* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

 

1 Inland Navigational Rules Act of 1980 ("Inland

Navigational Rules"), 33 U.S.C. § 2001 et seq.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________

NO. 95-30015

Summary Calendar

______________

MARINE TRANSPORT LINES, INCORPORATED,

Plaintiff-Appellee,

versus

TAKO INVADER MV, her engines, tackle, etc.,

in rem; TAKO TOWING INCORPORATED;

LUMAR MARINE INCORPORATED, Defendants-Appellants.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Louisiana

(CA 92 3882 "N")

_________________________________________________________________

August 1, 1995

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM*:

Tako Towing, Inc., and Lumar Marine, Inc., appeal the district

court's judgment determining that the M/V Tako Invader violated

Rule 14 of the Inland Navigational Rules1 and allocating to her 75%

of the fault for the collision. We affirm.

I.
 

2 A complete recitation of the facts can be found in this

Court's previous opinion in this case: Marine Transp. Lines,

Inc. v. M/V Tako Invader, 37 F.3d 1138, 1139-40 (5th Cir. 1994).

2

Marine Transport Lines, Inc. ("Marine Transport"), brought an

admiralty action against M/V Tako Invader, Lumar Marine, Inc. and

Tako Towing, Inc. (collectively referred to as "Tako Towing") to

recover damages its barge sustained in a collision with the M/V

Tako Invader on the Mississippi River.2 Marine Transport alleged

that the M/V Tako Invader's negligent operation and failure to

adhere to the applicable navigational rules caused the collision

and resulting damage to Marine Transport's barge. The district

court found the M/V Tako Invader in violation of Rules 7, 8, 9, and

14 of the Inland Navigational Rules, and the M/V Marine Guardian in

violation of Rules 7, 8, 14, and 34. Based on this finding, the

court apportioned 75% of the fault to the M/V Tako Invader and 25%

to the M/V Marine Guardian.

Tako Towing appealed, arguing that the district court's

findings were clearly erroneous and that the district court

misinterpreted Rules 9 and 14. This Court determined that,

although the district court found that M/V Tako Invader's position

on the eastern side of the river in contravention of the port-toport passage established by Rules 9 and 14 violated the statute,

the case should be remanded because the M/V Tako Invader's position

did not "conclusively establish that she violated Rule 14, and the

court did not make the findings necessary to support its

application of Rule 9." Marine Transp. Lines, Inc., 37 F.3d at

1145. We further opined that if the district court determined that
3

the M/V Tako Invader violated Rules 9 and 14, a 75-25 apportionment

of fault in favor of Marine Transport would not be clearly

erroneous. Id. at 1146. 

On remand, the district court found that (1) the Luling Bridge

section of the Mississippi River is 1200 feet wide and is not a

narrow channel requiring the application of Rule 9; (2) "[g]iven

the M/V Tako Invader's position on the east (port) side of the

river, it was unable to pass the upbound M/V Marine Guardian portto-port as required by [Rule 14]"; (3) there is no evidence

suggesting that M/V Tako Invader complied with the requirements of

Rule 14(d); and (4) the evidence established that the M/V Tako

Invader failed to comply with Rule 14(d) and was required to comply

with Rule 14(a). The district court also determined that its

previous allocation of fault should stand.

 II.

We review the district court's factual findings of relative

fault in a collision for clear error. Inland Oil & Transp. Co. v.

Ark-White Towing, 696 F.2d 321, 325 (5th Cir. 1983). "A 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."

United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525,

92 L.Ed. 746 (1948). Tako Towing does not challenge the district

court's determination that Rule 9 was not applicable because the

Luling Bridge section of the Mississippi is not a narrow channel,

or the determination that the M/V Tako Invader did not satisfy the
 

3 Rule 14(d) provides as follows:

Notwithstanding paragraph (a) of this Rule, a power-driven

vessel operating on the Great Lakes, Western Rivers, or

water specified by the Secretary, and proceeding downbound

with a following current shall have the right-of-way over an

upbound vessel, shall propose the manner of passage, and

shall initiate the maneuvering signals prescribed by Rule

34(a)(i) as appropriate.

33 U.S.C. § 2014(d).

4

requisites of Rule 14(d). Tako Towing contends that the

determination of whether M/V Tako Invader violated Rule 14 requires

an examination of the undisputed location of the collision. Tako

Towing argues that because Rule 14(d) bestowed the right-of-way

upon the M/V Tako Invader and burdened the M/V Marine Guardian with

avoiding her and because M/V Tako Invader's position in the river

did not render M/V Marine Guardian unable to pass port-to-port as

required by Rule 14, the district court's determination that the

M/V Tako Invader violated Rule 14 by virtue of her position in the

river without considering the course and location of the two

vessels was clearly erroneous.

Rule 14(a) of the Inland Navigational Rules states the general

rule that when two power-driven vessels are meeting on reciprocal

courses, "each shall alter her course to starboard so that each

shall pass on the port side of the other." 33 U.S.C. § 2014(a).

We find that Tako Towing's assertion that the right-of-way

provision set forth in Rule 14(d)3 burdened the M/V Marine Guardian

to avoid the downbound M/V Tako Invader misperceives this Court's

holding in the first appeal. Although the Court held that "Rule
5

14(d)'s right-of-way for downbound vessels modifies Rule 14(a) in

the same way that Rule 9(a)(ii) modifies Rule 9(a)(i)," it further

instructed that

a vessel descending the Mississippi River must adhere to

the default requirements of Rules 9 and 14 . . . unless

otherwise agreed [and that] downbound vessels may force

a departure from these default rules provided they comply

with the requirements in Rules 9(a)(ii) and 14(d) that

they propose the manner of passage and initiate

maneuvering signals prescribed by Rule 34(a)(i) as

appropriate.

Marine Transp. Lines, Inc., 37 F.3d at 1145. Tako Towing concedes,

and the evidence elicited from its witness supports, the district

court's determination that M/V Tako Invader did not satisfy Rule

14(d)'s requirements because M/V Marine Guardian did not receive or

assent to a proposal from the M/V Tako Invader for a starboard-tostarboard passage. Having failed to comply with the statutory

requisites for invoking the conditional right-of-way, M/V Tako

Invader was bound by Rule 14(a), which mandated a port-to-port

passing. Id. The uncontested testimony of M/V Marine Guardian's

Captain Jack Sears established that (1) the Luling Bridge section

of the Mississippi is approximately 1200 feet wide; (2) immediately

prior to the collision, the M/V Marine Guardian passed the upbound

M/V Creole Rivers on her starboard side; (3) he did not hear the

M/V Tako Invader attempt radio contact with the M/V Marine Guardian

or attempt to communicate a passing agreement by whistle; (4) he

heard the M/V Tako Invader confirm a port-to-port passing agreement

with the M/V Creole Rivers; and (5) at the time of the collision,

there was approximately 800 feet between the port side of the M/V

Marine Guardian and the pylon located on the west (starboard) side
6

of the river. Because the district court's findings that M/V Tako

Invader did not satisfy Rule 14(d) and did not maintain the

starboard-to-starboard course even though it was in a position to

do so, the district court's determination that the M/V Tako Invader

violated Rule 14 was not clear error. See Ohio Barge Line, Inc. v.

Oil Transp. Co., 280 F.2d 448, 453 (5th Cir. 1960) (downbound

vessel was solely at fault for crowding upbound vessel in

starboard-to-starboard passage without concurrence when evidence

adduced at trial placed upbound vessel on her side of the river).

III.

Tako Towing further asserts that this Court's determination

that it could not find that a 75/25 apportionment of fault in favor

of Marine Transport would be clearly erroneous if the district

court found on remand that the M/V Tako Invader violated Rules 9

and 14 of the Inland Navigational Rules contains an implicit

determination that the apportionment may be clearly erroneous if

Rule 9 is found to be inapplicable because the district court

failed to conclusively establish a Rule 14 violation. We find that

Tako Towing has misconstrued this Court's rationale for remanding

the case. The original findings of the district court were

insufficient to establish a "conclusive" violation of Rule 14

because the district court had not found explicitly that the M/V

Tako Invader failed to comply with the requisites of Rule 14(d);

had she complied, her position on the eastern side of the river may

have been appropriate. Because the district court subsequently

determined that the M/V Tako Invader did not prove her entitlement
7

to the Rule 14(d) right-of-way, the M/V Tako Invader was required,

but did not effect, the port-to-port passing mandated by Rule

14(a). We reject Tako Towing's argument that the apportionment was

clearly erroneous based on our previous decision and the district

court's subsequent finding that Rule 9 did not apply. Accordingly,

we find the apportionment of damages was not clearly erroneous; the

district court was not required to address Tako Towing's

speculation that such an apportionment "might be clearly erroneous"

if Rule 9 did not apply.

IV.

For the reasons articulated above, the judgment of the

district court is AFFIRMED.