IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-31025

CAMERON EVANS,

 Plaintiff

v.

VIDALIA DOCK & STORAGE COMPANY, 

 Defendant-Third Party Plaintiff - Appellant

v.

BRUCE OAKLEY, INCORPORATED, 

 Third Party Defendant - Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 1:14-CV-2255

Before REAVLEY, DAVIS and JONES, Circuit Judges.

PER CURIAM:*

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 3, 2016

Lyle W. Cayce

Clerk

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2

“A shipowner has an absolute nondelegable duty to provide a seaworthy 

vessel.” Brister v. A.W.I., Inc., 946 F.2d 350, 355 (5th Cir. 1991). This duty

extends to barge owners “in a towage situation.” Consol. Grain & Barge Co. v. 

Marcona Conveyor Corp., 716 F.2d 1077, 1081 (5th Cir. 1983) (per curiam). 

The owner of a wrecked or imperiled vessel does not, however, owe a duty of 

seaworthiness to a would-be salvor. We must decide whether third-party 

plaintiff Vidalia Dock & Storage Company (“Vidalia Dock”) plausibly alleged 

that the BOI 227, a barge owned by third-party defendant Bruce Oakley, Inc.

(“Oakley”), sank while under a contract for towage rather than salvage. 

Because, under the facts alleged by Vidalia Dock, the operation could only have 

been one of salvage, we conclude that Oakley did not owe a duty of 

seaworthiness to Vidalia Dock.

Bruce Evans, an employee of Vidalia Dock, was injured during an 

attempted rescue of the BOI 227, which had grounded on the banks of the 

Mississippi River after breaking free from its moorings. Evans sued Vidalia 

Dock, and Vidalia Dock impleaded Oakley under Rule 14(c). Vidalia Dock 

asserted a seaworthiness claim against Oakley. Oakley then moved for 

dismissal under Rule 12(b)(6), and Vidalia Dock opposed the motion and 

supplemented its Rule 14(c) tender with additional factual allegations. Upon 

the magistrate judge’s report and recommendation, and after considering 

objections thereto, the district court granted judgment in favor of Oakley.

Vidalia Dock timely appealed, and despite Oakley’s arguments to the contrary, 

we have jurisdiction. See 28 U.S.C. § 1292(a)(3).

If, as the district court ruled, Oakley owed no duty of seaworthiness to 

Vidalia Dock and Evans, judgment was proper. As explained above, the 

answer to this question depends on the character of service provided by Vidalia 

Dock—towage or salvage.

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“A towage contract . . . arises when one vessel is employed to expedite 

the movement of another.” Agrico Chem. Co. v. M/V Ben W. Martin, 664 F.2d 

85, 90 (5th Cir. 1981). The fact of towing is not dispositive. “The existence of 

a marine peril distinguishes a salvage contract from one for towage.” Evanow 

v. M/V Neptune, 163 F.3d 1108, 1114 (9th Cir. 1998). Thus, “[w]hen a tug is 

called or taken by a sound vessel as a mere means of saving time, or from 

considerations of convenience, the service is classed as towage; but if the vessel 

is disabled, and in need of assistance, it is a salvage service.” Id. (quoting The 

Flottbek, 118 F. 954, 960 (9th Cir. 1902)). Marine peril exists where danger is 

“reasonably to be apprehended,” and “if [a] vessel is stranded so that it is 

subject to the potential danger of damage or destruction she may well be a 

subject of salvage services.” Fort Myers Shell & Dredging Co. v. Barge NBC 

512, 404 F.2d 137, 139 (5th Cir. 1968).

According to Vidalia Dock, it “directly alleged that the BOI 227 was 

furnished to it by Oakley for towage operations.” As the foregoing authorities 

show, this is insufficient to establish towage rather than salvage. We must ask 

whether the tow was meant to expedite the barge’s movement or instead to

rescue it from marine peril. We treat Vidalia Dock’s allegations as true and 

draw all reasonable inferences in its favor.

In its original Rule 14(c) tender, Vidalia Dock alleged that Evans 

encountered the BOI 227 “during a mission to rescue the barge,” and that this 

“rescue mission” was the cause of Evans’ injury. It is alleged that the 

“emergency rescue mission by Vidalia Dock” occurred after the BOI 227 had 

broken free from its moorings, floated down the Mississippi River, and 

grounded upon the river’s banks. The supplemental tender alleged that the 

barge sank while under tow during “efforts . . . to save the BOI 227 from loss.”

Vidalia Docks’ argument on appeal that “retrieving a barge from a mud 

bank is hardly maritime peril” runs headlong into its allegations of an 

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“emergency recuse mission” carried out in an effort “to save” the barge. 

Moreover, we have previously observed that retrieval of a grounded barge “may 

well” be salvage. Fort Myers Shell & Dredging Co., 404 F.2d at 139. Here, the 

allegations permit no other conclusion. The mission was not to expedite the 

barge’s travel but to “rescue” or “save” the barge in an “emergency” situation. 

This is salvage, not towage. 

AFFIRMED.

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