                                              United States Court of Appeals
                                                       Fifth Circuit
                                                     F I L E D
               In the                                March 22, 2006
United States Court of Appeals                    Charles R. Fulbruge III
        for the Fifth Circuit                             Clerk
           _______________

             m 05-30192
           _______________




     PHILLIP COMEAUX, II, ET AL.,

                             Plaintiffs,

               VERSUS

  COIL TUBING SERVICES, LLC, ET AL.,

                             Defendants,

       ELEVATING BOATS, LLC,

                             Defendant-
                             Counter Plaintiff-
                             Appellee-
                             Cross-Appellant,

               VERSUS

       ENERGY PARTNERS, LTD,

                             Defendant-
                             Counter Defendant-
                             Appellant-Cross-Appellee.
                                     _________________________

                             Appeal from the United States District Court
                                for the Eastern District of Louisiana
                                         m 2:02-CV-1790
                               ______________________________



Before JOLLY, HIGGINBOTHAM, AND SMITH,                    usual amount of gas escaping from the bottom
  Circuit Judges.                                         of the gas buster; he climbed onto the return
                                                          tank next to Hodges to investigate, whereupon
JERRY E. SMITH, Circuit Judge:*                           a flash fire erupted.

   Energy Partners, Ltd.(“Energy Partners”),                 Comeaux jumped from the return tank onto
and Elevating Boats, LLC (“Elevating                      the choke manifold to shut off the flow of gas,
Boats”), appeal a judgment resolving an in-               then reached for a fire extinguisher. It was
demnity dispute. We affirm.                               empty, however, so he ran to search for an-
                                                          other one. In doing so he collided with several
                       I.                                 objects, apparently including some 55-gallon
    A flash fire occurred on the deck of the              drums located on the deck. Although a func-
Mike Martin Elevator, a jack-up vessel owned              tional fire extinguisher was ultimately found,
and operated by Elevating Boats that was in-              several of the extinguishers Comeaux and his
volved with work with Coil Tubing Services at             team tried to use were empty or unusable.
an Energy Partners well pursuant to the Blan-
ket Time Charter agreement between Energy                     Comeaux allegedly suffered injuries from
Partners and Elevating Boats. Under the                   the incident and sued, claiming, inter alia, the
agreement, Elevating Boats was to provide                 following facts as to the negligence of Elevat-
vessel service for Energy Partners’ wells. Phil-          ing Boats: “d. Failing to provide complainant
lip Comeaux was one of the Coil Tubing                    with a safe place to work; e. Allowing an un-
Services employees working on the vessel. He              safe condition to exist on board the jack-up,
and his crew were monitored by Milton Hodg-               Mike Martin; f. Failing to have complainant
es.                                                       sent in after being injured; and g. Failing to
                                                          have fire extinguishers up to code.” Further,
   After completing an acid job, Hodges in-               Article 14 of the Complaint provided: “In ad-
structed Comeaux to bleed off pressure from               dition to the acts and/or omissions of negli-
the well. Comeaux was working on the deck                 gence complained of hereinabove, complain-
of the Mike Martin when he noticed an un-                 ant, Phillip Comeaux, II, asserts that the un-
                                                          seaworthy conditions of the jack-up rig, Mike
                                                          Martin, caused and contributed to his accident
   *                                                      and related injuries.”
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-            Comeaux dismissed Energy Partners early
cumstances set forth in 5TH CIR. R. 47.5.4.               in the suit. He later settled his claims against

                                                      2
Elevating Boats for $150,000, to be paid by            Partners also contends there is no evidence to
Elevating Boats or Energy Partners, depending          support the district court’s conclusion that En-
on the outcome of the contractual indemnity            ergy Partners is obligated to defend and in-
dispute between those parties. To resolve the          demnify Elevating Boats for that portion of
contract dispute, Elevating Boats and Energy           Comeaux’s injuries sustained by actions unre-
Partners consented to a bench trial based on           lated to Elevating Boats’ breach of the war-
the briefs.                                            ranty of seaworthiness. As cross-appellee, En-
                                                       ergy Partners defends the district court’s deci-
   The district court interpreted the Indemnity        sion that it did not have to indemnify Elevating
provision of the Blanket Time Charter agree-           Boats for Comeaux’s injuries related to the
ment to provide that Energy Partners did not           breach of the warranty of sea worthiness.
have to indemnify Elevating Boats for claims
based on the breach of the warranty of sea-               As cross-appellant, Elevating Boats argues
worthiness. The court further held that Com-           that the Blanket Time Charter agreement is
eaux’s claim against Elevating Boats for in-           ambiguous on the issue of whether Energy
juries arising from failure of the fire extin-         Partners must indemnify Elevating Boats for
guisher(s) to comply with Coast Guard regula-          claims against the latter based on the breach of
tions was basically a claim for breach of the          the warranty of seaworthiness. Elevating
warranty of seaworthiness, and was therefore           Boats urges that for that reason, the agreement
not indemnifiable by Energy Partners. It also          should be construed against Energy Partners,
held that Comeaux’s claim against Elevating            the drafter, and therefore should require En-
Boats for injuries arising out of his collision        ergy Partners to indemnify Elevating Boats for
with objects on the deck of the boat, in partic-       those claims. Elevating Boats also avers that
ular the drums, was indemnifiable because it           there is no evidence that any injuries resulted
was a claim by an employee of a subcontractor          from the collision with the drums. As appel-
of Energy Partners and was unrelated to Ele-           lee, Elevating Boats defends the district
vating Boats’ breach of the warranty of sea-           court’s decision that Energy Partners has to in-
worthiness.                                            demnify Elevating Boats for Comeaux’s in-
                                                       juries related to the collision with the drums.
   The court found Comeaux’s injuries attrib-
utable to Elevating Boats in the following                                    II.
manner: 50% by the absence of a working fire                                  A.
extinguisher (causing burns) and 50% by the               “The standard of review for a bench trial is
collision with the drums (causing back pain,           well established: findings of fact are reviewed
etc.). Id. Therefore, Energy Partners had to           for clear error and legal issues are reviewed de
indemnify Elevating Boats for 50% of its set-          novo.” In re Mid-South Towing Co., 418 F.3d
tlement costs. Id.                                     526, 531 (5th Cir. 2005) (quoting Kona Tech.
                                                       Corp. v. S. Pac. Transp. Co., 225 F.3d 595,
   Both parties appeal. Energy Partners ar-            601 (5th Cir. 2000)). Clear error exists if
gues that the court erred as a matter of law by        (1) the findings are without substantial evi-
awarding Elevating Boats 50% indemnity de-             dence to support them, (2) the court misappre-
spite the court’s factual finding that Com-            hended the effect of the evidence, and (3) al-
eaux’s injuries arose from Elevating Boats’            though there is evidence which if credible
breach of the duty of seaworthiness. Energy            would be substantial, the force and effect of

                                                   3
the testimony, considered as a whole, convinc-          whole is clear, explicit, and leads to no absurd
es the court that the findings are so against the       consequences, and as such it can be given only
preponderance of credible testimony that they           one reasonable interpretation.” Id. (citing
do not reflect or represent the truth and right         Mobil Exploration & Producing v. A-Z/Grant
of the case. Moorhead v. Mitsubishi Aircraft            Int’l Co., 1993 AMC 1137 (E.D. La. 1992)
Int’l, Inc., 828 F.2d 278, 283 (5th Cir. 1987).         (citing Nat’l Union Fire Ins. Co. v. Circle,
Reversal for clear error is warranted only if the       Inc., 915 F.2d 986, 989 (5th Cir. 1990) (per
court has “a definite and firm conviction that a        curiam))).
mistake has been committed.” Canal Barge
Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th               The agreement provides as follows:
Cir. 2000) (citing Mid-Continent Cas. Co. v.
Chevron Pipe Line Co., 205 F.3d 222, 229                   INDEMNITIES: (A) [Elevating Boats’]
(5th Cir. 2000)).                                          IndemnityObligationSSTo the fullest extent
                                                           permitted by applicable laws, [Elevating
                      B.                                   Boats] shall save, protect, defend, indem-
   Elevating Boats argues that the contract                nify, and hold [Energy Partners], its co-
does not provide unambiguously that Elevating              venturers, co-operators and partners, and
Boats’ breaches of the warranty of seaworthi-              their officers, employees, agents, represen-
ness are not indemnifiable by Energy Partners.             tatives and subcontractors (for the purposes
We disagree with Elevating Boats’ position.                of this clause, the “Indemnitees”) harmless
                                                           from and against all Claims even though
    “A basic principle of contract interpretation          such Claims may, in whole or in part, be
in admiralty law is to interpret, to the extent            caused by, or based or premised on, the
possible, all the terms in a contract without              ACTIVE, PASSIVE, SOLE OR CON-
rendering any of them meaningless or superflu-             CURRENT NEGLIGENCE OR OTHER
ous.” Chembulk Trading LLC v. Chemex                       LEGAL FAULT, OF EVERY KIND AND
Ltd., 393 F.3d 550, 555 (5th Cir. 2004) (citing            CHARACTER, OF ONE OR MORE
Foster Wheeler Energy Corp. v. AN NING                     INDEMNITEES. The term “Claims”
JIANG MV, 383 F.3d 349, 354 (5th Cir.                      under this Section (a) means all claims,
2004); Capozziello v. Brasileiro, 443 F.2d                 liabilities, judgments, damages, causes of
1155, 1159 (2d Cir. 1971)). “[A] freely nego-              action, fines, penalties, losses, costs, and
tiated private international agreement, unaf-              expenses (including, without limitation,
fected by fraud, undue influence, or over-                 attorneys’ fees, costs of witnesses, costs of
whelming bargaining power . . . should be                  discovery, and costs of court) sustained,
given full effect.” Foster Wheeler Energy                  incurred, or threatened against any
Corp., 383 F.3d at 354–55 (quoting M/S                     Indemnitee for, with respect to, or arising
BREMEN v. Zapata Off-Shore Co., 407 U.S.                   out of, directly or indirectly, (A) the death
1, 12–13 (1972)) (additional citations omit-               or personal injury to any of [Elevating
ted). “A contract is construed against the                 Boats’] or any of its subcontractors’ per-
drafting party only when it is ambiguous.”                 sonnel, employees, representatives, agents
Chembulk, 393 F.3d at 555 n.6 (citing Empire               or invitees and/or (B) the breach or
Fire & Marine Ins. Co. v. Brantley Trucking,               violation by [Elevating Boats] of its obliga-
Inc., 220 F.3d 679, 681 (5th Cir. 2000)). A                tions, covenants, and/or warranties under
contract is not ambiguous if “its language as a            this charter.

                                                    4
   (B) To the fullest extent permitted by ap-            ergy Partners’ or any of its subcontractors’
   plicable laws, [Energy Partners] shall save,          personnel, representatives, agents or invitees.
   protect, defend, indemnify, and hold [Ele-            Comeaux’s claim falls under this provision
   vating Boats], its officers, employees,               because he is either an employee of a subcon-
   agents and representatives (for purposes of           tractor of Energy Partners (Coil Tubing) or an
   this clause and unless otherwise noted, the           invitee of Energy Partners.
   “Indemnitees”) harmless from and against
   all Claims even though such Claims may, in               In this Paragraph (B), “Claims” is defined
   whole or in part, be caused by, or based or           as “all claims for, with respect to, or arising
   premised on, the ACTIVE, PASSIVE,                     out of, directly or indirectly, the death of or
   SOLE OR CONCURRENT NEGLI-                             personal injury to any of [Energy Partners’] or
   GENCE OR OTHER LEGAL FAULT, OF                        any of its subcontractors’ . . . personnel, repre-
   EVERY KIND AND CHARACTER, OF                          sentatives, agents or invitees.” Further, the
   ONE OR MORE INDEMNITEES. Except                       term “‘Claims’ under this Section (b) does not
   as limited below and subject to the provi-            include any of the categories of Claims as de-
   sions of OWNER’S DUTIES AS TO                         fined in Section (a)(A) and/or Section (a)(B),
   MANAGEMENT, OPERATION AND                             for which Indemnitees under Section (a) of this
   NAVIGATION OF VESSEL above, the                       INDEMNITEES [sic] provision are indem-
   term “Claims” under this Section (b) means            nified by [Elevating Boats].”
   all claims, liabilities, judgments, damages,
   causes of action, fines, penalties, losses,              Under this express exception from its duty
   costs, and expenses (including, without               to indemnify, Energy Partners need not pro-
   limitation, attorney’s fees, costs of wit-            vide indemnity for “categories of Claims” un-
   nesses, costs of discovery, and costs of              der section (a)(A) and/or section (a)(B), for
   court) sustained, incurred, or threatened             which Energy Partners and other Indemnitees
   against any Indemnitee for, with respect to,          under section (a) are indemnified by Elevating
   or arising out of, directly or in directly, the       Boats. Section (a)(B) includes claims for
   death of or personal injury to any of [En-            breaches of “warranties under this charter” by
   ergy Partners’] or any of its subcontractors’         Elevating Boats. One of the warranties under
   (other than the above-named Indemnitees)              the Blanket Time Charter is the warranty of
   personnel, representatives, agents or invit-          seaworthiness, which Elevating Boats owes to
   ees. The term “Claims” under this Section             Energy Partners.1 Therefore, Energy Partners
   (b) does not include any of the categories
   of Claims as defined in Section (a)(A)
                                                            1
   and/or Section (a)(B), for which Indemnit-                   The warranty is as follows:
   ees under Section (a) of this INDEMNIT-
   EES [sic] provision are indemnified by Ele-              [Elevating Boats] hereby warrants that the ves-
   vating Boats.                                            sel(s) is/are now, and at all times during the
                                                            term of this charter will be maintained by [El-
                                                            evating Boats], at [Elevating Boats’] expense,
    Because Elevating Boats is seeking indem-
                                                            properly staunch, strong, and in all respects
nity from Energy Partners, that claim is gov-
                                                            seaworthy and in good repair and running con-
erned by Paragraph (B), under which Energy                  dition; and shall comply in all respect with the
Partners must indemnify Elevating Boats for                 requirements, if any, of the United States Coast
all “Claims” arising from injury to any of En-                                                 (continued...)

                                                     5
has no duty to indemnify Elevating Boats for                 court.
a breach of the warranty of seaworthiness.
                                                                 Elevating Boats contends, however, that
   Under section (a)(B), Elevating Boats must                there is an ambiguity in the indemnity provi-
indemnify Energy Partners not only for claims                sion and urges us to read the exclusion in sec-
by employees or agents of Elevating Boats,                   tion (b) as follows: “Although Energy Part-
but also for claims by employees or agents of                ners owes indemnity to Elevating Boats if an
Energy Partners if the claims are for breaches               employee of Energy Partners’[] contractor
of warranty. As the district court explained,                sues Elevating Boats, this rule does not apply
this is not a regular knock-for-knock indem-                 if the contractor happens to be Elevating Boats
nity agreement whereby each party would in-                  itself.” This argument is without merit, be-
demnify the other for claims brought by its em-              cause the sentence preceding the exclusion in
ployees or subcontractors’ employees. Rather,                section (b) already yields that result. That sen-
as section (a)(B) provides, Elevating Boats                  tence provides that Energy Partners must
must indemnify Energy Partners—even for                      indemnify Elevating Boats under section (b)
claims by Energy Partners’s employees or                     for “claims sustained, incurred, or threatened
agents—if those claims are based on a breach                 against any Indemnitee” arising out of “the
of the warranty of seaworthiness.                            death of or personal injury to any of [Energy
                                                             Partners’s] or any of its subcontractors’ (other
    As under section (a)(B), Energy Partners is              than the above-named Indemnitees) personnel,
owed indemnification for claims of its employ-               representatives, agents or invitees” (emphasis
ees/agents based on breach of warranty, it                   added). Because under section (b), Elevating
cannot also be true that Energy Partners owes                Boats is one of the “above-named Indemni-
indemnification under section (b) for claims of              tees,” Energy Partners has no obligation to re-
its employees/agents based on breach of this                 imburse claims arising from the death of an
warranty. Therefore, the “exclusion” in sec-                 employee/agent of Elevating Boats. There-
tion (b) merely serves to clarify that there is no           fore, we will not interpret the exclusion so as
inconsistency between section (a) and section                to render the preceding sentence superfluous.
(b): Under the exclusion, there is no re-
quirement that Energy Partners indemnify Ele-                   Elevating Boats also argues that “Claims”
vating Boats—even if an employee of Energy                   under section (a)(A) and/or section (a)(B) are
Partners sues Elevating Boats—if the claim is                only claims “against any Indemnitee” under
based on a breach of the warranty of seawor-                 section (a). Accordingly, Elevating Boats rea-
thiness. Therefore, the language of the exclu-               sons that the exclusion in section (b) does not
sion is plain and unambiguous and commands                   apply to Elevating Boats because Elevating
the interpretation provided by the district                  Boats is not an “Indemnitee” under section (a).

   1
    (...continued)                                               This interpretation is incorrect. By defini-
   Guard covering vessels of its type . . . . In light
                                                             tion, claims for which indemnity is required
   of this express exception to Energy Partners’
                                                             under section (b) are against an Indemnitee
   duty to indemnify, the district court correctly
   concluded that a claim against Elevating Boats            under section (b), namely Elevating Boats and
   for breach of the warranty of seaworthiness is            its officers/representatives. Thus, section (b)
   not indemnifiable by Energy Partners.                     already excludes claims against Indemnitees

                                                         6
under section (a), namely Energy Partners and              GENCE OR OTHER LEGAL FAULT, OF
its partners and co-venturers and their offi-              EVERY KIND AND CHARACTER, OF
cers/representatives. This is because Elevating            ONE OR MORE INDEMNITEES” strongly
Boats is not a co-venturer and partner of                  suggest that all claims against Elevating Boats
Energy Partners.                                           would be indemnified. This argument fails, be-
                                                           cause “all Claims” does not mean strictly “all
    Accordingly, interpreting the exclusion in             claims,” but instead all claims that fit within
section (b) to mean that only certain claims               the definition of “Claims.” “Claims” in this
against an Indemnitee under section (a) are ex-            particular context is defined to exclude claims
cluded would render this provision superflu-               for breach of warranties made by Elevating
ous: Claims against an Indemnitee under sec-               Boats in the charter.
tion (a) are already excluded by the definition
of an Indemnitee under section (b). Thus, the                                    III.
interpretation proposed by Elevating Boats is                 Elevating Boats contends that the district
contrary to the principles of contract interpre-           court committed clear error in finding that
tation discussed above.2                                   some of Comeaux’s injuries resulted from his
                                                           collision with the drums. The court deter-
   Elevating Boats further urges that the in-              mined that “Energy Partners has presented
demnity provision is ambiguous because the                 enough evidence to satisfy its burden of prov-
words “against all Claims even though such                 ing that Comeaux likely sustained at least a
Claims may, in whole or in part, be caused by,             share of his injuries from colliding with the
or based on premised on, the ACTIVE, PAS-                  drums.” This factual finding must stand unless
SIVE, SOLE OR CONCURRENT NEGLI-                            clearly erroneous. FED. R. CIV. P. 52(a);
                                                           Canal Barge Co., 220 F.3d at 375.

   2
                                                                                  A.
      Also, the exclusion in section (b) is for
                                                              There is sufficient evidence to support the
“categories” of Claims under section (a)(B), not for
Claims against an actual Indemnitee under section
                                                           finding that some of Comeaux’s injuries re-
(a)(B). “Categories of Claims” under section               sulted from the collision with the drums.
(a)(B) are the three categories mentioned in that          Comeaux testified that when he ran across the
section: (1) breach of obligations, (2) breach of          deck to find another fire extinguisher, he hit
covenants, and (3) breach of warranties under the          “everything.” He also testified that he hit
Blanket Time Charter. Comeaux’s claim against              three fifty-five-gallon drums on the deck. Al-
Elevating Boats at issue here is for breach of the         so, the record includes doctors’ analyses of
warranty of seaworthiness. That claim falls within         medical scans and other reports showing injury
a category of claims under section (a)(B), which is        to his lower back regions, and demonstrating
therefore excluded under section (b). Although the         that he was undergoing physical therapy and
exclusion states that Energy Partners does not owe         received strong medication for his back pain.
indemnification for those categories of claims
under section (a)(B) “for which Indemnitees under
section (a) of this INDEMNITEES [sic] provision
                                                              Further, about two months after the acci-
are indemnified by [Elevating Boats],” this
language does not negate the fact that it is               dent and six months before suing, Comeaux
“categories” of claims that are excluded, not actual       saw a doctor, whose notes state “[t]hen began
claims against particular Indemnities.                     running due to fire. Hit 2 fifty-five gallon

                                                       7
drums. Attempted to run but RLE too much                   collided with the drums. Moreover, although
pain.” Two days later, Comeaux reported the                Comeaux did not report the collision to doc-
same collision with drums to his physical ther-            tors in the first seven weeks after the accident,
apist. There is evidence that he reported the              he did report it consistently thereafter, which
same story to other doctors later.                         was six months in advance of filing suit. Com-
                                                           eaux’s statement to Dr. Shutte that he did not
   Elevating Boats objects to this testimony as            know “when” he started to have pain in his
hearsay. We review evidentiary rulings for                 back and pain during the accident does not
abuse of discretion. Johnson v. Ford Motor                 contradict the fact that he had such pain or
Co., 988 F.2d 573, 578 (5th Cir. 1993). The                that he collided with the drums.
office notes and the other statements to doc-
tors are admissible as statements made for the                We are also unconvinced by Elevating
purpose of treatment, because the statements               Boats’ argument that Comeaux was self-inter-
are of the type pertinent to Comeaux’s physi-              ested in making the statements to the doctors
cian in providing treatment. FED. R. EVID.                 because he wanted to add Elevating Boats to
803(4); cf. Wilson v. Zapata Off-Shore Co.,                the lawsuit. Comeaux already had a basis for
939 F.2d 260, 272 (5th Cir. 1991).3 In his                 a strict liability claim against Elevating Boats
comments to the doctors, Comeaux did not                   for the burns he suffered from the absence of
attribute fault, but merely explained how the              a working fire extinguisher on Elevating
injury came about, which is relevant to diag-              Boats’ vessel. Also, because Comeaux’s state-
nosis or treatment.                                        ments were made six months before filing suit,
                                                           and close to the accident, they are less likely to
   Elevating Boats counters that the hearsay               have been made for litigation purposes as
exception should not apply because there is a              opposed to being made to obtain treatment. In
discrepancy between the early and later ver-               any event, the fact that a statement is made to
sions of Comeaux’s story. We see no such                   a doctor for the purposes of litigation is a
discrepancy: Comeaux never denied, in his                  matter of weight and not of admissibility, so
earlier accounts of his injuries, that he had              long as the statements are pertinent to
                                                           diagnosis. 4 STEPHEN A. SALTZBURG ET AL.,
                                                           FEDERAL RULES OF EVIDENCE MANUAL §
   3
      Hearsay is generally inadmissible, FED. R.           803.02[5][c] (8th ed. 2002).
EVID. 802, because oath, personal appearance at
trial, and cross-examination are the best                      Elevating Boats also argues that Com-
mechanisms to ensure truthful and accurate                 eaux’s evidence was not credible because he
testimony. Nevertheless, some classes of hearsay           made false statements to medical providers in
are excluded from rule 802’s prohibition against           the past when he said he did not have back and
the admissibility of hearsay. Rule 803 excludes            neck problems before the accident. Even
certain types of statements from the hearsay ban           assuming, however, that these statements were
even though the declarant is available as a witness,       lies rather than simple mistakes, there is no
primarily because under certain circumstances, a
                                                           proof that these past “lies” were related to this
statement, although it is hearsay, may still possess
                                                           lawsuit. Therefore, the district court did not
circumstantial guarantees of trustworthiness
sufficient to justify its admission as evidence.           abuse its discretion in admitting the statements
Moss v. Ole S. Real Estate, Inc., 933 F.2d 1300,           made to medical providers.
1309-10 (5th Cir. 1991).

                                                       8
    Furthermore, even if the statements were                  ered as a whole, convinces the court that the
inadmissible, Comeaux testified in the deposi-                findings are so against the preponderance of
tion that he was hitting everything on the deck               credible testimony that they do no reflect or
and that he hit the drums. Accordingly, the                   represent the truth and right of the case. Ele-
medical statements merely corroborate his tes-                vating Boats argues that Comeaux’s state-
timony under oath.4 Therefore, there is sub-                  ments discussed above are unreliable because
stantial evidence to support the finding of in-               the only three men on the deck at the time of
juries resulting from a collision with the drums,             the explosion did not see Comeaux collide
and the district court did not misapprehend the               with the drums. But, these three men admitted
effect of that evidence.                                      that they did not see Comeaux at all once he
                                                              began running on the deck, because they were
                       B.                                     running in opposite directions.
   Because there is no clear error under prong
(1) or (2) of the clear error test,5 Elevating                   Hodges testified that he did not see Com-
Boats’ other challenges must be considered                    eaux after the fire erupted because he was run-
under prong (3): If, although the evidence dis-               ning in a different direction. Von Harper re-
cussed above would be substantial if credible,                counted that he ran with Hodges. This sug-
the force and effect of the testimony, consid-                gests that Von Harper also did not see Com-
                                                              eaux. Von Harper also stated that he could
                                                              not see well because it was pitch dark, and that
   4
       Elevating Boats suggests that Comeaux’s                he had to turn his head to watch where he was
medical statements are not admissible because he              going to get the fire extinguisher. This
did not testify from personal knowledge. Elevating            testimony, to the effect that Hodges and Von
Boats points to no evidence that Comeaux did not              Harper did not see a collision because they
have any personal knowledge of a collision in                 were not looking in the direction of the colli-
which he was involved, other than his statement               sion, does not contradict therefore Comeaux’s
that at the time of the accident he did not realize he        statement that the collision occurred.
had collided with the drums until ten minutes after
the collision, when John Walker told him. Al-
                                                                  Although John Walker testified that Com-
though Comeaux stated that Walker had told him
of the alleged collision ten minutes after it allegedly       eaux did not run into any drums, he also in-
occurred, it does not mean that Comeaux did not               dicated that he fled the boat immediately after
independently recall the collision later. Comeaux             the eruption because he was scared, and he
did not testify that he believed that the collision           was about forty feet from the fire when he
occurred based only on Walker’s comments.                     turned around. In light of Walker’s contradic-
                                                              tory testimony, the district court committed no
   5
      As discussed, clear error exists if (1) the             clear error in discounting the credibility of the
findings are without substantial evidence to support          Walker testimony and believing that of Com-
them, (2) the court misapprehended the effect of the          eaux. Therefore, the preponderance of credi-
evidence, and (3) if, although there is evidence              ble testimony does not contradict the evidence
which if credible would be substantial, the force
                                                              relied on by the district court.
and effect of the testimony, considered as a whole,
convinces the court that the findings are so against
the preponderance of credible testimony that they                                  IV.
do no reflect or represent the truth and right of the           Energy Partners argues that the district
case. Moorhead, 828 F.2d at 283.                              court erred in awarding Elevating Boats 50%

                                                          9
indemnity despite the factual finding that Com-            is that a district court or jury may find that a
eaux’s injuries arose from Elevating Boats’                vessel owner is negligent in having a cluttered
breach of the duty of seaworthiness. This                  deck, yet not so utterly negligent as to be
claim misstates the court’s factual findings.              deemed as having rendered the vessel unsea-
                                                           worthy or unfit for “its intended use.”7
   Although it did find that Comeaux’s burns
resulted from the breach of the warranty of                    As the Simeon court explained, although
seaworthiness, the court found that some other             the shipowner has an absolute duty to provide
injuries, including Comeaux’s back pain, might             a seaworthy vessel, the vessel need not be
have arisen from the collision with the drums,             “‘accident-free.’”8 The duty of seaworthiness
which the court described as “unrelated to the             is only a duty “to furnish a vessel and appurte-
breach” of the warranty of seaworthiness.                  nances reasonably fit for their intended use.
Further, the court required that Energy                    The standard is not perfection, but reasonable
Partners indemnify Elevating Boats only for
those latter injuries. Therefore, because the
court did not award indemnity for claims based
on the breach of the warranty of seaworthi-
ness, it did not err as a matter of law.
                                                           (...continued)
   Energy Partners’ actual discussion of this              Contrary to Energy Partners’ claim, the district
issue could be read to suggest that the colli-             court never actually decided that the negligence
sion with the drums arose from Elevating                   that caused the collision with the drums occurred
                                                           from a breach of the warranty of seaworthiness.
Boats’ breach of its warranty of seaworthiness,
                                                           Rather, the court specifically noted that the
not from some other type of unrelated                      collision with the drums arose from negligence
negligence.6 The law of this circuit, however,             “unrelated” to that breach.
                                                              7
                                                                 Simeon v. T. Smith & Son, Inc., 852 F.2d
   6
       In its brief, Energy Partners argues that it        1421, 1433 (5th Cir. 1988) (stating that a
                                                           reasonable jury can find negligence based on iron
   . . . presented evidence which the trial court          ore scattered on deck and a knot in the mooring line
   found by a preponderance that Elevating Boats           and “still conclude that the [vessel] was
   was negligent . . . . [T]he facts and evidence          ‘reasonably fit’ for its intended use as a derrick
   presented by Energy Partners proved that the            barge”). The “warranty of seaworthiness” covers
   fire extinguishers on the deck of the Mike Mar-         all parts of the vessel and its operation, including
   tin Elevator were either inoperable or not              the hull, machinery, appliances, gear and
   functioning correctly, and that Mr. Comeaux             equipment, and other appurtenances. The duty of
   sustained a share of his injuries from colliding        seaworthiness is implicated where cargo is
   with the drums . . . .                                  improperly loaded or stowed, and a statutory or
                                                           regulatory violation may amount to
      Further, the trial court correctly determined        unseaworthiness per se.          The warranty of
   that not only was Elevating Boats’ negligence           seaworthiness extends to manning the vessel; an
   a breach of the duties it owed to Mr. Comeaux,          incompetent or inadequate master or crew may
   but also, more importantly, it was a breach of          render the vessel unseaworthy.
   its contractual warranty of seaworthiness
                                                              8
   owed to Energy Partners.                                    Id. (citing Mitchell v. Trawler Racer, Inc.,
                             (continued...)                362 U.S. 539 (1960)).

                                                      10
fitness . . . .”9 Not all forms of negligence can         tered deck.
render a vessel unseaworthy. In Brunner v.
Maritime Overseas Corp., 779 F.2d 296, 298                    The captain of the vessel testified he was
(5th Cir. 1986), this court explained that “We            aware that the deck became cluttered when
do not have the right to second guess a jury              Coil Tubing and EnergyPartners overcrowded
that may decide a small oil spill on a deck               it with equipment, but that he did not object
does not necessarily make an 80,000 ton tank-             because there were some walkways that per-
er unseaworthy even if the spill got there                mitted workers to traverse the deck. He also
negligently.”10                                           testified that he had the authority to order
                                                          some of the equipment removed if he believed
                        V.                                its position was a safety hazard because it ob-
    Energy Partners claims it had no duty to in-          structed the walkway.
demnify Elevating Boats for Comeaux’s injur-
ies based on the collision with the drums, be-                Thus, even if a third party caused the deck
cause the district court did not mention how              to be cluttered, Elevating Boats, as the opera-
those injuries were “attributable in any way to           tor of the vessel, had a duty to remedy or ob-
Elevating Boats.” The district court found                ject to that clutter. Although the captain be-
that Comeaux sustained at least a share of his            lieved there was no negligence because of the
injuries from the collision with the drums. Al-           walkways, Comeaux was certainly free to ar-
though the court did not explain precisely that           gue negligence, because the walkways did not
the claim against Elevating Boats based on the            perform adequately in a chaotic, emergency
collision with the drums was premised on Ele-             situation. Given the finding that at least some
vating Boats’ negligent maintenance of the                of Comeaux’s injuries arose from the collision
deck (which was cluttered), it was implicit in            with the drums, any error the district court
the decision ordering indemnification. Indem-             may have committed, by not expressly finding
nification can be ordered only if there is a              that the claim for injuries suffered from the
claim premised, in whole or in part, on the “ac-          collision with the drums was based on Elevat-
tive, passive, sole or concurrent negligence or           ing Boats’ negligent maintenance of the deck,
other legal fault, of every kind and character”           is harmless.
of Elevating Boats.
                                                             AFFIRMED.
   Contrary to Energy Partners’ assertions,
Comeaux’s injuries resulting from the collision
with the drums are not solely based on the
negligence of third parties. Rather, Com-
eaux’s complaint, which alleges that Elevating
Boats allowed an unsafe condition, encom-
passes a claim of negligence based on a clut-

   9
       Id.
   10
      Id. at 299 (emphasis added). See also Kok-
esh v. Am. S.S. Co., 747 F.2d 1092, 1094 (6th Cir.
1984) (same).

                                                     11
