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

                                                 FILED
                                                                        September 29, 2009
                                     No. 08-31194
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

BUTTERFLY TRANSPORTATION CORP; SAMOS STEAMSHIP CO, S.A.,

                                                   Plaintiffs-Appellants

v.

BERTUCCI INDUSTRIAL SERVICES LLC,

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:04-CV-3533


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Butterfly Transportation Corporation and Samos Steamship Company
(“the Owners”) owned the vessel M.V. Maya, and alleged that Bertucci Industrial
Services (“Bertucci”) failed to fulfill a contract to clean the holds of the Maya,
thereby damaging the Owners. After Bertucci prevailed on summary judgment,
the Owners successfully appealed and had the case remanded to the district
court. The district court’s bench trial resolved in favor in Bertucci, and the
Owners now appeal again. We affirm.

       *
         Pursuant to Fifth 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
                                  No. 08-31194



             I. FACTUAL AND PROCEDURAL BACKGROUND
      The parties do not dispute this case’s material facts, which the prior
opinion details in full. Butterfly Transp. Corp. v. Bertucci Indus. Servs., 243 F.
App’x 16 (5th Cir. 2007) (unpublished). The dispute continues to revolve around
Bertucci’s bid—“We offer a no cure no pay price of $145,000.00 to obtain passes
for loading for USDA and NCB. We estimate the project will require 5 to 6 days
for cleaning, but do not guarantee the number of days. This rate includes a
crane barge to place the man-lifts in each cargo hold as well as the gear and
chemicals required during mobilization.”—and the Owners’ “Confirmation of
Order”—“[W]e hereby confirm our acceptance of Bertucci . . . to carry out
cleaning and preparing all ship’s cargo holds (8 cargo holds) for grain loading.
Work to commence immediately and to terminate with issuing NCB and USDA
holds acceptance certificate for loading grains.” After the district court granted
Bertucci’s motion for summary judgment, the Owners appealed, and a panel of
this Court reversed the district court’s order and remanded the case to the
district court for determination of the contractual intent of the parties, and for
consideration of the implied warranty claim. Id. The district court then held a
bench trial, concluded that Bertucci was not liable to the Owners for damages,
and entered a final judgment from which the Owners now appeal.
                               II. DISCUSSION
A. Intent of the Parties
      The Owners first assert that the district court erred in ruling that the
parties did not intend for Bertucci to remove all residues of prior cargoes. The
district court concluded that the parties intended to obligate Bertucci to remove


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the amount of residue necessary to obtain the requisite operating certificates.
The Owners contend that Bertucci had an obligation to remove all cargo residues
from the holds. We review the findings of fact from a bench trial for clear error,
and will “reverse only if we have a definite and firm conviction that a mistake
has been committed.” Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th
Cir. 2000).
      To support their assertion, the Owners rely on the testimony of Captain
George Maroulis, who testified that the intended meaning of the Confirmation
of Order “was not only to get the certificates issued, but to clean the holds up to
the grain standards.” He further explained,

      We believe that Bertucci . . . understood what we meant when
      saying that we were in need of USDA certificate. What we meant
      was to clean the holds, all of the holds from top to bottom, to a
      certain extent, to the level that they would be appropriate for grain
      loading with no cargo damage.

In contrast, Captain Alexander Dublennykh testified that once the USDA and
NCB issued the certificates approving the holds for grain loading, neither the
ship’s crew nor Bertucci would be obligated to conduct further cleaning on any
of the holds.   Captain Dublennykh also testified that he was not going to
double-check the cleanliness of the Maya’s cargo holds after he received the
certificates approving the holds for grain loading.      Captain Elias Katsaros
confirmed that Bertucci’s work would end once the USDA and NCB issued their
certificates, and he also stated, “When the cleaning firm gets the passes from
[the] USDA and NCB, that’s the time when always their services are
terminated.” Even though the testimony of Captain Maroulis may conflict with
the testimony of Captain Dublennykh and Captain Katsaros, “[w]e cannot


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second guess the district court’s decision to believe one witness’[s] testimony over
another’s or to discount a witness’[s] testimony.” Moreover, Bertucci’s work
under the contract was “to commence immediately and to terminate with issuing
NCB and USDA holds acceptance certificate for loading grains. . . . with top
priority to reduce delay for this cleaning operation.” In light of the evidence
favoring Bertucci’s interpretation, we are not convinced that the district court
committed any clear error when it rejected the Owners’ position.
B. Implied Warranty of Workmanlike Performance
      The Owners initially claim that the district construed the implied
warranty of workmanlike performance erroneously, emphasizing that more than
mere reasonable care is required.         We review the district court’s legal
determinations de novo. See Canal Barge Co., 220 F.3d at 375. Even though we
have questioned the propriety of employing the implied warranty of
workm anlike     perform ance     as   the   model     for   indem nification    in
non-personal-injury contexts, see Rockwell Int’l Corp. v. M/V Incotrans Spirit,
998 F.2d 316, 319 (5th Cir. 1993); Bosnor, S.A. DE C.V. v. Tug L.A. Barrios, 796
F.2d 776, 785–86 (5th Cir. 1986), we need not address that question here
because, assuming arguendo that the warranty should apply, we find no clear
error in the district court’s holding that Bertucci failed to satisfy the warranty’s
elements.
      To recover from a contractor for breach of an implied warranty of
workmanlike performance, a shipowner must prove that the contractor breached
the warranty, and that the breach proximately caused the injury. Parfait v.
Jahncke Serv., Inc., 484 F.2d 296, 302 (5th Cir. 1973). More specifically, the
essence of a contractor’s obligation is the duty to perform the contract’s


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obligations “properly and safely.”          Parfait, 484 F.2d at 301 (quoting Ryan
Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 133 (1956));
Garner v. Cities Serv. Tankers Corp., 456 F.2d 476, 481 (5th Cir. 1972). In
particular, Ryan concluded a party could not breach the duty if it performed the
“essence” or “inescapable elements” of a contract. Ryan Stevedoring Co., 350
U.S. at 133. Thus, Bertucci was obligated to properly perform “the essence” or
“inescapable elements” of its contract with the Owners, which in this case
involved cleaning the holds enough to obtain the necessary certificates. The
district court considered both a general standard of reasonable care and the
contract’s specific obligations when it considered how well Bertucci had cleaned
the holds and whether Bertucci removed enough residue to obtain the necessary
certificates.1 Accordingly, the Owners’ argument regarding the district court’s
failure to apply the appropriate legal standard for the implied warranty fails.
       The Owners next contend the district court erred in finding that Bertucci
fulfilled the warranty, an issue that we review for clear error by giving “due
regard” to the district court’s assessment of witnesses’ credibility, Canal Barge
Co., 220 F.3d at 375 (quoting Fed. R. Civ. P. 52(a)). The district court found
credible the testimony of Bertucci’s lead supervisor, Lawrence Murphy,2 who had

       1
         The Owners fail to explain how or if the “reasonable care” standard differs from our
standard requiring proper performance under a contract. Specifically, the district court stated
that an implied warranty of workmanlike performance means “performing work properly
under [the] contract.” The district court also stated that under the implied warranty of
workmanlike performance Bertucci owed the Owners “a duty of reasonable care in performing
any services,” and the court concluded that Bertucci performed its contractual duties “with
sufficient amount of care.” These statements show that the district court defined the Implied
warranty of workmanlike performance as performing contractual duties “properly” and with
“reasonable care.”
       2
        We find unpersuasive the Owners’ assertion that the district court deemed Murphy’s
testimony credible “in an obvious attempt to insulate its findings from appellate review.” See

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been involved personally in the ship cleaning business since 1963. Murphy
testified to the equipment, materials, labor, and cleaning operations used in
preparing the Maya’s cargo holds for inspection; testified that he and his crew
inspected and cleaned “every inch” of all the Maya’s cargo holds, including hold
number two, the only one of the eight cargo holds in which damaged cargo was
found; testified that the captain, chief mate, or a representative of the Maya was
present with him when evaluating a cargo hold’s condition after cleaning; and
described the testing and cleaning operations used on an area in which he
doubted the area’s cleanliness.         Based on this evidence, the district court
concluded that Bertucci cleaned the holds “with sufficient amount of care.”
       Finally, after determining that the parties intended for Bertucci to remove
enough residue to obtain the necessary certificates, the district court considered
the issuance of USDA and NCB certificates as evidence that Bertucci satisfied
the warranty. The Owners argue that the two USDA surveyors could not have
performed an adequate inspection of the eight holds in one hour, and that “there
was no direct evidence of what the inspectors actually did or did not do.”
However, the Owners’ own witness, Captain Maroulis, testified he had never
seen the USDA issue a certificate for cargo hold cleanliness where the USDA
inspectors did not inspect the entire hold. Likewise, Captain Katsaros testified
that USDA and NCB inspectors do not issue certificates certifying cargo holds
as suitable for loading unless cargo hold preparation is 100 percent complete.
In light of this evidence, we are not convinced that the district court clearly erred
in relying on the issuance of USDA and NCB certificates in its assessment of the
warranty, and are not convinced that the district court was clearly erroneous in


Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985).

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finding that Bertucci satisfied the implied warranty of workmanlike
performance.
                              III. CONCLUSION
     For the foregoing reasons, the district court’s judgment is AFFIRMED.




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