                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                      Revised July 17, 2003
                                                               May 28, 2003
                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit             Charles R. Fulbruge III
                                                                 Clerk


                           No. 01-31323


      TRICO MARINE ASSETS INC.; TRICO MARINE OPERATORS INC.

                                              Plaintiffs - Appellees
                              VERSUS

            DIAMOND B MARINE SERVICES INC, ETC; ET AL

                                                           Defendants

           DIAMOND B MARINE SERVICES INC, IN PERSONAM

                                              Defendant - Appellant


In Re: In the Matter of the Complaint of TRICO MARINE OPERATORS
INC, as Owners/Operators/Owners pro hac vice of the OSV Cane River,
Praying for Exoneration From or Limitation of Liability
----------------------------------------
     TRICO MARINE ASSETS INC; TRICO MARINE OPERATORS INC, as
   Owners/Operators/Owners pro hac vice of the OSV Cane River,

                          Petitioners - Appellees-Cross-Appellees

                              VERSUS

               TEXACO EXPLORATION & PRODUCTION INC

             Intervenor - Appellee-Cross-Appellant-Cross-Appellee

                  ACE USA, successor-in-interest

                             Intevenor - Appellee-Cross-Appellant

                              CIGNA
                                              Intervenor - Appellee

                              VERSUS
                 DIAMOND “B” MARINE SERVICES INC

                   Claimant - Appellant - Cross-Appellee/Appellee

                      JAMES ANDREW BENNETT

                                             Claimant - Appellant

                             VERSUS

LONNIE FONTENOT; WAYNE PAUL THIBODAUX, individually and on behalf
of their dependent minor child, Blake Milton Thibodaux, and their
dependant children, Angel Marie Thibodaux and Kelly Marie
Thibodaux; ALAN J. LEBLANC, individually and on behalf of their
dependant children Shere A LeBlanc and Michelle R Le Blanc

Claimants - Appellees-Cross-Appellants/Appellants-Cross-Appellees


In Re:    In the Matter of the Complaint of DIAMOND B. MARINE
SERVICES INC, as Owner/Operator of CB Miss Bernice Praying for
Exoneration From or Limitation of Liability Regarding Collision of
25 March, 1999 with OSV Cane River
----------------------------------------
     DIAMOND “B” MARINE SERVICES INC, as Owner/Operator of
                         CB Miss Bernice

                   Petitioner - Appellant-Cross-Appellee/Appellee

                             VERSUS

       TRICO MARINE ASSETS INC; TRICO MARINE OPERATORS INC

                            Claimants - Appellees-Cross-Appellees

              MICHAEL A CHERAMIE; KENNETH B HELLER

                                             Claimants - Appellees

 LONNIE FONTENOT, individually and on behalf of their dependent
children, Amy and Jacob Fontenot; WAYNE PAUL THIBODAUX,
individually and on behalf of their dependant minor child, Blake M
Thibodaux, and their dependant children, Angel M Thibodaux and
Kelly M. Thibodaux; ALAN J LEBLANC; individually and on behalf of
their dependant children, Shere A leBlanc and Michelle R LeBlanc

                Claimants - Appellees-Cross-Appellants/Appellants

                             VERSUS

                                2
                          JAMES ANDREW BENNETT

                                                     Claimant - Appellant




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


Before JONES, WIENER and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

      On March 25, 1999, the C/B MISS BERNICE collided with the

O.S.V. CANE RIVER in the fog in the Mississippi River below Venice,

Louisiana. This collision led to three lawsuits: 1) a suit brought

in   admiralty   by   Trico   Marine   Assets,    Inc.   and   Trico   Marine

Operators, Inc. (collectively “Trico”) against Diamond B Marine

Services, Inc. (“Diamond B”); 2) an exoneration/limitation action

instituted by Trico; and, 3) an exoneration/limitation action

instituted by Diamond B.         These three cases were consolidated

before the Federal District Court for the Eastern District of

Louisiana.

      The district court entered judgment in favor of Trico for

damages totaling $43,167.09 against Diamond B and James A. Bennett

(the captain of the MISS BERNICE).               The court also rendered

judgment in favor of Trico and against Diamond B and Bennett for

full indemnity for any damages that would be assessed against Trico

in any other proceeding.       The district court also denied Diamond

B’s petition for exoneration or limitation of liability and awarded

                                       3
damages to three injured Texaco Exploration and Production, Inc.

(Texaco) employees: Wayne Thibodaux, Lonnie Fontenot and Alan

LeBlanc (collectively “complainants”). In an amended judgment, the

district   court   ordered   that   the   complainants   reimburse   their

employer, Texaco, for the amount of past medical expenses Texaco

provided them.

     Diamond B, Bennett and the complainants all appeal various

aspects of the district court’s order.          Texaco has filed as an

appellee-cross-appellant cross-appellee and Trico has responded as

an appellee.

                               BACKGROUND

     On the morning of March 25, 1999, both the MISS BERNICE and

the CANE RIVER were docked in Venice.            The MISS BERNICE was

chartered to Texaco, and Texaco ordered Bennett to pick up its

employees (the complainants) at Garden Island Bay and return them

to Venice.   Although he knew visibility that morning was extremely

restricted, Bennett departed from Venice without a lookout and

without turning on his running lights.         Furthermore, Bennett had

never been trained to use the vessel’s Si-Tex radar unit.              The

radar had been installed eleven months before the collision, but

Bennett was absent that day and Diamond B left him to read the

radar’s manual and figure it out for himself.      Bennett also decided

to run the vessel at full speed, approximately 18 knots, even

though the engine noise would make it difficult to hear the radio



                                     4
or the fog signals of other vessels.   Finally, he failed to check

any of the MISS BERNICE’s navigation equipment and ran at full

speed without fog signals.

     Although visibility remained very poor when Bennett arrived at

Garden Island Bay, he decided to return to Venice immediately,

still running at full speed and still without a lookout, running

lights, or fog signals.   The MISS BERNICE’s engine noise was so

loud that Bennett hooked up an external speaker to hear the radio.

Bennett had complained about the engine noise problem in the past,

but Diamond B had not done anything to remedy it.

     As he approached the West Point Light, Bennett overtook a

northbound supply boat, the O.S.V. ENSCO SCHOONER.   Robert Rusho,

the captain of that vessel, testified that he did not see the MISS

BERNICE on the radar and that Bennett failed to radio him to make

an overtaking agreement. Rusho was not aware that the MISS BERNICE

was in the area until he heard her engines, which briefly slowed

down as she cut around the starboard side of the ENSCO SCHOONER and

then gunned back to full speed.

     Continuing northbound at full speed, Bennett saw the CANE

RIVER as a target on the MISS BERNICE’s radar.   Unfortunately, due

to his lack of training and to the CANE RIVER’s very slow speed,

Bennett thought that the CANE RIVER was also northbound and that he

was overtaking her. In reality, the CANE RIVER was southbound, and

the two vessels were meeting. Bennett testified that he thought he

announced on the radio that he was overtaking a northbound vessel,

                                  5
but he said that he received no response.              Even if Bennett actually

made that     announcement,   it    is       not   surprising   he   received   no

response, as there were no northbound vessels in the area.

       Despite the lack of either radio contact or an agreement to

overtake the vessel, Bennett headed the MISS BERNICE on a direct

collision course with the radar target for more than three full

minutes without sounding any signals.              When the CANE RIVER came in

sight, he was surprised to see her bow instead of the stern he was

expecting.

       Earlier that same morning, just as the MISS BERNICE was

picking up the Texaco employees, the CANE RIVER was waiting for the

fog to rise in Venice.        At about 7:30 a.m., Kenneth Heller, the

ship’s mate, was informed by another Trico vessel that the fog was

lifting.     As visibility at the dock was clear, the CANE RIVER left

the dock for an offshore platform at approximately 8:00 a.m.

       As the CANE RIVER approached the Venice Jump, Heller made

several radio announcements of his intention to turn southbound

into   the   Mississippi   River.        Two       small   northbound   crewboats

responded, and the boats agreed to pass starboard to starboard.

The MISS BERNICE did not respond to the announcements.

       As the CANE RIVER proceeded down river, Heller periodically

announced the vessel’s position over the radio and monitored its

two radars, which were set on ranges of three-quarters of a mile

and one-and-a-half miles.       At no time did the radar pick-up the

MISS BERNICE.    At the same time, Lornell Castle, a deckhand and the

                                         6
CANE RIVER’s lookout, was in the wheelhouse looking and listening

for other vessels.

     Between the Upper Jump Shoal Buoy and the Lower Jump Shoal

Buoy, the CANE RIVER encountered patchy fog, and visibility began

to diminish. Heller reduced the CANE RIVER to bare steerage (i.e.,

the lowest speed at which he could still control the vessel), which

was approximately four knots, and began sounding fog signals every

two minutes, as required by the Rules.

     After taking these precautions, Heller had Castle summon

Captain Michael Cheramie to the wheelhouse to assess the situation.

Castle quickly did so and immediately resumed his post.         Satisfied

that there was no danger and that Heller had the situation under

control, Cheramie went below deck to get his sunglasses and a cup

of coffee.    Before he could return, the collision occurred.      No one

aboard the CANE RIVER was aware of the MISS BERNICE’s presence

until seconds before the collision when Heller and Castle heard her

engines and saw her emerge from the fog directly in front of the

CANE RIVER.

     At trial, Bennett testified that if he had held his course

when he first saw the CANE RIVER, the boats might have narrowly

missed one another. However, at the last second Bennett turned the

MISS BERNICE hard to starboard, causing a bow-to-bow collision. At

trial,   Bennett   admitted   Heller   could   not   have   prevented   the

collision.    He further testified that he did not know how he let



                                   7
the situation develop and that he took away all of his and the CANE

RIVER’s options.

      Even though he had already been injured in a previous accident

for failing to wear his seatbelt, Bennett was not wearing a

seatbelt at the time of this collision.          As a result, he was thrown

into the windshield and momentarily lost consciousness.             Still at

full speed and with no one at the wheel, the MISS BERNICE again

struck the CANE RIVER in the port stern.             After the first impact,

Captain Cheramie took control of the CANE RIVER and maneuvered her

in front of the MISS BERNICE to prevent her from hitting the “Fed

14,” a tug and barge composite also heading south.                  The MISS

BERNICE struck the CANE RIVER a third time and was finally brought

under control when passenger Fontenot took her engines out of gear.

The   second    and   third   impacts       caused   additional   damage   and

injuries.

      Captain Cheramie and his crew tied the MISS BERNICE to the

CANE RIVER to keep the MISS BERNICE from sinking.            Bennett and the

Texaco employees were taken to shore by other vessels for medical

attention.     Captain Cheramie took both the CANE RIVER and the MISS

BERNICE back to the dock in Venice.

      The collision of the two vessels led to three lawsuits: 1) a

suit brought in admiralty by Trico against Diamond B; 2) an

exoneration/limitation action instituted by Trico; and, 3) an

exoneration/limitation action instituted by Diamond B. These three

cases were consolidated before the Federal District Court for the

                                        8
Eastern District of Louisiana, and during the week of January 8,

2001, the district court conducted a non-jury trial of the claims

of all parties in the three consolidated cases.

     On September 28, 2001, the district court entered findings of

fact and conclusions of law as well as a judgment in favor of Trico

for damages totaling $43,167.09 against Diamond B and Bennett. The

district court also denied Diamond B’s petition for exoneration or

limitation     of    liability   and    awarded        damages   to   the   three

complainants    in    the   following       amounts:    $125,037.41    to   Wayne

Thibodaux, $181,184.20 to Lonnie Fontenot and $295,816.63 to Alan

LeBlanc.   Though Bennett also sought damages, the court found that

his injuries were caused solely by his own negligence in failing to

wear a seatbelt and that he was therefore not entitled to recovery.

     In an amended judgment filed November 20, 2001, the district

court ordered that the complainants reimburse their employer,

Texaco, for the amount of past medical expenses they received from

Texaco.    Fontenot was ordered to reimburse Texaco $132,229.31,

LeBlanc was ordered to reimburse $51,975.35, and Thibodeaux was

ordered to reimburse $48,553.74. In a second amended judgment, the

district court ordered that the complainants also reimburse Texaco

from the amount of the recovery they received in damages for

compensation they received from Texaco during the pendency of the

lawsuit.     Finally, the district court denied the complainants

motion for attorney’s fees.



                                        9
                            DISCUSSION

Did the district court err by not applying the Pennsylvania Rule
and placing the burden on Trico to prove that the collision could
not have been caused by the CANE RIVER’s violation of Rule 6 in
order to exonerate it?


     Diamond B, Bennett and the claimants all assert that the

district court committed a fundamental error by not placing the

burden on Trico, as required by the rule of the Pennsylvania, to

show that its negligence could not have caused the collision.

Under the rule of the Pennsylvania, a party that is in violation of

a rule intended to prevent allisions1 is presumed to be at fault

and bears the burden of proving that the violation did not cause

the allision.   Brunet v. United Gas Pipeline Co., 15 F.3d 500, 504

(5th Cir. 1994).   This Court has recognized that the rule of The

Pennsylvania may apply in collision cases as well as in cases

arising from an allision.    Acacia Vera Navigation Co. v. Kezia,

Ltd., 78 F.3d 211, 216 (5th Cir. 1996); see also Sheridan Transp.

Co. v. Tug New York Co., 897 F.2d 795, 799-800 (5th Cir. 1990)

(citing Gele v. Chevron Oil Co., 574 F.2d 243 (5th Cir. 1978)).



     1
      An allision is defined as the “running of one ship upon
another that is stationary - distinguished from collision.”
Webster’s Third New International Dictionary 56 (1971).          A
collision is defined as “the action or an instance of colliding,
violent encounter, or forceful striking together typically by
accident and so as to harm or impede.” Id. at 446. Therefore, an
allision occurs when a ship strikes a stationary object while a
collision involves two moving vessels or objects. The Pennsylvania
involved a collision.

                                 10
These parties also claim that the district court erred in finding

that the CANE RIVER was not negligent, asserting multiple grounds

for its negligence such as moving forward in low visibility despite

the “line of sight” rule, moving forward when the operators knew

that the radar might not pick-up certain vessels and failing to

maintain a proper look-out.    Trico answers that the Pennsylavnia

rule does not apply because the district court never found that the

CANE RIVER violated a statute and that a clear error analysis

applies to this finding of fact.      Trico further asserts that they

prevail under a clear error analysis as to the issue of negligence

on the other alleged breaches of duty.

     Though Diamond B argues for a de novo review of the district

court’s decision, Trico is correct and the decision is reviewed for

clear error. “In maritime actions, questions of fault are ‘factual

issues which cannot be disturbed on appeal unless the resolutions

are clearly erroneous.’” Brunet 15 F.3d at 502 (quoting Valley

Towing Serv., Inc. v. S.S. Am. Wheat, Freighters, Inc., 618 F.2d

341, 346 (5th Cir. 1980)); see also Fed. R. Civ. P. 52(a).     In the

present case, the district court was faced with deciding whether

the CANE RIVER had violated various statutes intended to help

prevent allisions.   The district court weighed the evidence before

it, considered a number of factors, and concluded that the CANE

RIVER did not violate any such statutes.       In Brunet, this Court

applied a clear error analysis to a similar situation in which an


                                 11
appellant argued that the rule of the Pennsylvania should apply

because the appellee had violated various permits and regulations.

See also Acacia Vera Navigation Co., 78 F.3d at 215-16.

     Utilizing a clear error analysis, we find the appellants’

arguments unconvincing.   The appellants claim that the CANE RIVER

was in violation of Rules 6 and 19, which govern the speed of a

vessel and its speed in limited visibility.   Rule 6 states:

     § 2006. Safe speed (Rule 6)
     Every vessel shall at all times proceed at a safe speed
     so that she can take proper and effective action to avoid
     collision and be stopped within a distance appropriate to
     the prevailing circumstances and conditions.
     In determining a safe speed the following factors shall
     be among those taken into account:
     (a) By all vessels:
          (i) the state of visibility;
          (ii) the traffic density including concentration of
          fishing vessels or any other vessels;
          (iii) the maneuverability of the vessel with
          special reference to stopping distance and turning
          ability in the prevailing conditions;
          (iv) at night the presence of background light such
          as from shores lights or from back scatter of her
          own lights;
          (v) the state of wind, sea, and current, and the
          proximity of navigational hazards;
          (vi) the draft in relation to the available depth
          of water.
     (b) Additionally, by vessels with operational radar:
          (i) the characteristics, efficiency and limitations
          of the radar equipment;
          (ii) any constraints imposed by the radar range
          scale in use;
          (iii) the effect on radar detection of the sea
          state, weather, and other sources of interference;
          (iv) the possibility that small vessels, ice and
          other floating objects may not be detected by radar
          at an adequate range;
          (v) the number, location, and movement of vessels
          detected by radar; and
          (vi) the more exact assessment of the visibility

                                12
          that may be possible when radar is used to
          determine the range of vessels or other objects in
          the vicinity.

33 U.S.C. § 2006.    The district court considered all of these

factors, and the provisions of Rule 19, and found that the CANE

RIVER was operating at a safe speed.2     The district court found,

inter alia, that the CANE RIVER maintained a proper lookout by

stationing Castle in the wheelhouse with the door open; that the

radars of the CANE RIVER were monitored properly by Heller, and

that the CANE RIVER maintained a proper radar lookout; that the

CANE RIVER maintained a proper radio lookout and made required



     2
      Rule 19 states, in relevant part:

§ 2019. Conduct of vessels in restricted visibility (Rule 19)
(a) Vessels to which rule applies
This Rule applies to vessels not in sight of one another when
navigating in or near an area of restricted visibility.
(b) Safe speed; engines ready for immediate maneuver
Every vessel shall proceed at a safe speed adapted to the
prevailing circumstances and conditions of restricted visibility.
A power-driven vessel shall have her engines ready for immediate
maneuver.
(c) Due regard to prevailing circumstances and conditions
Every vessel shall have due regard to the prevailing circumstances
and conditions of restricted visibility when complying with Rules
4 through 10.
. . . .
(e) Reduction of speed to minimum
Except where it has been determined that a risk of collision does
not exist, every vessel which hears apparently forward of her beam
the fog signal of another vessel, or which cannot avoid a
close-quarters situation with another vessel forward of her beam,
shall reduce her speed to the minimum at which she can be kept on
course. She shall if necessary take all her way off and, in any
event, navigate with extreme caution until danger of collision is
over.


                               13
security announcements over it;3 and, that the CANE RIVER was

proceeding downriver at bare steerage, which was the slowest

possible speed it could run without losing control of the vessel.

     As to this last finding, the appellants claim that it was

error for the CANE RIVER to even be on the water in such a fog and

that the district court should have found the CANE RIVER’s speed to

be unsafe under the “line of sight” rule, which describes the speed

at which a vessel can safely travel as being the speed which allows

the vessel to come to a halt within half the distance of its line

of sight.4   In rejecting applicability of the “line of sight” rule,

the district court cited to St. Philip Offshore Towing Co. v.

Wisconsin Barge Lines, Inc., 466 F.Supp. 403, 409 (E.D. La. 1979),

in support of the court’s conclusion that, because the MISS BERNICE

was traveling far in excess of the moderate speed required by law,

the line of sight rule did not apply.     Appellants claim that the

district court misread St. Philip Offshore Towing Co., but, even if

true, this point is moot for two reasons.

     First, the Supreme Court and this Circuit have recognized that

the “line of sight” rule is not a rigid one that must be followed

in all situations.    As Trico points out, in cases as early as The

Pennsylvania, the Supreme Court recognized that the speed at which


     3
      Apparently, Bennett could not hear these announcements over
the noise of his vessel’s engine.
     4
      It is alleged that the CANE RIVER needed 200 feet to stop but
only had 100 feet of visibility.

                                 14
a vessel can safely travel in fog depends on the circumstances of

each case.     86 U.S. at 133.       In Union Oil Company of California v.

The San Jacinto, the Supreme Court reversed the Ninth Circuit’s

strict application of the “line of sight” rule because the fault

alleged to have resulted from violation of the “line of sight” rule

did not have “some relationship to the dangers against which that

rule was designed to protect.”         409 U.S. 140, 146 (1972).     In other

words, the “line of sight” rule was inapplicable, despite the

vessels’ traveling in excess of that speed, because the other

vessel   was   negligent   in    a    manner   that   could   not   have   been

anticipated.     In In re Magnolia Towing Company, 764 F.2d 1134 (5th

Cir. 1985), this Circuit adopted the Supreme Court’s ruling in San

Jacinto, stating that “[t]he reason for the half-distance rule

(line of sight) was to avoid reasonably anticipatable possible

hazards, and the rule (with its violation importing statutory

fault) does not apply where it is totally unrealistic to anticipate

the possibility of the particular hazard created by the other

vessel’s negligence.”      Id. at 1138 (internal quotations omitted).

In the present case, the district court found that the MISS

BERNICE’s actions were just the sort of unanticipatable hazards and

negligence that should pretermit application of the “line of sight”

rule.

     Second, even if the “line of sight” rule were applied and the

rule of The Pennsylvania invoked, the appellants’ argument would


                                        15
fail because the district court alternatively found that the CANE

RIVER could not have avoided a collision with the MISS BERNICE at

any speed.   In fact, Bennett himself admitted that his last-second

turn into the CANE RIVER took away all of the CANE RIVER’s options.

Therefore,   even   if   this   Court   were   to   adopt   the    appellants’

argument that the “line of sight” rule should be invoked, it would

not overcome the district court’s determination that the collision

was unavoidable due to the MISS BERNICE’s negligence.

     Ultimately, all of the appellants’ assertions come down to

contesting the district court’s findings of fact.             Despite their

contentions that a de novo standard should be used, we find that a

clear error analysis is applicable.            Under such a standard, the

district court had ample grounds on which to base its various

findings of fact as to the proper maintenance of a lookout, proper

radar lookout, proper radio lookout and safe speed.               The district

court also found, as a factual matter, that the second and third

impacts were not the fault of the CANE RIVER but rather the fault

of the MISS BERNICE, which was advancing full throttle in a

starboard direction without anyone at the helm, due to Bennett’s

having been rendered unconscious by the initial impact.                   The

district court’s decision is therefore affirmed.5


     5
      The appellants also argue that the CANE RIVER was negligent
being out in such conditions because it could not safely travel
within the line of sight rule. Though language to support this
proposition can be found in Pennzoil Producing Co. v. Offshore
Express, Inc., 943 F.2d 1465, 1470 (5th Cir. 1991), the discussion

                                    16
Did the district court err by denying Diamond B’s claim to limit
its liability to the value of the MISS BERNICE?

     Diamond B also claims that the district court erred in not

limiting its liability to the value of its vessel as required by 46

U.S.C. § 183(a).   Trico argues that the district court’s finding

was correct because Diamond B had privity or knowledge of the MISS

BERNICE’s   unseaworthy   condition    and   Bennett’s   negligent   acts.

Diamond B claims that even though there were navigational errors

made, all errors that led to the collision were simply due to their

“hands-off” approach to management, as allowed under In re Kristie

Leigh Enterprises, 72 F.3d 479 (5th Cir. 1996).

     This Court reviews a denial of limited liability for clear

error.   Hellenic Inc. v. Bridgeline Gas Distrib., L.L.C., 252 F.3d

391, 394 (5th Cir. 2001).   Under 46 U.S.C. § 183(a), a vessel owner

may limit the liability incurred for any loss, damage or injury by

collision to the “amount of value of the interest of such owner in

such vessel, and her freight then pending.”        Id.   However, if the

vessel’s negligence or unseaworthiness is the proximate cause of

the claimant’s loss, the plaintiff-in-limitation must prove it had



the appellants cite to involved a review of many factors
contributing to negligence in that particular case rather than a
discussion of the applicability of the Pennsylvania rule, and this
case was subsequent to this Court’s ruling in Magnolia that the
line of sight rule does not always apply to infer negligence.
Additionally, the district court made findings that when the CANE
RIVER left Venice, it had good visibility and it was en route to
its destination when it encountered patchy fog, which limited its
visibility.

                                  17
no privity or knowledge of the unseaworthy conditions or negligent

acts.   Cupit v. McClanahan Contractors, Inc., 1 F.3d 346, 348 (5th

Cir.    1995).         “[A]    shipowner    has    privity       if   he   personally

participated      in    the     negligent    conduct      or   brought      about   the

unseaworthy condition.”           Pennzoil, 943 F.2d at 1473.              “Knowledge,

when the shipowner is a corporation, is judged not only by what the

corporation’s managing officers actually knew, but also by what

they should have known with respect to conditions or actions likely

to cause the loss.”           Id. at 1473-74.     Also, in situations resulting

in loss of life or bodily injury, the knowledge of a seagoing

vessel’s master at the commencement of a voyage is imputed to the

vessel’s owner.        46 App. U.S.C. § 183(e).

       The district court found that Diamond B had privity and

knowledge    of     Bennett’s       negligence      and    participated       in    the

negligence   that       caused     the   collision.        The    district    court’s

findings were that Diamond B: 1) failed to provide a lookout; 2)

failed to train Bennett to use a radar; 3) failed to evaluate the

MISS    BERNICE’s       seaworthiness       or    Bennett’s      competence     (facts

particularly relevant considering the excessive engine noise that

may have helped cause the collision); 4) failed to inspect the

vessel logs; 5) failed to employ a safety manager; and, 6) failed

to provide safety training or safety manuals.                    The district court

additionally found that “Diamond B knew the MISS BERNICE had

operated in the fog and would continue to do so, yet employed a


                                           18
captain without the proper qualifications and without adequate

policies or procedures to guide him.” Based on these findings, the

district court had no difficulty in concluding that Diamond B

should be denied any limitation on its liability.

     Diamond B claims this was error.    Diamond B contends that all

it is guilty of is having a “hands-off” approach to management,

which it claims is permissible under this Court’s decision in

Kristie Leigh.   Diamond B is mistaken.      Though this Court did

recognize that a vessel owner could not be denied limitation of

liability based merely on errors in navigation or other negligence

by master or crew, Kristie Leigh, 72 F.3d at 481-482, the present

case presents far more than mere navigational errors.     Diamond B

was aware that Bennett had trouble hearing the radio over the

engine noise and that this noise also drowned out other vessels’

fog signals; yet Diamond B sent him out anyway.      Diamond B also

sent him out without a lookout and with a radar system that Bennett

had no training in how to use.   Diamond B claims that Bennett had

sufficient hands-on experience in using radar, but the fact that

Bennett could not even tell which direction the CANE RIVER was

traveling on radar indicates otherwise.    In short, the facts found

in this case go far beyond mere navigational errors.      Diamond B

knew, or should have known, that the MISS BERNICE was unseaworthy

and that its captain was improperly trained.         Therefore, the

district court’s decision is affirmed.


                                 19
Did the district court err in its allocation of damages owed to the
claimants and Bennett?

     The claimants and Bennett argue that the district court erred

in its allocation of damages.    The claimants maintain that the

district court violated the collateral source doctrine by taking

the income they derived from Texaco into consideration, and that

the amount of damages for medical expenses and future wages was in

error.   Bennett argues that he should not have been denied any

damages based on his failure to wear a seatbelt.6

     District courts enjoy “wide discretion” in awarding damages.

Douglass v. Delta Air Lines, Inc., 897 F.2d 1336, 1339 (5th Cir.

1990).   “The standard of review to apply in our inquiry into all

findings of fact, including damage awards, is a clearly erroneous

standard.”   Nichols v. Petroleum Helicopters, Inc., 17 F.3d 119,

121 (5th Cir. 1994).    “Furthermore, mere disagreement with the



     6
      Bennett also argues on appeal that Trico is not entitled to
judgment against him because he was never properly served. Though
Bennett was a party to the litigation from the outset, he claims
that Trico’s cross-claims against him, which Trico claims were
served by mail through Bennett’s attorney, were never received by
himself or his attorney. Bennett claims that he made a motion to
the district court to dismiss the claims against him by Trico but
that the district court refused to hear his motion. This is not
accurate. The district court denied Bennett’s motion as untimely.
Bennett has not argued on appeal that his motion was timely or
cited any authority as to why the district court erred in denying
his motion and his arguments on this point are therefore waived.
“[I]ssues not raised or argued in the brief of the appellant may be
considered waived and thus will not be noticed or entertained by
the court of appeals.” In re Tex. Mortgage Serv. Corp., 761 F.2d
1068, 1073 (5th Cir. 1985).     (citation and internal quotation
omitted).

                                20
district court’s analysis of the record is insufficient, and we

will not reverse a finding although there is evidence to support

it, unless the reviewing court on the entire evidence is left with

the   definite     and   firm    conviction   that   a   mistake   has    been

committed.”      Id. (internal quotations omitted).

A.    Bennett’s damages

      Bennett argues three points in support of his position that

the district court erred in finding his injury was caused by his

own negligence.     First, he argues that wearing a seatbelt was not

required, and that the only reason one would wear a seatbelt is if

waves or a rough sea would necessitate wearing one to keep from

falling down.     Since the river was calm the day of the collision,

Bennett argues, there was no reason to wear a seatbelt.             Second,

Bennett claims that his injuries would not have been prevented by

his wearing a seatbelt.         Despite the fact that he went through the

front windshield head-first, Bennett claims that the real injury

occurred from his brain hitting the side of his cranium, which he

contends would have occurred with or without a seatbelt.                 Third,

Bennett argues that seamen have very little duty under maritime law

to protect themselves and responsibility for his safety is mostly

up to the vessel owner.

      Bennett’s first argument defeats itself.           If the purpose of

wearing a seatbelt is to prevent the captain from falling down,

then it is axiomatic that it must be there to prevent the captain


                                       21
from being thrown through the windshield as well.            Additionally,

Bennett had already been in one collision in which he was not

wearing a seatbelt. Bennett’s second argument directly contradicts

the district court’s finding, which was based on medical testimony.

We   reject   this   argument     under   the    clear    error   standard.

Additionally, Bennett does not cite to a single case or piece of

medical evidence to support either of his above two assertions.

     As for Bennett’s third argument, even the very cases he relies

on recognize that a seaman has a duty to use reasonable care.             Bobb

v. Modern Products, Inc., 648 F.2d 1051, 1057 (5th Cir. 1981).

Plowing through the water at top speed in the fog, without the

benefit of a look-out or the ability to hear other vessels’ fog

signals or the radio by itself would violate any duty to take

reasonable care.     To do so without a seatbelt fastened is just

another step beyond that reasonable threshold. We therefore affirm

the district court’s findings that Bennett’s own negligence was the

sole or proximate cause of his injuries, preventing his recovery.

B.   The claimants’ general, past and future medical damages

     Thibodeaux was injured when he was thrown forward in the MISS

BERNICE and knocked unconscious, due to the collision.            Thibodeaux

was diagnosed   with   a   head   contusion     and   fractured   ribs,   and

complained of neck pain, vision problems, and ringing in his ears,

but apparently did not sustain any significant or permanent head

injury. He was also diagnosed with a preexisting degenerative disc


                                    22
disease at C5-6 and a longstanding osteophyte formation. About six

months    after     the    collision,   an   anterior    cervical    fusion   was

performed, after which Thibodeaux recovered and returned to work on

May 11, 2000, just over 13 months after the collision.                Thibodeaux

was awarded $50,000 in general damages and $48,553.74 in past

medicals, and no money was awarded for future medicals.                       The

district court based its award of general damages on testimony from

Thibodeaux and his treating physicians, the presence of preexisting

conditions (which Thibodeaux attempted to conceal), and general

damages awards made in prior cases.            The court based its award of

past     medicals     on    the   stipulated    amount    of   past    medicals

attributable to the collision and paid by Thibodeaux’s employer,

Texaco.

       Fontenot was injured when he fell while attempting to stand

after the first collision and was further injured when he hit his

head in the second impact. After the collision, Fontenot spent two

weeks in the hospital, suffering from fractured ribs, a partially

collapsed lung, a right kidney laceration, and neck pain.                     The

district court found that Fontenot sustained the internal injuries

in the first impact and the neck injuries in the second.                      In

February 2000, Fontenot had a discectomy and anterior cervical

fusion to correct his neck problems.             In February 2001, Fontenot

had a kidney removed to help relieve hypertension.                  The district

court found that both Fontenot’s neck problems and his hypertension

were preexisting conditions that were aggravated by the collisions.

                                        23
The district court awarded $100,000 in general damages for the

first impact and $75,000 in general damages for the second impact.

Fontenot was also awarded $106,045.11 for past medical expenses for

internal injuries from the first impact and $26,184.20 for past

medicals for cervical injuries from the second impact.          Fontenot

received nothing for future medical expenses, but was awarded

$45,000 for future lost wages due to his cervical injury.            The

district court based its general damages award on testimony from

Fontenot’s   treating    physicians,    the   presence   of   preexisting

conditions, Fontenot’s failure to mitigate his own injuries, and

general damages awards made in prior cases.         The district court

based its award of past medicals attributable to the collision on

the stipulated amount of past medicals paid by Fontenot’s employer,

Texaco, as well as on the cost of the kidney removal surgery.

     LeBlanc sustained injuries to his left knee and shoulder when

he was thrown forward into a table during the first impact, then

sustained injuries to his back when he was thrown backward during

the second impact.      LeBlanc spent two nights in the hospital and

received arthroscopic surgery to his left knee and shoulder for the

injuries sustained in the first impact.         In April 2000, LeBlanc

underwent lumbar surgery to correct a preexisting spondylolisthesis

at L4-5 which the district court found was aggravated by the second

impact.   In December 2000, LeBlanc underwent a cervical fusion to

relive neck pain, but the district court found that this condition

was preexisting and unrelated to the collision. The district court

                                   24
awarded LeBlanc $35,000 in general damages for injuries related to

the first impact and $125,000 for injuries related to the second

impact.    LeBlanc was also awarded $35,721.24 for the past medical

expenses related to the arthroscopic surgeries and $19,254.11 in

past medicals for the lumbar surgery. The district court based its

general    damages   award     on    testimony     from    LeBlanc’s     treating

physicians, the presence of preexisting conditions, and general

damages awards made in prior cases.            The district court based its

award of past medicals on the stipulated amount of past medicals

attributable to the collision and paid by LeBlanc’s employer,

Texaco.

     Though all three claimants allege that the district court’s

awards were inadequate in light of the nature of their injuries and

awards from similar cases, the district court’s awards appear to be

soundly within the range of reasonableness, and the claimants have

failed to show that the awards were clearly erroneous.                        The

district court found that all three claimants had a pre-existing

condition and that Thibodeaux had made attempts to conceal his pre-

existing   condition.        The    district    court     also   heard   detailed

testimony about all three of the claimants’ injuries and their

prognosis before coming to its final damage award.                  The district

court also    supported      all    of   its   general    damages   awards   with

citations to cases in which similar injuries yielded similar damage

awards.    Though all the claimants make arguments that the amounts

awarded should be higher, nothing in their briefs indicates that

                                         25
the district court was clearly erroneous.

C.   The claimant’s future lost wages

     All three claimants assert that the district court erred in

the amounts it awarded for future lost wages.          The claimants argue

that the court erred when it assumed they could return to work even

though they could not, or assumed that they could return earlier

than they actually could. The district court did award future lost

wages to Fontenot and LeBlanc but not to Thibodeaux because there

was already   a   stipulation   in   the     record   that   Thibodeaux   had

returned to work and was entitled to no future wage loss.             We do

not find this to be in error.             Fontenot and LeBlanc claim the

district court erred in finding that they had been cleared to

return to work.    In fact, the district court based its decision

about Fontenot on testimony contained in various doctors’ reports

and on the similarity of Fontenot’s injury to Thibodeaux’s. As for

LeBlanc, the district court did assess his future lost wages but

found, based on expert testimony, that he would be able to return

to a field of work and that he had transferrable skills.          Therefore

it does not appear that the district court was clearly erroneous.

D.   The claimants’ past lost wages

     The claimants assert that the district court erred because it

considered payments made to the claimants by Texaco and reduced

their award for past lost wages accordingly.            For the first six

months after the collision, each of the claimants received a semi-


                                     26
monthly   check   from    Texaco   covering      (1)    workers’   compensation

benefits, and (2) an additional amount under Texaco’s short-term

disability policy which was intended to make-up the difference

between the compensation benefits and their ordinary wages.                     The

district court found that these benefits actually constituted lost

wages, a finding the claimants now contest.                    As the claimants

offered   no   details     about   the    benefits,      the    district     court

determined that it could not use the factors set out in Phillips v.

Western Company of North America, 953 F.2d 923, 932 (5th Cir.

1992), and Davis v. Odeco, Inc., 18 F.3d 1237, 1243 (5th Cir.

1994), to make a finding that the benefits were in fact collateral.

The district court reduced the past lost wages award, despite the

collateral source rule, on two grounds: (1) by introducing evidence

of the past wages themselves, the claimants waived any objection;

and, (2) if the claimants were permitted to receive wages from both

Texaco and as damages, they would be receiving double recovery.

     “The collateral source rule is a substantive rule of law that

bars a tortfeasor from reducing the quantum of damages owed to a

plaintiff by the amount of recovery the plaintiff receives from

other   sources   of     compensation     that    are    independent       of   (or

collateral to) the tortfeasor.”          Davis, 18 F.3d at 1243.       “Sources

of compensation that have no connection to the tortfeasor are

inevitably collateral.” Id. at 1244. This court reviews decisions

concerning whether such benefits are collateral under a de novo


                                     27
standard.    Id. at 1245.

      The district court assumed that once a plaintiff introduces

evidence of past benefits received, they have waived any objections

about the benefits being used to reduce their past lost wages

award.    The finding of waiver, however, is not completely accurate

because the claimants did object to such benefits being considered

under the collateral source rule and, in fact, the district court

stated that it would not so consider the benefits.               It is true that

the claimants stipulated to these amounts at trial, but because

Texaco    was   seeking     reimbursement        for    these    amounts    as    an

intervenor, the claimants were required to so stipulate by the

Eastern   District’s      Code   of    Professionalism,      which    states,     in

relevant part that “[attorneys] will cooperate with counsel and the

court to reduce the cost of litigation and will readily stipulate

to all matters not in dispute.”               U.S. Dist. Ct. Rules E.D. La.,

Orders, Code      of   Professionalism        (adopted    Aug.   4,   1999).      We

conclude, therefore, that it is factually inaccurate to find that

the   claimants    waived    any      objection    to    these   benefits      being

considered in calculating their lost wages simply because the

stipulated amounts were introduced by the claimants.

      Obviously, by introducing such evidence, the claimants had

waived any evidentiary objections, but this is a different type of

waiver altogether from waiving an objection to their benefits being

reduced by the amount of their damages.                  In fact, in Parker v.


                                         28
Wideman, a panel of this Court, applying Florida law, stated that

the plaintiffs do not waive this substantive right just because

they introduce such evidence themselves.          380 F.2d 433, 436 (5th

Cir. 1967) (“Thus, while the tender of such evidence by the

defendant may be excluded on objection by the plaintiff, the

introduction of such evidence by the plaintiff does not bar him

from       recovering   expenses   necessitated   by   the   tort-feasor’s

negligence, even though the expenses were met by monies received

from a collateral source.”).7          We therefore conclude that the

claimants did not waive the collateral source rule objection.

       As for the second basis for its decision, that to give the

claimants credit for these benefits would give them a double

recovery, we also find that the district court erred. The district

court’s concerns about double recovery are misplaced as is its

seeming reliance on Phillips and Davis.8           In those cases, this

Court evaluated employee benefit programs to determine whether they

were bargained for fringe benefits rather than benefits intended to


       7
      In Gates v. Shell Oil, 812 F.2d 1509, 1513 (5th Cir. 1987),
this Court noted that the collateral source rule operates to
exclude evidence of collateral benefits because it may unfairly
prejudice the jury.       However, we noted that in ceratin
circumstances, such evidence could be admitted for a limited
purpose if there is little risk of prejudice and the court gives
the jury a limiting instruction.     Id.   Thus, the evidentiary
principle may be violated so long as it is still substantively
enforced.
       8
      The district court stated that it could not consider the
factors of Phillips and Davis because the claimants offered no
details about the nature of the benefits.

                                      29
anticipate potential legal liability on the part of the tortfeasor.

Davis, 18 F.3d at 1244.       “Thus, we have recognized that it would be

unfair to allow the plaintiff a double recovery when both the

liability judgment and the collateral benefits are paid for by the

defendant.”     Phillips, 953 F.2d at 931 (emphasis added).                These

concerns     about   double     recovery     were   in   the   context     of   a

tortfeasor/defendant having to pay twice, however, and not a third

party paying the benefits as we have here.          Therefore, there was no

need to rely on these cases in the first place.            Furthermore, there

was no second recovery in the present case, because the claimants

had   to   reimburse   Texaco    for   the    stipulated    amounts   of    past

benefits.9    Also, even if the claimants had not reimbursed Texaco,

the fact that the claimants may have gotten a second recovery would

still be irrelevant because to hold otherwise would punish the

claimants for having the foresight to establish and maintain

collateral sources of income.          Davis, 18 F.3d at 1244, n.21.

      Considering the factors above, we find that, to the extent

that the claimants past lost wages were reduced, the district

court’s decision was in error.         We therefore reverse and remand so

that the district court may enter a damages amount reflecting the

stipulated amounts paid by Texaco, which were previously excluded.


      9
      In fact, the end result of the district court’s ruling was
that the claimants had a “double loss” because the amounts were
deducted from their damages award, but then, the claimants were
forced to pay the stipulated amounts that were reduced out of their
remaining damages amount.

                                       30
Did the district court err in denying the claimants request for
attorney’s fees?

     The claimants also argue that they were inequitably denied

reimbursement from Texaco for attorney’s fees.             Under Louisiana

law, employees are generally allowed to recover a portion of their

attorney’s fees if their employer intervenes in a suit against a

third party tortfeasor.        La. Rev. Stat. Ann. § 23:1103.        As the

district court pointed out, however, a claimant seeking to recover

fees must introduce evidence sufficient to enable the court to make

a proper apportionment.        Rivet v. LeBlanc, 600 So.2d 1358, 1363

(La.App. 1 Cir. 5/22/1992).       As no such evidence was presented at

trial   or   in   connection   with   the   hearing   on   the   motion   for

attorney’s fees, the district court denied the claimants’ request.

Though the claimants believe that the district court should have

taken judicial notice of the claimants’ enrichment of Texaco, they

cite to no case law that supports this proposition.          Additionally,

§ 23:1103(c) provides in part that “the intervenor shall only be

responsible for a share of the reasonable legal fees and costs

incurred by the attorney retained by the plaintiff,” and “[t]he

amount of the portion of attorney’s fees shall be determined by the

district court based on the proportionate services of the attorneys

which benefitted or augmented the recovery from the third party.”

Despite the claimants’ assertions that it was obvious that the

Texaco attorneys rode on the coattails of their attorneys, they

provided no evidence on which the district court could make any

                                      31
sort of reasonable determination.                  We therefore conclude that the

district court’s decision was correct.

Did the district court err in finding that different injuries were
caused by the different impacts?

          The claimants assert that the district court erred by finding

that different injuries were caused by different impacts because

there was no testimony to support such findings.                   The claimants

argue that, if this Court should find that the CANE RIVER is

liable, then the injury determination has bearing on apportionment

of liability.                However, as the district court placed no liability

on the CANE RIVER and we affirm that decision today, this issue is

moot.

                                          CONCLUSION

          Having carefully reviewed the record of this case and the

parties’ respective briefing, and for the reasons set forth above,

we conclude that the district court’s orders should be AFFIRMED in

all parts except for that portion dealing with the claimants’ past

lost wages.                As to that part of the order, we REVERSE and REMAND so

that the district court may enter a damages amount reflecting the

stipulated amounts paid by Texaco, which were previously excluded.

AFFIRMED in part and REVERSED and REMANDED in part.




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