Omega Protein, Inc. v. Samson Contour Energy E & P LLC

548 F.3d 361, 2009 A.M.C. 245, 2008 U.S. App. LEXIS 23312, 2008 WL 4837629
CourtCourt of Appeals for the Fifth Circuit
DecidedNovember 10, 2008
Docket07-30725
StatusPublished
Cited by37 cases

This text of 548 F.3d 361 (Omega Protein, Inc. v. Samson Contour Energy E & P LLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Omega Protein, Inc. v. Samson Contour Energy E & P LLC, 548 F.3d 361, 2009 A.M.C. 245, 2008 U.S. App. LEXIS 23312, 2008 WL 4837629 (5th Cir. 2008).

Opinion

DeMOSS, Circuit Judge:

In the early morning hours of October 4, 2004, Plaintiff-Appellant Omega Protein, Inc’s (“Omega”) vessel struck an oil plat *365 form owned by Defendant-Appellee Samson Contour Energy E & P LLC (“Samson”). On appeal, we must consider whether the district court erred in assigning fault equally between Omega and Samson, and whether the court erred in allowing Omega to limit its liability under 46 U.S.C. § 30505. Finding no error, we affirm.

I.

Omega’s vessel F/V GULF SHORE (“GULF SHORE”) is a 396-ton steel hulled fishing vessel used to catch and process menhaden, a fish found in the Gulf of Mexico. GULF SHORE had various navigational aids, including an autopilot, a Furuno Model 1731 Mark-3 radar, and a Pinpoint Navigational Chart System. The radar was equipped with an anti-collision alarm, which emits a sound when an obstacle enters a field specified by the operator. The Pinpoint system shows computerized navigational charts on a screen and displays the vessel’s progress across the chart. Between midnight and 1 a.m. on October 4, 2004, GULF SHORE left its base of operations in Cameron, Louisiana to proceed to fishing grounds at Freshwater Bayou, Louisiana. At the helm was Captain Luther Stewart. Before that night, Stewart had served as a menhaden pilot and captain for approximately twenty accident-free years. Omega did not provide Stewart with training on how to use the radar, and had no policy requiring him to use the anti-collision alarm. Stewart had not read the radar’s manual and was unaware of the alarm’s capabilities. GULF SHORE proceeded in an easterly direction at a speed of between nine and eleven knots. The weather was good, seas were calm, and visibility was seven to eight miles. 1

After GULF SHORE had been underway for several hours, the vessel’s chief engineer entered the wheelhouse to inform Stewart that a component of the vessel’s refrigeration system had malfunctioned. Stewart scanned the horizon to see if any obstacles were in the vessel’s path. Seeing none, he turned on the wheelhouse lights to examine the part. He agreed that the part was broken, and unless it was replaced, the vessel could not fish and would have to return to port. Stewart used his cell phone to call Omega’s plant in Cameron, hoping to arrange an air drop of a replacement part. Stewart only reached a security guard at the Cameron plant, and left a message for the marine department. Stewart then called Omega’s plant in Abbeville, Louisiana to see if the part was in stock there. While Stewart was on the phone, and some ten to fifteen minutes after he turned on the wheelhouse lights, GULF SHORE struck Omega’s oil platform (“Platform 17B”). The platform is situated near a cluster of oil platforms known as the Joseph’s Harbor Rigs.

After the allision, 2 GULF SHORE circled Platform 17B. Stewart observed no lights and heard no sounding devices. Three other crew members of GULF SHORE likewise testified that the platform lacked functioning lights or a fog horn. Herbert Fisher, captain of F/V *366 ANNA AMY, a vessel owned by Omega, testified that he passed Platform 17B prior to the allision on the morning of October 4, 2004. He stated that the platform lacked operational lights and sounding devices. Another captain, Lawson Schools of F/V COTE BLANCHE BAY, also an Omega vessel, testified that after the allision, he saw no lights operating on Platform 17B. He testified that when he had passed the same platform at night on other occasions, it was unlit.

Following the allision, various employees and agents of Samson boarded Platform 17B and inspected its lighting systems. Baker Energy was in charge of maintaining the lights on the platform. Baker’s employee, Troy Whetstone, testified that he conducted tests just a few hours after the allision. Whetstone placed a piece of electrical tape over the photocell of each of the four lights to simulate darkness. In each case, the light turned on as intended. Terry Smith, Operations Manager of Wet Tech Energy (a third-party contractor hired by Samson to perform quarterly inspections of Platform 17B’s lights) arrived at the platform several hours after Whetstone conducted his inspections. He performed tests on the electrical currents, batteries, solar panels, foghorn, and lights, and found no evidence to suggest that the lights and horn had not been working the previous night. Smith also performed some routine maintenance. Both Smith and Whetstone testified that they did not repair the platform’s lights.

Additionally, Samson hired George Hero, an electrical engineer, to test the lighting systems on October 11, 2004 (one week after the accident). Hero was to determine “whether there was evidence of any recent modifications or repairs to the lighting and foghorn systems or any evidence that the systems should not have been operational on October 4, 2004.” Hero opined that he saw no evidence that the lights had been repaired, and no evidence that the lights had been inoperative one week earlier.

II.

The district court conducted a three-day bench trial in February 2007. In its judgment of March 9, 2007, the court found that “Omega sufficiently proved that platform 17B did not have operational lights on the morning of the accident.” The court discredited the testimony adduced by Samson, noting that Baker Energy had not kept monthly maintenance reports for Platform 17B. Moreover, the court disregarded the testimony by Smith and Hero, noting that “it is entirely possible that the lights were repaired prior to their inspections,” namely by Whetstone. The court found that Samson had committed a statutory violation by failing to have operable lights on a fixed structure. See 33 C.F.R. §§ 67.01-1, 67.05-1. Consequently, the vessel was not presumed to be at fault for the allision, and the burden remained on Samson to prove negligence.

The court next found that Samson carried its burden because it proved that Captain Stewart violated the International Regulations for Preventing Collisions at Sea (“COLREGS”). See 33 U.S.C. § foil. 1602. 3 Namely, Stewart violated Rule 5 by failing to maintain a proper lookout by sight and hearing, as well as all other available means. See COLREGS, R. 5. Turning on the wheelhouse light created a “mirror effect” which greatly diminished Stewart’s night vision. Use of a cell phone likewise prevented Stewart from maintaining a proper lookout. Moreover, the court *367 found that Stewart had violated Rule 7 by failing to use all available means (i.e., the vessel’s radar) to determine if a risk of collision existed. See COLREGS, R. 7. Namely, the “mirror effect” prevented Stewart from seeing the radar display. The court emphasized that “there was substantial testimony that Captain Stewart did not make effective use of his radar while navigating through the Joseph’s Harbor Rigs.”

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548 F.3d 361, 2009 A.M.C. 245, 2008 U.S. App. LEXIS 23312, 2008 WL 4837629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/omega-protein-inc-v-samson-contour-energy-e-p-llc-ca5-2008.