Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth

Circuit Rule 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-31194

Summary Calendar

BUTTERFLY TRANSPORTATION CORP; SAMOS STEAMSHIP CO, S.A., 

Plaintiffs-Appellants

v.

BERTUCCI INDUSTRIAL SERVICES LLC,

Defendant-Appellee

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:04-CV-3533

Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges. 

PER CURIAM:*

Butterfly Transportation Corporation and Samos Steamship Company

(“the Owners”) owned the vessel M.V. Maya, and alleged that Bertucci Industrial

Services (“Bertucci”) failed to fulfill a contract to clean the holds of the Maya,

thereby damaging the Owners. After Bertucci prevailed on summary judgment,

the Owners successfully appealed and had the case remanded to the district

court. The district court’s bench trial resolved in favor in Bertucci, and the

Owners now appeal again. We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

September 29, 2009

Charles R. Fulbruge III

Clerk
No. 08-31194

2

I. FACTUAL AND PROCEDURAL BACKGROUND

The parties do not dispute this case’s material facts, which the prior

opinion details in full. Butterfly Transp. Corp. v. Bertucci Indus. Servs., 243 F.

App’x 16 (5th Cir. 2007) (unpublished). The dispute continues to revolve around

Bertucci’s bid—“We offer a no cure no pay price of $145,000.00 to obtain passes

for loading for USDA and NCB. We estimate the project will require 5 to 6 days

for cleaning, but do not guarantee the number of days. This rate includes a

crane barge to place the man-lifts in each cargo hold as well as the gear and

chemicals required during mobilization.”—and the Owners’ “Confirmation of

Order”—“[W]e hereby confirm our acceptance of Bertucci . . . to carry out

cleaning and preparing all ship’s cargo holds (8 cargo holds) for grain loading.

Work to commence immediately and to terminate with issuing NCB and USDA

holds acceptance certificate for loading grains.” After the district court granted

Bertucci’s motion for summary judgment, the Owners appealed, and a panel of

this Court reversed the district court’s order and remanded the case to the

district court for determination of the contractual intent of the parties, and for

consideration of the implied warranty claim. Id. The district court then held a

bench trial, concluded that Bertucci was not liable to the Owners for damages,

and entered a final judgment from which the Owners now appeal.

II. DISCUSSION

A. Intent of the Parties

The Owners first assert that the district court erred in ruling that the

parties did not intend for Bertucci to remove all residues of prior cargoes. The

district court concluded that the parties intended to obligate Bertucci to remove
No. 08-31194

3

the amount of residue necessary to obtain the requisite operating certificates.

The Owners contend that Bertucci had an obligation to remove all cargo residues

from the holds. We review the findings of fact from a bench trial for clear error,

and will “reverse only if we have a definite and firm conviction that a mistake

has been committed.” Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th

Cir. 2000).

To support their assertion, the Owners rely on the testimony of Captain

George Maroulis, who testified that the intended meaning of the Confirmation

of Order “was not only to get the certificates issued, but to clean the holds up to

the grain standards.” He further explained,

We believe that Bertucci . . . understood what we meant when

saying that we were in need of USDA certificate. What we meant

was to clean the holds, all of the holds from top to bottom, to a

certain extent, to the level that they would be appropriate for grain

loading with no cargo damage.

In contrast, Captain Alexander Dublennykh testified that once the USDA and

NCB issued the certificates approving the holds for grain loading, neither the

ship’s crew nor Bertucci would be obligated to conduct further cleaning on any

of the holds. Captain Dublennykh also testified that he was not going to

double-check the cleanliness of the Maya’s cargo holds after he received the

certificates approving the holds for grain loading. Captain Elias Katsaros

confirmed that Bertucci’s work would end once the USDA and NCB issued their

certificates, and he also stated, “When the cleaning firm gets the passes from

[the] USDA and NCB, that’s the time when always their services are

terminated.” Even though the testimony of Captain Maroulis may conflict with

the testimony of Captain Dublennykh and Captain Katsaros, “[w]e cannot
No. 08-31194

4

second guess the district court’s decision to believe one witness’[s] testimony over

another’s or to discount a witness’[s] testimony.” Moreover, Bertucci’s work

under the contract was “to commence immediately and to terminate with issuing

NCB and USDA holds acceptance certificate for loading grains. . . . with top

priority to reduce delay for this cleaning operation.” In light of the evidence

favoring Bertucci’s interpretation, we are not convinced that the district court

committed any clear error when it rejected the Owners’ position.

B. Implied Warranty of Workmanlike Performance

The Owners initially claim that the district construed the implied

warranty of workmanlike performance erroneously, emphasizing that more than

mere reasonable care is required. We review the district court’s legal

determinations de novo. See Canal Barge Co., 220 F.3d at 375. Even though we

have questioned the propriety of employing the implied warranty of

workmanlike performance as the model for indemnification in

non-personal-injury contexts, see Rockwell Int’l Corp. v. M/V Incotrans Spirit,

998 F.2d 316, 319 (5th Cir. 1993); Bosnor, S.A. DE C.V. v. Tug L.A. Barrios, 796

F.2d 776, 785–86 (5th Cir. 1986), we need not address that question here

because, assuming arguendo that the warranty should apply, we find no clear

error in the district court’s holding that Bertucci failed to satisfy the warranty’s

elements. 

To recover from a contractor for breach of an implied warranty of

workmanlike performance, a shipowner must prove that the contractor breached

the warranty, and that the breach proximately caused the injury. Parfait v.

Jahncke Serv., Inc., 484 F.2d 296, 302 (5th Cir. 1973). More specifically, the

essence of a contractor’s obligation is the duty to perform the contract’s
No. 08-31194

 The Owners fail to explain how or if the “reasonable care” standard differs from our 1

standard requiring proper performance under a contract. Specifically, the district court stated

that an implied warranty of workmanlike performance means “performing work properly

under [the] contract.” The district court also stated that under the implied warranty of

workmanlike performance Bertucci owed the Owners “a duty of reasonable care in performing

any services,” and the court concluded that Bertucci performed its contractual duties “with

sufficient amount of care.” These statements show that the district court defined the Implied

warranty of workmanlike performance as performing contractual duties “properly” and with

“reasonable care.”

 We find unpersuasive the Owners’ assertion that the district court deemed Murphy’s 2

testimony credible “in an obvious attempt to insulate its findings from appellate review.” See

5

obligations “properly and safely.” Parfait, 484 F.2d at 301 (quoting Ryan

Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 133 (1956));

Garner v. Cities Serv. Tankers Corp., 456 F.2d 476, 481 (5th Cir. 1972). In

particular, Ryan concluded a party could not breach the duty if it performed the

“essence” or “inescapable elements” of a contract. Ryan Stevedoring Co., 350

U.S. at 133. Thus, Bertucci was obligated to properly perform “the essence” or

“inescapable elements” of its contract with the Owners, which in this case

involved cleaning the holds enough to obtain the necessary certificates. The

district court considered both a general standard of reasonable care and the

contract’s specific obligations when it considered how well Bertucci had cleaned

the holds and whether Bertucci removed enough residue to obtain the necessary

certificates. Accordingly, the Owners’ argument regarding the district court’s 1

failure to apply the appropriate legal standard for the implied warranty fails. 

The Owners next contend the district court erred in finding that Bertucci

fulfilled the warranty, an issue that we review for clear error by giving “due

regard” to the district court’s assessment of witnesses’ credibility, Canal Barge

Co., 220 F.3d at 375 (quoting Fed. R. Civ. P. 52(a)). The district court found

credible the testimony of Bertucci’s lead supervisor, Lawrence Murphy, who had 2
No. 08-31194

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 575 (1985).

6

been involved personally in the ship cleaning business since 1963. Murphy

testified to the equipment, materials, labor, and cleaning operations used in

preparing the Maya’s cargo holds for inspection; testified that he and his crew

inspected and cleaned “every inch” of all the Maya’s cargo holds, including hold

number two, the only one of the eight cargo holds in which damaged cargo was

found; testified that the captain, chief mate, or a representative of the Maya was

present with him when evaluating a cargo hold’s condition after cleaning; and

described the testing and cleaning operations used on an area in which he

doubted the area’s cleanliness. Based on this evidence, the district court

concluded that Bertucci cleaned the holds “with sufficient amount of care.” 

Finally, after determining that the parties intended for Bertucci to remove

enough residue to obtain the necessary certificates, the district court considered

the issuance of USDA and NCB certificates as evidence that Bertucci satisfied

the warranty. The Owners argue that the two USDA surveyors could not have

performed an adequate inspection of the eight holds in one hour, and that “there

was no direct evidence of what the inspectors actually did or did not do.”

However, the Owners’ own witness, Captain Maroulis, testified he had never

seen the USDA issue a certificate for cargo hold cleanliness where the USDA

inspectors did not inspect the entire hold. Likewise, Captain Katsaros testified

that USDA and NCB inspectors do not issue certificates certifying cargo holds

as suitable for loading unless cargo hold preparation is 100 percent complete.

In light of this evidence, we are not convinced that the district court clearly erred

in relying on the issuance of USDA and NCB certificates in its assessment of the

warranty, and are not convinced that the district court was clearly erroneous in
No. 08-31194

7

finding that Bertucci satisfied the implied warranty of workmanlike

performance.

III. CONCLUSION

For the foregoing reasons, the district court’s judgment is AFFIRMED.