                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT               December 13, 2004

                                                         Charles R. Fulbruge III
                            No. 03-30054                         Clerk



         TUG BARBARA E. BOUCHARD CORP. and B NO. 235 CORP.,

                      Plaintiffs--Third-Party Defendants--Counter
                          Defendants–-Appellants-–Cross-Appellees,

                               versus

      AMAZONIA MV, her engines, tackle, apparel, etc., in rem,

                             Defendant--Appellee--Cross-Appellant,

                                and

              A. T. SHIPPING CO. LTD.; STANSHIPS INC.;
          STANDARD SHIPPING, INC.; and ABC INSURANCE CO.,

                      Defendants--Third-Party Plaintiffs--Counter
                          Plaintiffs--Appellees--Cross-Appellants,

                                and

                STANDARD SHIPPING LTD., in personam,

                                                    Cross-Appellant.



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


Before BARKSDALE, GARZA, and DeMOSS, Circuit Judges.

PER CURIAM*:

      This appeal concerns a maritime tort suit filed by Plaintiffs-



  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
-Third-Party       Defendants--Counter            Defendants--Appellants--Cross-

Appellees    Tug    Barbara    E.     Bouchard         Corp.   and    B   No.    35   Corp.

(together,       “Bouchard”)         against       Defendants--Appellees--Cross-

Appellants AMAZONIA MV; A. T. Shipping Co. Ltd; Stanships Inc.,

Standard     Shipping,       Inc.;     and       ABC    Insurance      Co.      (together,

“Stanships”). Bouchard appeals the district court’s final judgment

in favor of Stanships after a bench trial.1                          For the following

reasons, we AFFIRM the district court.

                                      BACKGROUND

      On   the     morning    of     October      11,    2001,   Charles         Culpepper

(“Culpepper”), captain of the tug BARBARA E. BOUCHARD, was en route

to Pascagoula, Mississippi, along the Mississippi River but decided

to anchor the BARBARA E. BOUCHARD and attached BARGE 235 (together,

the “BOUCHARD flotilla”) at the Boothville anchorage due to bad

weather.     The BOUCHARD flotilla was approximately 550 feet long.

While anchored, she initially faced upriver; however, the wind and

tide caused the BOUCHARD flotilla to swing toward the concrete

river bank.        She was affected by the wind because she was not

loaded with cargo.       Culpepper was concerned about possible damage

from the bank, so that evening between 5:00 and 6:00 p.m. he

reanchored the BOUCHARD flotilla about 100 to 150 feet further

toward the center of the river.              Culpepper put out about four shots

  1
   We agree with Stanships that its cross-appeal regarding a Rule
15 amendment to add a party is moot because Bouchard did not appeal
the district court’s ruling or brief any argument pertaining to the
proper parties.

                                             2
of anchor cable, equivalent to about 360 feet.      Culpepper stated

the BOUCHARD flotilla’s anchor was still within the Boothville

anchorage.   That night the winds got up to 50 miles per hour, and

there were rain squalls.    However, the anchor did not drag.

     On October 12, 2001, Culpepper remained at the Boothville

anchorage due to the bad weather.      The wind was still causing the

stern of the BOUCHARD flotilla to swing toward the east bank of the

river.    In this perpendicular position, there was approximately a

quarter of a mile of river between the BOUCHARD flotilla and the

east bank.    Other vessels were able to pass safely between the

BOUCHARD flotilla and the east bank.        Several of those passing

vessels contacted the BOUCHARD flotilla about her position in the

center of the river.

     On October 13, 2001, the loaded AMAZONIA, piloted by Captain

Jack Grubbs (“Grubbs”), was proceeding upriver at full maneuvering

speed.    The AMAZONIA’s gyrocompass was not functioning, and the

Coast Guard had granted the vessel permission to proceed during

daylight hours only.       The AMAZONIA was required to anchor by

sundown, approximately 6:32 p.m.

     Lower Plaquemines Parish had been under a tornado watch all

day, and there were severe weather warnings in the vicinity of

Terrebonne Bay.    When Culpepper came on duty at 5:00 p.m., there

was a severe storm warning for southeast Louisiana.     By this time,

the Boothville anchorage was filled with a number of other tugs and

barges.    Unlike the BOUCHARD flotilla, these vessels were loaded

                                   3
with cargo.       About 6:00 p.m. a squall approached the area.                When

Culpepper noticed the clouds, he had the engineer start the engines

in case he had to maneuver the BOUCHARD flotilla in the wind.

     About       this   time,    Culpepper    first   visually      observed    the

AMAZONIA,    approximately        a   mile   below    the   BOUCHARD   flotilla.

Culpepper was aware that the AMAZONIA was traveling northbound

because he had heard Grubbs on the radio.             The BOUCHARD flotilla’s

bow was still pointed toward the west bank, and her stern was

pointed toward the east bank.           However, within minutes the squall

approached and the winds began hitting the BOUCHARD flotilla like

a “freight train,” causing the bow to swing toward the center of

the river.       The BOUCHARD flotilla began to drag anchor and rotate

in a clockwise manner across the river toward the east bank.                   This

occurred at the same time the AMAZONIA was passing between the

BOUCHARD flotilla and the east bank of the river.

     Culpepper tried to use his engines to back away from the

approaching AMAZONIA.           He blew the danger signal and attempted to

contact the AMAZONIA by radio.           The AMAZONIA steered hard right to

avoid collision. However, Culpepper lost control and the starboard

bow of the BOUCHARD flotilla collided with the port bow of the

AMAZONIA    at    approximately       6:05   p.m.     After   the    two   vessels

collided, they were parallel to each other in the river.                        The

AMAZONIA continued to travel northbound and eventually grounded on

the east bank side of the river.

     Bouchard filed a complaint under the general maritime laws

                                         4
against Stanships for damages sustained when the BOUCHARD flotilla

and the AMAZONIA collided on the Mississippi River.      Stanships

counterclaimed for damages sustained by the AMAZONIA and also filed

a third-party complaint against Bouchard’s insurer, Continental

Insurance Co.   A bench trial was conducted, and the district court

granted Stanships’s motion for judgment as a matter of law.    The

district court found Bouchard solely at fault for the collision and

granted Stanships’s claims against Bouchard.       Bouchard timely

appealed.

                            DISCUSSION

Whether the district court erred by applying a strict liability
theory rather than a negligence standard in finding the BOUCHARD
flotilla responsible for the collision.

     Bouchard argues on appeal that the district court erred as a

matter of law in applying a theory of strict liability rather than

a negligence standard in finding the BOUCHARD flotilla responsible

for the collision.   Bouchard maintains the court held it strictly

liable because the court found it had violated the anchorage

regulations set forth in 33 C.F.R. § 110.195.   Stanships contends

the district court did not impose strict liability and instead

imposed the correct standard of reasonable care in finding Bouchard

solely responsible for the collision.

     While Bouchard is correct that the district court determined

that the BOUCHARD flotilla had violated several provisions of §

110.195, the court also noted Culpepper’s testimony that the


                                 5
BOUCHARD flotilla was positioned perpendicular to the west bank and

was being blown by the wind, before and after the squall.                  The

court pointed to Culpepper’s lack of control and the fact he knew

the AMAZONIA was approaching to pass while the BOUCHARD flotilla

was being blown toward the center of the river into oncoming

traffic.    The court determined Culpepper failed to take corrective

action and exercise due diligence despite the BOUCHARD flotilla’s

being blown outside the anchorage limits before the squall.                 The

court found “the force of the wind, combined with the perpendicular

anchorage, length and type of anchor line, and lack of control and

reasonable    monitoring      of   the    anchorage”   caused   the   BOUCHARD

flotilla to drag anchor into the path of the AMAZONIA.

     Thus, the record does not support Bouchard’s argument that the

court applied a theory of strict liability instead of a theory of

negligence.    Moreover, we conclude the court’s factual findings on

Culpepper’s lack of due diligence and his negligence are not

clearly erroneous.         See Avondale Indus., Inc. v. Int’l Marine

Carriers,    Inc.,   15    F.3d    489,   492   (5th   Cir.   1994)   (treating

negligence questions as factual issues in admiralty actions).

Whether the district court erred in not considering the BOUCHARD
flotilla in extremis.

     Bouchard next argues the district court erred as a matter of

law in not considering Culpepper’s actions in light of the in

extremis doctrine.        See Employers Ins. of Wausau v. Suwannee River

Spa Lines, Inc., 866 F.2d 752, 771 (5th Cir. 1989) (explaining that

                                          6
the in extremis doctrine only applies to a vessel which “without

prior   negligence”   encounters    “destructive     natural   forces”).

Stanships responds that the district court was correct in finding

that all of Culpepper’s negligent actions occurred prior to the

start of the squall, such that the in extremis doctrine was not

applicable here.

     Here, the district court found negligence on the part of

Culpepper because he did not take proper corrective action to

reposition the BOUCHARD flotilla before the squall ever started.

Because the BOUCHARD flotilla was found to be negligent prior to

the storm, we conclude the in extremis doctrine was inapplicable.

Whether the district court’s findings pertaining to proximate cause
were clearly erroneous.

     Bouchard also argues the district court’s findings pertaining

to proximate cause are clearly erroneous.         Bouchard contends the

proximate cause of the collision was neither the location of the

BOUCHARD flotilla nor the storm, but instead was the AMAZONIA’s

decision to proceed at full speed in a squall in order to reach

anchorage by nightfall (which she was forced to do because of her

unseaworthiness).     Bouchard     relies   on   Deutsche   Shell   Tanker

Gessellschaft mbH v. Placid Refining Co., 993 F.2d 466, 468, 474

(5th Cir. 1993), where this Court affirmed that a vessel’s failure

to maintain her radar in seaworthy condition was the proximate

cause of her grounding.

     Stanships argues this case is factually distinguishable from

                                    7
Deutsche    Shell.          Here,   the    AMAZONIA’s             radar   was     entirely

functional.       While the AMAZONIA did have an inoperable gyrocompass

on the day of the collision, she had permission from the Coast

Guard to operate during daylight hours.                       The collision occurred

during daylight hours, and there was testimony the collision was

not due to the inoperable gyrocompass.                       Stanships contends the

district court correctly determined that there was no credible

evidence that the AMAZONIA’s speed or other actions played any role

in causing the collision.

     We    agree     with    Stanships     that           Deutsche   Shell      is   easily

distinguishable from this case.                  We thus conclude the court’s

findings on       proximate    cause      are    not       clearly   erroneous.           See

Avondale Indus., 15 F.3d at 492 (treating causation questions as

factual issues in admiralty actions).

Whether the district court erred by not applying the Pennsylvania
Rule or the moving-vessel doctrine.

     Finally, Bouchard argues the AMAZONIA violated several Coast

Guard Inland Rules pertaining to navigation.                         Because of these

infractions, Bouchard contends the district court erred by not

applying    the    Pennsylvania     Rule        of    contributory        fault      to   the

AMAZONIA.     See     THE    PENNSYLVANIA,           86    U.S.   125,    135-38     (1873)

(outlining that at least contributory fault is reasonably presumed

when a ship was violating collision regulations or rules of the

road); see also Am. River Trans. Co. v. KAVO KALIAKRA SS, 148 F.3d

446, 450 (5th Cir. 1998) (“To give rise to liability [under the

                                           8
Pennsylvania Rule], a culpable act or omission must have been a

substantial    and   material      factor     in   causing    the    collision.”)

(citation and internal quotation marks omitted).                    Bouchard also

argues   the    court    erred    in    not    applying     the    moving   vessel

presumption of fault to the AMAZONIA.              See Am. Petrofina Pipeline

Co. v. M/V SHOKO MARU, 837 F.2d 1324, 1326 (5th Cir. 1988) (noting

the longstanding presumption of negligence against a moving vessel

when she strikes a fixed or nonmoving object).

     Stanships replies that the district court did not find the

AMAZONIA to have violated any statutory rules so as to trigger the

Pennsylvania Rule. Stanships also points out that “[o]bviously the

BOUCHARD flotilla, racing across the Mississippi River, was neither

an anchored or moored vessel” at the time of the collision.

     Here, the district court found the BOUCHARD flotilla solely at

fault for the collision.         We conclude the court’s finding that the

AMAZONIA played no role in causing the collision is not clearly

erroneous.     Thus, the Pennsylvania Rule did not apply.               The court

found that the collision occurred while the BOUCHARD flotilla was

rotating     clockwise    across       the    river   and    the    AMAZONIA   was

maneuvering up the river.          We conclude the court’s determination

that the collision happened while both vessels were moving is not

clearly erroneous.       Thus, the moving-vessel doctrine also did not

apply.

                                   CONCLUSION


                                         9
     Having   carefully   reviewed    the   record   and   the   parties’

respective briefing and arguments, and for the reasons set forth

above, we AFFIRM the final judgment of the district court.

AFFIRMED.




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