      Case: 15-30602          Document: 00513439096   Page: 1   Date Filed: 03/25/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                          No. 15-30602                    March 25, 2016
                                        Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
OSPREY UNDERWRITING AGENCY, LIMITED, for and on behalf of
Certain
Underwriters at Lloyd’s of London; C & J CROWN POINT, L.L.C.; CROWN
POINT HOLDINGS, L.L.C.,

                 Plaintiffs - Appellants

v.

NATURE’S WAY MARINE, L.L.C. et al

                 Defendants

------------------------------------------------

CHAD DARDAR

                 Plaintiff - Appellee

v.

CROWN POINT HOLDINGS, L.L.C; C & J of CROWN POINT, L.L.C.

                 Defendants - Appellants

------------------------------------------------

INDIAN RIVER TRANSPORTATION, INC.

                  Plaintiff

v.
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                                      No. 15-30602
NATURE’S WAY COMMANDER M/V, in rem; NATURE’S WAY MARINE,
L.L.C.

                Defendants -Appellees




                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-211


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM:*
       The M/V Natures Way Commander (the “Commander”), a vessel owned
by Defendant-Appellee Nature’s Way Marine (“Nature’s Way”), was
negligently grounded near the mouth of a slip controlled by Crown Point
Holdings, L.L.C. (“Crown Point”). After the grounding, another vessel, the
M/V Port Gibson (the “Port Gibson”), sank to the bottom of the slip and pulled
another ship, the Dredge Buccaneer (the “Buccaneer”), down with it. Crown
Point, as owner and operator of both ships, undertook the salvage operation.
Plaintiff-Appellant Osprey Underwriting Agency, Ltd. (“Osprey”), Crown
Point’s insurer, paid the related expenses. Osprey then sued Nature’s Way,
arguing that Nature’s Way’s negligence caused the sinking of the Port Gibson
and the Buccaneer. Following a bench trial, the district court found that
Nature’s Way was not liable. Because we conclude that the district court’s
factual findings were not clearly erroneous, we AFFIRM.




       * 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.

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                                 No. 15-30602
                                      I.
      On March 17, 2012, the Commander was headed eastbound near Crown
Point, Louisiana, when it ran aground in the mouth of a narrow channel
controlled by Crown Point. The Port Gibson and the Buccaneer, two vessels
owned and operated by Crown Point, were moored in the channel at the time
of the grounding. After the grounding, the Commander performed a number
of engine maneuvers in an attempt to free itself. With the help of Crown
Point’s owner, Joe Dardar, the crew of the Commander was able to free the
ship. However, Osprey contends that the Commander’s engine maneuvers
created “extreme wave wash” that broke the mooring lines of Crown Point’s
vessels and grounded them on an unimproved mud bank.
      Several days after the grounding, on March 21, the Port Gibson began to
take on water and sink, pulling the Buccaneer down with it. After raising the
ships, the parties discovered that the Port Gibson’s hull had been punctured
by a protruding bolt from a large piece of timber. Both parties generally agree
that this hull puncture caused the Port Gibson to sink.
      Both the Port Gibson and the Buccaneer were covered by a marine hull
insurance policy underwritten by Osprey. Under the policy, Osprey paid for
Crown Point’s salvage expenses and reimbursed Crown Point for the actual
damages that the vessels sustained as a result of sinking. As subrogee to
Crown Point’s rights against Nature’s Way, Osprey filed suit, contending that
Nature’s Way negligently grounded the Commander and caused the sinking of
both of Crown Point’s vessels.
      A bench trial followed.    In its post-trial findings, the district court
explained that Osprey failed to prove a necessary element of its claim against
Nature’s Way: that the grounding of the Commander caused the sinking of the
Port Gibson and the Buccaneer. The district court further found that even if
Osprey met this causation burden, the failure of Crown Point’s owner Joe
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                                  No. 15-30602
Dardar and his employee Chad Dardar (the “Dardars”) to warn anyone of the
timber impaled in the hull was a superseding cause of the sinking.
      Osprey timely appeals, contending that the district court erred in finding
that (1) Osprey did not establish that the grounding of the Commander caused
the sinking of the Port Gibson and the Buccaneer, and (2) the Dardars knew
that the timber had impaled the Port Gibson and that their failure to respond
prudently was a superseding cause of the sinking.
                                       II.
      “The standard of review for a bench trial is well-established: findings of
fact are reviewed for clear error and legal issues are reviewed de novo.”
Guzman v. Hacienda Records & Recording Studio, Inc., 808 F.3d 1031, 1036
(5th Cir. 2015) (citation and internal quotation marks omitted). In a bench
trial under maritime law, “a district court’s findings concerning negligence and
causation are findings of fact” and are thus reviewed for clear error. Ledet v.
Smith Marine Towing Corp., 455 F. App’x 417, 421–22 (5th Cir. 2011) (quoting
Johnson v. Cenac Towing, Inc., 544 F.3d 296, 303 (5th Cir. 2008)).
      A trial judge’s factual finding “is clearly erroneous when although there
is evidence to support it, the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been committed.” Guzman,
808 F.3d at 1036 (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573
(1985)). When reviewing for clear error, “[w]e entertain a strong presumption
that the court’s findings must be sustained even though this court might have
weighed the evidence differently.” Johnson, 544 F.3d at 303; see also Guzman,
808 F.3d at 1036 (“This standard plainly does not entitle this court to reverse
the findings of the trial judge simply because we are convinced that we would
or could decide the case differently.”). The district court’s findings need only
be “plausible in light of the record viewed in its entirety” to survive review.
Anderson, 470 U.S. at 574.
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                                       No. 15-30602
                                             III.
       We analyze maritime tort cases using general principles of negligence
law. Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir. 2000). “To
establish maritime negligence, a plaintiff must ‘demonstrate that there was a
duty owed by the defendant to the plaintiff, breach of that duty, injury
sustained by [the] plaintiff, and a causal connection between the defendant’s
conduct and the plaintiff’s injury.’” Id. (alteration in original) (quoting In re
Cooper/T. Smith, 929 F.2d 1073, 1077 (5th Cir. 1991)).                     Under general
maritime law, “a party’s negligence is actionable only if it is a ‘legal cause’ of
the plaintiff’s injuries.” Donaghey v. Ocean Drilling & Expl. Co., 974 F.2d 646,
649 (5th Cir. 1992). “[L]egal cause is something more than ‘but for’ causation,
and the negligence must be a ‘substantial factor’ in the injury.” Id. (alteration
in original) (citation and internal quotation marks omitted).                   “The term
‘substantial factor’ means more than ‘but for the negligence, the harm would
not have resulted.’” Id. (citation and internal quotation marks omitted).
       The parties generally do not dispute that the bolt-studded timber
punctured the Port Gibson’s hull and caused that ship to take on water and
sink. But, for Nature’s Way to be liable, Osprey must establish that this hull
puncture was caused by the negligent grounding 1 and post-grounding
maneuvering of the Commander. 2 See Marquette Transp. Co. v. La. Mach. Co.,


       1 Nature’s Way has stipulated that the grounding of the Commander was due to its
negligence.
       2 In its briefing, Osprey largely asserts that the district court’s ruling was based on

the doctrine of superseding cause and thus argues that the court clearly erred in finding that
the Dardars’ failure to warn of the timber impaled in the Port Gibson was a superseding
cause of the ships’ sinking. In contrast, Nature’s Way contends that the district court found
that Osprey failed to meet its burden of proof as to causation and its superseding cause
finding was not necessary to the judgment. Our review of the district court’s judgment
confirms Nature’s Way’s reading: the district court noted throughout its opinion that neither
side had proven how the Port Gibson’s hull was punctured. We thus address whether this
factual finding is clearly erroneous.

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                                 No. 15-30602
367 F.3d 398, 402 (5th Cir. 2004) (noting plaintiff’s burden to prove “causation
by a preponderance of the evidence”). The district court found that Osprey
failed to meet this burden, noting that “there is insufficient evidence, from
either side, to credibly establish by a reasonableness standard when, where, or
how the hull impalement occurred.”
      Osprey contends that the district court’s factual finding is clearly
erroneous. We disagree. In support of its contention, Osprey notes that two of
its experts, Arnold Lachmann and John Pope, testified that they believed that
the timber impaled the Port Gibson’s hull as a result of a breakaway caused by
the grounding and maneuvering of the Commander. However, Nature’s Way’s
expert, Mark Shiffer, vehemently disagreed. Shiffer testified that he did not
believe the described events could create a sufficient vertical force to impale
the ship’s hull. And indeed, Shiffer insisted that the “vertical puncture” of the
ship’s hull could not be reconciled with the horizontal movement of the boat.
Faced with this battle of experts as to the cause of the hull puncture, the
district court did not clearly err in determining that Osprey failed to meet its
causation burden. See Guzman, 808 F.3d at 1036 (“[T]he great deference owed
to the trial judge’s findings compels the conclusion that ‘[w]here there are two
permissible views of the evidence, the factfinder’s choice between them cannot
be clearly erroneous.’” (quoting Anderson, 470 U.S. at 575)). Our review of the
record does not leave us with the definite and firm conviction that the district
court made a mistake. See id.
      Because the district court did not clearly err in finding that Osprey failed
to prove causation, we need not reach its superseding cause finding.
                                       IV.
      Under our clear-error standard of review, we decline to second-guess the
district court’s permissible choice between conflicting expert testimony. The
judgment of the district court is AFFIRMED.
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