement with

Grand. In its brief on appeal, D&W states that the terms of its

oral charter agreement with Grand were:

a. $7,000.00 mobilization fee; b. $4,700.00 per day boat charter fee; c. Fuel, lube oil and subsistence at standard rates; d. Risk of weather to Cameron dock on Grand Ltd., Inc. Once M/V Grand reached Cameron dock, risk of weather on D&W.

D&W cites to no authority for the proposition that liability

insurance compliance is an implicit contractual term of such oral

charter agreements. While D&W may now regret its failure to

negotiate an insurance coverage precondition to its contract with

Grand, we cannot find such a contractual term where none exists.

We therefore hold that the district court did not err in its

analysis of the M/V GRAND's adequacy.

Accordingly, the judgment of the district court is

A F F I R M E D.

-5-