     Case: 14-41388      Document: 00513283972         Page: 1    Date Filed: 11/24/2015




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

                                                                                  FILED
                                    No. 14-41388                          November 24, 2015
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
JAMES MORRISON; CM CAPITAL, L.P.,

              Plaintiffs - Appellants

v.

BRIAN FETTIG; VIC CRANFILL; LISA CRANFILL; KATHRYN JESTER;
TOM D. JESTER; CONTINENTAL CASUALTY COMPANY; LAKE
TEXOMA HIGHPORT, L.L.C., doing business as Highport Marina & Resort;
FEDERAL INSURANCE COMPANY; ASSURANT SPECIALTY PROPERTY,

              Defendants - Appellees



                  Appeals from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CV-411


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:*
       James Chad Morrison and CM Capital, L.P. (collectively “Morrison”)
appeal a magistrate judge’s order and judgment 1 denying Morrison’s claim
under 46 U.S.C. § 30505 seeking exoneration or limitation of liability related


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1The parties consented to having a magistrate judge conduct all proceedings in
accordance with 28 U.S.C. § 636(c).
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                                      No. 14-41388

to a fire on Morrison’s boat.     For the reasons that follow, we AFFIRM the
judgment in all respects.
                                  I. Background
      On January 2, 2011, a fire broke out at a dock in the Highport Marina &
Resort in Pottsboro, Texas that destroyed and damaged several boats as well
as areas of the dock. Michael Wright, a courtesy patrol officer employed by
Highport Marina, first noticed the fire shortly after 2:00 a.m. while on patrol.
Wright called 911, approached the dock, and noticed that the only boat on fire
at the time was a vessel owned by Morrison (the “Morrison boat”). Wright
attempted to fight the fire with a fire extinguisher, but it spread onto the
wooden area of the dock that separated the Morrison boat from the boat moored
in the next slip over, owned by Brian Fettig (the “Fettig boat”).          The fire
eventually reached the Fettig boat.
      The fire department arrived on the scene at around 2:21 a.m. One of the
first responders was Captain Timothy Thomas, who stated that when he
arrived, the Morrison boat was fully engulfed in flames while only about a
quarter of the Fettig boat was on fire. The fire was eventually contained, but
both the Morrison boat and the Fettig boat sustained major damage. Two other
boats moored nearby—one owned by Lisa and Vic Cranfill and the other owned
by Kathryn and Tom Jester—were also damaged.                The area of the dock
between the Morrison and Fettig boats was burned, as was the tin roof covering
the dock above the boats.
      Morrison filed a complaint in the district court of the Eastern District of
Texas seeking exoneration or limitation of liability under section 30505 of the
Limitation of Liability Act. Upon notice of the complaint, Claimants 2 who



      2 The Claimants are Brian Fettig and Continental Casualty Company; Kathryn and
Tom Jester and Assurant Specialty Property; Lake Texoma Highport, L.L.C. and Federal
Insurance Company; and Lisa and Victor Cranfill.
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suffered property damage as a result of the fire answered and asserted claims.
Before trial, all parties stipulated to the dollar amounts that each party
suffered as a result of the fire and agreed that § 30505 governed the
proceedings.
      After a five-day bench trial, the magistrate judge found that the fire
originated on the Morrison boat, crediting lay and expert testimony presented
by Claimants.      The magistrate judge also determined that Morrison’s
negligence was the proximate cause of the fire.          He found Morrison was
negligent in leaving on and unattended a space heater that was plugged into
the damaged extension cord, and that Morrison used the space heater as a
short-hand rendition of winterizing the boat to prevent the engine from
freezing. Upon determining that Morrison’s negligence caused the fire, the
magistrate judge held that Morrison failed to meet his burden to show he
lacked privity or knowledge of the negligent act as required to limit his liability
under § 30505. He found that Morrison contributed to the damage of the
extension cord that caused the fire, and that Morrison likely knew of the space
heater’s use on his boat. As a result, the magistrate judge rendered judgment
and awarded the previously stipulated damages to the Claimants. Morrison
timely appealed.
                             II. Standard of Review
      As with any bench trial, we review findings of fact for clear error and
issues of law de novo. Mid-South Towing Co. v. Exmar Lux (In re Mid-South
Towing), 418 F.3d 526, 531 (5th Cir. 2005). “Questions of fault, including
determinations of negligence and causation, are factual issues, and may not be
set aside on appeal unless clearly erroneous.” In re Omega Protein, Inc., 548
F.3d 361, 367 (5th Cir. 2008). We also review a denial of limited liability under
§ 30505 for clear error. Id. at 368.     If the trier of fact’s determination of the
evidence is plausible in light of the record, we may not reverse the judgment

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despite our conviction that, had we been sitting as the trier of the fact, we
would have weighed the evidence differently. See Anderson v. Bessemer City,
470 U.S. 564, 573–74 (1985). “Where there are two permissible views of the
evidence, the factfinder’s choice between them cannot be clearly erroneous.”
Id. at 574. Further, we give even greater deference to findings based on the
credibility of witnesses. Tokio Marine & Fire Ins. Co. v. FLORA MV, 235 F.3d
963, 970 (5th Cir. 2001).
                                III. Discussion
      Under the Limitation of Liability Act, a vessel owner may limit his
liability for maritime property damage to “the value of the vessel and pending
freight.” 46 U.S.C. § 30505(a). However, if opposing claimants can show that
the vessel owner’s negligence or the vessel’s unseaworthiness proximately
caused the damage, the burden shifts to the vessel owner to prove that he had
no “privity or knowledge of the unseaworthy conditions or negligent acts.”
Trico Marine Assets Inc. v. Diamond B Marine Servs. Inc., 332 F.3d 779, 789
(5th Cir. 2003). While such claimants must show negligence and causation by
a preponderance of the evidence, in fire cases, these elements are often
established by circumstantial evidence due to the fire’s destruction of physical
evidence. See Marquette Transp. Co. v. La. Mach. Co., 367 F.3d 398, 402 (5th
Cir. 2004).
      A. Causation
      Morrison maintains that the magistrate judge clearly erred in finding
that the damaged extension cord on Morrison’s boat caused the fire. Morrison
relies on Rooney v. Nuta, 267 F.2d 142, 147–48 (5th Cir. 1959), in which we
reversed a district court’s judgment denying the limitation of liability to a
yacht owner when his yacht caught on fire and damaged a yacht basin and
surrounding vessels. In Rooney, we judged an expert’s testimony related to
fire causation insufficient because it was based on “speculation or conjecture.”

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Id. at 147. Morrison also points to C&M Air Cooled Engine v. Cub Cadet LLC,
348 F. App’x 968, 969 (5th Cir. 2009), in which we affirmed the district court’s
grant of summary judgment in favor of defendants in a products liability suit.
In C&M, we held that a fire marshal’s opinion that a fire resulted from an
unspecified electrical malfunction in a lawnmower was insufficient to establish
fire causation because he had repeatedly stated in his deposition that he could
not determine the cause of the fire. Id at 969. Further, an electrical engineer
who examined the mower’s electrical system stated there was no evidence of
an electrical cause of the fire. Id.
       Morrison’s reliance on these cases is unavailing. 3                  Here, Wright
consistently stated that only the Morrison boat was on fire when he arrived on
the scene. The magistrate judge credited the testimony of experts who stated,
based upon the evidence, that the probable cause of the fire was the damaged
extension cord on the Morrison boat, and other eyewitness testimony and
physical evidence further corroborated this expert testimony. While the full
remains of the extension cord precluded the experts from definitively
determining it caused the fire, fire causation often must be established through
circumstantial evidence due to the fire’s destruction of physical evidence. See
Marquette Transp. Co., 367 F.3d at 402. The magistrate judge’s determination
about the fire’s cause is plausible in the light of the record as a whole, so we
must conclude that the magistrate judge did not clearly err in determining that
the damaged extension cord on Morrison’s boat caused the fire. See Anderson,
470 U.S. at 573–74.




       3   We conclude that the evidence (crediting the magistrate judge’s credibility
determinations) was not in “equipoise,” and, therefore, we need not address the question of
whether our decision in United States v. Vargas-Ocampo, 747 F.3d 299, 301–02 (5th Cir.),
cert. denied, 135 S. Ct. 170 (2014), abandoning the “equipoise rule” in criminal cases applies
to civil cases.
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        B. Negligence
        Morrison also contends that the magistrate judge clearly erred in finding
that Morrison was negligent in leaving the space heater on, unattended, and
plugged into a damaged extension cord. The magistrate judge concluded that
Morrison used the space heater as a short-hand rendition at winterizing his
boat, relying on evidence about Morrison’s winterizing of his other boats and
expert evidence from an electrical engineer. The magistrate judge also found
that Morrison’s testimony relating to his prior use of the space heater was not
credible; we give great deference to findings based on the credibility of
witnesses. See Tokio Marine, 235 F.3d at 970. The magistrate judge did not
clearly err in determining that Morrison was negligent in leaving a space
heater connected to a damaged extension cord unattended on the Morrison
boat.
        C. Privity or knowledge
        Morrison argues that the magistrate judge clearly erred in concluding
that Morrison had failed to meet his burden to show that he lacked any privity
or knowledge of the negligence that caused the fire. Whether a boat owner had
privity or knowledge of a negligent act turns on the facts of each individual
case. Hellenic Inc. v. Bridgeline Gas Distrib. LLC (In re Hellenic), 252 F.3d
391, 395 (5th Cir. 2001).      Having privity or knowledge of a negligent act
“implies some sort of complicity in the fault that caused the accident.” Brister
v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991) (citation omitted).       The
evidence presented by Morrison to show that he lacked any knowledge or
privity was limited to his own testimony that he had never used the space
heater and had never seen the extension cord. The magistrate judge found
Morrison’s explanation was not credible based on Morrison’s prior inconsistent
statements. As a result, the magistrate judge held that Morrison failed to meet
his burden to show that he was not complicit in the fault that caused the

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accident. 4 See Brister, 946 F.2d at 355. A review of the record indicates that
this was a plausible conclusion, and thus not clearly erroneous. See Anderson,
470 U.S. at 573–74.
                                     IV. Conclusion
       The magistrate judge did not clearly err in holding that Morrison’s
negligence caused the fire and that Morrison failed to meet his burden to show
that he lacked privity or knowledge of this negligence.                 The judgment is
AFFIRMED.




       4 Morrison maintains that the magistrate judge clearly erred in concluding that
Morrison was complicit in the negligence based in part on a finding that he personally abused
the extension cord. Morrison argues that this finding was based on inadmissible double
hearsay relayed by the origin and cause expert. We need not determine whether the
magistrate judge erred in admitting this testimony. The burden rested with Morrison to
show he was not complicit in the negligent act, and the magistrate judge did not clearly err
in concluding that Morrison failed to meet this burden. See Brister, 946 F.2d at 355.
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