                  UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT



                              No. 91-3669



DEUTSCHE SHELL TANKER
GESELLSCHAFT mbH,
                                                    Plaintiff-Appellant/
                                                    Cross-Appellee,


                                 versus


PLACID REFINING COMPANY,
                                                    Defendant-Appellee/
                                                    Cross-Appellant.




           Appeals from the United States District Court
               for the Eastern District of Louisiana

                        (     June 8, 1993    )


Before POLITZ, Chief Judge, JOHNSON and JOLLY, Circuit Judges.

POLITZ, Chief Judge:

     This case involves a general average claim arising from the

grounding of the tanker DIALA in the Mississippi River.         Deutsche

Shell   Tanker-Gesellschaft   mbH,   the   vessel   owner,   appeals   the

judgment in favor of the cargo owner, Placid Refining Company.

Finding no reversible error, we affirm.
                                     Background

       In 1983 Deutsche Shell contracted to deliver a shipment of

crude to Placid's refinery in Port Allen, Louisiana. The crude was

transpsorted        by    the   tanker   DIALA   which   departed   Sullom    Voe,

Scotland on May 21, 1983.            The Atlantic crossing was uneventful.

Upon reaching the Mississippi River the DIALA took on a compulsory

Mississippi River pilot to guide the vessel upstream.

               On June 5, in the Mississippi, the ship passed through

shallow water and experienced a vibration after which its 10-

centimeter radar picture failed. Captain Schätzel radioed Deutsche

Shell's New Orleans agent, Lykes Bros., requesting service for the

10-cm radar and for the 3-cm radar which had a weak picture.

Further upriver, the tanker encountered a squall during which its

3-cm       radar   unit   also   failed   leaving   the    tanker   without    any

operational radar.

       Captain Schätzel was able to interswitch the two radar systems

and establish a picture on the 3-cm display.               The pilot, however,

fearful that another radar failure would leave the tanker in the

shipping lanes at night with no radar, and believing that Coast

Guard regulations required the ship to have two operational radar

units, refused to proceed and directed the ship to anchor.1                    The

Mississippi River was at flood stage with a swift current.               Before

the second anchor took hold, the current caught the ship and swept

her two miles downstream where she ran aground.                After a week of

       1
            There were no qualified radar technicians on board the
vessel.


                                           2
extensive salvage efforts, the DIALA was refloated and delivered

the oil to Placid's refinery.

     Deutsche Shell brought suit against Placid asserting a claim

under the general average clause of the shipping contract2 to

recover a portion of the costs of the salvage effort.3      Placid

denied the claim asserting that it did not own the cargo at the

time of the grounding and that the proximate cause of the grounding

was Deutsche Shell's failure to maintain the radar in proper

working order.

     The issue of liability was tried to the court which entered a




     2
        The shipping contract contained the following general
average clause:

          General average shall be payable according to the
     York/Antwerp Rules 1974 and shall be adjusted in London, but
     should the adjustment be made in accordance with the law and
     practice of the United States, the following clause shall
     apply:
          NEW JASON CLAUSE SQ In the event of accident, danger,
     damage or disaster before or after the commencement of the
     voyage, resulting from any cause whatsoever, whether due to
     negligence or not, for which, or for the consequences of
     which, the Carrier is not responsible, by statute, contract
     or otherwise, the cargo, shippers, consignees or owners of
     the cargo shall contribute with the Carrier in General
     Average to the payment of any sacrifices, losses or expenses
     of a General Average nature that may be made or incurred and
     shall pay salvage and special charges incurred in respect of
     the cargo.


     3
        "General average is an ancient maritime doctrine making
all participants in a maritime venture ratably responsible for
losses incurred for their common good." Atlantic Richfield Co.
v. United States, 640 F.2d 759, 761 (5th Cir. Unit A 1981).


                                3
take nothing judgment in favor of Placid.4                   The district court

found that Deutsche Shell failed to prove that a general average

act occurred and, even if such had occurred, Deutsche Shell's

failure to exercise due diligence in maintaining the 3-cm radar was

the proximate cause.             The district court also found that Placid

owned the cargo at the time of the grounding.                       Deutsche Shell

timely appealed; Placid cross-appealed on the issue of cargo

ownership.



                                          Analysis

        A    standard     "New    Jason    clause"5   requires   general    average

contribution even if the carrier is negligent, unless the carrier

is responsible for the damage under the Carriage of Goods by Sea

Act.6       Under COGSA a carrier is held at fault for damage to the

cargo       caused   by   unseaworthiness        resulting   from   "want   of   due

diligence on the part of the carrier to make the ship seaworthy."7

        A general average claim such as the claim at bar requires a

three step analysis.             The vessel owner has the initial burden to

        4
        The district court's opinion is reported at: Deutsche
Shell Tanker-Gesellschaft mbH v. Placid Refining Co., 767 F.
Supp. 762 (E.D.La.1991).

        5
            See The Jason, 225 U.S. 32, 32 S.Ct. 560, 56 L.Ed. 969
(1912).

        6
        Atlantic Richfield, 640 F.2d at 761; see COGSA, 46 U.S.C.
§ 1301 et seq.

        7
            46 U.S.C. § 1304(1).


                                             4
establish a general average act and that there was a separate cargo

owner at the time of the act.               If the vessel owner meets this

burden, the cargo owner may avoid liability by establishing that

the vessel was unseaworthy at the start of the voyage and the

unseaworthiness was the proximate cause of the general average act.

Finally, if the cargo owner establishes unseaworthiness, the vessel

owner     may   still   succeed   if   it   proves   that   it   exercised   due

diligence to make the vessel seaworthy at the start of the voyage.8

      Deutsche Shell raises several issues on appeal.              First, that

the district court erred as a matter of law in determining that

there was no general average act because the pre-trial order did

not list this as a contested issue of either fact or law.               Deutsche

Shell further contends that, based on the uncontested evidence

presented at trial, the district court's determination that there

was   no   peril    and   hence   no   general   average    act   was   clearly

erroneous.      Deutsche Shell also contends that the district court's

determinations that it failed to exercise due diligence and that

such failure was the proximate cause of the grounding were clearly

erroneous.      In the cross-appeal, Placid contends that the district

court erred in finding that Placid owned the crude oil on board the

DIALA at the time of the grounding, and furthermore that Deutsche

Shell should be held liable under the Pennsylvania Rule.9

      8
         See Atlantic Richfield, 640 F.2d at 761-62; see generally
2 BENEDICT ON ADMIRALTY §§ 181-188 (7th Ed. 1992); G. Gilmore & C.
Black, The Law of Admiralty, ch. V, at 244-71 (2d Ed. 1975).

      9
        See The Pennsylvania, 86 U.S. (19 Wall.) 125 (1874).
Under the Pennsylvania Rule, "if a party violates a statute which

                                        5
      The    determinations     regarding     peril,      due   diligence,    and

proximate cause are findings of fact which are upheld on appeal

unless clearly erroneous.10          "A finding is clearly erroneous only

if   the    appellate   court   is    left   with   the     definite   and    firm

conviction that a mistake has been made."11

      I.     The General Average Act

      "There is a general average act when, and only when, any

extraordinary     sacrifice     or    expenditure      is   intentionally     and

reasonably made or incurred for the common safety for the purpose

of preserving from peril the property involved in a common maritime

adventure."12    The district court found that Deutsche Shell failed

to prove that a general average act occurred because the tanker was

not in peril.13 Deutsche Shell argues that the district court erred


is designed to preclude an accident from occurring, that party
bears the burden of proof in showing that its fault did not
contribute to the accident." Sheridan Transportation Co. v.
United States, 897 F.2d 795, 797 (5th Cir. 1990). Coast Guard
regulations required the DIALA to have two independently
operating radar systems. 33 CFR §§ 164.35(a) and 164.37(a).
Placid argues that violation of this statute requires application
of the Pennsylvania Rule.

      10
        Elevating Boats, Inc. v. Gulf Coast Marine, 766 F.2d 195
(5th Cir. 1985); Fed.R.Civ.P. 52(a).

      11
            Elevating Boats, 766 F.2d at 199.

      12
          York/Antwerp Rule A (1974), reprinted in 2 BENEDICT            ON
ADMIRALTY § 181, at 13-1.

      13
            The district court found as follows:

      With little more than a citation to York/Antwerp Rule A and
      the London adjustor's statement, Shell would have the Court

                                        6
in raising the issue of peril sua sponte because the issue was

never in dispute.   The lists of contested issues of law and fact in

the pretrial order contain no mention of a general average act.

     Placid argues, on the other hand, that a general average act

is a necessary element of Deutsche Shell's cause of action, and the

burden is on Deutsche Shell to prove that it occurred.14         The

parties never explicitly stipulated that a general average act

occurred.    Because we uphold the district court's finding that

Deutsche Shell failed to exercise due diligence to maintain the

3-cm radar, we need not decide whether the vessel was in peril nor

whether the issue was raised properly.15


     gloss over the initial issue whether Shell's degrounding
     efforts constituted a general average act. Shell perhaps
     believes that the Court should find the existence of a
     general average act here merely because the DIALA was
     carrying millions of gallons of crude oil. The Court
     rejects this position and does not otherwise find
     circumstances sufficient for the Court to conclude that a
     general average act occurred here.

767 F.Supp. at 783.

     14
          See York/Antwerp Rule E (1974):

     The onus of proof is upon the party claiming in General
     Average to show that the loss or expense claimed is properly
     allowable as General Average.

Reprinted in 2 BENEDICT   ON   ADMIRALTY § 181, at 13-2.

     15
          We note, however, that peril is a flexible concept:

     While the courts in some cases have used expressions
     indicating that both in general average and in salvage cases
     it is essential that the property at risk be subject to an
     immediate impending danger, we think the 'imminency' of the
     peril is not the critical test. If the danger be real and
     substantial, a sacrifice or expenditure made in good faith

                                      7
     II.    Lack of Due Diligence

     The district court held that even if a general average act

occurred, such act was caused by Deutsche Shell's failure to

exercise due diligence to maintain the vessel's radar in seaworthy

condition.       The   district   court   found   that   Deutsche   Shell's

inadequate maintenance practices contributed to the failure of the

3-cm radar.16    The court concluded that the 3-cm radar failed for

two reasons:      (1) "water incursion into the antenna/waveguide

components of the unit from Shell's improper maintenance;" and

(2) "the T/R cell's having reached its actual useful life capacity,

which far exceeded either T/R cell type's average minimum life

expectancy."17     Although we find the district court's conclusion

regarding the T/R cell in error, we find no clear error in the

court's findings that water incursion contributed to the vessel's

grounding and that the water incursion was a result of Deutsche

Shell's failure to exercise due diligence in maintaining the 3-cm

radar.



     for the common interest is justified, even though the advent
     of any catastrophe may be distant or indeed unlikely.

Navigazione Generale Italiana v. Spencer Kellogg & Sons, Inc., 92
F.2d 41, 43 (2d Cir.), cert. denied, 302 U.S. 751 (1937). A
tanker, fully laden with crude oil, unintentionally grounded in
the Mississippi River at flood stages is quite likely to be in a
perilous position.
     16
        The district court found that the failure of the 10-cm
radar was not caused by a lack of due diligence by Deutsche
Shell.

     17
           767 F.Supp. at 788.


                                     8
                           The Equipment



     The DIALA was equipped with two independent radar units SQ a

10-cm unit and a 3-cm unit, both installed in 1973.   Each unit has

a 16-inch display screen on the bridge of the vessel which leads to

an MTR (modulator/transmitter/receiver) unit in the next room. The

3-cm unit's MTR is connected to a hollow metal waveguide that leads

to a 12-foot antenna array unit on the mast atop the bridge.     The

antenna array units are covered with fiberglass, and contain rotary

ball bearings above and below the array so the antenna may make 360

degree sweeps.

     The district court provided the following helpful "layman's

explanation" of certain radar components:

     A modulator sends power to a magnetron, which converts
     the power to dense RF (radio frequency) energy for
     transmitting out the radar unit. This RF energy passes
     through a T/R (transmitter/receiver) cell and then, for
     the 3-cm unit, through a waveguide . . . to the antenna
     array, where the RF energy is transmitted into the
     atmosphere. A small fraction of this transmitted energy
     returns, or echoes, back to the antenna and back down the
     waveguide . . . again. The same T/R cell then directs
     this much weaker returning energy into receiver mixer
     crystals; the T/R cell is designed and is able, when
     functioning properly, to prevent the stronger, outgoing
     RF energy from passing through and thereby damaging these
     delicate mixer crystals. A klystron sends another, "base
     line" RF signal into the mixer crystals. "Mixing" these
     two incoming signals, the mixer crystals produce useful
     electronic information, which is finally sent to the
     display unit. The modulator, magnetron, T/R cell, mixer
     crystals, and klystron are all components of the MTR
     unit.18

     The DIALA also was equipped with an interswitch device which

     18
          767 F. Supp. at 769-70.


                                    9
permits the antenna and MTR unit of one radar system to be operated

with the display unit of the other.    Prior to the radar failures on

June 5, 1983 no member of the DIALA crew had ever operated the

interswitch device.

                       Symptoms of Radar Failure

     When a radar malfunctions, a white spot may appear on the

display screen and render the unit unfit for use.          Among the

sources for such malfunction are:        "a defective magnetron, a

defective modulator, blown or defective mixer crystals, possibly a

defective klystron, or water ingress into the waveguide."19     When

a T/R cell fails, it allows the high power transmitting RF energy

to go directly through the mixer crystals causing them to blow out.

Such failure of the T/R cell and crystals also causes a small white

spot in the center of the display screen and the loss of the rest

of the display picture.

     Water incursion generally does not directly effect the T/R

cell.     However, the presence of water in the waveguide may act as

a close-range reflector of transmitting RF energy which may cause

damage to the mixer crystals.    In addition, a weak display picture

may be caused either by a magnetron malfunction or water in the

waveguide.20

     Based upon the expert testimony at trial, the district court

identified three ways in which water may get inside the waveguide:


     19
           767 F.Supp. at 770.

     20
           Id.

                                  10
      through flanges or seams on the waveguide, through the front
      or edges of the fiberglass scanner array unit (to which the
      waveguide connects), and through the rotary ball bearing
      components just above or below the scanner.       Because the
      antenna cover is continuously exposed to the harsh elements of
      the maritime environment, it may become soft and porous over
      time or otherwise in need of fiberglass recoating to prevent
      water leakage in the waveguide.21

The   heat   produced   by   transmitting   RF   energy   may   produce   a

"microwave" effect and dissipate or boil off small quantities of

water that enter the waveguide, thus leaving little or no evidence

of the water incursion.22

                         Maintenance Practices

      Although the radar manufacturer recommended that a radar log

be kept of all service to the radar units, Deutsche Shell did not

do so.     Instead, Deutsche Shell maintained a Gerätetagebuch, or

equipment book, containing invoices from radar repair technicians.

It also appears that no one regularly checked or followed up on the

recommendations made by service technicians in the Gerätetagebuch.

For example, a service report made on March 11, 1980 indicated that

the upper antenna array's ball bearing needed to be replaced; there

was no evidence in subsequent reports that this recommendation was

ever followed. As further evidence of Deutsche Shell's poor record

keeping, the Chief Officer's December 1982 quarterly report noted

the condition of the radar as "keine Störungen seit der Werft" or

"no problems since drydock," when the Gerätetagebuch showed three

service calls regarding the radar during that period.

      21
           Id. at 771 (footnote and record citations omitted).
      22
           767 F.Supp. at 771.


                                   11
     The manufacturer's instructions advised that the antenna array

should be removed and thoroughly overhauled every second year. The

Gerätetagebuch's radar repair records bear no evidence that this

was ever done during the entire ten years that the 3-cm radar had

been installed on the DIALA.

             Radar Repairs Made After the Grounding

     At 2:00 a.m. the morning after the grounding, Ben Kempf, a

radar technician came aboard the DIALA to work on the radar

systems. He did not testify at trial, but his work order indicates

the following regarding the 3-cm radar:

     [T]he transmitter is inoperative; all power supply
     voltages are normal; replaced blown receiver mixer
     crystals, but still no targets; replaced klystron with
     ship's spare; crystal current appears normal at this time
     but still unable to tune. [N]o other replacement parts
     are available.     [S]uspect both klystrons 2K25 are
     defective, because it was necessary to decrease crystal
     attenuation to achieve any reading of receiver mixer
     crystal current. No t/r cell replacement aboard ship;
     suspect water in waveguide or in array. [D]isassembled
     waveguide at transmitter but no water there. [R]emoved
     waveguide from pedestal; but no evidence of water
     intrusion. [W]ill return tomorrow to finish repairs.

Later that same day, Michael St. Romain, another radar technician

came to complete the radar repairs.       His report indicated the

following:

     Picture on radar showed signs of water in waveguide very
     weak picture and large spot in center. No evidence of
     water could be found below.         Removed scanner and
     inspected upper assembly. Some slight evidence of water
     was shown from scanner. The front of scanner in dire
     nee[d of] recoating. It is very porous and could get
     water inside during a severe storm. Recommend recoating.
     Also noted that top ball bearing is badly worn and should
     be replaced. . . . After reassembling the waveguide parts
     a very slight improvement in picture was noted, but not
     enough. Changed defective TR cell and blown crystals.
     This improved picture further. Tuning of klystron cavity

                                12
     showed no change in picture.     Changed klystron from
     ship's spares. This improved picture further, now out to
     6 miles. Made several other checks in TR unit with no
     help in picture. Changed out klystron with one from our
     kit. Tuned up radar now to have targets 24 miles.

St. Romain also returned the next day and recoated both the 3-cm

and 10-cm scanners.

     A.   Water Incursion

     The district court found that the circumstances surrounding

the failure of the 3-cm radar were most consistent with water

incursion in the waveguide and scanner areas.            This finding is

amply supported by the evidence.         First, a white dot appeared upon

the screen just before the unit failed. This symptom suggests that

there was water in the waveguide.          In addition, the weak picture

noticed   by   Captain   Schätzel   is      also   symptomatic   of   water

incursion.23   St. Romain, the radar service technician, also found

evidence of water in the scanner.24 While St. Romain found no water

remaining in the waveguide, he did find some improvement of the


     23
        The district court noted that the only causes for a weak
display picture are water in the waveguide or a defective
magnetron, and there was no evidence of a defective magnetron in
this case. T/R cell failure, alone, would not cause a weak
picture. 767 F.Supp. at 788.

     24
        Another service technician worked on the radars the
night of the grounding, but his testimony was not presented at
trial. His report indicates that he suspected water in the
waveguide, but found no evidence of water. The district court
discounted his failure to find traces of water based upon the
facts that his inspection took place during evening hours and
that he spent only 2 1/2 hours on the vessel to work on both
radars, and spent most of his time repairing the 10-cm radar.
The district court's determination regarding the reliability of
the report is not clearly erroneous.


                                    13
radar      picture    after   disassembling    and   then    reassembling    the

waveguide.         From this the district court made the reasonable

inference that in the process, St. Romain cleaned out any water

that was in the waveguide.            Finally, the failure of the 3-cm radar

coincided with the ship hitting a squall, thus providing the

opportunity for water incursion.

      St. Romain discovered that the scanner array was extremely

porous and in "dire nee[d of] recoating."             He also found evidence

of   water    in     the   scanner.     Deutsche   Shell's   own   expert,   Mr.

Stakelum, recognized that the extremely porous condition of the

scanner array could not have suddenly manifested itself, but must

have existed when the vessel left Sullom Voe.25

      In addition, Deutsche Shell argues that any damage to the ball

bearing could not have caused the water incursion because water was

found only in the scanner and not in the waveguide where it would

be if it entered through the ball bearing.             We do not agree.      The

evidence demonstrated that water could enter the waveguide through

a defective ball bearing.             The district court found, consistent

with the expert testimony, that "the effects of evaporation may

explain the absence of more water."26           Thus, the fact that no water

was found in the waveguide after it failed, does not mean that


      25
        When asked if the porous condition existed when the
DIALA left Sullom Voe, Stakelum testified: "Well the condition
as Mr. St. Romain saw it in June of 1983 I think in effect
existed the same way two weeks prior to that."

      26
            767 F.Supp. at 788.


                                          14
water was not present at the time the radar failed.

     The district court concluded that the water incursion was a

result of Deutsche Shell's failure to exercise due diligence in

maintaining the 3-cm radar unit.

     Where the standard of due diligence is applicable, it
     comprehends inspection and investigation, where prudent, to
     determine the existence of deficiencies before they become
     critical, and the failure to discover defects which
     examination would necessarily have disclosed is the very
     absence of due diligence.27

Deutsche Shell argues that regardless of whether water incursion

occurred, they proved that the DIALA was seaworthy when it left

Sullom Voe.   We agree with the district court that Deutsche Shell

focuses on too narrow a time frame.

     The district court specifically rejected Deutsche Shell's

effort to focus on the period between the drydocking in August 1982

and the grounding in June 1983.      The antenna was not overhauled

while the vessel was in drydock.     While the vessel was in drydock

in 1982, Jens Pedersen, then a young, inexperienced technician,

spent only five hours on the vessel examining both radar units and

the directional finding device.      The radar also passed a German

classification inspection.   There was no indication, however, that

the classification inspector conducted more than a cursory review.

As the district court noted, "[i]f a shipowner is to enjoy the safe

harbor of an inspector's okay, the shipowner must show that it




     27
        Ionian Steamship Co. v. United Distillers, 236 F.2d 78,
84 (5th Cir. 1956).


                                15
revealed sufficient facts to the inspector; Shell did not."28

Accordingly, the district court gave little weight to the lack of

problems   detected   by   Pedersen    or   the    German   classification

inspector.

     The district court found, consistent with the evidence, that

if Deutsche Shell had followed the manufacturer's recommendation to

keep an accurate radar log and to overhaul the radar array every

two years, Deutsche Shell would have avoided the surprises that led

to the grounding in June 1983.        Deutsche Shell's actions did not

even approach the standard suggested by the radar manufacturer.29

There was no evidence that either the 3-cm or the 10-cm radar

underwent the recommended overhaul during the entire ten year

period they were installed on the DIALA.          During such an overhaul,

the severe porosity problems, the defective ball bearing, and other

opportunities for water incursion would have been remedied, thereby

     28
           767 F.Supp. at 789.

     29
        We find no merit in Deutsche Shell's argument that the
district court improperly excluded evidence of actual practices
within the industry. The district court refused to allow the
corporate representative, Martin Buck, to testify as to
statements made by other vessel owner's representatives regarding
their maintenance practices. The district court correctly noted
that the corporate representative had no personal expert
knowledge on these matters, and that the statements of these
undisclosed other vessel owners were inadmissible hearsay.
Deutsche Shell contends that these statements were not offered
for the truth of the matters asserted, but to demonstrate
Deutsche Shell's understanding of the industry practices. We
agree with the district court. Deutsche Shell's understanding of
industry practices is irrelevant to the question of whether it
exercised due diligence. Due diligence is an objective standard;
therefore, to the extent that these statements attempted to
demonstrate what that standard is, they are rank hearsay.


                                  16
averting the failure of the 3-cm radar.

     B.     The T/R Cell

     The district court indicated that "[t]he record contains no

evidence that the 3-cm unit's T/R cell from 1973 had ever been

replaced at any time."         We agree with Deutsche Shell that this

finding is not supported by the record.      The radar repair invoices

submitted by the defendants indicate that a VDX 1047s type T/R cell

was replaced in June 1982,30 one year before the radar failure which

led to the grounding.      This type of T/R cell is used in the 3-cm

radar unit but not in the 10-cm unit.31       These T/R cells have an

average useful life expectancy of 2000-5000 hours; Deutsche Shell's

radar expert, Mr. Stakelum, estimated that the average use of the

3-cm radar on a vessel such as the DIALA was 1500 to 2500 hours per

year.     The T/R cell in the 3-cm radar, having been replaced only

one year before, was not so dangerously close to the end of its

usefulness that it would have been a failure of due diligence not

to replace it prior to the voyage.         We find, however, that the

water incursion contributed to the failure of the      3-cm radar and

     30
           See Exhibit P24A.

     31
        See Exhibit P26-B pp. 5-11. The source of the district
court's error appears to have been the abstract of repair
invoices admitted as Placid's exhibit D-3 which indicated that
the VDX 1047s T/R cell was replaced in the 10-cm radar. Placid
attempts to argue that Deutsche Shell stipulated to the contents
of the abstract and therefore cannot now argue that the T/R cell
in the 3-cm radar had been replaced. We find no such
stipulation. Deutsche Shell agreed to the admissibility of the
abstract, it did not stipulate to the accuracy of its contents
particularly when the abstract contradicts the document from
which it purports to abstract.


                                    17
is sufficient to support the district court's judgment in favor of

Placid.

     III. Proximate Cause

     Deutsche Shell also argues that even if the district court

properly   found    that    it    failed       to   exercise    due     diligence   in

maintaining the 3-cm radar, the district court's conclusion that

the grounding was proximately caused by that unseaworthy condition

was clearly erroneous.

     The district court found that the flood stages of the river,

the pilot's      decision   not     to    continue     the     voyage    without    two

reliable radar units, and the subsequent decision to anchor were

all foreseeable events.          These findings are not clearly erroneous.

Certainly, grounding is one of the risks a vessel faces when its

radar   fails.      The    fact    that    the      vessel   was   grounded    while

attempting to anchor does not make the result unforeseeable.

     Finding no reversible error, we AFFIRM.




                                          18
