* 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 circumstances set forth in 5 TH C IR

. R.

47.5.4.

1 United States Court of Appeals

Fifth Circuit



## FILED

June 16, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-20470

TUCKER ENERGY SERVICES, INC.;

Plaintiff-Counter Defendant-Appellant,

TUCKER WIRELINE SERVICES DE VENEZUELA S.A.;

TUCKER TECHNICAL SERVICES, INC.;

INDUSTRIAL AGENCIES LTD.,

Plaintiffs-Appellants,

versus

NOBLE DENTON & ASSOCIATES, INC., et al.,

Defendants-Counter Claimants-Appellees.

Appeals from the United States District Court

for the Southern District of Texas

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM: *

In April of 1997, the M/V MR. JOSEPH, a jackup drilling rig, sustained serious damage

while be ing transported aboard a dry tow barge from New Orleans, Louisiana, to Maracaibo,

Venez u ela, when one of the rig’s three legs collapsed inward. Bareboat vessel charterers Tucker2

Ene rgy Services, Tucker Wireline Services de Venezuela, S.A., Tucker Technical Services, and

Industrial Agencies, Ltd. (collectively, “Tucker”), brought this marit ime action against Noble Denton

& Associates (“Noble Denton”), the marine surveying company whic h approved the lashings and

seafastenings used to secure the MR. JOSEPH to the barge for transport. In its complaint, Tucker

brought claims for negligence, breach of contract, and breach of the implied warranty of workmanlike

performance against Nobel Denton, asserting that the seafastenings were inadequately designed or

installed and permitted the jackup rig to move during the dry tow, thereby causing the rig’s aft leg

to collapse. Tucker also sued the American Bureau of Shipping (“ABS”), the classification society

that had surveyed the MR. JOSEPH during and after its construction and had iss ued a class

certification for the vessel. Noble Denton responded by filing a counterclaim against Tucker seeking

payment for services rendered and a cross

- claim against ABS for indemnity and/or contribution.

Noble Denton also sued two third-party defendants: Rodriguez Boat Builders, Inc. (“Rodriguez”),

the builder of the MR. JOSEPH, and Morrill & Associates (“Morrill”), which was involved in rigging

and se curing the MR. JOSEPH for its journey to Venezuela. Noble Denton denied that its

seafastenings were negligently designed or installed or that the sea fast enings caused the legs to

collapse. Noble Denton contended that the leg collapsed due to the failure of defective welds on the

braces supporti ng t he leg, which were made by Rodriguez during the construction of the MR.

JOSEPH.

Prior to tr ial, Tucker settled its claims against ABS. The district court then proceeded to

conduct a 7-day bench trial, which ul t imat ely focused on the competing theories of causation

advanced by Tucker and Noble Denton. After considering the extensive testimony and evidence

presented by both sides, the district court concluded that Tucker failed t o establish by a3

preponderance of the evidence that the seafastening design or installation approved by Noble Denton

caused or contributed to the cause of the collapse of the MR. JOSEPH’s aft leg. The district court

reasoned that despite evidence that Noble Denton failed to conduct the prestow engineering analysis

that its own guidelines specified, the evidence did not show that the failure to conduct a more detailed

analysis caused or contributed to the cause of the leg collapse. Rather, the district court found that

the evidence established that the rig’s leg would not have collapsed but for a defective weld and that

the collapse would have occurred regardless of the seafastenings used to secure the rig to the dry tow

barge. Accordingly, the district court dismissed all of Tucker’s claims with prejudice, mooting Noble

Denton’s third-party claims against Rod r iguez Boatbuilders, ABS, and Morrill. The district court

also awarded Noble Denton $7,820.00 on its counterclaim against Tucker. Tucker timely filed notice

of appeal.

On appeal, Tucker first argues that the district court clearly erred in finding that Noble Denton

did not cause the casualty by crediting Noble Denton’s testimony and evidence over that presented

by Tucker. In particular, Tucker asserts that t he district court gave “undeserved credit” to the

testimony of Noble Dento n’s expert, Bader Diab, and disregarded certain evidence supporting

Tucker’s theory

of causation -- namely, the deposition testimony of independent surveyor Captain

David Falkner. According to Tucker, Captain Falkner’s testimony establishes that the insufficiency

of the seafastenings allo wed the MR. JOSEPH to move transversely relative to the dry tow barge

during transit, and that this excessive movement caused the jackup rig’s aft leg to collapse. We must

disagree.

In an admiralty action tried to a court without a jury, we review the district court ’s

factfindings for clear error and its legal conclusion s de novo. A vondale Indus. v. Int’l Marine4

Carrier’s Inc

., 15 F.3d 489, 492 (5th Cir. 1994). “Questions concerning the existence of negligence

and causation are treated as factual issues subject to the clearly erron eous standard,” i d.

, as are

findings regarding proximate cause. G avagan v. United States

, 955 F.2d 1016, 1019 (5th Cir. 1992).

“‘Under a clear error standard, this court will reverse ‘only if, on the entire evidence, we are left with

the definite and firm conviction that a mistake has been made.’” O tto Candies, L.L.C. v. Nippon Kaiji

Kyokai Corp .,346 F.3d 530, 533 (5th Cir. 2003) (quoting Walker v. Cadle Co. (In re Walker)

, 51

F.3d 562, 565 (5th Cir.1995) (internal quotation omitted)).

We have carefully examined the parties’ written and oral arguments, the record excerpts, and

the pertinent parts of the record itself and find that the district court’s finding as to liabilit y was amply

supported by the evidence presented. In support of its determination that Tucker failed to prove that

Noble Denton caused the damage, the district court primarily credited (1) the testimony of defense

expert Bader Diab that, during the voyage, the poorly welded starboard brace supporting the aft leg

failed at its weldment with the deck, commencin g t he failure sequence that culminated in the leg

collapse; (2) photographic evidence showing that the weldment between the starboard brace of the

aft leg and the deck of the MR. JOSEPH broke by shearing clean, compelling the conclusion that the

welds were defective; and (3) evidence that another jackup rig aboa r d the dry tow barge snugly

abutted the MR. JOSEPH during the voyage an d had been secured to the barge using the same

seafastening system, yet had not moved and sustained no damage to its raised legs or othe rwise.

Further, testimony presented by Tucker, including that of Tucker’s engineering expert, Ed Turner,

Captain Falkner, and Tucker employees, supported the finding that the w elds were defective and

caused the collapse of the aft leg. By contrast, the district court found that Tucker’s theory that the

casualty was caused by a substandard seafastening system w a s riddled with inconsistencies and5

contrary to the photographic evidence presented, that Turner’s simulation model of the forces and

reactions on the MR. JOSEPH was not persuasive because it used load figures that contemplated

extreme seastates not actually encountered on the voyage at issue, and that Turner was not credible.

Based on the foregoing, we conclude that the district court had ample evidence before it to

find that Tucker failed to establish by a preponderance of the evidence that the design or installation

of the seafastenings approved by Noble Denton caused the rig’s leg to collapse.

Tucker next asserts that the district court erred by failing to assign Noble Denton a percentage

of fault. Tucker argues that because this is “a case of contested liability,” the district court was “duty

bound to apply the doctrine of comparative fault.” This argument is without merit. In this case, the

district court found that Tucker failed to establish that defendant Noble Denton caused or contributed

to the cause of the damage sustained to the MR. JOSEPH. Accordingly, the district court correctly

declined to assign any percentage of fault to Noble Denton. S ee U nited States v. Reliable Transfer

Co.

, 421 U.S. 397, 411 (1975) (establishing that “ w hen two or more parties have contri buted by

their fault to cause

. . . damage

, [liabilit y] is to be allocated among the parties proportionately to the

comparative degree of their fault”) (emphasis added).

Finally, Tucker contends that the district court erred in dismissing its breach of contract and

breach of warranty claims against Noble Denton, arguing that the district court improperly applied

the tort standard of proximate cau se rat her t han foreseeability in analyzing these contract-based

claims. This assignment of error is based on Tucker’s misapprehension of the district court’s opinion;

thus it too is wit ho ut merit . Aft er explaining in some detail that courts are split over whether a

proximate causation or a foreseeability standard applies in marit ime contract actions, the district court

analyzed Tucker’s claims alternatively under both standards to conclude that under either approach,6

Tucker’s contract and warranty claims must fail. Accordingly, for the reasons stated by the district

court in its March 31, 2003, memorandum and opinion, we affirm the district court’s final judgment

entered in favor of

No ble Denton on March 31, 2003. S ee Tucker Energy Services, Inc., et al. v.

Noble Denton & Associates, et al. , No. H-98-1126 (S.D. Tex. March 31, 2003).

AFFIRMED.