                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS          June 27, 2006
                       FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                       ))))))))))))))))))))))))))               Clerk

                             No. 05-30271

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SYCAMORE MANAGEMENT, LTD.,

               Plaintiff–Appellee,

     v.

UNIDENTIFIED PARTIES

               Defendants,

INTERNATIONAL MARINE TERMINALS PARTNERSHIP,

               Defendant–Appellant.


           Appeal from the United States District Court
               for the Eastern District of Louisiana
                    (USDC No. 2:04-cv-00162-KDE)



Before DeMOSS, BENAVIDES AND PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:*

     Appellee Sycamore Management, Ltd. (“Sycamore”) sued

appellant International Marine Terminals Partnership (“IMT”) for

damages resulting from the collision of Sycamore’s ship, the M/V

GLOBAL SPIRIT I (the “ship”), into several barges in the

Mississippi River.   After conducting a bench trial, the district


     *
       Pursuant to 5TH CIRCUIT 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that this opinion should not be published and is not precedent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 5TH CIRCUIT
RULE 47.5.4.
court ruled for Sycamore.    For the reasons below, we AFFIRM.

                                 I.

     On October 23, 2003, between 2:00 and 2:30 a.m., the ship, a

16,000-ton ocean-going vessel, was proceeding up the Mississippi

near Myrtle Grove, Louisiana.    Around 2:00 a.m., a chain securing

several barges at IMT’s bulk cargo storage and transfer terminal

(“the terminal”) parted, allowing eight barges from the terminal

(“the barges”) to drift out into the river.    The ship’s pilot

reported colliding into some unidentified barges, resulting in

the damage at issue here.    This damage was consistent with

collision with a barge.    There is no affirmative evidence that

any barges other than those unmoored from the terminal were on

the river in the vicinity of the ship.

     Later, marine surveyors for Sycamore and IMT inspected the

barges.   Before Sycamore’s had a chance to inspect, however, the

owner of three of the barges moved them to Kentucky.    Sycamore’s

surveyor examined the five remaining breakaway barges on October

25, 2003, along with three barges IMT presented that were not

part of the breakaway.    On November 4, the expert examined the

three breakaway barges that had been moved to Kentucky.    Based on

the lack of apparent damage to the barges, he concluded there was

a “very remote possibility” one of the eight caused the damage to

the ship.   Sycamore and IMT’s marine surveyors disagreed as to

whether the barges could have caused the damage.

     Sycamore sued for damages, and prevailed in a bench trial

                                  2
before the district court.    Issuing its ruling orally, the court

made a number of factual and legal findings.    Critically for

present purposes, it said the following:

       The Court is thus confronted with two unlikely
       scenarios: (1) whether the GLOBAL SPIRIT I collided
       with an unknown phantom object in the river instead of
       the drifting IMT barges, as IMT contends; or (2) the
       existence of a collision between IMT’s barges and the
       vessel wherein no or very little apparent recent damage
       occurred to any of IMT’s barges. The Court finds that
       although both scenarios are seemingly unlikely, as a
       matter of practicality, the latter is less unlikely
       than the former, and thus probably occurred.

Arguing this remark demonstrates the application of an incorrect

legal standard to an admiralty tort, IMT appeals.

                                 II.

       Our review of admiralty actions tried without a jury is for

clear error as to factual findings and de novo as to questions of

law.    Avondale Indus. v. Int’l Marine Carriers, 15 F.3d 489, 492

(5th Cir. 1994).

       IMT argues that the district court applied the incorrect

legal standard, specifically substituting a “less unlikely”

standard for a more likely than not (i.e., preponderance) one.

In admiralty law, as a general matter, the plaintiff bears the

burden of proving the defendant’s negligence by a preponderance

of the evidence.    Gavagan v. United States, 955 F.2d 1016, 1021

(5th Cir. 1992) (affirming district court’s judgment that leaving

valve taped from inside did not create foreseeable risk of injury

to those attempting to open valve).    IMT claims that the district


                                  3
court’s remark–“The Court finds that although both scenarios are

seemingly unlikely, as a matter of practicality, the latter is

less unlikely than the former, and thus probably

occurred”–demonstrates the application of a standard less than

preponderance, specifically a “less unlikely” one.   We disagree.

     The district court applied the correct standard of proof,

preponderance.   First, in at least two places, its order invokes

the standard directly.1

     Second, the quotation on which IMT relies is not

inconsistent with the application of a preponderance standard.

The district court was in the process of responding to IMT’s

argument that it could not be held liable because its barges were

not damaged.   Recognizing the validity of IMT’s premise that a

maritime accident with a 16,000-ton ship is unlikely not to cause

visible damage to a barge, it rejected the argument based on the

proximity of the barges to the ship, the absence of evidence of

other barges and the fact that Sycamore’s inspection was limited

by removal of three breakaway barges and replacement of them with

three ones that were not involved.   The court recognized it was


     1
       It said “[t]his evidence clearly places the IMT barges and
the GLOBAL SPIRIT I at the same place and time that Captain Short
reported the collision. It is more likely than not that one of
IMT's fleet of drifting barges struck the ship” (emphasis added).
Later, the court reasoned that, “[b]ecause IMT produced no
evidence of any barge other than a rake-end barge that could have
caused the damage, the circumstantial evidence makes it more
likely than not that one of IMT’s rake barges that was drifting
in the river scraped the ship when it passed”(emphasis added).

                                 4
unlikely as a general matter that such a collision would not

cause visible damage, but concluded that the likelihood in this

particular case was that the ship collided with the IMT terminal

barges.   This reading is consistent with its comment that

“although both scenarios are seemingly unlikely, as a matter of

practicality, the latter is less unlikely than the former, and

thus probably occurred.”   IMT confuses a comment about the

general with a finding as to the particular.

     Because the district court applied the proper legal

standard, its judgment is AFFIRMED.




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