Revised August 15, 2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30975

GIC SERVICES, L.L.C., 

 Plaintiff - Appellee, 

v. 

FREIGHTPLUS USA, INCORPORATED, 

 Defendant - Third Party Plaintiff - Appellant - Appellee, 

INDUSTRIAL MARITIME CARRIERS, L.L.C.,

 Third Party Defendant - Appellant - Appellee. 

Appeals from the United States District Court 

for the Eastern District of Louisiana 

Before ELROD, SOUTHWICK, and GRAVES, Circuit Judges. 

JENNIFER WALKER ELROD, Circuit Judge: 

This case is about a tugboat and its voyage across the Atlantic from 

Houston to Nigeria. Though the tugboat arrived safely in port, the parties 

dispute whether it was discharged at the correct port. The party that arranged 

for the tugboat’s transport wanted it discharged at Lagos, Nigeria; the ocean 

carrier believed Warri, Nigeria to be the correct port of discharge, claiming it 

was told so by an intermediary. Despite the parties’ efforts to secure discharge 

United States Court of Appeals

Fifth Circuit

FILED

August 8, 2017

Lyle W. Cayce

Clerk

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at Lagos, the ocean carrier was unable to do so and continued on to Warri. And 

there the tugboat remained. Predictably, litigation ensued. After a bench trial, 

the district court entered judgment, allocating the liabilities and associated 

damages among the parties. On appeal, the ocean carrier and the intermediary 

challenge various aspects of the judgment. We AFFIRM in part and REVERSE 

in part. 

I.

The plaintiff in this case, GIC Services, L.L.C. (GIC), contracted with 

Freightplus USA, Inc. (Freightplus), the defendant/third-party plaintiff, to 

arrange for the transport of a tugboat—the REBEL—to Nigeria.1 Freightplus 

does not own vessels capable of transporting the REBEL, so Freightplus 

contracted with Yacht Path International, Inc. (Yacht Path)2—a broker 

specializing in the transportation of large water craft—who in turn contracted 

with Industrial Maritime Carriers, L.L.C. (IMC) as the “vessel-operating 

common carrier.” In the end, GIC agreed to pay Freightplus $111,000 for its 

services, Freightplus agreed to pay Yacht Path $85,000, and Yacht Path agreed 

to pay IMC $70,000. While GIC paid the amount it owed to Freightplus, and 

Freightplus paid the amount owed to Yacht Path, Yacht Path did not remit the 

amount owed to IMC. 

 In the course of making these arrangements, representatives from Yacht 

Path spoke with representatives of IMC via telephone and communicated 

information for IMC’s bill of lading,3 including the desired port of discharge. 

 

1 The REBEL is not owned by GIC, but is owned jointly by GIC Oil and Gas Services, 

Ltd. (the parent company of GIC) and another entity.

2 Yacht Path is now in bankruptcy and is not a party to this appeal. 

3 A bill of lading “records that a carrier has received goods from the party that wishes 

to ship them, states the terms of carriage, and serves as evidence of the contract for carriage.” 

Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp., 561 U.S. 89, 94 (2010) (quotation marks 

omitted). 

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Exactly what was communicated by Yacht Path is in dispute: IMC claims that 

Yacht Path said that Warri was the port of discharge, while Freightplus claims 

that Yacht Path identified Lagos as the port of discharge. IMC then issued a 

“booking note,” which purported to specify the terms of its agreement with 

Yacht Path. This “booking note,” which was sent to Yacht Path, lists Warri as 

the port of discharge. Yacht Path issued its own booking note and bill of lading, 

both of which list Lagos as the port of discharge. In late December, Freightplus 

issued a “house bill of lading,” identifying Lagos as the port of discharge. The 

next day, IMC issued a “non-negotiable” bill of lading and a cargo manifest, 

both of which listed Warri as the port of discharge.4 IMC asserts that its nonnegotiable bill of lading and cargo manifest were both sent to Yacht Path. At 

no time prior to the REBEL’s departure from Houston did anyone notice or 

acknowledge the discrepancy as to the port of discharge. 

The REBEL departed Houston in late December. In early January, while 

the REBEL was en route to Nigeria, communications occurred between Mr. 

Branting of IMC and Mr. Cummings of Yacht Path through which it became 

clear that there was confusion over the REBEL’s port of discharge. In midJanuary, representatives from Yacht Path, Freightplus, and GIC attempted to 

find a way to discharge the REBEL at Lagos. However, the district court found 

that a late-night e-mail on January 16 from a Yacht Path representative was 

the first occasion in which “anyone at Yacht Path or IMC discussed the need 

for changing the REBEL’s destination” from Warri to Lagos. Despite efforts to 

rectify the situation, IMC was unable to discharge the REBEL at Lagos. While 

various parties blame an inability to contact GIC’s agent in Nigeria at the 

eleventh hour, the district court found that “manifest and customs documents” 

 

4 This bill of lading was not a final bill of lading. It is marked “non-negotiable,” and so 

it could not have been used to claim the cargo at the port of discharge. 

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listing Warri as the port of discharge also contributed to IMC’s inability to 

discharge the REBEL at Lagos. 

 The ocean carrier proceeded on to Warri and discharged the REBEL 

there. Though GIC initially sought to obtain the REBEL’s release, it was 

informed that the REBEL could not be released because IMC had not been paid 

its freight. And so, the REBEL remained in Warri in the custody of a company 

called Julius Berger. 

GIC sued Freightplus, and Freightplus in turn brought a third-party 

action against IMC. IMC counter-claimed against Freightplus and the REBEL 

in rem to recover its unpaid freight. After a two-day bench trial, the district 

court concluded that Freightplus was liable to GIC for $1,860,985 in damages 

incurred as a result of the REBEL’s discharge in Warri. The district court then 

determined that IMC was 30 percent at fault for GIC’s damages and so the 

court required IMC to pay 30 percent of the judgment, as well as 30 percent of 

Freightplus’s attorneys’ fees. Finally, the district court concluded that IMC 

was entitled to recover $70,309.12, plus pre-judgment interest, from 

Freightplus—the amount of IMC’s unpaid freight. The district court 

subsequently amended its judgment to remove IMC’s obligation to pay 30 

percent of Freightplus’s attorneys’ fees.5 Freightplus and IMC both timely 

appealed. 

After briefing in this court was completed, Freightplus filed a “Motion 

for Partial Dismissal of Appeal.” In this motion, Freightplus represented that 

it and GIC have “reached a settlement” as to that part of the Second Amended 

Judgment “relat[ing] to GIC Services and Freightplus.” Freightplus thus 

 

5 This was the second time the district court amended its judgment. On the first 

occasion, the district court did so to substitute the fixed-dollar amounts of pre-judgment 

interest in the original judgment with percentage figures. The Second Amended Judgment 

also adjusted the amount Freightplus owed to GIC to $1,811,385, plus pre-judgment interest.

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requested that we allow it to “dismiss its appeal.” A few days later, GIC filed a 

“Notice of Satisfaction of Judgment” in the district court, indicating that “GIC 

and Freightplus entered into a settlement agreement, resolving all claims 

between them,” that “Freightplus has fulfilled the terms of the settlement 

agreement” and so “[t]he judgment [ ] in favor of GIC and against Freightplus 

is satisfied[.]” We granted Freightplus’s motion and dismissed its appeal “as to 

those aspects of the Second Amended Judgment in favor of GIC Services, 

L.L.C. and against Freightplus USA, Incorporated ONLY.”6 

II.

The parties raise a host of challenges to the judgment. IMC challenges: 

(1) the requirement that it indemnify Freightplus for a portion of the damages 

award; (2) the amount of damages awarded GIC; (3) the allocation of damages 

between itself and Freightplus; and (4) the determination that it may not 

exercise a lien against the REBEL in rem to recover its unpaid freight. Like 

IMC, Freightplus objects to the allocation of damages between itself and IMC. 

It also challenges the district court’s refusal to award it attorneys’ fees and the 

requirement that it reimburse IMC for its unpaid freight.7 We address each of 

these in turn. 

 

6 This dismissal includes Freightplus’s argument regarding whether the Carriage of 

Goods by Sea Act, 46 U.S.C. § 1300 et seq. limits Freightplus’s liability to $500—along with 

the attendant issue of unreasonable deviation. Likewise, the issue of Freightplus’s liability 

to GIC, including the underlying finding that Freightplus is liable to GIC based on a theory 

of estoppel, is no longer in this appeal. 

7 In its brief, Freightplus argues that GIC lacks standing to recover damages because 

GIC is not the real party in interest under Federal Rule of Civil Procedure 17(a)(1). IMC did 

not develop this argument in its own briefing, and it cannot prevail on this argument in any 

event as there is no indication it ever voiced this objection. See Fed. R. Civ. P. 17 (a)(3) (“The 

court may not dismiss an action for failure to prosecute in the name of the real party in 

interest until, after an objection, a reasonable time has been allowed for the real party in 

interest to ratify, join, or be substituted into the action.”); see In re Signal Int’l, LLC, 579 F.3d 

478, 487–88 (5th Cir. 2009). 

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A.

 We first consider whether IMC is liable to Freightplus under a theory of 

tort indemnification for a portion of the judgment awarded to GIC. 

Once a prominent feature of maritime law, maritime tort 

indemnification is now available only in limited situations. Hardy v. Gulf Oil 

Corp., 949 F.2d 826, 833 (5th Cir. 1992). One of these situations arises from a 

“special relationship” between two entities. Cities Serv. Co. v. Lee-Vac, Ltd., 

761 F.2d 238, 240 (5th Cir. 1985) (citing Fed. Marine Terminals, Inc. v. 

Burnside Shipping Co., 394 U.S. 404 (1969)); see also LCI Shipholdings, Inc. v. 

Muller Weingarten AG, 153 F. App’x 929, 931 (5th Cir. 2005). Under this 

theory, an entity will owe indemnity when its negligence is the cause of a loss 

to its counterpart. 

The parties agree with the district court8 that a “special relationship” 

exists between a “non-vessel operating common carrier” (NVOCC)9 and a 

“vessel-operating common carrier” (VOCC).10 They disagree, however, with the 

district court’s conclusion that: (1) Freightplus was operating as an NVOCC; 

and (2) IMC was negligent and its negligence caused Freightplus’s injury. 

While we are not aware of a decision of ours recognizing maritime tort 

liability based on the relationship between a NVOCC and a VOCC, two of our 

sister circuits appear to have done so. See SPM Corp. v. M/V Ming Moon, 22 

 

8 In denying IMC’s motion to dismiss, the district court also decided that Freightplus 

was entitled to indemnity based on a separate theory—one dependent on the “difference in 

character of duty owed to GIC.” Neither party, however, mentions this latter theory in their 

briefs, and it is not mentioned in the district court’s order either.

9 A “non-vessel-operating common carrier” is “a common carrier that—(A) does not 

operate the vessels by which the ocean transportation is provided; and (B) is a shipper in its 

relationship with an ocean common carrier.” See 46 U.S.C. § 40102(16).

10 A “vessel-operating common carrier” is an ocean common carrier. 46 U.S.C. 

§ 40102(17). A common carrier operates the vessel carrying the cargo. See 46 U.S.C. 

§ 40102(6). 

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F.3d 523, 526–27 (3d Cir. 1994); Ins. Co. of N. Am. v. M/V Ocean Lynx, 901 

F.2d 934, 937, 941 (11th Cir. 1990). Seeing no reason to depart from these 

decisions, and given the parties’ agreement on this question, we conclude that 

the NVOCC/VOCC relationship may give rise to a claim for maritime tort 

indemnity to the extent articulated in this opinion. 

1. 

The first question is whether Freightplus was operating as an NVOCC. 

“Non-vessel operating common carrier” is a term defined by statute. See 46 

U.S.C. § 40102(16). As such, we review the interpretation of that term de novo. 

See AEL Asia Express (H.K.) Ltd. v. Am. Bankers Ins. Co. of Fla., 5 F. App’x 

106, 107 (4th Cir. 2001). To the extent this question involves factual issues, 

“[m]ixed questions of law and fact are also reviewed de novo.” Trinity Indus., 

Inc. v. United States, 757 F.3d 400, 407 (5th Cir. 2014); see also Prima U.S. Inc. 

v. Panalpina, Inc., 223 F.3d 126, 129 (2d Cir. 2000) (reviewing de novo whether 

party was an ocean freight forwarder as a mixed question of law and fact). 

In the modern shipping industry, the shipment of goods by vessel from 

the United States often involves a chain of multiple entities, each with defined 

roles. One of these is the “non-vessel operating common carrier.” NVOCCs 

operate as intermediaries between the shipper—the entity “seek[ing] to export 

cargo”—and the ocean common carrier—the entity that “physically carr[ies] 

the cargo on [its] vessel[ ].” Landstar Exp. Am., Inc. v. Fed. Maritime Comm’n, 

569 F.3d 493, 494 (D.C. Cir. 2009). Under the Shipping Act of 1984, 46 U.S.C. 

§ 40101 et seq., an NVOCC is defined as “a common carrier that (A) does not 

operate the vessels by which the ocean transportation is provided; and (B) is a 

shipper in its relationship with an ocean common carrier.” 46 U.S.C. 

§ 40102(16). Typically, the NVOCC’s role is to “consolidate cargo from 

numerous shippers into larger groups for shipment by an ocean carrier.” 

Prima, 223 F.3d at 129; see also Ins. Co. of N. Am. v. S/S Am. Argosy, 732 F.2d 

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299, 300–01 (2d Cir. 1984); All Pac. Trading, Inc. v. Vessel M/V Hanjin Yosu, 

7 F.3d 1427, 1429–30 (9th Cir. 1993). 

An NVOCC is therefore something of a hybrid: it is a common carrier11

vis-à-vis the shipper, but it is itself a shipper vis-à-vis the ocean common 

carrier. Ins. Co. of N. Am., 732 F.2d at 301; All Pac. Trading, 7 F.3d at 1429–

30. In its role as common carrier, an NVOCC issues a bill of lading to each 

shipper, which memorializes the terms of their agreement. Prima, 223 F.3d at 

129; see also Landstar, 569 F.3d at 495. Because of an NVOCC’s role as a 

common carrier and the issuance of a bill of lading, the NVOCC is liable to the 

shipper if “anything happens to the [cargo] during the voyage.” Prima, 223 F.3d 

at 129; see also Landstar, 569 F.3d at 495. Further, in its role as a shipper, an 

NVOCC receives a bill of lading from each VOCC. Landstar, 569 F.3d at 495; 

All Pac., 7 F.3d at 1430. Typically, “NVOCCs receive compensation only from 

the shipper.” Landstar, 569 F.3d at 495; see also Nat’l Customs Brokers & 

Forwarders Ass’n of Am., Inc. v. United States, 883 F.2d 93, 101 (D.C. Cir. 1989) 

(“The NVOCC is compensated only by the shipper.”). 

 

11 Common Carrier means: 

“a person that—(i) holds itself out to the general public to provide 

transportation by water of passengers or cargo between the United States and 

a foreign country for compensation; (ii) assumes responsibility for the 

transportation from the port or point of receipt to the port or point of 

destination; and (iii) uses, for all or part of that transportation, a vessel 

operating on the high seas or the Great Lakes between a port in the United 

States and a port in a foreign country; but (B) does not include a carrier 

engaged in ocean transportation by ferry boat, ocean tramp, or chemical parceltanker, or by vessel when primarily engaged in the carriage of perishable 

agricultural commodities—(i) if the carrier and the owner of those commodities 

are wholly-owned, directly or indirectly, by a person primarily engaged in the 

marketing and distribution of those commodities; and (ii) only with respect to 

the carriage of those commodities.

46 U.S.C. § 40102(6).

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The parties dispute whether Freightplus was operating as an NVOCC. 

Yet while both parties discuss the statutory definition of an NVOCC, neither 

party addresses the statutory definition of the term “shipper,” which appears 

within the definition of NVOCC. See 46 U.S.C. § 40102(16) (NVOCC is a 

“shipper in its relationship with an ocean common carrier” (emphasis added)); 

id. § 40102(22) (defining “shipper”). Because the parties have not disputed 

whether Freightplus falls within the definition of “shipper,” we do not reach 

this issue and instead decide whether Freightplus is an NVOCC based on the 

arguments presented to us. 

 We conclude that Freightplus qualifies as an NVOCC because it shares 

those characteristics typically associated with an NVOCC. First, Freightplus 

issued a bill of lading, which listed Freightplus as the “carrier”—the role an 

NVOCC plays vis-à-vis the ultimate shipper. Cf. Prima, 223 F.3d at 129 

(NVOCC issues bill of lading to each shipper); Landstar, 569 F.3d at 495 

(same). Second, the parties agree that Freightplus was paid exclusively by GIC, 

also an indicator that Freightplus was acting as an NVOCC.12 See Landstar, 

569 F.3d at 495; Nat’l Customs Brokers, 883 F.2d at 101.

IMC argues that Freightplus was not operating as an NVOCC because 

it is not a “shipper” vis-à-vis IMC as required by Section 40102. See 46 U.S.C. 

§ 40102(16). It asserts two bases for this argument: First, it argues that 

Freightplus is not a “shipper” because it is “not listed as a shipper on IMC’s 

booking note, IMC’s bill[ ] of lading, or [its] cargo manifest.” Second, and 

relatedly, it argues that Freightplus cannot be considered an NVOCC because 

it did not “receive a bill of lading” from IMC, the VOCC. 

 

12 There is no dispute that Freightplus is licensed to operate as an NVOCC, but it is 

also licensed as a “freight forwarder.”

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 To begin with, the validity of these arguments depends in large part on 

whether Freightplus was a “shipper” within the meaning of Section 

40102(22)—which, as noted, IMC has not addressed in its brief. Moreover, 

while it is true that Freightplus is not listed as “shipper” on the relevant 

documents and that it did not receive a bill of lading from IMC, an entity’s 

status as an NVOCC (and as a shipper) depends on its function, not the labels 

ascribed to it by third parties. See AEL Asia, 5 F. App’x at 111 (“When dealing 

with NVOCCs, an intermediary’s conduct, and not what it [is] label[ed], will be 

determinative of its status.” (emphasis added) (quotation marks omitted)); see 

46 U.S.C. § 40102(16), (22) (definitions of “shipper” and NVOCC). And here, it 

is clear that Freightplus possesses the characteristics typical of an NVOCC. 

IMC argues that Freightplus was “at most a freight forwarder.” But an 

examination of the services typically performed by a freight forwarder 

undermines, rather than strengthens, IMC’s argument. Unlike an NVOCC, a 

freight forwarder (1) does not issue a bill of lading, Prima, 223 F.3d at 129; and

(2) “receives compensation for its services both from its customer . . . and from 

the ocean carrier.” Nat’l Customs Brokers, 883 F.2d at 95; Landstar, 569 F.3d 

at 495. Neither is true of Freightplus. That Freightplus’s conduct differs from 

that typical of a VOCC confirms our conclusion that it operated as an NVOCC.

2. 

 We next address the validity of the district court’s finding that IMC acted 

negligently. In the maritime context, as in any other, “[q]uestion[s] of fault, 

including determinations of negligence and causation, are factual issues, and 

may not be set aside on appeal unless clearly erroneous.” In re Omega Protein, 

Inc., 548 F.3d 361, 367 (5th Cir. 2008) (citing In re Mid-South Towing, 418 F.3d 

526, 531 (5th Cir. 2005)). Where the “district court’s account of the evidence is 

plausible in light of the record viewed in its entirety,” we will “not reverse . . . 

even though convinced that had [we] been sitting as the trier of fact, [we] would 

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have weighed the evidence differently.” Id. In this context, “‘[f]indings based 

on the credibility of witnesses demand even greater deference.’” Id. (quoting 

Tokio Marine & Fire Ins. Co., Ltd. v. FLORA MV, 235 F.3d 963, 970 (5th Cir. 

2001)).

To establish maritime negligence, “a plaintiff must ‘demonstrate that 

there was [1] a duty owed by the defendant to the plaintiff, [2] breach of that 

duty, [3] injury sustained by the plaintiff, and [4] a causal connection between 

the defendant’s conduct and the plaintiff’s injury.’” Canal Barge Co. v. Torco 

Oil Co., 220 F.3d 370, 376 (5th Cir. 2000) (quoting In re Cooper/T. Smith, 929 

F.2d 1073, 1077 (5th Cir. 1991) (alteration omitted)). The district court 

concluded that IMC was negligent because its agent (Intermarine) had notice 

that Lagos was the correct port of discharge for two weeks before the REBEL 

arrived there but did not “take steps to ensure proper delivery at Lagos.”13

IMC raises a single objection to the finding of negligence. Specifically, 

IMC argues that it was contractually bound to deliver the REBEL to Warri, 

and so it cannot be found negligent for delivering cargo to the contractually 

agreed-upon port. Imposing liability under these circumstances, IMC argues, 

would place it in a cross-current between: (1) complying with its contractual 

obligations, but then facing tort-indemnity liability for refusing to change the 

port of discharge; or (2) avoiding tort-indemnity liability by changing the port 

of discharge, but then facing breach-of-contract liability for doing so. 

This argument, however, sails right into the headwinds of the district 

court’s findings. Despite IMC’s repeated insistence to the contrary, the district 

court did find that IMC erroneously listed Warri as the port of discharge on its 

various documents. In its opinion, the district court noted IMC’s argument that 

 

13 The district court also faulted IMC for its “lack of due care” in failing to preserve 

the shipping instructions it received from Yacht Path.

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“it was told by Yacht Path that the REBEL’s final destination was Warri and 

therefore fully performed its contractual duties.”14 But the district court 

concluded that “this argument is unsupported,” and that IMC had “mistakenly 

record[ed] the REBEL’s port of discharge as Warri,” based on the fact that IMC 

did not produce any evidence that Yacht Path informed IMC that Warri was to 

be the port of discharge. 

We cannot overturn this determination absent clear error. IMC admits 

that it is unable to produce any documentation showing that Yacht Path 

identified Warri as the port of discharge. It contends, however, that “there is 

ample evidence in the record to prove that IMC followed its instructions when 

it designated Warri as the discharge port.” IMC points to the testimony of Mr. 

Branting and Mr. Jackson, whose testimonies support IMC’s account. IMC also 

points to the fact that its bill of lading, cargo manifest, and booking note 

identify Warri as the port of discharge, and to an e-mail from Mr. Cummings 

at Yacht Path, which indicates that “[t]he small tug”—presumably the 

REBEL—“is booked with my client at Warri.” 

But the record also contains evidence pointing the other way. For 

example, the deposition of Mr. Cummings—IMC’s point of contact at Yacht 

Path—was introduced at trial, and he testified to identifying Lagos as the port 

of discharge in his communications with IMC. We owe particular deference 

where “credibility of witnesses” is at issue. See Omega Protein, 548 F.3d at 367. 

Moreover, while the designation of Warri on IMC’s documents and the e-mail 

from Mr. Cummings is evidence—perhaps even strong evidence—that Yacht 

Path did identify Warri as the port of discharge, there is evidence cutting the 

 

14 This statement is found in the district court’s “Conclusions of Law,” rather than its 

“Findings of Fact.” However, as the district court’s opinion notes: “To the extent that any 

conclusion of law constitutes a finding of fact, the Court adopts it as such.” 

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other way, including the Yacht Path booking note—issued five days before Mr. 

Cummings’s e-mail—which designates Lagos as the port of discharge. The 

existence of conflicting evidence is precisely the context in which we defer to 

the district court’s factual findings. See id. (we will not reverse factual findings 

“even though convinced that had [we] been sitting as the trier of fact, [we] 

would have weighed the evidence differently”). 

It follows from this conclusion that IMC’s objection to the district court’s 

negligence finding must be rejected. Simply put, if IMC did not contract to 

deliver the REBEL to Warri, then holding IMC liable for doing so does not 

place it in the catch-22 it posits.15 IMC offers no other objection to the district 

court’s finding. 

Accordingly, because the district court correctly determined that 

Freightplus was operating as an NVOCC and because its conclusion that IMC 

was negligent is not clearly erroneous, we uphold its determination that IMC 

is liable to Freightplus.16

B.

We next address the amount of damages awarded. The district court 

determined that Freightplus was liable to GIC in the amount of $1,811,385.

 

15 We note that IMC would not likely have found itself in such a dilemma if it had 

discharged the REBEL at Lagos. After all, all parties were striving to secure the REBEL’s 

discharge at Lagos once the error was discovered.

16 Freightplus argues alternatively that it is entitled to full indemnity because IMC 

was “actively” negligent, while it was, at most, “passively” negligent. This argument is 

foreclosed by our precedent, which has long since dispensed with the active/passive 

negligence distinction. See Loose v. Offshore Nav., Inc., 670 F.2d 493, 500–02 (5th Cir. 1982)

(“[T]he concepts of active and passive negligence have no place in a liability system that 

considers the facts of each case and assesses and apportions damages among joint tortfeasors 

according to the degree of responsibility of each party.”); Seal Offshore, Inc. v. Am. Standard, 

Inc., 736 F.2d 1078, 1082 (5th Cir. 1984) (“The concept of active and passive negligence is of 

no aid . . . because as a footing for [implying] indemnification it is at best a redundancy within 

a system of comparative fault.”); Hardy, 949 F.2d at 834 n.13 (“The Court [has] abandoned 

the active/passive distinction . . . .”).

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IMC argues that the district court erred in calculating these damages in two 

respects: First, it objects to the district court’s reliance on a particular trial 

exhibit. Second, it argues that the district court did not account for GIC’s 

failure to mitigate its damages. 

We “review[ ] challenges to evidence admitted or excluded for abuse of 

discretion.” EMJ Corp. v. Hudson Specialty Ins. Co., 833 F.3d 544, 551 (5th 

Cir. 2016). We will reverse only if “the abuse of . . . discretion is clearly shown 

from the record,” U.S. Bank Nat’l Ass’n v. Verizon Commc’ns, Inc., 761 F.3d 

409, 430 (5th Cir. 2014), as revised (Sept. 2, 2014), and “if substantial prejudice 

resulted from the error,” EMJ Corp., 833 F.3d at 551 (quotation marks 

omitted). “Resolution of preliminary factual questions concerning the 

admissibility of evidence are reviewed for clear error.” Meadaa v. K.A.P. 

Enters., L.L.C., 756 F.3d 875, 880 (5th Cir. 2014). Further, we review the 

district court’s determination of damages under a clearly erroneous standard. 

Fed. Sav. & Loan Ins. Corp. v. Tex. Real Estate Counselors, Inc., 955 F.2d 261, 

268 (5th Cir. 1992); see also Neal v. United States, 562 F.2d 338, 341 (5th Cir. 

1977). This deferential standard of review extends to determining whether a 

party failed to mitigate its damages. Marathon Pipe Line Co. v. M/V Sea Level 

II, 806 F.2d 585, 592 (5th Cir. 1986). “The burden rests with the wrongdoer to 

show that the victim of tortious conduct failed to mitigate damages” by 

demonstrating “(1) that the injured party’s conduct after the accident was 

unreasonable and (2) that the unreasonable conduct had the consequence of 

aggravating the harm.” Id. 

1. 

For the bulk of the damages awarded, the district court relied solely on 

Trial Exhibit 101—an invoice sent from Visfi Nigeria Ltd. to GIC Oil and Gas 

Services Ltd., detailing the costs for “storing, securing, and releasing the 

REBEL in Warri.” IMC argues that the district court was wrong to do so

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because: (1) the invoice was never authenticated and so it was never properly 

admitted into evidence; and (2) it is not the “best evidence” of damages. By 

contrast, the district court found that IMC stipulated to the authentication of 

Exhibit 101.

Prior to trial, IMC objected to the admission of Exhibit 101 “under 

Federal Rule of Evidence 901 and 902 because it has not been properly 

authenticated.” The district court deferred on this objection because “[Exhibit 

101] [could] be authenticated at trial by witness testimony.” At the same time, 

and as was enshrined in the final pre-trial order, GIC indicated that it intended 

to call “[a]ny witness needed to authenticate any documents that cannot be 

agreed to by stipulation.” 

At trial, GIC sought to introduce the testimony of Mr. Godwin Ebolo, the 

director of GIC Oil and Gas Services, as an authenticating witness. Though 

initially objecting, both Freightplus and IMC agreed to stipulate “[t]o the 

extent [Mr. Ebolo was called] specifically for a Rule 901 authentication . . . .” 

The relevant colloquy went as follows: 

MR. BOONE [GIC counsel]: Your Honor, I’d like to call Mr. Godwin Ebolo 

as my authentication federal witness. 

MR. WALTERS [Freightplus counsel]: Your Honor, we would object to 

this witness testifying. He was not listed in the pretrial order. To the 

extent that he’s called specifically for a Rule 901 authentication, we will 

stipulate, and I think - - 

MR. WAGUESPACK [IMC counsel]: We’ll stipulate as well, Your Honor. 

MR. BOONE: All right. And that’s all he was going to testify to, nothing 

substantive, just to authenticate those documents that Freightplus and 

IMC both objected to, which are the three contracts and the agency 

agreement. 

THE COURT: All right. So do we have a stipulation? 

MR. WALTERS: Yes. As far as Freightplus, yes. 

MR. WAGUESPACK: As far as IMC as well. 

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THE COURT: Okay. Well, sir, you can go home. Oh, you still want to call 

him? 

MR. WALTERS: He’s been excused. 

MR. BOONE: Oh, wait. 

MR. WALTERS: We stipulated to authentication. There’s no - - if that’s 

the only purpose he would be testifying. 

MR BOONE: Yeah. He’s testifying for authentication. 

MR. WALTERS: We’ve stipulated to authentication. 

MR. BOONE: Oh, you have? 

MR. WALTERS: Yes. 

IMC contends that its counsel was not stipulating to the authentication 

of Exhibit 101 since GIC’s counsel specifically limited the stipulation to “the 

three contracts and the agency agreement.” However, as the district court 

found in denying IMC’s Rule 59 motion on this issue, the qualifying language 

from GIC’s counsel came after counsel for both Freightplus and IMC had 

“proffered a blanket Rule 901 authentication stipulation for Godwin Ebolo’s 

testimony.” Moreover, neither Freightplus’s nor IMC’s counsel attempted to 

limit the scope of their unqualified statements agreeing to a stipulation or to 

confirm that they intended their stipulation to be limited to the particular 

documents mentioned by GIC’s counsel. 

We recognize, as did the district court, that “each side could have been 

more exact in what they were attempting to convey,” and that it is possible 

that Freightplus and IMC did not intend to offer a blanket stipulation on 

authentication. At the same time, our role is not to determine how we might 

have come out on this issue in the first instance. See United States v. Mata, 

624 F.3d 170, 173 (5th Cir. 2010), as revised (Nov. 15, 2010) (“A court of appeals 

may not reverse a district court’s finding of fact based only on its belief that, 

had it been sitting as the trier of fact, it would have weighed the evidence 

differently and reached a different conclusion.”). Instead, we can only reverse 

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the district court’s finding if “viewing the evidence in its entirety, [we are] left 

with the definite and firm conviction that a mistake has been committed.”

Bertucci Contracting Corp. v. M/V ANTWERPEN, 465 F.3d 254, 258–59 (5th 

Cir. 2006) (emphasis added). As is the case here, “[w]here there are two 

permissible views of the evidence, the fact finder’s choice between them cannot 

be clearly erroneous.” O’Malley v. U.S. Fid. & Guar. Co., 776 F.2d 494, 497 (5th 

Cir. 1985) (quoting United States v. Yellow Cab Co., 338 U.S. 338, 342 (1949)).

Accordingly, we hold that the district court did not clearly err in finding that 

Freightplus and IMC offered a blanket stipulation on authentication.17 

IMC claims that, even if Exhibit 101 was properly admitted, the damages 

award is still clearly erroneous because other evidence in the record—namely, 

a “provisional” invoice from Julius Berger (the company holding the REBEL in 

Warri)—is much stronger evidence of “the actual amount of storage fees that 

must be paid in order to obtain the release of the REBEL . . . .”18 That invoice 

calculates total charges at $151,169.08, while Exhibit 101 calculates them at 

$1,460,200.

We disagree. By arguing that the district court should have given greater 

weight to Exhibit 117 than to Exhibit 101, IMC is effectively asking us to 

 

17 In any event, we conclude that the district court did not abuse its discretion in 

relying on Exhibit 101 even if there was not a blanket stipulation as to authenticity. After 

the May 12 colloquy, the parties agreed that GIC’s authenticating witness was excused; he 

was no longer available to testify regarding authenticity. Moreover, the record appears to 

show that, as a factual matter, Exhibit 101 was admitted into evidence and was in the district 

court’s possession after trial. Accordingly, given that GIC’s authenticating witness was no 

longer available and that Exhibit 101 appears to have been in evidence, we conclude that the 

district court did not abuse its discretion in relying on Exhibit 101, regardless of whether 

Freightplus or IMC offered a blanket stipulation on authenticity. 

18 IMC also argues that newly discovered evidence that it presented after trial 

supports its argument. This “new evidence” was presented to the district court in a Rule 60(b) 

motion, and the district court denied that motion, concluding that IMC had not met the 

stringent requirements for Rule 60(b) relief. IMC has not argued to us that the district court’s 

Rule 60(b) ruling is incorrect, and so we will not consider IMC’s new evidence. 

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reweigh the evidence. Again, we will not reverse the district court’s factual 

findings “even though convinced that had [we] been sitting as the trier of fact, 

[we] would have weighed the evidence differently.” Omega Protein, 548 F.3d at

367. 

2. 

IMC next argues that the district court did not account for GIC’s alleged 

failure to mitigate its damages. IMC argues that this mitigation could have 

occurred if GIC would have “post[ed] a bond as security for IMC’s freight claim 

in order to obtain release of the REBEL from storage.” 

The district court had before it testimony from Ms. Sogie Ebolo—the 

managing director of GIC—who testified that she made an effort to secure a 

bond for the REBEL but was unable to do so because she was told by her 

attorney that IMC would not accept a bond issued from Nigeria and because 

bond companies in the United States would not issue a bond for property 

located in foreign territory. IMC counters with Mr. Jackson’s (IMC’s corporate 

representative) testimony “that IMC was never asked about the possibility of 

accepting a Nigerian bond.” At most, then, IMC has shown merely that there 

is conflicting testimony on this issue. But where “there are two permissible

views of the evidence, the factfinder’s choice between them cannot be clearly 

erroneous,” and “[f]indings based on the credibility of witnesses demand even 

greater deference.” Omega Protein, 548 F.3d at 367 (quotation marks omitted).

C.

We now address the district court’s allocation of the damages between 

Freightplus and IMC. The judgment requires IMC to reimburse Freightplus 

for 30 percent of the damages award. Both Freightplus and IMC challenge this 

determination. Freightplus contends that because it was entitled to indemnity, 

the district court should have required IMC to reimburse it for 100 percent of 

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the judgment.19 For its part, IMC claims that because Freightplus is a majority 

at fault, it is not entitled to any recovery. 

1. 

Ever since the Supreme Court’s decision in United States v. Reliable 

Transfer Co., 421 U.S. 397 (1975), we have steadily cabined the availability of 

tort indemnity and “eliminated virtually every variety of tort indemnity once 

available under maritime law.” Hardy, 949 F.2d at 833 (“This Circuit 

recognized . . . that comparative fault displaces the traditional concept of tort 

[indemnity].”). In its place, we have adopted a “comparative fault” system 

where “damages in most cases should be allocated according to the respective 

fault of the liable tortfeasors.” Id. (“A comparative fault system . . . apportions 

fault among joint tortfeasors in accordance with a precise determination, not 

merely equal or all-or-none.” (quoting Loose, 670 F.2d at 501)). Full indemnity 

is now reserved for those circumstances “where proportionate degrees of fault 

cannot be measured and determined on a rational basis,” or where the party 

claiming indemnity is one “on which the law imposes responsibility even 

though [it] committed no negligent acts”—i.e., was not at fault. Id. 

Our cases have consistently held that partial fault is incompatible with 

full indemnity. In Seal Offshore, we reviewed a decision in which a third-party 

defendant was required to pay full indemnification based on an “implied 

indemnity theory” in maritime law, even though both parties were found at 

fault. 736 F.2d at 1080, 1082. Recognizing that our precedent “establish[ed] 

 

19 Freightplus argues in the alternative that the district court erred in concluding that 

it was negligent. While the district court did not find Freightplus “negligent” per se, it did 

find that the limitation of liability in the Carriage of Goods by Sea Act, 46 U.S.C. § 1300, et 

seq., did not apply because Freightplus had effected an unreasonable deviation. The validity 

of that issue, however, is not before us. As noted, this court previously entered an order 

“dismiss[ing] . . . those aspects of the Second Amended Judgment in favor of [GIC] and 

against [Freightplus] ONLY.” The unreasonable deviation issue was the basis for the 

judgment against Freightplus and in GIC’s favor. 

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that comparative fault principles apply in maritime cases involving both 

negligence and strict liability,” we reversed the award of full indemnity 

because damages “must be apportioned according to the relative fault” of the 

defendant and third-party defendant. Id. at 1082. Likewise, in Loose, we 

reversed an award of full indemnification where, as in Seal Offshore, the 

indemnitee was found partially at fault. See Loose, 670 F.2d at 500–02 

(reversing indemnitee award and instructing district court to “instruct the jury 

to assess the relative degree of responsibility of each party for the plaintiff’s 

injuries”); cf. Marathon Pipe Line Co. v. Drilling Rig ROWAN/ODESSA, 761 

F.2d 229, 236 (5th Cir. 1985) (upholding award of full indemnity where the 

“[a]ctual fault” rested with the indemnitor and so the indemnitor “may, 

therefore, seek full indemnity”). 

Our decision in Sea-Land Service, Inc. v. Crescent Towing & Salvage Co., 

42 F.3d 960 (5th Cir. 1995) is also informative. There, a defendant sued a thirdparty defendant “for indemnification” for a judgment against it. Id. at 962. The 

district court concluded that both were partially at fault and assessed damages 

accordingly, but also awarded attorneys’ fees to the defendant. Id. The parties 

disputed the availability of the attorneys’ fees award, with the outcome turning 

on whether the award was based on a theory of indemnity (where attorneys’ 

fees may be awarded) or contribution (where they may not). Id. at 963. We held 

that “[the defendant’s] partial fault preclude[d] full indemnification,” and so it 

was “entitled to contribution (or partial indemnity) . . . and no more.” Id. 

(“Indemnification was not awarded and [would not be] appropriate in th[e] case 

because both [parties] were found to be at fault.”).20 On this basis, we 

disallowed attorneys’ fees. Id. 

 

20 Scholarly sources also agree that “[t]ort indemnity is . . . limited to cases where a 

non-negligent or vicariously liable tortfeasor is entitled to indemnity from a person who is 

guilty of actual fault.” 1 Thomas J. Schoenbaum, Admiralty & Maritime Law § 5-19, at 340 

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These precedents scuttle Freightplus’s claim for full indemnity.

Freightplus was undeniably found to be partially at fault, and that decision is 

no longer being challenged by Freightplus. Moreover, while both parties 

contest the district court’s findings of fault, neither party has suggested that 

the “proportionate degrees of fault” in this case “cannot be measured and 

determined on a rational basis.” Hardy, 949 F.2d at 833. Under our case law, 

Freightplus may not recover full indemnity from IMC, but may (at most) 

recover partial indemnity. 

2. 

Just as we reject Freightplus’s argument for full indemnity, we also 

reject IMC’s argument that Freightplus is barred from even partial indemnity 

because it was found to be a majority at fault.21 In essence, IMC is urging us 

to adopt a modified comparative fault rule, where damages are divvied out 

proportionate to fault except where the party claiming indemnification is more 

than 50 percent at fault. 

We reject this argument for the same reasons just discussed. While our 

cases have precluded full indemnity where the party seeking indemnification 

is partially at fault, we have consistently permitted partially at-fault parties

to obtain partial recovery proportionate to the fault of the other parties. See 

Loose, 670 F.2d at 495, 501–02; Seal Offshore, 736 F.2d at 1082. Thus, while a 

partially at-fault indemnitee is not entitled to full indemnification, it may be 

“entitled to a contribution (or partial indemnity).” Sea-Land, 42 F.3d at 963 

 

(5th ed. 2011); see also 2 Thomas J. Schoenbaum, Admiralty & Maritime Law § 10-39, at 177 

(3d ed. 2001) (“Indemnity is properly allowed only when the one seeking indemnity is not 

guilty of any fault or breach of duty.”); 2 Benedict on Admiralty 1-67–71 (Matthew Bender 

2013).

21 In its third-party complaint, Freightplus specified that it was seeking contribution 

from IMC. Though its later pleadings focus on the indemnity issue, Freightplus still indicated 

that it was seeking contribution. 

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(emphasis added). We are not aware of any authority (and IMC has cited none)

indicating that the comparative fault approach we have adopted does not apply 

when the party seeking indemnity was more at fault than the indemnifying 

party. To the contrary, the “comparative fault system . . . apportions fault 

among joint tortfeasors in accordance with a precise determination, not merely 

equally or all-or-none.” Hardy, 949 F.2d at 833 (emphasis added). We see no 

basis for charting a new course here. 

The district court assigned 70 percent of the fault to Freightplus and 30 

percent to IMC, and neither party has challenged the specific percentages 

chosen. We therefore uphold the district court’s requirement that IMC 

indemnify Freightplus for 30 percent of the judgment in GIC’s favor. 

D.

Under the original judgment, the district court required IMC to pay 30 

percent of Freightplus’s attorneys’ fees. However, in response to IMC’s Rule 59 

motion, the district court amended its judgment to exclude this liability. 

Freightplus has appealed the district court’s exclusion of the attorneys’ fees 

award. The availability of attorneys’ fees—as opposed to the amount 

awarded—is a question of law that we review de novo. See Hester v. Graham, 

Bright & Smith, P.C., 289 F. App’x 35, 44 (5th Cir. 2008) (“Because the issue 

of which party is entitled to attorneys’ fees is a legal issue, this court reviews 

this award of attorneys’ fees de novo.”); see also Sea-Land, 42 F.3d at 963 

(reviewing availability of attorneys’ fees without deference). 

 In Odd Bergs Tankrederi A/S v. S/T Gulfspray, 650 F.2d 652 (5th Cir. 

1981), we observed that “courts have generally denied a right to contribution 

for attorney’s fees and expenses incurred in defense of the action brought by 

the injured party,” but have allowed recovery of attorneys’ fees in the 

indemnification context. Id. at 653–54. The rationale for this distinction is that 

in the indemnity context, the indemnitee’s liability “is normally the result of 

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the act of the indemnitor, who bears the ultimate responsibility for the entire 

loss.” Id. at 654. Attorneys’ fees are recoverable by the indemnitee in these 

circumstances because “the indemnitee is required to defend [the] action by an 

injured party because of the wrongdoing of the indemnitor.” Id. at 654 

(emphasis added). By contrast, where the party seeking attorneys’ fees is 

defending against charges of its own wrongdoing, “incurring expenses [on 

attorneys’ fees] . . . would be necessary even if there were no other tortfeasors,” 

and so they are “not recoverable in contribution from the other negligent 

parties.” Id. at 653, 655; id. at 654 (recovery of attorneys’ fees not allowed 

where party “would incur the same legal expenses whether or not other parties 

were partly at fault for the loss”). 

We applied these principles in Sea-Land. There, a defendant found liable 

sought indemnification from a third party. Sea-Land, 42 F.3d at 962. The 

district court allocated damages according to the parties’ fault, but also 

awarded attorneys’ fees. Id. The party awarded attorneys’ fees claimed that 

Odd Bergs’s rule did not apply because it “[was] not claiming recovery under a 

contribution theory” but was rather seeking indemnification. Id. at 963 

(emphasis added). We rejected this argument, holding instead that 

indemnification “[was] not appropriate in [that] case because [both parties] 

were found to be at fault,” and so the defendant was only “entitled to a 

contribution (or partial indemnity). . . and no more.” Id. 

There is no doubt that Freightplus’s claim against IMC was litigated 

under a theory of indemnity. The critical question, however, is not whether the 

theory of recovery is one of “indemnity” or “contribution”; it is whether the 

justifications articulated in Odd Bergs and Sea-Land for allowing recovery of 

attorneys’ fees in the typical indemnity context, and not in the contribution 

context, are present. Here, they are not. Freightplus was not held liable to GIC 

as a faultless party; the district court held Freightplus liable to GIC because of 

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Freightplus’s “failure to ensure an accurate bill of lading,” and GIC’s 

detrimental reliance on Freightplus’s misrepresentations. Thus, Freightplus’s 

liability flows from its own conduct, and so the attorneys’ fees expended in that 

defense “would be necessary even if” IMC were not involved. Odd Bergs, 650 

F.2d at 653. Freightplus’s claim to attorneys’ fees is unmoored from the 

justifications for allowing attorneys’ fee awards in the indemnity context. 

We therefore agree with the district court’s determination that 

Freightplus is not entitled to recover attorneys’ fees from IMC.22 

E.

GIC agreed to pay Freightplus $111,000 for its services. Of this amount,

Freightplus agreed to pay Yacht Path $85,000, and Yacht Path agreed to remit 

$70,000 to IMC. Though GIC paid the amount it owed to Freightplus, and 

Freightplus paid the amount it owed to Yacht Path, Yacht Path did not remit 

the monies owed to IMC. The district court held that Freightplus was liable to 

IMC for the unpaid freight and so awarded IMC $70,309.12, plus pre-judgment 

interest. We review pure questions of law and mixed questions of law and fact 

de novo. Trinity Indus., 757 F.3d at 407. 

The district court relied on a variety of factors to conclude that 

Freightplus, rather than GIC, is liable for IMC’s freight. Critically, Freightplus 

 

22 Freightplus cites the Eleventh Circuit’s decision in Insurance Co. of N. Am. v. M/V 

Ocean Lynx, 901 F.2d 934 (11th Cir. 1990) as establishing that “sole fault or liability on the 

part of the indemnitor is not a prerequisite to an award of attorneys’ fees.” Ocean Lynx does 

not support this rule because it does not appear that the indemnitee’s liability in that case 

resulted from any “fault” or wrongdoing on its part. See Ocean Lynx, 901 F.2d at 941; see also 

SPM Corp. v. M/V Ming Moon, 22 F.3d 523, 526–27 (3d Cir. 1994) (awarding indemnity 

where there was “no allegation that the [NVOCC] did anything wrong” and its “liability arose 

entirely from its contractual relationship with [the shipper] and was trigger by the [ocean 

carrier’s] negligence”).

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does not argue on appeal that GIC is liable for IMC’s freight; Freightplus’s 

argument is instead that IMC released it from liability for freight.23

In Strachan Shipping Co. v. Dresser Indus., Inc., 701 F.2d 483 (5th Cir. 

1983)24 a shipper remitted payment to a freight forwarder, but the freight 

forwarder did not remit the funds intended for the carrier. Id. at 484–85. The 

district court found that the carrier had “extended credit” to the freight 

forwarder, thus relieving the shipper of freight liability. Id. at 489. In 

reversing, we held that the relevant question for determining whether a carrier 

has released the shipper from freight liability is “not whether the carrier 

extended credit to the forwarder, but whether the carrier[ ] intended to release 

[the shipper] from its obligations and look solely to the forwarder for payment.” 

Id. Whether such an intent for release exists “necessarily depends upon the 

course of dealings of the particular parties, and must be judged from the 

totality of the circumstances.”25 Id. 

Applying this approach, we concluded that the carrier did not intend to 

release the shipper. While the carrier “initially directed its collection efforts to” 

 

23 Freightplus does argue that because it is not listed as a “merchant” on IMC’s nonnegotiable bill of lading, it cannot be liable for IMC’s freight. However, Freightplus does not 

develop this argument beyond a conclusory sentence, and so we do not consider it. United 

States v. Bates, 850 F.3d 807, 811 n.2 (5th Cir. 2017) (“Because he has failed to adequately 

develop this insufficiency argument, it is waived. ‘Failure of an appellant to properly argue 

or present issues in an appellate brief renders those issues abandoned.’” (quoting United 

States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992))). In any event, we find this argument 

questionable at best because the IMC non-negotiable bill of lading does not include space for 

a “merchant” to be listed. 

24 The district court distinguished Strachan in the process of concluding that GIC was 

not liable for IMC’s freight, relying on the fact that the shipper in Strachan was liable under 

a credit agreement. Strachan, 701 F.2d at 485–86.

25 This rule has been adopted by multiple other circuits. See Hawkspere Shipping Co., 

Ltd. v. Intamex, S.A., 330 F.3d 225, 238 (4th Cir. 2003) (“The shipper’s duty to pay freight is 

not discharged, absent evidence that the [ocean] carrier has actually released the shipper 

from its duty to pay . . . .”); Nat’l Shipping Co. of Saudi Arabia v. Omni Lines, Inc., 106 F.3d 

1544, 1545–47 (11th Cir. 1997); Oak Harbor Freight Lines, Inc. v. Sears Roebuck & Co., 513 

F.3d 949, 959 (9th Cir. 2008).

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the freight forwarder, this fact was “not conclusive.” Id. We also observed that 

the designation “freight prepaid” on the bill of lading issued by the carrier to 

the freight forwarder “indicat[ed] that [the carrier] did not intend to relieve 

[the shipper] of its obligation[s].” Id. 

Relying on Strachan, Freightplus points to several factors as showing 

that IMC intended to release it from liability. First, Freightplus argues that 

IMC’s practice of “providing service [to Yacht Path] without contemporaneous 

receipt of payment is an extension of credit” indicative of an intent to seek 

freight payment exclusively from Yacht Path. Second, the fact that IMC sought 

to recover its freight from Yacht Path in the latter’s bankruptcy proceeding is, 

Freightplus argues, also evidence of this intent. Third, Freightplus points to 

the fact that IMC’s non-negotiable bill of lading is marked freight “prepaid,” 

and argues further that IMC is estopped from recovering its freight from 

Freightplus. 

Strachan addressed how to determine whether the primary shipper—as 

opposed to an intermediary—has been released from freight liability by an 

ocean carrier. While Freightplus is not a shipper in this sense, both parties 

operate under the assumption that Strachan’s framework also applies to 

determine whether an ocean carrier has released an intermediary from freight 

liability. We see no reason why Strachan’s approach for deciding whether an 

ocean carrier has released an entity from liability should not apply when it is 

an intermediary, rather than the primary shipper, being sued for unpaid 

freight. 

We conclude that IMC did not release Freightplus from liability for its 

freight. First, even assuming that IMC’s alleged practice of providing service 

to Yacht Path in other transactions without “contemporaneous receipt of 

payment” is an extension of credit in the relevant sense (Freightplus cites no 

authority indicating that it is), our decision in Strachan rejected the argument 

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that an extension of credit is itself a sufficient indication of a carrier’s intent 

to release a shipper from freight liability. Strachan, 701 F.2d at 489. There 

must be some indication that the extension of credit was intended to serve as 

a release of liability. There is no logical reason to conclude that IMC intended 

to look to Yacht Path alone simply because IMC previously provided services 

to Yacht Path without contemporaneous payment. See Strachan, 701 F.2d at 

489–90 (finding no intent to release from liability despite extension of credit). 

We also reject Freightplus’s second argument. In Strachan, we held that 

a shipper was not relieved of freight liability to a carrier even though the 

carrier had “initially directed its collection efforts to” the freight forwarder. Id. 

at 489. Here also, the fact that IMC sought payment for freight from Yacht 

Path in the bankruptcy proceeding is not sufficient to show an intent on IMC’s 

part to release Freightplus. Id. 

Last, we cannot divine an intent to release Freightplus from liability 

solely because of the “freight prepaid” designation on IMC’s draft bill of lading. 

Apart from simply stating the fact that IMC’s draft bill of lading listed freight 

as prepaid, Freightplus provides no explanation for why this indicates an 

intention by IMC to release Freightplus from liability. In Strachan, we did not 

accept the simple fact of a “freight prepaid” designation as establishing an 

intent to release, and we will not do so here.26 Strachan, 701 F.2d at 489. 

As we observed in Strachan, “there is no economically rational motive 

for the carrier” to release entities from liability: “[t]he more parties that are 

liable, the greater the assurance for the carrier that he will be paid.” 701 F.2d 

at 490. Given this reality, we are loath to find release absent a clear indication 

 

26 See also Nat’l Shipping Co., 106 F.3d at 1547 (finding fact issue as to intent to 

release on facts nearly identical to Strachan); Hawksphere, 330 F.3d at 238 (adopting 

Strachan’s rule). 

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of the carrier’s intent. Accordingly, because Freightplus has not demonstrated 

that IMC intended to release it from liability for the unpaid freight, we affirm 

the district court’s judgment in this regard. 

F. 

 While holding that Freightplus was liable to IMC for its unpaid freight, 

the district court also determined that IMC could not recover its freight from 

GIC by bringing an in rem action against the REBEL. Relying on out-of-circuit 

precedent and “principles of equity,” the district court concluded that such 

recovery would impermissibly subject GIC to double payment—the first 

payment being its payment of $111,000 to Freightplus. We review legal issues 

and mixed-questions of law and fact de novo and any underlying factual finding 

for clear error. See Trinity Indus., 757 F.3d at 407. 

 “Under United States law, it has been settled for over a century that we 

presume a maritime lien exists in favor of a shipowner on cargo for charges 

incurred during the course of its carriage.” Arochem Corp. v. Wilomi, Inc., 962 

F.2d 496, 499 (5th Cir. 1992); see The Bird of Paradise, 72 U.S. 545, 554 (1866)); 

see also 2 Benedict on Admiralty § 44 (Matthew/Bender 2013) (“[M]aritime law 

permits an action in rem against the cargo itself . . . .”). Under this wellestablished principle, IMC obtained a maritime lien against the REBEL in 

rem. The district court recognized these principles but concluded that IMC 

could not exercise a maritime lien against the REBEL in rem by relying on a 

“well-reasoned consensus” that a shipper is relieved of liability for freight 

where the shipper has (1) remitted payment for freight to an intermediary and 

(2) where the ocean carrier’s bill of lading is marked freight prepaid.

We disagree. As already discussed, we articulated the standard for 

determining whether a shipper has been released from freight liability by the 

ocean carrier in Strachan. See 701 F.2d at 489–90. There we held that this 

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inquiry must focus on the ocean carrier’s intent, which is determined from the 

“totality of the circumstances.” Id. at 489. 

The district court did not follow the course set by Strachan, though 

recognizing that Strachan was “contrary” to the rule is applied. In Strachan, 

we rejected the argument that a “freight prepaid” designation on a bill of lading 

is necessarily sufficient. 701 F.2d at 489. Likewise, we made clear that the 

carrier’s intent is paramount, and so we cannot discern anything about IMC’s 

intent from GIC’s act of remitting payment to an intermediary. Cf. Strachan, 

701 F.2d at 489. In short, neither of the district court’s reasons evidence an 

intent by IMC to release its maritime lien against the REBEL. 

We recognize that Strachan involved an action for freight against the 

shipper itself, whereas here IMC seeks to recover against the REBEL in rem. 

In both situations, however, the relevant question is whether the ocean carrier 

took action to release a source liable for unpaid freight from liability. We see 

no reason to apply a different standard for discerning a carrier’s intent to 

release in the context of an in personam action than an in rem action.27 We 

therefore conclude that the district court erred in barring IMC’s maritime lien 

against the REBEL in rem.28

On appeal, GIC does not defend the district court’s rationale. It instead

argues that the REBEL is not subject to a maritime lien because “there must 

exist privity of contract” between the cargo owner and the ocean carrier in 

 

27 We do not suggest that in personam and in rem actions are to be treated identically 

in all respects or that standards applicable to one type of action are necessarily applicable to 

the other. Instead, we merely recognize that when it comes to discerning whether the carrier 

effected a release of liability—whether in the context of an in personam or in rem action—

courts should look to whether the carrier intended such a release and should assess this 

intent based on the totality of the circumstances. 

28 It is true that a maritime lien can be waived. See 2 Benedict on Admiralty § 44 

(Mathew Bender 2013). GIC has made no argument to this effect. 

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order for a maritime lien to attach. For this, GIC relies on our decision in Lykes 

Lines Ltd. v. M/V Bbc Sealand, 398 F.3d 319 (5th Cir. 2005). 

GIC misreads Lykes. That decision acknowledged that “maritime law 

recognizes a lien arising as a matter of law in favor of the vessel owner against 

the cargo for charges including unpaid freight.” Lykes, 398 F.3d at 323. An 

exception to this rule applies “when cargo is shipped under a charter,” in which 

case “[the] lien only extends to cargo that is owned by the charterer.” Id. 

(emphasis added). A “charter” is a maritime term for the contract arising 

between the shipowner and the party leasing the ship to transport cargo. See 

BLACK’S LAW DICTIONARY 285 (10th ed. 2009) (“charter” and “charterparty”).

But not all contracts for maritime transportation are charters. A charter “is a 

specialized form of contract for the hire of an entire ship.” 2 Schoenbaum, 

Admiralty & Maritime Law, § 11-1 (West 2001) (emphasis added). These are 

contracts securing “private carriage,” as distinct from carriage by a “common 

carrier” who “is available to carry cargo for all who agree to pay its charges.” 8 

Benedict on Admiralty § 18.01 (Matthew/Bender 2013). 

The REBEL was not shipped under a charter, and no party has argued 

that it was. While Yacht Path arranged for the REBEL to be shipped upon 

IMC’s vessel, it did not “hire [the] entire ship” or otherwise secure private 

carriage for the REBEL. 2 Schoenbaum, Admiralty & Maritime Law, § 11-1; 8 

Benedict on Admiralty § 18.01. Mr. Cummings of Yacht Path confirmed that 

the REBEL was not shipped under a charter. Lykes has no bearing here. 

Accordingly, we hold that the district court erred in barring IMC from 

proceeding against the REBEL in rem.29

 

29 Because we conclude that IMC has a right to exercise its maritime lien against the 

REBEL in rem, we need not address the issue of IMC’s contractual lien against the REBEL. 

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III. 

We have come at long last to the end of our own voyage through the 

assorted issues raised by this appeal and, save for one issue, we drop anchor 

at the same destination as the district court. Accordingly, we REVERSE the 

district court’s judgment disallowing IMC’s in rem action against the REBEL 

and AFFIRM the judgment in all other respects. 

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LESLIE H. SOUTHWICK, Circuit Judge, dissenting in part. 

My disagreement with the majority concerns its analysis of the issue of 

authentication of the invoice from Visifi Nigeria Limited. I do not believe there 

was a stipulation. Accordingly, the exhibit on which most of the damage award 

is based was never properly admitted into evidence. 

There were two documents that allegedly provided evidence of the 

REBEL’s storage costs. One was the Visifi invoice. The other was an invoice 

from Julius Berger Services, the party storing the REBEL. The two documents 

are quite different. The Visifi invoice lists “demurrage” fees at $1,400 per day, 

totaling over $1 million by the end of January 2015. The Julius Berger invoice 

lists “Tug storage” at $220 per day, totaling $120,120 as of March 25, 2015. 

The Visifi invoice lists security fees, a national inland waterway fee, 

impoundment fees, and overhauling fees, totaling over $400,000. The Julius 

Berger invoice lists stevedoring fees, mooring fees, labor and documentation 

fees, and taxes, totaling approximately $17,000. The Visifi invoice provides a 

Lagos, Nigeria address. The Julius Berger invoice provides a Warri, Nigeria 

address. The Visifi invoice lists a grand total of $1,460,200 as of the end of 

January 2015. The Julius Berger invoice lists a grand total of $151,169.08 as 

of April 13, 2015. The parties dispute whether these documents complement 

one another or offer alternative calculations of storage-related costs. 

The Julius Berger invoice was admitted without objection in the district 

court. Before trial, GIC submitted the Julius Berger invoice to the court as “a 

true and correct copy of its damages reflected in and to supplement [the Visifi 

invoice].” During trial, GIC’s witness testified regarding the “demurrage” 

charges it was incurring from Julius Berger. At the end of trial, GIC moved to 

enter the Julius Berger invoice into evidence without objection, informing the 

court that the invoice reflects “[t]he storage charges.” 

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Freightplus and IMC consistently objected to the introduction of the 

Visifi invoice in the district court, and that document was never discussed at 

trial. Two months before trial, the parties objected to the Visifi invoice because 

they alleged it was not produced during the discovery period, was not relevant, 

and was not properly authenticated. The district court overruled most of the 

objections, but it deferred on authentication because the document could “be 

authenticated at trial by witness testimony.” 

In a proposed pretrial order filed the week before trial, GIC listed the 

exhibits it planned to introduce at trial. The list included the Visifi invoice and 

four other exhibits that Freightplus and IMC objected to on grounds of 

authentication: “Shell Petroleum Contract and all related documents, P.O. No: 

4510244867,” “ZED Energy Contract and all related documents, ZED 1021012 

PO No. ZED/GIC/13/VOL.11/09,” “Shell Petroleum Contract and all related 

documents PO No. 4510330438: $1,047,000.00,” and the “GIC Agency 

Authorization from GIC Oil and Gas Services, Ltd.” The proposed pretrial 

order also listed Godwin Ebolo as a GIC witness, saying this about his proposed 

testimony: 

Mr. Ebolo will give testimony in his capacity as managing 

director of GIC Oil and Gas Services, LTD regarding the 

relationship between the two entities. His testimony is also 

necessary to authenticate Shell Petroleum Contract and all related 

documents, P.O. No: 4510244867, ZED Energy Contract and all 

related documents, ZED 1021012 PO No. ZED/GIC/13/VOL.11/09, 

Shell Petroleum Contract and all related documents PO No. 

4510330438: $1,047,000.00, and GIC Agency Authorization from 

GIC Oil and Gas Services, Ltd. 

GIC did not explain in the proposed pretrial order how it would authenticate 

the Visifi invoice. It did, however, note that it would call “[a]ny witness needed 

to authenticate any documents that cannot be agreed to by stipulation.” 

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The final pretrial order continued to list the Visifi invoice, the three 

contracts, and the agency agreement as GIC exhibits. It also noted the 

objections filed by Freightplus and IMC. The final pretrial order did not list 

Godwin Ebolo as a GIC witness, but it continued to state GIC would call “[a]ny 

witness needed to authenticate any documents that cannot be agreed to by 

stipulation.” 

At trial, GIC called Godwin Ebolo to testify. The following exchange took 

place: 

[GIC]: Your Honor, I’d like to call Mr. Godwin Ebolo as my 

authentication federal witness. 

[Freightplus]: Your Honor, we would object to this witness 

testifying. He was not listed in the pretrial order. To the extent 

that he’s called specifically for a Rule 901 authentication, we will 

stipulate, and I think — 

[IMC]: We’ll stipulate as well, Your Honor. 

[GIC]: All right. And that’s all he was going to testify to, nothing 

substantive, just to authenticate those documents that Freightplus 

and IMC both objected to, which are the three contracts and the 

agency agreement. 

THE COURT: All right. So do we have a stipulation? 

[Freightplus]: Yes. As far as Freightplus, yes. 

[IMC]: As far as IMC as well. 

THE COURT: Okay. Well, sir, you can go home. Oh, you still want 

to call him? 

[Freightplus]: He’s been excused. 

[GIC]: Oh, wait. 

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[Freightplus]: We stipulated to authentication. There’s no — if 

that’s the only purpose he would be testifying. 

[GIC]: Yeah. He’s testifying for authentication. 

[Freightplus]: We’ve stipulated to authentication.

[GIC]: Oh, you have? 

[Freightplus]: Yes. 

[GIC]: Oh, all right. I’m sorry. I heard you wrong. 

[Freightplus]: No. 

[GIC]: Okay. 

THE COURT: So you can go home. 

Whether this stipulation extended to the Visifi invoice, or just “the three 

contracts and the agency agreement,” is the central dispute. 

After trial, the district court awarded over $1.8 million to GIC based 

almost entirely on the Visifi invoice, which it relied on instead of the Julius 

Berger invoice. Both Freightplus and IMC filed Rule 59(e) motions in which 

they objected to the district court’s use of the Visifi invoice. They argued the 

invoice was not properly authenticated and did not accurately represent the 

REBEL’s storage charges, which were detailed in admitted invoices provided 

by Julius Berger — the entity actually storing the REBEL. 

The district court denied the Rule 59(e) motions. Pointing to the portion 

of the trial transcript reproduced above, the court concluded that “counsel for 

both Freightplus and IMC apparently proffered a blanket Rule 901 

authentication stipulation for Godwin Ebolo’s testimony before GIC’s counsel 

then responded regarding the documents to be authenticated.” The court 

explained that it “fairly took the intent of counsel for Freightplus and IMC to 

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be to stipulate as to authentication generally.” The court also rejected the 

argument that it was clear and manifest error to find the Visifi document “a 

more credible foundation for determining GIC’s damages” than the Julius 

Berger invoice. 

IMC later filed a Rule 60(b) motion notifying the court of new evidence 

demonstrating that the Visifi invoice did not accurately reflect storage charges 

for the REBEL. This new evidence was a document just like the original Julius 

Berger invoice but updated to reflect current charges. The total demanded in 

the invoice for release of the REBEL was just over $186,000. IMC argued this 

document demonstrated that the Julius Berger invoice represented accurate 

storage-related costs and suggested that GIC knew the invoice represented 

accurate costs because Julius Berger was demanding payment from GIC. The 

district court denied the motion. 

Freightplus has settled with GIC, but IMC continues to argue that the 

district court erred in awarding damages to GIC based on the Visifi invoice. 

Whether the invoice was ever authenticated is the issue. 

“Authentication is a condition precedent to the admission of evidence and 

is satisfied when a party presents evidence sufficient ‘to support a finding that 

the item is what the proponent claims.’” United States v. Barnes, 803 F.3d 209, 

217 (5th Cir. 2015) (quoting FED. R. EVID. 901(a)). We review challenges to 

evidentiary rulings for abuse of discretion. See EMJ Corp. v. Hudson Specialty 

Ins. Co., 833 F.3d 544, 551 (5th Cir. 2016). “We only reverse if ‘substantial 

prejudice’ resulted from the error.” Id. “Resolution of preliminary factual 

questions concerning the admissibility of evidence are reviewed for clear 

error.” Meadaa v. K.A.P. Enters., L.L.C., 756 F.3d 875, 880 (5th Cir. 2014). 

“[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.’” Fed. Sav. & Loan Ins. Corp. 

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v. Texas Real Estate Counselors, Inc., 955 F.2d 261, 265 (5th Cir. 1992) (quoting 

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

I find clear error. GIC, the party introducing the authentication witness, 

clearly defined the scope of the stipulation to include “the three contracts and 

the agency agreement.” The scope of the stipulation must have made sense to 

the parties, because the proposed pretrial order that listed Godwin Ebolo as a 

witness stated he would authenticate three contracts and one agency 

agreement. The stipulation at trial did not mention the Visifi invoice.

The majority characterizes the transcript as showing that Freightplus 

and IMC offered to stipulate before GIC interjected with “qualifying language.” 

There is no indication, however, that the parties offered a “blanket stipulation.” 

Looking at the context, the transcript makes clear that before Freightplus 

could complete its sentence, IMC jumped in to say it would also stipulate, and 

GIC immediately responded, “All right. And that’s all he was going to testify 

to, nothing substantive, just to authenticate those documents that Freightplus 

and IMC both objected to, which are the three contracts and the agency 

agreement.” Only then — after GIC’s statement — did the district court ask 

the parties, “So do we have a stipulation?” At that point, what was explicitly 

before the court as an explanation of the stipulation, to which no one objected, 

is that it applied to the three contracts and the agency agreement, not the Visifi 

invoice.

The Visifi invoice is especially problematic because GIC wholly failed to 

explain it in the district court, yet it alone supports the majority of the damages 

awarded to GIC. As already noted, GIC introduced the Julius Berger invoice 

to the court before trial as “a true and correct copy of its damages reflected in 

and to supplement” the Visifi invoice. At trial, GIC’s witness testified about 

“demurrage” charges from Julius Berger, not Visifi. At the end of the trial, it 

was GIC who moved to introduce the Julius Berger invoice into evidence 

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without objection, explaining to the court that the Julius Berger invoice 

reflected “[t]he storage charges.” There is no dispute that Julius Berger stored 

the REBEL. GIC provided no information at all about the Visifi invoice. Its 

relevance remains obscure, to say the least, though the district court found it 

relevant. As IMC points out, “there is no explanation anywhere in the record 

of who Visifi Nigeria Limited is, why they are providing the document, and 

from where the information contained within the document is obtained.” 

In light of both the district court’s and my colleagues’ contrary view, 

there must be reasonable doubt about what the stipulation covered despite my 

sense there is none. Consequently, instead of simply holding that the Visifi 

invoice never was authenticated and it is too late now, I would reverse and 

remand to the district court for a hearing on the Visifi invoice that would allow 

it to be authenticated if that can be done, and also a new decision as to its 

relevance once someone explains what Visifi is. 

I respectfully dissent on that issue. 

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