United States Court of Appeals

Fifth Circuit

FILED

April 19, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-20773

Stolt Achievement, Ltd.

Plaintiff-Appellant,

versus

Dredge B.E. Lindholm, 

its engines, tackle, appurtenances, etc., in rem; 

Weeks Marine, Inc., in personam

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Treating the Petition for Rehearing En Banc as a Petition for

Panel Rehearing, the Petition for Panel Rehearing is DENIED in part

and GRANTED in part as reflected in the substitute opinion filed

today. No member of the panel nor judge in regular active service

of the court having requested that the court be polled on Rehearing

En Banc (Fed. R. App. P. and 5th Cir. R. 35), the Petition for

Rehearing En Banc is DENIED. We withdraw our previous opinion,

reported at 440 F.3d 266, and substitute the following. 

Two ships passing in the Houston Ship Channel collided.

Litigation ensued. Stolt Achievement, Ltd. complains of various
1The district court’s reference to the Inland Rules as the COLREGS was a

misstatement. As noted by Schoenbaum, 

In most countries the [International Regulations for Preventing

Collisions at Sea (COLREGS)] govern ship navigation in internal

waters as well as on the high seas. The United States, however, has

adopted a second set of navigational rules, the Uniform Inland

Navigational Rules, which are in effect generally in internal

waters. The Inland Rules are applicable inside certain demarcation

lines set forth in regulations by the Coast Guard.

2 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 256 (2d ed. 1994).

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errors in the district court’s resolution of its claims against the

dredge B.E. LINDHOLM and its owner, Weeks Marine, Inc. We affirm.

I

On October 21, 2002, the STOLT ACHIEVEMENT, a chemical tanker,

was traveling inbound in the Houston Ship Channel. The LINDHOLM,

a dredge boat, having recently concluded dredging operations, was

traveling outbound in the area of the Red Fish Island Shoal, a part

of Galveston Bay. The Houston Ship Channel is a busy port, and all

vessels are required to navigate under the Inland Rules.1 At the

point of the collision, the Channel is approximately 400 feet wide.

At approximately 1:40 P.M., the STOLT ACHIEVEMENT, captained

by Anthony Shoonkind and piloted by Captain Richard Fisher,

contacted the LINDHOLM, navigated by Third Mate Timothy Maginn, and

the vessels agreed to a customary port-to-port or “one whistle”

passing. The STOLT ACHIEVEMENT, proceeding at a speed of 11 knots,

was traveling in the center and later on the starboard side of the

Channel; the LINDHOLM, accelerating to 10-12 knots, was proceeding

along its far to starboard side.
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Two minutes later, Maginn lost control of the LINDHOLM,

causing the vessel to sheer off to its port, cross the Channel’s

centerline, and collide with the STOLT ACHIEVEMENT midship on its

port side. Recognizing the sheer, Captain Fisher attempted to

contact the LINDHOLM three times. Maginn did not answer the first

two calls, presumably busy attempting to avoid the sheer; upon

answering the third call, Maginn told Fisher he had lost control of

the LINDHOLM. Fisher turned hard starboard and accelerated, both

evasive maneuvers designed to minimize the damage of the nowinevitable collision.

Following a two-day bench trial, the district court concluded

that both the STOLT ACHIEVEMENT and the LINDHOLM were responsible

for the collision. The court found: (1) the LINDHOLM was running

too close to the side of the Channel, thus making it more

susceptible to the bow wave of the STOLT ACHIEVEMENT; (2) the STOLT

ACHIEVEMENT was proceeding at an excessive speed, exacerbating the

suction caused by its bow wave, thus violating Inland Navigational

Rule 6; (3) the STOLT ACHIEVEMENT disregarded the U.S. Coast

Guard’s bulletin requiring vessels to “transit at their slowest

safe speed to minimize wake and proceed with caution” after making

passing arrangements; (4) the STOLT ACHIEVEMENT stayed too close to

(or over) the centerline of the Channel as the vessels approached

each other, thus violating rules of prudent seamanship; (5) the

LINDHOLM proceeded too fast with a large tanker approaching, thus

violating Inland Rule 6; and (6) Maginn should have informed the
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STOLT ACHIEVEMENT sooner that he was experiencing difficulty

steering, thus violating rules of prudent seamanship.

“Taking into consideration both the number and quality of

negligent acts of each party,” the district court apportioned

liability equally. Each party received 50% of the damages claimed

for reasonable repairs, and the court awarded Stolt 50% of its

loss-of-use damages. Although prevailing in large respects, Stolt

appealed. We have jurisdiction under 28 U.S.C. § 1291.

II

Stolt presents five issues on appeal. First, Stolt argues

that the district court clearly erred in concluding that the STOLT

ACHIEVEMENT was negligent in causing the collision with the

LINDHOLM. Second, Stolt argues that the district court abused its

discretion in admitting testimony from LINDHOLM’s expert witness.

Third, Stolt argues that the district court clearly erred when it

refused to find that the negligence of the LINDHOLM was a

superseding cause of the collision. Fourth, Stolt argues that the

district court clearly erred when it apportioned liability equally

between the parties. Fifth, Stolt argues that the district court

erred in holding that Stolt failed to prove entitlement to average

adjuster’s fees. We address each in turn.

A

First, Stolt argues that the district court erred in

concluding that the STOLT ACHIEVEMENT was negligent in causing the
2In re Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005); Avondale

Indus. v. Int’l Marine Carriers, Inc., 15 F.3d 489, 492 (5th Cir. 1994); Todd

Shipyards Corp. v. Turbine Service, Inc., 674 F.2d 401, 405 (5th Cir. 1982).

3Walker v. Braus, 995 F.2d 77, 80 (5th Cir. 1993); Consolidated Grain &

Barge Co. v. Marcona Conveyor Corp., 716 F.2d 1077, 1082 (5th Cir. 1983); United

States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

4Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985).

5See Folkstone Maritime, Ltd. v. CSX Corp., 64 F.3d 1037, 1046 (7th Cir.

1995); The Tokio Marine & Fire Ins. Co. v. M/T FLORA, 1999 AMC 1569, 1583 (E.D.

La. 1999); see also 2 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 255 (2d ed. 1994).

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collision with the LINDHOLM. In an admiralty action following a

bench trial, the factual findings are binding unless clearly

erroneous.2 A finding is clearly erroneous when, although there is

evidence to support it, the reviewing court, based on all of the

evidence, is left with the definite and firm conviction that a

mistake has been made.3 If the district court’s account of the

evidence is plausible in light of the record, this Court may not

reverse, even though convinced that had it been sitting as the

trier of fact, it would have weighed the evidence differently.4

The applicable standards of care in a collision case stem from

the traditional concepts of prudent seamanship and reasonable care,

statutory and regulatory rules, and recognized customs and uses.5

Establishing liability in a collision case is eased by the

Pennsylvania rule, which provides that when a vessel is in

violation of a statutory duty, the burden is on the offending

vessel to prove that its conduct did not and could not have caused
686 U.S. (19 Wall.) 125, 136 (1873). Stolt never argues that it was not

a contributing cause of the collision. Rather, Stolt focuses on challenging the

district court’s findings and conclusions that the STOLT ACHIEVEMENT breached the

standard of care, proceeded at an excessive speed (in violation of Rule 6), and

disregarded the Notice to Mariners requiring slow transit around the LINDHOLM.

7Marine Transport Lines, Inc. v. TAKA INVADOR, 37 F.3d 1138, 1142 (5th Cir.

1994); Union Pacific R.R. Co. v. Kirby Inland Marine, Inc., 296 F.3d 671, 674

(8th Cir. 2002). 

8Folkstone Maritime, 64 F.3d at 1046.

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the collision.6 Where both parties to a collision are in violation

of statutes designed to prevent collisions, the court may apportion

fault between the parties, unless either party proves that its

statutory violation was not a substantial contributing cause of the

collision.7 Even without a statutory violation, liability may be

imposed simply where there is negligence.8

Stolt advances two arguments at the district court’s

conclusion. First, Stolt contends the district court erred in

concluding that the STOLT ACHIEVEMENT breached its duty of ordinary

care; second, Stolt contends that the district court erred in

finding the STOLT ACHIEVEMENT in violation of Inland Rule 6. We

address each in turn.

1

Stolt argues that the STOLT ACHIEVEMENT did not breach

principles of ordinary care and thus was not negligent in causing

the collision with the LINDHOLM. Stolt, with support from amicus

curiae Houston Pilots, primarily challenges the district court’s

statement that “[t]he M/V STOLT ACHIEVEMENT displaces approximately

41,000 tons of water at a time, and creates a very substantial bow
9Whether the STOLT ACHIEVEMENT’s “excessive speed,” and resultant violation

of Inland Rule 6, triggers the Pennsylvania rule is of no moment. A previous

panel of this Court, relying on authority from the Second Circuit, stated that

the Pennsylvania rule “applies only to violations of statutes that delineate a

clear legal duty, not regulations that require judgment and assessment of a

particular circumstance.” Tokio Marine & Fire Ins. Co. v. Flora MV, 235 F.3d

963, 966-67 (5th Cir. 2001); see also Complaint of Interstate Towing, 717 F.2d

752, 756 (2d Cir. 1983); In re Marine Sulphur Queen, 460 F.2d 89, 98 (2d Cir.

1972); Afran Transport Co. v. United States, 435 F.2d 213, 218-19 (2d Cir. 1970).

As it is unnecessary to decide, we leave open the question of whether Inland Rule

6, 33 U.S.C. § 2006, presents a sufficiently “clear legal duty” to trigger

application of the Pennsylvania rule, but we note that the one district court

addressing the question concluded that Rule 6 was a clear, nondiscretionary

requirement. See In re Diamond B Marine Svcs., Inc., Nos. 99-951, 99-984 & 99-

1346, 2001 WL 1164914, at *10 (E.D. La. Sept. 28, 2001) (unpublished).

10We recognize that a variety of maritime treatises suggest staying in the

center of the channel as long as possible. See, e.g., HENRY H. HOOYER, BEHAVIOR AND

HANDLING OF SHIPS 93 (1983) (“When two ships must pass each other in a narrow

channel, they should stay close to the middle of the channel or canal as long as

possible. How close to each other they can approach before taking action depends

on the situation, and on the maneuverability of the ships.”). The district

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wave that can push water out more than a mile in front and to the

sides of a ship.” The Houston Pilots urge that this effect is

“physically impossible” and, if true, would leave the Channel

unnavigable.

Although we too question the accuracy of the district court’s

statement, especially given the lack of scientific expert testimony

in this case, we find ample support for the district court’s

conclusion that the STOLT ACHIEVEMENT was negligent. First, the

court found that the STOLT ACHIEVEMENT “was proceeding at an

excessive speed in the Red Fish Island Shoal area at a time when a

small vessel such as a dredge was in the same location.”9 Second,

the district court found that the STOLT ACHIEVEMENT “stayed too

close to (or over) the Channel centerline too long as the vessels

approached each other for their passing.”10 Whatever hydrodynamic
court’s statement does not contradict the treatises; and, sitting as an appellate

court, we do not find reason to discount its judgment that the STOLT ACHIEVEMENT

should have started moving to its starboard side sooner than it did. 

11See Theriot v. United States, 245 F.3d 388, 401-02 (5th Cir. 1998)

(finding pilot negligent for failing to consult Coast Guard’s “Notice to

Mariners” regarding danger in unfamiliar area); United States v. The Washington,

241 F.2d 819, 822 (4th Cir. 1957) (finding vessel negligent given that it was on

notice of information provided by Coast Guard).

12See Anderson, 470 U.S. at 573 (“[The clearly erroneous standard] plainly

does not entitle a reviewing court to reverse the finding of the trier of fact

simply because it is convinced that it would have decided the case

differently.”).

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effect the STOLT ACHIEVEMENT had on the LINDHOLM, that effect was

increased by the STOLT ACHIEVEMENT’s location in the narrow

Channel. Third, the court found that “the substantial suction

caused by the bow wave of the M/V STOLT ACHIEVEMENT was exacerbated

by that vessel’s speed,” especially given that “the shoal created

a relatively restricted passage on the west side.” Although

perhaps tied to the court’s conclusion concerning the magnitude of

the STOLT ACHIEVEMENT’s bow wave, Stolt never disputes that the

hydrodynamic forces produced by a vessel are directly related to

its speed and the peculiarities of the Houston Ship Channel at the

Red Fish Island Shoal. Lastly, the court concluded that the U.S.

Coast Guards “Notice to Mariners,” which cautioned vessels to

travel at their “slowest safe speed” when near the Red Fish Island

Shoal, made travel at customary speeds inappropriate.11 Although

we may have reached a different conclusion, that alone is not

sufficient for us to find that the district court’s findings were

clearly erroneous.12
1333 U.S.C. § 2006.

14Id. § 2006(a)(ii).

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2

Next, Stolt contends that the district court erred in finding

the STOLT ACHIEVEMENT in violation of Inland Rule 6. Stolt argues

the district court used two inconsistent definitions of “safe

speed,” one of which erroneously required the STOLT ACHIEVEMENT to

consider the effect of its vessel on other vessels in the vicinity.

We do not agree that the district court used two inconsistent

definitions of “safe speed.” Without citing any authority, the

court initially defined “safe speed” as a speed “that does not have

an adverse effect on other vessels in the area.” Then, the court

quoted Rule 6 and found the STOLT ACHIEVEMENT in violation. To us,

a speed that allows a vessel to “take proper and effective action

to avoid collision and be stopped within a distance appropriate to

the prevailing circumstances,”13 as required by Inland Rule 6, is

also a speed “that does not have an adverse effect on other vessels

in the area,” as defined by the district court. Moreover, Inland

Rule 6 provides several factors for determining a safe speed, one

of which requires courts to take into account “the traffic density

including concentration of fishing vessels or any other vessels.”14

It was not error for the district court to apply a definition of

safe speed that required the STOLT ACHIEVEMENT to consider the
15Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999).

16509 U.S. 579, 593-95 (1993) (instructing courts to examine whether a

particular scientific theory can be tested, whether a theory has been through

peer review, the theory’s rate of error, and whether the theory has been

generally accepted in the scientific community).

17Kumho Tire Co., 526 U.S. at 147-49.

18See, e.g., Wills v. Amerada Hess Corp., 379 F.3d 32, 48-50 (2d Cir.

2004); Rothfos Corp. v. M/V NUEVO LEON, 123 F.Supp.2d 362, 371-72 (S.D. Tex.

2000).

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effect of its vessel on other vessels in the vicinity. Stolt’s

contentions regarding application of Rule 6 are without merit.

B

Second, Stolt argues that the district court erred when it

admitted testimony of David Scrunton, LINDHOLM’s expert witness.

Stolt contends that while Scrunton was qualified to testify as to

proper ship handling, navigation, and observations on the basis of

his general experience, he was not qualified to testify as to the

specific hydrodynamic effects of the STOLT ACHIEVEMENT on the

LINDHOLM at the time of the collision. We review the admission of

expert testimony for an abuse of discretion.15

Daubert v. Merrell Dow Pharmaceuticals, Inc. established the

baseline criteria for scientific expert testimony;16 Kumho Tire Co.

v. Carmichael extended Daubert to all forms of expert testimony;17

and these principles apply in admiralty matters.18 In addition,

Kumho Tire recognized that experts may testify on the basis of

their own “personal knowledge or experience” and refused to hold

that the Daubert factors must be addressed in every case, given the
19Kumho Tire, 526 U.S. at 149.

20Trial Transcript, vol. 4, at 81. A subsequent passage is also

illustrative. The court stated: “I’m less interested in your conclusions as to

the reasoning as –– because there’s a question about have far you can go on this

given your . . . expertise, or your lack of technical study. But I am interested

in what you saw, okay? I’m very interested in what you saw.” Trial Transcript,

vol. 4, at 82.

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wide variety of experts and issues that may come before the

district courts.19

Stolt contends that the district court allowed Scrunton to

testify as to specific hydrodynamic effects. The transcript does

not bear this contention out. The district court consistently

refused to allow Scruton to testify to the specific hydrodynamic

effect of the STOLT ACHIEVEMENT on the LINDHOLM at the time of the

collision. As Scrunton began to testify about the bow wave from

the STOLT ACHIEVEMENT, the following colloquy is occurred:

MR. DURHAM [counsel for Stolt Achievement]: Objection.

This is the area we contend that this witness is not

qualified to testify. The calculations can be done as to

the forces generated. He has not done this. The effect

that would be reached to the other vessels can be

calculated. He has not done this. And he, I can take

him on voir dire, but he’s not a hydro dynamic expert.

THE COURT: All right. That’s clear. Okay. You can’t

testify about anything that technical or the calculations

as counsel’s indicating.

THE WITNESS: All right.

THE COURT: You just to keep it more general –– 

THE WITNESS: Okay, your Honor.

THE COURT: –– based on your experience from what you can

perceive and what you observed over your years on the

water and studying it.20
21Following another objection from Stolt regarding Scruton’s testimony on

the effect of the bow wave, the Court stated: “Okay. Neither side has any such

calculations. But your witness [Haupt], who is not a hydraulogist[,] was allowed

to testify to his impressions of what he thought the bow wake would or wouldn’t

do, and the stern suction, and whatever else there was. So I’m allowing this.

It goes to weight. And I do respect that.” Trial Transcript, vol. 4, at 127.

22Wilkins v. P.M.B. Systems Engineering, Inc., 741 F.2d 795, 800 (5th Cir.

1984).

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Scruton’s testimony never delved into specific hydrodynamic

effects. His conclusions were based on his experience as a Master

Mariner, as well as his examinations of the Red Fish Island Shoal

in the Houston Ship Channel. In addition, Stolt never disputed the

existence of a general hydrodynamic effect upon a vessel in water.

Finally, the district court allowed similar testimony from Captain

Karl Haupt, Stolt’s expert witness and also a Master Mariner.21 As

the district court stated in response to Stolt’s motion to alter or

amend under Rule 59, “Technical hydrodynamic expert testimony as to

the size and force of the bow wave was not necessary in this case.”

Admission of Scruton’s testimony was not an abuse of discretion.

C

Third, Stolt argues that the district court clearly erred in

refusing to find that negligence of Maginn, the LINDHOLM’s

navigator, occurring after the negligence of the STOLT ACHIEVEMENT,

was a superseding cause of the collision. Questions of causation

in admiralty are questions of fact, reviewed for clear error.22

In Exxon Co., USA v. Sofec, Inc., the Supreme Court held that

the common law negligence doctrines of proximate causation and

superseding cause apply in admiralty notwithstanding the adoption
23517 U.S. 830, 836-39 (1996). The doctrine of comparative fault was

adopted in United States v. Reliable Transfer, 421 U.S. 397 (1975), which is

discussed in the section III(D), infra.

241 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 165 (2d ed. 1994); see also

Nunley v. M/V Dauntless Colocotronis, 727 F.2d 455 (5th Cir. 1984) (en banc).

25In re Kinsman Transit Co., 338 F.2d 708, 722 (2d Cir. 1964) (Friendly,

J.). Many courts, including this one, rely upon the factors set forth in

RESTATEMENT (2ND) OF TORTS § 442 for guidance in this inquiry. Two such factors are

relevant here: first, courts inquire into whether the intervening force “brings

about harm different in kind from that which would otherwise have resulted from

the actor’s negligence”; second, courts look to see whether the intervening force

“appear[s] . . . to be extraordinary rather than normal in view of the

circumstances existing at the time of its operation.” RESTATEMENT (2ND) OF TORTS §

442(a), (b).

26927 F.2d 1453 (8th Cir. 1991).

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of comparative fault.23 The superseding cause doctrine applies

where the defendant’s negligence in fact substantially contributed

to the plaintiff’s injury, but the injury was actually brought

about by a later cause of independent origin that was not

foreseeable.24 It is predicated on the notion that “there must be

a terminus somewhere, short of eternity, at which the second party

becomes responsible in lieu of the first.”25

Stolt attempts to analogize this case to Lone Star Industries,

Inc. v. Mays Towing Co., Inc.,

26 but that analogy fails. There, a

barge owner brought suit against a towing company for damage to the

barge that occurred when it sunk while being unloaded. It was

undisputed that the barge sunk because of a crack in its hull

caused by the negligence of the towing company. Due to inclement

weather, however, the barge owner failed to inspect the barge prior

to unloading, which would have allowed for discovery of the crack.

A split panel of the Eighth Circuit found the barge owner negligent
27Id. at 1459-60. Exxon presents a similar scenario. There, the tanker,

the Exxon Houston, broke from a mooring system due to the alleged negligence of

the system and its manufacturer. Exxon, 517 U.S. at 832-33. Between 1728 and

1830 (nautical time), the Exxon Houston went through a series of maneuvers to

avoid further damage from the hose that previously connected the ship to the

mooring system. Id. at 833. Then, between 1830 and 2004 after the vessel was

no longer in danger from the hose, the captain of the Exxon Houston negligently

navigated the vessel into a reef, running it aground, and resulting in the ship’s

constructive total loss. Id. at 833-34. Exxon sued the owner and manufacturer

of the mooring system for damages to the ship caused by running into the reef.

Id. The Supreme Court affirmed the district court’s finding that the negligence

of the Exxon Houston’s captain was a superseding cause, thus preventing the

mooring system from being held responsible. Id. at 840-41. Unlike the instant

case, Exxon involved two wholly separate, independent negligent acts: the

breaking from the mooring system and the navigation into the reef.

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for failing to inspect the barge prior to unloading. The court

found the barge owner’s negligence brought about a harm “different

in kind” from the harm brought about by the towing company. The

barge owner’s negligence caused the barge to sink; the towing

company’s negligence only caused a crack in the hull. Next, the

court found the barge owner’s failure to inspect an affirmative act

“unrelated to any negligence” of the towing company. On this

basis, the negligence of the barge owner was a superseding cause of

the damage to the barge.

This case is distinguishable. Here, all of the negligent acts

occurred within a very small window of time. The STOLT ACHIEVEMENT

and the LINDHOLM agreed to a port-to-port passing at 1:40 P.M.; two

minutes later, the collision occurred. In Lone Star, the

negligence of the towing company started and finished before the

start of any negligence of the barge company.27 We agree with the

conclusions of the district court: first, “The commencement of the

shear [sic] . . . was not an event of independent origin from the
28Transorient Navigators Co., S.A. v. M/S SOUTHWIND, 714 F.2d 1358, 1371

(5th Cir. 1983) (citing RESTATEMENT (2ND) OF TORTS § 442(b)).

29Lone Star, 927 F.2d at 1455. Likewise, Exxon involved two different

damages: first, the damage caused by the break in the hose connecting the vessel

to the mooring system; second, the damage caused when the captain of the Exxon

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other acts by the parties”; second, “[T]he negligent acts of the

parties took place almost simultaneously, encompassing only a

period of about two minutes.”

Next, Stolt points to various actions that Maginn could have

taken in order to possibly prevent the collision: increased the

speed of his vessel (which would increase maneuverability); steered

“hard right rudder” (which would have moved the LINDHOLM back to

its right); or, at the very least, maintained his speed. On this

basis, Stolt argues that Maginn’s subsequent acts caused a type of

harm (“collision”) that was different than the harm caused by prior

negligent acts (“sheer”). 

We reject Stolt’s argument. First, “A subsequent negligent

act does not excuse prior negligence except in most unusual

circumstances.”28 Second, Stolt’s characterizations of the types

of harm makes little sense. The “sheer” itself did not cause any

harm; a variety of negligent acts, by both the LINDHOLM and the

STOLT ACHIEVEMENT, caused the sheer, which ultimately led to the

collision. Lone Star, in contrast, involved two different harms:

the crack in the barge’s hull (caused by the towing company) and

the sinking of the barge (caused, at least in part, by the barge

company’s failure to inspect the barge prior to unloading).29 Here,
Houston ran the ship aground on a reef. Exxon, 517 U.S. at 832-34. Here, all

the negligent acts, by both STOLT ACHIEVEMENT and LINDHOLM, caused a single

event: the collision.

30Allied Chemical Corp. v. Hess Tankship Co. of Delaware, 661 F.2d 1044,

1057 (5th Cir. 1981) (“Our review of the Court’s apportionment of damages is

governed by the ‘clearly erroneous’ standard.”); Inland Oil & Transport Co. v.

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

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there is one harm: damage from the collision. Stolt’s attempt to

cast the collision in a different light is unpersuasive.

All the relevant events occurred within a very short time

frame (two minutes). At the point of collision, the Houston Ship

Channel is only 400 feet wide, and the STOLT ACHIEVEMENT is a large

tanker, with a breadth of approximately 102 feet. We refuse to

conclude that Maginn’s actions in the face of the sheer were

sufficiently “extraordinary” as to be unforeseeable to the STOLT

ACHIEVEMENT. Thus, we conclude that the district court did not

clearly err in refusing to find the negligence of Maginn to be a

superseding cause of the collision.

D

Fourth, Stolt argues that the district court clearly erred

when it apportioned responsibility for the collision equally

between the parties. We review the district court’s apportionment

of fault in a collision case for clear error.30

Apportionment of fault in a collision case sets sail with the

Supreme Court’s decision in United States v. Reliable Transfer Co.,

in which the Court jettisoned the divided damages rule in favor of
31421 U.S. 397, 411 (1975).

32Id.

33Gele v. Wilson, 616 F.2d 146, 148 (5th Cir. 1980).

34See United Overseas Export Lines, Inc. v. Medluck Compania Naviera, 785

F.2d 1320, 1325-26 (5th Cir. 1986).

35See Mac Towing Inc. v. Am. Commercial Lines, 670 F.2d 543, 547 (5th Cir.

1982) (recognizing that simply because a court “divided damages equally among the

parties does not mark a failure to follow Reliable Transfer”).

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an allocation of responsibility based on comparative fault.31 The

Court, in Reliable Transfer, held that equal apportionment of

responsibility was proper only if “the parties [were] equally at

fault” or if “it [was] not possible fairly to measure the

comparative degree of their fault.”32

As we have recognized, “[t]he calibration of culpability

simply is not susceptible to any real precision.”33 Apportionment

is not a mechanical exercise that depends upon counting up the

errors committed by both parties. The trial court must determine,

based upon the number and quality of faults by each party, the role

each fault had in causing the collision.34

Stolt argues that a finding of equal fault is the exception,

not the rule, and that appellate courts “often” reverse 50/50

allocations. Although perhaps true, we have never held that

Reliable Transfer “delete[d] the number ‘50' from the federal

courts’ vocabulary.”35 As Judge Brown noted in Mac Towing Inc. v.

American Commercial Lines, “[i]f the court finds the parties
36Id.

37Specifically, the district court found that: (1) the LINDHOLM was running

too close to the side of the dredged area in the Channel; (2) the STOLT

ACHIEVEMENT was proceeding at an excessive speed; (3) the STOLT ACHIEVEMENT

violated rules of prudent seamanship as well as Inland Navigational Rule 6; (4)

the STOLT ACHIEVEMENT stayed too close to (or over) the Channel’s centerline; (5)

the LINDHOLM proceeded too fast in the area, thus also violating Rule 6; (6)

Third Mate Maginn was negligent in failing to notify the STOLT ACHIEVEMENT of his

steering issues. 

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equally at fault, so be it.”36 Here, the district court identified

a variety of negligent acts by both the STOLT ACHIEVEMENT and the

LINDHOLM,37 and it concluded, “Taking into consideration both the

number and quality of negligent acts of each party, the court finds

and concludes that the fault of each vessel contributed equally to

the accident.”

Moreover, Stolt’s reliance on Portacci v. Moran Towing &

Transportation Co. is misplaced. There, the district court

determined that two vessels’ “mutual fault” caused the collision,

and thus allocated fault equally. On appeal, we remanded the

allocation question to the district court, concluding that a

finding of “mutual fault” does not imply “equal fault.” We stated

that “mutual fault . . . describes 10%-90% just as accurately as it

does 50%-50%.” Moreover, we found no indication in the district

court’s opinion that a specific apportionment was not practicable.

Here, in contrast, the district court found that both the

STOLT ACHIEVEMENT and the LINDHOLM “contributed equally to the

accident.” It is true that the district court never stated that it

would not be practicable to allocate fault comparatively; however,
38Average is an ancient maritime doctrine which provides that ship and

cargo share ratably in the overall loss resulting from efforts to extricate the

ship and cargo from a danger common to both. See Usinas Siderugicas de Minas

Geras, Sa-Usiminias v. Scinda Steam Navigation Co., 118 F.3d 328, 330 (5th Cir.

1997). To recover for average, a party must show: (1) a common peril or danger

that is imminent, (2) a voluntary sacrifice of cargo for the common benefit, and

(3) the successful avoidance of the peril. Barnard v. Adams, 51 U.S. (10 How.)

270 (1850). Typically, the average adjuster performs the complicated task of

calculating the contributing values and the assessment of general average losses.

2 BENEDICT ON ADMIRALTY § 184 (7th ed. 2003).

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the Supreme Court indicated that such a finding was unnecessary

when the court finds both parties “equally at fault.” We reject

Stolt’s appeal of the district court’s findings on negligence, and

we see no reason to upset its allocation of liability.

E

Finally, Stolt argues that the district court erred in holding

that it failed to prove entitlement to average adjuster’s fees.38

Stolt contends that the parties stipulated to an award of fees

prior to trial; Weeks responds that the parties stipulated to the

amount of fees, but never to whether fees were recoverable.

The district court did not err in denying Stolt fees. The

stipulation entered by the parties provides:

2. Stolt Achievement, Ltd. also seeks recovery of the

fees and expenses of Maritime Adjusting Services in the

agreed amount of $72,925.00, which Weeks Marine, Inc.

contends is not a recoverable item. This amount is the

average adjuster’s fee and expenses[,] and whether such

are recoverable as an element of damages is a question of

law to be resolved by the Court.

As should be plainly obvious, a stipulation as to the amount of

fees is not a stipulation to liability for such damages. The

stipulation is clear: Stolt and Weeks agreed to an amount; Weeks
39The district court found no evidence regarding (1) the general average,

(2) the hiring of an adjuster, (3) what the adjuster did, (4) whether it was

reasonable for Stolt to engage an average adjuster, (5) what cargo was damaged,

(6) whether there was contribution from cargo owners, and (7) whether the

collision at issue qualifies for general average procedures.

40See The Potomac, 105 U.S. 630, 632 (1881). Stolt made a similar argument

to the district court in its motion to alter or amend the judgment under Rule 59,

and the district court similarly rejected Stolt’s claim. It stated: “The court

did not rule that average adjuster’s fees [were] not a recoverable item in this

type of case. The court ruled only that [Stolt] wholly failed to meet its burden

in this case.”

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contested whether that amount was recoverable.39 Stolt was the

party moving for an award of fees; Stolt had the burden of

establishing it was so entitled.40 Merely resting on this

stipulation was insufficient.

III

Accordingly, the district court’s judgment is AFFIRMED.