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

                                                 FILED
                                                                        September 14, 2009

                                       No. 08-60872                    Charles R. Fulbruge III
                                                                               Clerk

RICHARD CRAVEN

                                                   Plaintiff-Appellee

v.

CASHMAN EQUIPMENT CORPORATION

                                                   Defendant - Cross Claimant -
                                                   Cross Defendant - Appellant -
                                                   Cross-Appellee

v.

OFFSHORE SPECIALTY FABRICATORS INC.

                                                   Cross Defendant - Cross Claimant -
                                                   Appellee - Cross Appellant.




                   Appeals from the United States District Court
                      for the Southern District of Mississippi
                              USDC No. 1:06-CV-545


Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM:*


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-60872

      Appellant Cashman Equipment Corporation ("Cashman") appeals the
judgment in favor of appellee Richard Craven ("Craven") in this maritime
negligence case. Cashman argues that the district court made clearly erroneous
fact findings, erred in apportioning fault, and erroneously rejected limitation of
liability. Cross-Appellant Offshore Specialty Fabricators, Inc. ("OSFI") appeals
the district court's failure to award prejudgment interest on its reimbursement
claim against Cashman. We affirm the district court's judgment but remand for
consideration of OSFI’s entitlement to prejudgment interest.
             FACTUAL AND PROCEDURAL BACKGROUND
      Cashman owned the Conical, a dilapidated dredge littered with debris and
strewn with tears. When the Conical was moored at Cove Fleeting, Cashman
removed her crane, creating a three-foot by three-foot hole in the deck (the
"hole"). Cashman then moved the Conical to the Riverland Fleeting facility on
the Atchafalaya River. OSFI leased a barge from Cashman and was returning
the barge to Riverland Fleeting when the accident occurred.             OSFI was
instructed to place the rented barge in a position that required securing three
barges (including the Conical) and shifting the group along the river. This was
to be done at night.
      Viewing the evidence in the light most favorable to the judgment, Craven,
an OSFI employee, boarded the Conical to prepare it for shifting. After the
Conical and another barge were secured together, Craven's partner was working
to untie the Conical from its moorings. Craven moved to assist his partner,
without a functioning headlight on his safety helmet. On his way, he walked
across an unlit area of the Conical's deck and fell through the hole.
      Craven sued Cashman for maritime negligence and OSFI under the Jones
Act. Prior to trial, Craven and OSFI settled and OSFI filed a cross-claim against
Cashman for reimbursement.        After a bench trial, the district court found
Cashman 85 percent at fault, OSFI 10 percent at fault, and Craven 5 percent at

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fault. In a separate ruling, the district court denied Cashman's petition for
limited liability because the Conical was a "dead vessel," and because Cashman
had knowledge of and privity to the hole. Cashman appeals the distribution of
fault and the limitation of liability rulings. OSFI appeals only the district
court's failure to award prejudgment interest on OSFI's recovery of past
maintenance and cure expenses.
                                DISCUSSION
      The standard of review for a bench trial is well established: Findings of
fact are reviewed for clear error and legal issues are reviewed de novo. In re
Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005). Clear error exists if
(1) the findings are without substantial evidence to support them, (2) the court
misapprehended the effect of the evidence, and (3) the force and effect of the
testimony, considered as a whole, convinces the court that the findings are so
against the preponderance of credible testimony that they do not reflect or
represent the truth and right of the case. Moorhead v. Mitsubishi Aircraft Int'l,
Inc., 828 F.2d 278, 283 (5th Cir. 1987).
A. Distribution of Fault
      Cashman appeals the distribution of fault by challenging the factual
findings that its representatives saw or should have seen the hole into which
Craven fell. The district court found that Levans Pontiff (“Pontiff”) (Cashman's
operations manager at the time), Skip Broussard (“Broussard”) (an equipment
manager),   and    other   unidentified       representatives   (the   "Unidentified
Representatives") saw or should have seen the hole.
      We find no clear error in the district court's findings that Pontiff and
Broussard saw or should have seen the hole. Pontiff testified that he was at
Cove Fleeting after the Conical's crane had been removed. Cashman's own
expert testified that the crane removal caused the hole. It is a permissible view
of the evidence to conclude that the hole existed when Pontiff visited and that

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Pontiff had the opportunity to see the significant hole into which Craven fell.
Testimony by employees of OFGI and Riverland Fleeting shows that Broussard
was on the Conical for several days when the hole existed. It is a permissible
view of the evidence to conclude that Broussard saw or should have seen the
hole.
        Either Pontiff’s or Broussard's knowledge was sufficient to support the
judgment.      Even if the court’s findings of knowledge were clearly wrong,
however, the judgment withstands attack on the un-challenged basis that
Cashman should have known about the hole.
B. Cashman's Motion for Limited Liability
        Cashman also argues that the district court incorrectly denied its motion
for limited liability because it mistakenly categorized the Conical a "dead ship."
We do not reach this point. The record provides sufficient evidence to deny
limitation based on Cashman’s knowledge and privity.
        The owner of a vessel cannot limit his liability if he had knowledge and
privity of the condition that caused the harm. 46 U.S.C. § 30506(e). Privity is
clear; the only issue is whether Cashman knew of the hole. A corporate principal
is generally considered to know what its agents discover concerning those
matters in which the agents have the power to bind the principal. In re Hellenic,
Inc., 252 F.3d 391, 395 (5th Cir. 2001). Deciding whether to impute knowledge
is fact-intensive, and some threshold for imputation is required. Id. The district
court found that two of Cashman's agents, Pontiff and Broussard, had actual
knowledge of the hole in question and imputed that knowledge to Cashman.
        After a careful review of the record, we do not find clear error. In its brief,
Cashman does not challenge whether Pontiff’s or Broussard's actual knowledge
can be properly imputed to Cashman. At oral argument, Cashman made a
cursory challenge as to whether Pontiff or Broussard had sufficient
responsibility to warrant imputing their knowledge to Cashman. This challenge,

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however, does not rise to the level of clear error. Pontiff’s and Broussard's titles
(operations manager and supervisor, respectively) demonstrate a level of
responsibility that supports imputing their knowledge to Cashman. Further, if
neither Pontiff nor Broussard was responsible for the Conical, then Cashman is
liable because Cashman failed to put any agent in charge of the dredge.
C. OSFI's Prejudgment Interest
      OSFI appeals only the district court's failure to award prejudgment
interest on OSFI's recovery from Cashman. OSFI asserts that this was an
oversight by the district court. "[I]n maritime cases the award of prejudgment
interest is the rule, rather than the exception, and the trial court has discretion
to deny prejudgment interest only where peculiar circumstances would make
such an award inequitable." Corpus Christ Oil & Gas Co. v. Zapata Gulf Marine
Corp., 71 F.3d 198, 204 (5th Cir. 1995). We review for clear error the district
court's factual determinations of peculiar circumstances, while we review a
denial of prejudgment interest for abuse of discretion. Id. This court held that
"[i]f the trial court does not make any mention of prejudgment interest in its
judgment or its findings of fact and conclusions of law, then it is . . . difficult to
infer that the trial court has found peculiar circumstances and decided to
exercise [its] discretion." Noritake Co. v. M/V Hellenic Champion, 627 F.2d 721,
730 (5th Cir. 1980).
      Although the district court made no findings of peculiar circumstances
that would warrant denying prejudgment interest to OSFI, it did award
prejudgment interest to Craven. Whether the district court's failure to award
OSFI interest was merely a clerical oversight or a conscious decision, we cannot
infer. The better course is to remand for the district court to consider this in the
first instance. See Jauch v. Nautical Services, Inc., 470 F.3d 207, 215 (5th Cir.
2006).



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                        No. 08-60872

    For these reasons, the judgment is AFFIRMED IN PART and
REMANDED IN PART.




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