UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 96-30829

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AMERICAN RIVER TRANS COMPANY, ET AL.,

Plaintiffs,

AMERICAN RIVER TRANS COMPAN Y; TULANE FLEETING; NEW ORLEANS

SHIPYARD INC.; ARCHER DANIELS MIDLAND COMPANY;

Plaintiffs-Appellees,

versus

KAVO KALIAKRA SS, her engines, tackle, appurtenances, etc., in

rem, ET AL.,

Defendants,

KAVO KALIAKRA SS, her engines, tackle, appurtenances, etc., in

rem; UNITED KINGDOM MUTUAL STEAMSHIP ASSURANCE ASSOCIATION

(Bermuda) LTD., in personam,

Defendants-Appellants,

and

AROSITA SHIPPING COMPANY, LTD.,

Claimant-Defendant-Appellant

AROSIT A SHIPPING COMPANY, LTD, as owner of the M/V Kavo

Kaliakra; GROMAR SHIPPING COMPANY, LTD, as owners of the M/V

Kavo Kaliakra; GOURDOMICHALIS MARITIME S A, as owners of the

M/V Kavo Kaliakra,

Petitioners-Appellants,2 versus

COMPASS CONDO CORP, ET AL.,

Claimants,

COMPASS CONDO CORP; NEW ORLEANS SHIPYARD INC; ARCHER DANIELS

MIDLAND COMPANY; TULANE FLEETING, INC.,

Claimants-Appellees.

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Appeal from the United States District Court for the

Eastern District of Louisiana

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July 22, 1998

Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

In this appeal, we consider whethe r the Pennsylvania Rule

compels a finding that the presence in navigable water of barges

that lacked a permit caused a carrier to allide with the barges.

The district court entered judgment in favor of the barge owners,

holding that the mere presence of the barges was not the cause of

the allision. We affirm.

I.

On March 30, 1992, the M/V Kavo Kaliakra

, a bulk carrier

measuring approximately 825 feet and weighing approximately 65,000

tons, fully laden with a cargo of corn, allided with barges fleeted

at the Tulane Fleeting Facility on the Mi ssissippi River near

Waggaman, Louisiana.3

For approximately a year and a half prior to the allision,

A merican River Transportation Co., Archer Daniels Midland Co.,

Tulane Fleeting, Inc., New Orleans Shipyard, Inc., and Compass

Condo Corp. (collectively “ARTCO”) had been running a barge-washing

operation at the Tulane Fleeting Facility. The facility consisted

of a permanently moored floating ba r ge dock, measuring

approximately 2 40 feet long and 50 feet wide, which served as a

station where ARTCO temporarily tied inland river hopper barges for

cleaning and repairs.

On March 30, 1992, two flee ts of barges were moored at the

facility: an upriver fleet consisti ng of twenty barges moored in

two tiers of ten, and a downriver fleet consisting of eight barges

moored in two tiers of four. The M /V Kavo Kaliakra wa s headed

downriver at 11-12 knots when it lost all power and steering. The

vessel drifted for about two miles, slowing to a speed of

approximately 2-3 knots before alliding with the outermost barge of

t he upriver fleet of barges at the Tulane facility, scraping

alongside it at an angle of approximately 45 degrees. The force of

the impact caused the permanently moored barge to move about 20

feet toward the sho re, deforming its spuds, flooding various

compartments, and twisting and partia lly sinking its shoreside

access walkway. The M /V Kavo Kaliakra continued about 300 feet

downriver and struck one of the barges in the downriver fleet as

well.1 Because we affirm based on the district court’s causation

analysis, we assume for the purposes of this decision that ARTCO’s

permits were insufficient.

2 American River Transportation Co., Archer Daniels Midland

Company, Tulane Fleeting, Inc., and New Orleans Shipyard, Inc., are

each owners and/or operators of the Tulane Fleeting Facility, while

Compass Condo Corp. is the employer of individuals who were working

on barges fleeted at the facility. Arosita concedes that Compass

Condo Corporation is not responsible fo r the alleged statutory

violation. Compass, however, submitted the appellee brief jointly

with the other ARTCO entities.

4 ARTCO filed suit against Arosita Shipping Co., Lt d., Gromer

Shipping Co., Ltd., Gourdomichalois Marit ime S.A., owners and/or

operators of the M/V Kavo Ka liakra , their limited liability

insurer, United Kingdom Mutual Steamship Assurance Association

(Bermuda) Ltd., and the M/V Kavo Kaliakra (collectively “Arosita”),

seeking compensation for property damage. Arosita filed an action

seeking exoneration or limitation of liability under 46 U.S.C. §

183

.

The two actions were consolidated and tried to the bench. The

district court rejected Arosita’s claim that the allision was

caused by ARTCO’s having had barges moored in violation of the

Rivers and Harbors Act, 33 U.S.C. § 403. The district court also

found tha t Arosita failed to prove that ARTCO’s permits were

insufficient. 1 Arosita timely filed notice of appeal. 2

II.5

This court reviews the district court’s findings of fact for

clear error, see Fed. R. Civ. P. 52(a); Phillips Petroleum Co. v.

Best Oilfield Servs.

, 48 F.3d 913, 915 (5th Cir. 1995), and

findings of law de novo, se e Phillips Petroleum Co. , 48 F.3d at

915

. We note at the outset that Arosita contends that this court

should approach the district court’s findings more skeptically than

we otherwise would because many of the district court’s findings of

fact and conclusions of law were drawn directly from those proposed

by ARTCO, citing Falcon Construction Co. v . Economy Forms Corp.

,

805 F.2d 1229, 1232 (5th Cir. 1986), and Amstar Corp. v. Domino’s

Pizza, Inc.

, 615 F.2d 252, 258 (5th Cir. 1980). Nevertheless,

Arosita concedes that the standard remains clear error. We reject

Arosita’s suggestion that we should afford the district court’s

factual findings less deference than usual. S ee Kaspar Wire Works,

Inc. v. Leco Engineering & Mach.

, 575 F.2d 530, 543 (5th Cir. 1978)

(concluding that the district court’s findings reflected a careful

review despite the fact that it adopted one party ’s language

verbatim). The district court’s findings of fact, though they

borrow from the parties’ post-trial briefs, manifest no infidelity

to the district court’s obligations.

III.

In challe nging the district court’s determination that the

presence of the barges without a permit did not cause the allision,3 The relevant portions of the Rivers and Harbors Act

provide:

The creation of any obstruction not affirmatively authorized

by Congress, to the navigable capacity of any of the waters of

the United States is prohibited; and it shall not be lawful to

build or to commence the building of any wharf, pier, dolphin,

boom, weir, breakwater, bulkhead, jetty, or other structures

in any port, roadstead, haven, harbor, canal, navigable river,

or other water if the United S tates . . . except on plans

recommended by the Chief of engineers and authorized b y the

secretary of the Army; and it shall not be lawful

. . . in any

manner to alter or modify the

. . . capacity of . . . the

channel of any navigable water of th e United States, unless

the work has been recommended by the Chief of Engineers and

authorized by the secretary of the army prior to beginning the

same.

33 U.S.C. § 403.

It shall not be lawfu l to tie up or anchor vessels or other

craft in navigable channels in such a manner as to prevent or

obstruct the passage of other vessels or craft.

33 U.S.C. § 409.

6 Arosita relies on the Pennsylvania Rule, a presumption in admiralty

law that a statutory violation by a party to a collision is a cause

of the damage unless it is established that the violation could not

have caused or contributed to the collision. S ee The Steamship

Pennsylvania v. Troop , 86 U.S. 125 (1873). Arosita contends that

the barges at the Tulane Fleeting Facility were moored in violation

of the Rivers and Harbors Act, 33 U.S.C. § 403, and that their

unpermitted presence was a cause of the allision. Arosita stresses

that the Rivers and Harbors Act prohibits any obstruction of the

navigable capacity of United States waters absent affirmative

aut horization from the Army Corps of Engineers. 3 Arosita also7

points to testimony of several witnesses that the Tulane Fleeting

F acility obstructed the navigability of the river, which would

otherwise have been navigable bank to bank in that area, and that

no allision would have resulted from the ship’s loss of power if

there had been fewer barges moored at the facility. The district

court, however, concluded that ARTC O’s barges did not cause the

accident, explaining:

The Court finds that ARTCO in no way caused this

allision. The Court finds it unnecessary to decide what

types of permits ARTCO had or was required to have. The

ship intended to pass 1000 feet away from ARTCO’s barges.

ARTCO’s stationary barges, did not, in fact, obstruct the

navigable channel, thus rebutting any presumption of

fault due to the purported violation by ARTCO of any

statutory rules as alleged by Arosita.

We agree with the district c ourt’s conclusion with respect to

causation.

This court has stressed that the Pennsylvania Rule is a rule

regarding the burden of proof, not a rule of ultimate liability.

See Pennzoil Producing Co. v. Offshore Exp., Inc. , 943 F.2d 1465,

1472 (5th Cir. 1991). As we have explained, the Supreme Court in

The Pennsylviania “did not intend to establish a hard and fast rule

that every vessel guilty of a statutory fault has the burden of

establishing that its fault could not by any stretch of the

imagination have h ad any causal relation to the collision, no

matter how speculative, improbable or remote.” C ompania de Maderas

de Caibarien, S.A. v. Queenston Heights

, 220 F.2d 120, 122-23 (5th

Cir. 1955).8

The reasoning of this court in Dow Chemical Co. v. Dixie

Carriers, Inc.

, 463 F.2d 120 (5th Cir. 1972), applies in this case.

In Dow Chemical

, a tugboat owned b y Dixie Carriers had, on three

occasions, stru ck a stationary railroad bridge fender system

constructed by Dow. Stressing that Dixie was aware of the location

of the fender system, this Court found that Dow Chemical’s failure

to secure approval from the Army Corps of Engineers for the system,

although technically a violation of the Rivers and Harbors Act, did

not cause the allisions. The court explained: “The record refutes

any suggestion that the fender system caused or contributed to the

collisions simply by being there .” I d. at 122 (emphasis added;

internal quotation marks omitte d). Similarly, the unpermitted

barges moored a t ARTCO’s fleeting facility did not cause the

allision simply because they were there.

To be sure, the presence of the barges in this case was a butfor cause of the allision, just as the presence of the fender

system was a but-for cause of the allisions in Dow Chemical . But

in admiralty, the “fault which produces liability must be a

contributory and proximate cause of the collision, and not merely

fault in the abstract.” I nter-Cities Navig. C orp. v. United

States

, 608 F.2d 1079, 1081 (5th Cir. 1979). To give rise to

liability, a culpable act or omission must have been “a substantial

and material factor in causing the collision.” Id.9

In this case, the presence of the barges was not a substantial

and material factor in causing the accident. The district court

found that the fleeting facilities and barges were not an

obstruction to navigation. That finding was not clearly erroneous.

The captain of the M/V Kavo Kaliakra acknowledged that the

Mississippi River is 2400 feet wide where ARTCO’s fleeting facility

w as located and that had he stayed on course (down the middle of

t he river) he would have passed 1000 feet away from the barges.

T hat the river would have been navigable bank to bank in the

absence of the fleeting facility does not compel a finding that the

fleeting facility obstructed the navigable channel.

Moreover, we noted in Dow Chemical that the Pennsylvania Rule

“cannot ‘be pressed to such an extreme as to justify a division of

damages when the accident was undoubtably due to the negligence of

an offending vessel whose actions could not be anticipated.’” D ow

Chemical , 463 F.2d at 122 at n.5 (quoting Webb v. Davis , 236 F.2d

90, 93 (5th Cir. 1956)). As in Dow , the ship’s crew in this case

was aware of the location of the stationary object. Arosita does

not challenge the district court’s factual findings that it was at

fault for the M/V Kavo Kaliakra ’s having lost power on the day in

question and for not slowing the ship more quickly after the loss

of power prior to the allision.

A rosita argues that D ow is distinguishable from the case at

hand because here a different design or placement of the structures10

would have avoided the allision. Specifically, Arosita points to

testimony that, if one less barge had been moored at the fleeting

facility, the M/V Kavo Kaliakra would not have allided with it. At

bottom, however, this argument is no more than a restatement of the

position that the unpermitted barges caused the accident by “being

there.”

For the foregoing reasons, we affirm the judgment of the

district court.