United States Court of Appeals

Fifth Circuit



## FILED

May 28, 2003

Charles R. Fulbruge III

Clerk Revised July 17, 2003

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-31323

TRICO MARINE ASSETS INC.; TRICO MARINE OPERATORS INC.

Plaintiffs - Appellees

VERSUS

DIAMOND B MARINE SERVICES INC, ETC; ET AL

Defendants

DIAMOND B MARINE SERVICES INC, IN PERSONAM

Defendant - Appellant

In Re: In the Matter of the Complaint of TRICO MARINE OPERATORS

INC, as Owners/Operators/Owners pro hac vice of the OSV Cane River,

Praying for Exoneration From or Limitation of Liability

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

TRICO MARINE ASSETS INC; TRICO MARINE OPERATORS INC, as

Owners/Operators/Owners pro hac vice of the OSV Cane River,

Petitioners - Appellees-Cross-Appellees

VERSUS

TEXACO EXPLORATION & PRODUCTION INC

Intervenor - Appellee-Cross-Appellant-Cross-Appellee

ACE USA, successor-in-interest

Intevenor - Appellee-Cross-Appellant

CIGNA

Intervenor - Appellee

VERSUS2 DIAMOND “B” MARINE SERVICES INC

Claimant - Appellant - Cross-Appellee/Appellee

JAMES ANDREW BENNETT

Claimant - Appellant

VERSUS

LONNIE FONTENOT; WAYNE PAUL THIBODAUX, individually and on behalf

of their dependent minor child, Blake Milton Thibodaux, and their

dependant children, A ngel Marie Thibodaux and Kelly Marie

Thibo daux; ALAN J. LEBLANC, individually and on behalf of their

dependant children Shere A LeBlanc and Michelle R Le Blanc

Claimants - Appellees-Cross-Appellants/Appellants-Cross-Appellees

In Re: In the Matter of the Complaint of DIAMOND B. MARINE

SERVICES INC, as Owner/Operator of CB Miss Bernice Praying for

Exoneration From or Limitation of Liability Regarding Collision of

25 March, 1999 with OSV Cane River

---------------------------------------- DIAMOND “B” MARINE SERVICES INC, as Owner/Operator of

CB Miss Bernice

Petitioner - Appellant-Cross-Appellee/Appellee

VERSUS

TRICO MARINE ASSETS INC; TRICO MARINE OPERATORS INC

Claimants - Appellees-Cross-Appellees

MICHAEL A CHERAMIE; KENNETH B HELLER

Claimants - Appellees

LONNIE FONTENOT, individually and on behalf of their dependent

children, Amy and Jacob Fontenot; WAYNE PAUL THIBODAUX,

individually and on behalf of their dependant minor child, Blake M

Thibodaux, an d their dependant children, Angel M Thibodaux and

Kelly M. Thibodaux; ALAN J LEBLANC; individually and on behalf of

their dependant children, Shere A leBlanc and Michelle R LeBlanc

Claimants - Appellees-Cross-Appellants/Appellants

VERSUS3 JAMES ANDREW BENNETT

Claimant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

Before JONES, WIENER and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

On March 25, 1999, the C/B MISS BERNICE collided with the

O.S.V. CANE RIVER in the fog in the Mississippi River below Venice,

Louisiana. This collision led to three lawsuits: 1) a suit brought

in admiralty by Tri co Marine Assets, Inc. and Trico Marine

Operators, Inc. (collectively “Trico”) against Diamond B Marine

Services, Inc. (“Diamond B”); 2) an exoneration/limitation action

ins t ituted by Trico; and, 3) an exoneration/limitation action

instituted by Diamond B. These three cases were consolidated

before the Federal District Cour t for the Eastern District of

Louisiana.

The district court entered judgment in favor of Trico for

damages totaling $43,167.09 against Diamond B and James A. Bennett

(the captain of the MISS BERNICE). The court also rendered

jud gment in favor of Trico and against Diamond B and Bennett for

full indemnity for any damages that would be assessed against Trico

in any other proceeding. The district court also denied Diamond

B’s petition for exoneration or limitation of liability and awarded4

damages to three injured Texaco Exploration and Production, Inc.

(Texaco) empl o yees: Wayne Thibodaux, Lonnie Fontenot and Alan

LeBlanc (collectively “complainants”). In an amended judgment, the

d istrict court ordered that the complainants reimburse th eir

employer, Texaco, for the amount of pas t medical expenses Texaco

provided them.

Diamond B, Bennett and the complainants all appeal various

aspects of the di strict court’s order. Texaco has filed as an

appellee-cross-appellant cross-appellee and Trico has responded as

an appellee.

BACKGROUND

On the morning of March 25, 1999, both th e MISS BERNICE and

the CANE RIVER were docked in Venice. The MISS BERNICE was

chartered to Texaco, and Texaco ordered Bennett to pick up its

employees (the complainants) at Garden Island Bay and return them

to Venice. Although he knew visibility that morning was extremely

restricted, Bennett departed from Venice withou t a lookout and

without turning on his running lights. Furthermore, Bennett had

never been trained to use the vessel’s Si-Tex radar unit. The

radar had been installed eleven mon ths before the collision, but

Bennett was absent that day and Diamo nd B left him to read the

radar’s manual and figure it out for himself. Bennett also decided

to run the vessel at full speed, approximately 18 knots, even

though the engine noise would make it difficult to hear the radio5

or the fog signals of other vessels. Finally, he failed to check

any of the MISS BERNICE’s navigation equipment and ran at full

speed without fog signals.

Although visibility remained very poor when Bennett arrived at

Garden Island Bay, he decided to return to Venice immediately,

still running at full speed and still without a lookout, running

lights, or fog signals. The MISS BERNICE’s engine noise was so

loud that Bennett hooked up an external speaker to hear the radio.

Bennett had complained about the engine noise problem in the past,

but Diamond B had not done anything to remedy it.

As he approached the West Point Light, Bennett overtook a

northbound supply boat, the O.S.V. ENSCO SCHOONER. Robert Rusho,

the captain of that vessel, testified that he did not see the MISS

BERNICE on the radar and that Bennett failed to radio him to make

an overtaking agreement. Rusho was not aware that the MISS BERNICE

was in the area until he heard her engines, which bri efly slowed

down as she cut around the starboard side of the ENSCO SCHOONER and

then gunned back to full speed.

Continuing northbound at full speed, Be nnett saw the CANE

RIVER as a target on the MISS BERNICE’s radar. Unfortunately, due

to his lack of training and to the CANE RIVER’s very slow speed,

Bennett thought that the CANE RIVER was also northbound and that he

was overtaking her. In reality, the CANE RIVER was southbound, and

the two vessels were meeting. Bennett testified that he thought he

announced on the radio that he was overtaking a northbound vessel,6

but he said that he received no response. Even if Bennett actually

made that announcement, it is not surprising he received no

response, as there were no northbound vessels in the area.

Despite the lack of either radio contact or an agreement to

overtake the vessel, Bennett headed the MISS BERNICE on a direct

collision course with the radar target for more than three full

minutes without sounding any signals. When the CANE RIVER came in

sight, he was surprised to see her bow instead of the stern he was

expecting.

Earlier that same morning, just as the MISS BERNICE was

picking up the Texaco employees, the CANE RIVER was waiting for the

fog to rise in Venice. At about 7:30 a.m., Kenneth Heller, the

ship’s mate, was informed by another Trico vessel that the fog was

lifting. As visibility at the dock was clear, the CANE RIVER left

the dock for an offshore platform at approximately 8:00 a.m.

As the CANE RIVER approached the Venice Jump, Heller made

seve ral radio announcements of his intention to turn southbound

into the Mississippi R iver. Two small northbound crewboats

responded, and the boats ag reed to pass starboard to starboard.

The MISS BERNICE did not respond to the announcements.

As the CANE RIVER proceeded down river, Helle r periodically

announced the vessel’s position over the radio an d monitored its

two radars, which were set on ranges of three-quarters of a mile

and one-and-a-half miles. At no time did the radar pick-up the

MISS BERNICE. At the same time, Lornell Castle, a deckhand and the7

CANE RIVER’s lookout, was in the wheelhouse looking and listening

for other vessels.

Between the Upper Jump Shoal Buoy and the Lower Jump Shoal

Buoy, the CANE RIVER encountered patchy fog, and visibility began

to diminish. Heller reduced the CANE RIVER to bare steerage ( i .e.,

the lowest speed at which he could still control the vessel), which

was approximately four knots, and began sounding fog signals every

two minutes, as required by the Rules.

After taking these precautions, Helle r had Castle summon

Captain Michael Cheramie to the wheelhouse to assess the situation.

Castle quickly did so and immediately resumed his post. Satisfied

that there was no d anger and that Heller had the situation under

control, Cheramie went below deck to get his sunglasses and a cup

of coffee. Before he could return, the collision occurred. No one

aboard the CANE RIVER was aware of the MISS BERNICE’s presence

until seconds before the collision when Heller and Castle heard her

engines and saw her emerge from the f og directly in front of the

CANE RIVER.

At trial, Bennett testified that if he had held his course

when he first saw the CANE RIVER, the boats might have narrowly

missed one another. However, at the last second Bennett turned the

MISS BERNICE hard to starboard, causing a bow-to-bow collision. At

trial, Bennett admitted Hel ler could not have prevented the

collision. He further testified that he did not know how he let8

the situation develop and that he took away all of his and the CANE

RIVER’s options.

Even though he had already been injured in a previous accident

for failing to wear his seatbelt, Bennett was not wearing a

seatbelt at the time of this collision. As a result, he was thrown

into the windshield and momentarily lost consciousness. Still at

full speed and with no one at the wheel, the MISS BERNICE again

struck the CANE RIVER in the port stern. After the first impact,

Captain Cheramie took control of the CANE RIVER and maneuvered her

in front of the MISS BERNICE to prevent her from hitting the “Fed

14,” a tug and barg e composite also heading south. The MISS

BERNICE struck the CANE RIVER a third time and was finally brought

under control when passenger Fontenot took her engines out of gear.

The second and third impacts caused additional damage and

injuries.

Captain Cheramie and his crew tied the MISS BERNICE to the

CANE RIVER to keep the MISS BERNICE from sinking. Bennett and the

Texaco employees were taken to shore by other vessels for medical

attention. Captain Cheramie took both the CANE RIVER and the MISS

BERNICE back to the dock in Venice.

The collision of the two vessels led to three lawsuits: 1) a

suit brought in admiralty by Trico against Diamond B; 2) an

exoneration/limitation action instituted by Trico; and, 3) an

exoneration/limitation action instituted by Diamond B. These three

cases were consolidated before the Federal District Court for the9

Eastern District of Louisiana, and during the week of January 8,

2001, the district court conducted a non-jury trial of the claims

of all parties in the three consolidated cases.

On September 28, 2001, the district court entered findings of

fact and conclusions of law as well as a judgment in favor of Trico

for damages totaling $43,167.09 against Diamond B and Bennett. The

district court also denied Diamond B’s petition for exoneration or

limitation of liability and awarded d amages to the three

complainants in the following amounts: $125,037.41 to Wayne

Thibodaux, $181,184.20 to Lonnie Fontenot and $295,816.63 to Alan

LeBlanc. Though Bennett also sought damages, the court found that

his injuries were caused solely by his own negligence in failing to

wear a seatbelt and that he was therefore not entitled to recovery.

In an amended judgment filed November 20, 2001, the district

court ordered that the complainants reimburse the i r employer,

Texaco, for the amount of past medical expenses they received from

Texaco. Fontenot was ordered to reimburse Texaco $132,229.31,

LeBlanc was ordered to reimburse $51,975.35, an d Thibodeaux was

ordered to reimburse $48,553.74. In a second amended judgment, the

district court ordered that the complainants also reimburse Texaco

from the amount of the recovery they received in damages for

compensation they received from Texaco during the pendency of the

lawsuit. Finally, the district court denied the complainants

motion for attorney’s fees.1 An allision is defined as the “running of one ship upon

another that is stationary

- di stinguished from c ollision .”

Webster’s Third New International Dictionary 56 (1971). A

collision is defined as “the action or an instance of colliding,

violent encounter, or forceful stri k ing together typically by

accident and so as to harm or impede.” I d. at 446. Therefore, an

allision occurs when a ship strikes a stationary object while a

collision involves two moving vessels or objects. The Pennsylvania

involved a collision.

10 DISCUSSION

Did the district court err by not applying the Pennsylvania Rule

and placing the burden on Trico to prove that the collision could

not have been caused by the CANE RIVER’s violation of Rule 6 in

order to exonerate it?

Diamond B , Bennett and the claimants all assert that the

district court committed a fundamental error by not placing the

burden o n Trico, as required by the rule of the P ennsylvania

, to

show that its negligence could not have caused the collis ion.

Under the rule of the Pennsylvania

, a party that is in violation of

a rule intended to prevent allisions 1 is presumed to be at fault

and bears the burden of proving that the violation did not cause

the allision. B runet v. United Gas Pipeline Co.

, 15 F.3d 500, 504

(5th Cir. 1994). This Court has recognized that the rule of T he

Pennsylvania may apply in collision cases as well as in cases

arising from an allision. A cacia Vera Navigation Co. v. Kezia,

Ltd. , 78 F.3d 211, 216 (5th Cir. 1996); see also Sheridan Transp.

Co. v. Tug New York Co.

, 897 F.2d 795, 799-800 ( 5th Cir. 1990)

(citing G ele v. Chevron Oil Co.

, 574 F.2d 243 (5th Cir. 1978) )

.11

These parties also claim that the district court erred in finding

that the CANE RIVER was not negligent, asserting multiple grounds

for its negligence such as moving forward in low visibility despite

the “line of sight” rule, moving forward when the operators knew

that the radar might not pick-up certain vessels and failing to

maintain a proper lo ok-out. Trico answers that the P ennsylavnia

rule does not apply because the district court never found that the

CANE RIVER violated a statute and that a clear error analysis

applies to this finding of fact. Trico further asserts that they

prevail under a clear error analysis as to the issue of negligence

on the other alleged breaches of duty.

Though Diamond B argues for a de novo review of the district

court’s decision, Trico is correct and the decision is reviewed for

clear error. “In maritime actions, questions of fault are ‘factual

issues which cannot be disturbed on appeal unless the resolutions

are clearly erroneous.’” Brunet 15 F.3d at 502 (quoting Valley

Towing Serv., Inc. v. S.S. Am. Wheat, Freighters, Inc.

, 618 F.2d

341, 346 (5th Cir. 1980)); see also Fed. R. Civ. P. 52(a). In the

present case, the distr ict court was faced with deciding whether

the C ANE RIVER had violated various statutes intended to help

prevent allisions. The district court weighed the evidence before

it, considered a number of factors, and concluded that the CANE

RIVER did not violate any such statutes. In B run et , this Court

applied a clear error analysis to a similar situation in which an12

appellant ar gued that the rule of the P ennsylvania should apply

because the appellee had violated various permits and regulations.

See also Acacia Vera Navigation Co. , 78 F.3d at 215-16.

Util izing a clear error analysis, we find the appellants’

arguments unconvincing. The appellants claim that the CANE RIVER

was in violation of Rules 6 and 19, which govern th e speed of a

vessel and its speed in limited visibility. Rule 6 states:

§ 2006. Safe speed (Rule 6)

Every vessel shall at all times proceed at a safe speed

so that she can take proper and effective action to avoid

collision and be stopped within a distance appropriate to

the prevailing circumstances and conditions.

In determining a safe speed the following factors shall

be among those taken into account:

(a) By all vessels:

(i) the state of visibility;

(ii) the traffic density including concentration of

fishing vessels or any other vessels;

(iii) the maneuverability of the vessel with

special reference to stopping distance and turning

ability in the prevailing conditions;

(iv) at night the presence of background light such

as from shores lights or from back scatter of her

own lights;

(v) the state of wind, sea, and current, and the

proximity of navigational hazards;

(vi) t he draft in relation to the available depth

of water.

(b) Additionally, by vessels with operational radar:

(i) the characteristics, efficiency and limitations

of the radar equipment;

(ii) any constraints imposed by the radar range

scale in use;

(iii) the effect on radar detection of the sea

state, weather, and other sources of interference;

(iv) th e possibility that small vessels, ice and

other floating objects may not be detected by radar

at an adequate range;

(v) t he number, location, and movement of vessels

detected by radar; and

(vi) the more exact assessment o f the visibility2 Rule 19 states, in relevant part:

§ 2019. Conduct of vessels in restricted visibility (Rule 19)

(a) Vessels to which rule applies

This Rule applies to vessels not in sight of one another when

navigating in or near an area of restricted visibility.

(b) Safe speed; engines ready for immediate maneuver

Every vessel shall proceed at a safe speed adapted to the

prevailing circumstances and conditions of restricted visibility.

A power-driven vessel shall hav e her engines ready for immediate

maneuver.

(c) Due regard to prevailing circumstances and conditions

Every vessel shall have due regard to the prevailing circumstances

and conditions of restricted visibility when complying with Rules

4 through 10.

. . . . (e) Reduction of speed to minimum

Except where it has been determined that a risk of collision does

not exist, every vessel which hears apparently forward of her beam

the fog signal of another vessel, or which cannot avoid a

close-quarters situation with another vessel forward of her beam,

shall reduce her speed to the minimum at which she can be kept on

course. She shall if necessary take all her way off and, in any

event, navigate with extreme caution until danger of collision is

over.

13

that may be possible when radar is used to

determine the range of vessels or other objects in

the vicinity.

33 U.S.C. § 2006. The district court considered all of these

factors, and the provisions of Rule 19, and found that the CANE

RIVER was operating at a safe speed. 2 The district court found,

inter alia

, that the CANE RIVER maintained a proper lookout by

stationing Castle in the wheelhouse with the door open; that the

radars of the CANE RIVER were monitored properly by Heller, and

that the CANE RIVER maintained a proper radar lookout; that the

CANE RIVER maintained a proper radio lookout and made required3 Apparently, Bennett could not hea r these announcements over

the noise of his vessel’s engine.

4 It is alleged that the CANE RIVER needed 200 feet to stop but

only had 100 feet of visibility.

14 security announcements over i t; 3 and, that the CANE RIVER was

proceeding downriver at b are steerage, which was the slowest

possible speed it could run without losing control of the vessel.

As to this last finding, the appellants claim that it was

error for the CANE RIVER to even be on the water in such a fog and

that the district court should have found the CANE RIVER’s speed to

be unsafe under the “line of sight” rule, which describes the speed

at which a vessel can safely travel as being the speed which allows

the vessel to come to a halt within half the distance of its line

of sight. 4 In rejecting applicability of the “line of sight” rule,

the district court cited to St. Philip Offshore Towing Co. v.

Wisconsin Barge Lines, Inc.

, 466 F.Supp. 403, 409 (E.D. La. 1979),

in support of the court’s conclusion that, because the MISS BERNICE

was traveling far in excess of the moderate speed required by law,

the line of sight rule did not apply. Appellants claim that the

district court misread St. Philip Offshore Towing Co.

, but, even if

true, this point is moot for two reasons.

First, the Supreme Court and this Circuit have recognized that

the “line of sight” rule is not a rigid one that must be followed

in all situations. As Trico points out, in cases as early as The

Pennsylvania

, the Supreme Court recognized that the speed at which15

a vessel can safely travel in fog depends on the circumstances of

each case. 86 U.S. at 133. In U nion Oil Company of California v.

The San Jacinto

, the Supreme Court reversed the Ninth Circuit’s

strict application of the “line of sight” rule because the fault

alleged to have resulted from violation of the “line of sight” rule

did not have “some relationship to the dangers against which that

rule was designed to protect.” 409 U.S. 140, 146 (1972). In other

words, the “line of sight” rule was inapplicable, despi te the

vessels’ traveling in excess of that sp eed, because the other

vessel was negligent in a manner that could not have been

anticipated. In I n re Magnolia Towing Company

, 764 F.2d 1134 (5th

Cir. 1985), this Circuit adopted the Supreme Court’s ruling in San

Jacinto

, stating that “[ t]he reason for the half-distance rule

(line of si ght) was to avoid reasonably anticipatable possible

hazards, and the rule (with its violation importing statutory

fault) does not apply where it is totally unrealistic to anticipate

the possibility of the particular hazard created by the o ther

vessel’s negligence.” Id. at 1138 (internal quotations omitted).

In the present case, the district court found that the MISS

BERNICE’s actions were just the sort of unanticipatable hazards and

negligence that should pretermit application of the “line of sight”

rule.

Second, even if the “line of sight” rule were applied and the

rule of The Pennsylvania invoked, the appellants’ argume nt would5 The appellants also ar gue that the CANE RIVER was negligent

being out in such conditions because it could not safely travel

within the line of sight rule. Though language to support this

proposition can be found in Pennzoil Producing Co. v. Offshore

Express, Inc.

, 943 F.2d 1465, 1470 (5th Cir. 1991), the discussion

16 fail because the district court alternatively found that the CANE

RIVER could not have avoided a collision with the MISS BERNICE at

any speed. In fact, Bennett himself admitted that his last-second

turn into the CANE RIVER took away all of the CANE RIVER’s options.

Therefore, even if this Court were to adopt the appellants’

argument that the “line of sight” rule should be invoked, it would

not overcome the district court’s determination that the collision

was unavoidable due to the MISS BERNICE’s negligence.

Ultimately, all of the appellants’ as sertions come down to

contesting the district court’s findings of fact. Despite their

contentions that a de novo standard should be used, we find that a

clear error analysis is applicable. Under such a standard, the

district court had ample grounds on which to base its various

findings of fact as to the proper maintenance of a lookout, proper

radar lookout, proper radio lookout and safe speed. The district

court also found, as a factual matter, that the second and third

impacts were not the fault of the CANE RIVER but rather the fault

of the MISS BERNICE, which was advancing full throttle in a

starboard direction without anyone at the helm, due to Be nnett’s

having been rendere d unconscious by the initial impact. The

district court’s decision is therefore affirmed. 5the appellants cite to involved a review of many factors

contributing to negligence in that particular case r ather than a

discussion of the applicability of the Pennsylvania rule, and this

case was subsequent to this Court’s ruling in Magnolia that the

line of sight rule does not always apply to infer negligence.

Additionally, the district court made findings that when the CANE

RIVER left Venice, it had good visibility and it was en route to

its destination when it encountered patchy fog, which limited its

visibility.

17 Did the district court err by denying Diamond B’s claim to limit

its liability to the value of the MISS BERNICE?

Diamond B also claims that the district court erred in not

limiting its liability to the value of its vessel as required by 46

U.S.C. § 183(a). Trico argues that the district court’s finding

was correct because Diamond B had privity or knowledge of the MISS

BERNICE’s unseaworthy condition and Bennett’s negligent acts.

Diamond B claims that even though there were nav igational errors

made, all errors that led to the collision were simply due to their

“hands-off” approach to management, as allowed under In re Kristie

Leigh Enterprises , 72 F.3d 479 (5th Cir. 1996).

This Court reviews a denial of limited liability for clear

error. H

ellenic Inc. v. Bridgeline Gas Distrib., L.L.C., 252 F.3d

391, 394 (5th Cir. 2001). Under 46 U.S.C. § 183(a), a vessel owner

may limit the liability incurred for any loss, damage or injury by

collision to the “amount of value of the interest of such owner in

such vessel, and her freight then pending.” Id. However, if the

vessel’s negligence or unseaworthiness is the proxim ate cause of

the claimant’s loss, the plaintiff-in-limitation must prove it had18

no privity or knowledge of the unseaworthy conditions or negligent

acts. C upit v. McClanahan Contractors, Inc.

, 1 F.3d 346, 348 (5th

Cir. 1995). “[A] shipowner has privity if he personally

participated in the negligent conduct or brought about the

unseaworthy condition.” Pennzoil , 943 F.2d at 1473. “Knowledge,

when the shipowner is a corporation, is judged not only by what the

corporation’s managing officers actually knew, but also by what

they should have known with respect to conditions or actions likely

to cause the loss.” I d. at 1473-74. Also, in situations resulting

in loss of life or bodily injur y, the knowledge of a seagoing

vessel’s master at the commencement of a voyage is imputed to the

vessel’s owner. 46 App. U.S.C. § 183(e).

The distri ct court found that Diamond B had privity and

knowledge of Bennett’s negligence and particip ated in the

negligence that caused the collision. The district court’s

findings were that Diamond B: 1) failed to provide a lookout; 2)

failed to train Bennett to use a radar; 3) failed to evaluate the

MISS BERNICE’s seaworthiness or Bennett’s competence (facts

particularly relevant considering the excessive engine noise that

may have helped cause the collision); 4) failed to inspect the

vessel logs; 5) failed to employ a safety manager; and, 6) failed

to provide safety training or safety manuals. The district court

additionally found that “Diamond B knew the MISS BERNICE had

operated in the fog and would continue to do so, yet employed a19

captain without the proper qualifications and without adequate

policies or procedures to guide him.” Based on these findings, the

d istrict court had no difficulty in concluding that Diamon d B

should be denied any limitation on its liability.

Diamond B claims this was error. Diamond B contends that all

it is guilty of is having a “hands-off” approach to management,

which it claims is permissible under this Court’s decis ion in

Kristie Leigh

. Diamond B is mistaken. Though this Court did

recognize that a vessel owner could not be denied limitation of

liability based merely on errors in navigation or other negligence

by master or crew, Kristie Leigh , 72 F.3d at 481-482, the present

case presents far more than mere navigational errors. Diamond B

was aware that Bennett had trouble hearing the radio over the

engine noise and that this noise also drowned out other vessels’

fog signals; yet Diamond B sent him out anyway. Diamond B also

sent him out without a lookout and with a radar system that Bennett

had no training in how to use. Diamond B claims that Bennett had

sufficient hands-on exper ience in using radar, but the fact that

Bennett could not even tell which direction the CANE RIVER was

traveling on radar indicates otherwise. In short, the facts found

in this case go far beyond mere navigational errors. Diamond B

knew, or should have known, that the MISS BERNICE was unseaworthy

and that its captain was improperly trained. Therefore, the

district court’s decision is affirmed.6 Bennett also argues on appeal that Trico is not entitled to

judgment against him because he was never properly served. Though

Be nnett was a party to the litigation from the outset, he claims

that Tr ico’s cross-claims against him, which Trico claims were

served by mail through Bennett’s attorney, were never received by

himself or his attorney. Bennett claims that he made a motion to

the district court to dismiss the claims against him by Trico but

that the di strict court refused to hear his motion. This is not

accurate. The district court denied Bennett’s motion as untimely.

Bennett has not argued on appeal that his motion was timely or

cited any authority as to why the district court erred in denying

his motion and his arguments on this point are therefore waived.

“[I]ssues not raised or argued in the brief of the appellant may be

considered waived and thus will not be noticed or entertained by

the court of appeals.” In re Tex. Mortgage Serv. Corp. , 761 F.2d

1068, 1073 (5th Cir . 1985). (citation and internal quotation

omitted).

20 Did the district court err in its allocation of damages owed to the

claimants and Bennett?

The claimants and Bennett argue that the district court erred

in its allocation of damages. The claimants maintain that the

district court violated the collateral source doct rine by taking

the income they derived from Texaco into consideration, and that

the amount of damages for medical expenses and future wages was in

error. Bennett argues that he should not have been denied any

damages based on his failure to wear a seatbelt. 6

District courts enjoy “wide discretion” in awarding damages.

Douglass v. Delta Air Lines, Inc.

, 897 F.2d 1336, 1339 (5th Cir.

1990). “The standard of review to apply in our inquiry into all

findings of fact, including damage awards, is a clearly erroneous

standard.” N

ichols v. Petroleum Helicopters, Inc.

, 17 F.3d 119,

121 (5th Cir. 1994). “Furthermore, mere disagreement with the21

district court’s analysis of the record is insufficient, and we

will not reverse a finding although there is evidence to support

it, unless the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been

committed.” Id. (internal quotations omitted).

A. Bennett’s damages

Bennett argues three points in support of his posi tion that

the district court erred in finding his injury was caused by his

own negligence. First, he argues that wearing a seatbelt was not

required, and that the only reason one would wear a seatbelt is if

waves or a r ough sea would necessitate wearing one to keep from

falling down. Since the river was calm the day of the collision,

Benne tt argues, there was no reason to wear a seatbelt. Second,

Bennett claims that his injuries would not have been prevented by

his wearing a seatbelt. Despite the fact that he went through the

fro nt windshield head-first, Bennett claims that the real injury

occurred from his brain hitting the side of his cranium, which he

contends would have occurred with or without a seatbelt. Third,

Bennett argues that seamen have very little duty under maritime law

to protect themselves and responsibility for his safety is mostly

up to the vessel owner.

Bennett’s first argument defeats itself. If the purpose of

wearing a seatbelt is to prevent the captain from falling down,

then it is axiomatic that it must be there to prevent the captain22

from being thrown through the windshield as well. Additionally,

Bennett had a lready been in one collision in which he was not

wearing a seatbelt. Bennett’s second argument directly contradicts

the district court’s finding, which was based on medical testimony.

We reject this arg ument under the clear error standard.

Additionally, Ben nett does not cite to a single case or piece of

medical evidence to support either of his above two assertions.

As for Bennett’s third argument, even the very cases he relies

on recognize that a seaman has a duty to use reasonable care. B obb

v. Modern Products, Inc.

, 648 F.2d 1051, 1057 (5th Cir. 1981).

Plowing through the water at top speed in the fog, without the

benefit of a look-out or the ability to hear other vessel s’ fog

signals or the radio by itself would violate any duty to take

reasonable care. To do so without a seatbelt fastened is just

another step beyond that reasonable threshold. We therefore affirm

the district court’s findings that Bennett’s own negligence was the

sole or proximate cause of his injuries, preventing his recovery.

B. The claimants’ general, past and future medical damages

Thibodeaux was injured when he was thrown forward in the MISS

BERNICE and knocked unconscious, due to the collision. Thibodeaux

was diagnosed with a head contusion and fractured ribs, and

complained of neck pain, vision problems, and ringing in his ears,

but apparently did not sustain any significant or permanent head

injury. He was also diagnosed with a preexisting degenerative disc23

disease at C5-6 and a longstanding osteophyte formation. About six

months after the collision, an anteri or cervical fusion was

performed, after which Thibodeaux recovered and returned to work on

May 11, 2000, just over 13 months after the collision. Thibodeaux

was awarded $50,000 in gen eral damages and $48,553.74 in past

medicals, and no money was awarded for future medicals. The

district court based its award of general damages on testimony from

Thibodeaux and his treating physicians, the presence of preexisting

conditions (which Thibodeaux attempted to conceal), and general

damages awards made in prior cases. The court based its award of

past medicals on the stipulated amount of past me dicals

attributable to the collision and paid by Thibodeaux’s employer,

Texaco.

Fontenot wa s injured when he fell while attempting to stand

after the first collision and was further injured when he hit his

head in the second impact. After the collision, Fontenot spent two

weeks in the hospital, suffering from fractured ribs, a partially

collapsed lung, a right kidney laceration, and neck pain. The

district court found that Fontenot sustained the internal injuries

in the first impact and the neck injuries in the second. In

February 2000, Fontenot had a d iscectomy and anterior cervical

fusion to correct his neck problems. In February 2001, Fontenot

had a kidney removed to help relieve hypertension. The district

court found that both Fontenot’s neck problems and his hypertension

were preexisting conditions that were aggravated by the collisions.24

The district court awarded $100,000 in general damages for the

first impact and $75,000 in general damages for the second impact.

Fontenot was also awarded $106,045.11 for past medical expenses for

internal inj uries from the first impact and $26,184.20 for past

medicals for cervical injuries from the second impact. Fontenot

received nothing for future medical expenses, but was awarded

$45,000 for future lost wages due t o his cervical injury. The

district court based its general dama ges award on testimony from

Fontenot’s treating physicians, the presence of preexisting

conditions, Fontenot’s failure to mitigate his own injuri es, and

general damages awards made in prior cases. The district court

based its award of past medicals attributable to the collision on

the stipulated amount of past medicals paid by Fontenot’s employer,

Texaco, as well as on the cost of the kidney removal surgery.

LeBlanc sustained injuries to his left knee and shoulder when

he was thrown forward into a table during the first i mpact, then

sustained injuries to his back when he was thrown backward during

the secon d impact. LeBlanc spent two nights in the hospital and

received arthroscopic surgery to his left knee and shoulder for the

injuries sustained in the first impact. In April 2000, LeBlanc

underwent lumbar surgery to correct a preexisting spondylolisthesis

at L4-5 which the district court found was aggravated by the second

impact. In December 2000, LeBlanc underwent a cervical fusion to

relive neck pain, but the district court found that this condition

was preexisting and unrelated to the collision. The district court25

awarded LeBlanc $35,000 in general damages for injuries related to

the first impact and $125,000 for injuries related to the second

impact. LeBlanc was also awarded $35,721.24 for the past medical

expenses related to the arthroscopic surgeries and $19,254.11 in

past medicals for the lumbar surgery. The district court based its

general damages award on testimony from LeBlanc’s treating

physicians, the presence of preexisting conditions, and general

damages awards made in prior cases. The district court based its

award of past medicals on the stipulated amount of past medicals

attributable to the collision and paid by LeBlanc’s employer,

Texaco.

Though all three claimants allege t hat the district court’s

awards were inadequate in light of the nature of their injuries and

awards from similar cases, the district court’s awards appear to be

soundly within the range of reasonableness, and the claimants have

failed to show that the awards were clearly erroneous. The

district court found that all t hree claimants had a pre-existing

condition and that Thibodeaux had made attempts to conceal his preexisting c ondition. The district court also heard detailed

testimony about all three of the claimants’ injuries and their

prognosis before coming to its final damage award. The district

court also supported all of its general damages awards with

citations to cases in which similar injuries yielded similar damage

awards. Though all the claimants make arguments that the amounts

awarded should be higher, nothing in their brie fs indicates that26

the district court was clearly erroneous.

C. The claimant’s future lost wages

All three claimants assert that the district court erred in

the amounts it awarded for future lost wages. The claimants argue

that the court erred when it assumed they could return to work even

though they could not, or assumed that they could return earlier

than they actually could. The district court did award future lost

wages to Fontenot and LeBlanc but not to Thibodeaux because there

was already a stipulation in the record that Thibodeaux had

returned to work and was entitled to no future wage loss. We do

not find this to be in error. Fontenot and LeBlanc claim the

district court erred in finding that they had been cleared to

return to work. In fact, the district court based its decision

about Fontenot on testimony contained in various doctors’ reports

and on the similarity of Fontenot’s injury to Thibodeaux’s. As for

LeBlanc, the district court did assess his future lost wages but

found, based on expert testimony, that he would be able to return

to a field of work and that he had transferrable skills. Therefore

it does not appear that the district court was clearly erroneous.

D. The claimants ’ past lost wages

The claimants assert that the district court erred because it

considered payments made to the claimants by Texaco and reduced

their award for past l ost wages accordingly. For the first six

months after the collision, each of the claimants received a semi-27

monthly check from Texaco covering (1) workers’ compensation

benefits, and (2) an additional amount un der Texaco’s short-term

disability policy which was intended to make- up the difference

b etween the compensation benefits and their ordinary wages. The

district court found that these benefits actually constituted lost

wages, a finding the claimants now contest. As the claimants

offered no details about the benefits, the district court

determined that it could not use the factors set out in Phillips v.

Western Company of North America

, 953 F.2d 923, 932 (5th Cir.

1992), and Davis v. Odeco, Inc. , 18 F.3d 1237, 1243 (5th Cir.

1994)

, to make a finding that the benefits were in fact collateral.

The district court reduced the past lost wages award, despite the

collateral source rule, on two grounds: (1) by introducing evidence

of the past wages themselves, the claimants waived any objection;

and, (2) if the claimants were permitted to receive wages from both

Texaco and as damages, they would be receiving double recovery.

“The collateral source rule is a substantive rule of law that

bars a tortfeasor from reducing the quant um of damages owed to a

plaintiff by the amount of recovery the plaintiff receives from

other sources of compensation that are independent of (or

collateral to) the tortfeasor.” D avis

, 18 F.3d at 1243. “Sources

of compensation that have no connectio n to the tortfeasor are

inevitably collateral.” I d. at 1244. This court reviews decisions

concerning whether such benefits are coll ateral under a d e novo28

standard. Id. at 1245.

The district court assumed that once a plaint iff introduces

evidence of past benefits received, they have waived any objections

about the benefits being used to reduce their past lost wages

award. The finding of waiver, however, is not completely accurate

because the claimants did object to such benefits being considered

under the collateral source rule and, in fact, the district court

stated that it would not so consider the benefits. It is true that

the claimants stipulated to these amounts at t rial, but because

Texaco was seeking reimbursement for these amounts as an

intervenor, the claimants were required to so stipulate by the

Eastern Distr ict’s Code of Professionalism, which states, in

relevant part that “[attorneys] will cooperate with counsel and the

court to reduce the cost of litigation and will readily stipulate

to all matters not in dispute.” U.S. Dist. Ct. Rules E.D. La.,

Orders, Code of Professionalism (adopted Aug. 4, 1999). We

conclude, therefore, that it is factually inaccurate to find that

the claimants waived any objection to these benefits being

considered in calculating their lost wages simply because the

stipulated amounts were introduced by the claimants.

Obviously, by introducing such evidence, the claimants had

waived any evidentiary objections, but this is a different type of

waiver altogether from waiving an objection to their benefits being

reduced by the amount of their damages. In fact, in Parker v.7 In Gates v. Shell Oi l

, 812 F.2d 1509, 1513 (5th Cir. 1987),

this Court note d that the collateral source rule operates to

ex clude evidence of collateral benefits because it may unfairly

p rejudice the jury. However, we noted that in ceratin

c ircumstances, such evidence could be admitted for a l imited

purpose if there is little risk of prejudice and the co urt gives

the jury a limiting instruction. I d. T hus, the evidentiary

principle may be violated so long as it is still substantively

enforced.

8 The district court stated that it could not conside r the

factors of Phillips and Davis because the claimants offered no

details about the nature of the benefits.

29 Wideman , a panel of this Court, applying Florida law, stated that

the plaintiffs do not waive this substantive right just because

they introduce such evidence themselves. 380 F.2d 433, 436 (5th

Cir. 1967) (“Thus, while the tender of such evidence by the

defendant may be excluded on objection by the plain tiff, the

introduction of such evidence by the plaintiff does not bar him

from recovering expenses necessitated by the tort-feasor’s

negligence, even though the expenses were met by monies received

from a collateral source.”). 7 We therefore conclude that the

claimants did not waive the collateral source rule objection.

As for the second basis f or its decision, that to give the

claimants cre dit for these benefits would give them a double

recovery, we also find that the district court erred. The district

court’s concerns about double recovery are misplaced as is its

seeming reliance on Philli ps and Davis

. 8 In those cases, this

Court evaluated employee benefit programs to determine whether they

were bargained for fringe benefits rather than benefits intended to9 In fact, the end res ult of the district court’s ruling was

that the claimants had a “double loss” because the amounts were

deducted from their damages award, but then, the clai mants were

forced to pay the stipulated amounts that were reduced out of their

remaining damages amount.

30 anticipate potential legal liability on the part of the tortfeasor.

Davis

, 18 F.3d at 1244. “Thus, we have recognized that it would be

unfair to allow the plaintiff a double recovery when both the

liability judgment and the collateral benefits are paid for by the

defendant .” P hillips

, 953 F.2d at 931 (emphasis added). These

concerns about double recovery were in the context of a

tortfeasor/defendant having to pay twice, however, and not a third

party paying the benefits as we have here. Therefore, there was no

need to rely on these cases in the first place. Furthermore, there

was no second recovery in the present case, because the claimants

had to reimburse Texaco for the s tipulated amounts of past

benefits. 9 Also, even if the claimants had not reimbursed Texaco,

the fact that the claimants may have gotten a second recovery would

still be irrelevant because to hold otherwise would punish the

claimants for having the foresight to e stablish and maintain

collateral sources of income. Davis , 18 F.3d at 1244, n.21.

Considering the factors above, we find that, to the extent

that the claimants past l ost wages were reduced, the district

court’s decision was in error. We therefore reverse and remand so

that the district court may enter a damages amount reflecting the

stipulated amounts paid by Texaco, which were previously excluded.31

Did the district court err in denying the claimants request for

attorney’s fees?

The claimants also argue that they were ineq uitably denied

reimbursement from Tex aco for attorney’s fees. Under Louisiana

law, employees are generally allowed to recover a portion of their

attorney’s fees if their employer intervenes in a suit against a

third party tortfeasor. La. Rev. Stat. Ann. § 23:1103. As the

district court pointed out, however, a claimant seeking to recover

fees must introduce evidence sufficient to enable the court to make

a proper apportionment. R ivet v. LeBlanc

, 600 So.2d 1358, 1363

(La.App. 1 Cir. 5/22/1992). As no such evidence was presented at

trial or in connection with the hearing on the motion for

attorney’s fees, the district court denied the claimants’ request.

Though the claimants believe that the district court should have

taken judicial notice of the claimants’ enrichment of Texaco, they

cite to no case law that supports this proposition. Additionally,

§ 23:1103(c) provides in part that “the intervenor shall only be

responsible for a share of the reasonable legal fees and costs

incurred by the attorney retained by the plai ntiff,” and “[t]he

amount of the portion of attorney’s fees shall be determined by the

district court based on the proportionate services of the attorneys

which benefitted or augmented the recovery from the third party.”

Despite the claimants’ assertions that it was obvious that the

Texaco a ttorneys rode on the coattails of their attorneys, they

provided no evidence on which the district court could make any32 G:\opin\01-31323.opn.wpd sort of reasonable determination. We therefore conclude that the

district court’s decision was correct.

Did the district court err in finding that different injuries were

caused by the different impacts?

The claimants assert that the district court erred by finding

that different injuries were caused by different impacts because

there was no testimony to support such findings. The claimants

argue th at, if this Court should find that the CANE RIVER is

liable, then the injury determination has bearing on apportionment

of liability. However, as the district court placed no liability

on the CANE RIVER and we affirm that decision today, this issue is

moot.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing, and for the reasons set forth above,

we conclude that the district court’s orders should be AFFIRMED in

all parts except for that portion dealing with the claimants’ past

lost wages. As to that part of the order, we REVERSE and REMAND so

that the district court may enter a damages amount reflecting the

stipulated amounts paid by Texaco, which were previously excluded.

AFFIRMED in part and REVERSED and REMANDED in part.