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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-60872

RICHARD CRAVEN

Plaintiff-Appellee

v.

CASHMAN EQUIPMENT CORPORATION

Defendant - Cross Claimant - 

Cross Defendant - Appellant - 

Cross-Appellee

v.

OFFSHORE SPECIALTY FABRICATORS INC.

Cross Defendant - Cross Claimant -

Appellee - Cross Appellant.

Appeals from the United States District Court 

for the Southern District of Mississippi

USDC No. 1:06-CV-545

Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.

PER CURIAM:*

United States Court of Appeals

Fifth Circuit

F I L E D

September 14, 2009

Charles R. Fulbruge III

Clerk
No. 08-60872

2

Appellant Cashman Equipment Corporation ("Cashman") appeals the

judgment in favor of appellee Richard Craven ("Craven") in this maritime

negligence case. Cashman argues that the district court made clearly erroneous

fact findings, erred in apportioning fault, and erroneously rejected limitation of

liability. Cross-Appellant Offshore Specialty Fabricators, Inc. ("OSFI") appeals

the district court's failure to award prejudgment interest on its reimbursement

claim against Cashman. We affirm the district court's judgment but remand for

consideration of OSFI’s entitlement to prejudgment interest.

FACTUAL AND PROCEDURAL BACKGROUND

Cashman owned the Conical, a dilapidated dredge littered with debris and

strewn with tears. When the Conical was moored at Cove Fleeting, Cashman

removed her crane, creating a three-foot by three-foot hole in the deck (the

"hole"). Cashman then moved the Conical to the Riverland Fleeting facility on

the Atchafalaya River. OSFI leased a barge from Cashman and was returning

the barge to Riverland Fleeting when the accident occurred. OSFI was

instructed to place the rented barge in a position that required securing three

barges (including the Conical) and shifting the group along the river. This was

to be done at night.

Viewing the evidence in the light most favorable to the judgment, Craven,

an OSFI employee, boarded the Conical to prepare it for shifting. After the

Conical and another barge were secured together, Craven's partner was working

to untie the Conical from its moorings. Craven moved to assist his partner,

without a functioning headlight on his safety helmet. On his way, he walked

across an unlit area of the Conical's deck and fell through the hole.

Craven sued Cashman for maritime negligence and OSFI under the Jones

Act. Prior to trial, Craven and OSFI settled and OSFI filed a cross-claim against

Cashman for reimbursement. After a bench trial, the district court found

Cashman 85 percent at fault, OSFI 10 percent at fault, and Craven 5 percent at
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3

fault. In a separate ruling, the district court denied Cashman's petition for

limited liability because the Conical was a "dead vessel," and because Cashman

had knowledge of and privity to the hole. Cashman appeals the distribution of

fault and the limitation of liability rulings. OSFI appeals only the district

court's failure to award prejudgment interest on OSFI's recovery of past

maintenance and cure expenses.

DISCUSSION

The standard of review for a bench trial is well established: Findings of

fact are reviewed for clear error and legal issues are reviewed de novo. In re

Mid-South Towing Co., 418 F.3d 526, 531 (5th Cir. 2005). Clear error exists if

(1) the findings are without substantial evidence to support them, (2) the court

misapprehended the effect of the evidence, and (3) the force and effect of the

testimony, considered as a whole, convinces the court that the findings are so

against the preponderance of credible testimony that they do not reflect or

represent the truth and right of the case. Moorhead v. Mitsubishi Aircraft Int'l,

Inc., 828 F.2d 278, 283 (5th Cir. 1987).

A. Distribution of Fault

Cashman appeals the distribution of fault by challenging the factual

findings that its representatives saw or should have seen the hole into which

Craven fell. The district court found that Levans Pontiff (“Pontiff”) (Cashman's

operations manager at the time), Skip Broussard (“Broussard”) (an equipment

manager), and other unidentified representatives (the "Unidentified

Representatives") saw or should have seen the hole.

We find no clear error in the district court's findings that Pontiff and

Broussard saw or should have seen the hole. Pontiff testified that he was at

Cove Fleeting after the Conical's crane had been removed. Cashman's own

expert testified that the crane removal caused the hole. It is a permissible view

of the evidence to conclude that the hole existed when Pontiff visited and that
No. 08-60872

4

Pontiff had the opportunity to see the significant hole into which Craven fell.

Testimony by employees of OFGI and Riverland Fleeting shows that Broussard

was on the Conical for several days when the hole existed. It is a permissible

view of the evidence to conclude that Broussard saw or should have seen the

hole.

Either Pontiff’s or Broussard's knowledge was sufficient to support the

judgment. Even if the court’s findings of knowledge were clearly wrong,

however, the judgment withstands attack on the un-challenged basis that

Cashman should have known about the hole.

B. Cashman's Motion for Limited Liability

Cashman also argues that the district court incorrectly denied its motion

for limited liability because it mistakenly categorized the Conical a "dead ship."

We do not reach this point. The record provides sufficient evidence to deny

limitation based on Cashman’s knowledge and privity.

The owner of a vessel cannot limit his liability if he had knowledge and

privity of the condition that caused the harm. 46 U.S.C. § 30506(e). Privity is

clear; the only issue is whether Cashman knew of the hole. A corporate principal

is generally considered to know what its agents discover concerning those

matters in which the agents have the power to bind the principal. In re Hellenic,

Inc., 252 F.3d 391, 395 (5th Cir. 2001). Deciding whether to impute knowledge

is fact-intensive, and some threshold for imputation is required. Id. The district

court found that two of Cashman's agents, Pontiff and Broussard, had actual

knowledge of the hole in question and imputed that knowledge to Cashman.

After a careful review of the record, we do not find clear error. In its brief,

Cashman does not challenge whether Pontiff’s or Broussard's actual knowledge

can be properly imputed to Cashman. At oral argument, Cashman made a

cursory challenge as to whether Pontiff or Broussard had sufficient

responsibility to warrant imputing their knowledge to Cashman. This challenge,
No. 08-60872

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however, does not rise to the level of clear error. Pontiff’s and Broussard's titles

(operations manager and supervisor, respectively) demonstrate a level of

responsibility that supports imputing their knowledge to Cashman. Further, if

neither Pontiff nor Broussard was responsible for the Conical, then Cashman is

liable because Cashman failed to put any agent in charge of the dredge.

C. OSFI's Prejudgment Interest

OSFI appeals only the district court's failure to award prejudgment

interest on OSFI's recovery from Cashman. OSFI asserts that this was an

oversight by the district court. "[I]n maritime cases the award of prejudgment

interest is the rule, rather than the exception, and the trial court has discretion

to deny prejudgment interest only where peculiar circumstances would make

such an award inequitable." Corpus Christ Oil & Gas Co. v. Zapata Gulf Marine

Corp., 71 F.3d 198, 204 (5th Cir. 1995). We review for clear error the district

court's factual determinations of peculiar circumstances, while we review a

denial of prejudgment interest for abuse of discretion. Id. This court held that

"[i]f the trial court does not make any mention of prejudgment interest in its

judgment or its findings of fact and conclusions of law, then it is . . . difficult to

infer that the trial court has found peculiar circumstances and decided to

exercise [its] discretion." Noritake Co. v. M/V Hellenic Champion, 627 F.2d 721,

730 (5th Cir. 1980).

Although the district court made no findings of peculiar circumstances

that would warrant denying prejudgment interest to OSFI, it did award

prejudgment interest to Craven. Whether the district court's failure to award

OSFI interest was merely a clerical oversight or a conscious decision, we cannot

infer. The better course is to remand for the district court to consider this in the

first instance. See Jauch v. Nautical Services, Inc., 470 F.3d 207, 215 (5th Cir.

2006).
No. 08-60872

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For these reasons, the judgment is AFFIRMED IN PART and

REMANDED IN PART.