### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14

- 30888

LLOYD'S SYNDICATE 1861; D& B BOAT RENTALS, INCORPORATED,

Plaintiffs

- Appellants

v. CROSBY TUGS, L.L.C.,

Defendant

- Appellee

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:13

- CV

- 5551

Before DAVIS and CLEMENT, Circuit Judges, and ROSENTHAL, District Judge. * PER CURIAM: * * Plaintiffs

– Appellants , D&B Boat Rentals Inc. and its insurer, Lloy d’s Syndicate 1861 , (collectively referred to as “D&B ”) , sued Defendant Crosby Tugs, L.L.C. (“Crosby”), seeking to recover the expenses they incurred in removing the ir sunken vessel , M/V RICKY B, from the bottom of the Gulf of

* District Judge of the Southern District of Texas, sitting by designation.

* * Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited ci rcumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED March 30, 2015 Lyle W. Cayce Clerk Case: 14-30888 Document: 00512986526 Page: 1 Date Filed: 03/30/2015No. 14

- 30888 Mexico. Following a bench trial, the district court entered a judgment in favor

o f Crosby. W e affirm the court’s judgment.
I. During t he night of May 28, 2013 , the RICKY B , while servicing drilling platforms in the Gulf of Mexico, began taking on water in its engine room through its starboard stuffing box. On the morning of May 29, a f ter several attempts to stop the ingress of water , the RICKY B contacted Crosby for assistance. The RICKY B had l ost power and its crew was abandoning ship

. Crosby agreed to dispatch a tug to tow the RICKY B to shore. Several hours later, Crosby’s tug, M/ V DELTA FORCE, arrived at the scene and observed
that t he RICKY B had a list to port and was sitting low in the water. Following the owner and operator’s instructions, the DELTA FORCE attached a tow

- line, without attempting to pump out the water in the RICKY B, and began towing
the vessel to shallower waters at a speed of no more than five knots . After proceeding approximately thirteen miles, the RICKY B completely submerged and came to a rest on the bed of the Gulf of Mexico. D&B filed suit against Crosby alleging that the DELTA FORCE negligently towed the RICKY B without pumping the water out first and at too high a rate of speed, which caused the RICKY B to sink

. After conducting a bench trial, t he district court found that D&B presented insufficient evidence
to establish that Crosby acted with either negligence or gross negligence and entered a take nothing judgment in favor of Crosby

. In reaching its judgment,
the district court held that : (1) the nature of the services provi ded by Crosby were salvage, not towing ; (2) the damage ultimately suffered by the RICKY B was indistinguishable from the purpose of the salvage operation (sinking), and, therefore, a g ross negligence standard applied in determining Crosby’s liability ; (3) even if the court applied an ordinary negligence standard , D&B presented in sufficient evidence of Crosby’s negligence; and (4) the
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- 30888 Pennsylvania R ule required D&B to show that th e statutory violations of the RICKY B were not the cause of the accident.
II. On appeal, D&B first argues that the district court erred in concluding that the services provided by Crosby were salvage in nature and not towing.
Next , D&B argue s that regardless of the type of services provided by Crosby

— towing or salvage

— the ordinary negligence standard ap plies; thus, the district court erred in applying a gross negligence standard

. D&B also argues that the district court erred in finding that the evidence was insufficient to establish Crosby’s negligence under an ordinary negligence standard . Finally, D&B challenge s the district court’s application of the Pennsylvania Rule. After a careful review of the record and consideration of the briefs, we are not persuaded that the district court erred in finding that the evidence was insuffi cient to establish that Crosby was negligent in rendering aid to the RICKY B

. The record supports the district court’s conclusion that Crosby did not owe a duty to pump water from the RICKY B before towing it. Michael
Donne r of Louisiana Marine Operators

— the company that operated the RICKY B

— testified that he instructed the crew of the DELTA FORCE to “absolutely not” attempt to pump water from the RICKY B due to its perilous
condition. Thus, the district court’s finding that Crosby had no duty t o pump water before towing the RICKY B was not erroneous. Similarly, w e agree that D&B failed to establish by a preponderance of
the evidence that towing the RICKY B at a speed of no more than five knots
contributed to its sinking

. Neither of D&B’s expert s testified that five knots

was a n unsafe speed to tow the RICKY B. Although ther e was conflicting
evidence on whether towing the vessel at this speed was a cause of the accident, the district court resolved this dispute in favor of Crosby , and we cannot s ay its determination was erroneous.
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- 30888 Because D&B argues that the ordinary negligence standard applies to both salvage and towing operations and we have determined that the district court did not err in finding that Crosby did not act negligently , we need no t address whether the district court properly characterized the arrangement between D&B and Crosby as salvage or towing. Similarly, because the district court ruled that Crosby was not liable under ordinary negligence standard s , we need not address the co rrectness of the district court’s finding that the gross negligence standard applied to the d amage to the RICKY B

. Finally, D&B argues that the district court improperly applied the Pennsylvania Rule in this case. The Pennsylvania Rule creates a rebuttable presumption of causation against an entity involved in a maritime accident, if that entity is in violation a maritime rule or regulation intended to prevent
that type of accident

. 1 However, the district court found no breach of duty by Crosby. The effect of the Pennsylvania Rule in this case, if applicable, would have only helped Crosby in establishing comparative negligence on D&B. Because the court found no fault on Crosby, the Pennsylvania Rule had no effect on the outcome.
I II.
For the above reasons and the reasons assigned by the district court in its thorough opinion, we affirm the judgment of the district court. AFFIRMED.

1 See Pennzoil Producing Co. v. Offshore Express, Inc., 9 43 F.2d 1465, 1472 (5th Cir. 1991)

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