Trico Marine Assets Inc. v. Diamond B Marine Services Inc.

332 F.3d 779, 2003 A.M.C. 1355, 2003 U.S. App. LEXIS 10645, 2003 WL 21223992
CourtCourt of Appeals for the Fifth Circuit
DecidedMay 28, 2003
DocketNo. 01-31323
StatusPublished
Cited by12 cases

This text of 332 F.3d 779 (Trico Marine Assets Inc. v. Diamond B Marine Services Inc.) 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
Trico Marine Assets Inc. v. Diamond B Marine Services Inc., 332 F.3d 779, 2003 A.M.C. 1355, 2003 U.S. App. LEXIS 10645, 2003 WL 21223992 (5th Cir. 2003).

Opinion

DeMOSS, Circuit Judge:

On March 25, 1999, the C/B MISS BERNICE collided with the O.S.V. CANE RIVER in the fog in the Mississippi River below Venice, Louisiana. This collision led to three lawsuits: 1) a suit brought in admiralty by Trico Marine Assets, Inc. and Trico Marine Operators, Inc. (collectively “Trico”) against Diamond B Marine Services, Inc. (“Diamond B”); 2) an exoneration/limitation action instituted by Trico; and, 3) an exoneration/limitation action instituted by Diamond B. These three cases were consolidated before the Federal District Court for the Eastern District of Louisiana.

The district court entered judgment in favor of Trico for damages totaling $43,167.09 against Diamond B and James A. Bennett (the captain of the MISS BERNICE). The court also rendered judgment in favor of Trico and against Diamond B and Bennett for full indemnity for any damages that would be assessed against Trico in any other proceeding. The district court also denied Diamond B’s petition for exoneration or limitation of liability and awarded damages to three injured Texaco Exploration and Production, Inc. (Texaco) employees: Wayne Thi-bodaux, Lonnie Fontenot and Alan Le-Blanc (collectively “complainants”). In an amended judgment, the district court ordered that the complainants reimburse their employer, Texaco, for the amount of past medical expenses Texaco provided them.

Diamond B, Bennett and the complainants all appeal various aspects of the district court’s order. Texaco has filed as an appellee-cross-appellant cross-appellee and Trico has responded as an appellee.

BACKGROUND

On the morning of March 25, 1999, both the MISS BERNICE and the CANE RIVER were docked in Venice. The MISS BERNICE was chartered to Texaco, and Texaco ordered Bennett to pick up its employees (the complainants) at Garden Island Bay and return them to Venice. Although he knew visibility that morning was extremely restricted, Bennett departed from Venice without a lookout and without turning on his running lights. Furthermore, Bennett had never been trained to use the vessel’s Si-Tex radar unit. The radar had been installed eleven months before the collision, but Bennett was absent that day and Diamond B left him to read the radar’s manual and figure it out for himself. Bennett also decided to run the vessel at full speed, approximately 18 knots, even though the engine noise would [784]*784make it difficult to hear the radio or the fog signals of other vessels. Finally, he failed to check any of the MISS BERNICE’s navigation equipment and ran at full speed without fog signals.

Although visibility remained very poor when Bennett arrived at Garden Island Bay, he decided to return to Venice immediately, still running at full speed and still without a lookout, running lights, or fog signals. The MISS BERNICE’s engine noise was so loud that Bennett hooked up an external speaker to hear the radio. Bennett had complained about the engine noise problem in the past, but Diamond B had not done anything to remedy it.

As he approached the West Point Light, Bennett overtook a northbound supply boat, the O.S.V. ENSCO SCHOONER. Robert Rusho, the captain of that vessel, testified that he did not see the MISS BERNICE on the radar and that Bennett failed to radio him to make an overtaking agreement. Rusho was not aware that the MISS BERNICE was in the area until he heard her engines, which briefly slowed down as she cut around the starboard side of the ENSCO SCHOONER and then gunned back to full speed.

Continuing northbound at full speed, Bennett saw the CANE RIVER as a target on the MISS BERNICE’s radar. Unfortunately, due to his lack of training and to the CANE RTVER’s very slow speed, Bennett thought that the CANE RIVER was also northbound and that he was overtaking her. In reality, the CANE RIVER was southbound, and the two vessels were meeting. Bennett testified that he thought he announced on the radio that he was overtaking a northbound vessel, but he said that he received no response. Even if Bennett actually made that announcement, it is not surprising he received no response, as there were no northbound vessels in the area.

Despite the lack of either radio contact or an agreement to overtake the vessel, Bennett headed the MISS BERNICE on a direct collision course with the radar target for more than three full minutes without sounding any signals. When the CANE RIVER came in sight, he was surprised to see her bow instead of the stern he was expecting.

Earlier that same morning, just as the MISS BERNICE was picking up the Texaco employees, the CANE RIVER was waiting for the fog to rise in Venice. At about 7:30 a.m., Kenneth Heller, the ship’s mate, was informed by another Trico vessel that the fog was lifting. As visibility at the dock was clear, the CANE RIVER left the dock for an offshore platform at approximately 8:00 a.m.

As the CANE RIVER approached the Venice Jump, Heller made several radio announcements of his intention to turn southbound into the Mississippi River. Two small northbound crewboats responded, and the boats agreed to pass starboard to starboard. The MISS BERNICE did not respond to the announcements.

As the CANE RIVER proceeded down river, Heller periodically announced the vessel’s position over the radio and monitored its two radars, which were set on ranges of three-quarters of a mile and one- and-a-half miles. At no time did the radar pick-up the MISS BERNICE. At the same time, Lornell Castle, a deckhand and the CANE RIVER’s lookout, was in the wheelhouse looking and listening for other vessels.

Between the Upper Jump Shoal Buoy and the Lower Jump Shoal Buoy, the CANE RIVER encountered patchy fog, and visibility began to diminish. Heller reduced the CANE RIVER to bare steerage (i.e., the lowest speed at which he could still control the vessel), which was [785]*785approximately four knots, and began sounding fog signals every two minutes, as required by the Rules.

After taking these precautions, Heller had Castle summon Captain Michael Cher-amie to the wheelhouse to assess the situation. Castle quickly did so and immediately resumed his post. Satisfied that there was no danger and that Heller had the situation under control, Cheramie went below deck to get his sunglasses and a cup of coffee. Before he could return, the collision occurred. No one aboard the CANE RIVER was aware of the MISS BERNICE’S presence until seconds before the collision when Heller and Castle heard her engines and saw her emerge from the fog directly in front of the CANE RIVER.

At trial, Bennett testified that if he had held his course when he first saw the CANE RIVER, the boats might have narrowly missed one another. However, at the last second Bennett turned the MISS BERNICE hard to starboard, causing a bow-to-bow collision. At trial, Bennett admitted Heller could not have prevented the collision. He further testified that he did not know how he let the situation develop and that he took away all of his and the CANE RIVER’s options.

Even though he had already been injured in a previous accident for failing to wear his seatbelt, Bennett was not wearing a seatbelt at the time of this collision. As a result, he was thrown into the windshield and momentarily lost consciousness. Still at full speed and with no one at the wheel, the MISS BERNICE again struck the CANE RIVER in the port stern.

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332 F.3d 779, 2003 A.M.C. 1355, 2003 U.S. App. LEXIS 10645, 2003 WL 21223992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trico-marine-assets-inc-v-diamond-b-marine-services-inc-ca5-2003.