United States Court of Appeals Fifth Circuit F I L E D Revised July 17, 2003 May 28, 2003 UNITED STATES COURT OF APPEALS For the Fifth Circuit Charles R. Fulbruge III Clerk
No. 01-31323
TRICO MARINE ASSETS INC.; TRICO MARINE OPERATORS INC.
Plaintiffs - Appellees VERSUS
DIAMOND B MARINE SERVICES INC, ETC; ET AL
Defendants
DIAMOND B MARINE SERVICES INC, IN PERSONAM
Defendant - Appellant
In Re: In the Matter of the Complaint of TRICO MARINE OPERATORS INC, as Owners/Operators/Owners pro hac vice of the OSV Cane River, Praying for Exoneration From or Limitation of Liability ---------------------------------------- TRICO MARINE ASSETS INC; TRICO MARINE OPERATORS INC, as Owners/Operators/Owners pro hac vice of the OSV Cane River,
Petitioners - Appellees-Cross-Appellees
VERSUS
TEXACO EXPLORATION & PRODUCTION INC
Intervenor - Appellee-Cross-Appellant-Cross-Appellee
ACE USA, successor-in-interest
Intevenor - Appellee-Cross-Appellant
CIGNA Intervenor - Appellee
VERSUS DIAMOND “B” MARINE SERVICES INC
Claimant - Appellant - Cross-Appellee/Appellee
JAMES ANDREW BENNETT
Claimant - Appellant
LONNIE FONTENOT; WAYNE PAUL THIBODAUX, individually and on behalf of their dependent minor child, Blake Milton Thibodaux, and their dependant children, Angel Marie Thibodaux and Kelly Marie Thibodaux; ALAN J. LEBLANC, individually and on behalf of their dependant children Shere A LeBlanc and Michelle R Le Blanc
Claimants - Appellees-Cross-Appellants/Appellants-Cross-Appellees
In Re: In the Matter of the Complaint of DIAMOND B. MARINE SERVICES INC, as Owner/Operator of CB Miss Bernice Praying for Exoneration From or Limitation of Liability Regarding Collision of 25 March, 1999 with OSV Cane River ---------------------------------------- DIAMOND “B” MARINE SERVICES INC, as Owner/Operator of CB Miss Bernice
Petitioner - Appellant-Cross-Appellee/Appellee
TRICO MARINE ASSETS INC; TRICO MARINE OPERATORS INC
Claimants - Appellees-Cross-Appellees
MICHAEL A CHERAMIE; KENNETH B HELLER
Claimants - Appellees
LONNIE FONTENOT, individually and on behalf of their dependent children, Amy and Jacob Fontenot; WAYNE PAUL THIBODAUX, individually and on behalf of their dependant minor child, Blake M Thibodaux, and their dependant children, Angel M Thibodaux and Kelly M. Thibodaux; ALAN J LEBLANC; individually and on behalf of their dependant children, Shere A leBlanc and Michelle R LeBlanc
Claimants - Appellees-Cross-Appellants/Appellants
2 JAMES ANDREW BENNETT
Appeal from the United States District Court for the Eastern District of Louisiana
Before JONES, WIENER and DeMOSS, Circuit Judges.
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
3 damages to three injured Texaco Exploration and Production, Inc.
(Texaco) employees: Wayne Thibodaux, Lonnie Fontenot and Alan
LeBlanc (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 make it difficult to hear the radio
4 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 RIVER’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,
5 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
6 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 approximately 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 Cheramie 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
7 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. After the first impact,
Captain Cheramie took control of the CANE RIVER and maneuvered her
in front of the MISS BERNICE to prevent her from hitting the “Fed
14,” a tug and barge composite also heading south. The MISS
BERNICE struck the CANE RIVER a third time and was finally brought
under control when passenger Fontenot took her engines out of gear.
The second and third impacts caused additional damage and
injuries.
Captain Cheramie and his crew tied the MISS BERNICE to the
CANE RIVER to keep the MISS BERNICE from sinking. Bennett and the
Texaco employees were taken to shore by other vessels for medical
attention. Captain Cheramie took both the CANE RIVER and the MISS
BERNICE back to the dock in Venice.
The collision of the two vessels led to three lawsuits: 1) a
suit brought in admiralty by Trico against 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
8 Eastern District of Louisiana, and during the week of January 8,
2001, the district court conducted a non-jury trial of the claims
of all parties in the three consolidated cases.
On September 28, 2001, the district court entered findings of
fact and conclusions of law as well as a judgment in favor of Trico
for damages totaling $43,167.09 against Diamond B and Bennett. The
district court also denied Diamond B’s petition for exoneration or
limitation of liability and awarded damages to the three
complainants in the following amounts: $125,037.41 to Wayne
Thibodaux, $181,184.20 to Lonnie Fontenot and $295,816.63 to Alan
LeBlanc. Though Bennett also sought damages, the court found that
his injuries were caused solely by his own negligence in failing to
wear a seatbelt and that he was therefore not entitled to recovery.
In an amended judgment filed November 20, 2001, the district
court ordered that the complainants reimburse their employer,
Texaco, for the amount of past medical expenses they received from
Texaco. Fontenot was ordered to reimburse Texaco $132,229.31,
LeBlanc was ordered to reimburse $51,975.35, and Thibodeaux was
ordered to reimburse $48,553.74. In a second amended judgment, the
district court ordered that the complainants also reimburse Texaco
from the amount of the recovery they received in damages for
compensation they received from Texaco during the pendency of the
lawsuit. Finally, the district court denied the complainants
motion for attorney’s fees.
9 DISCUSSION
Did the district court err by not applying the Pennsylvania Rule and placing the burden on Trico to prove that the collision could not have been caused by the CANE RIVER’s violation of Rule 6 in order to exonerate it?
Diamond B, Bennett and the claimants all assert that the
district court committed a fundamental error by not placing the
burden on Trico, as required by the rule of the Pennsylvania, to
show that its negligence could not have caused the collision.
Under the rule of the Pennsylvania, a party that is in violation of
a rule intended to prevent allisions1 is presumed to be at fault
and bears the burden of proving that the violation did not cause
the allision. Brunet v. United Gas Pipeline Co., 15 F.3d 500, 504
(5th Cir. 1994). This Court has recognized that the rule of The
Pennsylvania may apply in collision cases as well as in cases
arising from an allision. Acacia Vera Navigation Co. v. Kezia,
Ltd., 78 F.3d 211, 216 (5th Cir. 1996); see also Sheridan Transp.
Co. v. Tug New York Co., 897 F.2d 795, 799-800 (5th Cir. 1990)
(citing Gele v. Chevron Oil Co., 574 F.2d 243 (5th Cir. 1978)).
1 An allision is defined as the “running of one ship upon another that is stationary - distinguished from collision.” Webster’s Third New International Dictionary 56 (1971). A collision is defined as “the action or an instance of colliding, violent encounter, or forceful striking together typically by accident and so as to harm or impede.” Id. at 446. Therefore, an allision occurs when a ship strikes a stationary object while a collision involves two moving vessels or objects. The Pennsylvania involved a collision.
10 These parties also claim that the district court erred in finding
that the CANE RIVER was not negligent, asserting multiple grounds
for its negligence such as moving forward in low visibility despite
the “line of sight” rule, moving forward when the operators knew
that the radar might not pick-up certain vessels and failing to
maintain a proper look-out. Trico answers that the Pennsylavnia
rule does not apply because the district court never found that the
CANE RIVER violated a statute and that a clear error analysis
applies to this finding of fact. Trico further asserts that they
prevail under a clear error analysis as to the issue of negligence
on the other alleged breaches of duty.
Though Diamond B argues for a de novo review of the district
court’s decision, Trico is correct and the decision is reviewed for
clear error. “In maritime actions, questions of fault are ‘factual
issues which cannot be disturbed on appeal unless the resolutions
are clearly erroneous.’” Brunet 15 F.3d at 502 (quoting Valley
Towing Serv., Inc. v. S.S. Am. Wheat, Freighters, Inc., 618 F.2d
341, 346 (5th Cir. 1980)); see also Fed. R. Civ. P. 52(a). In the
present case, the district court was faced with deciding whether
the CANE RIVER had violated various statutes intended to help
prevent allisions. The district court weighed the evidence before
it, considered a number of factors, and concluded that the CANE
RIVER did not violate any such statutes. In Brunet, this Court
applied a clear error analysis to a similar situation in which an
11 appellant argued that the rule of the Pennsylvania should apply
because the appellee had violated various permits and regulations.
See also Acacia Vera Navigation Co., 78 F.3d at 215-16.
Utilizing a clear error analysis, we find the appellants’
arguments unconvincing. The appellants claim that the CANE RIVER
was in violation of Rules 6 and 19, which govern the speed of a
vessel and its speed in limited visibility. Rule 6 states:
§ 2006. Safe speed (Rule 6) Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within a distance appropriate to the prevailing circumstances and conditions. In determining a safe speed the following factors shall be among those taken into account: (a) By all vessels: (i) the state of visibility; (ii) the traffic density including concentration of fishing vessels or any other vessels; (iii) the maneuverability of the vessel with special reference to stopping distance and turning ability in the prevailing conditions; (iv) at night the presence of background light such as from shores lights or from back scatter of her own lights; (v) the state of wind, sea, and current, and the proximity of navigational hazards; (vi) the draft in relation to the available depth of water. (b) Additionally, by vessels with operational radar: (i) the characteristics, efficiency and limitations of the radar equipment; (ii) any constraints imposed by the radar range scale in use; (iii) the effect on radar detection of the sea state, weather, and other sources of interference; (iv) the possibility that small vessels, ice and other floating objects may not be detected by radar at an adequate range; (v) the number, location, and movement of vessels detected by radar; and (vi) the more exact assessment of the visibility
12 that may be possible when radar is used to determine the range of vessels or other objects in the vicinity.
33 U.S.C. § 2006. The district court considered all of these
factors, and the provisions of Rule 19, and found that the CANE
RIVER was operating at a safe speed.2 The district court found,
inter alia, that the CANE RIVER maintained a proper lookout by
stationing Castle in the wheelhouse with the door open; that the
radars of the CANE RIVER were monitored properly by Heller, and
that the CANE RIVER maintained a proper radar lookout; that the
CANE RIVER maintained a proper radio lookout and made required
2 Rule 19 states, in relevant part:
§ 2019. Conduct of vessels in restricted visibility (Rule 19) (a) Vessels to which rule applies This Rule applies to vessels not in sight of one another when navigating in or near an area of restricted visibility. (b) Safe speed; engines ready for immediate maneuver Every vessel shall proceed at a safe speed adapted to the prevailing circumstances and conditions of restricted visibility. A power-driven vessel shall have her engines ready for immediate maneuver. (c) Due regard to prevailing circumstances and conditions Every vessel shall have due regard to the prevailing circumstances and conditions of restricted visibility when complying with Rules 4 through 10. . . . . (e) Reduction of speed to minimum Except where it has been determined that a risk of collision does not exist, every vessel which hears apparently forward of her beam the fog signal of another vessel, or which cannot avoid a close-quarters situation with another vessel forward of her beam, shall reduce her speed to the minimum at which she can be kept on course. She shall if necessary take all her way off and, in any event, navigate with extreme caution until danger of collision is over.
13 security announcements over it;3 and, that the CANE RIVER was
proceeding downriver at bare steerage, which was the slowest
possible speed it could run without losing control of the vessel.
As to this last finding, the appellants claim that it was
error for the CANE RIVER to even be on the water in such a fog and
that the district court should have found the CANE RIVER’s speed to
be unsafe under the “line of sight” rule, which describes the speed
at which a vessel can safely travel as being the speed which allows
the vessel to come to a halt within half the distance of its line
of sight.4 In rejecting applicability of the “line of sight” rule,
the district court cited to St. Philip Offshore Towing Co. v.
Wisconsin Barge Lines, Inc., 466 F.Supp. 403, 409 (E.D. La. 1979),
in support of the court’s conclusion that, because the MISS BERNICE
was traveling far in excess of the moderate speed required by law,
the line of sight rule did not apply. Appellants claim that the
district court misread St. Philip Offshore Towing Co., but, even if
true, this point is moot for two reasons.
First, the Supreme Court and this Circuit have recognized that
the “line of sight” rule is not a rigid one that must be followed
in all situations. As Trico points out, in cases as early as The
Pennsylvania, the Supreme Court recognized that the speed at which
3 Apparently, Bennett could not hear these announcements over the noise of his vessel’s engine. 4 It is alleged that the CANE RIVER needed 200 feet to stop but only had 100 feet of visibility.
14 a vessel can safely travel in fog depends on the circumstances of
each case. 86 U.S. at 133. In Union Oil Company of California v.
The San Jacinto, the Supreme Court reversed the Ninth Circuit’s
strict application of the “line of sight” rule because the fault
alleged to have resulted from violation of the “line of sight” rule
did not have “some relationship to the dangers against which that
rule was designed to protect.” 409 U.S. 140, 146 (1972). In other
words, the “line of sight” rule was inapplicable, despite the
vessels’ traveling in excess of that speed, because the other
vessel was negligent in a manner that could not have been
anticipated. In In re Magnolia Towing Company, 764 F.2d 1134 (5th
Cir. 1985), this Circuit adopted the Supreme Court’s ruling in San
Jacinto, stating that “[t]he reason for the half-distance rule
(line of sight) was to avoid reasonably anticipatable possible
hazards, and the rule (with its violation importing statutory
fault) does not apply where it is totally unrealistic to anticipate
the possibility of the particular hazard created by the other
vessel’s negligence.” Id. at 1138 (internal quotations omitted).
In the present case, the district court found that the MISS
BERNICE’s actions were just the sort of unanticipatable hazards and
negligence that should pretermit application of the “line of sight”
rule.
Second, even if the “line of sight” rule were applied and the
rule of The Pennsylvania invoked, the appellants’ argument would
15 fail because the district court alternatively found that the CANE
RIVER could not have avoided a collision with the MISS BERNICE at
any speed. In fact, Bennett himself admitted that his last-second
turn into the CANE RIVER took away all of the CANE RIVER’s options.
Therefore, even if this Court were to adopt the appellants’
argument that the “line of sight” rule should be invoked, it would
not overcome the district court’s determination that the collision
was unavoidable due to the MISS BERNICE’s negligence.
Ultimately, all of the appellants’ assertions come down to
contesting the district court’s findings of fact. Despite their
contentions that a de novo standard should be used, we find that a
clear error analysis is applicable. Under such a standard, the
district court had ample grounds on which to base its various
findings of fact as to the proper maintenance of a lookout, proper
radar lookout, proper radio lookout and safe speed. The district
court also found, as a factual matter, that the second and third
impacts were not the fault of the CANE RIVER but rather the fault
of the MISS BERNICE, which was advancing full throttle in a
starboard direction without anyone at the helm, due to Bennett’s
having been rendered unconscious by the initial impact. The
district court’s decision is therefore affirmed.5
5 The appellants also argue that the CANE RIVER was negligent being out in such conditions because it could not safely travel within the line of sight rule. Though language to support this proposition can be found in Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1470 (5th Cir. 1991), the discussion
16 Did the district court err by denying Diamond B’s claim to limit its liability to the value of the MISS BERNICE?
Diamond B also claims that the district court erred in not
limiting its liability to the value of its vessel as required by 46
U.S.C. § 183(a). Trico argues that the district court’s finding
was correct because Diamond B had privity or knowledge of the MISS
BERNICE’s unseaworthy condition and Bennett’s negligent acts.
Diamond B claims that even though there were navigational errors
made, all errors that led to the collision were simply due to their
“hands-off” approach to management, as allowed under In re Kristie
Leigh Enterprises, 72 F.3d 479 (5th Cir. 1996).
This Court reviews a denial of limited liability for clear
error. Hellenic Inc. v. Bridgeline Gas Distrib., L.L.C., 252 F.3d
391, 394 (5th Cir. 2001). Under 46 U.S.C. § 183(a), a vessel owner
may limit the liability incurred for any loss, damage or injury by
collision to the “amount of value of the interest of such owner in
such vessel, and her freight then pending.” Id. However, if the
vessel’s negligence or unseaworthiness is the proximate cause of
the claimant’s loss, the plaintiff-in-limitation must prove it had
the appellants cite to involved a review of many factors contributing to negligence in that particular case rather than a discussion of the applicability of the Pennsylvania rule, and this case was subsequent to this Court’s ruling in Magnolia that the line of sight rule does not always apply to infer negligence. Additionally, the district court made findings that when the CANE RIVER left Venice, it had good visibility and it was en route to its destination when it encountered patchy fog, which limited its visibility.
17 no privity or knowledge of the unseaworthy conditions or negligent
acts. Cupit v. McClanahan Contractors, Inc., 1 F.3d 346, 348 (5th
Cir. 1995). “[A] shipowner has privity if he personally
participated in the negligent conduct or brought about the
unseaworthy condition.” Pennzoil, 943 F.2d at 1473. “Knowledge,
when the shipowner is a corporation, is judged not only by what the
corporation’s managing officers actually knew, but also by what
they should have known with respect to conditions or actions likely
to cause the loss.” Id. at 1473-74. Also, in situations resulting
in loss of life or bodily injury, the knowledge of a seagoing
vessel’s master at the commencement of a voyage is imputed to the
vessel’s owner. 46 App. U.S.C. § 183(e).
The district court found that Diamond B had privity and
knowledge of Bennett’s negligence and participated in the
negligence that caused the collision. The district court’s
findings were that Diamond B: 1) failed to provide a lookout; 2)
failed to train Bennett to use a radar; 3) failed to evaluate the
MISS BERNICE’s seaworthiness or Bennett’s competence (facts
particularly relevant considering the excessive engine noise that
may have helped cause the collision); 4) failed to inspect the
vessel logs; 5) failed to employ a safety manager; and, 6) failed
to provide safety training or safety manuals. The district court
additionally found that “Diamond B knew the MISS BERNICE had
operated in the fog and would continue to do so, yet employed a
18 captain without the proper qualifications and without adequate
policies or procedures to guide him.” Based on these findings, the
district court had no difficulty in concluding that Diamond B
should be denied any limitation on its liability.
Diamond B claims this was error. Diamond B contends that all
it is guilty of is having a “hands-off” approach to management,
which it claims is permissible under this Court’s decision in
Kristie Leigh. Diamond B is mistaken. Though this Court did
recognize that a vessel owner could not be denied limitation of
liability based merely on errors in navigation or other negligence
by master or crew, Kristie Leigh, 72 F.3d at 481-482, the present
case presents far more than mere navigational errors. Diamond B
was aware that Bennett had trouble hearing the radio over the
engine noise and that this noise also drowned out other vessels’
fog signals; yet Diamond B sent him out anyway. Diamond B also
sent him out without a lookout and with a radar system that Bennett
had no training in how to use. Diamond B claims that Bennett had
sufficient hands-on experience in using radar, but the fact that
Bennett could not even tell which direction the CANE RIVER was
traveling on radar indicates otherwise. In short, the facts found
in this case go far beyond mere navigational errors. Diamond B
knew, or should have known, that the MISS BERNICE was unseaworthy
and that its captain was improperly trained. Therefore, the
district court’s decision is affirmed.
19 Did the district court err in its allocation of damages owed to the claimants and Bennett?
The claimants and Bennett argue that the district court erred
in its allocation of damages. The claimants maintain that the
district court violated the collateral source doctrine by taking
the income they derived from Texaco into consideration, and that
the amount of damages for medical expenses and future wages was in
error. Bennett argues that he should not have been denied any
damages based on his failure to wear a seatbelt.6
District courts enjoy “wide discretion” in awarding damages.
Douglass v. Delta Air Lines, Inc., 897 F.2d 1336, 1339 (5th Cir.
1990). “The standard of review to apply in our inquiry into all
findings of fact, including damage awards, is a clearly erroneous
standard.” Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119,
121 (5th Cir. 1994). “Furthermore, mere disagreement with the
6 Bennett also argues on appeal that Trico is not entitled to judgment against him because he was never properly served. Though Bennett was a party to the litigation from the outset, he claims that Trico’s cross-claims against him, which Trico claims were served by mail through Bennett’s attorney, were never received by himself or his attorney. Bennett claims that he made a motion to the district court to dismiss the claims against him by Trico but that the district court refused to hear his motion. This is not accurate. The district court denied Bennett’s motion as untimely. Bennett has not argued on appeal that his motion was timely or cited any authority as to why the district court erred in denying his motion and his arguments on this point are therefore waived. “[I]ssues not raised or argued in the brief of the appellant may be considered waived and thus will not be noticed or entertained by the court of appeals.” In re Tex. Mortgage Serv. Corp., 761 F.2d 1068, 1073 (5th Cir. 1985). (citation and internal quotation omitted).
20 district court’s analysis of the record is insufficient, and we
will not reverse a finding although there is evidence to support
it, unless the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.” Id. (internal quotations omitted).
A. Bennett’s damages
Bennett argues three points in support of his position that
the district court erred in finding his injury was caused by his
own negligence. First, he argues that wearing a seatbelt was not
required, and that the only reason one would wear a seatbelt is if
waves or a rough sea would necessitate wearing one to keep from
falling down. Since the river was calm the day of the collision,
Bennett argues, there was no reason to wear a seatbelt. Second,
Bennett claims that his injuries would not have been prevented by
his wearing a seatbelt. Despite the fact that he went through the
front windshield head-first, Bennett claims that the real injury
occurred from his brain hitting the side of his cranium, which he
contends would have occurred with or without a seatbelt. Third,
Bennett argues that seamen have very little duty under maritime law
to protect themselves and responsibility for his safety is mostly
up to the vessel owner.
Bennett’s first argument defeats itself. If the purpose of
wearing a seatbelt is to prevent the captain from falling down,
then it is axiomatic that it must be there to prevent the captain
21 from being thrown through the windshield as well. Additionally,
Bennett had already been in one collision in which he was not
wearing a seatbelt. Bennett’s second argument directly contradicts
the district court’s finding, which was based on medical testimony.
We reject this argument under the clear error standard.
Additionally, Bennett does not cite to a single case or piece of
medical evidence to support either of his above two assertions.
As for Bennett’s third argument, even the very cases he relies
on recognize that a seaman has a duty to use reasonable care. Bobb
v. Modern Products, Inc., 648 F.2d 1051, 1057 (5th Cir. 1981).
Plowing through the water at top speed in the fog, without the
benefit of a look-out or the ability to hear other vessels’ fog
signals or the radio by itself would violate any duty to take
reasonable care. To do so without a seatbelt fastened is just
another step beyond that reasonable threshold. We therefore affirm
the district court’s findings that Bennett’s own negligence was the
sole or proximate cause of his injuries, preventing his recovery.
B. The claimants’ general, past and future medical damages
Thibodeaux was injured when he was thrown forward in the MISS
BERNICE and knocked unconscious, due to the collision. Thibodeaux
was diagnosed with a head contusion and fractured ribs, and
complained of neck pain, vision problems, and ringing in his ears,
but apparently did not sustain any significant or permanent head
injury. He was also diagnosed with a preexisting degenerative disc
22 disease at C5-6 and a longstanding osteophyte formation. About six
months after the collision, an anterior cervical fusion was
performed, after which Thibodeaux recovered and returned to work on
May 11, 2000, just over 13 months after the collision. Thibodeaux
was awarded $50,000 in general damages and $48,553.74 in past
medicals, and no money was awarded for future medicals. The
district court based its award of general damages on testimony from
Thibodeaux and his treating physicians, the presence of preexisting
conditions (which Thibodeaux attempted to conceal), and general
damages awards made in prior cases. The court based its award of
past medicals on the stipulated amount of past medicals
attributable to the collision and paid by Thibodeaux’s employer,
Texaco.
Fontenot was injured when he fell while attempting to stand
after the first collision and was further injured when he hit his
head in the second impact. After the collision, Fontenot spent two
weeks in the hospital, suffering from fractured ribs, a partially
collapsed lung, a right kidney laceration, and neck pain. The
district court found that Fontenot sustained the internal injuries
in the first impact and the neck injuries in the second. In
February 2000, Fontenot had a discectomy and anterior cervical
fusion to correct his neck problems. In February 2001, Fontenot
had a kidney removed to help relieve hypertension. The district
court found that both Fontenot’s neck problems and his hypertension
were preexisting conditions that were aggravated by the collisions.
23 The district court awarded $100,000 in general damages for the
first impact and $75,000 in general damages for the second impact.
Fontenot was also awarded $106,045.11 for past medical expenses for
internal injuries from the first impact and $26,184.20 for past
medicals for cervical injuries from the second impact. Fontenot
received nothing for future medical expenses, but was awarded
$45,000 for future lost wages due to his cervical injury. The
district court based its general damages award on testimony from
Fontenot’s treating physicians, the presence of preexisting
conditions, Fontenot’s failure to mitigate his own injuries, and
general damages awards made in prior cases. The district court
based its award of past medicals attributable to the collision on
the stipulated amount of past medicals paid by Fontenot’s employer,
Texaco, as well as on the cost of the kidney removal surgery.
LeBlanc sustained injuries to his left knee and shoulder when
he was thrown forward into a table during the first impact, then
sustained injuries to his back when he was thrown backward during
the second impact. LeBlanc spent two nights in the hospital and
received arthroscopic surgery to his left knee and shoulder for the
injuries sustained in the first impact. In April 2000, LeBlanc
underwent lumbar surgery to correct a preexisting spondylolisthesis
at L4-5 which the district court found was aggravated by the second
impact. In December 2000, LeBlanc underwent a cervical fusion to
relive neck pain, but the district court found that this condition
was preexisting and unrelated to the collision. The district court
24 awarded LeBlanc $35,000 in general damages for injuries related to
the first impact and $125,000 for injuries related to the second
impact. LeBlanc was also awarded $35,721.24 for the past medical
expenses related to the arthroscopic surgeries and $19,254.11 in
past medicals for the lumbar surgery. The district court based its
general damages award on testimony from LeBlanc’s treating
physicians, the presence of preexisting conditions, and general
damages awards made in prior cases. The district court based its
award of past medicals on the stipulated amount of past medicals
attributable to the collision and paid by LeBlanc’s employer,
Though all three claimants allege that the district court’s
awards were inadequate in light of the nature of their injuries and
awards from similar cases, the district court’s awards appear to be
soundly within the range of reasonableness, and the claimants have
failed to show that the awards were clearly erroneous. The
district court found that all three claimants had a pre-existing
condition and that Thibodeaux had made attempts to conceal his pre-
existing condition. The district court also heard detailed
testimony about all three of the claimants’ injuries and their
prognosis before coming to its final damage award. The district
court also supported all of its general damages awards with
citations to cases in which similar injuries yielded similar damage
awards. Though all the claimants make arguments that the amounts
awarded should be higher, nothing in their briefs indicates that
25 the district court was clearly erroneous.
C. The claimant’s future lost wages
All three claimants assert that the district court erred in
the amounts it awarded for future lost wages. The claimants argue
that the court erred when it assumed they could return to work even
though they could not, or assumed that they could return earlier
than they actually could. The district court did award future lost
wages to Fontenot and LeBlanc but not to Thibodeaux because there
was already a stipulation in the record that Thibodeaux had
returned to work and was entitled to no future wage loss. We do
not find this to be in error. Fontenot and LeBlanc claim the
district court erred in finding that they had been cleared to
return to work. In fact, the district court based its decision
about Fontenot on testimony contained in various doctors’ reports
and on the similarity of Fontenot’s injury to Thibodeaux’s. As for
LeBlanc, the district court did assess his future lost wages but
found, based on expert testimony, that he would be able to return
to a field of work and that he had transferrable skills. Therefore
it does not appear that the district court was clearly erroneous.
D. The claimants’ past lost wages
The claimants assert that the district court erred because it
considered payments made to the claimants by Texaco and reduced
their award for past lost wages accordingly. For the first six
months after the collision, each of the claimants received a semi-
26 monthly check from Texaco covering (1) workers’ compensation
benefits, and (2) an additional amount under Texaco’s short-term
disability policy which was intended to make-up the difference
between the compensation benefits and their ordinary wages. The
district court found that these benefits actually constituted lost
wages, a finding the claimants now contest. As the claimants
offered no details about the benefits, the district court
determined that it could not use the factors set out in Phillips v.
Western Company of North America, 953 F.2d 923, 932 (5th Cir.
1992), and Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir.
1994), to make a finding that the benefits were in fact collateral.
The district court reduced the past lost wages award, despite the
collateral source rule, on two grounds: (1) by introducing evidence
of the past wages themselves, the claimants waived any objection;
and, (2) if the claimants were permitted to receive wages from both
Texaco and as damages, they would be receiving double recovery.
“The collateral source rule is a substantive rule of law that
bars a tortfeasor from reducing the quantum of damages owed to a
plaintiff by the amount of recovery the plaintiff receives from
other sources of compensation that are independent of (or
collateral to) the tortfeasor.” Davis, 18 F.3d at 1243. “Sources
of compensation that have no connection to the tortfeasor are
inevitably collateral.” Id. at 1244. This court reviews decisions
concerning whether such benefits are collateral under a de novo
27 standard. Id. at 1245.
The district court assumed that once a plaintiff introduces
evidence of past benefits received, they have waived any objections
about the benefits being used to reduce their past lost wages
award. The finding of waiver, however, is not completely accurate
because the claimants did object to such benefits being considered
under the collateral source rule and, in fact, the district court
stated that it would not so consider the benefits. It is true that
the claimants stipulated to these amounts at trial, but because
Texaco was seeking reimbursement for these amounts as an
intervenor, the claimants were required to so stipulate by the
Eastern District’s Code of Professionalism, which states, in
relevant part that “[attorneys] will cooperate with counsel and the
court to reduce the cost of litigation and will readily stipulate
to all matters not in dispute.” U.S. Dist. Ct. Rules E.D. La.,
Orders, Code of Professionalism (adopted Aug. 4, 1999). We
conclude, therefore, that it is factually inaccurate to find that
the claimants waived any objection to these benefits being
considered in calculating their lost wages simply because the
stipulated amounts were introduced by the claimants.
Obviously, by introducing such evidence, the claimants had
waived any evidentiary objections, but this is a different type of
waiver altogether from waiving an objection to their benefits being
reduced by the amount of their damages. In fact, in Parker v.
28 Wideman, a panel of this Court, applying Florida law, stated that
the plaintiffs do not waive this substantive right just because
they introduce such evidence themselves. 380 F.2d 433, 436 (5th
Cir. 1967) (“Thus, while the tender of such evidence by the
defendant may be excluded on objection by the plaintiff, the
introduction of such evidence by the plaintiff does not bar him
from recovering expenses necessitated by the tort-feasor’s
negligence, even though the expenses were met by monies received
from a collateral source.”).7 We therefore conclude that the
claimants did not waive the collateral source rule objection.
As for the second basis for its decision, that to give the
claimants credit for these benefits would give them a double
recovery, we also find that the district court erred. The district
court’s concerns about double recovery are misplaced as is its
seeming reliance on Phillips and Davis.8 In those cases, this
Court evaluated employee benefit programs to determine whether they
were bargained for fringe benefits rather than benefits intended to
7 In Gates v. Shell Oil, 812 F.2d 1509, 1513 (5th Cir. 1987), this Court noted that the collateral source rule operates to exclude evidence of collateral benefits because it may unfairly prejudice the jury. However, we noted that in ceratin circumstances, such evidence could be admitted for a limited purpose if there is little risk of prejudice and the court gives the jury a limiting instruction. Id. Thus, the evidentiary principle may be violated so long as it is still substantively enforced. 8 The district court stated that it could not consider the factors of Phillips and Davis because the claimants offered no details about the nature of the benefits.
29 anticipate potential legal liability on the part of the tortfeasor.
Davis, 18 F.3d at 1244. “Thus, we have recognized that it would be
unfair to allow the plaintiff a double recovery when both the
liability judgment and the collateral benefits are paid for by the
defendant.” Phillips, 953 F.2d at 931 (emphasis added). These
concerns about double recovery were in the context of a
tortfeasor/defendant having to pay twice, however, and not a third
party paying the benefits as we have here. Therefore, there was no
need to rely on these cases in the first place. Furthermore, there
was no second recovery in the present case, because the claimants
had to reimburse Texaco for the stipulated amounts of past
benefits.9 Also, even if the claimants had not reimbursed Texaco,
the fact that the claimants may have gotten a second recovery would
still be irrelevant because to hold otherwise would punish the
claimants for having the foresight to establish and maintain
collateral sources of income. Davis, 18 F.3d at 1244, n.21.
Considering the factors above, we find that, to the extent
that the claimants past lost wages were reduced, the district
court’s decision was in error. We therefore reverse and remand so
that the district court may enter a damages amount reflecting the
stipulated amounts paid by Texaco, which were previously excluded.
9 In fact, the end result of the district court’s ruling was that the claimants had a “double loss” because the amounts were deducted from their damages award, but then, the claimants were forced to pay the stipulated amounts that were reduced out of their remaining damages amount.
30 Did the district court err in denying the claimants request for attorney’s fees?
The claimants also argue that they were inequitably denied
reimbursement from Texaco for attorney’s fees. Under Louisiana
law, employees are generally allowed to recover a portion of their
attorney’s fees if their employer intervenes in a suit against a
third party tortfeasor. La. Rev. Stat. Ann. § 23:1103. As the
district court pointed out, however, a claimant seeking to recover
fees must introduce evidence sufficient to enable the court to make
a proper apportionment. Rivet v. LeBlanc, 600 So.2d 1358, 1363
(La.App. 1 Cir. 5/22/1992). As no such evidence was presented at
trial or in connection with the hearing on the motion for
attorney’s fees, the district court denied the claimants’ request.
Though the claimants believe that the district court should have
taken judicial notice of the claimants’ enrichment of Texaco, they
cite to no case law that supports this proposition. Additionally,
§ 23:1103(c) provides in part that “the intervenor shall only be
responsible for a share of the reasonable legal fees and costs
incurred by the attorney retained by the plaintiff,” and “[t]he
amount of the portion of attorney’s fees shall be determined by the
district court based on the proportionate services of the attorneys
which benefitted or augmented the recovery from the third party.”
Despite the claimants’ assertions that it was obvious that the
Texaco attorneys rode on the coattails of their attorneys, they
provided no evidence on which the district court could make any
31 sort of reasonable determination. We therefore conclude that the
district court’s decision was correct.
Did the district court err in finding that different injuries were caused by the different impacts?
The claimants assert that the district court erred by finding
that different injuries were caused by different impacts because
there was no testimony to support such findings. The claimants
argue that, if this Court should find that the CANE RIVER is
liable, then the injury determination has bearing on apportionment
of liability. However, as the district court placed no liability
on the CANE RIVER and we affirm that decision today, this issue is
moot.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing, and for the reasons set forth above,
we conclude that the district court’s orders should be AFFIRMED in
all parts except for that portion dealing with the claimants’ past
lost wages. As to that part of the order, we REVERSE and REMAND so
that the district court may enter a damages amount reflecting the
stipulated amounts paid by Texaco, which were previously excluded.
AFFIRMED in part and REVERSED and REMANDED in part.
G:\opin\01-31323.opn.wpd 32