                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                     REVISED AUGUST 9, 2005
                                                              July 25, 2005
                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit             Charles R. Fulbruge III
                                                                Clerk


                          No. 04-30064



In Re: In the Matter of: MID-SOUTH TOWING CO., as Owner and
Operator of M/V Diane Oak, Praying for Exoneration from and/or
Limitation of Liability

              MID-SOUTH TOWING COMPANY, Etc.; ET AL

                                                       Petitioners,

                      DOW CHEMICAL COMPANY

                                                             Claimant
                    -------------------------

TECO BARGE LINE, INC., Successor in Interest to Mid-South Towing
                             Company

                                             Plaintiff – Appellant,

                             VERSUS

                        EXMAR LUX; ET AL

                                                        Defendants,

      BONA SHIPHOLDING; WEST OF ENGLAND SHIP OWNERS MUTUAL
     INSURANCE ASSOCIATION, (LUXEMBOURG); STANDARD STEAMSHIP
     OWNERS’ PROTECTION & INDEMNITY ASSOCIATION BERMUDA LTD;
    TEEKAY SHIPPING CANADA LTD; AMERICAN RIVER TRANSPORTATION
              CO; EXMAR LUX SA; TECTO LUXENBOURG SA

                                              Defendants-Appellees;


          Appeal from the United States District Court
              For the Eastern District of Louisiana



                               -1-
Before SMITH, DENNIS, and PRADO, Circuit Judges.

DENNIS, Circuit Judge:

      This case stems from an allision1 between M/V DIANE OAK, a

vessel now owned and operated by Teco Barge Line, Inc., and a

wharf owned by Dow Chemical Company (“Dow”).       The allision caused

severe damage to the wharf.     Consequently, M/V DIANE OAK2 filed a

petition for limitation of liability; Dow countered by filing a

claim in the limitation proceeding seeking recovery of the

damages sustained from the allision.      Thereafter, M/V DIANE OAK

brought suit in rem against three other vessels on the river that

morning and in personam against related interests, alleging that

those vessels had so embarrassed her navigation as to be

contributory and proximate causes of the allision and thus

deserving of some liability for the damages incurred by Dow.

      After a bench trial solely on the question of liability, the

district court found that the M/V DIANE OAK was solely at fault

for the allision.    M/V DIANE OAK timely appeals contending that

the district court:    (1) erroneously applied a presumption of

fault against her; (2) erroneously relied on the “last clear

chance” doctrine to excuse negligence on the part of the other


  1
     “An allision is a collision between a moving vessel and a
stationary object.” THOMAS J. SCHOENBAUM, ADMIRALTY & MARITIME LAW, § 14-
2 (4th ed. 2004).
  2
     For the sake of clarity, we, like the parties, generally refer
to each of the vessels and their respective interests simply by
referring to the vessel itself.

                                  -2-
vessels; and (3) failed to properly apply controlling principles

of proximate causation and comparative fault amongst all of the

vessels.   Finding no reversible error, we affirm.

I.   BACKGROUND

     On the morning of March 5, 2001, four vessels traveling on the

Mississippi River converged on 35 Mile Point.        Two of those

vessels, the M/V DIANE OAK and the M/V GOTLAND SPIRIT were headed

south, down the river.   The other two, the M/V GINNY STONE and the

DONAU were headed north, up the river.   It is undisputed that all

four vessels safely passed 35 Mile Point.    It is also undisputed

that the M/V DIANE OAK allided with the Dow wharf two miles and

nearly sixteen minutes downriver from 35 Mile Point.

     In this case, the district court determined that as the lead

southbound vessel, M/V DIANE OAK was the privileged vessel and thus

had the right-of-way over each of the other three vessels. Second,

the court determined that with this privilege, the M/V DIANE OAK

was under a concomitant obligation to give instructions to the

other vessels as to the manner and place of meeting and passing.

See Inland Navigation Rule 9(a)(ii), 33 U.S.C. § 2009(a) (“A power-

driven vessel operating in narrow channels . . . and proceeding

down-bound with a following current shall have the right-of-way

over an up-bound vessel, shall propose the manner and place of

proper passage, and shall initiate the maneuvering signals . . . as

appropriate.”) (emphasis added). Citing M/V DIANE OAK’s failure to


                                -3-
“adequately direct the traffic in this area that morning” and to

“give adequate and timely instructions on the place and manner of

passing,” the district court identified M/V DIANE OAK’s failure to

adhere to her duties as the lead southbound vessel as “the primary

problem” in this allision.

     Specifically, the district court faulted M/V DIANE OAK for

allowing M/V GOTLAND SPIRIT to overtake her so close to the Point

with both vessels traveling at high speeds.      According to the

court, this created a situation where M/V GOTLAND SPIRIT became the

privileged vessel and allowed M/V GOTLAND SPIRIT to keep M/V GINNY

STONE on the Point (for a port to port passing, instead of the

starboard passing M/V DIANE OAK arranged with M/V GINNY STONE), as

well as allowing GOTLAND SPIRIT to direct traffic and permit DONAU

to come up to the Point.     Similarly, the court also faulted M/V

DIANE OAK for miscalculating the speed and location of the various

vessels, an error that caused all four vessels to come up on the

Point around the same time and that, according to the district

court, could have been avoided had M/V DIANE OAK held M/V GINNY

STONE below the Point or communicated earlier with M/V DONAU and

held her up below the Point.

     The district court then turned its attention to the conduct of

the other vessels, stating that their liability, if any, “boils

down to two relatively simple factual issues to be resolved.”   The

first being, “whether or not any neglect or fault that did occur on

the part of the GINNY STONE and/or NOBRA 56 [M/V GOTLAND SPIRIT]

                                -4-
had anything to do with proximately causing the allision that later

occurred.”   The district court answered this first question in the

negative, and in so doing relied on the testimony of M/V DIANE

OAK’s pilot, Captain Couey, in which he admitted—after being

impeached with his prior deposition testimony—that he had “all the

chance in the world” to successfully navigate “35 Mile Point but

for the actions of DONAU.”   Thus the district court held that:

     in all probability, regardless of what had gone on up
     until that the action of the DONAU coming upriver, the
     upriver tanker, [Captain Couey] would have safely
     navigated the Point despite the fact that the GINNY STONE
     was right on the Point and despite the fact that NOBRA 56
     [M/V GOTLAND SPIRIT] had come downriver at what the DIANE
     OAK claims was too fast a speed and passed her too close
     to the Point. That passing had occurred and it’s obvious
     to me that the DIANE OAK at that point had plenty of room
     to clear that Point.

In essence, then, the court found that even assuming arguendo that

both M/V GOTLAND SPIRIT and M/V GINNY STONE were in some respects

at fault, that fault would only be fault in the abstract to the

extent it was neither a contributory nor proximate cause of the

subsequent allision.

     The second question for the district court was whether the

northbound M/V DONAU embarrassed the navigation of M/V DIANE OAK,

with its fault thereby being a contributory and proximate cause of

the subsequent allision with Dow’s wharf.       In answering this

question, the district court examined the evidence supporting

Captain Couey’s claim that, as he was trying to navigate around 35

Mile Point, the northbound M/V DONAU passing starboard to starboard

                                -5-
had initially moved to the west bank to allow her room to pass, but

then for some unexplained reason suddenly veered back directly at

the stern of DIANE OAK’s tow.

      The district court explicitly rejected Couey’s testimony on

this score:

      I just find not credible that testimony because it seems
      to me that, first of all, if the DONAU and the DIANE OAK
      had passed within 20 feet of each otherSSthat’s almost
      “reach out and touch” distance between these two
      vesselsSSthen there would have been a lot of . . .
      excited utterances . . ., a lot of noise, a lot of
      racket, or screaming over those VHF radios. There would
      have been bells and whistles and emergency signals. You
      would have expected there would be something I didn’t see
      and I didn’t hear that makes me believe the passing was
      not nearly that close.

The court thus concluded, “So I think the preponderance of the

credible evidence is that the passing, although perhaps closer than

would be an ideal situation, was certainly not 20 feet and was

probably more like somewhere between 125 and 150 feet away. . .

.[and] the actions of the DONAU/NOBRA 97 did not embarrass the

navigation of the DIANE OAK or her tow and was not a proximate

cause of the subsequent allision.”    Having thus resolved the two

factual disputes, the court concluded that “the sole fault in the

allision was the negligence of the DIANE OAK.”       M/V DIANE OAK

timely appeals.

II.   ANALYSIS

      “The standard of review for a bench trial is well established:

findings of fact are reviewed for clear error and legal issues are



                                -6-
reviewed de novo.”3         Furthermore, this court reviews a district

court’s findings of fact regarding the respective fault, if any, of

each of the four vessels and whether they were contributory and

proximate causes of the allision for clear error.4

      The   M/V   DIANE    OAK   challenges      both    the    district    court’s

findings of fact and conclusions of law on appeal.                  Specifically,

M/V DIANE OAK contends that the district court: (1) erroneously

applied     the   Oregon    presumption     of     fault       against    her;    (2)

erroneously relied on the “last clear chance” doctrine to excuse

negligence on the part of the other vessels; and (3) failed to

properly apply controlling principles of proximate causation and

comparative fault.        We address each contention in turn.

      A.    The Oregon

      M/V   DIANE   OAK’s    first   contention     on     appeal    is    that    the

district    court   erroneously      applied     the    presumption       of     fault

announced in The Oregon, 158 U.S. 186 (1895), against her and thus

in favor of the three other vessels.5            Applying this presumption of


  3
     Kona Tech. Corp. v. S. Pac. Transp. Co., 225 F.3d 595, 601
(5th Cir. 2000).
  4
     See FED. R. CIV. P. 52(a); Avondale Indus. v. Int’l Marine
Carriers, Inc., 15 F.3d 489, 492 (5th Cir. 1994) (“In an admiralty
action tried by a court without a jury, the factual findings of the
District Court are binding unless clearly erroneous. Questions
concerning the existence of negligence and causation are treated as
factual issues subject to the clearly erroneous standard.”).
  5
     It is important to distinguish at the outset between the
presumption of fault announced in The Oregon and the presumption of
causation announced in The Pennsylvania; the latter case holding

                                      -7-
fault was error, she contends, because the Oregon rule should apply

only in favor of the damaged stationary object and therefore is

inapposite given the facts at hand: where liability is uncontested

as between the damaged stationary object and the alliding vessel

and the only question (beyond the extent of damages sustained by

the stationary object) is liability for the allision as between the

navigating vessels.

     We   conclude,   however,    that   we   need   not   decide   the

applicability vel non of the Oregon rule in order to resolve this

appeal.   “Evidentiary presumptions . . . are designed to fill a

factual vacuum.    Once evidence is presented .      . . presumptions

become superfluous because the parties have introduced evidence to




that a vessel in violation of a statutory rule designed to prevent
collisions bears the burden of showing “not merely that her fault
might not have been one of the causes, or that is probably was not,
but that it could not have been.” The Pennsylvania, 86 U.S. 125
(1874). Compare SCHOENBAUM, ADMIRALTY & MARITIME LAW , § 14-3, at 104-05
(classifying the rule of The Oregon as a “presumption of fault”
akin to the common law doctrine of res ipsa loquitor “primarily
applicable in allision cases,” which “creat[es] a rebuttable
presumption of negligence on the part of a party who is in
exclusive control of an instrumentality with regard to a mishap
that ordinarily does not occur in the absence of negligence”)
(emphasis added), with id. at § 14-3, at 101 (classifying the rule
of The Pennsylvania as not establishing a rule of fault but as
being “limited to causation”) (emphasis added), and DAVID W. ROBERTSON
ET AL, ADMIRALTY & MARITIME LAW IN THE UNITED STATES 384 (2d ed. 2001)
(describing the rule of The Pennsylvania as creating “a strong
presumption that the statutory violation was a cause in fact of the
accident,” and distinguishing this rule from the common-law concept
of negligence per se famously applied in Martin v. Herzog, 126 N.E.
814 (N.Y. 1920) (Cardozo, J.)).

                                  -8-
dispel the mysteries that gave rise to the presumptions.”6

      In this case, the outcome-determinative questions in this

allision case concern:   (1) breach of the duty of care on the part

of the four vessels, and (2) causation, with causation having sub-

elements of:   (a) cause in fact and (b) proximate or legal cause.

And on all of these scores, the district court considered all of

the evidence presented at trial and made specific findings.             So

even though the court may have framed its breach analysis through

the lens of the Oregon rule, the court nevertheless made findings

of duty, breach, and causation regarding M/V DIANE OAK and each of

the other three vessels independent of that presumption that

account for the result it reached.          These findings, therefore,

properly cabined   the   scope   of   the   Oregon   rule,   which   speaks

explicitly only to a presumed breach on the part of the alliding

vessel,7 and is not a presumption regarding either the question of

causation (either cause in fact or legal cause) or the percentages




  6
      See Rodi Yachts, Inc., 984 F.2d at 887; see also GRIFFIN, THE
AMERICAN LAW OF COLLISION, § 25, at 43 (“Such ‘presumptions’ are, of
course, not rules of law or even of evidence. They merely express
inferences of fact, based on experience and probabilities, and
their only effect is to put upon the vessel subject to the
presumption the burden of going forward with evidence to show that,
in the particular case, the inference is unwarranted.”); id. (“The
exact scope and operation of these prima facie presumptions are to
cast upon the party against whom they operate, the duty of going
forward in argument or evidence, on the particular point to which
they relate.”).
  7
      The Oregon, 158 U.S. at 197-98.

                                  -9-
of fault assigned parties adjudged negligent.8

      Because the district court did not erroneously apply the

Oregon presumption here, the only available basis for this appeal

becomes the propriety of the district court’s findings regarding

the respective fault of each of the four vessels and whether any or

all of that fault was a contributory and proximate cause of the

allision.9     Evaluating   the   propriety   of   the   district   court’s

findings requires this court to consider M/V DIANE OAK’s second

contention on appeal, viz., that the district court’s proximate

cause analysis with regard to the M/V GOTLAND SPIRIT and the M/V

GINNY STONE amounted to an application of the last clear chance

doctrine.

      B.     Last Clear Chance

      M/V DIANE OAK contends that the district court erroneously

excused acknowledged negligent conduct on the part of each vessel

“by essentially invoking, [the] discredited last clear chance

doctrine,” in finding that:

      [I]n all probability, regardless of what had gone on up
      until that the action of the DONAU coming upriver, the
      upriver tanker, [M/V DIANE OAK] would have safely
      navigated the Point despite the fact that the GINNY STONE
      was right on the Point and despite the fact that NOBRA 56
      had come downriver at what the DIANE OAK claims was too
      fast a speed and passed her too close to the Point. That
      passing had occurred and it’s obvious to me that the


  8
      Id.; see also SCHOENBAUM, ADMIRALTY & MARITIME LAW , § 14-3, at 104-
05.
  9
      See FED. R. CIV. P. 52(a); Avondale Indus., 15 F.3d at 492.

                                   -10-
       DIANE OAK at that point had plenty of room to clear that
       Point.

       While we agree with the M/V DIANE OAK that the last clear

chance doctrine is obsolete in light of admiralty’s comparative

fault regime, we do not share M/V DIANE OAK’s view of the rationale

employed by the district court in assessing liability for the

damage to Dow’s wharf.          Specifically, we do not read the record of

the district court’s reasoning as indicating that the district

court found all of the vessels at fault in causing the accident or

that the court excused certain fault on the part of M/V GOTLAND

SPIRIT and M/V GINNY STONE because that fault was slight relative

to the fault the court attributed to M/V DIANE OAK.                    Instead, it

appears   clear     to   us    that     the   district   court   found    that   any

negligent conduct of these two vessels, assuming that either vessel

was    negligent,    was      not   a   proximate   cause   of   the     subsequent

allision.    Thus the district court applied a valid rule of legal

causation, not a rule of major or minor fault as the traditional

(and now discredited) last clear chance cases did.10


  10
     See Crawford v. Indian Towing Co., 240 F.2d 308 (5th Cir.
1957) (“Where, as here, an act is negligent, but is not the
proximate cause of the injury, it is merely a condition. As such
it is not the basis of liability.”); Am. River Trans. Co. v. Kavo
Kaliakra SS, 148 F.3d 446, 450 (5th Cir. 1998) (“To be sure, the
presence of the barges in this case was a but-for cause of the
allision . . . .     But in admiralty, the ‘fault which produces
liability must be a contributory and proximate cause of the
collision, and not merely fault in the abstract.’”) (quoting Inter-
Cities Navig. Corp. v. United States, 608 F.2d 1079, 1081 (5th Cir.
1979)); see also In re Kinsman Transit Co., 338 F.2d 708 (1964) (2d
Cir. 1965) (distinguishing two lines of cases where courts employed

                                          -11-
      In sum, we conclude that the district court’s findings that

neither the GOTLAND SPIRIT nor the GINNY STONE were at fault for

the subsequent allision is not the product of an application of the

discredited last clear chance doctrine.                      Rather, the district

court’s      findings   are    the   result      of    a   valid    proximate    cause

analysis.       Whether the district court’s proximate cause findings

are clearly erroneous based on the evidence in the record, is a

separate question.            And, answering that question fortuitously

implicates the M/V DIANE OAK’s third and final contention on

appeal.

      C. Proximate Cause

      M/V DIANE OAK contends that the district court’s finding that

she was solely at fault for the allision is clearly erroneous.

Intertwined with this contention is DIANE OAK’s claim that the

district court failed to consider the various violations of the

Inland Rules committed by the other three vessels, and thus failed

to   apply    the   presumption      of    cause      in   fact    announced    in   The

Pennsylvania, 86 U.S. 125 (1873).                After reviewing the record, we



the phrase “last clear chance” and finding that sometimes it was
not “clear that the fault of the exonerated vessel was a ‘cause’ in
the sense that the accident was within the risk that made her
action negligent,”); Etta M. Davidson, Last Clear Chance in
Admiralty: A Divided Doctrine, 66 TEX. L. REV. 133, 157 (1987)
(noting that while the last clear chance doctrine has been used as
an escape valve from the divided damages rule it has also
historically “embodied a rule of legal causation: liability does
not attach to a ship in an improper position when that position was
not the legal cause of the collision.”).

                                          -12-
disagree.

       In her brief, M/V DIANE OAK argues various violations of the

Inland Rules committed by each of the other three vessels, and then

charges      error   to   the    district   court’s   failure     to    apply   the

Pennsylvania rule, by which a vessel in derogation of a statutory

rule bears the burden of demonstrating that its fault could not

have been the cause in fact of the casualty.                “The Pennsylvania

established a sometimes awesome rule of causation in maritime

collision upon the showing of any statutory violation.”11                       But

“methods      of     rebutting    the   rule   are    not   few        or   tightly

circumscribed.”12 Indeed, this Circuit has long adhered to the view

that:

       The Pennsylvania did not intend to establish a hard and
       fast rule that every vessel guilty of a statutory fault
       has the burden of establishing that its fault could not
       by any stretch of the imagination have had any causal
       relation to the collision, no matter how speculative,
       improbable, or remote.13

“As this Circuit’s progeny of The Pennsylvania reveals, fault which

produces liability must be a contributory and proximate cause of

the collision, and not merely fault in the abstract.”14


  11
     Bd. of Commr’s of Port of New Orleans v. M/V FARMSUM, 574 F.2d
289, 297 (5th Cir. 1978).
  12
       Id.
  13
     Compania De Maderas De Caibarien v. The Queenston Heights, 220
F.2d 120, 122-23 (5th Cir. 1955).
  14
       M/V Farmsum, 574 F.2d at 297; see also G. GILMORE & C. BLACK, THE
LAW   OFADMIRALTY, at 494 (2d ed. 1975).

                                        -13-
       Applying this precedent to this case, we conclude that the

district court correctly recognized that fault in the abstract does

not give rise to liability.15        Instead, the fault must be a

contributory   and   proximate   cause   of   the   damages   sustained.16

Consequently, the fulcrum upon which this last issue on appeal

turns is whether the district court’s findings resulting from its

causation analysis were clearly erroneous.17

       “A finding is clearly erroneous when, although there is

evidence to support it, the reviewing court is left with a definite

and firm conviction that a mistake has been committed.”18           Here,

district court answered the question of whether any neglect or

fault of the M/V GINNY STONE or M/V GOTLAND SPIRIT was a proximate

cause of the allision with the Dow wharf in the negative.           In so

doing, the district court relied on Captain Couey’s own testimony


  15
     Moreover, the presumption is ultimately irrelevant insofar as
DIANE OAK herself violated various Inland Rules, most notably by
her failure to direct the manner and means of passing pursuant to
Rule 9 and 14(a), and thus the presumption would apply in both
directions, essentially cancelling out any impact.       Cf. Rodi
Yachts, 984 F.2d at 887 (“The method of decision by presumptions
could not work in this case, where each party is armed with a
presumption . . . .”); id. (commenting that “[w]here presumptions
clash, they disappear”).
  16
       M/V FARMSUM, 574 F.2d at 297.
  17
     See Avondale Indus., 15 F.3d at 492 (“In an admiralty action
tried by a court without a jury, the factual findings of the
District Court are binding unless clearly erroneous. Questions
concerning the existence of negligence and causation are treated as
factual issues subject to the clearly erroneous standard.”).
  18
       Walker v. Braus, 995 F.2d 77, 80 (5th Cir. 1993).

                                  -14-
that   but   for     M/V   DONAU’s   embarrassing   the     M/V   DIANE   OAK’s

navigation,    he     would   have   safely    navigated    35    Mile    Point.

Furthermore,    we    observe   that    Captain   Couey’s    accident     report

prepared immediately after the incident failed to mention the M/V

GOTLAND SPIRIT or any southbound river traffic at all. Thus, based

on the record, we are not convinced that the district court made a

mistake when it concluded that the allison between the M/V DIANE

OAK and the Dow wharf was not proximately caused by the actions of

the M/V GINNY STONE and the M/V GOTLAND SPIRIT.

       Similarly, based on the evidence in the record, we do not

conclude the district court was mistaken when it concluded that the

M/V DONAU’s actions did not embarrass M/V DIANE OAK’s navigation in

order for those actions to be a proximate cause of the allision.

This conclusion rested almost entirely on the district court’s

credibility determination on the specific issue of how close the

ships were during their starboard to starboard passing.                     The

district     court    explicitly     found    incredible    Captain      Couey’s

testimony that M/V DONAU veered at the M/V DIANE OAK’s tow within

as close as 20 feet; instead, the district court credited the

testimony of the M/V DONAU’s pilot and his shipmate, the gist of

which was that the passing was not within 20 feet but instead

closer to 150 feet.        The district court also found Captain Couey’s

claim that the M/V DONAU embarrassed his navigation incredible

because Captain Couey did not complain about that navigation, i.e.,



                                       -15-
by sounding an alarm or otherwise expressing his displeasure, until

after the allision.

       Credibility determinations are the province of the trier of

fact, which in this case is the district court.19               Moreover, our

review    of   that   credibility     determination    and    the   concomitant

proximate causation finding is for clear error, not just mere

error.20 Thus, even though a different fact finder may have reached

a different conclusion regarding M/V DIANE OAK’s claim that the M/V

DONAU embarrassed her navigation, we can only reverse if we have a

“definite and firm conviction that a mistake has been made.”21               In

this case, we are neither firmly nor definitely convinced that a

mistake    has   been   made   with    respect   to   the    district   court’s

determination that the M/V DONAU did not proximately cause M/V

DIANE OAK’s allision with Dow’s wharf.           Accordingly, the district

court’s final judgment is AFFIRMED.




  19
     See Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 378 (5th
Cir. 2000); Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149, 1154
(5th Cir. 1990).
  20
     See, e.g., Reich v. Lancaster, 55 F.3d 1034, 1045 (5th Cir.
1995) (citing Anderson v. City of Bessemer, 470 U.S. 564, 573-74,
(1985)); In re Placid Oil Co., 158 Bankr. 404, 412 (N.D. Tex. 1993)
(“This court does not find facts. Neither is it free to view the
evidence differently as a matter of choice.”); E.E.O.C. v. Clear
Lake Dodge, 25 F.3d 265, 270 (5th Cir. 1994) (“We are not permitted
to re-weigh the evidence on appeal simply because we disagree with
the choices made by the district court.”).
  21
       Braus, 995 F.2d at 80.

                                      -16-
