     Case: 15-31025       Document: 00513702064        Page: 1    Date Filed: 10/03/2016




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

                                      No. 15-31025                        FILED
                                                                    October 3, 2016
                                                                     Lyle W. Cayce
CAMERON EVANS,                                                            Clerk

              Plaintiff

v.


VIDALIA DOCK & STORAGE COMPANY,

              Defendant-Third Party Plaintiff - Appellant

v.

BRUCE OAKLEY, INCORPORATED,

              Third Party Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:14-CV-2255


Before REAVLEY, DAVIS and JONES, Circuit Judges.
PER CURIAM:*




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-31025
      “A shipowner has an absolute nondelegable duty to provide a seaworthy
vessel.” Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991). This duty
extends to barge owners “in a towage situation.” Consol. Grain & Barge Co. v.
Marcona Conveyor Corp., 716 F.2d 1077, 1081 (5th Cir. 1983) (per curiam).
The owner of a wrecked or imperiled vessel does not, however, owe a duty of
seaworthiness to a would-be salvor.     We must decide whether third-party
plaintiff Vidalia Dock & Storage Company (“Vidalia Dock”) plausibly alleged
that the BOI 227, a barge owned by third-party defendant Bruce Oakley, Inc.
(“Oakley”), sank while under a contract for towage rather than salvage.
Because, under the facts alleged by Vidalia Dock, the operation could only have
been one of salvage, we conclude that Oakley did not owe a duty of
seaworthiness to Vidalia Dock.
      Bruce Evans, an employee of Vidalia Dock, was injured during an
attempted rescue of the BOI 227, which had grounded on the banks of the
Mississippi River after breaking free from its moorings. Evans sued Vidalia
Dock, and Vidalia Dock impleaded Oakley under Rule 14(c). Vidalia Dock
asserted a seaworthiness claim against Oakley.        Oakley then moved for
dismissal under Rule 12(b)(6), and Vidalia Dock opposed the motion and
supplemented its Rule 14(c) tender with additional factual allegations. Upon
the magistrate judge’s report and recommendation, and after considering
objections thereto, the district court granted judgment in favor of Oakley.
Vidalia Dock timely appealed, and despite Oakley’s arguments to the contrary,
we have jurisdiction. See 28 U.S.C. § 1292(a)(3).
      If, as the district court ruled, Oakley owed no duty of seaworthiness to
Vidalia Dock and Evans, judgment was proper.         As explained above, the
answer to this question depends on the character of service provided by Vidalia
Dock—towage or salvage.


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                                  No. 15-31025
      “A towage contract . . . arises when one vessel is employed to expedite
the movement of another.” Agrico Chem. Co. v. M/V Ben W. Martin, 664 F.2d
85, 90 (5th Cir. 1981). The fact of towing is not dispositive. “The existence of
a marine peril distinguishes a salvage contract from one for towage.” Evanow
v. M/V Neptune, 163 F.3d 1108, 1114 (9th Cir. 1998). Thus, “[w]hen a tug is
called or taken by a sound vessel as a mere means of saving time, or from
considerations of convenience, the service is classed as towage; but if the vessel
is disabled, and in need of assistance, it is a salvage service.” Id. (quoting The
Flottbek, 118 F. 954, 960 (9th Cir. 1902)). Marine peril exists where danger is
“reasonably to be apprehended,” and “if [a] vessel is stranded so that it is
subject to the potential danger of damage or destruction she may well be a
subject of salvage services.” Fort Myers Shell & Dredging Co. v. Barge NBC
512, 404 F.2d 137, 139 (5th Cir. 1968).
      According to Vidalia Dock, it “directly alleged that the BOI 227 was
furnished to it by Oakley for towage operations.” As the foregoing authorities
show, this is insufficient to establish towage rather than salvage. We must ask
whether the tow was meant to expedite the barge’s movement or instead to
rescue it from marine peril. We treat Vidalia Dock’s allegations as true and
draw all reasonable inferences in its favor.
      In its original Rule 14(c) tender, Vidalia Dock alleged that Evans
encountered the BOI 227 “during a mission to rescue the barge,” and that this
“rescue mission” was the cause of Evans’ injury.           It is alleged that the
“emergency rescue mission by Vidalia Dock” occurred after the BOI 227 had
broken free from its moorings, floated down the Mississippi River, and
grounded upon the river’s banks. The supplemental tender alleged that the
barge sank while under tow during “efforts . . . to save the BOI 227 from loss.”
      Vidalia Docks’ argument on appeal that “retrieving a barge from a mud
bank is hardly maritime peril” runs headlong into its allegations of an
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                                No. 15-31025
“emergency recuse mission” carried out in an effort “to save” the barge.
Moreover, we have previously observed that retrieval of a grounded barge “may
well” be salvage. Fort Myers Shell & Dredging Co., 404 F.2d at 139. Here, the
allegations permit no other conclusion. The mission was not to expedite the
barge’s travel but to “rescue” or “save” the barge in an “emergency” situation.
This is salvage, not towage.
      AFFIRMED.




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