     Case: 14-30888         Document: 00512986526          Page: 1     Date Filed: 03/30/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                         Fifth Circuit

                                                                                          FILED
                                                                                       March 30, 2015
                                         No. 14-30888
                                                                                       Lyle W. Cayce
                                                                                            Clerk

LLOYD'S SYNDICATE 1861; D&B BOAT RENTALS, INCORPORATED,

                 Plaintiffs - Appellants

v.

CROSBY TUGS, L.L.C.,

                 Defendant - Appellee




                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:13-CV-5551


Before DAVIS and CLEMENT, Circuit Judges, and ROSENTHAL, District
Judge.*
PER CURIAM:**
       Plaintiffs – Appellants, D&B Boat Rentals Inc. and its insurer, Lloyd’s
Syndicate 1861, (collectively referred to as “D&B”), sued Defendant Crosby
Tugs, L.L.C. (“Crosby”), seeking to recover the expenses they incurred in
removing their sunken vessel, M/V RICKY B, from the bottom of the Gulf of



       *   District Judge of the Southern District of Texas, sitting by designation.
       **Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                No. 14-30888
Mexico. Following a bench trial, the district court entered a judgment in favor
of Crosby. We affirm the court’s judgment.
                                      I.
      During the night of May 28, 2013, the RICKY B, while servicing drilling
platforms in the Gulf of Mexico, began taking on water in its engine room
through its starboard stuffing box. On the morning of May 29, after several
attempts to stop the ingress of water, the RICKY B contacted Crosby for
assistance. The RICKY B had lost power and its crew was abandoning ship.
Crosby agreed to dispatch a tug to tow the RICKY B to shore. Several hours
later, Crosby’s tug, M/V DELTA FORCE, arrived at the scene and observed
that the RICKY B had a list to port and was sitting low in the water. Following
the owner and operator’s instructions, the DELTA FORCE attached a tow-line,
without attempting to pump out the water in the RICKY B, and began towing
the vessel to shallower waters at a speed of no more than five knots. After
proceeding approximately thirteen miles, the RICKY B completely submerged
and came to a rest on the bed of the Gulf of Mexico.
      D&B filed suit against Crosby alleging that the DELTA FORCE
negligently towed the RICKY B without pumping the water out first and at too
high a rate of speed, which caused the RICKY B to sink. After conducting a
bench trial, the district court found that D&B presented insufficient evidence
to establish that Crosby acted with either negligence or gross negligence and
entered a take nothing judgment in favor of Crosby. In reaching its judgment,
the district court held that: (1) the nature of the services provided by Crosby
were salvage, not towing; (2) the damage ultimately suffered by the RICKY B
was indistinguishable from the purpose of the salvage operation (sinking), and,
therefore, a gross negligence standard applied in determining Crosby’s
liability; (3) even if the court applied an ordinary negligence standard, D&B
presented insufficient evidence of         Crosby’s negligence; and (4) the
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                                 No. 14-30888
Pennsylvania Rule required D&B to show that the statutory violations of the
RICKY B were not the cause of the accident.
                                      II.
      On appeal, D&B first argues that the district court erred in concluding
that the services provided by Crosby were salvage in nature and not towing.
Next, D&B argues that regardless of the type of services provided by Crosby—
towing or salvage—the ordinary negligence standard applies; thus, the district
court erred in applying a gross negligence standard. D&B also argues that the
district court erred in finding that the evidence was insufficient to establish
Crosby’s negligence under an ordinary negligence standard. Finally, D&B
challenges the district court’s application of the Pennsylvania Rule.
      After a careful review of the record and consideration of the briefs, we
are not persuaded that the district court erred in finding that the evidence was
insufficient to establish that Crosby was negligent in rendering aid to the
RICKY B. The record supports the district court’s conclusion that Crosby did
not owe a duty to pump water from the RICKY B before towing it. Michael
Donner of Louisiana Marine Operators—the company that operated the
RICKY B—testified that he instructed the crew of the DELTA FORCE to
“absolutely not” attempt to pump water from the RICKY B due to its perilous
condition. Thus, the district court’s finding that Crosby had no duty to pump
water before towing the RICKY B was not erroneous.
      Similarly, we agree that D&B failed to establish by a preponderance of
the evidence that towing the RICKY B at a speed of no more than five knots
contributed to its sinking. Neither of D&B’s experts testified that five knots
was an unsafe speed to tow the RICKY B. Although there was conflicting
evidence on whether towing the vessel at this speed was a cause of the accident,
the district court resolved this dispute in favor of Crosby, and we cannot say
its determination was erroneous.
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                                          No. 14-30888
         Because D&B argues that the ordinary negligence standard applies to
both salvage and towing operations and we have determined that the district
court did not err in finding that Crosby did not act negligently, we need not
address whether the district court properly characterized the arrangement
between D&B and Crosby as salvage or towing. Similarly, because the district
court ruled that Crosby was not liable under ordinary negligence standards,
we need not address the correctness of the district court’s finding that the gross
negligence standard applied to the damage to the RICKY B.
         Finally, D&B argues that the district court improperly applied the
Pennsylvania Rule in this case. The Pennsylvania Rule creates a rebuttable
presumption of causation against an entity involved in a maritime accident, if
that entity is in violation a maritime rule or regulation intended to prevent
that type of accident. 1 However, the district court found no breach of duty by
Crosby. The effect of the Pennsylvania Rule in this case, if applicable, would
have only helped Crosby in establishing comparative negligence on D&B.
Because the court found no fault on Crosby, the Pennsylvania Rule had no
effect on the outcome.
                                                III.
         For the above reasons and the reasons assigned by the district court in
its thorough opinion, we affirm the judgment of the district court.
         AFFIRMED.




         1   See Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472 (5th Cir.
1991).
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