IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30725

In re: In the Matter of the Complaint of OMEGA PROTEIN, INC, as Owner of

Fishing Vessel GULF SHORE, for Exoneration from or Limitation of Liability.

OMEGA PROTEIN INC., as Owner of Fishing Vessel GULF SHORE,

Plaintiff-Appellee,

v.

SAMSON CONTOUR ENERGY E & P LLC,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Louisiana

Before KING, DeMOSS, and PRADO, Circuit Judges.

DeMOSS, Circuit Judge:

In the early morning hours of October 4, 2004, Plaintiff-Appellant Omega

Protein, Inc’s (“Omega”) vessel struck an oil platform owned by DefendantAppellee Samson Contour Energy E & P LLC (“Samson”). On appeal, we must

consider whether the district court erred in assigning fault equally between

Omega and Samson, and whether the court erred in allowing Omega to limit its

liability under 46 U.S.C. § 30505. Finding no error, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

November 10, 2008

Charles R. Fulbruge III

Clerk
No. 07-30725

1 Samson contends that conditions were “hazy,” based upon a Report of Marine

Accident, Injury or Death filed with the Coast Guard. It is unknown who filled out that portion

of the report (which is, of course, hearsay). Stewart’s uncontradicted testimony at trial was

that visibility was seven to eight miles.

2

I.

Omega’s vessel F/V GULF SHORE (“GULF SHORE”) is a 396-ton steel

hulled fishing vessel used to catch and process menhaden, a fish found in the

Gulf of Mexico. GULF SHORE had various navigational aids, including an

autopilot, a Furuno Model 1731 Mark-3 radar, and a Pinpoint Navigational

Chart System.The radar was equipped with an anti-collision alarm, which emits

a sound when an obstacle enters a field specified by the operator. The Pinpoint

system shows computerized navigational charts on a screen and displays the

vessel’s progress across the chart. Between midnight and 1 a.m. on October 4,

2004, GULFSHORE leftits base of operations in Cameron, Louisiana to proceed

to fishing grounds at Freshwater Bayou, Louisiana. At the helm was Captain

Luther Stewart. Before that night, Stewart had served as a menhaden pilot and

captain for approximately twenty accident-free years. Omega did not provide

Stewart with training on how to use the radar, and had no policy requiring him

to use the anti-collision alarm. Stewart had not read the radar’s manual and was

unaware of the alarm’s capabilities. GULF SHORE proceeded in an easterly

direction at a speed of between nine and eleven knots. The weather was good,

seas were calm, and visibility was seven to eight miles.1

After GULF SHORE had been underway for several hours, the vessel’s

chief engineer entered the wheelhouse to inform Stewart that a component of the

vessel’s refrigeration system had malfunctioned. Stewart scanned the horizon

to see if any obstacles were in the vessel’s path. Seeing none, he turned on the

wheelhouse lights to examine the part. He agreed that the part was broken, and

unless it was replaced, the vessel could notfish and would have to return to port.

Stewart used his cell phone to call Omega’s plant in Cameron, hoping to arrange
No. 07-30725

2

“An allision is a collision between a moving vessel and a stationary object.” In re MidSouth Towing Co., 418 F.3d 526, 528 n.1 (5th Cir. 2005) (quoting THOMAS J. SCHOENBAUM,

ADMIRALTY & MARITIME LAW § 14-2 (4th ed. 2004)).

3

an air drop of a replacement part. Stewart only reached a security guard at the

Cameron plant, and left a message for the marine department. Stewart then

called Omega’s plantin Abbeville, Louisiana to see ifthe part was in stock there.

While Stewart was on the phone, and some ten to fifteen minutes after he turned

on the wheelhouse lights, GULF SHORE struck Omega’s oil platform (“Platform

17B”). The platform is situated near a cluster of oil platforms known as the

Joseph’s Harbor Rigs.

After the allision,2 GULF SHORE circled Platform 17B. Stewart observed

no lights and heard no sounding devices. Three other crew members of GULF

SHORE likewise testified that the platform lacked functioning lights or a fog

horn. Herbert Fisher, captain of F/V ANNA AMY, a vessel owned by Omega,

testified that he passed Platform 17B prior to the allision on the morning of

October 4, 2004. He stated that the platform lacked operational lights and

sounding devices. Another captain, Lawson Schools of F/V COTE BLANCHE

BAY, also an Omega vessel, testified that after the allision, he saw no lights

operating on Platform 17B. He testified that when he had passed the same

platform at night on other occasions, it was unlit.

Following the allision, various employees and agents of Samson boarded

Platform 17B and inspected its lighting systems. Baker Energy was in charge

of maintaining the lights on the platform. Baker’s employee, Troy Whetstone,

testified that he conducted tests just a few hours after the allision. Whetstone

placed a piece of electrical tape over the photocell of each of the four lights to

simulate darkness. In each case, the light turned on as intended. Terry Smith,

Operations Manager of Wet Tech Energy (a third-party contractor hired by

Samson to perform quarterly inspections of Platform 17B’s lights) arrived atthe
No. 07-30725

4

platform several hours after Whetstone conducted his inspections. He performed

tests on the electrical currents, batteries, solar panels, foghorn, and lights, and

found no evidence to suggest that the lights and horn had not been working the

previous night. Smith also performed some routine maintenance. Both Smith

and Whetstone testified that they did not repair the platform’s lights.

Additionally, Samson hired George Hero, an electrical engineer, to test the

lighting systems on October 11, 2004 (one week after the accident). Hero was to

determine “whether there was evidence of any recent modifications or repairs to

the lighting and foghorn systems or any evidence that the systems should not

have been operational on October 4, 2004.” Hero opined that he saw no evidence

that the lights had been repaired, and no evidence that the lights had been

inoperative one week earlier.

II.

The district court conducted a three-day bench trial in February 2007. In

its judgment of March 9, 2007, the court found that “Omega sufficiently proved

that platform 17B did not have operational lights on the morning of the

accident.” The court discredited the testimony adduced by Samson, noting that

Baker Energy had not kept monthly maintenance reports for Platform 17B.

Moreover, the court disregarded the testimony by Smith and Hero, noting that

“it is entirely possible that the lights were repaired prior to their inspections,”

namely by Whetstone. The court found that Samson had committed a statutory

violation by failing to have operable lights on a fixed structure. See 33 C.F.R. §§

67.01-1, 67.05-1. Consequently, the vessel was not presumed to be at fault for

the allision, and the burden remained on Samson to prove negligence.

The court next found that Samson carried its burden because it proved

that Captain Stewart violated the International Regulations for Preventing
No. 07-30725

3 The COLREGS’ text has been removed from the U.S. Code and the Code of Federal

Regulations, but remains in force. See 33 U.S.C. § 1602, West Electronic Research Notes.

5

Collisions at Sea (“COLREGS”). See 33 U.S.C. § foll. 1602.3 Namely, Stewart

violated Rule 5 by failing to maintain a proper lookout by sight and hearing, as

well as all other available means. See COLREGS, R. 5. Turning on the

wheelhouse light created a “mirror effect” which greatly diminished Stewart’s

night vision. Use of a cell phone likewise prevented Stewart from maintaining

a proper lookout. Moreover, the court found that Stewart had violated Rule 7 by

failing to use all available means (i.e., the vessel’s radar) to determine if a risk

of collision existed. See COLREGS, R. 7. Namely, the “mirror effect” prevented

Stewart from seeing the radar display. The court emphasized that “there was

substantial testimony that Captain Stewart did not make effective use of his

radar while navigating through the Joseph’s Harbor Rigs.”

Once Samson proved Stewart’s negligence, the court noted that the burden

shifted to Omega to prove thatit did have knowledge or privity of Stewart’s acts.

Because the court characterized the cause of the allision as a “mistake of

navigation,” it asked “whether Omega exercised reasonable care in selecting a

qualified and competent master?” The court noted that Stewart had all of the

requisite licenses to operate GULF SHORE, and Stewart’s record from twenty

years of working on and operating menhaden vessels for Omega was clean. The

court found that Omega had exercised reasonable care in selecting Stewart as

captain. Consequently, the court found that Omega lacked privity or knowledge

of Stewart’s negligence, and was therefore entitled to limit its liability. In light

of these findings, the court apportioned fault for the allision and resulting

damages equally to Omega and Samson (50%–50%).

Samson moved for a new trial, or to alter or amend judgment. It contended

that: (1) the court’s verdict was against the weight of the evidence; (2) the court

erred by failing to apply Trico Marine Assets Inc. v. Diamond B Marine Services,
No. 07-30725

6

Inc., 332 F.3d 779 (5th Cir. 2003); and (3) the court had failed to make findings

of fact or consider facts tending to show that GULF SHORE was unseaworthy.

After briefing and oral argument, the court entered a Memorandum Ruling on

July 2, 2007, denying Samson’s motions. Samson appeals both the district court’s

judgment and its denial of post-trial relief. We have jurisdiction over this appeal

because it seeks review of an interlocutory decree determining the rights and

liabilities of parties to an admiralty case. See 28 U.S.C. § 1292(a)(3); Astarte

Shipping Co. v. Allied Steel & Export Serv., 767 F.2d 86, 88 (5th Cir. 1985)

(holding that appellate jurisdiction is presentifthe district court’s order has “the

effect of ultimately determining the rights and obligations of the parties with

regard to the merits of the litigation”).

III.

As with any bench trial, following a maritime limitation case tried to a

district court, the appellate court reviews findings of fact for clear error and

questions of law de novo. See In re Mid-South Towing, 418 F.3d 526, 531 (5th

Cir. 2005). Questions of fault, including determinations of negligence and

causation, are factual issues, and may not be set aside on appeal unless clearly

erroneous. Id.; Trico Marine Assets, 332 F.3d at 786. “If the district court’s

account of the evidence is plausible in light of the record viewed in its entirety,

the court of appeals may not reverse it even though convinced that had it been

sitting as the trier of fact, it would have weighed the evidence differently. Where

there are two permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564,

573-74 (1985). “Findings based on the credibility of witnesses demand even

greater deference.” Tokio Marine & Fire Ins. Co., Ltd. v. FLORA MV, 235 F.3d

963, 970 (5th Cir. 2001) (citing Fed. R. Civ. P. 52(a); Anderson, 470 U.S. at 575).

“If a finding is based on a mixed question of law and fact, this court should only

reverse ‘if the findings are based on a misunderstanding of the law or a clearly
No. 07-30725

7

erroneous view of the facts.’” Bertucci Contracting Corp. v. M/V ANTWERPEN,

465 F.3d 254, 259 (5th Cir. 2006) (quoting FLORA MV, 235 F.3d at 966). The

appellate court likewise reviews the grant or denial of limited liability for clear

error. See Trico Marine Assets, 332 F.3d at 789; In re Hellenic Inc., 252 F.3d 391,

394 (5th Cir. 2001).

IV.

We first consider whether the district court’s findings regarding the cause

of—and comparative fault for—the allision are clearly erroneous before asking

whether limitation of liability was proper.

Samson contends that (1) the lights of Platform 17B were operational on

the night of the allision; (2) the allision could have been prevented if (a) the

vessel had been equipped with functional navigational aids or updated charts,

or (b) if Stewart had used his radar’s anti-collision alarm; and (3) the district

court erred in its apportionment of fault. Samson casts the court’s alleged

missteps as errors of law which should be reviewed de novo. Omega responds

thatthe courtin all instances properly stated the controlling legal standard, and

merely rendered findings of fact that were contrary to Samson’s preferences.

Consequently, argues Omega, the court’s findings regarding fault and the cause

of the allision are subject to reversal only if they are clearly erroneous.

A.

First, Samson recites the evidence tending to show that the lights on

Platform 17B were operational. Troy Whetstone testified that he tested the

lights following the allision by placing a piece of electrical tape over the

photocell, and found that the lights turned on. Samson also emphasizes that

Terry Smith of Wet Tech Energy believed that the lights had been operational,

and George Hero, an expert on electrical engineering, opined that there was no

evidence of post-allision repairs. Nevertheless,the district court discredited this

theory, noting that it appeared that Whetstone had repaired the lights. The
No. 07-30725

8

district court instead relied on the testimony of six witnesses who viewed the

platform on the night of the allision, both before and after GULF SHORE hit it,

and testified that the lights were off. All of those witnesses were affiliated with

Omega in some way, while the witnesses presenting the contrary view were

agents of Samson: there simply were no neutral witnesses present at the scene

of the allision. Because the evidence regarding the lighting of Platform 17B is at

best in equipoise, we may not overturn the district court’s findings (and

credibility determinations subsumed therein) as clearly erroneous. See Bertucci

Contracting, 465 F.3d at 258-59 (citing Anderson, 470 U.S. at 575); In re MidSouth Towing, 418 F.3d at 535 (“Credibility determinations are the province of

the trier of fact, which in this case is the district court.”) (citations omitted).

In line with its theory that the lights of Platform 17B were operational,

Samson contends that the court misapplied the presumption that when a moving

vessel allides with a stationary object, the vessel is presumed to be at fault, and

has the burden of demonstrating a contributing fault by the stationary object.

See The Oregon, 158 U.S. 186, 197 (1895). However, this presumption only

applies in the absence of evidence of fault. See In re Mid-South Towing, 418 F.3d

at 531. Here, because Omega proved that Platform 17B was unlit, the district

court concluded that Samson committed a statutory violation. In light of this

finding, the court was correct to disregard the presumption of The Oregon. See

id. The district court did not operate under a “misunderstanding of the law” and

its findings were not based on “a clearly erroneous view of the facts.” See

Bertucci Contracting, 465 F.3d at 259. There was no error on this point.

B.

Despite finding Platform 17B at fault, the district court still held that

Samson proved that Stewart’s negligence was a contributing cause of the

allision: Stewart failed to maintain a proper lookout and failed to make effective

use of the radar. Samson agrees that Stewart was at fault for the allision, yet
No. 07-30725

9

contends that the district court’s findings regarding the cause of the allision are

incorrect. Namely, Samson avers that Stewart “only made the decision to turn

on his wheelhouse lights” because the Pinpoint navigational chart and the

Furuno radar “did not show Samson’s Platform 17B—or the cluster of twenty

platforms in which it stands—2-3 miles dead ahead.” Samson contends that the

evidence proves thatthe navigational aids were defective or outdated. Moreover,

Samson notes that Omega failed to train Stewart in how to use his navigational

aids, specifically the anti-collision alarm. It thus lays the blame for the allision

not on Stewart’s “mistake of navigation,” but rather on “Omega’s hands-off

approach to management of the GULF SHORE, particularly the training and

supervision of Stewart . . . .” Additionally, Samson insists that even if Platform

17B had no operational lights,this did not contribute to the allision, because the

“mirror effect” caused by the wheelhouse lights would have prevented Stewart

from seeing the platform’s lights. Samson presses causation because this issue

bears on whether Omega can limit its liability.

Omega responds that there is no evidence that the navigational aids

aboard GULF SHORE were out-of-date or defective. According to Omega, the

evidence shows that Stewart failed to use the aids prior to the allision, not that

the radar and Pinpoint system failed to show Platform 17B. Omega notes that

the platform had been in place for over twenty years, and would have been on

any nautical chart of the area. It submits that the district court’s finding, that

the allision was caused by a combination of Stewart’s failure to maintain a

lookout or properly use his (functional) navigational aids, together with the

platform’s lack of lighting, is not clearly erroneous.

On direct examination, Stewart testified that he did not look at his radar

or Pinpoint chart prior to turning on the wheelhouse lights. He testified that he

relied solely on his visual scan of the horizon to determine if any objects lay in

GULF SHORE’s path. On cross examination, however, Stewart appeared to
No. 07-30725

4 The court referenced testimony that anti-collision alarms are of limited utility in the

portion of the Gulf of Mexico where GULF SHORE was navigating, owing to a profusion of

obstructions which would constantly trigger the alarm.

10

testify that he did not see the platform on the radar or Pinpoint system before

or after the allision. Stewart also stated that he “never used the chart for that,”

and that he did not use his radar “to specifically look for [Platform 17B] after

[the allision] happened. I think that was probably the furthest thing from my

mind at the time.”

In denying Samson’s motion for post-trial relief, the court rejected the

theory that the radar or Pinpoint system were defective or out-of-date, and also

rejected Samson’s argument that Stewart’s lack of training in the use of the

radar’s anti-collision alarm caused or contributed to the accident.4 The court

expressly found that the lack of operational lights on Platform 17B precluded

Stewart from seeing the platform before he turned on the wheelhouse lights,

contributing to the allision. In light of Stewart’s testimony that visibility was

seven to eight miles on the night of the allision, if the platform’s lights had been

on, they would have been visible when Stewart last scanned the horizon, when

GULF SHORE was two to three miles away from Platform 17B.

Having reviewed the entire record, we are notleft with the firm conviction

thatthe district court made a mistake in finding that Stewart’s failure to use his

navigational aids caused the allision. See Transorient Navigators Co. v. M/S

SOUTHWIND, 714 F.2d 1358, 1364 (5th Cir. 1983). The evidence simply does

not compel the conclusion that outdated or defective navigational aids were a

factor. Cf. In re Mid-South Towing, 418 F.3d at 533. We affirm the district

court’s rulings, which are plausible in light of the record as a whole.

C.

Samson also argues that the district court’s apportionment of fault was

clearly erroneous. Samson posits that the court failed to make detailed and
No. 07-30725

11

specific findings of fact to support its conclusions. Cf. Fed. R. Civ. P. 52(a). The

district court made the following finding in apportioning fault: “Based on the

foregoing facts, the court finds that the apportionment of fault for the allision

and resulting damages is: Omega 50% and Samson 50%.”

In admiralty cases, federal courts allocate damages based upon the parties’

respective degrees of fault. United States v. Reliable Transfer Co., 421 U.S. 397,

411 (1975). The “clearly erroneous standard governs a trial court’s allocation of

damages among vessels.” Mac Towing, Inc. v. Am. Commercial Lines, 670 F.2d

543, 547 (5th Cir. 1982) (citations omitted).“Where both parties to a collision are

in violation of statutes designed to prevent collisions, the court may apportion

fault between the parties, unless either party proves that its statutory violation

was not a substantial contributing cause ofthe collision.”Stolt Achievement, Ltd.

v. DREDGE B.E. LINDHOLM, 447 F.3d 360, 364 (5th Cir. 2006) (citation

omitted). Moreover, “the calibration of culpability simply is not susceptible to

any real precision.” Id. at 370 (quotation omitted). The trial court does not

mechanically tally errors, but “must determine, based upon the number and

quality of faults by each party, the role each fault had in causing the collision.”

Id.

Samson does not indicate what relative percentage of fault it believes was

appropriate—aside from its insistence that Omega was solely at fault for the

allision. While the court did not provide a detailed explanation for its 50-50

apportionment of fault, it made such apportionment “[b]ased on the foregoing

facts.” The adduced facts established statutory violations by both Omega and

Samson which caused the allision. A court may apportion fault equally in a close

case. See Mac Towing, 670 F.2d at 547 (“That a court divided damages equally

among the parties does not mark a failure to follow Reliable Transfer. If the

court finds the parties equally at fault, so be it. In establishing comparative

negligence in admiralty,the Supreme Court certainly did not delete the number
No. 07-30725

5

In 2005, Congress recodified portions of title 46, United States Code. See Pub. L. No.

109–304 (2005). Section 30505 was previously numbered as § 183(a) of the Appendix to title

46. Congress’s intent was to “codif[y] existing law rather than creating new law.” See H.R. Rep.

109–170, at 2 (2005), reprinted in 2006 U.S.C.C.A.N. 972, 973. Therefore, pre-amendment

cases applying former § 183(a) are treated as having full force of law.

12

‘50’ from the federal courts’ vocabulary.”); cf. Reliable Transfer, 421 U.S. at 411

(holding that liability “is to be allocated equally only when the parties are

equally at fault or when it is not possible fairly to measure the comparative

degree of their fault”). The district court carefully weighed the evidence in

reaching its decision, and correctly found that both parties’ violations

contributed to the allision. We do not believe that the court’s equal

apportionment of fault was clearly erroneous, and affirm.

V.

Samson contends that the district court erroneously granted limitation of

liability to Omega. Seeking de novo review, Samson avers that the court applied

an incorrect legal standard. The crux of this argument is that the court

“ignore[d] the plethora of evidence of Omega’s negligence and the

unseaworthiness” of GULF SHORE. Samson insists that if the court had

properly applied the law, it would have denied Omega’s petition. As we explain

below, we believe thatthe district court correctly applied circuit precedentto the

facts. Because there was no misunderstanding of the law, we review for clear

error. See FLORA MV, 235 F.3d at 966.

A.

Under the Limitation of Liability Act, a vessel owner may limitits liability

for maritime casualties to “the value of the vessel and pending freight.” 46

U.S.C. § 30505(a).5“However, ifthe vessel’s negligence or unseaworthiness is the

proximate cause of the claimant’s loss, the plaintiff-in-limitation must prove it

had no privity or knowledge of the unseaworthy conditions or negligent acts.”

Trico Marine, 332 F.3d at 789 (citing Cupit v. McClanahan Contractors, Inc., 1
No. 07-30725

6 Samson argues that Brister is dicta for present purposes because that was a Jones Act

case. Yet no subsequent cases have called into question the correctness of Brister’s ‘dicta.’ Cf.

In re Kristie Leigh Enters., Inc., 72 F.3d 479, 481 (5th Cir. 1996); see also In re Hellenic Inc.,

252 F.3d at 396. The rule for mere mistakes of navigation also has a considerable pedigree; the

Supreme Court noted in Coryell v. Phipps, 317 U.S. 406, 412 (1943), that “[o]ne who selects

competent men . . . and who is not on notice of any defect . . . cannot be denied the benefit of

limitation . . . .” Additionally, the Fifth Circuit applied this rule prior to Brister. See, e.g., Cont’l

Oil Co. v. Bonanza Corp., 706 F.2d 1365, 1377 n.15 (5th Cir. 1983) (en banc) (noting that “no

court has previously denied a corporate shipowner limitation of liability for a master’s

13

F.3d 346, 348 (5th Cir. 1993)); see § 30505(b). We have stated that “privity or

knowledge” “implies some sort of ‘complicity in the fault that caused the

accident.’” Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991) (quoting

Nuccio v. Royal Indem. Co., 415 F.2d 228, 229 (5th Cir. 1969)). The owner has

privity “if he personally participated in the negligent conduct or brought about

the unseaworthy condition.” Trico Marine Assets, 332 F.3d at 780 (quoting

Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1473 (5th Cir.

1991)). A corporate owner is assumed to know what the corporation’s managing

officers knew or “should have known with respect to conditions or actions likely

to cause the loss.” Id. at 789-90 (quoting Pennzoil, 943 F.2d at 1473-74). “The

question of ‘privity or knowledge must turn on the facts of the individual case.’”

Brister, 946 F.2d at 355-56 (quoting Gibboney v. Wright, 517 F.2d 1054, 1057

(5th Cir. 1975)).

In Brister, we surveyed Supreme Court and circuit court cases, and noted

that knowledge of an unseaworthy or negligent condition is normally imputed

to a corporate owner if the “condition could have been discovered through the

exercise of reasonable diligence.” Id. at 356. Moreover, “a finding of negligence

indicates complicity in the cause of the accident sufficient to make limitation

unavailable.” Id. (citations omitted). However, this Court also noted two

exceptions to this rule. First, mere “mistakes of navigation” by an otherwise

competent crew do not bar limitation of liability. Id. (quoting In re Hellenic

Lines, Ltd., 813 F.2d 634, 638 (4th Cir. 1987)).6 Second, whether negligence may
No. 07-30725

navigational errors at sea when the owner has exercised reasonable care in selecting the

master”); Mac Towing, Inc., 670 F.2d at 548 (“Ordinary ‘errors in navigation or other

negligence by master or crew are not attributable to (the shipowner) for limitation purposes.’”)

(quoting Tittle v. Aldacosta, 544 F.2d 752, 756 (5th Cir. 1977)). Therefore, the statement ofthe

rule in Brister in actuality reflects well-established, binding precedent.

14

be imputed can be determined in reference to the negligent employee’s stature

within the corporate hierarchy; if sufficiently high, limitation of liability is

precluded. Id. Samson does not advance this theory.

B.

Only the first “privity or knowledge” exception noted in Brister—for mere

mistakes of navigation—is relevant in the present case. The district court

characterized Stewart’s decision to turn on the wheelhouse lights and his failure

to maintain a lookout or use his radar as mistakes of navigation. Samson argues

that this conclusion is wrong, and that GULF SHORE was unseaworthy.

Unseaworthiness and mistakes of navigation are related yet distinct matters.

See Farrell Lines Inc. v. Jones, 530 F.2d 7, 10 n.2 (5th Cir. 1976). Seaworthiness

is “reasonable fitness to perform or do the work at hand.” Id. When

unseaworthiness exists due to equipment that is defective at the start of a

voyage, and the defects can be discovered through the exercise of reasonable

diligence, limitation of liability is less likely to be available—but not necessarily

precluded. See Brister, 946 F.2d at 357 & n.5. In contrast,“[e]rrors in navigation

or other negligence by master or crew are not attributable to (the vessel owner)

for limitation purposes.” Mac Towing, 670 F.2d at 548 (quotation omitted).

Ultimately, regardless of whether a mistake of navigation or unseaworthiness

caused the allision, the question of whether Omega lacked privity or knowledge,

and thus may limit its liability, is fact-specific and subject to reversal only if

clearly erroneous. See Trico Marine Assets, 332 F.3d at 789.

Samson contends that the district court committed legal error by

misapplying circuit precedentfrom Trico Marine Assets. Reprising its arguments
No. 07-30725

15

regarding causation, Samson alleges that GULF SHORE allided with Platform

17B because the vessel’s radar was defective or its charts were out-of-date.

Additionally, Samson submits that because Omega did not train Stewart in the

use of the radar’s anti-collision alarm, which might have prevented the allision,

the vessel was unseaworthy. Unseaworthiness would have existed prior to GULF

SHORE departing on the night of the allision, and unlike a mistake of

navigation, would be within Omega’s privity or knowledge. Thus, concludes

Samson, the court committed legal error by allowing Omega to limit its liability.

Omega points to the finding that the allision was caused by Stewart’s mistake

of navigation, and not unseaworthiness. Omega argues that the district court did

not commit legal error by asking whether Omega proved that it exercised

reasonable care in selecting a competent master, and then answering this

question affirmatively. Omega insists that this case is factually distinguishable

from Trico Marine Assets.

In Trico Marine Assets, a vessel departed port in heavy fog. 332 F.3d at

783. The captain did not post a lookout, and ran at full speed—eighteen

knots—although this generated enough noise to drown out the noise of other

vessels and fog signals, and made it difficult to hear the radio. Id. at 783-84. The

captain misread his radar and attempted to conduct an improper passing

maneuver, leading to a collision. Id. at 784. The district court found that the

captain had no training in how to use the radar, and had not otherwise received

safety training. Id. at 790. The vessel owner had not evaluated the vessel’s

seaworthiness or the captain’s qualifications, had not inspected the vessel logs,

and did not employ a safety manager. Moreover, the owner knew that the

captain had previously operated the vessel in a reckless manner in the fog, yet

did not prevent the captain from doing so again. The district court denied

limitation of liability. Id. We affirmed. We noted that navigational errors alone

typically do not justify denying limitation of liability, but “the present case
No. 07-30725

16

presents far more than mere navigational errors.” Id. at 790. The vessel owner

was aware that the captain had trouble hearing his radio. Moreover,the captain

had so little familiarity with his radar system that he could not determine other

vessels’ directions of travel, and this ignorance led to a collision. Under the facts

of that case, we held that the owner knew or should have known that the vessel

was unseaworthy and the captain incompetent. Id.

We believe that the present case is distinguishable. Stewart did not have

a pattern of improper or unsafe behavior. Rather, he had a spotless record in his

twenty years of working the menhaden fishery as a pilot and captain. While

Omega did not train Stewart on how to use the anti-collision alarm, the district

court found that this feature was not very useful because the Gulf is littered

with obstructions. Crucially, as discussed above, the district court did not find

that defects in the radar or Pinpoint system caused the allision. Rather, the

“mirror effect” caused by the wheelhouse lights prevented Stewart from seeing

out the windows or viewing the radar. In contrast, the captain’s failure in Trico

Marine Assets to understand what he saw on his radar display was a proximate

of the collision. See 332 F.3d at 790. Because that captain was making a blind

run through the fog, radar was the sole means by which he could see obstacles

in his vessel’s path. Here, because defective navigational aids played no role in

the allision, they are irrelevant to whether Omega may limit its liability. See In

re Hellenic Lines, Ltd., 813 F.2d at 639 (“Only conditions of unseaworthiness

that contribute to the collision are relevant to determining whether the

shipowner is entitled to limitation.”) (citation omitted).

Samson is not the first to ask us to reverse a district court’s findings and

hold on appeal that unseaworthiness, rather than mistakes of navigation, caused

a casualty. In Mac Towing, we considered—and rejected—a similar argument

concerning seaworthiness and limitation of liability. See 670 F.2d at 547-48. In

that case, which arose out of the collision of barges towed by two tugs, the
No. 07-30725

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district court held that both tugs made errors in navigation. One owner moved

for limitation of liability, which the court granted. The adversary appealed. Id.

at 546. We emphasized that a captain’s or vessel’s minor deficiencies do not

necessarily add up to unseaworthiness:

Alamo argues that Captain Higgerson was ignorant of the most

basic facts of navigation and speculates that perhaps he lacked a

chart of the area. Such defects allegedly rendered [the vessel]

unseaworthy. This point the trial judge rejected in his findings of

fact. The record sustains his decision. It demonstrates that

Higgerson was a qualified pilot with long experience piloting similar

tugs in that area. We agree with the District Court that his

deficiencies did not rise to the level of unseaworthiness and thus

does not constitute ‘privity or knowledge.’

Id. at 548.

The Eighth Circuit recently applied similar reasoning in rejecting an

argument that a pilot’s failure to make effective use of his radar per se rendered

his vessel unseaworthy. In re Mo. Barge Lines, Inc., 360 F.3d 885, 891 (8th Cir.

2004). There, two vessels collided because one pilot believed that a “mass of

lights” he saw at night on the Mississippi River was a construction site, not

another vessel. Id. The pilot would have realized that the lights were a vessel if

he had increased the range on his radar. However, the pilot’s failure to use the

radar effectively did not mandate a finding that the vessel was unseaworthy. Id.

at 891-92. Instead,the evidence supported a finding thatthe pilot’s “decision not

to increase his radar’s range when he first noticed the lights was navigational

error rather than an example of unseaworthiness.” Id. at 892. Similarly, in this

case, Stewart committed navigational error by failing to look at his radar and

Pinpoint system. Merely because better use of the navigational aids might have

helped prevent the allision does not compel a finding that Stewart was an

incompetent master or that GULF SHORE was unseaworthy.
No. 07-30725

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C.

To recap, Samson has demonstrated that Omega did not do everything

within its power to ensure that Stewart knew the full capabilities of the vessel’s

radar, nor did it have a protocol in place dictating when features such as the

anti-collision alarm were to be used. This may not be the most prudent way to

run a ship. However, the “privity or knowledge” standard does not require a

vessel owner to take every possible precaution; it only obliges the owner to select

a competent master and remedy deficiencies which he can discover through

reasonable diligence. The district court found that Omega selected a competent

master and rejected the contention that the vessel was unseaworthy. Those

findings are supported by the record.

Samson has doggedly insisted that the district court committed legal error.

After carefully considering the parties’ arguments, it is apparent that “[o]nce

again, we are urged to second guess the factual findings of the trial court in an

admiralty matter.” See Mac Towing, 670 F.2d at 544. Because the district court

correctly determined that Stewart’s mistakes of navigation and Platform 17B’s

lack of functioning lights caused the allision, Samson’s theory regarding

unseaworthiness of GULF SHORE is untenable. After reviewing the record as

a whole, we are not “left with a definite and firm conviction that a mistake has

been committed.” Cf. Transorient Navigators, 714 F.2d at 1364. We therefore

affirm the district court’s grant of limitation of liability to Omega.

VI.

The district court properly applied the law, and its findings of fact are not

clearly erroneous. Its rulings are therefore in all respects

AFFIRMED.